Sometimes there is uncertainty or even disagreement in relation to the identity of a child’s biological father.
The law says that an individual is the biological father of a child if:
- they are named as the father on the child’s birth certificate or adoption certificate; or
- they sign a statutory declaration which says they are the father; or
- the child was born during the marriage; or
- the individual lived with the child’s mother during the period beginning 44 weeks and ending 20 weeks before the child was born; or
- the Court makes a declaration that an individual is the child’s father; or
- the individual is liable to pay child support for the child.
Sometimes there is other evidence which can prove that the individual is not the biological father of the child, even though the law says they are the father. In these circumstances, DNA testing is able to determine the biological father of the child.
DNA testing is the most accurate way to prove whether someone is or is not the biological father of a child.
If the other parent will not agree to obtain DNA testing in relation to the child you may be able to make an application to the Court seeking an order for parentage testing. You should make the appropriate application to the Court and ensure that you obtain a legally binding DNA test. There are various legal requirements for the testing process for it to be legally binding. There are a number of organisations that provide this service.
The Court can make orders requiring a person (including a child) to submit to a medical procedure or provide a bodily sample.
If a Court makes orders for parentage testing and a person fails to participate, the Court may still make a declaration that a person is the child’s father and/or that a person should pay child support for a child based on the evidence available to the Court.
DNA testing and child support
The Department of Human Services cannot simply accept DNA test results in relation to child support liabilities. If a legally binding DNA test is obtained a person must also obtain a declaration from the Court that they are not the biological father of the child. This declaration should then be provided to the Child Support Registrar as soon as possible.
Once the Department of Human Services is provided with the relevant declaration made by the Court, the application for an administrative assessment of child support will be taken to have never been accepted. There are also avenues to seek to recover child support already paid. This involves a further application to the Court and the Court will take into account matters such as:
- whether the payer or the payee suspected the child was not that of the payer;
- the relationship between the payer and the child;
- the financial circumstances of both parties;
- whether there was any delay in filing the application for the declaration.
If you suspect that you are not the father of a child that the law says is your biological child, you should seek legal advice without delay.