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Tuesday, January 18, 2005
Paternity Testing and Child Abduction - Legislation Amendments
The Family Law Regulations 1984 (the Regulations) have been amended to tighten up the laws on DNA paternity testing, and to conform to the child abduction provisions in the Family Law Act 1975 (the Act). The regulations relating to child abduction are also amended to conform with the Act and rectify defects. The new provisions commenced on 23 December 2004.
The paternity testing amendments, amongst other things, add further safeguards to the prescribed parentage testing procedures to reduce the risk of fraud. The process for obtaining a bodily sample for DNA paternity testing is changed so that an adult donor must swear or affirm their consent to a sample being taken, and a photograph of the donor must be attached to the affidavit provided to the sampler. In the case of a child donor, a parent or guardian must swear or affirm that they consent to a sample being taken from the child.
The child abduction amendments, amongst other things:
- enable the court to have a discretion concerning the country or person to which or to whom a child is to be returned;
- provide that the discretion to refuse to return a child because of the child's wishes must not be exercised unless the child's objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
- enable a party to apply for the discharge, suspension, revival or variation of a return order in appropriate circumstances;
- incorporate the term "contact" in Pt 4 of the Child Abduction Regulations to more closely reflect the current terminology used in and thinking behind the Act;
- provide that the court may make an order for contact whether or not a contact order has been made in another convention country;
- remove any doubt that the evidence provisions of the Child Abduction Regulations have effect despite any inconsistency with the Commonwealth Evidence Act 1995 or with any other law about evidence; and
- provide that an application for orders for the return of a child may be made by an individual as well as by the Central Authority, the body which carries out Australia's convention obligations;
- clarify that only a responsible Central Authority, and not an individual, may make an application for contact orders under the Child Abduction Regulations; and
- make other various amendments, including minor technical amendments.
The amending legislation can be accessed from http://www.familycourt.gov.au/presence/connect/www/home/judgments/legislation/.