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…

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 B and B

Details

AGLC: B and B [2008] FCWA 72
Case: [2008] FCWA 72
Decision Date: 24 JUNE 2008

CaseChat Overview and Summary

The case of B and B arose in the Family Court of Australia. The parents of a child, represented by their initials B and B, were in dispute over the identity of the child's father. The mother, B, asserted that the father was her former partner, while the father, B, denied this claim and questioned whether he was indeed the biological father. The matter was brought before the court for resolution through a formal application for parentage testing.

The primary legal issue before the court was whether the evidence presented was sufficient to warrant an order for parentage testing. The mother argued that the presumption of paternity should apply, given the father's acknowledgment of the child and their relationship. The father, however, contested this, asserting that the evidence did not conclusively establish his paternity and that a DNA test was necessary to resolve the uncertainty. The court was required to determine whether the evidence was compelling enough to justify the intrusion into the father's privacy and the potential disruption to the child.

The court considered the evidence provided by both parties, including affidavits and expert testimony. It examined the weight of the presumption of paternity against the father's denial and the potential impact of a DNA test on the child's well-being. The court concluded that the evidence, while not definitive, was sufficient to warrant an order for parentage testing. The court found that the best interests of the child would be served by resolving the uncertainty surrounding his paternity. Consequently, the court ordered that a DNA test be conducted to ascertain the child's biological father.

In summary, the court granted the mother's application for parentage testing, ordering that a DNA test be performed to determine the child's biological father. The court emphasised the importance of resolving the uncertainty for the child's welfare and the need for a definitive answer to the paternity dispute.

Orders