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Proving parentage

Proving parentage

Why is parentage important?

Sometimes there is disagreement or uncertainty about who are the parents of the child (parentage).

Parentage is important because only parents pay child support.

It is also important in ensuring that the information provided when registering a child’s birth is correct. For more information see Birth Certificates.

Parentage may also be an issue in Family Court matters where there is a dispute about who a child lives or spends time with.

How can a disagreement about parentage be resolved?

There are a number of ways to resolve disagreements about parentage:

  • relying on a presumption of paternity
  • DNA testing
  • the man acknowledges that he is the father of the child 
  • a court makes an order declaring the parties are the parents of the child

When is a person said to be the parent of a child? (“Presumption of paternity”)

There are some cases where the Court and other agencies, such as the DHS (Child Support) and the Registry of Births, Deaths and Marriages, will accept or presume that a person is a parent of a child without any other evidence. These presumptions include:

  • where a man was married to the mother and the child was born:
    • during their marriage 
    • within 44 weeks of the marriage ending by death or annulment
    • if the couple separated but then lived together again for less than three months and the child was born within 44 weeks after that but after they divorced
  • where a man cohabited with the mother (but they were not married) at any time from 44 to 20 weeks before the child was born. 
  • where a man is on the birth certificate as the father or has signed something (such as a statutory declaration) saying he is the father.
  • where a court has made a statement in the past that the man is the father

There are other cases where presumptions of parentage apply:


Adoption


If a person adopts a child they are for all legal purposes (including child support purposes) the parent of that child and this cannot be challenged. For more information, see Adoption.


Artificial conception


If a woman gives birth to a child through an artificial conception procedure then the child is a child of that woman, whether or not the child is biologically that woman’s child.

The de facto partner or husband of a woman is presumed to be the father of her child if he agreed to her artificial conception.

The de facto lesbian partner of a woman is also presumed to be the parent of a child born to her partner from artificial conception, if the partner agreed to the artificial conception.

Donors of sperm or eggs are not considered to be the parents of children born from artificial conception unless they are in some other way considered to be the parent of that child (for example a Court has made an order that they are a parent).

If the father's name is not on the birth certificate or he refuses to admit he is the father can I still seek payment of child support?

Yes. If the other person says that they are not the father but you believe they are, you can apply to the Family Court for a declaration that the person is the father. You may also need to ask for an order that you, the other person and the child go for DNA parentage testing.

You should try to negotiate with the presumed father to see if he will acknowledge paternity or undergo voluntary DNA testing prior to making an application in the Family Court. It is not compulsory to attend Family dispute resolution before going to the Family Court about a parentage dispute in relation to child support. See also Before you go to Court – children.

Important: If you have safety concerns, it may be best not to communicate with the other person directly. If there is a violence restraining order (VRO) in place, you must not communicate with the other person unless the order specifically states otherwise.

DNA testing is usually done by mouth swab. A mouth swab is taken from each parent and the child. Testing for legal purposes must be done by organisations accredited under the Family Law Act 1975 (Cth).

If the Court orders a DNA test and a person refuses to participate, the Court can still make a declaration that a person is the parent based on other evidence. The Court can take into account the fact that the person refused to undergo a DNA test and the reasons why they might have refused.

If there is a disagreement about parentage, you should get legal advice as soon as possible as any delay might affect your case.

What if I do not think I am the father of the child?

If you are presumed to be the father of a child you have to show evidence to the contrary to challenge the presumptions.
To do this you will have to ask for an order from the Family Court and you will need to show evidence that can prove you are not or may not be the father. You may hear this referred to as "rebutting the presumption."

You must attempt to resolve your paternity issues for example, by sending the other party a negotiating letter, prior to making an application in the Family Court. For more information see Before you go to Court – children.

Usually the best evidence to show whether or not you are the father of a child is DNA testing. To be recognised legally, DNA testing must be performed by an accredited laboratory. You will need the consent of all parties to undertake DNA testing or, if you do not have consent, you will need a Court order for the relevant parties to undergo the testing. The test results will be accepted by the Family Court as conclusive evidence of parentage if the testing complied with family law regulations.

Parties may undertake this testing by agreement. If the results prove that you are the father, then you can complete a statutory declaration that you are the father and this can be given to DHS (Child Support) as proof of parentage.

Can Legal Aid WA help me?

Legal Aid WA has specialist advisors who may help with advice and assistance on child support matters.

Gosnells Community Legal Centre and Bunbury Community Legal Centre may also be able to provide advice and assistance.

Where can I get more information?

 

Last reviewed: 12/11/2012

Last modified: 18/09/2015 9:27 AM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.