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VIC What are the Reasons Family Court can Deny DNA Testing?

Discussion in 'Family Law Forum' started by MissSomeone, 3 March 2016.

  1. MissSomeone

    MissSomeone Well-Known Member

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  2. AllForHer

    AllForHer Well-Known Member

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    I suppose the easiest way to answer this is that a judge will allow DNA evidence, or order a DNA test to be conducted where a child's parentage is in dispute between the parties and it's necessary that the court establish said parentage for the purposes of other proceedings.

    The ordinary circumstances in which the question of whether a DNA test should be allowed or ordered is where the parents are in dispute about parentage and none of the legal presumptions of parentage apply (as given in Division 12, Subdivision 4, Family Law Act 1975).

    Generally speaking, parentage sometimes comes into dispute in child support matters and in matters affecting parental responsibility.
     
  3. jeeny

    jeeny Member

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    I gave a question relating to your answer above please.

    I live in Vic, the mother has began living with another partner when she became pregnant, so she was cheating with both fathers.

    My son believes he may be this child's father and we're trying to get the mother to take a DNA test willingly. The mother is 17 years old (18 in Nov) with the baby just born.

    The mother is abusive and when my son asked her if he could take a paternity test, she wrote to him with the most extreme vulgar rage. They have been manipulating him and said early on that she lost the baby and won't give a due date but it's been 9 months.

    They were together from Dec 2014 until 28th July 2015. There was also a miscarriage a few months earlier. Now that he's asked for my help (& seeking legal help). The baby's mother and her own mother have exploded with rage because they actually think he is stupid and can control him.

    We also have concerns that if the child is his, about getting visitation so that he can offer support for the child and know it's welfare. The grandmother is very young and a drunk and drinks heavily with her daughter who has anger rage issues.

    My question is, would the court order DNA testing with or without the mother's consent and how can my son ask the court to determine parenthood based on the fact that he was living with her at the time, when she's likely to put her current partner's name on the birth certificate?
     
  4. AllForHer

    AllForHer Well-Known Member

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    Yikes. 17 is really too young to be entering something as complex and burdensome as the family law system. I hate it even as a woman in my early-30s, and I couldn't imagine trying to get my head around it at the ripe age of 17. My heart goes out to you, your son and the child.

    Okay, so, as in my answer above, the court will generally only order a DNA test if there's a need to determine parentage for the purpose of other proceedings. This means a party can't just go to court and say 'Hey, can you please order a DNA test so I have proof I'm the father?' There usually needs to be a legal reason for wanting that DNA test undertaken.

    A legal reason might be an application for parenting orders (which are basically court orders for who the child lives with, spends time with, etc.), or for the purposes of child support where the father isn't named on the birth certificate.

    In these circumstances, I would suggest the predominant legal reason for wanting a DNA test would be for the purposes of seeking parenting orders since you've stated your son is eager to spend time with the child if the child is his. So, in a very loose explanation of how this generally works: Apply for parenting orders --> Request interim order that DNA test be undertaken to determine parentage of child in order to establish that you are a person of relevance to the child's care, welfare or development --> proceed with parenting orders application in the event the DNA test is returned in your favour.

    Before your son can apply for parenting orders, he must first attempt a family dispute resolution conference with the other parent. The purpose of this conference is for two parties to try and resolve their dispute with the guidance of a neutral third party and without the intervention of the court. Sometimes it works, sometimes it doesn't, but it's mandatory before any party can file an initiating application with the court for parenting orders.

    My suggestion - and this isn't legal advice, just a suggestion - is that a family dispute resolution conference be first used to try and discuss the matter of parentage with the mother, because if the DNA test is undertaken and your son is found not to be the father, then both your son and the mother can avoid court and get on with your lives.

    Hopefully, the mother will get legal advice before attending the family dispute resolution conference as it may save her a lot of time, money and emotional energy, but otherwise, your son may find that she refuses to participate or agreement can't be reached. In such circumstances, the mediator will grant a section 60I certificate which enables him to pursue parenting orders through the court.

    I hope this helps.
     
  5. jeeny

    jeeny Member

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    Thanks, that's really good info.

    Yes, 17 and 21 years are too young and the violent rage that comes from the other side of their family is a huge concern regarding the well-being of this child. So we want to proceed with caution as to not provoke anger from them.

    I know they will not agree to mediation, but I will contact her nearest centre for an appointment. If it's a court requirement and we need to get legal advice asap.

    What about in the case of the mother being17 years old, as I read that she needs a guardian to sign on her behalf?

    Can the judge ask for just the child to have a DNA test?
     
  6. AllForHer

    AllForHer Well-Known Member

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    I'm not much of an expert on the medical legalities of DNA testing, so I'm sorry, I can't provide any information about who needs to consent to the test since the mother is a minor. I imagine you can get this information fairly quickly by contacting a DNA testing facility, though.

    I don't believe the mother's DNA sample is required for the DNA test, just the child and the father, but again, I'm not sure about the medical legalities around this scenario.

    Legal Aid offers free consultations for parenting matters though, so I really strongly suggest that your son organise an appointment with them ASAP. They can also help with organising mediation.
     

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