Senate of Australia - The Family Law Amendment Bill 2005

Hansard, May 11, 2005

Page 36 ( page 52 on pdf file)

Senator GREIG (Western Australia) (12.01 pm) "The Family Law Amendment Bill 2005 makes a range of recommendations to substantive and procedural aspects of the family law regime. " ............

"Part 14 is unquestionably the most controversial aspect of the bill. It will enable a person who discovers that they are not the parent of a child for whom they have made child maintenance payments to apply to the court to recover those payments. I will return to the Democrats concerns with aspects of that in a moment. Part 15 enables judicial registrars to vary parenting orders in contravention proceedings where contravention without reasonable excuse is not proved. Finally, part 16 amends the Bankruptcy Act to provide that certain provisions which currently apply to the Family Court apply equally to the Family Court of Western Australia. This is because of the unique situation of the Family Court of Australia having no jurisdiction in WA, my home state. All family law matters there are dealt with by the Family Court of Western Australia.

It is clear then that many of the changes proposed by this bill are non-controversial and indeed welcome. This was reflected very much in the evidence of various organisations and individuals who made submissions to the committee inquiry into the provisions of the bill in 2004. The committee s report indicates that no opposition was expressed in relation to a majority of the provisions in the bill. Serious concerns, however, were expressed in relation to the power to order the repayment of child maintenance to a person who has wrongfully paid such maintenance believing that they are a parent of the child when in fact they are not. We Democrats have some deep concerns about these changes. While we are not saying that people who have been mistaken, or perhaps in some cases misled, about being a parent of the child ought not to have an entitlement to recover moneys that they have wrongfully been asked to pay through child maintenance, we are nonetheless concerned about the potential adverse financial impact this may have on the child concerned.

The New South Wales Commission for Children and Young People expressed concern about the significant financial burden that such a repayment order might have on the parent and the family and argued that there was a need for the court to ensure that the best interests of the child are safeguarded. The National Network of Women s Legal Services made this point: it seems unfair to bring in this provision when women cannot claim back payments of retrospective child support. Therefore, while a woman could be made to pay back a wrongly identified man who is not the biological father she cannot then make a retrospective claim against the real father.

The National Council of Single Mothers & their Children ( APF.org editor's note : their slogan incredibly is "Single Mothers : Half the couple, twice the parent"  ) recommended: that this provision should only apply where it can be established, on the balance of probabilities, that the misidentification of the paying parent has knowingly and without duress involved a deliberate course of deception for the purpose of claiming child support. ( APF.org editor's note : The onus of proof should be on the woman to know absolutely who fathered her potential child. Only she knows if she has had multiple sex partners or cheated on her husband or boyfriend.  Non-invasive paternity testing is now available 8 weeks into a pregnancy when a woman still has choices if she faces uncertainty about the identity of her potential child's father because of her irresponsibility. 

Some children's rights organisations in North America even advocate for mandatory non-invasive paternity testing, a simple blood test, before birth to support the child's right to identity, parental biological major medical information and a relationship with both biological parents.

The position of many women's groups is that ANY man should pay for their irresponsibility or deceit, should they lie about birth control or purposely get pregnant and choose to give birth and keep the child against the reproductive choice of the male sex partner.)

As I spoke of, and detailed in my minority report to this bill, I am not satisfied that this recommendation would address the issues we are concerned about. Clearly there is a distinction in the minds of many between situations in which the mother of a child has been deceptive about the child s father and situations where there is a genuine mistake. Nevertheless, I think there are compelling reasons not to enshrine any such distinction in the legislation. For example, I note that there is already scope for a person who is not a parent of the child to recover financial loss and damages if they have paid child maintenance in circumstances involving deception. ( APF.org editor's note : "genuine mistake". How about "irresponsible mistake". According to this logic, I suppose that we should eliminate all criminal prosecutions for deceit and make the only recourse for victims, a civil lawsuit against the perpetrator which may result in getting no money back after "winning" and spending tens of thousands of dollars on non-recoverable legal fees. Of course, the legal fees are payable before seeking civil recourse in court. Only those with $10,000 cash sitting in the bank will get justice. Proving that she purposely deceived the man is, at best, difficult.

What about the child's identity and relationship rights under the U.N. Convention on the Rights of the Child, specifically articles 7, 8 and 9 which provide for a child's identity and relationship rights with both their biological parents? I can only imagine that Senator Greig would prefer legislation that requires that every newborn baby protect his/her legal interests by taking mandatory legal action immediately after his/her birth to compel his/her own mother to find his/her father and prove identity. After all, that would be the best time to find the father, not 10 years later.

The child has the most legal interest in proving his/her identity. It is the government's responsibility to protect the children.

The Australian Law Reform Commission quite expressly addressed this in its report entitled Essentially yours: the protection of human genetic information in Australia. It documented the case of a Victorian man who successfully sued his ex-wife for fraud after discovering that two of the children born during their marriage were not his biological children. In that case, the Victorian County Court awarded the man $70,000 for general damages and economic loss. In other words, in cases involving fraud there is scope to seek more than just repayment of child maintenance. This suggests that the government s proposed changes are directed more at situations involving mistaken paternity than at situations involving deception.

A second and particular concern we have is that it will often, I think, be incredibly difficult to establish deliberate deception and this could generate volumes of litigation. Let us not forget that this is litigation which is likely to be very distressing for the child, even if the child is not directly involved in the proceedings in the sense of providing evidence for the court.  ( APF.org editor's note: That's why we should have government paid mandatory paternity testing by non-invasive means before birth. Women would make better, more responsible choices before and after conception if they know the deceit  will be uncovered in every case. Why should some children and men suffer because of the irresponsibility of some women who exclusively have the right to give or not give birth?)

Finally, and most importantly, whether or not deception is involved is really quite irrelevant when we are considering the financial impact on a child of an order to repay a significant amount of child maintenance. That is the primary concern that we have. The vital issue for the chamber to consider here and to remember when we are dealing with this legislation is that we are talking about child maintenance. This money has been paid for the express purpose of maintaining a child, and any repayment is likely to have an impact on that child. For this reason, the Democrats take the view that the court must and I stress must be required to consider the likely impact that its order will have on the maintenance of the child. ( APF.org editor's note: The federal government has the responsibility under the U.N. Convention on the Rights of the Child to provide financially for all children living in poverty. In effect, the federal government wants any man to pay instead of the federal government paying in cases in which the mother doesn't have sufficient financial means to raise the child. If the government had to pay to financial support these child victims of paternity fraud, the citizens would demand mandatory paternity testing for the purpose of eliminating paternity fraud before it happens and minimize these deceptions.)  In fact this must be the primary consideration. We find it quite extraordinary that there is no such requirement in the bill. If the court is not required to put the interests of the child first, there is a risk that the changes proposed in this bill will simply fuel divisive litigation between the parent and the mistaken parent of the child, with no consideration of the impact that that might have on the child concerned. ( APF.org editor's note: The child's best interests are served by knowing his/her identity and future parental major medical information and establishing these at or before birth. Maybe, the mother should have thought of all of this when she alone decided to give birth. Women alone determine whether or not they choose to become a parent should they become pregnant. See pro-choice for men at the bottom of this page.)

We are very concerned by the prescriptive language used in the bill, which I note the government is seeking to further tighten by way of fresh amendments. This leaves some confusion about whether the court has any discretion to decide not to make an order for repayment in circumstances where that would be the most just and equitable outcome. We note that the court is already empowered to make retrospective child maintenance orders against a person who is a parent of the child. We Democrats believe that the court should be required to turn its mind to the potential for such an order against the biological father if it proposes to make an order for repayment of maintenance to the mistaken father. Clearly this is a relevant consideration which will impact on the court s determination of what is just and equitable in the circumstances. Of course that will vary on a case-by-case basis. For example, it may be considered manifestly unjust for the court to make an order for repayment of a large sum of child maintenance by a low-income mother. However, if the court is aware of the identity of the biological father and there is scope for recovering the sum of money from him, this will no doubt affect the court s position as to whether a repayment order should be made. In these circumstances the court could even adjourn the mistaken father s application for repayment pending the outcome of the application for a child maintenance order against the biological father. For those reasons the Democrats believe it is very important for the court to consider the possibility of a child maintenance order against the biological father before making an order for repayment under the new provisions.( APF.org editor's note: Here we go again. Any man must pay, whether or not he decided and declared that he wished to be a father to that specific child.   Shouldn't men have the right to choose whether or not they become a parent if a woman becomes pregnant? Shouldn't men have equal rights to women?  You can't force a pregnant woman to become a parent against her will.)

We do acknowledge that this is not an easy issue to grapple with. It is a difficult area of law and there is a need for the court to have power to order the repayment of child maintenance to mistaken parents in cases where this would be just and equitable and there would be no significant adverse impact on the child. However, fundamentally, we believe it is essential that such a power be accompanied by appropriate safeguards. Those safeguards are absent from the current bill. Our amendments quite specifically are aimed at rectifying that. We find it very disappointing that a bill which makes so many constructive improvements to the Family Law Act is marred by provisions which have the potential to significantly threaten the maintenance of the wellbeing of some Australian children. I ask the Senate to give serious consideration to these issues and to work constructively in the committee stage to try and bring about the reforms that I have spoken of. ( APF.org editor's note:  All Australian children will be better off being born into a situation where both biological parents are properly identified by means of mandatory non-invasive paternity testing before birth. It is in the best interests of all children to have both their biological parents and any potential social father declare their intent to become a parent to that child before or shortly after the birth.

Apparently, the Honourable Senator is only concerned with the financial needs of the child and not the relationship needs of the child. This is a substantial flaw.)

Senator STOTT DESPOJA (South Australia) (12.15 pm) I wish to speak on the Family Law Amendment Bill 2005 that is before the Senate today. I will not reiterate the comments and concerns that have been outlined by my colleague Senator Brian Greig. He has done so on behalf of the Australian Democrats. I acknowledge that this is an emotional area of the law and a particularly complex one. Let us be honest: it is a fraught area. It is, at the best of times, an emotionally charged area of legislation, policy and indeed reality. Those of us in this chamber who have had dealings with the Family Court, whether as adults or as children, can recall and know very well just how hard this area of law is. I say that specifically in relation to the amendments that we are talking about today in part 14 of this legislation that is, the area relating to the recovery of maintenance payments. I wish to put on the record very briefly, before going on to discuss another issue, my concerns about some of the aspects of that provision.

While I acknowledge Senator Ludwig s comment that it is difficult to predict, for example, the permutations of how this particular provision will be played out and what it will result in and I also acknowledge that it is very important that the law and the courts in particular have the power of discretion in order to make the right judgments I do think this is a provision that may have unintended consequences. Some of those consequences will be emotionally charged. I hope some of them will not indeed be vexatious. I hope they will not be devastating, particularly for the single mothers in our community single mothers who seem to be finding it particularly difficult in recent days as a consequence of policy changes.

Today I wish to talk about the science involved in this legislation that is, the scientific issues around parentage testing: the very issue that underpins part 14 of this bill. When we are talking about cases that will involve recovery of maintenance payments as a consequence of parentage testing, we must ensure that the tests used to determine parentage are as accurate as they can be. We do this through strict technical regulation and it has to be conducted in an appropriate manner under strict ethical guidelines. My concern is that some of these guidelines and regulatory mechanisms are missing. That is an area of our law that the ALRC have pointed out, and it is an area of law with which I hope most of my colleagues in this chamber have some familiarity.

We know that the Family Law Regulations 1984 currently provide guidance for parentage tests conducted as a result of a court order under section 69W(1) of the Family Law Act 1975. The government updated these regulations late last year to require a recent photo of a donor of a bodily sample to be provided and to establish new consent forms. These changes were positive and they addressed some of the concerns raised in Australian Law Reform Commission report No. 96, Essentially yours: the protection of human genetic information in Australia. It specifically responded to recommendation 35-6 of that report. I talk about this report with some fondness because my work in relation to genetic privacy and discrimination helped to initiate and bring about that ALRC and AHEC investigation and report. I commend the report to senators in this chamber. It is a comprehensive, world class and very big report surrounding the issues of genetic testing.

Despite this first positive step by the government, the government has only implemented one of the seven recommendations on parentage testing contained in that report since the report was tabled in May 2003. That is two years ago now and time is getting on, not to mention that technology is advancing at a rapid rate. One particular recommendation in that report, 35-3, calls on the government to review part IIA of the Family Law Regulations 1984 to:

... ensure that the requirements for parentage testing meet the highest technical and ethical standards, particularly in relation to consent to testing, protecting the integrity of genetic samples, and providing information as to counselling. It is my understanding that this has not happened as yet. Madam Acting Deputy President, through you, I ask questions of the government to the minister on duty about this, particularly about the government s time line in relation to the implementation of these ALRC recommendations. Has the government considered the recommendations? Will the government be reporting on these recommendations? Why hasn t the government considered the recommendations within the context of this bill? If ever there was a bill that raised some ethical issues in relation to genetic testing generally and parentage testing specifically, this is it.

At the moment, the Therapeutic Goods Administration does not regulate DNA identification kits used for parentage testing. There is no legislative requirement for DNA parentage testing to be conducted only through NATA that is, the National Association of Testing Authorities accredited laboratories in this country. We do have accredited labs in this country, but there is no legislative requirement that DNA parentage testing in Australia be performed only through those NATA-accredited laboratories. The consent of mature age children aged 12 and over is not required under legislation for genetic testing in this country and, perhaps most concerning of all, there is no provision for parentage tests which do not comply with the relevant Family Law Regulations 1984 to be inadmissible in proceedings under the Family Law Act 1975.

I do not know how my colleagues respond to this, but these seem to me to be quite grave matters. They raise issues about how we acquire a sample of a person s DNA for the purpose of testing and for DNA parentage testing in particular. Are we seriously talking about going up to children and we have reports of this happening and taking a saliva sample, a strand of hair or whatever it may be, sending it off to a non-accredited lab and using it to determine whether or not a particular person is the father, as in the case of the legislation being dealt with today? That is admissible in court. Do we want to regulate this? Isn t it important that we consider this now, in the context of this bill?

We have seen the high-profile cases on 60 Minutes and other programs, but when it gets down to it I am terrified in some respects that this legislation will open the floodgates in a way that does not protect ethical and other issues. But I am so concerned about the science because I think, as my colleague has pointed out generally and publicly, if not in this place, you may be able to determine who is not the father but it is incredibly difficult to determine who is the father. Yes, these are legal issues, but they also have huge emotional, personal and familial consequences. I really wish that this were being considered in the context of this legislation.

Some people have considered this. ALRC report No. 96 does consider these issues, and has done so with a wide range of submissions, consulting the best authorities not just in Australia but in the world. They have done the work that we have longed for them to do, and now it is time for us and the government specifically to take account of those recommendations. Those recommendations are referred to in my second reading amendment, which I put to this chamber in the hope that the government will at least respond to, if not implement, six of the seven recommendations relating to parentage testing in the ALRC report. One of those seven has been implemented, and I commend the government for that. There are six to go. Let us at least look at them, if not implement them. I hate to foreshadow the response of other parties, but I understand from the opposition that that amendment is not supported. I thank the opposition for outlining their reasons.

However, I put on notice to the government, the opposition and other members in this place that we are dealing with legislation which, as we have all said today, is emotionally charged, complex and fraught with difficulties. Yet there are some simple things we could do to ensure that there are regulatory mechanisms in place that deal with some of the complex issues. There is nothing more complex than science when it comes to legislation keeping up with some of the technological advances that have taken place. So I urge my colleagues to at least consider the recommendations and to consider my amendment, which is in a second reading form today. ALRC report No. 96 notes that parentage testing:

... is not an area in which it is especially useful to draw on the language of rights whether that be a child s right to know his or her biological parentage, or a man s right to know who are his biological offspring. This is an area that requires a careful balancing of interests of mothers, fathers and children in different biological and social relationships with each other. To privilege the interest of one party by accepting a claim to an absolute right fails to give adequate regard to the interests of others involved in the equation. ....

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APF.org editor's commentary: The arguments here do not consider the requirements of the U.N. Convention on the Rights of the Child to raise the rights of the child above those of adults. The child's right to a relationship with BOTH biological parents is covered in Articles 7, 8 and 9. In addition, the child created at the sole discretion of the mother should be entitled to major medical information of his/her biological parents. There is nothing preventing a husband who is not the biological parent from adopting the child, should the biological male parent choose not be become a parent to that child. 

A woman cannot be forced to become a parent against her will. The masculinist position is that men should have a legal human right equal to women or the next best available legal outcome in deciding if they choose to become or not become a parent when a woman becomes pregnant. The 3 choices for women are:

In much of the world a woman can choose abortion or to give birth without consent from her partner and/or the biological father , as the case may be. Her husband, and/or the biological father, as the case may be,  has no legal right to compel her to give birth or compel her to have an abortion.

The second choice is anonymous abandonment to the state, often a situation in which the child is adopted without the biological father's knowledge or consent. He may not even know that he has become a father. This happens despite laws in many countries which require the child's biological father's permission for the adoption, since women are the gatekeepers of human identity. Purposely misidentifying a child in the case that the biological father would want to raise the child saves paying 18 years of child financial support by the mother and having her "mistake" walking around town.

The third choice for a pregnant woman who chooses not to become a parent is to give birth and adopt out the child in either an open or closed adoption. In a closed adoption, the woman has no further obligations of any sort.  If she chooses open adoption, she has no financial' obligations but may have the relationship of her choice with the child which may form part of the adoption conditions.

Editor Commentary : No where in the debate is there consideration to paternity testing before a potential mother gives birth.  Non-invasive paternity testing before birth ( a simple blood test of the potential mother after 8 weeks of pregnancy ) doesn't require permission from any person other than the potential mother herself. The fetus genetic sample is still inside the mother and carried in her blood and can be tested after 8 weeks of pregnancy. The fetus cells are used to establish paternity.