When you can get a court ordered DNA test?

Date: Nov 28, 2011
Document Type: Article

Under s26 of the Status of Children Act 1996 a party to proceedings may apply to the Supreme Court for an order requiring a parentage testing procedure to be carried out for the purpose of obtaining information to assist in determining the parentage of the child.

Tests can be carried out on
  • the child, or
  • a person known to be a parent of the child, or
  • any other person whose DNA, in the Court’s opinion, would assist in determining the parentage of the child.

Some examples of the kinds of orders that a Court can make under s27(1) of the Status of Children Act 1996 include:

  • an order requiring a person to submit to a medical procedure,
  • an order requiring a person to provide a bodily sample,
  • an order requiring a person to surrender a bodily sample previously obtained from that person or from another person (regardless of whether that other person is still living) that has been stored or otherwise preserved,
  • an order requiring a person to furnish information relevant to the person’s medical or family history.

A court will not order parentage testing merely because it is requested to do so. (F and R (1992) 15 Fam LR 533). The court will only make an order for a parentage test if the applicant can show that they have an honest and reasonable belief that there is a doubt as to paternity.The court will objectively assess the circumstances giving rise to the applicant's belief. (F and R (1992) 15 Fam LR 533 )

For example in one case the court held that where a mother had given evidence that she had had intercourse with the appellant about nine month prior to the birth of the child that was sufficient to establish that she had an honest and reasonable belief that the appellant was the father.

The Court is reluctant to rely on inconsistent evidence when it makes decisions about parentage. Rather the Court is concerned to make such decisions based on the best evidence available.( S v McC (formerly S and M) (S intervening) (1971) All ER 1162) The courts have recognised that the best evidence is generally medical evidence and that the question of paternity is medical rather than legal (G v H (1993) 16 Fam LR 525).

In making the decision to order a parentage test the court must weigh the competing interests of certainty as against privacy.( In the application in of Her Majesty's Attorney General in and for New South Wales under ss 32 and 33 of the Evidence on Commission Act 1995[2007] NSWSC 1501)

Under s26 of the Status of Children Act 1996 in deciding whether to make a parentage testing order, the Court must consider any objections the party to the proceedings makes on the basis of medical, religious or other grounds. If the Court decides that a party’s objection is valid, it must take the objection into account in deciding whether to make the order.

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