Family Law: Help! I am unsure if the child is mine
Of late, we have had an increasing number of men seek our advice in relation to uncertainty about whether a child is biologically theirs. So what exactly can a person do if they are experiencing these doubts, and what are some of the flow on effects of legal parentage?
The starting point is to look to the legal presumptions. A legal presumption can be likened to a default position, unless proven otherwise. This means that the onus is on the person doubting his parentage to essentially bring evidence that proves on the balance of probabilities, that he is not the biological parent.
A person will be presumed to be the biological parent to a child including but not limited to circumstances where:
- The person is married to the mother of the child
- The person was living with the mother of the child any time from 44 week to 20 weeks before the child is born
- The person’s name is entered as a parent of a child in a register of births (on the birth certificate)
- There is a finding of a Court that the person is a parent of the child
- The person has executed an acknowledgement that he is the father of the child
So where to start?
The starting point is to discuss your concerns with the mother of the child. If there is an amicable relationship, and an agreement can be reached, you and the mother of the children can undergo parentage DNA testing, through an accredited provider. It is important that you use an accredited laboratory that complies with the legislative requirements. These legislative requirements bind both the person performing the tests, as well as the presumed parents. These legislative requirements are very lengthy, but in summation include:
- Testing laboratories must have National Association of Testing Authorities (NATA) accreditation
- All parties involved in the testing must give their consent and sign an affidavit
- Samples must be collected in a controlled environment by a medical professional
- Strict compliance with a “chain of custody” must be maintained for the samples
What if the presumed father is under the age of 18?
In the event that the presumed father is under the age of 18 years, then the parental or guardian consent of the minor is required prior to the testing being performed. A child may be forcibly tested where a parent or responsible person has consented on their behalf, but the child is refusing.
What if we cannot reach an agreement?
If no agreement can be reached, then it may be necessary to file an application in the Family Court of Western Australia seeking that an order be made compelling the parties to undergo parentage testing. It should be noted however, that the Court will not entertain applications where there is no real evidence that the person is not the father of the child. For example, in the case of Diggins it was stated:
“It is not proper use of the section to allow a fishing expedition by way of paternity tests…in situations where there is no real evidence to place the paternity of the child in issue”.
What if the person fails to comply with the order of the Court?
In some instances, where a person fails to comply with an order to undergo parentage testing, the Court may make an adverse finding against them. This occurred in the High Court case of G v H where it was stated that:
“… in the circumstances … the … inference to be drawn from G’s continuing contravention of the order that he submit to testing was that it was more probable than not that the outcome of the test would be unfavourable to him. And that must lead to the finding that, on the probabilities, he was the father of the child”.
What happens once you have the results?
It should be noted from the outset that parentage testing does not give clear yes or no results. Parentage testing is usually based on a percentage of likelihood that the person is the biological father.
The Court is able to make a parentage declaration upon receiving the results. This is conclusive evidence of parentage. But what flow on effect can parentage have?
A parentage declaration satisfies the requirements of the Child Support Agency to make an assessment in relation to the maintenance and support of the child. This means, if a person was denying parentage, they may now be liable to pay child support, or alternatively a person who has been found not to be the biological parent, may no longer be responsible for paying child support.
How can we help?
If you are someone who is concerned about your parentage of a child, please do not hesitate to get into contact with one of our experienced Family Lawyers who will be able to provide you with advice specific to your circumstances. Are you concerned about legal costs? You can rest assured knowing that we at Lynn & Brown Lawyers work on an agreed fixed fee pricing model, meaning you have up-front certainty with no nasty surprises.
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About the authors:
Zoe Rosman is a Perth lawyer and was admitted as a solicitor of the Supreme Court of Western Australia in 2018 and specialises in Family Law and Wills & Estate Planning matters. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.