The uses of parentage testing

Family law and child support proceedings

35.30 A party to family law proceedings may seek to rely on parentage test results where the biological parentage of a child is in issue—such as in proceedings relating to child support, child maintenance or parental responsibility.[21]

35.31 The Family Law Act 1975 (Cth) (FLA)regulates proceedings for child maintenance, however a court cannot make a maintenance order where an application could properly be made under the CSAA for administrative assessment of child support.[22] The FLAprovides that a child’s parents are primarily responsible for his or her maintenance.[23] The Family Court has held that the natural meaning of the word ‘parent’ in the context of child maintenance orders is ‘the biological mother or father of the child and not a person who stands in loco parentis’,[24] although the definition is extended by statute.[25] The court may also make a child maintenance order against a step parent where it is proper for him or her to have a duty to maintain the step child.[26]

35.32 To determine a child’s parentage as a matter of law, rather than science, the FLAcontains a number of presumptions of parentage. These presumptions arise from marriage; cohabitation; entry as a parent in a register of births or parentage information; a court finding of parentage; and execution of an instrument acknowledging paternity.[27]

35.33 Parentage testing may be used to rebut a presumption arising under the Act, or to establish evidence in circumstances where no presumption arises. The court has a discretion whether to order a parentage testing procedure.[28] The court generally will not order parentage testing on the basis of a mere suspicion of misattributed parentage; the applicant must have an honest, bona fide and reasonable belief that there is a doubt as to the child’s parentage before a parentage order will be made.[29]

35.34 The CSAA provides a framework for administrative assessment of child support in respect of a child whose parents separated on or after 1 October 1989, or who was born after that date, or who was born before that date but has younger siblings born after that date.[30] The CSAA provides that a carer may lodge an application for assessment of child support against a child’s parent.[31] Child support is payable by a biological or adoptive parent of a child, or a person deemed to be a parent as a result of an artificial conception procedure;[32] it is not payable by a non-adoptive step parent or a foster parent. Where a parent or carer seeks financial support from a step parent, he or she may apply for a child maintenance order under the FLA.[33]

35.35 If the Child Support Registrar is satisfied that a person is a parent, and makes an administrative assessment against him or her, the person may apply for a court declaration that the person is not liable on the basis that he or she is not the child’s parent.[34] The FLA provisions regarding establishing parentage apply to these proceedings. If the court makes a declaration that a person is not a liable parent, the person may apply for recovery of child support moneys paid for the child up to that date.[35]

Paternity fraud proceedings

35.36 A man might seek DNA parentage testing in order to obtain evidence of non-paternity for the purposes of civil proceedings instituted against the child’s mother for what has been termed ‘paternity fraud’. Several such actions have been instituted in Australia in recent times.

35.37 In one case, a Victorian man brought civil proceedings in fraud against his ex-wife after discovering that two of the children born during their marriage were not his biological children. The man had paid child support for all three children for several years after the marriage ended. After discovering that he was not their biological father, the man brought proceedings against his ex-wife, alleging fraud and seeking damages for the emotional stress and financial loss he had suffered. In November 2002, the Victorian County Court awarded the man $70,000 for general damages and economic loss.[36]

Succession to estates

35.38 A person may seek to rely on parentage testing as evidence that he or she has a biological connection with a deceased person in order to claim a share in the estate. This may occur where:

    • the deceased’s will provides for general categories of relatives, such as ‘children’ or ‘grandchildren’—and parentage testing may provide evidence that the person falls within such a category;

    • the deceased’s will does not make provision for the person at all and parentage testing may provide evidence that that person falls within a category of relatives eligible for family provision pursuant to legislation; or

    • the deceased has died intestate (ie without having made a will) and parentage testing may provide evidence that the person falls within a category of persons eligible to inherit the estate pursuant to the laws of intestacy.

35.39 Australian courts have heard a number of applications for access to stored tissue and blood samples of deceased persons for parentage testing in respect of succession.[37] Under the FLA, a parentage testing order may be made only in relation to procedures and testing of bodily samples taken from living persons, not human remains.[38]

Immigration applications

35.40 The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) uses DNA parentage test results as evidence of family relationships for the purposes of assessing immigration applications. DIMIA’s Procedures Advice Manual outlines the Department’s policy regarding the use of such testing.[39]

Identification of human remains

35.41 Parentage and kinship testing is used in identifying deceased persons and human remains where, due to the cause of death or delay in locating the body, the deceased cannot be identified by traditional means. This form of testing is increasingly used in identifying the victims of mass disasters and terrorist attacks.[40]

Incidental parentage testing

35.42 Certain types of genetic testing for medical or research purposes may also identify parentage as an incidental effect of the testing. For example, The New York Times reported a case in which a man’s genetic test results disclosed that he was not a carrier of cystic fibrosis, the disease with which his youngest child had been born. As both parents must be carriers in order for the condition to be passed on to their child, the man’s doctor recommended he have a paternity test. The results disclosed that he was not the father of that child.[41]

Personal interest

35.43 A person may wish to undergo parentage testing for personal reasons, such as his or her own peace of mind or for family reunion. For example, if a woman had more than one sexual partner around the time her child was conceived, she may seek parentage testing in order to determine her child’s paternity for her own peace of mind. Alternatively, a man may seek parentage testing to confirm or deny his suspicions of misattributed paternity.

[21] ‘Parental responsibility’ in relation to a child means all the duties, powers, responsibilities and authority that, by law, parents have in relation to children: Family Law Act 1975 (Cth) s 61B.

[22] Ibid s 66E.

[23] Ibid s 66C(1).

[24]In the Marriage of Tobin (1999) 24 Fam LR 635, 645.

[25]Family Law Act 1975 (Cth) s 60D(1) and s 60H in relation to children born as a result of an artificial conception procedure.

[26] Ibid ss 66M(2), 60D(1). In making such an order, the court must have regard to the matters specified in s 66M(3).

[27] Ibid ss 69P–69T.

[28] Ibid s 69W(1).

[29] See In the Marriage of F and R (1992) 15 Fam LR 533. See also Duroux and Martin (1993) 17 Fam LR 130, 135; OP v HM [2002] FamCA 454 [28].

[30]Child Support (Assessment) Act 1989 (Cth) ss 18–21. See also H Finlay, R Bailey-Harris and M Otlowski, Family Law in Australia (5th ed, 1997) Butterworths, Sydney [5.131].

[31] The CSAA applies at the federal level and in each state and territory jurisdiction except Western Australia, which has adopted the administrative scheme of assessment in the Child Support (Adoption of Laws) Act 1990 (WA).

[32]Child Support (Assessment) Act 1989 (Cth) ss 5, 29(2). See also In the Marriage of Tobin (1999) 24 Fam LR 635, 648.

[33]Family Law Act 1975 (Cth) ss 66E, 66M.

[34]Child Support (Assessment) Act 1989 (Cth) s 107(4)(c). Alternatively, if an application is refused, and an objection to the Registrar has failed, a carer applicant may apply for a declaration that he or she is entitled to administrative assessment on the basis that the putative parent is in fact the child’s parent: s 106.

[35] Ibid s 143.

[36] See G Bearup, ‘The Doubt About Dad’, The Good Weekend (The Sydney Morning Herald), 3 November 2001, 16; I Munro, ‘Ex-Wife Pays the Price for Paternity Lie’, Sydney Morning Herald, 23 November 2002, 13; I Munro, ‘Man Sues Former Wife Over Children’, The Age (Melbourne), 15 November 2002. Another man has reportedly brought proceedings in the Family Court against his ex-wife to recover all of the money he spent on contact visits with his daughter, after discovering that the girl was not his biological child. The man has reportedly sought a refund of $18,247, representing the amount he spent on access visits with the child—including visits to Luna Park, the zoo and McDonalds, and the cost of various toys, a car seat, blankets and doonas for the child. The man also sought a refund of all child support payments, and the legal fees he had incurred in custody proceedings over the child: N Protyniak, ‘“Father” Wants his $18,247 back’, Daily Telegraph, 1 November 2002, 2.

[37] For example, Roche v Douglas [2000] 22 WAR 331; Pecar v National Australia Trustees Ltd (Unreported, Supreme Court of NSW, Bryson J, 27 November 1996); AW v CW (2002) 191 ALR 392.

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

[39] Department of Immigration and Multicultural and Indigenous Affairs, Procedures Advice Manual (PAM3) (1994–2002), DIMIA, Canberra. See Ch 37 for more detail.

[40] See Ch 42 for more detail.

[41] T Lewin, ‘In Genetic Testing for Paternity, Law Often Lags Behind Science’, The New York Times, 11 March 2001. See Pt F for more detail.