Ordinarily the paternity of a child is acknowledged by both parties. The court will in these circumstances presume paternity [Family Law Act 1975 (Cth) s 69R]. A man is assumed to be a child's father if the man:
- was married to and living with the child's mother when the child was born [s 69P]
- has signed a document acknowledging he is the child's father (and has not rescinded it) [s 69Q]
- cohabited with the child's mother in the ten months before the child was born [s 69R]
- is acknowledged on the child's birth certificate as the father [s 69T]
Declaration of paternity
Disputes sometimes arise where there is a request for child support or contact. If paternity is at issue in a matter before the Family Court, either parent may ask the court for a declaration of paternity. If satisfied that the relationship exists the court will make an order of paternity. A man wanting to deny a presumption of parentage must prove on the balance of probability that he is not the child's biological father.
DNA paternity testing
Whether contesting or asserting paternity, DNA (Deoxyribonucleic Acid) tests are available which will establish paternity to the satisfaction of the court. DNA is made up of identifiable substances unique to each person, but which include some inherited from parents. DNA testing is accepted as the most definite proof of the physical relationship between humans. It is often referred to as a 'genetic fingerprint' and shows the links between individual body fluids in separate blood samples. The technique used to detect these links is known as DNA profiling. This technique is more effective than blood tests and blood typing because DNA can determine the identity of the parent to within 99.5% as opposed to the process of elimination used in blood typing.
When will the court order DNA testing?
The court does not order DNA testing alone. This can only be done as an ancillary procedure to a parenting application. Thus, orders for DNA testing cannot be made simply to satisfy the curiosity of a parent. They will only be ordered where they are needed in order to determine whether any parenting application is in the best interests of the child concerned.
Tests are done privately for a fee of around $800. Family Court orders for paternity tests are paid by the person who wants the results as evidence in their case or if on legal aid, the Legal Services Commission may pay. The unsuccessful party will normally be ordered to pay costs. If therefore there is no real doubt about paternity, applicants should be warned against baseless or vexatious applications, as they will be likely to pay the costs.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.