Following the breakdown of a relationship, any parent who retains the care of a child under the age of 18 years is entitled to receive financial support from the child’s other biological parent to assist with the day to day cost of living. These payments are assessed and child support assessments can add up to many tens of thousands of dollars and so in circumstances where a father believes he may not actually be the biological parent of a child, there is an understandable motivation to establish in truth, who the child’s father really is. Paternity is also important for considerations such as medical histories of familial genetic disorders such as diabetes, cancer etc and any psychological welfare of the child which might be linked to questions over self identity.
Under our current legal system, a male person will be legally recognised as the parent of a child if he signed the application for issue of the child’s birth certificate, legally adopted the child at any subsequent stage or the child was conceived at a time when the man was in either a marital or de facto marital relationship with the mother.
In the adoption scenario, the biological father becomes irrelevant as the adopted father is then legally recognised as if he was the biological father. In all other scenarios, the legal recognition of the male person as the biological father can be extinguished by application to a Family Court Judge. These applications are typically called Applications for Non-Paternity Orders. In the old days, these applications involved fairly colourful evidence about elicit affairs, secret liaisons, phone tapping, private investigators, photographs and the like. Thankfully, these days with the development of scientific DNA testing techniques, all of the stress, trauma and cost of these styles of applications can now be avoided.
Put simply, the DNA testing procedure takes a sample of genetic material (usually a swab taken from the inside of the mouth) from the mother, the child and the suspected father. The procedure relies upon the scientific discovery that every child inherits precisely one half of their DNA make up from their mother and the other half from their biological father. As the biological mother and child are obviously known, a DNA test simply therefore looks at that portion of the child’s DNA which is not referable to the mother and compares it with the DNA of the alleged father. If the DNA matches then the alleged father is concluded to be the biological father with 99.99% certainty. If not, then the test concludes with 100% certainty that the alleged father could not have parented the child.
To gain an Order for paternity testing, an Applicant (be it by the mother or the father) merely needs to provide the Court with some plausible evidence that there may have been a different father responsible for conceiving the child. A sworn Affidavit from the mother or the father about an alternate male partner at the time of the child’s conception will usually be sufficient. With this evidence, the Court will then typically make Orders obligating the mother, the child and the suspected father to undergo the DNA test. Because the Family Court does not have the power to sanction an assault, neither the mother or the father can be forced to deliver up a sample of DNA however a refusal by either parent gives the Court special powers to draw an inference of guilt by avoidance and make an Order that the suspected father is the biological father, even though the test was never performed.
If all of the persons participate in the DNA test, the cost of the test is currently around $800.00 – $900.00 and results take approximately 10 working days. Special procedures in the testing labs insure that false samples cannot be provided and both the Court and the parties have the liberty to make Orders compelling one or either of the parents to pay for the test or for the cost for instance to be shared equally initially with the suspected father then either forced to reimburse the mother for her half of the cost if the test is positive and for the mother to reimburse the father if the test is negative.
Once the test results are known and delivered back to the Court, the Court can then make the Order of paternity or non-paternity based on the test conclusions. If non-paternity is concluded, then the Child Support Act states that the father is immediately entitled to recovery of all money paid to the mother on account of child support from the point of the very first dollar paid under any assessment which is issued. The Court however, has a discretion as to how these payments are to be made and may choose between the options of either a lump sum, a periodic amount or possibly even an off-set of these amounts against child support due against other biological children for which paternity between the father and the mother is certain.
So far cases which have gone before the Courts however, have confirmed that any voluntary payments (ie. an amount outside or beyond the amount which has been assessed as payable) being made from the non-biological father to the mother for the support of the child cannot be ordered to be reimbursed.
Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.