Admissibility of parentage test reports

Current law and practice

35.102 DP 66 noted that there is some uncertainty about the admissibility in proceedings under the FLA of a parentage test report that does not comply with the FL Regulations.

35.103 Section 69ZC(1) of the FLA provides that a report made in accordance with the regulations covered by s 69ZB(b) ‘may be received in evidence’ in any proceedings under the Act. Section 69ZB provides that the regulations may make provision about the carrying out of parentage testing procedures under parentage testing orders and about the preparation of reports as a result of carrying out such procedures. Regulation 21M(2) provides that the report must be in accordance with the form prescribed by the FL Regulations, and r 21M(5) provides that the report is taken to be of no effect if completed otherwise than in accordance with r 21M.

Issues and problems

35.104 A question raised during the Inquiry was whether a parentage testing report conducted by a non-accredited laboratory, or by an accredited laboratory that has not adhered to the FL Regulations, might be admissible in proceedings under the FLA.[105] There is little case law on this point.

35.105 In Re C (No 1), the Family Court considered whether the results of parentage testing conducted pursuant to a parentage testing order were admissible despite a failure to comply with regulations regarding the collection, storage and testing of the sample. The court held that the non-compliance rendered the report inadmissible. Fogarty J considered the regulations to be mandatory in their terms and stated that ‘neither the Act nor the regulations seem to provide any discretion or capacity to admit the report notwithstanding non-compliance’.[106]

35.106 In McK v O, the Family Court considered whether a DNA testing certificate was admissible where testing involved human remains in the absence of a parentage testing order. Mullane J held that the FL Regulations relate to parentage testing procedures carried out pursuant to parentage testing orders. As the testing was not conducted pursuant to a parentage testing order, s 69ZC(1) did not apply to the testing certificate, which was thus inadmissible in the circumstances.[107]

35.107 While the cases referred to above suggest a strict interpretation of the section, the permissive terms in which it is phrased could lead to uncertainty. For example, a party might argue that a non-complying report should be admissible subject to the general rules of evidence.[108]

Submissions and consultations

35.108 DP 66 proposed that the FLA should be amended to provide that parentage testing reports are admissible in proceedings under the Act only if made in accordance with the provisions of the FL Regulations.[109]

35.109 Several submissions supported the proposal.[110] By contrast, the Reliable Parents Inc strongly opposed the proposal. They referred to the Family Court’s reluctance to make parentage testing orders and stated that, unless the FLA were amended to provide that orders are made automatically upon application, the proposal could lead to hardship or unfairness for men seeking to rebut the presumption of fatherhood in relation to child support.

Typically, an applicant to the court for paternity testing uses a surreptitious test to demonstrate that he could not be the father. In turn, the court will then order court-supervised testing in order to verify the accuracy of the test submitted by the applicant. Were such surreptitious tests made inadmissible, then it is unlikely that the court would order any testing at all.[111]

Inquiry’s views

35.110 The admissibility of reports obtained through unregulated parentage testing is a largely transitional concern. In this chapter, the Inquiry recommends that the Commonwealth should enact legislation to provide that parentage testing may be conducted within Australia only by NATA accredited laboratories, in accordance with NATA accreditation requirements. Once this recommendation has been implemented, unregulated parentage testing would be available only from offshore laboratories.

35.111 In the interim, the Inquiry recommends that the Commonwealth should enact legislation to provide that parentage testing reports are not admissible in proceedings under the FLA unless the testing complies with the relevant provisions of the FL Regulations. In practice, this would help to ensure the reliability of parentage test results that are admitted in proceedings, and would deter members of the Australian community from resorting to non-accredited testing by limiting the use to which the test results may be put. Some uses might remain—for example, where a person seeks parentage testing for ‘peace of mind’ reasons only—but in most cases there will be little benefit in seeking non-accredited testing.

35.112 In addition, the States and Territories should consider enacting parallel legislation to ensure that parentage testing reports are not admissible in state or territory proceedings unless the testing complies with NATA accreditation requirements.

Recommendation 35–4 The Commonwealth should enact legislation to provide that parentage testing reports are not admissible in proceedings under the Family Law Act 1975 (Cth) (FLA) unless the testing complies with the relevant provisions of the FL Regulations. The States and Territories should consider enacting parallel legislation to ensure that parentage testing reports are not admissible in state or territory proceedings unless the testing complies with NATA accreditation requirements.

[105] This question would not arise if Recommendation 35–1 were adopted, but until such time the issue remains a real one.

[106]Re C (No 1) (1991) 15 Fam LR 350.

[107]McK v O (2001) FLC 93.

[108] For example, in October 2000 the Chief Justice of the Family Court, Alastair Nicholson, suggested in a TV interview that the Court has a discretion to admit the results of non-accredited parentage testing in certain circumstances subject to the rules of evidence: Lateline, DNA Testing and the Family Court: Transcript, ABC TV, <www.abc.net.au/lateline/s200192.htm>, 18 February 2003.

[109] Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposal 31–5.

[110] Genetic Technologies Corporation Pty Ltd, Submission G245, 19 December 2002; Department of Health Western Australia, Submission G271, 23 December 2002; Centre for Law and Genetics, Submission G255, 21 December 2002; Human Genetics Society of Australasia, Submission G267, 20 December 2002; Centre for Genetics Education, Submission G232, 18 December 2002.

[111] Reliable Parents Inc, Submission G204, 27 November 2002.