Questioning paternity (whether someone is biologically the father of another person) can be a stressful situation for all parties, no matter whether it’s the mother, father or child. And with the emergence of genetic testing services (such as ancestory.com) and increased coverage on social media, cases of testing paternity seem to have increased accordingly.
Damien Greer Lawyers has assisted several clients who have found themselves in situations such as these. In each case, clients often have pre-existing ideas of what’s fair, what’s legal, what’s right and what’s wrong.
To help clarify this murky area of family law, we’ll break down all the major FAQs of testing paternity.
How is a paternity test conducted?
The test used to determine paternity is called a Restriction Fragment Length Polymorphism (RFLP). To perform an RFLP, labs will only require saliva samples of the alleged parent and the child. RFLP tests are known to be at least 99.9% accurate.
Is testing paternity required by law?
The short answer is that if there’s no court order, a person can refuse to do a paternity test. But if a party seeks court orders, the other party is legally required to submit for a paternity test.
To do this, one party would need to start proceedings in the Federal Circuit and Family Court of Australia.
If court orders are created and a party does not submit to the test, they may be charged with criminal offenses. The court may also ultimately make a determination of paternity based on the information available to it.
What happens if tests prove paternity?
This will vary significantly case by case, due to several contributing factors (such as the age of the child, their circumstances, their health, the income of both parents, etc). Equally, a child proving they’re biologically related to a person can impact estates and wills.
In certain circumstances, a biological father may be subject to an assessment to pay child support. The amount paid will depend on:
- the age of the child (they must be under 18 for child support to be paid);
- how much money is required to support yourself;
- the income of both parents; and
- the care percentage of the child.
This will typically remain in place until the child turns 18, unless:
- the child marries or enters a de facto relationship;
- the child passes away;
- the child becomes self-sufficient; or
- the child is adopted.
If an assessment is in place to pay child support, technically the money you owe as child support is considered a debt to the government, not the other parent. The Child Support Agency has a broad range of powers available to them to collect any owing funds from a liable parent.
Adult child maintenance
In the rare event that a child is completing their education, or they have a mental or physical disability, child support may be owed beyond the child turning 18.
The courts’ interpretation of ‘education’ can be quite broad, including secondary education, tertiary education like TAFE or university, or an apprenticeship. However, recent cases have shown the court is less inclined to grant an order for adult maintenance to education in circumstances where the child and parent have a limited (or no) relationship.
If adult maintenance is required for a disability, it can again be quite broadly defined and interpreted by the court. But as a guide, courts may decide on required financial support based on:
- the financial needs of the child;
- the child’s earning capacity;
- the amount a parent needs to support themselves (or anyone else they have a duty to support); and
- the parent’s residual ability to provide support to the child.
What happens to someone’s will if it’s proved they have a child?
In Queensland, biological children have the right to make a ‘Family Provision Application’. This application can be made by a spouse, child or dependent and allows a person to contest a will if they weren’t adequately provided for by the deceased person’s estate. They just have to make their application within 9 months of the deceased person’s death.
Damien Greer Lawyers exclusively practice family law, and are unable to provide clients with estate planning advice. Nonetheless, it is important clients are aware holistically how a paternal relationship may impact them from a legal perspective.
Where can I go if I’m involved in a paternity test?
If you’ve been contacted by someone wanting to test paternity, you’re not alone, and it’s not uncommon. If you have any questions about the process or how the results might affect you, get in touch with the experienced family law team at Damien Greer Lawyers.
We are strategic and results based and understand our client’s needs during challenging times.