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There must be substantive proceedings before the court. The court will not order parenting testing simply to satisfy the interest or knowledge of a person. The results must have implications for broader questions of parenting or child support.
Paternity must be an issue in the proceedings; that is, there must be established on the evidence, the onus of which is on the applicant, that there is a doubt in the applicant's mind as to paternity, and the doubt must be honest, bona fide and reasonable. Importantly, the applicant need not show that any person is the father of the child. The applicant need only show that there is an honest, bona fide and reasonable doubt as to paternity. Often, evidence of such belief is difficult to corroborate and, consequently, the court will accept that evidence unless the court concludes the applicant's alleged doubt is affected by malice or other extraneous considerations.
The court will not dismiss an application simply because the applicant's evidence is inconsistent. Recollection of such personal and intimate matters is frequently inaccurate.
Whether or not testing is in the best interests of the child. Although, plainly, not a substantive parenting order, Coleman J in Tryon & Clutterbuck [2007] FamCA 580 held that an order for paternity testing is still an order with respect to the welfare of the subject child. Applying such definition to section 64B(2)(i) of the Family Law Act 1975, an order for paternity testing is therefore a "parenting order" for the purposes of the Act. It being so, the paramountcy principle applies – section 60CA of the Act refers. It then behoves the court to consider the matters outlined in section 60CC of the Act so far as they are relevant and so far as any evidence is led to draw an inference or make a finding.
A paternity test is, therefore, not for the asking. Very careful legal considerations must be examined before a client is advised to bring an application. Moral considerations, the purview of many other papers and other philosophies, must come next.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. |
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