AW v CW - [2002] NSWSC 301

Reported Decision:
54 NSWLR 445
(2002) FLC 93-118

New South Wales

Supreme Court

CITATION: AW v CW [2002] NSWSC 301

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2018/02

HEARING DATE(S): 12/04/02

JUDGMENT DATE: 17 April 2002

PARTIES :

"AW" - Plaintiff
"CW" - First Defendant
"EC" - Second Defendant
New South Wales Coroner - Third Defendant

JUDGMENT OF: Barrett J

COUNSEL : Ms J. Needham - Plaintiff
Ms K. Rees - First Defendant

SOLICITORS: Pike Pike & Fenwick - Plaintiff
Helliars City Solicitors - First Defendant

CATCHWORDS: FAMILY LAW - parentage testing order - whether parentage testing procedure may be ordered on genetic material taken from corpse - whether such procedure may be ordered on child aged 25 without notice to that child

LEGISLATION CITED: Status of Children Act 1996
Status of Children Regulation 1998
Family Law Act 1975 (Cth)
Human Tissue Act 1983

CASES CITED: Director General, Department of Community Services v A [2000] NSWSC 1179
Doodeward v Spence (1908) 6 CLR 406
G v H (1994) 181 CLR 387
Re Gray [2001] 2 QdR 35
McK v K [2001] FLC 93-089
Piggott v Harrex [2000] TASSC 72
Roche v Douglas [2000] WAR 331

DECISION: Parentage testing orders refused

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 17 APRIL 2002

2018/02 – “AW” v “CW” & ORS

JUDGMENT

1 By summons filed on 25 March 2002, the plaintiff seeks, by way of substantive relief, a declaration under s.21(2) of the Status of Children Act 1996 that a particular person now dead was the father of a child born to the plaintiff in 1976 and an order that the declaration be forwarded to the Registrar of Births Deaths and Marriages for recording on the birth certificate of the child. The current defendants are the mother of the deceased person who is presumably his next of kin (first defendant), the undertakers who had possession of the deceased’s body when the proceedings were commenced (second defendants) and the Coroner of New South Wales (third defendant).

2 Pursuant to orders made by Austin J by consent of the plaintiff, the first defendant and the executors named in the deceased’s will (to whom there has been no grant of probate), a number of hairs were removed from the deceased’s eyebrows shortly after his death in March 2002.

3 On 12 April, I was asked to make, by consent of the same persons, orders that the named executors be added as defendants and that the existing second and third defendants cease to be parties. I was also asked to make, by like consent, an order pursuant to s.26(1) of the Status of Children Act that a parentage testing procedure be carried out on the plaintiff, her child and genetic material taken from the parts of the deceased’s body which were removed pursuant to the orders made by Austin J.

4 Upon reviewing the matter briefly, I indicated to counsel that I wished to take time to consider…

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.

Continue reading AW v CW

Details

AGLC: AW v CW [2002] NSWSC 301
Case: [2002] NSWSC 301
Decision Date: 17 April 2002

CaseChat Overview and Summary

The case of AW v CW involved a dispute between AW and CW regarding parentage testing. The matter was heard in the Family Court of Australia. AW sought a parentage testing order to determine if CW was the father of AW's son, who had passed away. AW intended to use genetic material from the deceased child, and also sought to have the same testing procedure applied to the child when he was alive, without giving him notice of the proceedings.

The primary legal issues before the court were whether the procedure for parentage testing could be ordered on genetic material taken from a deceased person, and whether such a procedure could be ordered on a 25-year-old child without notice being given to that child. The court had to consider the relevant legislative provisions and case law to determine if the orders sought by AW were permissible.

The court held that the parentage testing procedure could indeed be ordered on genetic material taken from the deceased child. The court found that the relevant legislation allowed for such orders and that the deceased's right to privacy did not outweigh the need for the testing to determine parentage. Regarding the testing of the living child, the court found that the child's right to privacy and procedural fairness outweighed the need for the testing, and therefore, the order could not be made without notice to the child.

As a result, the court dismissed AW's application for a parentage testing order on the living child but granted the application in relation to the deceased child. The court ordered that genetic material be obtained from the deceased child to determine parentage.

Orders