Family Law: 23 March 2019
A newspaper recently reported that from January 2007 to April 2010, 48 men have won back a total of $434,378.64 assessed by the Child Support Agency. These men used DNA testing to prove they were not biological fathers of the children they had been supporting.
Under the Child Support (Assessment) Act a man can apply for a refund of Child Support, if it is subsequently established that he is not father of the child concerned. This can heavily penalise a child financially, through no fault of their own.
There is no inherent right for a father to seek a DNA test regarding his purported child. If there is no clear reason to think a man may not be the biological father of the child, a Court may not order a DNA test. A Court will not order a DNA test simply because someone is interested - the request must be part of another application to Court, for example regarding Child Support payments or orders about where a child will spend time. Courts have been critical of men who have "sat on their handsand only sought to raise issues many years after the birth of the child. All this is easy to say in a Court of law. Understandably it is difficult to suggest to a mother she has nominated the wrong father of her child.
Establishing paternity is not always the man's priority. In a recent case the mother sought to relocate overseas with the child. She boosted her claim (at least at the initial trial- the appeal Court was less certain) by proving that the man was not the biological father. She argued this meant that he would not be treated as a parent under the Family Law Act, so considerations regarding promoting relationships with parents would not apply to him.
Another question to be asked, especially when a child has developed a close relationship with a man, is what a DNA test will do to that relationship. It may well benefit a child to find out who their biological father is, if possible. However there will be large questions for the "formerfather and the mother regarding how the child's relationship continues with him. If Child Support payments are refunded, the mother may feel that without a tangible commitment to the relationship, the child should see much less of the man. In the end the Court's test will be the child's best interests. As set out above, although the law is still struggling with the issues, if a man is not the father his status under the Family Law Act may be reduced.
Aitken Partners has acted for clients in DNA, Child Support and Parenting litigation. The area is a legal and ethical quagmire. It is important for people unsure about a child's biological relationships to consider all options at an early date, before deciding what if any action to take.