By Janet Fife-Yeomans
May 19, 2009 07:34am
Reference source: The Daily TelegraphLegal history … a man has successfully fought for custody of a boy who is not his biological child.
* Man who is not biological dad wins custody
* Court says boy has right to the relationship
* Case has made legal history
A MAN who discovered in a custody hearing he was not his son's biological father has made legal history.
Duped dads usually ask the Family Court to make amends for the years they brought up children which were not theirs - but not this 53-year-old real estate agent.
He loves the five-year-old boy and won his appeal against granting custody to his ex-wife, 46, in what the court said was a unique situation Parliament never considered when drawing up the laws.
In a verdict that lawyers called precedent-setting.
They said it was wrong that, if the father had adopted the boy or if he had been the biological father but had never lived with the mother and had nothing to do with his upbringing, he would have had more rights.
Three judges sitting as the Full Court of the Family Court saidThe boy had a right to a 'meaningful relationship' with the man he still believed was his dad.
The man went to court when his ex-wife did not return from a short holiday overseas with their son.
The Court saidWe are not convinced Parliament turned its mind to whether husbands in his position should have any different status.
The court ruled custody was to be shared. After a year of court tussles, the mother asked the man to take a DNA test, which confirmed her suspicion he was not the father.
The Federal Magistrates Court then gave the mother full custody, letting her return to her native Hong Kong with the "father" allowed to see the boy only on holidays.
The man last week won his appeal against that decision, with the Full Court ruling that the magistrate had considered how the boy would best have a meaningful relationship with his mother - not his father. It had not looked at the crucial question of what was best for the boy.
The man's solicitor, Andrew Wiltshire, said it was always thought the law meant that unless you were a biological parent you were excluded from getting a custody order.
"It is the first time the appeal court has given consideration to this question and it has rejected that," Mr Wiltshire said.
He said irrespective of whether a man was the biological father, non-biological father or adoptive father, the child's rights were paramount.