Notes on Guideline 4 – parentage determinations

Assistance under this guideline may be made if there is a current child support, child maintenance or other Commonwealth family law matter to:

• apply for or oppose a finding of parentage by a court as part of a substantive application for a child support declaration, child maintenance or other Commonwealth family law matter
• arrange for the parties to undergo parentage testing, and failing agreement, for an order from the court
• seek a disbursement for parentage testing. Where paternity is in dispute in a matter being legally aided in the federal family courts, a lawyer requesting assistance under this guideline should only seek a disbursement for parentage testing under the parenting matter (dispute) grant of aid.

(a) Eligibility criteria

Assistance may be available under this guideline where criteria:

• A,

or

• B,

and

• C,

and

• D,

and

• E are met.

Criterion A

Disputes about child support or maintenance

This usually arises where Services Australia has either accepted or rejected a child support application and parentage is disputed. A grant of legal assistance is not available for reason of peace of mind.

Disputes about who a child lives with or spends time with

A parentage dispute may arise in a parenting matter relating to who the child lives with or spends time with.

Criterion B

This is likely to be the situation where a lawyer is currently acting for the person or has submitted an application for assistance, in another Commonwealth family law matter, and a parentage issue arises requiring a disbursement for the cost of parentage testing.

Criterion C

Refer to the notes linked to the following threshold tests:

• forum test
• Commonwealth merits test (see also assessment of merit where the person is in custody)
• means test
• contravention test.

In assessing merit, criterion D and E are relevant.

Criterion D

An application for assistance to determine the parentage of a child is unlikely to have merit where a presumption of parentage applies and there is no information available to rebut a presumption of parentage. Assistance will not be provided on the basis of unfounded suspicions that the person is not the father of the child, or where there has been delay in taking action to determine parentage (for example, a delay of 10 years after the person knew or should reasonably have known that they were not a parent of the child) or merely for reason of peace of mind.

Criterion E

Adequate reasons in support of a denial of parentage may include:

• there is good reason to believe that the male party is infertile
• the male party had no contact with the mother that could have potentially resulted in conception, for example because he was interstate, overseas or in custody
• there is good reason to believe that the mother of the child had other sexual partners during the time when conception was likely to have occurred.

In parenting matters, a grant of assistance will not be available where a male party seeks to determine parentage:

• for peace of mind or to help them decide whether to pursue parenting arrangements
• when the facts suggest that he plays a significant role in the child’s care and/or welfare. This may include a person who is significant to the care, welfare and development of a child ie a person who has primary care of a child, or who spends substantial time with a child, but also involves consideration of the nature of the relationship between the male party and the child.

A grant of assistance in these circumstances is unlikely to be an appropriate expenditure of funds and to therefore fail the merit test. This is because seeking a parentage test cannot be a standalone application and is inconsistent with an application for parenting orders to maintain or promote a relationship between the person and child.

(b) Grants assessment process

Child support matters

An application for a grant of assistance for a declaration that a person should either be assessed or not assessed in respect of child support, with interim parentage testing orders must be lodged via ATLAS.

There are two options:

Option one

If the client is in receipt of a Centrelink benefit and/or in receipt of or entitled to Family Tax Benefit of more than the minimum rate, use the ‘child support - early intervention means test’ template.

Option two

For all other clients, use the ‘simplified process – child support’ template.

Make the following selections:

• in the matters screen, select ‘child support’ under ‘matter group’ and then the matter type ‘child support s106’ or ‘child support s107’
• under court hearings, select ‘intended court proceedings’
• under professional, select ‘Initiating court proceedings including application for interim relief in State Magistrates’ Court’ – Stage 2C.

A person who also has a grant of assistance for a parenting dispute and wishes to apply for assistance for a child support matter should follow the above procedure as a ‘new application’ on ATLAS.

Where the Stage 2C grant follows an advice and negotiation grant, lawyers must claim a reduced fee from the ATLAS invoice (by the amount already paid under the earlier grant), and not the full fee for this subsequent grant.

Parenting disputes

An application for assistance for a parentage determination in a parenting dispute, must be lodged via ATLAS using the ‘simplified process – FDRS & stage 2’ template, making the following selections:

• under matter type, select ‘parentage testing’
• under court hearings, select ‘no court proceedings’
• under professional costs, select ‘no professional costs’
• under disbursements, at ‘Other Reports’, select ‘paternity testing’.

(c) Documentary requirements

The lawyer’s file must contain a file note that makes clear:

• the family law matter in which the lawyer has assisted, or proposes to assist the client under a legal aid grant
• how the matter meets each of the thresholds tests
• if a client is relying on the child support early intervention means test, that there is a copy of their Centrelink card or statement to verify that the client is in receipt of Centrelink Benefits and/or that they receive or are entitled to Family Tax Benefits (FTB) Part A of more than the minimum rate.

The file should also contain all other relevant notes, supporting evidence and documents.

Lawyers are also encouraged to complete a family law worksheet.

(d) Fees and billing

If seeking substantive orders and interim orders for parentage testing Stage 2C – Initiating litigation, Magistrates’ Court.

Where there is an existing grant of assistance for other family law matters, seek a disbursement only for the cost of parentage testing.

If the matter does not proceed to litigation, the lawyer is not entitled to claim the full Stage 2C lump sum fee. For example, if the alleged father signs the “Commonwealth of Australia Statutory Declaration – you are a parent of the children named” following parentage testing, a reasonable fee can be claimed depending on factors such as whether court documents have been prepared and filed.