I am not sure the child is mine – court orders and paternity testing

by Anne-Louise Pham on October 18, 2016

Anne-Louise Pham

Ordinarily the Court will assume that the parties before the Court are the parents of the child to which the dispute concerns. However, sometimes in family law proceedings there is disagreement or uncertainty about the parentage of the child. Parentage can be important not only for Orders in relation to the child, but also for issues such as child support and the registration of parents on the child’s birth certificate. Where such doubt exists, the Court has the power to make an Order that the child/ren and the parent undertake a paternity test.

However, it should be noted that paternity tests are not for the asking. The Court must tread carefully here, balancing the needs of the parent (in knowing whether or not the child is in fact their biological child) and the possible negative implications such paternity test results may have on the child and/or parent. The Court has consistently held that in making an Order for paternity testing to be carried out, the welfare of the child is necessarily the paramount consideration. Careful consideration is given to the reasons for such request, the foundation for such doubt, and the effect such outcome may have on the relationship between the child and parent. For example, in the decision of Letsos & Vakros [2009] FMCAfam 897, the Court noted that in order for a paternity test to be ordered, there must be substantive proceedings before the Court in which paternity is a real issue. The doubt in the Applicant’s mind must be honest and reasonable; not affected by malice or hatred for the other party.

Therefore, it would not be enough to seek a paternity test purely to seek revenge on a cheating ex-spouse or to be vindictive. Family law proceedings should not been an avenue for parents to ‘score points’ or ‘level the playing field’ with one another. The Court will expect that both parents work towards a strong co-parenting relationship. Central to any Court decision is the child’s best interests.

Types of DNA Testing

There are two types of tests which you may obtain. One is a self-sample test which is often called a “peace of mind” test. A peace of mind test does not satisfy the legal requirements due to the method of self-testing; there is no independent verification of the identity of the persons tested and therefore the Court cannot rely on such evidence. The other form of testing is known as a paternity test or chain of custody paternity test. This type of testing is carried out at an authorised laboratory. This type of test is recognised and accepted as evidence by a Court provided such laboratory is authorised and registered with the National Association of Testing Authorities Australia (NATA).

If you purely want to know whether the child is yours, the peace of mind test may suffice. However, it is often recommended that parties seek the chain of custody test as the outcome of such test may lead to custody disputes and enliven child support obligations. This may necessitate court proceedings and therefore the chain of custody test result will be required.

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