Anka Vuksic v Permanent Trustee Co Ltd - [2007] NSWSC 477

CITATION: Anka Vuksic v Permanent Trustee Co Ltd [2007] NSWSC 477

HEARING DATE(S): 27/04/07

JUDGMENT DATE :
27 April 2007

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 27 April 2007

DECISION: See paragraphs 13 and 14 of judgment.

CATCHWORDS: FAMILY LAW – Parentage – Parentage testing – Claim under Family Provision Act 1982 (NSW) – Paternity in issue – Whether parentage test should be ordered – Distress caused by imputation of mother’s alleged infidelity not sufficient ground to refuse testing – Where sample from deceased not taken in accordance with s 31 of the Status of Children Act 1996 (NSW) and Status of Children Regulation 2003 (NSW) – Seriously arguable that s 31 of the Status of Children Act 1996 (NSW) and procedures set out in Status of Children Regulation 2003 (NSW) do not provide exclusive means by which parentage report can be admissible in proceedings under Family Provision Act 1982 (NSW) – Admission of deceased’s results might not be required in ultimate proceedings where plaintiff’s parentage testing results could be compared with siblings’ results – Order that parentage testing procedures be undergone by plaintiff. - FAMILY LAW – Parentage – Parentage testing – Claim under Family Provision Act 1982 (NSW) – Paternity in issue – Whether parentage test should be ordered against persons not joined as parties to proceedings – Order refused. - (NSW) Status of Children Act 1996 – s 3(1), 26, 31 - (NSW) Status of Children Regulation 2003 – r 5 - (NSW) Family Provision Act 1982

LEGISLATION CITED: Status of Children Act 1996 (NSW)
Status Of Children Regulations 2003 (NSW)
Family Provision Act 1982 (NSW)

CASES CITED: Re: “M” [2002] NSWSC 158

PARTIES: Anka Vuksic
v
Permanent Trustee Co Ltd

FILE NUMBER(S): SC 1334/05

COUNSEL: Plaintiff: J Izzo
Defendant: S Hill

SOLICITORS: Plaintiff: de la Rosa Izzo Solicitors
Defendant: Minter Ellison

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Friday, 27 April 2007

1334/05 Anka Vuksic v Permanent Trustee Co Ltd

JUDGMENT

1 HIS HONOUR: This is an application for an order pursuant to s 26 of the Status of Children Act 1996 (NSW) that the plaintiff undergo parentage testing procedures as defined by subs 3(1) of that Act and regulation 5 of the Status Of Children Regulation 2003 (NSW).

2 The plaintiff has made a claim under the Family Provision Act 1982 (NSW) for provision out of the estate of the late Martin Votrubec. An issue in the proceedings is whether she is the daughter of the deceased. It appears clear that the deceased married the plaintiff’s mother in Croatia but the issue is raised having regard to some evidence that the deceased denied his paternity.

3 The presumption that a child born from a woman during a marriage is presumed to be a child of the woman and her husband is rebuttable. Section 26 provides that the Court may make an order requiring a parentage testing procedure to be carried out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Anka Vuksic v Permanent Trustee Co Ltd [2007] NSWSC 477
Case: [2007] NSWSC 477
Decision Date: 27 April 2007

CaseChat Overview and Summary

Anka Vuksic brought a claim against Permanent Trustee Co Ltd under the Family Provision Act 1982 (NSW), challenging the validity of a will on the basis that she was the daughter of the deceased, Kosta Vuksic, and therefore entitled to a provision from his estate. The dispute centred on whether a parentage test should be ordered to determine paternity. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether a parentage test should be ordered to determine if the plaintiff, Anka, was indeed the daughter of the deceased, Kosta. A secondary issue was whether the parentage test could be ordered against persons not joined as parties to the proceedings.

The court found that the distress caused by the imputation of the mother's alleged infidelity was not a sufficient ground to refuse the testing. Furthermore, the court held that the statutory provisions and regulations governing the taking of samples for parentage testing under the Status of Children Act 1996 (NSW) and Status of Children Regulation 2003 (NSW) did not necessarily provide the exclusive means by which a parentage report could be admissible in proceedings under the Family Provision Act 1982 (NSW). The court reasoned that the deceased's results might not be required in the ultimate proceedings if the plaintiff's parentage testing results could be compared with those of her siblings. The court thus ordered that Anka undergo parentage testing procedures. However, the court refused to order parentage testing against persons not joined as parties to the proceedings, as it found that such an order would be an inappropriate exercise of the court's discretion.

Orders