Notes on Guideline 4 – parentage determinations

Notes on Guideline 4 – parentage determinations

Note: The following information provides guidance on how to interpret and apply Guideline 4 and should be read in conjunction with that guideline in the Handbook. Where there is any inconsistency between the following information and the guidelines, the guidelines will prevail.

Assistance under this guideline may be made to:

  • apply for or oppose a finding of parentage by a court
  • 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 in the federal family courts, a lawyer requesting assistance under this guideline should consider whether an appearance in the Magistrates’ Court is necessary to determine the issue, or whether a disbursement for testing would be sufficient.

(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 the support of a child

Where parentage is in issue in a dispute relating to the financial support of a child, most matters are handled by either Victoria Legal Aid's (VLA’s) in-house Child Support Legal Service or a community legal centre (CLC). We will not make a grant of legal assistance to a panel lawyer under this guideline unless the person seeking assistance has first contacted our Child Support Legal Service or a CLC, and has been unable to obtain appropriate assistance.

Requests for assistance from the Child Support Legal Service or to a CLC are made directly to those services and not by application for a grant under the guidelines. Further information regarding the Child Support Legal Service can be found on our website.

CLCs that provide a similar service to the Child Support Legal Service are:

Clients are not limited to seeking assistance from the above three CLCs for the purposes of this guideline, but may have approached any CLC listed on the community law website.

Disputes about who a child lives with or spends time with

Where parentage is in issue in a dispute relating to who the child lives with, or spends time with (parenting disputes), the person applying for legal assistance is not required to first seek assistance from the Child Support Legal Service or a CLC. Applications for a grant under this guideline can be made by a panel lawyer.

Criterion B

In some circumstances it is preferable for the person to be represented by a section 29A lawyer, rather than the Child Support Legal Service or a CLC. We may consider a grant under this guideline where a panel lawyer is currently acting for the person or has submitted an application for assistance, in another Commonwealth family law matter, and therefore is familiar with the client and their circumstances. This is likely to be the case where a determination of parentage is an issue in a parenting dispute.

Criterion C

Refer to the notes linked to the following threshold tests:

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).

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.

Legal assistance will also generally not be available to a male party to determine parentage in parenting disputes 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 is inconsistent with an application for parenting orders to maintain or promote a relationship between the person and child.

Facts suggest male party does not play a significant role in the child’s care and/or welfare and may be eligible for assistance under Guideline 4 – Example A

The child is three months old. The mother alleges that the male party is not the biological father and is refusing his request that the child spend time with him.

Facts suggest male party does not play a significant role in the child’s care and/or welfare and may be eligible for assistance under Guideline 4 – Example B

The male party has not spent any time with the six-year-old child for the past three years. The male party now wishes to spend time with the child again. The mother alleges that the male party is not the child’s biological father.

Facts suggest that the male party does play a significant role in the child’s care and/or welfare and ineligible for assistance under Guideline 4 – Example C

The male party lived with the child for several years before separating. He doubts that he is the biological father of the child and does not intend to pursue a parenting order that the child spend time with him unless a parentage test confirms that the child is his.

Facts suggest that the male party does play a significant role in the child’s care and/or welfare and ineligible for assistance under Guideline 4 – Example D

The male party was the primary carer for the child during the relationship. He seeks a parenting order that the child live with him. The mother’s affidavit alleges the male party is not the child’s biological father.

(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 using the ‘simplified process – ‘child support’ template, making the following selections:

  • in the matter type screen, select ‘parentage testing’
  • 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.

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:

  • attempts made by the client to obtain assistance from VLA’s Child Support Legal Service or a community legal centre (CLC).

The Child Support Legal Service will provide a letter or referral email if they are unable to assist. If the client has does not have correspondence from the CLC where assistance was sought, a file note should be created noting the time and date of the appointment or phone call and the person that the client spoke to:

  • 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.

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

Stage 2A – Application for determination of parentage, Magistrates' Court of Fee table 4.1 (or Stage 2C if seeking Substantive orders and interim orders for parentage testing) sets out the fees available and the conditions attaching to grants under this guideline.