Sadly, there are circumstances where there may be doubt as to who the biological father of a child is.
In these circumstances, the law applies a presumption in respect of parentage and evidence that may be obtained to decide the biological parent of the child at law.
Presumptions may be made by the Court in circumstances:
- where a child has been born while the mother is married; and/or
- where a child has been born and the mother has been living with a man; and/or
- from the registration of the birth certificate of the child and the names noted on the certificate; and/or
- in circumstances where the Court has made a finding that a person is the parent or it could not have been any another person, and that finding has not been challenged; and/or
- an acknowledgment or declaration in a document by the man that he is the biological father of the child.
The above presumptions may be rebutted by evidence which satisfies the Court on the balance of probabilities.
A parent may also apply to the Court to obtain evidence in respect of parentage of a child where parentage is an issue in the proceedings before the Court.
The Court after receiving evidence may make a declaration as to the parentage of the child which will be conclusive evidence of the parentage of that child for the purposes of all laws in Australia.
The Court may make a parentage testing order on its own initiative or on the application of a party or an independent children’s lawyer.
Failure to comply with the order does not result in a penalty per se, however the Court will use the failure to comply with the Order to draw an inference against the person who failed to comply with the testing order.
By Pierre Hawach,
McAuley Hawach Lawyers
Level 7, 9 George Street
Parramatta NSW 2124
Tel: (02) 9633 1826
Fax: (02) 9687 8114
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