Looking at Parentage in Family Law

Questions of paternity sometimes arise when a mother seeks child support from a person whom the mother alleges to be the father of the child. It may be for example that a couple meet on holiday and become involved in intimate relations. Let’s call them Jack and Jillian.  If Jillian becomes pregnant around that same time and a child is born as a result of that pregnancy, where does that leave Jillian if she wants to seek child support from Jack? Jack may have doubts that the child is his child. What can he do if Jillian makes an application for an assessment of child support against him?

Declarations of Parentage

If Jillian makes an application for administrative assessment of child support for the child and the Registrar refuses to accept the application for the sole reason that the Registrar is not satisfied that Jack is a parent of the child, Jillian may seek a declaration under Section 106A Child Support Assessment Act that Jack should be assessed in respect of those costs because Jack is a parent of the child.

Jack, being a person against whom an application for administrative assessment of child support is made may also seek a declaration under Section 107 Child Support Assessment Act that he should not  be assessed in respect of the costs of the child because he is not a parent of the child.

Presumption of Parentage

Section 69Q of the Family Law Act 1975 (Cth) (“FLA”) provides that a child who is born to a woman who, at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, has cohabited with a man to whom she is not married, is presumed to be the child of that man.

Whilst there is no statutory definition of the term “cohabitation” for the purposes of section 69Q, the incidence of unprotected sexual relations between a man and a woman  does not constitute a “cohabitation” between the parties. That word almost certainly involves persons living together in a relationship akin to that of husband and wife. (See eg Maddock v Beckett (1961) Tas SR 46 at p 50; Re Fagan, Deceased (1980) 23 SASR 454 at p 464.)

Parentage Testing

Section 69W FLA provides that a parentage test cannot be carried out in relation to a person under eighteen (18) years of age without the consent of a parent or guardian of the child or of a person who is responsible for the child’s long-term or day-to-day care, welfare and development under a specific issues order (Refer section 69Z(2)FLA)

If Jack was to seek a declaration that he is not the parent of the child born to Jillian, Jack may seek interim orders for a parentage test of the child and/or Jillian. If Jillian refuses to provide consent for a parentage test to be carried out in relation to the child or to herself undergo any parentage test which may have been ordered by a Court, under section 69Z(3) FLA and section 69Y(1) FLA, respectively, the Court  may draw such inferences as appear just in the circumstances.

Section 69Y(1) FLA provides that  where a person over the age of 18 years contravenes an order that she undergo a parentage test, the Court may draw such inferences as appear just in the circumstances.

The Majority in the High Court in G v H (1994) FLC 92-504 said that the inferences which sec 66W5 [now sec 69Y(2)] allows are “’such inferences as appear just in the circumstances’. The inference drawn must be consistent with the other evidence.

Let’s suppose that Jillian advises that she will not participate in the final proceedings that jack has brought or obey interim orders to participate in DNA testing because she will not provide DNA samples for herself or the child.

Let’s further suppose that Jack’s evidence includes that he always used a condom when he had sexual intercourse with Jillian. Whilst a condom does not provide 100% protection against the risk of pregnancy, whatever the statistical probabilities, the conclusion as a matter of legal reasoning must be that of all the persons with whom Jillian may have had sex in the period during which conception could have occurred, Jack is the least likely to be the father of the child.

Per the majority in the decision of G v H:

  1. the standard of proof is on the balance of probabilities;
  2.  The expression “just inference” in sec 66W5 [now sec 69Y(2)] conveys that given technological advances that make proof of parentage for practical purposes conclusive, “inferences should be drawn from a refusal to submit to testing, free of the reluctance that might be expected if the biological fact, as opposed distinct from its possibility, were to be regarded as involving a grave or serious allegation”.
  • in line with the decision of the majority in G V H, in circumstances where Jillian fails without reasonable excuse to submit to a parentage test ordered by the Court and where the evidence (which is not challenged by Jillian) identifies that Jack is not likely to be the father of the child, the just inference to be drawn from Jillian’s continuing contravention of the interim orders that both she and the child submit to DNA testing, is that it is more probable than not that the court ordered test would disclose that Jack is not the father of the child.
  1. Given the accuracy of DNA parentage testing, it could be argued that that inference must lead to the Court finding that on the probabilities, Jack is not a parent of the child.

If you concerns regarding the parentage of a child, contact our family law team at LGM Family Law and we will be happy to assist you in resolving your family law issues.