Ames v Ames
[2009] FamCA 825
•4 September 2009
FAMILY COURT OF AUSTRALIA
| AMES & AMES | [2009] FamCA 825 |
| FAMILY LAW – CHILDREN – parentage testing procedures – application by the husband seeking parentage testing of the child – where there are no proceedings before the Court seeking other orders in relation to the child – where the husband has commenced proceedings in the District Court against the wife for alleged false representation and deceit with respect to the paternity of the child – whether an order for parentage testing under s 69W of the Family Law Act 1975 is a “parenting order” – where the husband had a paternity test conducted without the consent of the wife – where the husband relies on that test to establish the basis for doubt as to paternity – whether the determination of the parentage of the child is required for the property settlement proceedings between the parties – whether there is an honest bona fide and reasonable belief to doubt paternity – where the evidence of the paternity test was obtained improperly – where it is not proper to admit the previous test as evidence of paternity – whether it is in the best interests of the child to order parentage testing – consideration of s 60CC factors – order for parentage testing made – conditions imposed on the order to protect the child and ensure the report is not used for purposes other than proceedings in the Family Court |
| Family Law Act 1975 (Cth) ss 43, 60CA, 60CC, 64A, 64B, 65AA, 69P, 69V, 69VA, 69W, 69X, 69ZB, 69ZC, 69ZM 69ZT, 75(2) & 79 Family Relationships Act 1975 (SA) s 8 Family Law Regulations 1984 (Cth) reg 21M |
| Tryon and Clutterbuck (2007) FLC 93-332 Jacks and Samson (2008) FLC 93-387 L v T (1999) FLC 92-875 In the Marriage of Lee and Tse (2005) 33 Fam LR 167 Diggins and Diggins (1992) FLC 92-299 In the marriage ofF and R (1992) FLC 92-300 Duroux v Martin (1993) FLC 92-432 Hearne v Street (2008) 235 CLR 125 |
| APPLICANT: | Mr Ames |
| RESPONDENT: | Ms Ames |
| FILE NUMBER: | ADC | 4319 | of | 2008 |
| DATE DELIVERED: | 4 September 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 8 May 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGinn |
| SOLICITOR FOR THE APPLICANT: | Johnston Withers |
| COUNSEL FOR THE RESPONDENT: | Mr Berman |
| SOLICITOR FOR THE RESPONDENT: | White Berman |
Orders
Within 28 days from today or such later date as is requested by the Medvet Laboratories (“Medvet”) (the parentage testing laboratory), MR AMES and MS AMES each shall attend on Medvet, Division of Molecular Pathology, and provide such information and such bodily sample for parentage testing as the said Medvet reasonably requests to enable the preparation of a parentage testing procedure to be carried out in accordance with the provisions of the Family Law Act 1975 (Cth) and Regulations concerning the paternity of the child Y AMES born on … May 1995.
At the time the wife MS AMES attends upon Medvet the wife shall bring the child Y AMES born on … May 1995 to Medvet and do all acts and sign all documents for the child to give such bodily sample for parentage testing as Medvet reasonably requires.
The husband and wife are hereby restrained and an injunction is granted restraining them from using, allowing or permitting any other person to use, any information or report obtained in relation to the paternity of the child Y for any purpose whatsoever other than proceedings in the Family Court of Australia for property settlement, spouse maintenance or child support without the written consent of the other person or further order of this Court.
The husband pay the costs of and incidental to the parentage testing procedures and preparation of the report relating to the information obtained as a result of carrying out such procedures.
IT IS NOTED that publication of this judgment under the pseudonym Ames & Ames is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4319 of 2008
| MR AMES |
Applicant
And
| MS AMES |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on the 9 April 2009 the husband, Mr Ames, sought, inter alia, an order:
“that the husband and the wife do all things necessary to facilitate paternity testing in accordance with the Family Law Act 1975 and the procedures prescribed in the Family Law Regulations of the child [Y] born on the […] day of May 1995.”
The wife, Ms Ames, opposes the Court making any such order.
Hearing and Submissions
The application was heard in the Judicial Duty List on the first occasion on the 15 April 2009 when it was agreed that the issue of the parentage testing would be determined on the evidence before me in the affidavits on file, together with submissions on behalf of the parties on the 8 May 2009.
On the 8 May 2009 Mr McGinn appeared as counsel for the husband and Mr Berman as counsel for the wife. I heard the submissions on behalf of both parties and gave both parties liberty to file and serve further written submissions in relation to the law within seven days. I reserved my decision.
I received the further submissions on behalf of the husband on the 12 May 2009 and those on behalf of the wife on the 14 May 2009.
Background
The husband was born in 1947 and is aged 62. The wife was born in 1956 and is aged 53. The wife arrived in Australia in November 1991. The husband and wife commenced living together in August 1994 and were married in January 1995.
The child of the marriage to whom these proceedings relate is Y Ames born in May 1995. He is therefore 14 years old.
Both parties have children by previous marriages.
The husband asserts that the date of separation of the parties was on the 20 October 2008. The parties disagree about what occurred on that occasion, but notwithstanding a police incident report and criminal charges being laid against the wife in relation to an alleged assault by the wife upon the husband, the parties continued to reside in the same premises at P.
By initiating application filed in the Federal Magistrates Court on the 3 November 2008 the husband commenced proceedings seeking final orders by way of property settlement and interim orders for sole use and occupation of the premises at P, together with an order that the wife forthwith vacate that property.
In his affidavit in support of that application (which was also filed in the Federal Magistrates Court of Australia on the 3 November 2008) the husband says in paragraph 4:
“There was one child born of our marriage namely [Y AMES] born […] May 1995 and now aged 13.”
On the 8 December 2008 the wife filed a response to the applications of the husband in which she sought final orders for property settlement in general terms, interim orders seeking the dismissal of the husband’s application and certain other orders concerning the former matrimonial home at P (including its sale, division of proceeds and that the wife have sole use and occupation pending its sale). There were other incidental orders sought by the wife.
At the same time the wife filed an affidavit in relation to the interim orders sought. A small part of the affidavit referred to the son Y (paragraphs 144 to 148).
On the 8 December 2008, Federal Magistrate Mead heard the matter with both parties represented. She made various procedural interim orders, including injunctions, but neither party was successful in obtaining an interim order for sole use and occupation. Further directions were adjourned to the 5 March 2009. Federal Magistrate Mead directed there be a Conciliation Conference on the 13 February 2009.
When the matter came on before Federal Magistrate Mead on the 5 March 2009, Federal Magistrate Mead transferred the proceedings to the Family Court as of Thursday, 12 March 2009.
“UPON NOTING that this matter involves complex issues and that there are currently District Court proceedings that may be sought to be dealt with contemporaneously with these proceedings pursuant to the accrued jurisdiction of the Family Court of Australia.”
The Conciliation Conference in February 2009 was not successful.
On the 11 March 2009 the wife filed an amended response to the initiating application, a further application in a case, together with a supporting affidavit. The application in a case again sought sole use and occupation of the former matrimonial home.
In that affidavit the wife asserts that she and the husband separated on the 4 October 2008 and have been living under the same roof but separated ever since.
By the time of the Conciliation Conference the wife had been made aware of proceedings which had been commenced by the husband in the District Court of South Australia. The documents subsequently annexed to the affidavit of the wife filed on the 7 April 2009 include a copy of the Summons in the District Court of South Australia (in which the husband is the Plaintiff and the wife is the Defendant) and the Statement of Claim in which the husband, inter alia, sought damages from the wife based upon an allegation of a false representation (and other matters) concerning the parentage of the child Y. Part 2 of the Statement of Claim reads as follows:
“Part 2
The remedies sought are:
1. An order that the Defendant has committed the Tort of Deceit.
2.An order that the Defendant pay to the Plaintiff all amounts paid or incurred by the Plaintiff with respect to:
2.1the Defendant;
2.2the Defendant’s child.
3.An order that the Defendant pay the Plaintiff damages for the stress occasioned by virtue of the deceitful representation.
4.An order that the Defendant pay the Plaintiff damages to be assessed.
5.An interest upon the sums claimed in paragraph 2, paragraph 3 and paragraph 4.
6.Costs.”
In her affidavit filed in the Federal Magistrates Court of Australia on the 11 March 2009 (document 9) the wife says:
“DNA Testing
23.Prior to Christmas 2008, [Y] told me that his father had taken him to a laboratory for testing with his older son, [T], to determine whether either of them were “likely to end up being sick with” the same illnesses the husband suffers from, including diabetes, hidradenitis suppurativa and lymphedema.
24.At no time did the husband notify me or seek to obtain my consent to undertake these tests, nor did he discuss any concerns he had about such issues.
25.Unbeknownst to me and [Y], the test that the husband ordered was in fact a DNA parentage test.
26.The husband subsequently told [Y] that the test results were that the husband was not [Y’s] father.
27.Understandably, [Y] was distressed and inconsolable about this.
28.The husband admitted to [Y] that the tests he had arranged at Medvet Laboratories were not tests in relation to his future health but tests to ascertain his parentage.
29.[Y] has struggled to deal with the breakdown of my relationship with the husband and had extensive counselling through his school late last year
30.The husband told me of what he had done and asserted that he was not [Y’s] father just before Christmas last year when he invited me to meet him at a café at […].
31.In support of this assertion, the husband told me that he had obtained a DNA test which confirmed he was not the biological father of [Y].
32.The husband has since provided me with a letter purporting to be from Medvet Laboratories dated 19th December 2008 a copy of which is annexed hereto and marked with the letter “A” which the husband says supports his assertion that [Y] is not his son.
33.I point out that the “results” specify that the document cannot be used for any legal purpose.
34.I consider by his actions, the husband is guilty of a serious assault on [Y].”
Annexure “A” to the wife’s affidavit is a Medvet Laboratories document dated the 19 December 2008 addressed to the husband which reads as follows:
“Re: Parentage testing procedure report for [Y AMES]
1.DNA testing was carried out on the bodily samples contained in the sealed containers bearing the names given below. As the samples were not collected in accordance with the Family Law Regulations, these results cannot be used for any legal purpose. The parentage testing procedure was carried out between the 08/12/08 and the 19/12/08. (Emphasis added)
[MR AMES] PUTATIVE FATHER
[Y AMES] CHILD”
Paragraphs 2 and 3 set out the results of the parentage testing procedures.
The wife said in paragraph 37 of her affidavit:
“I deny the allegation that the husband is not the biological father of the child [Y] and say that the “test” amounts to nothing.”
In this affidavit the wife also indicates that she will vigorously defend any claim in the District Court and asserts that she considers
“… that the husband’s conduct throughout these proceedings have been extreme and designed to escalate the angst and hostility between us whilst residing under the same roof”
The rest of the long affidavit deals with matters concerning sole use and occupation, property settlement and maintenance issues.
By application in a case filed in the Family Court of Australia on the 7 April 2009 the wife sought, inter alia, that:
“The Court exercise its accrued jurisdiction and join proceedings currently pending in the District Court of South Australia bearing Action No […] to be heard concurrently with these property settlement proceedings.”
Accompanying that application in a case filed on the 7 April 2009 is the affidavit of the wife annexing the Summons and the Statement of Claim from the District Court proceedings together with other documents, including copies of an interlocutory application seeking the dismissal of the District Court proceedings.
Subsequently, on the 9 April 2009 the husband filed the response to an application in a case (document 16) which sought sole use and occupation of the former matrimonial home pending the determination of the matter and:
“2.That the husband and the wife do all things necessary to facilitate paternity testing in accordance with the Family Law Act 1975 and the procedures prescribed in the Family Law Regulations of the child [Y AMES] born on the […] day of May 1995.
At that time he also filed two long affidavits in which he responded to the wife’s affidavits of the 5 December 2008 and 4 March 2009. In document 14 the husband responds to those paragraphs in relation to the DNA testing in the affidavit of the wife sworn on the 4 March 2009 and says as follows:
“DNA Testing
12.I refer to paragraph 23 of the wife’s Affidavit and say that I performed the swab on [Y] at our home. I did tell [Y] that I was taking the swab to determine whether he was likely to be suffering from any of my illnesses as I was attempting to shield him from any unpleasantness in relation to his paternity.
13.I refer to paragraph 24 of the wife’s Affidavit and admit that I did not obtain the wife’s consent to undertake the tests.
14.I refer to paragraph 26 of the wife’s Affidavit and say that when I received the results of the tests I was devastated. I broke down and cried. I made an appointment to see my psychologist the same day. However I did discuss the results with the wife’s brother-in-law. The topic of the DNA testing and result then became conversation in the house and I feared that [Y] would find out by his family or would overhear some conversation. Rather than allowing [Y] to find out by this way I thought it best to find out from me. I tried to (sic) as sensitive as I could in breaking this news to him. When I sat down to speak to [Y], [Y] said to me, before I had any opportunity to speak to him at all, “are you going to tell me that you are not my father”. I asked him how he knew and he stated “remember that day when mum tried to burn down the house with petrol and when we came back she said “he is not you (sic) real father any way””.
15.I refer to paragraph 29 of the wife’s Affidavit and say that the breakdown of our relationship has caused both myself and [Y] considerable distress. I am aware that [Y] is undertaking counselling. I have been communicating with [Y’s] counsellor and she has told me that he is doing well and she has undertaken to speak with me if [Y] becomes seriously affected or she has serious concerns for him. I am also receiving counselling with [Ms D], a psychologist. I see my counsellor once a week.
16.I refer to paragraph 30 of the wife’s Affidavit and say that I did speak with the wife about the results of the DNA testing that I had had undertaken.
17.I refer to paragraph 32 of the wife’s Affidavit and say that I had the parentage testing undertaken because I was hopeful of establishing that I was [Y’s] father. I have a very close and loving relationship with [Y].
18.I refer to paragraph 34 of the wife’s Affidavit and say that I was not aware that, in having conducting the parentage testing in the way that I did, that I was committing any offence or that the evidence will not be able to be used or (sic) for any legal purpose.
19.I refer to paragraph 37 of the wife’s Affidavit and say that I am now seeking orders that parentage testing be undertaken in respect of [Y] in accordance with the provisions of the Family Law Act and the Family Law Regulations.”
When the matter came on before me in the Judicial Duty List on the 15 April 2009 I made orders (inter alia) that the issue of parentage testing be determined by me on the papers on the 8 May 2009.
A consent order was made on the 8 May 2009 which provided that, inter alia, upon certain conditions the wife vacate the former matrimonial home and the husband have sole use and occupation of the former matrimonial home.
I heard the submissions concerning the orders sought by the husband for parentage testing.
Law
In the Family Law Act1975 (Cth) Part VII relevant sections are:
Division 5 parenting orders
What this Division does
s 64A This Division explains what parenting orders are.
Section 64B(1) states:
Meaning of parenting order and related terms
(1) A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
The matters with which a parenting order may deal now include s 64B(2)(i):
A parenting order may deal with one or more of the following:
…
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Prior to the amendments, s 64B(2) stated:
(2) a parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b)contact between a child and any other person or persons;
(c)maintenance of a child;
(d)any other aspect of parental responsibility for a child.
Subdivision E of Division 12 of Part VII deals with Parentage Evidence.
Section 69W of the Family Law Act provides:
Orders for carrying out of parentage testing procedures
(1)If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of a child.
(2)A court may make a parentage testing order:
(a)on its own initiative; or
(b)on the application of:
(i)a party to the proceedings; or
(ii)a person representing the child under an order made under section 68L.
(3)A parentage testing order may be made in relation to:
(a)the child; or
(b)a person known to be the mother of the child; or
(c)any other person, if the court is of the opinion that, if the parentage testing procedure were to be carried out in relation to the person, the information that could be obtained might assist in determining the parentage of the child.
Section 69ZB states:
Regulations about carrying out, and reporting on, parentage testing procedures
The regulations may make provision relating to:
(a)the carrying out of parentage testing procedures under parentage testing orders; and
(b)the preparation of reports relating to the information obtained as the result of carrying out such procedures.
Detailed regulations concerning the procedures and reports for parentage testing are set out on Part IIA of the Family Law Regulations 1984 (Cth).
In particular regulation 21M(5) states:
“(5)A report completed otherwise than in accordance with this regulation is taken to be of no effect.”
Section 69X
Orders associated with parentage testing orders
(1)If a court makes a parentage testing order, it may also make orders under subsection (2) or (4).
(2)The court may make such orders as it considers necessary or desirable:
(a) to enable the parentage testing procedure to be carried out; or
(b)to make the parentage testing procedure more effective or reliable.
(3)Some examples of the kinds of orders the court may make under subsection (2) are as follows:
(a) an order requiring a person to submit to a medical procedure;
(b)an order requiring a person to provide a bodily sample;
(c)an order requiring a person to provide information relevant to the person's medical or family history.
(4)The court may make such orders as it considers just in relation to costs incurred in relation to:
(a)the carrying out of the parentage testing procedure or other orders made by the court in relation to the parentage testing procedure; or
(b) the preparation of reports relating to the information obtained as a result of carrying out the parentage testing procedure.
Section 69W is part of Subdivision E of Division 12 in Part VII of the Family Law Act 1975 (Cth) since the shared parental responsibility amendments in 2006.
Section 43(1)(c) of the Family Law Act 1975 states:
Principles to be applied by courts
(1)The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
…
(c)the need to protect the rights of children and to promote their welfare;
If the order for parentage testing is a parenting order, then the following sections of the Act are relevant.
Section 60CA states:
Child’s best interest paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC states:
How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 65AA states:
Child's best interests paramount consideration in making a parenting order
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 69P(1) of the Family Law Act 1975 provides:
Presumptions of parentage arising from marriage
(1)If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband.
Section 8 of the Family Relationships Act 1975 (SA) provides:
8. Presumption as to parenthood
Subject to Part 2A, a child born to a woman during her marriage, or within ten months after the marriage has been dissolved by death or otherwise, shall, in the absence of proof to the contrary, be presumed to be the child of its mother and her husband or former husband (as the case may be).
Part 2A is not relevant in this matter.
Part of the submissions in this matter included the determination of the evidentiary status of the Medvet report annexed to the wife’s affidavit. In this regard therefore the provisions of Sections 135, 136 and 138 of the Evidence Act 1995 (Cth) need to be considered.
Section 135 states:
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing; or
(c)cause or result in undue waste of time.
Section 136 states:
General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a)be unfairly prejudicial to a party; or
(b) be misleading or confusing.
Section 138 states:
Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note:The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986 .
These sections of the Evidence Act have not been set aside for the purposes of proceedings under Part VII of the Act as they do not fall within those sections set out in s 69ZT(1).
In any event it may be that the proceedings for property settlement (being the proceedings in which the paternity is an issue) are not “child-related proceedings” as defined in s 69ZM.
Because of the provisions of s 138 of the Evidence Act (Cth) it is also necessary to consider whether the provisions of the Criminal Law Consolidation Act 1935 (SA) , s139 may apply:
Division 5—Deception
139—Deception
A person who deceives another and, by doing so—
(a) dishonestly benefits him/herself or a third person; or
(b)dishonestly causes a detriment to the person subjected to the deception or a third person,
is guilty of an offence.
Although for many years there has been some public discussion about the possibility of introducing legislation to apply the principles of privacy to genetic information it does not appear that any legislation has been passed.
Relevant Recent Cases
In May 2007 his Honour Justice Coleman delivered his judgment in Tryon and Clutterbuck (2007) FLC 93-332. His Honour heard an appeal from a Federal Magistrate who had ordered that the children and parties undergo parentage testing. In paragraphs 26 to 30 of the judgment His Honour said:
“26.The first question is thus, was the order a parenting order? The court makes two observations: the first is that without expressing a concluded view, it is reasonably apparent as a matter of statutory construction that an order under s69 W is, in fact, a parenting order as that term is known or to be understood within the context of the Act.
27.The second observation is that for reasons which will shortly be outlined, it is ultimately not critical for present purposes to determine that issue in favour of the present appellants. That is to say, the outcome of this appeal would not differ whether or not an order under s 69W is, in fact, a parenting order.
28.The court’s reasoning which leads it to conclude, however, that the order under s 69 was a parenting order, proceeds as follows. Section 64B(1) of the Act, which is headed “Meaning of parenting order and related terms” outlines what a parenting order is or, perhaps more accurately for present purposes, indicates how that question is decided.
29.Relevant for present purposes then is s 64B(2)(i) which provides:
(2) A parenting order may deal with one or more of the following: …
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
30.It is tolerably clear that the paternity of a child is an aspect of the welfare of a child. That is to say who is, or is not, a child’s biological father as a matter of commonsense, appears to be capable of being an aspect of the welfare of that child. That being so, an order under s 69W would be a parenting order. The significance of that, as the submissions for the appellants make clear, is that s 60CA is enlivened. Section 60CA of the Act says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” (Emphasis added)
At paragraph 34 His Honour said:
“34.… Ultimately, the court is not persuaded that the distinction between parenting order and something else is of significance in this appeal.”
At paragraph 49 His Honour said:
“49.In all the circumstances, with great respect to His Honour and having proper regard to the circumstances in which he found himself, the issues before him were sufficiently serious, the implications of his decision either way sufficiently grave, that some greater indication of the reasons which led him to conclude as he did was required. The case for the appellants become stronger if, as the court is inclined to conclude, the order was a parenting order, but if it was not, the court considers that either of the challenges embodied in ground 1 succeeds, namely, that the reasons were inadequate, or that the reasons fail to have regard to a number of material facts and circumstances.” (Emphasis added).
These comments suggest that the remarks concerning classification of the order as a “parenting order” were obiter dicta. They are nonetheless useful if not persuasive comments.
His Honour directed the matter be heard by another Federal Magistrate.
The decision of FM Henderson is not binding on this Court, but it is interesting to note that the Federal Magistrate on rehearing the matter considered it was mandatory to apply s 60CC to the determination of the application for DNA testing.
In November 2008, the Full Court of the Family Court of Australia (Coleman, Boland and Stevenson JJ) delivered their reasons for judgment in the matter of Jacks and Samson (2008) FLC 93-387. One of the grounds of appeal related to the mother’s challenge to the order of the Judge at first instance that the mother undertake psychotherapy treatment. Part of the reasons include discussion whether s 64B(2)(i) provided the power to support that order which is described as a “stand-alone” order, similar to that considered in L v T (1999) FLC 92-875. The relevant passages of that judgment are as follows:
“211.We turn then to consider whether the order can be supported under s 64B(2)(i). There can be no doubt that s 64B(2) enables a court to make orders similar to those made prior to the amending Act as specific issues orders, to include provision that time to be spent by a parent or other person with a child is dependent on that parent or person undergoing psychiatric treatment. But that is not the case here. Rather the parents’ parental responsibility for the children is not dependent upon compliance with Order 10. The children continue to live with the parents who will make decisions for their day to day welfare without the necessity for any court order to that effect.
212.Order 10 is an order which compels the mother to undergo medical treatment which Dr Milch considered could require therapy over an extensive period of time, at her cost (Transcript, 6 February 2008, p 88). On its face, it has no direct nexus to “any other aspect of the care, welfare and development” of the children, and is a “stand alone” order as was the order in L & T.
213.Given the ambiguity as to what is encompassed by s 64B(2)(i) we have had to resort to the Revised Explanatory Memorandum (see Acts Interpretation Act 1901 (Cth) s 15AB). It provides no commentary on s 64B(2)(i). However, paragraph 173 of the Explanatory Memorandum gives some background to the amendments:
New subsection 64B(2) provides greater detail and clarity about the matters that a parenting order can deal with. These matters include who a child is to live with, the time and other communications the child is to have with another person or persons, the allocation of parental responsibility and the form of consultations persons with parental responsibility are to have with one another. In particular, paragraph 64B(2)(g) provides that a parenting order may deal with the steps that should be taken before an application is made to a court for a variation of the order. Paragraph 64B(2)(h) provides that a parenting order may deal with the process to be used for resolving disputes about the terms or operation of the order. The aim is to ensure orders are appropriately framed and flexible to reduce the need for people to go to court about the operation or variation of parenting orders.
…
216.While as the Full Court found in L & T that it would be extremely beneficial and in the best interests of the welfare of a child, for a parent not to smoke in the child’s presence, we are not satisfied that s 64(2)(i), without more, permits a court to make a parenting order that a parent attend a quit smoking course. Our reasoning is analogous to the reasoning of the Full Court in L & T when discussing the welfare power in s 67ZC(1). The situation would, of course, be different if that parent sought an order for a child to live with, or spend time with him or her, and a court found that during such periods the parent would smoke in a car whilst the child is in the car, or in the house where the child was residing whilst living, or spending time, with the parent. Then the parenting order made in favour of the parent for the child to live with (or spend time with) the parent could be conditional upon attending the quit smoking course as being in the best interests of the child. In our view s 64B(2)(i) confirms and clarifies the law in this regard.
217.We note that in Sampson & Hartnett (No 10) (2007) FLC 93-350 Bryant CJ and Warnick J did not consider s 64B(2)(i) supported an order that required a parent to live in a particular place (see paragraph 30).
218.It may be cogently argued that his Honour made this order to ensure the mother’s capacity to cope with the grandparents spending time with the children, and absent the order it was probable that her stress could affect her parenting capacity and thus adversely impact on the children. Thus the order, although on its face not appearing to be a parenting order, could arguably be so classified, being one being which deals indirectly with an aspect of the care welfare or development of the children. However, the form of the order as made rather reflects the form of a mandatory injunction compelling the mother to undertake medical treatment. It is not a parenting order made in favour of the mother (or the grandparents) (see s 64B(6)).
…
223.As we have already noted, counsel for the grandparents submitted that s 61C and/or s 64B(2)(i) provided the relevant source of power to make the order. It does not appear to us as presently advised, that the amendments to s 64B(2), and in particular the addition of the words “any aspect of the care, welfare or development of the child” introduced by the amending Act were intended to enable a court to make orders directed to parents or other persons (in intact or separated families) to engage in a course of conduct which may benefit a child not directly connected to, or conditional upon, a parenting order for the child to live with, or spend time with, that parent or person. We do not, for the reasons earlier expressed, and having regard to the following matters, accept that submission.
224. In reaching this conclusion, we have had regard to the following:
·in appropriate circumstances s 67ZC may support the making of an order compelling a parent to engage in particular conduct necessary for the welfare of a child independently of a parenting order being made;
·the s 64B(2)(i) deals with an aspect of a parenting order;
·a parenting order is made in favour of a person;
·if the legislation had intended provide for making of “independent” orders under s 64B(2) it would have done so explicitly; and
·the explanatory memorandum does not suggest such an intention.
225.In summary, while we are satisfied the trial Judge was entitled to rely on the mother’s expressed willingness to undertake voluntary therapy in reaching his overall conclusions for the parenting orders made, absent her consent to an order for such therapy, the order made is not supported in the circumstances of this case, under s 61C or s 64B(2)(i).”
The Court concluded that the order could however be made using the power of s 67ZC.
Obviously in this case the Court has power because of the specific provisions of s 69W of the Family Law Act to make the parentage testing order, however, the need to consider the best interests of the child as paramount and the provisions of s 60CC are dependent upon the order being one which falls within the description of a parenting order.
Cases decided before the amending legislation of 2006 which considered the application of s 69W have specifically dealt with the discretion to make the order and the prerequisites for exercising that discretion. The Full Court gave consideration to the requirements in In the Marriage of Lee and Tse (2005) 33 Fam LR 167.
Parts of that judgment are:
“29.The Court’s power to make an order for parentage testing is clearly subject to the parentage of the child being ‘a question in issue’ in proceedings under the Act. To satisfy this threshold question, the authorities suggest that the applicant must overcome two hurdles. First, parentage must be relevant to the nature of the proceedings. In Duroux v Martin (1993) FLC 92-432, the Full Court observed:
“… [A] Court must first be satisfied that the parentage of a child is in issue in proceedings under the Family Law Act. The proceedings, which are a necessary precondition, may, for example, involve the matter of child maintenance, custody or access in which the question of parentage is an issue”.
30.The Full Court was of the view that jurisdiction would also be established where the only pending application before the Court was brought pursuant to the provisions of the Child Support (Assessment) Act 1989.
31.In McK and K v O (2001) FLC 93-089, Mullane J considered an application for a parentage declaration in circumstances where there were no other proceedings and the alleged father was dead. His Honour dismissed the application for a parentage declaration and noted that parentage testing orders could not have been made for two reasons. First, that there were no proceedings before the court where parentage was a question in issue and, secondly, that ss 69W(1) and (3) of the Act related to bodily samples from live persons rather than human remains.
32.Mullane J considered the unreported Full Court decision of W v J and S [1998] FamCA 44 in which the Full Court (consisting of Fogarty, Baker and Kay JJ) upheld the decision of Moore J. Her Honour found that a Magistrate erred in making a parentage testing order where there were no other current proceedings under the Act in which parentage was an issue. Baker J noted that an application for an order for parentage testing was not of itself sufficient to give the Court power to order parentage testing.
33.The second component of the threshold question is that there must be evidence which places the parentage of a child in doubt: Duroux v Martin (supra), OP and HM (2002) FLC 98-017 (in Australian Child Support Cases 1998-2003). In the former case, the Full Court adopted the formulation by the trial Judge, Bell J, regarding the occasions when the Court might exercise its discretion under s 69W (formerly s 66W):
"I cannot envisage a situation where the Court will order parentage testing merely because it is requested to do so. In my view an applicant must have an honest, bona fide and reasonable belief as to the doubt. An objective test is not to be applied, for the evidence in such applications is seldom (if ever) sufficient to enable the Court to come to any objective conclusion, and if it were, parentage testing orders would not be necessary, but the Court will objectively assess the circumstances giving rise to the applicant's belief” (Emphasis added).
34.In OP v HM (supra) the Full Court applied Duroux v Martin (supra) in upholding Martin J’s dismissal of an application for parentage testing. The Full Court accepted the trial Judge’s finding that the husband could not have had either a bona fide or reasonable belief that he was anything other than the father of the child. The trial Judge found that the husband accepted he was the father of one of the children and, as to the other child, the only evidence he adduced was a calculation putting the possible date of conception at a time when he was not having sexual intercourse with the mother over a period of weeks. He did not provide any medical or other evidence to support this calculation. The trial Judge concluded, ‘there is no cogent evidence putting in issue the paternity of the children, apart from the husband harbouring doubts’.”
Earlier cases such as Diggins and Diggins (1992) FLC 92-299 and In the marriage ofF and R (1992) FLC 92-300 emphasised that there needs to be more than simply one party seeking a paternity test.
Discussion
There are no proceedings before the Court between the parties which relate to the child, other than the order which the husband seeks for a parentage test. Neither party is seeking any orders directing Y to live with one of them, spend time with one of them or communicate with one of them. The only orders being sought which relates to Part VII of the Family Law Act 1975 (Cth) is the order for parentage testing itself.
Both parties seek property settlement orders. The husband submits that the question of paternity is an issue in the property settlement proceedings between the parties.
The provisions of s 79 require the Court to make a property settlement which is just and equitable in all the circumstances.
Section 79(4)(g) refers to:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
…
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage. (Emphasis added).
The provisions of s 79(4) require the Court to consider factors set out in s 75(2). Relevant subsections are:
S 75(2) - Matters to be taken into consideration in relation to spousal maintenance
…
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e)the responsibilities of either party to support any other person;
…
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
…(Emphasis added)
The definition of “child of a marriage” in s 4 does not assist in this case.
Section 69W does not require that the proceedings are proceedings under Part VII. It simply refers to proceedings under this Act. Whilst, therefore it is necessary for there to be other proceedings besides the simple application for parentage testing, on the face of it the specific sections 69V, 69VA and 69W simply refer to “proceedings under this Act”.
Previous cases have considered parentage testing orders where the proceedings to which they relate have been child support or spouse maintenance. (Duroux v Martin (1993) FLC 92-432).
I am satisfied that the factors relating to property settlement proceedings (such as the contributions of the parties and the future needs and obligations of the parties and their financial circumstances) will require a determination of the parentage of the child. Thus the husband overcomes what has been described as the “first hurdle”.
The second hurdle is described as the need to be satisfied that there is an honest bona fide and reasonable belief as to the doubt of paternity before the exercise of discretion should be considered.
The cases suggest this is not an objective test (In the marriage of F and R (supra) per Justice Butler).
The child of the marriage was born in May 1995. The parties were married in January 1995. It is asserted however that they commenced living together in August 1994. There is no specific reference in the husband’s affidavits which sets out the basis for his doubt as to the paternity of Y.
However in paragraph 14 of the husband’s affidavit filed on 9 April 2009 (document 14) the husband refers to the conversation he had with the child:
“14.I refer to paragraph 26 of the wife’s Affidavit and say that when I received the results of the tests I was devastated. I broke down and cried. I made an appointment to se my psychologist that same day. However I did discuss the results with the wife’s brother-in-law. The topic of the DNA testing and result then became conversation in the house and I feared that [Y] would find out by his family or would overhear some conversation. Rather than allowing [Y] to find out by this way I thought it best to find out from me. I tried to (sic) as sensitive as I could in breaking this news to him. When I sat down to speak to [Y], [Y] said to me, before I had any opportunity to speak to him at all, “are you going to tell me that you are not my father”. I asked him how he knew and he stated “remember that day when mum tried to burn down the house with petrol and when we came back she said “he is not you (sic) real father any way”
The husband relies upon the Medvet report to establish a basis for his honest, bona fide, reasonable doubt.
The wife brought the Medvet report to the attention of the Court by annexing it to an affidavit in which she complains about the behaviour of the husband in the context of her application for sole use and occupation.
The facts agreed by both parties establish that the husband did not tell the child the truth when he took a swab from the child. He did not tell the child that it was for a paternity test. He told the child it was to ascertain the likelihood of the child suffering from similar medical conditions as that of the husband.
There is considerable lack of reliable independent evidence about the background and basis for the Medvet test. The procedures required by the Regulations were not followed.
The complete lack of reliable basis for the test makes the Medvet report one that carries very little weight. It is not proper to admit it as evidence of the paternity of the child.
Both the husband and wife have provided the Court with evidence that there has been an attempt to carry out a test to establish Y’s paternity. However this is not admissible evidence which could be described as “some evidence that the child is not the biological child of the husband”. I reject the suggestion that the Medvet test is evidence which establishes a prima facie case for the issue to be determined.
The evidence of the husband and wife however indicates that the husband has taken steps to attempt to ascertain Y’s paternity.
The steps taken by the husband support a finding that the husband had a doubt about the child’s parentage.
The provisions of the Evidence Act need to be considered when determining whether the results of the Medvet test should be admitted.
S 138 - Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
The husband admits that he obtained the swab from the child by telling him it was for a medical test not related to paternity. He admits that he did this knowing it was a lie. It is possible that this behaviour falls within the description of deception contained in the Criminal Law Consolidation Act 1935 (SA).
Division 5—Deception
139—Deception
A person who deceives another and, by doing so—
(a) dishonestly benefits him/herself or a third person; or
(b)dishonestly causes a detriment to the person subjected to the deception or a third person, is guilty of an offence.
His behaviour may therefore be in contravention of an Australian Law.
In any event I consider the evidence of the paternity test has been obtained improperly. There are a limited number of cases which deal with the question of improperly obtained evidence in civil proceedings, however, the conduct of the husband which was the basis upon which the Medvet report was carried out, easily fits the description of “improper” using the ordinary meaning of the word.
When considering whether the desirability of admitting the evidence outweighs the undesirability of admitting it is easy to come to the conclusion that the Court should not receive the evidence of the results of a test, not only because of the way the father attempted to obtain the biological material for the test, but also because of the lack of weight which could be given to the test taking into account all of the circumstances of the test.
I therefore find that the Medvet report should not be received as evidence of the paternity of Y. This however does not set aside the evidence that the husband attempted to obtain evidence about the child’s paternity using these improper methods.
Having indicated that the Medvet report should not be received as evidence, I am nonetheless satisfied that there is evidence which establishes that the parentage of the child is a question in issue in the property settlement proceedings and that therefore the Court must consider the discretion to order a parentage testing procedure.
As previously indicated the Court is not being asked to make any decision concerning parental responsibility for the child, where the child should live or with whom the child should spend time. The Court is being asked to make an order described as “a parentage testing order” which is one made for the purpose of obtaining information to assist the Court in determining the parentage of the child.
Considering carefully the decision of his Honour Justice Coleman in Tryon and Clutterbuck (supra) and the Full Court (of which Justice Coleman was a member) in Jacks and Samson (supra), I conclude that the parentage testing order is an order which relates to the Court’s determination of the parentage of a child and that the order for parentage testing is an order which deals with an aspect of the welfare of a child. I agree with his Honour Justice Coleman that determining who is or who is not a child’s biological father is capable of being an aspect of the welfare of that child and that therefore an order under s 69W would be a parenting order within the definition of s 64B(2)(i) (see paragraph 30 of Tryon and Clutterbuck (supra)).
The best interests of the child are the paramount consideration in deciding whether to order the parentage testing procedure. (Section 60CA).
Thus the Court is required to consider the matters in s 60CC.
The primary considerations are s 60CC(2)(a) and (b).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
The whole point of the parentage testing procedure is to determine whether the father is the biological parent. The evidence indicates that the husband has already told the child that he is not the child’s biological parent. The wife asserts that this has had a significant detrimental effect upon the previous relationship between the husband and the child.
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
The husband has already told the child that he is not his father. The questions of abuse, neglect or family violence do not relate directly to the question of parentage testing.
Additional considerations
Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
The child is 14. He is aware that the husband doubts he is his father. The Court has no direct evidence about the wishes of the child about parentage testing.
(b)the nature of the relationship of the child with:
(i)each of the child's parents;
The whole issue of parentage testing is directed to determining whether that relationship is a relationship between a child and his father or a relationship between a child and a man who is married to his mother but is not his father.
(b)the nature of the relationship of the child with:
(ii)other persons (including any grandparent or other relative of the child);
This subsection is capable of being wide enough to consider the relationship between the child and the husband as the step-parent of the child. The relationship may have already been hampered by the husband’s behaviour.
Subsections (c) to (h), (j) and (k) are not relevant to the decision about a parentage testing order.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is possible to argue that one of the responsibilities of parenthood is to assist the child in knowing the truth about his biological background. However, it is possible to argue that other factors might outweigh the benefits of knowing the history of ones biological, medical and genetic background.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This is not relevant. Apart from the parentage testing orders there are no current proceedings which could be described as “proceedings in relation to the child”.
(m)any other fact or circumstance that the court thinks is relevant.
The case for the wife includes the assertion that the husband is seeking the parentage testing order for an ulterior purpose namely, he wishes to obtain the evidence in order that he can proceed with his District Court proceedings in which he is seeking damages against the wife based upon the alleged deceit concerning the child’s paternity.
The history of the conduct of the proceedings in the Family Court of Australia and the timing of each of the applications and proceedings before this Court and the District Court certainly form a basis for a reasonable belief that the parentage testing order is sought by the husband in order to assist him in pursuing his claim against the wife for substantial damages.
Section 69W specifically says in subsection (4) “A parentage testing order may be made subject to terms and conditions”.
Section 69ZC(1) provides that “A report made in accordance with regulations covered by paragraph 69ZB(b) may be received in evidence in any proceedings under this Act”.
Rule 1.09 and 1.10 of the Family Law Rules 2004 provide:
Rule 1.09
Procedural orders in cases of doubt or difficulty
If the court is satisfied that:
(a) legislative provision does not provide a practice or procedure; or
(b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;
it may make such orders as it considers necessary.
Rule 1.10
Court may make orders
(1)Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.
(2) When making an order, the court may:
(a)impose terms and conditions;
(b)make a consequential order;
(c)specify the consequence of failure to comply with the order; and
(d)take into account whether a party has complied with a pre-action procedure.
The Family Law Act 1975 (Cth) and Family Law Rules 2004 do not make specific provision concerning the use of documents in proceedings. However, the Federal Court Rules provide in Order 15 r18 as follows:
Use of documents
Any order or undertaking, whether express or implied, not to use a document for any purpose other than those of the proceedings in which it is disclosed shall cease to apply to such a document after it has been read to or by the Court or referred to, in open Court, in such terms as to disclose its contents unless the Court otherwise orders on the application of a party, or of a person to whom the document belongs. (Emphasis added).
The Federal Magistrates Court Rules 2001 provide in Regulation 14.11
Use of documents
(1)An order or undertaking, whether express or implied, not to use a document for any purpose other than for the proceeding in which it is disclosed does not apply to the document after it has been read to or by the Court or referred to in open Court in such terms as to disclose its contents.
Note An implied undertaking arises where documents are produced in the process of discovery: Harman v Secretary of State for the Home Department [1983] 1 AC 280.
(2)Subrule (1) does not apply to a family law or child support proceeding and is subject to any order of the Court on the application of a party or of a person to whom the document belongs. (Emphasis added).
The report completed after parentage testing procedures would not be a document produced through the process of discovery. It is a document which will be received in evidence.
In the recent High Court of Australia decision of Hearne v Street (2008) 235 CLR 125 the High Court considered the common law rules in relation to the use of affidavits or expert reports and information contained in those reports for any purpose not directly connected with the conduct of the original proceedings.
In particular Kirby J at paragraph 51 said:
“Of course, I recognise that there are arguments supporting the retention of the "implied undertaking" concept, or at least of a substantive prohibition on the release of documents such as those in question in this appeal. For example:
·Materials prepared for use in court may sometimes be provided under legal compulsion and are deserving of protection on that basis;
·Such materials may occasionally disclose private, confidential or secret information in respect of which the disclosing party might wish to seek protection at the trial from the court concerned;
·The material is not, as such, evidence in court until formally received, and some such material might be excluded by the court as irrelevant, objectionable, unfairly prejudicial or otherwise inadmissible; and
·Judicial supervision of the admission of evidence in a trial affords protection not only to those providing the evidence and to the parties to the proceedings, but also to third parties and the public, whose interests might be affected adversely by the privileged publication, and consequent republication, of the evidence.”
At paragraphs 95 and 96 Hayne, Heydon & Crennan JJ said:
“95.Before turning to the appellants' submissions in relation to the extent and enforceability of the "implied undertaking", it is desirable to set out some background legal principles which were not in controversy.
96.Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise(93), to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery(94), answers to interrogatories(95), documents produced on subpoena(96), documents produced for the purposes of taxation of costs(97), documents produced pursuant to a direction from an arbitrator(98), documents seized pursuant to an Anton Piller order(99), witness statements served pursuant to a judicial direction(100) and affidavits(101). The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.” (Footnotes omitted)
The Court is able of its own initiative to impose conditions upon the order for parentage testing when considering the best interest of the child.
It is appropriate for the Court to exercise its discretion to impose conditions upon the granting of the order to protect the child and to ensure that the report obtained for the purposes of proceedings in the Family Law Act 1975 (Cth) is not used for purposes other than these proceedings.
Such a restriction would benefit the child by reducing any negative impact associated with the preparation of the report and the report itself and at the same time ensure that the parties are not making improper use of proceedings in this Court.
The husband is seeking these orders which are opposed by the wife. Taking into account the circumstances of the parties in these proceedings, and in particular s 69X(4),it is considered just that the costs of the parentage testing procedure and the preparation of the report (obtained as a result of carrying out the parentage testing procedure) should be borne by the husband.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.
Associate:
Date: 4 September 2009
Key Legal Topics
Areas of Law
-
Family Law
-
Evidence
-
Civil Procedure
Legal Concepts
-
Injunction
-
Costs
-
Jurisdiction
-
Procedural Fairness
-
Remedies
0
1
8