Parentage issues may arise in family law matters concerning the parenting of children, or in deceased estate matters where biological children of the deceased stand to inherit a legacy.

Why is parentage important?

Proving parentage is important because only parents pay child support. The Child Support Agency (Department of Health) requires proof of parentage before it makes an assessment to order someone to pay child support.

How is parentage determined?

Most commonly the best evidence is obtained through DNA testing performed by a prescribed laboratory. You will need the consent of all parties to undertake a DNA testing or, if you do not have consent, you will need a court order for the relevant parties to undergo the testing. The test results will be accepted by the Family Court as conclusive evidence of parentage if the testing complied with the family law regulations.

Parties may undertake DNA testing by agreement. If the results prove that you are the father, then you can complete a statutory declaration that you are the father and this can be given to the Child Support Agency (for example) as proof of parentage. You should also be alert to the requirements of some agencies such as the Child Support Agency that only DNA testing that has been ordered by the Family Court and performed under strict conditions will be accepted by them as proof of parentage.

Parentage Presumption

The Family Court operates on a ‘presumption of paternity’ whereby the Court will accept or presume that a person is a parent of a child in particular circumstances, and without any other evidence. Those circumstances are as follows:

1.    where a man was married to the mother and the child was born:

  • a) during the marriage
  • b) within 44 weeks of the marriage ending by death or annulment
  • c) if the couple separated but then lived together again for less than three months and the child was born within 44 weeks

2.  where a man cohabited with the mother (but they were not married) at any time from 44 weeks to 20 weeks before the child was born

3.  where a man is on the Birth Certificate as the father or has signed a legal document (such as a statutory declaration) swearing that he is the father

4.  where a court has made a statement in the past that the man is the father. 

The presumption of paternity also applies in cases of adoption or artificial conception. The parentage presumptions are rebuttable. This means that a person can provide evidence to disprove a presumption of paternity – this is done by way of an order from the Family Court.

Parentage testing may be used to rebut a presumption arising under the Act, or to establish evidence in circumstances where no presumption arises. The Court has discretion as to whether to order a parentage testing procedure. The Court generally will not order parentage testing on the basis of a mere suspicion of misattributed parentage; the applicant must have an honest, bona fide and reasonable belief that there is a doubt as to the child’s parentage before a parentage order will be made.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other family law matters, please contact our office on 9854 6212, or email our Principal Lawyer Marc Testart at marctestart@testartfamilylawyers.com.au

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