FATHER SEEKS EQUAL TIME WITH HIS CHILDREN EVEN AFTER FINDING OUT THAT ONE OF THEM IS NOT HIS BIOLOGICAL CHILD
Mainor & Mainor [2020] FCCA 2269 (11 March 2020)
This case involves a father who seeks for equal time with his two children even after finding out that one of them is not his biological child.
Facts:
- The proceedings relate to the future care arrangements of X and Y.
- Mr. Mainor (the father/ applicant) seeks equal time with his children.
- Applicant eventually found out that Y is not his biological son after conducting a paternity test.
- A Mr. C later on claims that he is the biological father of Y. However, there is no evidence presented to the court that Mr. C is the biological father of Y
Issue: Should Mr. Mainor still have shared responsibility over X and Y even if he eventually found out that Y is not his biological son?
Law:
- 61DA- Presumption of equal shared parental responsibility when making parental orders
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a. Abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
b. Family violence
Analysis:
On the evidence presently presented, I could not be satisfied on reasonable grounds that either has occurred, at least not perpetrated by Mr. Mainor. However, the presumption could not apply in relation to Y as the presumption applies only as between parents.
As the presumption does not apply in relation to Y, the court is not obliged, by reference to section 65DAA of the Family Law Act 1975, to consider equal or substantial and significant time spent by Y with M. Mainor.
The submission is put that any Order in favor of Mr. Mainor will, by reference to Burton & Churchin & Anor [2013] FamCAFC180; (2013) FLC 93-561, interfere in the meaningful relationship between Y and his biological parents. However, again, there is nothing before me that could satisfy me, on the evidence I have heard to date, that Mr. C is the child’s father. It is asserted. It may well be demonstrated and proven when the matter resumes, but at this point it is not.
Conclusion: Absent any evidence showing the Mr. C is the biological father of Y, Mr. Mainor is entitled to equal time with X and Y.