Is It Legal To Refuse A Paternity Test?

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When in doubt about who the father of a baby is, just do a paternity test. That seems like a no-brainer, especially since DNA testing has come a long way so it can provide quicker and more accurate results. But what if a man doesn't want to find out if he's the father? Is it legal to refuse a paternity test? Let's find out.

There could be a multitude of reasons why you need to check who the father of a child is: a mother wants to seek child support from the father, a man wants to make sure that the child he is raising is his own or an adopted individual wants to identify who their real dad is. Whatever the reason, a reliable way to settle any disputes about who fathered a child is through a paternity test.

According to the Australian Law Reform Commission, around 3000 paternity tests are carried out each year.

A paternity test starts with a DNA sample from a male. A non-legal test (unregulated parentage testing), which is used personally and is not admissible as evidence in court, usually involves a mouth swab as part of a home testing kit. There are a number of laboratories that do these tests and they generally cost a few hundred dollars each. The laboratories that offer these may not be accredited through the National Association of Testing Authorities (NATA). The NATA ensures "the technical proficiency of genetic testing" and, more importantly, sets standards that comply with the Family Law Regulations 1984.

A legal paternity test is one that, by law, complies with the Australian Family Law Act (FLA). This kind of test is more stringent and may require additional DNA samples that are carefully tracked. They can be used as part of a court case.

So here's the part where we answer whether it is legal to refuse a paternity test. In short, yes; but it might not be a good idea to do so.

"The FLA gives the court a power to order a 'parentage testing procedure' where a child's parentage is in issue in proceedings under the FLA or the CSAA [Child Support (Assessment) Act 1989]. The court may make the order in relation to the child, the mother, or any other person who might assist in determining the child’s parentage.   "If an adult contravenes an order, or withholds consent on behalf of the child, the court may draw such inferences as appear just in the circumstances."

So a court can order you to do a paternity test, but it can't physically force you to do it. If you do refuse to take a court-ordered test, that action will be taken into account in a court case and you may still be 'declared' as the father.

So if you are embroiled in a court case that could determine if you pay child support and you refuse a test, your refusal could imply that you know that you are the father. If you were hoping to avoid paying child support by not going through with a paternity test, it could work against your favour.

Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.


This story has been updated from its original publication.


Comments

    Sure you can refuse one, But its basically signalling to everyone "I am the parent look at me".

    Not sure about the threshold in the Family Court, I know in a civil trial it is (was) 'on the balance of probabilities' but drawing an inference on the basis of refusing the test smacks of guilty until proven innocent.

    The counter argument to prevent such an inference would be to demonstrate the mother had multiple partners at the time of conception. Can't say I love the idea of slutshaming in a court of law. The court would likely then order all candidates be tested. Hypothetically interesting if they all refused.

      I can imagine a situation where there are multiple men who might be the father, and none of them want to be declared as such, so they make a pact to refuse testing in order to avoid anyone being declared. Unlikely but not impossible.

        I'd be very surprised under those circumstances if the court wouldn't take action to compel the candidates, under threat of contempt etc.

        Ultimately the Judge is going to have to do what is in the best interest of the child. Once a father is determined child support can begin.

          The article suggests they don't have the power to do that, although I too am skeptical at this claim.

    What if a mother led a man to believe he was the father up until a month before the birth and then said he wasn't and wouldn't say who was and she doesn't want a paternity test. Do you need a court order to get a paternity test to find out if he is the father?

      At this point I guess it's up to the "dad" to sue for partial custody, and the same thing applies - if the mum refuses, it can be inferred by the court (particularly if she'd previously said he was the father, in which case the evidence is pretty strong barring other circumstances).

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