QLD Paternity Fraud - Mother refuses DNA Tests

[jwilson18]

Hi,
I have a strange problem and would love some direction. An ex of mine told Child Services I was the father of two of her children (this started 8 yrs ago). Child Services called my employer (father-in law) for pay docking but I was a sub-contractor so they couldn't do anything. This was the first I knew about any of this. Called them told them I'm requesting a copy of the childrens' birth certs as I KNOW that the real father's name (also John) was on them. Was told I couldn't see them but they checked, saw it wasn't me then dropped it. No paperwork ever received. Fast forward about 7 yrs and I got an inheritance. Suddenly I owe $11,000 in child support. Called Child services multiple times then won't send me any paperwork, promise they will though. Went to solicitor told I'd have to pay $3000 plus $800 (test kits) minimum for her to represent us. I've got a new baby with my wife (my only child) and can't justify spending our savings on that. Was able to email back and forth with this girl. She accepted she'd do a standard DNA test. Bought the 'cheaper' kits $500! Suddenly she's refusing and saying she feels 'extremely uncomfortable' and wants my solicitor to contact her (directly). She can get legal aid but I can't. I know I have a few options - the cheapest is send her the tests so she has them which will demonstrate that she's refusing, if this goes to court, then email one last time stating that basically I'll have to go through court and if it's positive I'll be going for custody ( at least 50/50) if not will be fighting till I get compensation. Option 2 Go for custody of the two girls (knowing that they aren't my children) then get them swabbed once she agrees and realises her benefits are lessened. I couldn't do this to the poor children though. Go to a solicitor, then follow through with getting a judgement debt for costs once negative results. Last option, do nothing as the debt is there but hasn't affected me for this long..... Everything (our house included) is only in my wife's name. I'm worried that my tax return will go to her though and we need that money now we're on one income. For the record I received the inheritance without issue. I need this woman out of my life and I don't feel like I should have to spend that money if I'm not even on the birth cert. The emailing has dragged on for 8 months (this time!) as she doesn't want to do the tests.
Please help, my wife (and myself) are incredibly stressed and upset about this.
Thanks in advance.

 

[Tremaine]

Hold on, hold on, just to be clear, there is somebody else's name on the birth certificates?

When it comes to parentage, there's a few presumptions entrenched in law which basically state that if X circumstance applies, then Y is the father. The father's name appearing on the registered birth certificate is one of those presumptions, so if Other John is listed as the father on the birth certificates, then he's presumed at law to be the father, not you, and you don't need to do any DNA testing to prove this point. If there is no applicable presumption, then a DNA test would be required for the court to make a declaration of parentage, but that doesn't seem to be the case here.

What would I do in the circumstances?

First, I would call the child support agency to appeal their decision about the debt. Explain to them that you're not the father of the kids, someone else is named on their birth certificates, and this issue was, to the best of your knowledge, settled seven years ago when the application for child support was first made by the mother and contested by you. This should trigger the internal review process, and if that fails, then you can file a complaint with the Administrative Appeals Tribunal (AAT). Mum will, at some point, have to show that you are the father of the kids, and that evidence will need to be disclosed to you, so if she has a) no birth certificates and b) no DNA results, then it's going to be hard to argue that you should have been paying child support for them.

While their review process is underway, I'd call the Office of Births, Deaths and Marriages for advice about getting copies of the kids' birth certificates, as well. If you're not the father listed, you probably won't be able to, but best to check that is the case.

If you're not the father, you're miles away from family law proceedings at this stage, so don't even stress about that at this stage.

 

[Migz]

Good answer above. And I concur this is solely in the hands of the CSA at the moment, I would be relieving the solicitor of their duties as you can do it all yourself from here on and save the cash for your little babu\y. Do not call CSA any longer, you must write (photocopy your paperwork prior to sending) and post via registered post ONLY. CSA are the complete and utter scum of the earth, they don't even follow their own procedures.

The below is copied and pasted;

Requests under the FOI Act
Generally, where a request includes documents containing information about other people, a request under the FOI Act is needed. This includes requests for copies of letters, or records of telephone conversations about another person or the other parent. Also, secrecy provisions (6.3.3) contained in child support legislation will apply to documents containing third party information and could result in the information or document requested being exempt under the FOI Act.

Example: Leyla requests access to the 'whole department file' involving Leyla. As the DHS records for Leyla's child support entitlement would include documents containing information about third parties, an FOI request would be necessary.

If the work involved in processing the request would require a substantial and unreasonable diversion of resources, a decision may be made to refuse the request. In such circumstances, an applicant is provided the opportunity to revise the scope of the request.

Further information about making a formal FOI request related to service delivery or policy matters may be obtained from the DHS and DSS websites respectively.


And this is exactly what you need to do to start with John, is request the "whole department file" under the freedom of information, you need to know what your fighting before you move forward.

 

[Familylaw101]

*Edit - I'd listen to what the person above has said about the birth certificate and freedom of information side first. If CSA keeps on taking debt from you then I'd do what I said below. But the above answers first.


Hi,

Unfortunately I'd go with option 3, eg the court process. It is a costly process without a doubt and if your going to be docked child support either now or possibly in the future then its best to get it out of the way as soon as possible and work double time if need be like I have.

I'm not a lawyer but have 3 years experience in the family court with my partners own issues as well as hearing other peoples issues through their day to day life its just easier to get the lawyer onto it. You do pay for what you get with a lawyer so if you want to get stuff solved quicker save and go for a reputable law firm not just any lawyer (we initially used a cheaper lawyer and found out the hard way $40,000 later going no where compared to $5000 and already getting somewhere) as you'll thank yourself later once you experience what we have

There's no point playing games in my experience if they are trying to make you pay child support you can get a paternity/DNA test so get your lawyer onto it straight away.

Family law has been the most draining experience of my life and its all relating to my partners matters with their children and their ex partner. But its also taught me a lot and if it can save you or anyone else a lot of headaches its better not to be stubborn and go for full custody you just clog the courts up if that's not your true intentions. Simply get the test done by a court and if its officially your child then pay up otherwise if its not problem solved.

 

[jwilson18]

Thank you everyone. Your advice has been amazing. My wife and I are incredibly relieved and grateful for the help. I'm going to do as suggested, as well as send the DNA test kit to her anyway. I've got no other use for it and at least if it goes to court I can say I've done everything I can but she's been non-compliant. Plus the tests aren't court approved so I've got nothing to lose by trying it. The solicitor told me on the first consult that even if the results were negative, we'd need to get her to sign an affidavit accepting the results for Child Services. I can't see how that's right but the solicitor is one of the best for family law in our city. With the options you've told me about, I'm sure I can get this sorted without a solicitor.

The saddest part of all of this is that the mother has no compassion for the hell she's putting these children through. Hopefully once it's sorted she can find the actual father.

Again, thank you all, especially Tremaine and Migz - you both are legends!

 

[The Cheese]

First, I would call the child support agency to appeal their decision about the debt. Explain to them that you're not the father of the kids, someone else is named on their birth certificates, and this issue was, to the best of your knowledge, settled seven years ago when the application for child support was first made by the mother and contested by you. This should trigger the internal review process, and if that fails, then you can file a complaint with the Administrative Appeals Tribunal (AAT). Mum will, at some point, have to show that you are the father of the kids, and that evidence will need to be disclosed to you, so if she has a) no birth certificates and b) no DNA results, then it's going to be hard to argue that you should have been paying child support for them.

The only issue with this is that questions about parentage can't be appealed through Child Support. The Child Support (Registration and Collection) Act 1988 prohibits appeals on the grounds of parentage as determinations about who is or isn't a parent lies with the court. Child Support (Registration and Collection) Act 1988 - subsection 4 is the relevant bit of the legislation here.

If CSA has accepted a child support assessment where you are the father, applying for a s107 declaration under the Child Support (Assessment) Act 1989 is your only option, short of the mother asking CSA to end the case and have all the arrears discharged. Its probably unlikely that she'll do that unless she can apply against the real dad as her family tax benefit will plummet down to the base rate. Alternatively it could be argued that someone got a bit confused with multiple Johns and they made an administrative error, but I think they're too far down the road now. If you do go down the s107 option, you would ask the court to order a DNA test through s69W of the FLA. If Mum refuses the DNA test at this point then the court could make the s107 due to her non-compliance, but this is usually quite rare.

The solicitor told me on the first consult that even if the results were negative, we'd need to get her to sign an affidavit accepting the results for Child Services. I can't see how that's right but the solicitor is one of the best for family law in our city.

I can't see what CSA would do with this affidavit. They can't remove the child support case without the court order. Even the mother can't have it removed completely - she can only end it from here moving forward.

 

[Atticus]

I can't see how CSA accepted this member as the father anyway given the real father is apparently named on a birth certificate...

If there is conflicting evidence as to parentage, CSA can make a decision without the need for a s107 declaration... I'm assuming that's why the solicitor has made the comments regarding a signed affidavit from the mother be given to CSA

 

[The Cheese]

CSA can weigh up which is the most likely presumption of parentage when the application is first made (s29(3) of the CSAA), but once its accepted they're not going to budge without the s107. I wouldn't be surprised if the mother perhaps 'forgot' to mention that the birth certificates existed, let alone that a different John was named as a parent. there are a bunch of other presumptions and if the OP was never contacted in the first instance, then CSA would not have been aware the conflicting evidence existed.

OP, did you and the mother live together prior to these kids being born? If you lived together 44 to 20 weeks prior to the kids being born, then you can be presumed to be a parent. I think a lot of guys get stung this way.

 

[sammy01]

I would appeal to CSA according to their appeals process. When that fails take it to Administrative Appeals Tribunal.

 

[jwilson18]

I'm going to try everything everyone has told me about and I hope that works. It takes so long to sit on the phone to speak to someone at CSA and I work long hours which makes it even more difficult. I've spoken to them about three times and was told all the info would be sent to me but it never has been. I've tried to contest the issue on the phone to them but to no avail so I assume I'll have to word my request properly (thanks to the above info!). I've sent a registered letter to the CSA requesting all information regarding myself and this case in accordance with the FOI Act so hopefully I get that soon. No idea how long it will take. I've sent the mother the test kit (probably useless now anyway) and she can even post the swabs direct to the company at no cost to her. I'll leave it a few weeks then put in a CSA appeal as I assume once she's contacted regarding my request for an appeal, all hope of her doing the tests out of court, is over. Then I'll contact the AAT. Honestly, this is like the worst mistake of my life and it just won't go away. And yes because I'm an idiot, I did live on and off with her while she was pregnant with the first child. Thanks again all, I'll try all the free options first and see how I go with them.