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QLD DNA Test for Paternity - How to Protect Mother & Child?

Discussion in 'Family Law Forum' started by Sarah broom, 24 December 2014.

  1. Sarah broom

    Sarah broom Member

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    Hi there folks, a close friend of mine got married 12 years ago. Just after her marriage, she was basically raped by someone twice her age and who was friends with the family she married into. She was only 18 and was too scared to tell anyone because in their cultural belief, a woman must do something to provoke rape.

    A month later, she was pregnant but till this day assumed it was her husband's child. However, the jerk that sexually assaulted her has apparently joked to somebody that the girl is his and that they were seeing each other. Of course, he would never admit to what he really did. This has gotten back to her and now she is scared that he could be the dad and what if he tries to get a court ordered paternity DNA testing? She fears not only for her safety but for the safety of her daughter. It has been so long the daughter is 12 years old now, and neither the daughter nor her mother need this man in their lives.
     
  2. AllForHer

    AllForHer Well-Known Member

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    Your friend has some legal protection already in place for this issue.

    There is a presumption under section 69P of the Family Law Act 1975 which stipulates that a child is that of the husband if the mother was married at the time of conception/birth.

    Further, section 69U of the Act states that rebuttal against that presumption can only be made if relevant to other proceedings.

    What this means is that the court assumes the child is the husband's, and the only way it could be contested is if the other man pursues other orders in which a DNA test is critical to his case. An example might be parenting orders - kids have a right to know both parents, so it would be important in that instance that parentage be established so this right can be upheld.

    However, under common law, it's been established that DNA tests are assault unless taken voluntarily or by order of the court, so he can't just demand a DNA test willy-nilly. He would need to be pursuing some other matter of relevance through the court to have a DNA test ordered.

    As an added protection, even if he did pursue parenting orders, it's not likely the current arrangement would change. The child would likely be deemed old enough by the court to choose her own care arrangements (who she lives with and how often she sees the other 'parent'), and on top of that, his level of involvement would leave a lot to be desired.

    I guess the most significant strain would be the emotional one, but right now, there are protections in place for her and her family, and it takes a lot of money, time and effort to break those protections down. It probably isn't worth wasting energy worrying over until it truly becomes a problem, if it becomes a problem at all.

    I hope this helps.
     
    Sarah broom and Sophea like this.
  3. Sarah broom

    Sarah broom Member

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    Thank you very much, that's good to know. She has suffered alot and I would hate for her to go through something like this. I really appreciate you taking the time to answer such a complex question.
     
    #3 Sarah broom, 24 December 2014
    Last edited by a moderator: 24 December 2014

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