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Truth Or 'Collateral Damage'?

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Truth Or 'Collateral Damage'? Truth or ‘collateral damage’? Legal parentage, bio-genetic parentage and children’s perspectives Hannah Robert https://orcid.org/0000-0002-4243-1242 Submitted in total fulfilment of the requirements of the degree of Doctor of Philosophy August 2018 Melbourne Law School The University of Melbourne 1 ABSTRACT This study explores the operation of legal parentage within Australian family law through analysing judgments and legislation in ‘misattributed fatherhood’ cases – where the person who is publicly identified or assumed to be the legal father is shown not to be genetically related to the child. It argues that legal parentage currently performs four different, bundled, functions: recording the child’s origins, designating default parental responsibility, defining the child’s legal kinship identity and assigning economic responsibility. In these judgments, judges generally re‐align the child’s legal parentage to match the factual finding regarding the child’s genetic parentage. This often erases the status of a social father as a legal father, and sometimes identifies men who are genetic fathers, but who have not parented the child, as legal parents. In the process, a child’s legal identity and legal kinship relationships may be radically and retrospectively rewritten, with little space for judges to consider the impacts for the child in question, or the child’s own understandings of their legal kinship identity or relationships. Binding these four functions together within legal parentage is rhetoric (judicial, legislative and social) which frames biogenetic parentage as ‘true’ parentage. This ‘biotruth’ rhetoric conflates legal parentage as a question of law with the factual enquiry as to a child’s progenitors. In so doing, it masks the technical complexity of legal parentage and obscures law’s role in shaping, legitimating and constructing legal kinship relationships. It means that the legal definitions of ‘parent’ fail to reflect the complexity and diversity of human family‐ making (both biological and social) and, in the process, fail to recognise and protect children’s complex interests in information about their origins and the stability of their legal kinship identity and relationships. Biotruth rhetoric within legislative and judicial understandings of legal parentage therefore works to prioritise adherence to a normalised family structure over supporting and securing the relationships on which children rely for their care, kinship identity, and economic support. A more child‐centred approach would unbundle these distinct functions, and create space to hear children’s voices on any proposed changes to their legal parentage, and on the release and use of information about their origins. 2 DECLARATIONS i) This thesis comprises only my original work except where otherwise indicated; ii) Due acknowledgement has been made in the text to all other material used by footnotes giving explicit references. A bibliography is appended; iii) This thesis is fewer than the maximum word limit in length, exclusive of tables, maps, bibliographies and appendices. Signed: Hannah Robert 27 August 2018 3 ACKNOWLEDGMENTS This work could not have happened without the support of: My wise and kind supervisors at Melbourne Law School, Helen Rhoades and Jenny Morgan, and during my time at the University of Sydney, Reg Graycar and Jenni Millbank. My wonderful current and former colleagues at La Trobe, particularly Laura Griffin, Fiona Kelly, Anastasia Kanjere, Julia Dehm, Anita McKay, Pascal Chifflet, Marc Trabsky, Kirsty Duncanson, Marcella Carragher, Jill Murray, Lee Ann Basser, Kerry Petersen, Maddy Chiam, Maria Elander, Anne Maree Farrell, Nicole Shackleton, Steven Tudor, Savitri Taylor and my very supportive Head of School, Patrick Keyzer and Associate Head of School, Anne Wallace. Special thanks to Laura Tolton for the weekly check‐in and research planning sessions as we got towards the end, and for putting me onto Brigitte Jordan. My dear friends and family who put up with thesis dramas over the years, doled out sage advice and went beyond the call of duty when needed: Penelope Goodes, Rosalind Hearder, Sarah Tayton, Steven Macmillan, Matt Drummond, Belinda Quantock, Sabdha and Cristi Pink Charlton, Katie Murray, Anna Clark, Caitlin Coleman, Ryan Wick, David Venema and John, Debbie, Jo, Jeremy and Erica Robert. Various shut up & write groups at La Trobe (special thanks to the Research Education & Development team there: Jeannette Fife, Tseen Khoo & Katherine Firth), and beyond (thank you Jason Murphy for the WriteUp initiative and Vicki Huang for the indomitable MLS PhD writing group). Yes Ali, the chapters are all done now. 4 For A & Z 5 Contents ABSTRACT ................................................................................................................................... 2 DECLARATIONS .......................................................................................................................... 3 ACKNOWLEDGMENTS ................................................................................................................ 4 CHAPTER ONE – Introduction .................................................................................................. 11 I The problem addressed .................................................................................................... 15 II Research questions ........................................................................................................... 2 0 III Method and theoretical approach ................................................................................... 21 IV Arguments ........................................................................................................................ 29 A Four disparate functions within legal parentage .......................................................... 29 B Biotruth binds these four functions .............................................................................. 40 V Outline of chapters ........................................................................................................... 42 CHAPTER TWO – A Tale of Two Fatherhoods: The Historical Context of Legal Parentage and Genetic Paternity ..................................................................................................................... 43 I Husbands (legal fathers) v ‘natural’ fathers ................................................................... 44 A Husbands (legal fathers) ............................................................................................... 48 B ‘Natural’ or ‘putative’ fathers ....................................................................................... 50 C Bastardisation, legitimation and adoption ................................................................... 56 D Evidentiary Protections surrounding the Presumption of Legitimacy ......................... 57 II Challenging Illegitimacy .................................................................................................... 63 A Dismantling of evidentiary protections of presumption of legitimacy ........................ 63 B Illegitimacy as stigma .................................................................................................... 68 C Linking biogenetic ‘truth’, the best interests of the child, and legal parentage .......... 71 D Abolishing illegitimacy, abolishing fatherlessness? ...................................................... 74 III Unifying the ‘natural’ and the ‘legal’ father ..................................................................... 83 6 A From affiliation to assessment – legal parentage and the introduction of the Child Support Scheme ................................................................................................................... 90 B Linking legal parentage and economic responsibility for children via ‘true’ parentage 100 IV Conclusion ...................................................................................................................... 103 CHAPTER THREE – A simple story for a complex law ............................................................ 107 I Who is a legal parent? .................................................................................................... 108 A Defining, presuming and deeming legal parentage .................................................... 109 1 Statutory framework ................................................................................................... 109 2 Common law definition of ‘parent’ ............................................................................ 115 3 Tensions between presumptions and the common law definition ............................ 119 4 Tensions between statutory and common law definitions ........................................ 120 B Testing Genetic Parentage .......................................................................................... 122 C Declaring Legal Parentage .......................................................................................... 127 II Legal Effects of Legal Parentage ..................................................................................... 133 III CONCLUSION .................................................................................................................. 136 CHAPTER FOUR – Biotruth Rhetoric ...................................................................................... 140 V Analytical Framework ....................................................................................................
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