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Commentary: Leslie Cannold &
"Paternity denied: the other side of the story"

"Paternity denied: the other side of the story" by Dr Leslie Cannold,
NewMatilda.com, Issue 39, May 25, 2005

The commentary on the article follows the preliminary comments by Child Support Analysis. The whole of the original paper is quoted in sequence in the left hand column.

Preliminary comments by Child Support Analysis

This article by Dr Leslie Cannold discusses "paternity fraud", although without providing a definition of it. Here are discussions about paternity fraud, and why the UK appears to have less of a problem with it.

Chronology for the Liam Magill case

This article begins by discussing the Liam Magill case. Here is some background to it.

1988: Liam got married. 1989: the first child, his, was born. 1990: the second child, not his, was born. 1991: the third child, not his, was born. 1992: got separated. 1993: starts to pay child support for all three children (32% of income), instead of for one child (18% of income). 1995: he read first hint that ex-wife doubts his paternity. 1999: he stopped work through illness; child support payments ceased. 2000: paternity tests show non-paternity for second and third children. 2001: paternity tests show that a friend is the father of those two children. 2002: he sued his ex-wife, and the court awarded damages for "pain and suffering and economic loss". 2005: a supreme court overturns at least some of this.

quantum meruit - Tuesday, March 29, 2005 - Liam Magill
Magill v Magill [2005] VSCA 51 (17 March 2005)

Revisions needed to the Australian child support system

There is no provision to refund child support payments in such a case in Australia. There is a proposed revision to the child support system to permit such refunds [1]. (The UK already permits refunds if non-paternity is determined, even after many years).

[1] "In the Best Interests of Children - Reforming the Child Support Scheme"
Report of the Ministerial Taskforce on Child Support
(Set up in response to the Australian House of Representatives Committee on Family and Community Affairs report on child custody arrangements in the event of family separation).

Leslie Cannold Commentary by Child Support Analysis
Several weeks ago, Melbourne man Liam Magill - under the watchful eye of the media - lodged an application in the High Court to reinstate damages awarded him in connection to his discovery that he was genetically unrelated to two of his three kids.

There are a number of issues here, not all "paternity fraud":

1. Liam Magill spent money bringing up the two younger non-paternal children while the family including his oldest child was intact. Whether that is paternity fraud is a matter of definition. Since it isn't related to child support, this website won't debate it.

2. His ex-wife deceived him and the CSA about paternity, or at least concealed doubts that would have enabled paternity to be resolved. As a result, he paid 32% instead of 18% of his income for several years. That is clear paternity fraud. It cannot even be said to be in the interests of the children, because the man with the legal obligation to pay child support was known. Liam was "the nearest man with a wallet", and this is an example of how bad that policy is.

3. He claimed damages for "pain and suffering and economic loss", was awarded them, then lost them. That is not paternity fraud.

4. He received no state assistance for the legal costs, while apparently those opposed did receive state assistance. That is not paternity fraud.

It is inaccurate to say all of this was "paternity fraud". But some of it certainly was, and all of it was a consequence of misattributed paternity and the wife's covering up of her suspicions. Misleading a man about something so important, and/or misleading the agencies of society, should be exposed for what it is. Socially unacceptable.

Such cases of 'paternity fraud' have become cause célèbre for the father's rights movement that views them as symbolic of the situation of contemporary men - deceived, denied and exploited - in an era of divorce and historically unprecedented levels of female sexual and reproductive freedom.

It's time for a reality check.

It is irrelevant whether such cases have become a cause célèbre.

For Liam Magill, the "reality check" is that his life has been badly damaged by misattributed paternity and paternity fraud. And so have other victims of paternity fraud.

The truth is that much DNA paternity testing is requested by women of men who know full-well they are the biological dad, but have acceded to their lawyer's advice to deny paternity to delay or avoid child-support payments for the twelve to eighteen months it takes their ex to get a court order.

Many apparent issues with paternity tests are actually caused by the details of the law, and are not inherent in paternity testing. Examination of how other countries do things can be illuminating! For example, in the UK, when paternity can sometimes be presumed pending a test, the man must pay while the paternity test goes ahead. Then, if it is negative, he gets a refund. So the delay is not the fault of the paternity test itself, but just the way Australia happens to use them for child support purposes.

The proposals to reform the Australian system appear to require the man to continue to pay while paternity is resolved, but not to pass the money to the mother.

While men's rights activists spare no expense in vilifying women (read: their ex-wives) for enforcing the legal - not to mention moral - right of children to support after marriage breakdown, women have no choice in the matter. The State can, and does, cut women off from all forms of support if they withhold the name of the biological father or - should he challenge his biological paternity - fail to provide proof in the form of DNA test results. In the meantime, women are left with no means to support their children.

The welfare problems that women face is not the fault of the men nor of paternity testing. Once again, it is a matter of how the law works. The answer is to get things right for women, not to restrict things for men because of the problems that women face.

Ethical principles demand that we don't use what some men do as justification of what is done even to men who didn't do those things. Men are individuals too.

In a groundbreaking study of DNA paternity testing, Swinburne researchers have shown that many paternity tests are initiated either by men hoping to avoid child support obligations, or at the behest of the State by women relying on such payments to make ends meet. The data not only undermines the image of mendacious and deceitful women promulgated by hurt and angry post-divorce men's rights activists, but pours doubt on their wildly inflated incidence figures.

Michael Gilding's paper "Rampant Misattributed Paternity: the Creation of an Urban Myth" didn't show this. In fact, of course, you can't avoid child support obligations using paternity tests!

Michael Gilding's paper simply focused on the issue identified by its title. He asserted rates of non-paternity of about 1%-3% as an average for the total Australian population. (Fathers' rights activists shouldn't use significantly larger figures for the total population).

Indeed, according to Professor Michael Gilding, suggestions that one in ten parenting dads are not biologically related to their children are urban myths, derived either from poorly conducted studies on biased samples, or PR releases from private testing companies with a clear financial interest in stirring up anxiety among potential male customers. The real Australian figure, says Gilding, is likely to be around 1 per cent.

Michael Gilding's paper identified the possibility of higher figures, such as 10% or more from paternity tests, in sub-populations at risk. And it is precisely that subset from which the claims of "paternity fraud" arise! Any meaningful discussion of "the rate of paternity fraud" is related to these statistics, not to the rate of misattributed paternity for the general population.

In this case, that figure of 1% is irrelevant. For a victim of paternity fraud such as Liam, the rate is precisely 100%. No interpretation of statistics will make his financial loss disappear! Individual pain is not spread across a group.

Women aren't always the victims, of course. But even in the most hard-luck cases, where married men discover their lack of genetic relationship to a child by accident (say, in the search for a tissue-match for a critically ill child), women's situations and choices are far less clear-cut and duplicitous than men's movement propaganda implies. While the Swinburne research is still underway, Dr Lyn Turney says early results suggest the long-term-secret-lover scenario is the least likely amongst women with more than one partner. More commonly, encounters will be one-off incidents, perhaps with old flames or at drunken parties, or with an old partner in the dying days of a relationship when the new relationship is in its infancy (and expectations of fidelity are reduced or non-existent).

It doesn't matter what the scenario is! It is easy to make excuses. What matters to many men is: "is this my child?" Yes or no. Any woman who wants to avoid those problems should simply avoid "conceiving away"! They don't even need to be "good". Just be "careful"!

Child support responsibility should arise from what the people concerned did & didn't do. In this case, the husband didn't help bring the child into the world, so he shouldn't be responsible. Another man did, and could have avoided this, and so could the wife. They didn't avoid it, so they are responsible.

And, of course, in the case of Liam Magill's ex-wife, it was a long-term-secret-lover scenario, reported as 6 years!

Interestingly, while men's rights activists are fond of moaning about the gender inequities they suffer in relation to parenthood (they lack the same biological certainty as mothers; they don't have the final say about abortion), they fail to mention the advantage their physiology affords them when it comes to sexual privacy. Only for women will failed or forgotten contraception expose the trail of private sexual activity and decision-making.

Not true! "Child support" is littered with examples of men's "failed or forgotten contraception"!

Immediately after, it is too late for the man to do anything about it! The inequality is that women have options before and after sex, while men only have options before sex.

Women's assessments of whom to have sex with, and when, may be undermined by coercion, clouded by passion or corrupted by a youthful lack of experience and good judgement. Just like men's. But once a pregnancy is conceived, women with more than one sexual partner and thus able to hazard a guess but not be absolutely certain of biological paternity (a la Kathleen Donnelly) are caught between a rock and a hard place.

They can terminate, a decision that may contravene their desires or values, as well as distress and confound partners that have expressed support for continuing; they can continue the pregnancy hoping the sperm of the man they love and want to build a life with was involved in conception; or they can accept the risk of violence or relationship breakdown if they reveal their recent sexual history and consequent uncertainty of her child's biological origins. They can take the risk, in other words, of losing a happy relationship with a man they love and who loves them, and rendering their child - in the true sense of the word - fatherless.

If you can't be good, be careful! This has been an injunction to men and women for a long time. For centuries, many men wanted the sex, but not the responsibility. Now, paternity comes back to haunt them during 18 years of child support! With paternity testing, this applies to women too.

At least women have the option to terminate, however undesirable that may be to them. (The "morning after" pill is more acceptable to many women than a full abortion). Men didn't even have that option. In fact, an analysis of the reproductive trends for men and women shows a considerable imbalance in favour of women, at least in the UK. Some of the trends on that page apply to married or once-married men and women too.

Instead of "hoping the sperm of the man they love and want to build a life with was involved in conception", they can check with a pre-natal paternity test (which can be non-invasive and safe at 12 weeks). Mankind has (rightly) invested vast efforts and resources into technologies for improving the reproductive role of women, since their bodies and lives are most at risk from the process. There is a concomitant responsibility for women to be prepared to use those technologies if they wish to take full advantage of modern legal and biological freedoms.

None of these choices is ideal; each carries costs to one or more members of the triangle. But what is clear is that if women choose to tell, they are privileging the man's right to know the genetic make-up of the foetus over the child's future well-being. While men's rights activists consistently assert that women who fail to order their priorities this way are fraudulent cheats and liars, more dispassionate observers may be less certain.

Triangle? It might be a square! It is probably only a minority opinion that it is a "privilege" for a man to know the truth about paternity! (It is an error to say "genetic make-up". That isn't what a paternity test provides. DNA paternity tests use "junk", not "genes").

And often the child's interests and future well-being coincide with the men's interests, rather than the mother's. This is typical of paternity testing. See "Children's rights to information".

Particularly if they agreed that while biological relationships are nice, it is the fulfilment of the commitment to parenting that makes a man a father. A woman's choice of a man to parent her child - whether made in conditions of biological uncertainty or not - is never an insult, but an expression of love and respect. Men willing to 'be there' at the time of conception are a dime a dozen. Far harder to find one willing and able to be a good father. Men who fail to understand this, and laws that don't reflect it, completely miss the point.

This is a classic example of the female behaviour that sociobiologists describe!

1. The man probably wants to bring up his own child. He has a limited opportunity, in terms of years and resources in his life, to do so. Then the possibility has gone for ever.

2. The woman has "her" child, (not that man's), which for her selfish reasons she is determined to bring up even at a cost to others. (The interests of the biological father and the child are ignored in the text on the left. In fact, the text on the left concentrates on the self-interest of women, choosing men to do what the women want them to do, and leaving children without the means of tracing their biological ancestry).

3. The woman chooses that man because he is a convenient resource, with time, effort, and money, to help her bring up "her" child. She assumes he wouldn't help her if he knew it wasn't his child, so she acts accordingly.

4. She therefore deceives him about the paternity of the child. Perhaps she lets him assume it is his. Perhaps she tells him explicitly. Perhaps she just doesn't reveal her own doubts. (If she is in love with him, perhaps that is nature's way of letting her live with herself for what she is doing to him).

5. She wins. She gains many years' worth of resources from him. He loses, perhaps his only possible opportunity ever to bring up a child of his own. Her behaviour has been totally unethical.

Denying men an informed decision is probably based on knowing what they would then decide. This form of manipulation, against the woman's predicted wishes of the man, shows lack of respect for him. Obviously, "respect" was never on her agenda! Men can make good decisions - when informed. And that is the key. They can adopt, and take on full responsibility in spite of non-paternity. Many men have done so. Or they can carry on with informal support and parenting. But if they don't want those options, choose another man!

About the author: Dr Leslie Cannold is a Fellow at the Centre for Applied Philosophy and Public Ethics and the author of What, no baby?

An extended discussion of the rights and wrongs of DNA paternity testing will appear in the June edition of Eureka Street.

Here is a response to "An extended discussion of the rights and wrongs of DNA paternity testing in the June edition of Eureka Street".

Women's options for avoiding misattributed paternity

Women have several ways of avoiding "misattributed paternity", (bringing another man's child into the family while concealing its true parentage). Aren't these enough? If a woman doesn't use any of these, what does it say about her ability to act out of respect for her partner?

1. Don't have an affair.

2. Ensure the man uses contraception. (Vasectomy, condom).

3. Use contraception herself. (Contraceptive pill, implants, patches, injections, female condom, cap, Intra-Uterine Device).

4. Use the "morning after" pill.

5. Have an abortion. (Can use a pre-natal paternity test, CVS or amniocentesis or non-invasive, first).

6. Inform her husband/partner. (Can use a paternity test, lots of kinds, first).

7. Get separated and/or divorced.

Page last updated: 27 August, 2005 © Copyright Barry Pearson 2005