Paternity issues (properly referred to as “parentage issues”) arise when a person asserts or denies the parentage of a child. The person asserting or denying parentage does not necessarily have to be male, considering that parentage issues may arise in surrogacy and artificial insemination procedures in the context of same-sex couples. There are different considerations with respect to surrogacy arrangements and so, for the purpose of this article, we will focus on the more common issue of parentage – where a man asserts or denies paternity of a child.
Taylor & Scott Lawyers can advise you as to how the Family Law Act, and other relevant legislation, apply in your particular case in dealing with questions of paternity.
Mediation and Alternatives to Court
If you and your spouse or partner disagree as to the paternity of a child, it is important to consider the option of inviting the other party to attend mediation. You might contact Relationships Australia or a private accredited Family Dispute Resolution Practitioner to assist you in the process of initiating mediation. Perhaps, at mediation, you would hope to achieve the goal of having the other party submit to DNA or “parentage testing”. Presumably, the results of a parentage test, properly conducted with the correct procedures, will assist both of you to resolve the dispute without resort to litigation.
Note that the Family Law Regulations provide specific requirements for a parentage test. If you and your spouse or partner agree to undergo a parentage test, you should contact Taylor & Scott Lawyers to be clear on the strict requirements for the parentage test.
Litigation – Presumptions
In the unfortunate event that you and your spouse or partner are unable to resolve the parentage dispute, you should contact Taylor & Scott to discuss how the Family Law Act and other legislation which governs parentage testing applies in your case.
In the event that Court proceedings become necessary, the Court, as a starting point, applies certain rebuttable presumptions. For example:
- The parents registered on a child’s birth certificate are presumed to be the parents of that child;
- If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband;
- If a child is born to a woman within a particular time-frame after separation from her spouse, the child is presumed to be a child of the woman and her husband;
- If the court has previously made an order which expressly or impliedly provides that a person is a Father of a child, the child is presumed to be the child of that person;
- If a man has executed particular documents acknowledging that he is the father of a child, the man is presumed to be the Father of the child.
This list of presumptions is not intended to be exhaustive.
The applicability of a presumption is not the end of the matter. Basically, if a presumption is established, the other party is required to establish why the presumption should not apply in the context of their particular case. If no presumption applies, then neither party will bear an onus of proof, and the Court will determine the matter as best it may on the basis of the evidence presented to it. Taylor & Scott Lawyers can assist you in preparing and presenting your strongest case to the Court.
If, in proceedings before the Family Court it is found that parentage of a child is in issue, then the Court may make an Order for the parties and the child to undergo parentage testing. Parentage testing is often referred to by the public as “DNA testing”.
There are two critical things to note on this point, as follows:
- The Court is not obligated to make an order for parentage testing. The legislation provides that the Court “may” make an Order if parentage is in issue. Whether or not such an order is made will depend upon the facts of each case and the best interests of the child.
- Parentage must be “in issue in proceedings…” already before the Court. Unfortunately, this means that one cannot apply to the Court for a parentage testing order in isolation. Usually one would be required to seek parenting orders (orders to spend time with the child) or property orders (orders which seek to divide the matrimonial property of the parties upon their separation). The Court, in determining what, if any, parenting or property orders to make, would generally need to know whether either party is a “parent” of a child relevant to the proceedings. If there is a dispute about parentage, the Court would then be in a position to find that “parentage is in issue in proceedings”.
Upon the Court determining the matter of parentage, whether it was assisted by the results of parentage testing or otherwise, the Court may make a final declaration as to a child’s parentage.
If you require legal assistance in the area of parentage testing, you should contact your Taylor & Scott Family Lawyer for an initial consultation.
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