Children's Wishes and Feelings Prevail in Bitter Paternity Dispute

By July 16, 2020Library

In the throes of family breakdown, parents often focus on their own personal battles – but it is the best interests of their children that are always uppermost in family judges’ minds. In a case on point, the wishes and feelings of two teenagers proved the decisive factor in a bitter paternity dispute.

The man who brought up the children, aged 13 and 15, suspected that they were not in fact his progeny. He believed that their true father was a man his then wife, the children’s mother, had met at work. Since his divorce, he had, amongst other things, subjected the boy and girl to off-the-shelf DNA tests, taking mouth swabs under the pretence of checking their dental hygiene.

In seeking a declaration under Section 55A of the Family Law Act 1986 that he was not the children’s father, he pointed to a number of factors, including those test results and the alleged physical resemblance between the children and the putative father. Although he was paying maintenance in respect of the children, he insisted that he had their welfare at heart and denied that his application was financially motivated.

Ruling on the matter, a judge noted the children’s feelings of violation and confusion at having been subjected to DNA tests without their knowledge. Those tests having been performed in uncontrolled conditions, he declined to take their results into account. The children were mature enough for their wishes and feelings to be given great weight and both had declined to undergo further forensic tests.

The judge acknowledged that there was evidence indicating that the man might not be their father and that an eventual resolution of the paternity issue was likely to be in their best interests. Requiring him to meet the legal obligations of fatherhood in respect of children that might not be his would potentially amount to a violation of his human right to respect for his home and family life.

Striking a balance, the judge directed the man, the children’s mother and the putative father to provide DNA samples for testing. The results of those tests would be sealed in an envelope and stored securely. The children were also required to provide DNA samples, but that part of the judge’s order was stayed indefinitely so that they would not have to comply with it until they felt ready to do so.

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