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Who's your daddy?

Australian Broadcasting Corporation
Broadcast: November 22, 2004

Reporter: Emma Alberici

KERRY O'BRIEN: Last year, more than 3,000 DNA paternity tests were commissioned by Australian men, and in almost a quarter of those cases, the test revealed that not only had their partners been unfaithful, but the children they thought were theirs had been sired by someone else.

Next week, the Supreme Court in Victoria will hear an appeal from a woman who was successfully sued by her ex-husband for so-called paternity fraud.

Emma Alberici examines the ramifications of this landmark case and, in the interests of the children concerned, we've masked identities, changed names and used dramatisations to tell their stories.

PETER: I was pretty happy with the family and that.

I was married and had four kids and everything was pretty good.

I had a good job and, um, I think I was pretty complete, actually, my life with four kids.

EMMA ALBERICI: Peter's life had appeared so complete that after three children and, with the full support of his wife, he had a vasectomy.

But six months later his wife was pregnant again, blaming the doctor for botching his operation.

That was six years ago, when Peter was happily married.

His mother wasn't as trusting and after her son's recent divorce she picked some strands from the youngest child's hair and sent them, together with some nail clippings, to Melbourne's DNA Solutions lab for testing.

PETER: The ex-wife told me that it was still my child and the vasectomy had failed.

EMMA ALBERICI: And you believed that?

PETER: Yeah, why shouldn't I?

EMMA ALBERICI: The results confirmed his mother's suspicions - the 6-year-old was not her biological granddaughter.

Days later she had her youngest grandson tested too, taking saliva swabs and sending them off in the mail.

Tests on all four children revealed that only the eldest boy was biologically his.

What happened to you at that point?

PETER: I was a mess.

I was shattered.

EMMA ALBERICI: Now the Law Reform Commission wants to restrict access to DNA paternity testing, despite the fact that one in four tests, like Peter's, is a biological mismatch.

PROFESSOR LOANE SKENE, UNIVERSITY OF MELBOURNE: And there's no counselling being given to them and they're getting this devastating information and they may go and commit suicide or be violent towards the mother of the child.

That's the situation that we need the law to protect by a requirement that the mother's consent is necessary as well as the father's.

EMMA ALBERICI: Loane Skene is a professor of law at Melbourne University and was a leading consultant on the Law Reform Commission report which calls for a new criminal offence to prohibit anyone from having children's DNA mapped without the consent of both parents or subject to a court order.

Of the 3,000 tests that were carried out last year in Australia, just 221 of them were ordered by the court.

Men's Rights Agency spokeswoman Sue Price believes the ALRC has not considered those presumed fathers who have nothing to gain but peace of mind.

SUE PRICE,MEN'S RIGHTS AGENCY: Many mothers are reluctant to agree to paternity test because, of course, if they do agree and the child turns out not to be the father's - the man's child - they face prosecution, as in the case of Liam McGill.

TONY EASTLEY READS NEWS: A Melbourne man has successfully sued his former wife after discovering he wasn't the biological father of two of their children.

EMMA ALBERICI: Two years ago Liam McGill became the first Australian to successfully sue his ex-wife for paternity fraud.

The Victorian Supreme Court awarded him $70,000 for pain and suffering which is now up for appeal.

But the court could do nothing to compensate him he'd paid in child support over eight years for two children who were proved not to be his.

Peter will be watching the appeal closely on November 29th as he, too, intends to sue.

PETER: The big part tells me not to let her get away with it, because it is so wrong.

EMMA ALBERICI: Do you think the other bloke should take a bit of responsibility here?

PETER: Yeah, not only has he lied to me.

But he's lied to the children and lied to his family as well.

EMMA ALBERICI: But like Liam McGill, he can only sue for pain and suffering, despite making child support payments for children who were not biologically his, there is no provision in the law to recover that.

PROFESSOR LOANE SKENE: I think there is a good argument, while we have the law as it is, at the moment where the liability to pay maintenance is based on biological connection, but if there isn't a biological connection and the man had no duty to pay that money then he should be recompensed.

EMMA ALBERICI: While Loane Skene has some sympathy for the men who are betrayed by their wives, she's convinced that all are better served where mutual consent for DNA testing is mandatory - something that would make it more difficult for other men to follow Peter's path.

PETER: You're supposed to have both parties' consent but I don't think I would have got consent from the other side whatsoever.


PETER: She would have known that she'd been deceiving me.

MICHAEL GILDING, CENTRE FOR EMERGING TECHNOLOGIES: If we become a lot more prohibitive or restrictive about access to these tests, I think a lot of the tests will go offshore.

EMMA ALBERICI: Wedged in the middle of the debate between angry men and the Law Reform Commission is Michael Guilding from the Centre for Emerging Technologies.

He disagrees with the notion of mutual consent.

MICHAEL GILDING: Another pathway might be drawing a distinction between knowledge and consent.

According to this scenario we say that both parents have the right to the knowledge that a test is being undertaken but a parent can't necessarily stop that test being undertaken.

PROFESSOR LOANE SKENE: I think that we shouldn't be talking about rights in these circumstances.

It's really a balancing of interests.

EMMA ALBERICI: Professor Loane Skene believes a child's interest is better served by keeping them in a happy family than by facilitating access to knowledge that could spoil that harmony.

Shouldn't children have a right to know their bloodlines, if for no other reason so they have their medical history, indeed they don't end up marrying a sibling they didn't know about?

PROFESSOR LOANE SKENE: Well, if this were the case, one might mount an argument for parentage testing immediately on birth for all children.

Since we know anecdotally that quite a large percentage of children are not in fact the biological child of the people they think is their father, why upset all of those children in circumstances where they might have happy lives?

EMMA ALBERICI: It's an attitude that rankles Sue Price of the Men's Right Agency in Brisbane which receives scores of letters each week from men looking for help when a wife is unfaithful and then makes them pay to raise another man's children.

They support the notion of paternity testing at birth to ensure that what's written on a birth certificate is accurate.

SUE PRICE: Surely we shouldn't be supporting a person who is committing a fraud and deceiving someone into believing they are the father of the child?

Surely we should be supporting his right to know whether he is the father and also the child's right to know who is their father?

EMMA ALBERICI: While the family is happy, the Law Reform Commission says a secret that might disrupt that shouldn't be told.

But concealing a lie for so long can have dreadful consequences when it's unearthed, as it did for Peter.

The news that three of his four children were not biologically his led to a suicide attempt and at just 36 even if he does find another partner the vasectomy means he's unlikely to sire any more children.

Do your children know the truth?

PROFESSOR LOANE SKENE: As far as I know, no.

I voluntarily decided not the see them so they wouldn't see me in this situation.

EMMA ALBERICI: What's situation is that?

PETER: Being more or less a mental wreck.

It's pretty hard for them to understand why their father's crying and carrying on, totally lost.

EMMA ALBERICI: Why do you or the kids need to know this?

PETER: They can't to go through life not knowing the truth.

EMMA ALBERICI: Does it change anything?

PETER: My feelings towards them?

None whatsoever, not towards the children, anyway.