Paternity testing and family law often cross paths. Testing may be required to settle a child support issue, a birth certificate issue or to confirm the paternity of a child in parenting proceedings before the court.
The Family Law Act sets out that there is a presumption of who the parents of the child are in the circumstances where there has been a marriage, cohabitation, a signed registered birth certificate, a signed acknowledgment of paternity and artificial conception.
The presumption of paternity can be rebutted. In order for the court to make an order for paternity testing there needs to be more sufficient reasons other than just the fact that the father wants to confirm that he is the biological parent. Evidence will need to be submitted to the court setting out why the father or mother has doubt.
Paternity DNA testing, birth certificate & child support:
There are some instances when the registrar of the child support agency will refuse to make an assessment for child support. One of these is when there is a dispute about the paternity of the child in question. In this instance, the parties could all attend Paternity DNA testing that meets the required Australian standards (not the “peace of mind” test). If one of the parties refuses to attend Paternity DNA testing then you can make an application to the Court for a declaration of the paternity of the child.
In order for a declaration to be made it is likely that the court will order the parties to attend the paternity DNA testing. If the party continues to refuse to attend the DNA testing, then submissions can be made to the court in relation to what inferences can be drawn from that party’s behaviour of refusing to attend the DNA test.
Paying back child support:
If a party is found to not be the parent of a child and has paid child support for that child, they can make an application for the child support to be recovered. The court would consider the circumstances and it is not automatic that the child support paid is recoverable. The court will consider a range of factors. Contact us and talk to an experienced family law solicitor at our Newcastle office to find out more about when the court will order that child support should be paid back.
Gillard Family Lawyers can provide assistance in making court application, representing you in making legal arguments whether child support should be recoverable. Legal Aid is available in some cases of paternity disputes.