Parentage testing and family law – What you need to know

By Mary Young – Principal Lawyer

Where a child’s parentage is in dispute, parentage testing, commonly referred to as DNA testing or paternity testing, can play a key role in resolving issues about legal responsibilities of parents.

This article explores the legal framework governing parentage testing under the Family Law Act 1975 (FLA), including when parentage testing may be ordered and how the results are considered by the Federal Circuit and Family Court of Australia (Court).

Presumptions in relation to parentage

The FLA sets out several legal presumptions about who is considered a parent of a child, which may reduce the need for formal parentage testing – though parentage testing can still be ordered by the Court where parentage is in doubt.

Presumption based on marriage

A man is presumed to be the father of a child if the child is born:

• While he is married to the child’s mother; or

• Within 44 weeks of the end of the marriage (due to death or annulment); or

• Within 44 weeks of a brief resumption of cohabitation (3 months) after separation, even if the couple later divorced.

Presumption based on cohabitation

A person is presumed to be a parent of a child if the child is born to a woman who, at any time during the period starting no earlier than 44 weeks and ending no later than 20 weeks before the child’s birth, has lived with a man to whom she is not married.

Presumption based on Birth Certificate

A person listed as a parent on a child’s birth certificate is presumed to be the child’s parent. This applies to registrations made under Australian law or the law of a recognised overseas jurisdiction.

Presumption based on a Court finding

A person is presumed to be a child’s parent if a Court has made a formal finding to that effect. To come within the scope of the FLA, the finding must have been made by an Australian Court or a Court in a recognised overseas jurisdiction, and it must not have been later varied, overturned, or set aside.

It is important to note that if a finding is made during the person’s lifetime, this presumption cannot be rebutted. However, if the finding is made after their death, it can be rebutted by evidence on the balance of probabilities.

Presumption based on Acknowledgement

A person is presumed to be a parent of a child if they have formally acknowledged parentage in a valid legal instrument such as a statutory declaration or affidavit under Australian law or the law of a reciprocating jurisdiction, and the instrument has not been set aside by the Court.

Presumption in cases of artificial conception

Where a child is conceived through artificial means:

• If the mother was married or in a de facto relationship at the time and both she and her partner consented, her partner is presumed to be a parent, regardless of biological connection.
  
  
• The donor of the sperm or embryo is not considered a parent if their role was limited to only providing genetic material.
  
  
• Married and de factor couples are presumed to have consented to the procedure unless proven otherwise.
  
  
• A child conceived through artificial means is presumed to be the child of a particular woman or man if a Commonwealth, state, or territory law recognises them as the child’s parent – regardless of whether the woman was married at the time.

Note: Artificial conception includes procedures like artificial insemination and embryo implantation. For legal purposes, the term “marriage” also includes void marriages.

In McAuley & Salberg [2020] FCCA 1538, Ms McAuley (the applicant) was in a committed same-sex de facto relationship with Ms Salberg (first respondent) at the time of artificial conception. Mr Mason (second respondent), the sperm donor and biological father, was listed as a parent on the child’s birth certificate alongside the applicant. Ms McAuley sought a declaration that Mr Mason was a parent of the child. Mr Mason supported the application.

The Court considered s 69R of the FLA, which presumes that a person named on a birth certificate is a parent. However, under s 60H, if a child is conceived via artificial conception and the birth mother was in a de facto relationship at the time, both partners in that relationship are considered the child’s legal parents, regardless of the birth certificate.

The Court found that:

• there was artificial conception and that Ms McAuley and Ms Salberg were in a de facto relationship at the relevant time.

• Ms McAuley and Ms Salberg were the legal parents of the child under the FLA.

Rebutting presumption relating to parentage

Presumptions of parentage under the FLA can be rebutted by evidence on the balance of probabilities. However, it is important to keep in mind this can vary in certain situations.

For example, where a Court finding is made during a person’s lifetime, it is conclusive and cannot be rebutted. If the finding is made after the person’s death, it may be rebutted with evidence. In cases involving artificial conception, a person is presumed to have consented to the procedure unless it can be proven, on the balance of probabilities, that they did not consent.

Court ordered parentage testing

The Court has the power to order parentage testing either at the request of a party or on its own initiative. However, this can only be done when the parentage of a child is genuinely in dispute in proceedings under the FLA. Essentially, there must be some evidence raising doubt about the child’s parentage. For example, the timing of conception or the appearance of the child. The Court does not have the power to make a stand-alone paternity testing Order simply because a parent (or potential parent) has doubts about the paternity of a child.

Who can be ordered to undertake a parentage test?

Section 69W(3) of the FLA states:

“A parentage testing order may be made in relation to:

If the Court makes a parentage testing Order, it may also make additional Orders under section 69X of the FLA to support and facilitate the testing process. These may include Orders requiring a person to undergo a medical procedure, such as a blood test, or to provide a bodily sample, such as a saliva swab, to ensure the testing is effective and reliable.

What happens if a person refuses to comply with a parentage testing Order?

If a parentage testing Order or an Order under section 69X of the FLA requires a medical procedure or other act to be carried out in relation to a child who is aged under 18 years, consent must be obtained from a parent of the child, guardian or a person who, under a parenting Order, has decision making responsibility for the child’s long term or day to day care, welfare and development.

• There are no penalties if a person who is 18 years of age or over fails to comply with a parentage testing Order or Orders relating to the testing procedure. However: Section 69Y of the FLA enables the Court to draw any inferences that “appear just in the circumstances” if a parent or guardian refuses to facilitate testing for a child, or if an individual over the age of 18 fails to comply with a parentage testing Order.

Section 69Z of the FLA allows the Court to draw inferences where a parent, guardian, or person responsible for a child’s long-term care, welfare, and development refuses to give consent to enable parenting testing to occur.

Can the Court determine parentage without parentage testing?

The Court has the power to make a declaration of parentage even in the absence of formal parentage testing pursuant to section 69VA of the FLA. In Tryon & Clutterbuck (No 2) (2009) FLC ¶93-412; [2009] FamCAFC 176, the Court heard an appeal by a husband and wife (Mr and Ms Tryon) against a declaration under section 69VA of the FLA by a Federal Magistrate (as they were then known) that the respondent to the appeal, Mr Clutterbuck, was the father of two children.

Mr and Ms Tryon had 5 children, 2 of which were subject to family law proceedings. The proceedings began when Mr Clutterbuck, a close family friend, filed an application against Ms Tryon seeking Orders that 2 of her children being SJF Tryon (born March 2001) and E Tryon (born June 2003) live with Ms Tryon but spend time with him each alternated weekend and half school holidays.

Mr Clutterbuck claimed he was the father of SJF and E, based on a 10-year sexual relationship with Ms Tryon during which the children were born. He also claimed that Ms Tryon had told him he was the father of the 2 children. Ms Tryon denied this and sought the dismissal of Mr Tryon’s application, claiming that the 2 children were fathered by her husband, whom she had been married to since 1988.

In August 2007, the Federal Magistrate ordered parentage testing for Mr and Ms Tryon, Mr Clutterbuck, and the 2 children. However, Mr and Ms Tryon failed to comply with the Order including not facilitating the testing of the 2 children. They did not appeal against the Order. The Federal Magistrate then made a declaration under section 69VA of the FLA that Mr Clutterbuck was the children’s father.

The Federal Magistrate considered the absence of parentage testing along with other relevant evidence which in her view, supported a “clear and strong inference” that Mr and Ms Tryon failed to carry out the parentage testing because the results of that testing would show Mr Clutterbuck, not Mr Tryon, as the biological father of the children. This included Ms Tryon’s decision not to submit evidence or participate in cross-examination, leaving this to Mr Tryon. As a result, she did not address critical issues raised by Mr Clutterbuck, such as their sexual relationship and statements made to him during her pregnancy or times where Ms Tryon and the 2 children spent time with him (without Mr Tryon or the other children) including holidays and meals at his home. 

On appeal, Mr and Ms Tryon raised multiple concerns, including the claim that improper inferences were drawn from their refusal to undergo testing. However, the appeal was dismissed, and the Court upheld the inferences and the declaration that Mr Clutterbuck was the biological father of the children.

Parentage declarations

The consequences of failing to comply with a parentage testing Order may be mitigated if the refusal is found to be reasonable. However, the person who has not complied bears the burden of proving that they had a reasonable excuse.

For instance, in F and R (1992) FLC 92-300, Justice Butler ruled that valid religious or cultural reasons could be considered sufficient for refusing to undergo parentage testing.

Can paternity tests be done at home?

Individuals may choose to undertake a less formal ‘peace of mind’ DNA test, which in some cases can be done at home. However, while these tests can be informative, their results are not considered reliable evidence by the Court.

The FLA and the Family Law Regulations 1984 (Regulations) set out strict requirements regarding parentage testing including the procedures that must be followed, the form of the report as to the results and how that report is to be submitted as evidence in Court. The Regulations also require that parentage testing be conducted by laboratories accredited by the National Association of Testing Authorities (NATA). If you are seeking to rely on a parentage test in Court, testing must be carried out exclusively at a NATA-accredited facility.

Parentage testing matters are complex issues that require detailed specialist advice.  If you would like advice about these issues, please call us on 03 8672 5222 to arrange an appointment with one of our family lawyers.