Where parentage of a child is an issue, an applicant may apply to the Family Court for a “parentage testing order”. Family Court will then be able to make a declaration as to the parentage of a child born where there is some doubt in regard to whom their parent is.
The court can order the child, the mother and any other person the court believes may assist in determining the parentage of a child, to undergo a parentage testing procedure, which invariably will be “DNA testing” due to its reliability and accuracy.
Parentage testing must comply with particular procedures set by the Family Law Regulations, therefore any results of testing performed outside of the ambit of family law requirements, may not be admissible to the court and consequently the results will have no legal validity when determining parentage.
If a party or parent of the child refuses to comply with an order for testing, the court may draw inferences from their behavior as per section 69Y of the Family Law Act 1975. Therefore whilst a contravention of a parentage testing order will not penalise the person not wishing to participate, it can certainly affect the court’s decision making down the track as to the making of a parentage declaration.
For example, in the 2009 case of Tryon and Clutterbuck (no. 2), the applicant, Mr. Clutterbuck, challenged the paternity of two children born to a married couple, Mr. and Mrs. Tryon. The husband and wife had 5 children in total and the husband was named as the father on all of the children’s birth certificates. Mr. Clutterbuck challenged the legal presumption that children born to a woman of a marriage are children of the woman’s husband, found in section 69P of the Family Law Act. Accordingly, Mr. Tryon contended that he was the father of the two youngest children of Mrs. Tryon, due to a long standing sexual relationship with the wife and because he was told by her on both occasions when the woman became pregnant, that he was the father of the two youngest children.
The husband and wife failed to participate in DNA testing ordered by the court. They also failed to put forward sufficient evidence to rebut the claim by Mr. Clutterbuck. Secondly, due to the conduct of the husband and wife to avoid and refuse DNA testing (based on religious grounds), the court made an adverse inference toward them and declared that Mr. Tryon was the father of the two children.
It is also worth noting that should a party to a parentage testing order be found to be the father, they may also be liable for reasonable expenses associated with the mother’s pregnancy and birth of the child. The costs may be liable from up to 2 months before and for 3 months after the birth of the child.
This case highlights the various elements involved in parentage testing. If you have any questions or require advice in regard to parentage testing at Everingham Solomons we have the expertise and experience to assist you because Helping You is Our Business.
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