Fathers May Get Money Back in Paternity Fraud Cases

18 March, 2005, FindLaw, Australia

Proposed new laws will make it easier for fathers to recover child maintenance payments if DNA testing reveals that they are not the child's father.

The Family Law Amendment Bill 2005 allows people who wrongly believed they were the parent of a child to recover any child maintenance paid or property transferred under an order of a court under the Family Law Act 1975.

"The bill is intended to make it easier for people who find themselves in this position to take recovery action without the need to initiate separate proceedings for an order from a court of civil jurisdiction, such as a State, Local or Magistrates court," Attorney-General Philip Ruddock said.

Mr Ruddock said the amendment would apply retrospectively to cover payments made before start of the new provisions.

The Bill applies to orders for support of children such as step-children, dependent children who are 18 years and older, and children who were born, or whose parents separated, before the child support assessment scheme came into effect in 1989.

Existing legislation already allows for recovery of amounts paid through arrangements with the Child Support Agency.

Mr Ruddock claimed recent changes to parentage testing procedures would reduce the risk of inaccuracy and fraud, with new identification requirements.

Under the procedure, the best interests of the child are taken into account in considering whether a genetic sample should be taken from a child.

Noting the Victorian Court of Appeal decision in Magill v Magill, handed down yesterday, Mr Ruddock said it was inappropriate for him to comment.

In the case, which involved what all three judges agreed was an unusual set of facts, a man sued his ex-wife for the tort of deceit, claiming she had falsely represented he was the father of two of her children.

His child support payments were adjusted after DNA test findings he was not the children's father, but he claimed for loss of earnings and nervous shock.

While the County Court found in the man's favour, the Court of Appeal found that all the elements of the tort were not made out, specifically that the woman's presenting the man with two birth forms for the children constituted a representation that he was the father.