DNA Testing Orders – What you need to know.
Most people have difficulty with obtaining DNA tests (Paternity tests) when the other party won’t agree to participate in the DNA testing procedure. In some cases the failure to obtain a DNA test can result in someone paying Child Support when they are not the biological father of the child. We can organise DNA tests where both parties are agreeable. In cases where the other party does not agree to a DNA test then we can seek Orders on your behalf to compel the other party to attend for a DNA test.
If you do not know the other party’s address we have the means (in many cases) to contact the other party via various agencies.
An application to Court for a DNA test is usually a painless experience that can occur within a short period of time.
We can seek or obtain DNA Testing in the following situations:
- To obtain Child Support from a parent
- To refute Child Support being sought against a person
- To prove paternity in Family Court children’s matters
- For peace of mind purposes only (DNA test without legal standing)
- DNA test where the whereabouts of the other party are unknown
If you are not sure whether you can obtain a DNA test then please contact our office for a free 10 minute consultation to help put your concerns and questions to rest.
DNA Testing and fatherhood
In Australia, approximately 25% of men who have undertaken a DNA test find out they are not the biological father of a child1. Regardless of circumstances, DNA testing can provide peace of mind for both the father and the child who both have the right to know if they are biologically related. Where there is doubt or uncertainty as to who the biological father of a child is, the first place to start is the Family Law Act 1975. According to this act, the law assumes that a child is deemed to be of a woman and a man if:
- The child is born to a woman while she is married or while she is cohabitating with a man, or within 44 weeks after separation; or
- A person has been named as a parent on the child’s birth certificate; or
- A legal document has been signed to acknowledge that they are the father of a child.
These presumptions can be overturned through parentage testing procedures, more commonly known as DNA testing. There are two types of parentage testing procedures, these are:
- Peace of mind testing – this type of testing is more commonly known as non-NATA testing or self-sampling and does not meet the legal requirements of a court ordered test. This is because samples are taken by the individual as opposed to an authorized collector such as a pathologist. Once a sample is collected they are sent to an authorized collector for analysis. This test can cost anywhere from $150 to $200.
- DNA typing – also known as NATA accredited testing, this is the more accurate type of parentage testing, boasting an accuracy of 99.999 percent. A pathologist laboratory collects samples from the man and the child, where both are required to have formal identification prior to undertaking the procedure. This test can cost upwards of $825.
In Australia, a mother’s consent is required for the DNA typing procedure. A peace of mind test can be taken without the mother’s consent with samples being collected by the father and sent to a laboratory for results.
Where parentage is in dispute and one parent refuses to participate in a paternity testing procedure, the court may make an order requiring a person to participate in the DNA testing process. This order requires a parent to present the child for the collection of a sample and also the man to present himself for the collection of his sample.
Should either parent refuse to comply with an order of the court requiring a mandatory paternity test, then the court has powers to make an adverse finding against the parent that is avoiding the test. An adverse finding by a court may declare that a man is, or alternatively is not the biological father of a child, depending on whether the mother or the man is avoiding the test, ie. If a man is avoiding a DNA test, then he may be declared the biological father irrespective of whether that man is, in fact, the biological father of that child. Before making an adverse finding, the court will take into consideration; (1) the state of mind of the person refusing to participate in testing and his or her motives for refusal; and (2) paternity itself. That is, given that a test is capable of finalizing the issue of paternity beyond a reasonable doubt, refusal to comply invites the inference to be drawn that the refusing party is likely to be the parent of the child.
Once paternity has been established whether through formal DNA testing procedures or if man agrees that he is the father of a child, then he has all of the rights and responsibilities of fatherhood. Where a person is identified to be the father of a child, then that person is liable to pay child support for that child and will share responsibility for that child unless there is a court order to the contrary.
More than anything, parentage testing provides peace of mind for both the father and the child who both have the right to know if they are biologically related. Whether a father wishes to pursue parenting arrangements for a child who is biologically theirs is a matter for the individual. It is crucial that you obtain independent legal advice regarding your rights and responsibilities as a parent prior to pursuing any formal arrangements for parenting of a child. Over our years of operation, Queensland Law Practice has helped hundreds of clients resolve a variety of parentage disputes by assisting court processes and DNA testing. If you have any concerns about your current circumstances or wish to explore your legal options, call us on 3172 3777 for a free 10min consult. For only 10 minutes of your time, it may just save either parent and the child the heartache of a lifelong false belief.