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I don’t think I’m the father?

1 April 2019

Sometimes legal issues such as child support, notification on a birth certificate and spending time with a child can quickly arise while the alleged father is still questioning – if he is the father? If that’s you, here are some tips on paternity testing.

Who is the child’s father is not always something that is agreed upon.

DNA and evidence of parentage is important when a mother wants to register an application with the Child Support Agency (Department of Human Services (Child Support)) (“the CSA”). The CSA will refuse an application if a parent is not listed on the birth certificate (i.e. father) and therefore, parentage needs to be established.

A person is the child’s biological father if:

  • they are named as the father on the birth certificate or adoption certificate
  • they sign a statutory declaration (a legal document) saying they are the father
  • the child was born during the marriage
  • the child was born within 20 to 44 weeks of when the mother and father lived together
  • the court makes a declaration (finding) that a person is a child’s father and/or that a person  is liable to pay child support for a child.

DNA testing is generally accepted as the most accurate method of proving or disproving parentage (i.e. if a man is the father of a child).

Paternity testing involves a DNA sample being taken from the alleged father, mother and child to prove evidence that they are the alleged biological father of the child. The usual sample collected is a mouth swab, although other samples such as blood, can be used.

While it is possible to order DNA test kits online, for legal proceedings testing must comply with the strict regulations outlined in the Family Law Act.

DNA testing can come about typically in two ways. Firstly, by parties reaching agreement for testing to occur or secondly, an application to a Court. However, it is important to note that the CSA cannot accept a DNA paternity testing report as proof that someone is or is not the child’s father. It will only accept a ‘declaration’ from the court. The DNA testing result can be presented in court and the court can make a ‘declaration’ stating a person is or is not a child’s father.

To satisfy the court that an Order for DNA testing should occur, the applicant needs to establish to the court under the prescribed criteria that there is a ‘presumption of parentage’. If this can be satisfied, then the Judge will order that a DNA test will be conducted.

Should the man refuse or fail to undertake the DNA testing ordered, then refusal to participate may still lead to the court making a ‘declaration’ stating that he is a child’s father and/or that he should pay child support for a child. Refusing to participate in a court ordered DNA test is held to be a deemed failure of the test that results in a finding that the man is the father.

It is important that you seek legal advice about DNA testing whether you are requesting a man to undertake it or whether you have been asked to provide the sample. It is important that you understand your rights and what is involved in paternity testing. If you delay in making an application or responding to a request, this could have serious consequences for you. Contact our Brisbane office today on (07) 3221 4300 or fill in our online form here to arrange an appointment to speak with an experienced family lawyer.

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2019-04-23T22:46:56+10:00

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