25 October 2019
Family law – Parentage testing and the rebuttals of presumption
I act for the respondent mother in a family law matter where the applicant is claiming access to his non-biological child. The applicant's name is listed as the father on the child's birth certificate. Are you aware of any judicial consideration relating to section 69R of the Family Law Act and the rebuttals per section 69U?
Thank you for the question.
The mother can seek an order for parentage testing to prove the applicant is not the biological father to rebut the presumption of parentage arising from the registration of birth: s 69R of the Family Law Act 1975 (Cth).
The court will not require a parentage testing procedure to be carried out unless, on the available evidence, paternity is in issue: s 69W. Mullane J stated the following in Diggins & Diggins [1991] FamCA 100:
It is not a proper use of the section to allow a fishing expedition … There must be some real issue as to paternity, some evidence which places the paternity of the child in doubt, before a court can embark upon the process of subjecting the child to the procedures for paternity testing and making an order for that purpose.
The mother would need to depose to the facts she asserts that demonstrate the applicant is not the father.
For a detailed review of the legislation and case law, see [17]-[31] of Brianna & Brianna [2010] FamCAFC 97. See also Frontera & Gibbons [2015] FamCA 701 which discusses s 69U and the rebuttal of presumptions.
Regards
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