Parentage testing for child support (female applicants)

For legal aid to be granted for female applicants to attempt to resolve proof of parentage for child support matters, the following tests must be satisfied:

• The applicant meets the means test, and
• The applicant meets guideline 8 – paternity, and
• There is a maximum of two putative fathers, and
• The putative father is not serving a jail sentence exceeding 12 months (unless excluding this person as a father will enable successful prosecution of a second male), and
• Proof of parentage is needed to claim child support, and
• No legal presumptions of paternity exist, and
• The applicant meets the merits test.

Documentary requirements

Application received from client

Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:

• a completed and signed Legal Aid Queensland application form
• proof of income and assets (refer to the means test)
• a copy of the rejection letter from the CSA (if applicable)

Application received from preferred supplier or in-house practitioner

Practitioners seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system attaching:

• proof of the applicants income and assets (refer to the means test).

The following documents are retained on file but may be requested by Legal Aid Queensland:

• a completed and signed Legal Aid Queensland application form.

Interpretation

There is good reason to believe that the other party has the capacity to pay child maintenance or child support

Legal Aid Queensland considers that if the other party is in prison for more than 12 months they do not have the capacity to pay child maintenance, in all other circumstances Legal Aid Queensland may determine that the other party has the capacity to pay.

Legal presumption of paternity - refer to s 29(2) Child Support (Assessment) Act 1989

The CSA have explained these as:

• The child was born while the person was married to the child’s mother or father. A child is born during a marriage even if the parties to the marriage have separated as long as a divorce was not finalised at the time of the birth (ie the child was born before the decree absolute).
• The person is named as the child’s parent in a register of births or parentage information kept under Australian law or the laws of a reciprocating jurisdiction. The registrar will accept a person’s verbal assurance that they themselves are named as the child’s parent in a register of births but the applicant may need to provide a statutory declaration or a copy of the birth certificate to establish that the other parent is named in the register of births.
• An Australian court, or a court of a reciprocating jurisdiction, has expressly found that the person is a parent of the child, or has made a finding that could not have been made unless the person was a parent of the child (and that finding has not been set aside, altered or reversed).
• The person has executed an instrument under an Australian law, or the law of a reciprocating jurisdiction, such as a statutory declaration under the Oaths Act of an Australian state, acknowledging that they are the child’s parent, and that instrument has not been annulled or set aside.
• The person has adopted the child in Australia or under the law of another country (whether or not that country is a reciprocating jurisdiction).
• The person is a man and the child was born within 44 weeks of his marriage to the child’s mother and the marriage has since been annulled.
• The person is a man who was married to the child’s mother and they separated, then resumed cohabitation for three months or less, and the child was born within 44 weeks of the end of that last period of cohabitation but after they divorced (after the date of the decree absolute).
• The person is a man who cohabited with the child’s mother at any time during the period beginning 44 weeks and ending 20 weeks before the child was born, but they were not married at any time during that period. For the purposes of section 29, cohabitation means living together in a sexual relationship (Bixby and Farraday (SSAT Appeal) [2009] FMCAfam 647).
• The registrar is satisfied that the person is a parent of the child under section 60H or section 60HB of the Family Law Act 1975.

Costs relating to the DNA testing

Prior to a grant of legal assistance being made to obtain DNA testing the practitioner is required to certify that either:

• the male party has agreed to undergo DNA testing and there is a signed undertaking on file, or
• the court has ordered DNA testing.

Allocation of a solicitor

Applications for female applicants to obtain parentage testing for child support matters will be referred to the Brisbane in-house family law team unless there is a conflict of interest.

Grant(s) of aid

The grant of aid to investigate and attempt to resolve proof of parentage is CS1.

Extension(s) of aid

• The grant of aid to arrange parentage testing and obtain statutory declaration is CS2.
• The grant of aid to arrange for an additional sample to be taken for the purposes of parentage testing is CS3.
• The grant of aid to arrange parentage testing where the other party is overseas in a reciprocating jurisdiction and obtain statutory declaration is CS4.
• The grant of aid for application for interim orders relating to substituted service is CS5.
• The grant of aid to obtain a standard parentage test is DNA1.
• The grant of aid to obtain an additional standard parentage test is DNA2.
• The grant of aid to obtain an overseas parentage test is DNA3.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).