Back to Australia Paternity Fraud
DNA has families under analysis
Feb. 2, 2001
FOR years, children have been the meat in the Family
Court sandwich as parents fight each other over custody and child support.
This week we've seen that
theme turned on its head as a man launched County Court civil action against
his former wife over children who are not his.
In the landmark case, the Melbourne man is suing for
alleged fraud, claiming his ex-wife led him to believe - for almost eight years
- that two of her children were his.
Legal experts say the foray
into the civil courts could lead to infidelity suits, where one partner sues
another for being unfaithful - bringing the biblical crime of adultery into the
courts as a "breach of contract".
Family law expert Annemaree
Lanteri said it was a reversal of the traditional Family Court conflicts.
"These are cases of
people saying they no longer want any-thing to do with the children because
they are not mine," she said.
Victorian Bar Council family
division chair Noel Ackman. QC, saw no reason why unfaithfulness could not lead
to further law suits.
"If a cause of action
could be found under civil law provisions. a breach of contract, the court of
civil jurisdiction might arguably entertain such a matter," he said.
DNA tests, the new miracle
tool used to uncover truth in courts, has in the present case found the man is
not the father of the pre-teen children he thought were his.
AFTER
paying child support for the best part of a decade, he wants his former wife to
pay $400,000 for the mental anguish and depression he claims to have suffered
since learning of her unfaithfulness and the children's illegitimacy.
The mother admits the
children are not his and says they could have been fathered by only one other
man.
But that man, Mr. X, refuses
to take a paternity test to confirm the woman's belief.
Her children have had counseling and are left without
the father they once had or the father they should have known.
DNA experts say 10 per cent of men in the wider
community are unknowingly acting as fathers to illegitimate children. And up to
30 per cent of those who have DNA tests have their suspicions of illegitimacy validated.
The issue looms as a huge
minefield for litigation.
The Melbourne test ease,
believed to be the first in Australian legal history, looks set to open the
floodgates for spouse suing spouse over fraud-related relationship allegations.
Although damage claims for
adultery have been ruled out by the 1976 Family Law Act, the potential for such
suits in other civil jurisdictions has not been fully tested, Ms. Lanteri says.
The power of DNA testing is
already having a huge effect on settling child support liabilities and
Australian Family Association secretary Bill Muehlenberg says it could become a
big factor in regulating sexual promiscuity.
Casual sex outside marriage
or de facto partnerships threatens to become a bio-legal danger.
Do-it-yourself DNA test kits
are available on the Internet and with the huge growth in divorce, more and
more men, and women, are seeking the truth about lineage.
About 3000 paternity tests.
mainly to establish child support liability, are carried out in Australia each
year.
Those tests confirm up to 900
men are fathers to children who are not biologically theirs.
There are 470,000 children on
child support; potentially 47,000 children who do not know their real father.
"There are pros and
cons," Mr. Muehlenberg said. "On the one hand, you could say DNA is
good to ensure honesty.
"The sexual revolution,
launched about 30 years ago, has tended to be something for the benefit of men.
"DNA testing may at
least make men and women more accountable and responsible.
"In the past, men could basically love women and
leave them - DNA testing can tie them down. Whether it will slow things in
terms of promiscuity or infidelity is hard to tell.
"But it raises some
bigger, more fundamental questions.
"At the moment, marriage
is probably one of the most easily broken contracts we have; it is harder to
get fired from a job."
Mr. Muehlenberg said the
advent of "no-fault" divorce was being readdressed in the UK and the
US.
It was only a matter of time until Australian
law turned again, with the DNA weapon, to assign some responsibility to
marriage breakdown.
"There is a swing back
on to more obligations. legally. in marriage," Mr. Muehlenberg said.
But, Ms Lanteri warned,
before we got caught in punitive rewards and legal remedies in court, it was
important not to forget the children and the impact judicial action had on
them.
"The child has only ever
known one person as the father, who treated them as their father," she
said.
"To wake up one morning
and find themselves rejected through no fault of their own is very hard.
"It's too easy to lose
sight of the impact this has on the children
"It is a very
devastating thing. if the person they think is their father just stops loving
them."
SADLY, the true father is often either never known or
does not want a relationship with a child born some years before and raised by another
man.
Ms Lanteri said some men,
after discovering a child is not theirs, want to continue a relationship with
the child but are prevented from doing so by the mother.
After reporting the case on
Tuesday, the Herald Sun has received calls from at least three other men
willing to pursue similar actions.
Ms Lanteri also expects the
Melbourne case to invite a rash of others.
"They might think it's worth a try, she
said. "And I think the possibility of getting back not just the money they
paid (to support a child) but something on top of that might be Of interest to
a lot of people.