Regulation of parentage testing

35.44 It has been reported that an estimated 3,000 paternity tests are carried out each year in Australia.[42] The Family Court has advised the Inquiry that in the 2000–2001 financial year, parentage testing orders were made in a total of 103 matters before the Court.[43] These figures suggest that a large number of paternity tests take place under the supervision of other courts, or (as is more likely) outside the court system altogether.

35.45 Parentage testing services may be accessed in Australia in a number of ways. A person wishing to undergo parentage testing may approach a laboratory or company offering these services directly, or may arrange testing through his or her medical practitioner or lawyer. A number of Australian and offshore laboratories advertise their services over the Internet and through the media.

35.46 Australia has a three-tiered system of DNA parentage testing. Testing may be conducted in accordance with the family law regulatory framework;[44] in accordance with relevant state and territory legislation;[45] or outside any regulatory framework. In addition, laboratories follow their own policies regarding certain aspects of parentage testing not covered by these regulatory frameworks. These aspects include the conduct of ‘motherless testing’,[46] guidelines about which parent may consent on behalf of a child, the provision of counselling, and the persons to whom parentage testing results should be sent.

35.47 The National Association of Testing Authorities, Australia (NATA) operates a national system of accreditation for laboratories conducting parentage testing. The system does not extend to other forms of DNA kinship testing, which are therefore unregulated. The NATA system of laboratory accreditation is outlined in Chapter 11. The purpose of the accreditation system is to ensure the technical proficiency of genetic testing. It is a NATA accreditation requirement that parentage test reports must comply with the requirements of the Family Law Regulations 1984 (Cth) (FL Regulations), which are discussed below.[47]

35.48 The scientific reliability of parentage testing is of vital importance, whether the testing is conducted by accredited or non-accredited laboratories. In one case, the Family Court ordered a man to undergo DNA parentage testing in relation to a child of whom he claimed to have no knowledge. The test results disclosed a 98.5% probability that he was the father of the child, and he therefore paid maintenance for the child. Years later, the man’s brother admitted having had a relationship with the child’s mother, and parentage testing showed a 99.5% probability that the brother was the child’s father.[48] The social, psychological and economic consequences of unreliable testing suggests the need to maintain the highest technical and scientific standards in conducting parentage testing.

Parentage testing under the family law framework

Family Law Act

35.49 Parentage testing conducted under the FLA is regulated by Part VII Division 12 of the Act and by Part IIA of the FL Regulations.[49] The FLA gives the court a power to order a ‘parentage testing procedure’ where a child’s parentage is in issue in proceedings under the FLA or the CSAA.[50] The court may make the order in relation to the child, the mother, or any other person who might assist in determining the child’s parentage.[51] If an adult contravenes an order, or withholds consent on behalf of the child, the court may draw such inferences as appear just in the circumstances.[52]

35.50 A report made in accordance with the provisions of the FL Regulations may be received in evidence in any proceedings under the FLA.[53] This is one means of encouraging laboratories to comply with the FL Regulations in conducting parentage tests. Once the court has decided the issue of parentage for the purpose of proceedings under the FLA, it may also issue a ‘declaration of parentage’, which is conclusive evidence of parentage for the purpose of all Commonwealth laws.[54]

Family Law Regulations

35.51 Part IIA of the FL Regulations applies to parentage testing procedures conducted pursuant to a court’s parentage testing order made under the FLA.[55] Part IIA may also be relevant to parentage testing that has not been ordered by a court under the family law provisions. This is because it is a NATA accreditation requirement that parentage test reports issued by NATA accredited laboratories comply with the FL Regulations. However, NATA also permits accredited laboratories to conduct parentage testing that does not comply with the FL Regulations—provided the laboratories do not hold themselves out as accredited for the purposes of that particular test.[56]

35.52 The FL Regulations address two main aspects of scientific reliability in parentage testing: the protection of the integrity of bodily samples and the technical accuracy of the testing process. The FL Regulations cover the collection of bodily samples; the storage of samples and their transport to the laboratory (that is, chain of custody); the timeframe for testing samples; and the format of the parentage testing report.[57]

35.53 The procedure for taking bodily samples is prescribed in some detail. A person providing a sample must complete a prescribed affidavit and declaration, and sign the label on the sealed container holding the sample.[58] The donor must also provide a recent photograph of him or herself (or make an arrangement to do so). The sampler must affix the photograph of the donor to the sampler’s prescribed statement, and sign over the photograph and statement in a way that, if the photo were later removed, the removal would be evident. There is no requirement, however, that the sample donor provide any personal identification to the sampler for the purpose of verifying that he or she is in fact the person who should be providing the sample.

35.54 The prescribed affidavit and declaration outline aspects of the donor’s recent medical history.[59] They do not refer to consent to the taking of the bodily sample or to the conduct of testing on the sample. Consent is inferred by the person’s completion of the forms and provision of the sample, as well as by the completion of any application form that may be provided by the laboratory.

Parentage testing under state and territory legislation

35.55 Each Australian State and Territory (except Western Australia) has enacted status of children legislation in similar terms.[60] The purpose of the legislation is to give nuptial and ex-nuptial children equal status for the purpose of state or territory law. In Western Australia, the Family Court Act 1997 (WA) contains similar provisions.

35.56 Each Act includes presumptions of parentage and provisions for establishing parenthood.[61] The legislation in New South Wales, Tasmania, and the Northern Territory closely follows the parentage provisions of the FLA. The provisions of the state and territory legislation have residual operation in relation to proceedings that fall outside the coverage of the FLA, such as in relation to succession.[62]

35.57 The status of children legislation generally permits a person to apply to the Supreme Court of the relevant jurisdiction for a declaration of parentage, or an order annulling a declaration of parentage, even if there are no other legal proceedings on foot.[63]

Unregulated parentage testing

35.58 As noted above, accredited laboratories may conduct parentage testing that does not comply with NATA accreditation requirements or the FL Regulations. Similarly, non-accredited laboratories do not have to comply with these requirements. As a result, both accredited and non-accredited laboratories may offer unregulated parentage testing. Practices and procedures regarding consent, collection of samples, transfer of samples to the laboratory, counselling, quality assurance and technical proficiency can vary depending on individual laboratory policy.

35.59 One of the main differences between regulated and unregulated parentage testing is in the collection of bodily samples. The FL Regulations provide a detailed process for ensuring the integrity of the samples. By contrast, a number of laboratories offer home-based collection of bodily samples (for example, buccal swabs or hair follicles) using mail order sampling kits. This enhances the prospect of non-consensual collection of bodily samples, and exacerbates the risks of sample contamination, error and fraud.

[42] D Smith, ‘Mothers Kept in the Dark on Paternity Tests’, The Sydney Morning Herald, 27 March 2000.

[43] Family Court of Australia, Correspondence, 22 January 2002.

[44]Family Law Act 1975 (Cth); Family Law Regulations 1984 (Cth).

[45] See the status of children legislation: Status of Children Act 1974 (Vic); Status of Children Act 1978 (Qld); Status of Children Act 1974 (Tas); Status of Children Act 1996 (NSW); Birth (Equality of Status) Act 1988 (ACT); Family Relationships Act 1975 (SA); Status of Children Act 1978 (NT).

[46] This involves testing the putative father and child’s bodily samples only. In the absence of the mother’s bodily sample, the analyst must test more loci on the DNA molecule to reach the level of statistical probability of parentage required by NATA accreditation requirements.

[47] National Association of Testing Authorities Australia, ISO/IEC 17025 Application Document: Supplementary Requirements for Accreditation in the Field of Forensic Science (2000), National Association of Testing Authorities, Australia Sec 3, Pt B Supplementary Requirements for Accreditation: Parentage Testing [5.10.2(a)].

[48] This case was reported in G Bearup, ‘The Doubt About Dad’, The Good Weekend (The Sydney Morning Herald), 3 November 2001, 16, 20.

[49] Western Australia, unlike other Australian States, has its own state family court: Family Court Act 1997 (WA). The courts with jurisdiction to hear matters arising under Pt VII of the FLA in relation to children are the Family Court of Australia, state Family Courts, the Federal Magistrates Court and, in some circumstances, courts of summary jurisdiction: Family Law Act 1975 (Cth) ss 69H, 69J.

[50] See Family Law Act 1975 (Cth) s 69W(1); Child Support (Assessment) Act 1989 (Cth) s 100(1). Where a child’s parentage is in issue in proceedings under state and territory status of children legislation, for example, in relation to an application for a declaration of parentage, a court may order a parentage testing procedure pursuant to the relevant legislation.

[51]Family Law Act 1975 (Cth) s 69W(3). The court may make the order on its own initiative or on the application of a party to the proceedings or a person separately representing the child: s 69W(2).

[52] Ibid ss 69Y, 69Z.

[53] Ibid s 69ZC(1). See Family Law Regulations 1984 (Cth) Pt IIA—Parentage Testing Procedures and Reports.

[54]Family Law Act 1975 (Cth) s 69VA.

[55]Family Law Regulations 1984 (Cth) r 21A.

[56] National Association of Testing Authorities Australia, Correspondence, 12 April 2002.

[57]Family Law Regulations 1984 (Cth) Pt IIA, Div 2, 3.

[58] In the case of a child or a person suffering a mental disability, the person responsible for his or her long term care, welfare and development must do this.

[59]Family Law Regulations 1984 (Cth) r 21F, Form 2. For example, whether the donor has suffered from leukaemia or has received a bone marrow transplant, a transfusion of blood or a blood product within a specified period before providing the bodily sample.

[60]Status of Children Act 1974 (Vic); Status of Children Act 1978 (Qld); Status of Children Act 1974 (Tas) Status of Children Act 1978 (NT); Status of Children Act 1996 (NSW); Birth (Equality of Status) Act 1988 (ACT); Family Relationships Act 1975 (SA).

[61] Except in South Australia, where parentage testing is regulated by the Family and Community Services Act 1972 (SA).

[62] See the discussion in H Finlay, R Bailey-Harris and M Otlowski, Family Law in Australia (5th ed, 1997) Butterworths, Sydney [7.5].

[63] For example, see Status of Children Act 1996 (NSW) ss 21(1), 22(1). In contrast, the FLA provides that the court may issue a declaration of parentage after the issue of a child’s parentage has been determined for the purpose of proceedings: Family Law Act 1975 (Cth) s 69VA.