January 18, 2018 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
In Australia, a court has ordered a mother to repay the child support she received from the man she falsely convinced was the father of her child (Herald Sun, 1/17/18). For reasons that escape me, the mother, man and child were referred to pseudonymously by the court and therefore by the article. The judge ordered the mother, “Ms. Fielder,” to pay despite her claims of domestic abuse and being too frightened to tell “Mr. Hallis” the truth about her child’s paternity.
“Ms Fielder” — a court given pseudonym — portrayed herself as the victim of her ex-partner’s “aggressive and intimidating behaviour”.
Ms Fielder claimed “Mr Hallis”, her partner of two years, was aware he was not child “X”’s father and concocted a deception about the circumstances surrounding the two year-old’s conception “because it suited him,” to spare himself embarrassment and avoid upsetting his family’s feelings.
Although Ms Fielder knew this was wrong, she said she was too frightened to say no to Mr Hallis.
The judge didn’t buy it because her story was dubious at best. In fact, the two had been to court several times to separate and then later when Ms. Fielder began limiting Mr. Hallis’ access to the child he believed to be his. That of course means that Fielder had not only lied to Hallis and to the true father, Mr. L, but to the court. In her pleadings and testimony (or affidavit) she’d have been required to state who the child’s father is. The fact that she named Hallis as the only possible father instead of informing the court that either Hallis or Mr. L was the dad, means she lied to the court as well.
Plus, it seems that, prior to the child’s birth, Hallis attempted to break up with Fielder.
He alleged he separated from Ms Fielder because of her reactive and manipulative personality and told the court that in an attempt to persuade him to return, Ms Fielder texted him a photo of her wrist with a hospital admission tag on it, claiming she had attempted suicide by ingesting Panadol.
Ms Hallis said they spent the night together on her release partly because he felt guilty that she had apparently become emotionally distraught at the end of their relationship. It is on this occasion that Mr Hallis believed X was conceived.
Unbeknown to Mr Hallis, around this time, Ms Fielder also had sex with Mr L.
Confronted with that and the fact that, in a heated moment, Fielder blurted out to Hallis that he wasn’t the child’s father, the court ordered genetic testing of the child and the truth, laboriously and expensively, was finally established.
Hallis then asked the court to order Fielder to repay him the child support he’d paid her as well as his attorney’s fees. The court did exactly that.
Now, it’s a bit unclear as to why it did so, but my guess is that it considered the matter one of equity that prohibits a litigant from profiting from her own wrongdoing.
Judge Brown found Ms Fielder had, at least, a moral obligation to inform Mr Hallis of the possibility that he was not X’s father but had instead decided to deceive him.
“Sad to say, I consider that she has raised allegations of family violence to protect herself from the implications of her own falsehoods. This is not to her credit.”
In short, it seems the court ruled that a mother who commits paternity fraud is equitably estopped from receiving a man’s child support that’s based on that fraud. Something similar was ruled in California on which I reported here.
In that case, a mother who’d abducted the couple’s two children for many years later decided she wanted the child support the father had been unable to pay (because he didn’t know her whereabouts) plus interest. Both the trial court and the appellate court didn’t mince words in refusing her claim. Because of her abduction of the children, she was equitably estopped from receiving his child support.
In Canada a similar set of facts again resulted in the rescission of a child support order, albeit not for equitable reasons.
Now we seem to have equitable notions used to require a mother to repay child support fraudulently obtained. Unstated by the article, but nonetheless true, the child will not lack for support. Mr. L, the actual dad will of course be required to do that going forward, despite the fact that Fielder’s fraud prevented him from knowing about and forming a relationship with his child.
Given his obligation to support the child, Mr. L will be given some minimal visitation rights in the way we’ve come to expect from Australian courts. That way, he’ll have the dubious pleasure of having a long-term relationship with Ms. Fielder who, as you’ll recall, was accurately described by Hallis as having a “reactive and manipulative personality.” I wish Mr. L luck, while being glad I’m not in his shoes.
Still it’s good to see a bit of sanity applied to child support cases. Equity – it’s a valuable tool in fighting some of the most outrageous and, yes, inequitable practices of family courts.
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