Who’s your daddy? DNA testing in Court
The question of a child’s paternity is a matter that commonly arises in Family Law disputes.
While a simple DNA test can shed light on the identity of a child’s biological father, there are of course other issues that need to be considered, including the payment of child support to the child’s mother.
If you discover that you have paid child support to a mother, and have subsequently found out that you are not the child’s biological father, the law allows you to apply to the Court for the child’s mother to repay those child support payments to you.
The first step will be you obtaining a Court approved paternity test to show that you are not the biological father of the child. If you are unable to carry out a paternity test, this does not prevent you from making an application to the Court, however, you will then need to ask the Court to make an order that the paternity test is carried out.
If you can obtain the necessary DNA sample and it is confirmed that you are not the biological parent, you will then need to urgently apply for an order for a declaration that you should not be assessed in respect of the costs of the child, and also a repayment order for any child support paid to date.
When considering your application, there are a number of factors the Court will take into account, such as:
- Whether the payee or payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child. If she knew and didn’t tell you it will assist your position. If you suspected you were not the Father, or arguably had good grounds to suspect you were not but did nothing about it, it will not help your position;
- Whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar. Basically the circumstances in which the application to the CSA was made and accepted are considered by the Court. It may or may not affect the Courts view;
- Whether there was any delay by the payer in applying to the Court for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child. This is key, delay on your part in acting once you have suspicion or knowledge will count against you;
- Whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child. The Court will consider whether there is any prospect of child support being paid by anyone else;
- The relationship between the payer and the child; and
- The financial circumstances of the payee and payer.
As soon as you become aware that you may not be the biological father of the child, it is imperative that you seek legal advice and take steps as a matter of urgency.
These types of applications can be complex in nature. If you are contemplating making an application, or have concerns about someone else bringing an application against you, we strongly recommend that you seek legal advice. Our Brisbane Family Law team at Aylward Game Solicitors have experience in matters of this nature. We offer free 20 minute telephone consultations and invite you to call our office at any time on 1800 217 217.