DNA testing can be completed with the consent of both parties or alternatively by Court Order. In situations where a person does not agree to participate in DNA testing, a person can apply to a court to compel another person to undertake DNA testing. DNA testing can be sought by either any person who claims to be the biological parent of a child or a person whom another has alleged is the parent of a child. DNA testing can be used to prove or disprove the paternity of a parent.
An application for DNA testing is usually sought where a purported father is seeking to spend time with a child and the other parent claims the male is, in fact, not the biological parent of the child. DNA testing can also be sought for the purposes of either seeking or refuting an application for child support.
A person will be presumed to be a parent of a child if the following apply:
- the parties were married and had not divorced at the time of the child’s birth;
- the parties are named as the parents on the child’s birth certificate;
- a party signs a statutory declaration that they are the biological parent;
- the parties lived together between 44 to 20 weeks prior to the birth of a child;
- a child is adopted;
- the child is conceived with the assistance of artificial means;
- the child is born through the use of a surrogate.
If one of the above situations is present it will be assumed by Child Support Agency (CSA) that the person is the biological parent of the child and the CSA commence claiming child support from a parent.
It is possible to overcome a presumption of paternity by obtaining a DNA test either by consent or by court order. If the DNA test results prove that a person is not the parent, that parent may still need to apply to court for an order ending the child support payments.
In order to obtain a court order compelling a person to undertake DNA testing a person will need to prove the following:
- There is evident to support a reasonable basis for doubting whether a person is the parent of a child (eg. the purported father was working away around the time of the date of conception, the biological mother was involved in a sexual relationship with another male.
- If the DNA test is sought for child support purposes additional information may be required.
We suggest you discuss the matter with your lawyer.
If the court makes an order for the parties to attend for DNA testing and the other party still does not take part in the DNA test, a court can make an adverse finding against the person who refuses the test.
For example where a purported father seeks a DNA test to prove that he is not the biological father for the purposes of ceasing child support payments, and the mother refuses to participate in testing, a court can infer that the mother has failed to participate because the purported father is not in fact the father and thus make orders that the purported father is not a parent of the child.
We can assist you to locate the other party if you do not know where they live, and in some circumstances we can have documents delivered to the other party without requiring an address.