The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

MAGISTRATES do have the power to order a man to take a DNA test concerning child support payments without hearing why a man denies being the father.

This was the ruling made by Chief Justice Sir Michael Barnett yesterday who ruled that the Magistrate in this case did not misdirect herself in law to order a policeman on the Royal Bahamas Police Force to submit to a DNA test.

Once the chief justice made his position on the matter known, he rejected the appeal filed by the officer.

The officer claimed the mother had documents alleging that another deceased man was the father of the baby girl.

He believes the mother of his alleged two-year-old daughter is attempting to extort money from him by having him pay child support.

However, Sir Michael did not agree and said as much in his written ruling.

He said: "If the appellant is indeed the father, then he is obliged to maintain the child and this is so even if the mother had previously wrongfully alleged that someone else was the father."

"If the appellant is not the father of the child, which the DNA test would go a long way to establishing, then the court will not require him to maintain the child as the child will not have fallen within the provisions of section 33 of the Child Protection Act."

He ruled that whether the officer, or another man was the father, was a question of fact.

"It is a fact not determined simply by whom the mother says the father is, but by who is in fact the father.

"Once that fact has been determined, the father has a statutory obligation to maintain his child."

In September 2011, the mother of an 18-month-old infant, now two, appeared before a Magistrate seeking to have the alleged father pay child support.

At the hearing, the Magistrate asked the man to respond to the child support application.

However, the respondent said he was not going to pay child support because he was not the father.

To determine the facts, the magistrate ordered the policeman to submit to a DNA test. He refused and appealed the order.

The main argument of the appeal was that the magistrate did not give him a chance to explain why he was not the father and had she done so, would not have arrived at the order she did.

According to the appellant, the court would have been made aware of "documentary evidence" coming from the mother, some by inference and others outright lies that states that someone else is the father.

The policeman and his attorneys, Raphael Moxey and Shari Moxey, said that there were seven pieces of "irrefutable documentary evidence" to support his claim, among them was an obituary of the other man stating the toddler as his daughter, an affidavit sworn by the other man's parents saying he was the father and a passport application form and dated bearing his name as father in paragraph four.

The policeman submitted that the mother was "clearly trying to deceive, manipulate and abuse the court process "having taken all the many steps to another man as the father of her child".

In his ruling, the chief justice stated that there was nothing in the law books requiring a magistrate to hear evidence before exercising his or her discretion to order a DNA test where the issue of paternity arises.

He did not agree that the officer was not given an opportunity to produce evidence.

He added that even if the Magistrate had done so, he did not agree that the Magistrate could not have had the discretion to order a paternity test.

He dismissed the appeal and ordered the officer to pay costs for the case being brought to court.

Ramona Farquharson-Seymour represented the respondent.