B and B

[2008] FCWA 72

[2008] FCWA 72

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	B and B [2008] FCWA 72
CORAM	:	CROOKS J
HEARD	:	9 JUNE 2008
DELIVERED	:	24 JUNE 2008
FILE NO/S	:	PT 1153 of 2007
BETWEEN	:	B
Applicant/Mother
AND
B Respondent/Father
Catchwords:
Order for parentage testing
Legislation:

Family Court Act 1975, s 69W

Child Support (Assessment) Act 1989

Category: Not Reportable

[2008] FCWA 72

Representation:

Counsel:

Applicant:	Self Represented Litigant
Respondent:	Self Represented Litigant

Solicitors:

Applicant:

Respondent:

Case(s) referred to in judgment(s):

TNL & CYT [2005] FamCA 77
Tobin v Tobin (1999) FLC 92-848

[2008] FCWA 72

1 The issue for determination is the application of [Mr B] (“the husband”) filed 17 July 2007 in which he seeks an order that [Mrs B] (“the wife”) and himself undergo parentage testing in relation to the paternity of the child, [Joseph] who was born [in] 1999. The husband further seeks a declaration as to paternity in respect of [Joseph].

Background

2 The parties were married on 8 June 2002 and finally separated on

2 January 2006.

3 Proceedings were commenced in this Court by the wife on 8 March 2007 in

which she seeks orders in relation to child welfare issues and financial issues. In her Form 2 Application filed on the same day, the wife specifically seeks in paragraph 5 “financial orders for both child support and spousal support”. The proceedings will be the subject of a defended hearing if not settled.

Husband’s position

4 The husband asserts that he is not [Joseph]’s biological father.

5 The husband says:

•	the parties first had contact over the internet in late 2000 when he was residing in Western Australia and the wife was residing with [Joseph] [overseas]. At this time, [Joseph] was about 18 months of age;
•	he agreed to be recorded as [Joseph]’s biological father on his birth certificate in order to meet certain [immigration requirements] to enable a passport to issue for [Joseph] in [that country] which would permit the child to settle in Australia;
•

in April 2001 the parties executed an affidavit of parentage for [the country], “By signing this acknowledgment we waive the following:

• the right to blood or genetic testing to determine if the man is the biological father of the child; • any right to a court appointed attorney, including the prosecuting attorney, to represent either party in a court action to determine if the man is the biological father of the child; • the right to a trial to determine if the man is the biological father of the child;
•	prior to executing the affidavit, the wife told the husband it was permissible for him to execute the affidavit as long as he was prepared to take responsibility for the child. He was initially reluctant to make the declaration that he was [Joseph]’s biological father but agreed to do so following representations from the wife;

[2008] FCWA 72

• in relation to the [state’s] affidavit, the husband asserts that both parties executed the affidavit knowing that he was not [Joseph]’s biological father and it is a proper case for the Court to order the parentage testing procedures to assist in resolving the issue.

Wife’s position

6 The wife asserts that the affidavit of parentage was executed by the husband

knowing full well that by so doing he would give up his rights to seek blood testing or to raise the issue of whether he is [Joseph]’s biological father in any court action. The wife says that the affidavit legally binds both parties and the husband’s application for parentage testing should accordingly be dismissed. The wife further asserts that it is only the Supreme Court which has jurisdiction to deal with the issue, given that it raises matters of international law.

The law

7 S 69W of the Family Law Act 1975 provides:

(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 the 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)	an independent children's lawyer representing the child's interests 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.

[2008] FCWA 72

(4)	A parentage testing order may be made subject to terms and conditions.
(5)	This section does not affect the generality of section 69V.

8 The issue to be determined therefore is whether it is appropriate for parentage testing to be carried out in the circumstances of this case.

9 The Full Court in TNL & CYT [2005] FamCA 77 held at paragraphs 29 to 33:

“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 G v H (1993) FLC 92-432, the Full Court observed:

29.	“… [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.

…

33.  The second component of the threshold question is that there must be evidence which places the parentage of a child in doubt: G v H (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).

10 It is also relevant for my determination to note that in Tobin v Tobin (1999) FLC 92-848 the Full Court held that there is no power under the Child Support

[2008] FCWA 72

(Assessment) Act 1989 for a court to require the payment of child support by a person other than a natural parent of a child, an adoptive parent or a person deemed to be a parent because of an artificial conception procedure.

Conclusion

11 It is the wife who commenced proceedings in this Court in relation to the

welfare of [Joseph] and financial claims both for her benefit and child support for [Joseph]. The husband seeks orders for parentage testing in response to the application of the wife.

12 The issue of paternity is clearly a relevant issue in determining the wife’s claims,

particularly with respect to child support where the Court does not have jurisdiction to make order for the payment of child support unless the husband falls within one of the categories of persons referred to in Tobin’s case (supra).

13 The husband has established a prima facie case for his claim that he is not [Joseph]’s biological father for these reasons:

(a)	on his evidence, the parties did not meet until after the birth of [Joseph];
(b)	the husband has produced results of an analysis he had carried out by [local] Pathology for post-vasectomy semen which reveals “spermatozoa was not seen in spun deposit”. The husband says that he had a vasectomy in 1994, some five years before [Joseph] was born.

14 Whilst the execution of the parentage affidavit for the [state of the country] may

have consequences for the parties elsewhere, it does not in my opinion, prevent this Court from exercising its jurisdiction to order parentage testing in an appropriate case. I am satisfied the husband’s evidence discloses a genuine issue to be determined and the parentage testing should be ordered.

15 The orders I propose making are as follows:

1.	The Applicant, [Mrs B], the respondent, [Mr B] and the child, [Joseph] born [in] April 1999 do, within 21 days of these orders undergo parentage testing procedures in accordance with the procedures set out in the Family Law Act 1975 and the Family Law Regulations.
2.	The respondent pay the costs incurred in relation:

(a)	the carrying out of the parentage testing procedure;
(b)	the preparation of reports in relation to the information obtained as a result of the carrying out of the parentage testing procedure.

[2008] FCWA 72

I certify that the preceding [15] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate