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 in proceedings where the parentage of a child is in issue. Such an order may be made in respect to, amongst others, the child in question. Subsection 26(4) provides that in deciding whether such an order should be made, the Court must consider and determine any objection made by a party to the proceeding on account of medical, religious or other grounds and if it determines that objection is valid, to take that objection into account in deciding whether to make the order.

4 Prior to the deceased's death, a blood sample of the deceased was taken. It was not taken in accordance with the procedures prescribed by the Status of Children Regulation. However, that may not preclude its being a reliable sample for the purposes of determining parentage.

5 The objections of the plaintiff to the order sought are twofold. First, she objects, as I understand it, on the ground that the imputation made in the proceedings as to the alleged infidelity of her mother is a distressing imputation. I take it that she considers that being required to be subjected to a test by giving a blood sample will add to that distress. Secondly, she contends that because the deceased's blood sample was not taken in accordance with the prescribed procedures, no evidence obtained as a result of the comparison between a sample which may be taken from her with the deceased's sample would be admissible.

6 I do not consider that the first of these objections is a sufficient reason for refusing the order sought. It is the making of the allegation that the plaintiff is not the deceased’s daughter which is the cause of the distress to which the plaintiff's solicitor refers. That distress will not be relieved by a refusal of the order. The issue will remain to be decided, and decided in a public forum, in a way which is likely to add to that distress. If anything, the taking of a sample which determines one way or the other whether the plaintiff is the deceased’s child should reduce, rather than increase, such emotional distress.

7 The second objection may have more substance. In Re: “M” [2002] NSWSC 158, Campbell J said (at [20]):

“ 20 While it is open to the court to make declarations of parentage under s 21 on the basis of whatever evidence seems to the court to be appropriate, when the court is asked to act on the basis of evidence of DNA testing procedures, proved by tender of a report under s 31 of the Act, the Court has no power to act on the results of parentage testing procedures which did not follow the strict regime which has been laid down by the Act and the Regulation. Indeed, once it is clear that the procedures laid down by the Act and Regulation have not been followed, s 31 does not enable the report to be received in evidence. ”

8 Section 31 provides that a report made in accordance with the Regulation may be received in evidence in any proceedings under the Act. I do not think the present application is the occasion to determine questions of admissibility of evidence at the final hearing. Indeed, prima facie it would appear to me that Campbell J was referring to the admissibility of reports under s 31 in proceedings brought under the Act for a declaration of paternity. The present proceedings are not of that kind. It is at least seriously arguable that in proceedings under the Family Provision Act, s 31 does not provide the exclusive means of proving parentage by expert opinion following the taking of blood samples and the carrying out of paternity tests. In my view, that question should await a final hearing.

9 There is also some evidence that the Australian children of the deceased would be prepared to consent to orders under s 26 of the Status of Children Act. There is evidence that a comparison of blood or other bodily samples taken from the Australian children of the deceased with a sample taken from the plaintiff would provide a substantial degree of probability as to whether the plaintiff is the deceased’s child. Accordingly, even if the results of testing samples taken from the deceased would not be admissible, it does not follow that no use could be made in the proceedings of a sample to be taken from the plaintiff.

10 The procedure for taking a blood sample is straightforward and should be painless. It will be appropriate, however, for the medical practitioner on whom the plaintiff is to attend for the purpose of taking a sample to act in accordance with the Regulation for the taking of the sample, and I think the orders should provide for the plaintiff to use her best endeavours to ensure that that is done. The plaintiff is a resident of Switzerland and it cannot be expected that the medical practitioner on whom she attends in Switzerland will be familiar with the procedures required by the New South Wales Regulation.

11 The defendant also seeks an order that the five Australian children provide bodily samples for DNA testing. They were not joined as parties to the application. There is evidence from the defendant himself that they have agreed to that course. I do not regard that as a sufficient indication that they have consented to the order which is sought and I would not make that order in their absence.

12 Objection was taken to the email correspondence between the defendant and various of the Australian children. It appears to me that on this application, that evidence is admissible and the email correspondence will be admitted as exhibit A.

13 Accordingly, I will stand the matter down in order for the defendant's counsel to bring in a short minute of order generally in the terms of paras 2, 3, 4, 6 and 7 of the proposed short minutes handed up. As I have said, I think there should be an additional order that the plaintiff use her best endeavours to ensure compliance by the medical practitioner with the requirements of the Regulation. Counsel can consider the form that order ought to take.

[Counsel addressed.]

14 This was a discrete application. The costs of the defendant’s notice of motion of 21 December 2006 will be the defendant’s costs in the proceedings.

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