Whose baby? Law must decide....
Sunday, 10. December 2006, 01:29:42
Herald Sun (Melbourne)
7 December 2006
Whose baby? Law must decide
By Sophie Mirabella
For those who can, having a child is probably the most important thing they
will ever do in their life.
Quite rightly, myriad laws impose legal and financial obligations on parents.
The public reaction to the recent case of Magill v Magill has rightly
centred on the need to remove any obstacles preventing an alleged parent
from ascertaining whether they are the parent of a child.
In an era of unobtrusive DNA testing, common sense should prevail to allow
an alleged parent the automatic right to have access to modern technology
to ascertain the parentage of a child.
Currently, an alleged father's obligation to pay child support and the
distribution of assets following a family break-up is determined by
reference to various factors, including the number of their children.
If alleged fathers can have DNA testing as early as possible, it may avoid
unnecessary emotional trauma and a man being required to make payments
under a mistake.
At present, where DNA testing proves a child was not fathered by the man
alleged, judicial discretion can still prevent him from later recovering
child support and other amounts mistakenly paid or given over.
Under the present system, a mother can place an obstacle in the path of an
alleged father by not giving her consent for a DNA test.
The mother should not be permitted to hinder the process because she will
often have a vested interest in seeking to prevent the DNA testing.
Recent cases have shown there is reluctance on the part of judges to grant
men permission for DNA testing.
This is often under the justification that it is not in the best interests
of the child to ascertain with certainty who the father of the child is.
This logic is totally flawed.
There can be no doubt it is in a child's interest to know who their
biological parents are. It is an essential part of any person's identity.
The case of Magill v Magill has not only excluded men, who have been
deceived about parentage from suing a former partner for such deceit, it
goes further.
The no-fault provisions of divorce would appear to have been used to
justify permitting a man to be deceived and continue to be deceived as to
paternity.
Non-disclosure of adultery should not be held more important than
prevention of emotional and financial damage inflicted upon a man who has
been deceived into believing he is the father of a child.
There are no consequences for a woman deceiving a man in such a cruel way.
This approach will only encourage the Family Court to be even more
reluctant to exercise its discretion to allow an alleged father access to
DNA testing.
It has even been put to me that if we allow alleged fathers to have such
easy access to DNA testing, they will not be liable to pay child support
and the Government will have to pick up the bill.
This of all the arguments is the most morally bankrupt.
A GOVERNMENT should not shift the cost of raising a child on to a man just
because he had a relationship with, or was married to a woman, who had a
child that was not his.
Having said that, if DNA testing were readily available, I suspect a
significant majority of alleged fathers would choose not to access it and
that would be their choice.
It's time for the relevant laws to be changed to reflect fairness and
common sense.
---
Sophie Mirabella is federal member for Indi.
7 December 2006
Whose baby? Law must decide
By Sophie Mirabella
For those who can, having a child is probably the most important thing they
will ever do in their life.
Quite rightly, myriad laws impose legal and financial obligations on parents.
The public reaction to the recent case of Magill v Magill has rightly
centred on the need to remove any obstacles preventing an alleged parent
from ascertaining whether they are the parent of a child.
In an era of unobtrusive DNA testing, common sense should prevail to allow
an alleged parent the automatic right to have access to modern technology
to ascertain the parentage of a child.
Currently, an alleged father's obligation to pay child support and the
distribution of assets following a family break-up is determined by
reference to various factors, including the number of their children.
If alleged fathers can have DNA testing as early as possible, it may avoid
unnecessary emotional trauma and a man being required to make payments
under a mistake.
At present, where DNA testing proves a child was not fathered by the man
alleged, judicial discretion can still prevent him from later recovering
child support and other amounts mistakenly paid or given over.
Under the present system, a mother can place an obstacle in the path of an
alleged father by not giving her consent for a DNA test.
The mother should not be permitted to hinder the process because she will
often have a vested interest in seeking to prevent the DNA testing.
Recent cases have shown there is reluctance on the part of judges to grant
men permission for DNA testing.
This is often under the justification that it is not in the best interests
of the child to ascertain with certainty who the father of the child is.
This logic is totally flawed.
There can be no doubt it is in a child's interest to know who their
biological parents are. It is an essential part of any person's identity.
The case of Magill v Magill has not only excluded men, who have been
deceived about parentage from suing a former partner for such deceit, it
goes further.
The no-fault provisions of divorce would appear to have been used to
justify permitting a man to be deceived and continue to be deceived as to
paternity.
Non-disclosure of adultery should not be held more important than
prevention of emotional and financial damage inflicted upon a man who has
been deceived into believing he is the father of a child.
There are no consequences for a woman deceiving a man in such a cruel way.
This approach will only encourage the Family Court to be even more
reluctant to exercise its discretion to allow an alleged father access to
DNA testing.
It has even been put to me that if we allow alleged fathers to have such
easy access to DNA testing, they will not be liable to pay child support
and the Government will have to pick up the bill.
This of all the arguments is the most morally bankrupt.
A GOVERNMENT should not shift the cost of raising a child on to a man just
because he had a relationship with, or was married to a woman, who had a
child that was not his.
Having said that, if DNA testing were readily available, I suspect a
significant majority of alleged fathers would choose not to access it and
that would be their choice.
It's time for the relevant laws to be changed to reflect fairness and
common sense.
---
Sophie Mirabella is federal member for Indi.
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