Sydney Morning Herald
Monday, February 19, 2001

Father's choice

In the final of her two part series, Bettina Arndt writes that resentment forged through the demands of child support is driving more men to ask: is this child really mine?

By Bettina Arndt
Sydney Morning Herald

Part one: Whose sperm is it anyway?

Two years ago, a divorced Melbourne real estate agent applied to the Family Court for permission to seek DNA testing to determine whether he was the biological father to his 14-year-old daughter.

He was shocked by the attitude of the court. "They treated me as if I was committing a crime. The Registrar said my action in seeking paternity testing was scurrilous," he said.

It's a common reaction. The assumption seems to be that the only reason that a man would wish to determine paternity would be to avoid child-support liabilities - which puts him firmly in the camp of the deadbeat dads.

The reality is far more complex. While concerns about child support account for some of the current rush of people seeking DNA paternity testing - lawyers specialising in family law estimate about 3,000 a year in Australia are now wanting such tests - just as common are cases where the issue of paternity is first raised by a wife when she leaves the marriage, as an attempt to deny the man contact with the children.

Even when child support is the driving force, the man seeking testing often has no intention of walking away from his responsibilities if the child proves not to be his own.

"If she wasn't my biological daughter, there's no way I would ... have stopped seeing her or supporting her," says Frank, a real estate agent. (Like most of the people quoted in this story, the man's identity is disguised due to the Family Court's secrecy provisions).

For 12 years, Frank had been privately paying child support and having regular contact with his daughter. Then his ex-wife left her second husband and moved interstate with his daughter and her other children - she'd met a new man via the Internet - and went to court to seek more child support.

Frank ended up paying $9,000 in court costs and the court assessed his child support at double the amount due under the child-support formula, through a different analysis of his bonus and fringe benefit receipts.

It drove Frank to finally test his doubts about paternity of his child - he'd long known his wife had been unfaithful during their marriage.

It turned out the child was his - a verdict he greeted with relief since he's very close to his daughter and naturally prefers that he is her real father. But he still feels he would have liked to have some choice about how much he pays to support her. "If she wasn't mine, at least they wouldn't have been able to force me to pay more than was fair."

The issue of fairness is at the heart of the resentment many men feel about paying child support, resentment which will sometimes prompt men to seek paternity testing. Malcolm Mathias, from Fathers for Family Equity, says the demands of the child-support system can mean a life sentence into poverty.

"It is all very well to say men shouldn't worry whether the children are theirs - but when they are confronted by a child-care system where men are required to pay far more than the actual costs of children and get little or no relief for costs of contact, you can hardly expect them to pay for children that are not theirs. Most step-parents value the relationship with their children and would be happy to pay to support them - provided it was a fair amount," he says.

But they may not have any choice. Most men seem to assume that if they can prove they are not the biological father they will no longer be liable for support. The true situation is far more complex. Occasionally a man may be required to pay child support under the "stepfather" provision, particularly if he is in a well-established relationship with his children. The mother may also be required to take action to obtain child support from the biological father.

In March last year the Child Support Agency announced new guidelines regarding child-support refunds which require that a man in these circumstances get a court order for the mother to repay the money. Since then there have been a handful of court decisions (usually in local courts) requiring the agency to refund the money and it has done so.

But even if the agency repays the money, the liability then passes to the mother - which isn't exactly likely to promote amicable relations with the father. And as always, the goodwill of the mother is critical, given the power of women to deny fathers contact with their children.

Among the men seeking paternity testing to try to end child support, it appears only a minority willingly sever relations with their children. Alan hasn't seen his three children since 1999. A former public servant, the Victorian man is on a disability pension as a result of a breakdown he attributes to the stress of his ongoing battles over child support. At one stage his pay was garnisheed leaving him with a mere $132 a week, as a result of what he believes to be a CSA miscalculation of liability brought about by inclusion of superannuation benefits in his taxable income. After an eight-year battle over child support, which left him significantly in debt to the agency, it was finally shown that he was not the biological father of two of his three children.

It has since been determined he is no longer liable for much of his debt, but as a result, his ex-wife is furious, denying contact and also refusing to name the biological father. In these circumstances Alan feels he has no hope of seeing the children and no money to go to court to try to get orders to see them. The man is in despair. "It's killing me not seeing the kids. Not a day goes by without me thinking about them," he says, bursting into tears at the thought of his little girl's forthcoming birthday.

Although the Family Court claims there should be no link between the payment of child support and contact with children - and will usually support a man's right to see children even if he is no longer required to pay - in reality the woman holds the cards. Given that the orders for contact are so rarely enforced, she knows she can deny contact if it doesn't suit her.

With regard to child support, Australian men in this circumstance are still better off than in America where most States require men in established paternal relationships with children to keep paying child support even after proof they are not the biological father. However, last year Ohio joined Colorado, Iowa and Louisiana in passing laws which allow men to stop child-support payments if it can be shown they are not the biological fathers.

Last month a British man was given leave by the High Court to sue his former lover for fraud for pretending he was the father to their son. He's seeking damages of £250,000 ($687,835) to cover the costs of bringing up the child and as compensation for his emotional distress. Four similar cases are in the US courts.

But while child-support issues have dominated public debate over paternity testing, many men are forced to confront the paternity issue when their ex-partners try to deny contact with their children, claiming the men are not the biological fathers.

Jason, a Melbourne engineer, estimates that over the past 12 years his ex-partner has spent more than $60,000 in legal fees trying to cut him out of his son's life. She first told him the child wasn't his when, after their separation, she sought to deny him contact. In the numerous legal jousts which followed, his costs have been comparatively modest ($15,000). He's won every step of the way and she's usually ended up paying his costs - all this, despite the fact that his son proved not to be his biological child.

The Family Court has consistently supported Jason's right to have regular contact and denied the mother permission to remove him from the birth certificate after the 14-year-old boy said he still wanted Jason to be named as his father. Yet the mother thwarted the court order and had Jason's name deleted - an act which was described as "pretty low" by the judge in a subsequent hearing. Jason has paid in excess of $148,000 in financial support for the child over the 12-year period.

In one sense Jason is lucky since his battles have only been with his ex-partner - his son's biological father is overseas and apparently uninterested in the child. There are other men who, having discovered they were cuckolded in their marriages, then find the intruder seeking contact with the child through the courts.

In the United States there has been a rash of such cases. While the American courts have generally been reluctant to allow paternity to be challenged in an intact marriage - seeing it as in the child's interests to preserve the relationship with a known father - there's a possibility contact could be allowed with the biological father once the marriage breaks up, but only when there is an established relationship with the child.

Dr Wolfgang Hirczy is a law professor at the University of Houston. In a paper published on the Murdoch University Electronic Journal of Law in 1995, he argued it will often be against children's interests to support the rights of the biological father in such circumstances if the result is the children suffer the loss of legitimacy status and loss of continuity in identity, as well as possible loss of financial support from the man they have always known as father. He's dismissive of the modern argument that these losses are outweighed by the need for children to know their true origins, claiming the psychological evidence clearly shows that "unlike adults, children have no psychological conceptions of relationship by blood-tie until quite late in their development".

Apart from questioning the value of forcing a young child into contact with a man who may have been mum's one-night-stand, Hirczy raised the intriguing moral position of the law supporting paternity rights of men who achieve fatherhood through adultery. Similar cases are currently winding their way through the Australian courts.

Patrick Parkinson, professor of law at Sydney University, believes the Australian Family Court judges will find it hard to resist arguments about children's right to know. "The court would recognise the importance of the child knowing who the biological father is, even if the man's relationship with the mother was transient. Apart from the emotional issues associated with a child's identity, knowledge of biological parentage is important for medical reasons."

Copyright © 2001. The Sydney Morning Herald