Martin and his former partner had a son, Alvin, who was born while they were still living together in New South Wales (NSW), Australia. The couple separated when Alvin was aged 1, and he is now aged 5. In the meantime, Martin has continued to pay child support for Alvin, despite his former partner having moved to another state and Martin now having very little contact with Alvin. However, Martin has recently learned that his former partner may have been seeing someone else during their relationship, and Alvin might not be Martin's child (Note: names changed).

How can Martin be sure that Alvin is his son? What steps would he need to take to confirm Alvin's paternity?

The starting point for the Family Court of Australia (or the Federal Magistrates Court exercising its family jurisdiction) is contained in sections 69P to 69U of the Family Law Act 1975, which deal with presumptions of parentage, which includes paternity. Of particular relevance to Martin's case, section 69Q says that if "at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the [mother of a child] cohabited with a man to whom she was not married... the child is presumed to be a child of the man."

This presumption means that, unless Martin brings evidence to show (on a "balance of probabilities") that he is not Alvin's natural father, Alvin will continue to be regarded for all purposes as Martin's natural son. However, under section 69VA of the Family Law Act, a Court exercising jurisdiction under the Act may "after receiving evidence, [decide] the issue of the parentage of a child for the purposes of proceedings, [and] the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth."

Although, under section 69V, the Court can require "such evidence as is material to the question" of parentage, DNA testing is generally regarded as the most effective means of proving parentage. DNA testing is generally accepted as providing results of at least 99.9% accuracy in proving a biological relationship exists, and results of 100% accuracy in proving a biological relationship does not exist (see "Paternity & Relationship DNA Testing: Patient Information", published by Gribbles Pathology, 1 November 2006). DNA testing can be carried out quickly and efficiently. Section 69W gives the Court jurisdiction to make relevant orders for testing to be carried out, although section 69Z requires the consent of a parent if the child is under age 18.

Upon an order being made under section 69W, and (if necessary) a parent's consent having been given, the parents must fund the testing, and attend at an approved testing centre for blood to be taken from both parents and the child. Of course, if necessary (if the parents cannot agree) the Court will conduct a hearing to determine whether an order should be made under section 69W, and may impose special conditions such as specifying where the testing is to take place.

If, as in Martin's case, the mother and child live in another state, it may be preferable for the testing to be conducted by a laboratory which has branches in that state. It is not usually necessary for all three people to give blood at the same time, but the outcome cannot be determined until all required samples are received for the test to be completed. In each state there are a large number of organisations offering DNA testing, although some of them are not accredited by the National Association of Testing Authorities (NATA).

Costs for "legally admissible" testing of a mother, father and child, may typically be in the range from $700 to $1,000 in NSW, Australia (as at August 2009), although this was estimated from a small sample of laboratories who advertise their prices online, and may not be an average or median cost. However, it is an easy matter to shop around for a competitive price.

The greater cost will be in relation to any court proceedings required to get orders under sections 69V and 69W, and a person in Martin's position will need to obtain an estimate from a lawyer for that cost. The final amount may depend on which court the proceedings are filed in, the scope of disputed matters, and how quickly the issue of paternity can be resolved... and the last two may be impossible to ascertain until the proceedings are under way. It is usually prudent to raise the prospect of proceedings with the other parent, before rushing off to court, in case the matter can be resolved "by consent", where the parties agree to a particular outcome, subject to confirmation by the Court, or at least agreement about how the dispute will be resolved (eg, by DNA testing).

In Martin's case, his former partner has initially rebuffed a request for DNA testing, but an approach to her from Martin's lawyer might encourage a more positive response... it's usually worth a try.

Stephen Bourne is a lawyer in Australia (see profile), and also contributes articles and case summaries to the Ekupu Library website. Stephen has law and business qualifications, and is a Fellow of the Australian and New Zealand Institute of Insurance and Finance.

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