Can the Court make an order for DNA testing?

With science now having the ability to easily test for parentage through DNA/genetic testing, does Family Law use that if there is a dispute about who is the parent of a child?

Under s.69W(1) of the Family Law Act, the Court can make an order for parentage testing if proceedings are already on foot, such as a matter of child maintenance or an application to spend time with the child.

The Court does not make an order for parentage testing lightly. Under s.69 of the Family Law Act there are various presumptions of parentage to avoid the parentage needing to be proven. These presumptions are:

• If a child is born to a woman who is married, the child is presumed to be the child of the woman and her husband.
• If a child is born to a woman and at any time between 44 weeks and 20 weeks before the birth of that child the woman cohabitated with a man, then that man is presumed to be the father.
• If a person’s name is listed as a parent on the child’s birth certificate, then that person is presumed to be the parent of the child.
• If a Court has made a finding that a person is the parent of the child, then that person is presumed to be the parent of the child.
• If a person has executed an instrument (such as a statutory declaration) under the law of the Commonwealth, a state or territory or a prescribed overseas jurisdiction acknowledging that he is the father of the child, then he is presumed to be the father of the child.

If a person is presumed to be a parent as a result of any of the above, they would need to put forward evidence to the Court to rebut the presumptions and to demonstrate that there is a dispute as to the parentage of the child.

If the Court is satisfied that there is a genuine dispute about the parentage of a child, then the Court can make an order for parentage testing. The Court will not make an order for parentage testing merely because it is requested to do so (Ames & Ames [2009] FamCA 825).

In practice though, these days the court defers to the science and if there is a genuine question over parentage is generally pretty keen to order DNA testing to put the issue to rest. Under the Family Law Act, a parentage test cannot be conducted on a child without the consent of the parent who is responsible for the child’s care, welfare and development. This means that the Court can order that a child be tested, but the primary parent can refuse. The parent would not be penalised for their refusal to cooperate, but the Court can draw inferences from their refusal. Parentage testing can also become an issue when a parent seeks an assessment from the child support agency. If a parent seeks a child support assessment from a person who has doubts that they are the biological parent, they can make an application under section 107 of the Child Support (Assessment Act) that a declaration be made that they should not be assessed as liable to pay child support.

If you think there is an issue of parentage in your family law situation you should urgently seek advice from our Family Law team — phone 03 5445 1000.