If you are unsure or disagree about who is the child’s biological father, there are laws to help prove the child’s parentage and to make sure you receive adequate support services.
Disagreements about who is the child’s father
Sometimes there is uncertainty or disagreement about who is the child’s father. The law says a person is the child’s biological father if:
- They are named as the father on the birth certificate or adoption certificate.
- they sign a statutory declaration (a legal document) saying they are the father.
- the child was born during the marriage.
- the child was born within 44 to 20 weeks of when the mother and father lived together.
- the Court makes a declaration (finding) that a person is a child’s father and/or that a person is liable to pay child support for a child.
What the law says about who is the father can sometimes be proven wrong with other evidence, such as DNA testing.
DNA testing is generally accepted as the most accurate method of proving or disproving parentage.
DNA testing involves collecting a sample (usually a mouth swab) from each parent and child. The DNA from each sample is then compared. Testing can be done voluntarily, or it can be ordered by a Court.
Testing for legal purposes must comply with the regulations outlined in the Family Law Act 1975. There are a number of organisations who can provide this service.
The Department of Human Services (Child Support) (DHS) cannot accept a DNA parenting testing report as proof that someone is or is not the child’s father. It will only accept a declaration from the Court. The DNA testing result can be presented in Court and the Court can make a declaration stating a person is or is not a child’s father.
If the Court Orders DNA testing and a person refuses to participate, the Court may still make a declaration stating that a person is a child’s father and/or that a person should pay child support for a child based on other evidence presented.
It is important you get legal advice if there are disagreements about who is a child’s father. If you delay in making an application, this could have serious consequences for your case.
How do I prove I am not the father?
If you think you are not the biological father of a child the DHS is assessing you pay child support for, you can apply to a Court for a declaration under s107 of the Child Support (Assessment) Act 1989.
You will need to prove to the Court you are not the biological father with DNA testing that complies with the regulations outlined in the Family Law Act 1975.
How do I prove who is the father?
If the DHS will not accept your application for child support because you do not have proof of paternity, you may need a declaration from a Court under s106A of the Child Support Assessment Act 1989 stating you are entitled to child support.
If you are receiving Centrelink payments for a child Centrelink needs you to take reasonable action to get child support or you may lose some of your Centrelink payments.
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