Courier Mail

Birth of the Blues

By Wayne Smith
20June02
The Courier Mail

Men who suspect a child is not really theirs can now discover the truth using DNA technology, but it can be a two-edged sword, writes Wayne Smith.

Michelle Dent has learnt to keep her voice completely neutral when advising clients of the outcome of their DNA paternity tests.

Like a doctor about to inform a woman that she is pregnant, Dent, the customer service officer for Melbourne-based company DNA Solutions never quite knows whether she is delivering the most joyful news or the most devastating.

For a young man confronted unexpectedly by a "one-night stand" nursing a baby the mother claims is theirs, the news he is not the biological father can trigger sheer, blissful relief. Yet that same news delivered to a man who has raised a child from birth only to discover - often as the result of a taunt blurted out by his wife in the midst of an argument - that he is not the real father could be enough to drive him to suicide.

"You give them the news... then you get The Big Pause," Dent says. "I don't like leaving people, out on a limb, so I will say: 'Are you OK? Is this what you were expecting?'"

There are occasions when she has to keep her face neutral, along with her voice - as, for instance, when she has to tell a woman that neither of the two male DNA samples she has submitted along with that of her child is a match, and might there perhaps be a third candidate for fatherhood?

Mostly, however, paternity tests are anything but a smiling matter. Usually they are a telltale sign of a relationship in crisis. The two warring partners are likely to be emotional and quite possibly spiteful and vindictive - not the sort of terrain into which the hand grenade of a DNA test result can casually be lobbed without someone getting horribly wounded, usually the child.

It is for that reason that the Chief Justice of the Family Court, Alastair Nicholson, has called for legislation to make it a criminal offence to carry out paternity testing by stealth, using a child's DNA sample without permission.

In theory, Nicholson has no argument with a man - it is mostly men - discreetly plucking a hair from the baby's head and sending it off to be tested, along with one of his own and the necessary $575. If the tests confirm that his suspicions the child might not be his are groundless - which happens in 72 percent of cases, according to US statistics - no damage is done to the father-child relationship and everything goes on smoothly.

"The question is: Is that going to happen?" asked the Chief. Justice yesterday. "Because often 'these issues tend to arise in the midst of a bitter dispute and it requires in enormous amount of discretion on the part of the person concerned not to blurt it (the test result) out one way or another. In one sense yes, there are advantages (to the discreet approach). But I just don't, believe that's human nature."

Still, it is deeply embedded in human nature for a man to want to know that a baby is his, especially if there are grounds, for him. to doubt his wife/partner's fidelity. It is human nature, moreover, to want to avoid the court system wherever possible, not just to sidestep the hefty costs involved - about $2,300 according to one estimate - but to avoid hanging one's most intimate emotional laundry out In public.

It is for that reason that there were precisely 103 Family Court-ordered DNA paternity tests carried out in 2001 - 02 - 18 of them on Queenslanders - but about 3000 unsanctioned private tests.

That figure surprises and alarms Nicholson, and leaves him wondering whether society might not be attaching too much significance to biological fatherhood when social fatherhood - nurturing, loving and raising the child, irrespective of who planted the seed - is far more important.

Indeed, he almost appears to, be advocating a "let sleeping dogs lie" approach by men who may have suspicions about paternity.

"It's a very difficult one, once sus-picions arise, I suppose," Nicholson says. "But you wonder how – much good it does. It's no doubt very rele- vant to the dispute between the parents. but it seems to forget the effect on the child."

But the Chief Justice's argument can be attacked on the very same grounds he used to attack the concept of discreet, unauthorised DNA testing. that it's fine in theory but takes no account of human nature.

Men's Rights Agency spokeswoman Sue Price argues that putting roadblocks – whether they be legislative or emotional - in the way of fathers' access to DNA testing is "morally repugnant".

"Our society is not so devoid of morals that we are prepared to condone the behaviour of a mother who has an affair, resulting in the birth of a child to this other man, and then tries to pass off the child as belonging to her husband/partner," Price wrote in a recent MRA newsletter. "To do so is to participate in and encourage 'paternity fraud'."

It may be a little self-serving, but men's groups do raise a valid point when they argue that it may be In the child's long-term 'Interests for the truth to come out. That way the child can bond while still young with its natural father.

And if governments are slowly coming around to accepting there may be grounds for lifting the strict privacy provisions attached to IVF programs, to allow children to trace their heritage, why are such punitive measures as criminal prosecutions being proposed for putative fathers desperate to find their own truths?

Ultimately the argument comes down to a simple choice. Whose rights prevail in circumstances such as these the man's or the child's?

Nicholson had not the slightest doubt that the child's rights are more important, dismissing the "paternity fraud" argument as one reflective of a view "that largely disappeared In the 19th century".

If that is so, there are an awful lot, of 19th-century men currently accessing 21st-century paternity proving technology.

"It's going to hurt the kids, yes," acknowledged Barry Williams federal president of Lone Fathers., "But how can they rule that because a man was deceived that he must be shackled to that all his life - for something that was not his doing?"

Certainly DNA testing is providing men with the, means to strike back at women they believe have exploited and abused a legal system tilted - so most men appearing before the Family Court would argue - in favour of the mother.

There currently is a case before a Victorian court of a former police officer suing his ex-wife to recover $30,000 he paid in maintenance for a child that DNA testing has established is not his. A Canberra man also has raised the issue of why the Child Support Agency, which monitors child, support payments, has not initiated legal action against his ex-wife despite ample evidence she fraudulently deceived him into believing a child was his and then for nine years after their divorce: accepted maintenance from him.

Nicholson conceded it might be worth investigating whether some process could be established to reclaim money paid into the CSA when It has been established that the man had been defrauded, but he also had some disconcerting news for any "father" who now discovers he has raised another man's child.

"Under the Family Law Act, if the child is brought up as the child of someone who is then found subsequently not to be the natural father, they still have a financial obligation to support the child anyway," he says. "Now, it's a secondary financial obligation. The biological father has the primary obligation.

"But first you've got to find the biological father, and second it presupposes that person has some money - which are a couple of big suppositions."

Nor could the Chief Justice quite decide where the Brisbane in the second case study at right (Bill’s story) might fit into the legal system with his plan to sue the family friend who, had an affair with his wife, fathering two girls which the cuckolded husband then raised as his own. Yet it is clear that DNA testing, as in so many areas of the law is rewriting the ground rules of paternity suits. The common theme raised by all three men in the above cases is that money is not what is motivating their legal actions. "It's the principle," says the former policeman. "If someone doesn't stand up it is just going to continue."

Lone Fathers president Williams, indeed, is organising a national convention of parenting groups in, Canberra on August 24-25 to address a range of issues raised by DNA technology.

An indications are that Australia will frame its DNA paternity policy much along the lines of the model being developed by the British watchdog body, the Human Genetics Commission.

At first glance, the HGC recommendations accord with the hardline approach suggested by Nicholson. "We recommend that consideration be given to the creation of a criminal offence of the non-consensual or deceitful obtaining and/or analysis of personal geneetic information for non-medical purposes," the HGC report says.

But then it continues: "The general duty to maintain the confidential nature of personal genetic information is not an absolute one. We note circumstances where it may not be appropriate, such as where consent is given or where it is in the interests of the patient, of relatives, or of the wider public."

Clearly the UK is much like Australia: still fumbling towards answers to questions not dreamt of a decade ago.

One question, however, is as old as mankind itself.

"Is that really my child?"

CASE STUDIES

#1 Not for payback

Joe (not his real name) was deceived into fatherhood just as he was deceived into marriage.

He had broken up with his girlfriend but one day there she was again on his doorstep pregnant. A shotgun wedding was held, followed three months later by the birth of a boy.

Nearly five years later, after the arrival of another boy, the marriage broke up. Initially his former wife took only her eldest son with her, but eventually Joe realised that because of his job he couldn't provide a stable home for the younger boy and so he too went to live with his mother. Joe's maintenance payments rose accordingly.

Four years ago, the older boy aggressively confronted him, demanding to know if he was really his father. The question stung Joe like a slap across the face. Clearly the boy had overheard something and was confused and angry.

Joe's ex-wife refused to discuss the matter. Eventually, two years later, when the boy was 13, Joe secured a Family Court order for a DNA test. The results devastated him and the boy - Joe was not the father. He had been duped into raising another man's son.

That didn't affect the way he felt about the boy. He loved him still. But the boy rejected him utterly and for the past 18 months, there has been no contact between them.

The moment the Family Court ruled that he wasn't the father, a lawyer from the Child. Support Agency approached Joe and told him the CSA would not repay him any of the maintenance he had paid for his "son".

"Basically, he told me if I wanted to sue, I had to take on the Federal Government," Joe says.

He could sue his ex-wife - an action he believes the CSA should be taking given the clear evidence of fraud - but he has decided instead to just get on, with his life.

"Still, if I had a bit more money, a bit more resolve, I’d enjoy taking her to court," he says. "Not for revenge, but for accountability. She knew before we were married I wasn't the father. I've been told that by her and by friends. The real father was a DJ in a nightclub."

#2 Living a lie

Bill, (not his real name) doesn't want to create a legal precedent, but he will if he goes ahead with plans to sue the man who fathered the two girls he raised as his own.

Until four years ago, he had not the faintest suspicion he was not the biological father of the two youngest of his five children. Not until he went to visit one of his daughters after the birth of her own child and unexpectedly met an old family friend did he have a clue something was amiss.

Then his daughter's fiance blithely told him he knew all about the situation. Bill did not pursue the matter.

"But I wondered what the flipping hell he meant by that, and, finally, I went back and asked him," Bill says. That's when he discovered the "family friend” was at the hospital in the role of grandfather.

"It turned out everybody in the family knew but my son and I," he says. "I was just devastated. I felt so deceived. We were only ever going to have three children but then, after the third child, the other two came along. Your whole life gets changed around and I suppose the three other kids missed out on things I could otherwise have given them."

Not that his relationship with the two youngest girls is anything but entirely loving, even when DNA testing confirmed he was not their biological father.

"The girls just adore me," Bill says. "Their real father, they hate him and have nothing to do with him.

'But I lie in bed at night and look back and I see patterns emerging and I say,'Oh, now I know why that happened.' And I realise I've just been living a lie." The paternity results killed what was left of his relationship with his former wife. She has no money he could take from her, but the "old family friend" does, and Bill wants to pursue him for the cost of raising the two children for whom he should have taken responsibility.

"There is no legal precedent for it but I'm still going to pursue it anyway," he says.

© 2002 Queensland Newspapers