Clutterbuck and Tryon and Anor - [2008] FMCAfam 784

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLUTTERBUCK & TRYON & ANOR

[2008] FMCAfam 784

FAMILY LAW – Declaration of parentage – failure to undergo DNA testing – adverse inference.

Family Law Act1975 (Cth), ss.60CA, 60CC(1),(2),(3) and (4), 64B, 69VA, 69W, 69Y

Jones v Dunkel (1959) 101 CLR 298

Applicant:

MR CLUTTERBUCK

First Respondent:

MS TRYON

Second Respondent:

MR TRYON

File number:

PAM 4199 of 2006

Judgment of:

Henderson FM

Hearing date:

8 July 2008

Date of Last Submission:

8 July 2008

Delivered at:

Parramatta

Delivered on:

30 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr Schroder

Solicitors for the Applicant:

Coustas and Co

Counsel for the Respondent:

Mr Battley

Solicitors for the Respondent:

Christopher M. Edwards

Independent Children’s Lawyer:

Legal Aid Commission of NSW

ORDERS

A Declaration is made pursuant section 69VA of the Family Law Act 1975 (Cth) that Mr Clutterbuck is the father of the children [SJF] born in 2001 and [E] born in 2003.

IT IS NOTED that publication of this judgment under the pseudonym Clutterbuck & Tryon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 4199 of 2006

MR CLUTTERBUCK

Applicant

And

MS TRYON

First Respondent

MR TRYON

Second Respondent

REASONS FOR JUDGMENT

Introduction

This matter was heard on 8 July 2008.
The applicant, Mr Clutterbuck, asserts he is the biological father of the children [SJF] born in 2001 and [E] born in 2003. In his application filed 28 March 2008 Mr Clutterbuck seeks a declaration pursuant to s.69VA of the Family Law Act 1975 (Cth) that he is the biological father of the children.
By a response filed on 15 April 2008 the respondents seek a dismissal of this application. The respondents have three older children, [O] born in 1990, [D] born in 1991 and [U] born in1993. All five children live with the respondents.
As the matter now stands at law the presumption of paternity is that

Mr Tryon, the husband of Ms Tryon, the mother, is the father of the children for the following:
a)He is named as the father on their respective birth certificates. The child [S] has two birth certificates. I will refer to this matter later.
b)The children were born during the marriage of the respondents who have never separated and were living as husband and wife at the time of conception of both children. The respondents continue to live together as husband and wife.
The applicant seeks an order that the presumption of paternity in respect of the children be rebutted.
This matter has had a history in the Federal Magistrates Court and I will briefly refer to that history.

History

I will refer to Mr Clutterbuck as the applicant, Ms Tryon, the first respondent, as the mother and Mr Tryon, the second respondent, as the husband. I will refer to the subject children as “the girls”.
The matter first came before the Federal Magistrates Court of Australia at Parramatta on 13 October 2006 when it…

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 Clutterbuck and Tryon and Anor

Details

AGLC: Clutterbuck and Tryon and Anor [2008] FMCAfam 784
Case: [2008] FMCAfam 784
Decision Date: 30 July 2008

CaseChat Overview and Summary

In the case of Clutterbuck and Tryon and Anor, the parties were engaged in a dispute over the paternity of two children, [SJF] born in 2001 and [E] born in 2003. The applicant, Mr Clutterbuck, sought a declaration of paternity and sought orders regarding the children's residence and contact. The respondents, Tryon and her husband, contested the applicant's claims and denied that he was the biological father of the children. The matter was heard in the Federal Circuit Court of Australia.

The court had to decide several legal issues, including whether Mr Clutterbuck was the biological father of the children and if so, whether a declaration of paternity should be made. The court also considered the best interests of the children and whether a declaration of paternity would be in their best interests. The court examined evidence relating to the maturity, sex, lifestyle, and background of the children, the attitudes of the parents towards the children and the responsibilities of parenthood, and any other relevant factors.

The court found that Mr Clutterbuck was the biological father of the children based on the evidence presented. The court rejected the respondents' argument that there was insufficient evidence of sexual intercourse between the applicant and the mother. The court found that the evidence of sexual intercourse was satisfactory and that the applicant's evidence was clear that he and the mother had a sexual relationship at a time relevant to the conception of the girls. The court also found that the respondents' attitude towards the children had not been child-focused and that they had not demonstrated a commitment to promoting the girls' right to know who their biological parents were. The court concluded that a declaration of paternity was in the best interests of the children.

The court made a declaration of paternity pursuant to section 69VA of the Family Law Act 1975 (Cth) that Mr Clutterbuck is the father of the children [SJF] born in 2001 and [E] born in 2003. The court also made orders regarding the children's residence and contact, which were not appealed. The respondents were ordered to pay the applicant's costs of the proceedings.

Orders

Orders of the court

A Declaration is made pursuant section 69VA of the Family Law Act 1975 (Cth) that Mr Clutterbuck is the father of the children [SJF] born in 2001 and [E] born in 2003.

Background

Background to the litigation

Section 60CC(3)(g). The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant. The girls are healthy, happy, well-adjusted children. Section 60CC(3)(h). This section is not relevant as the children are not of Aboriginal or Torres Strait Islanders descent. Section 60CC(3)(i). Attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. I find that the respondents’ attitude has not been child focused. It is a child’s right to know their parents and must be in their best interests to know who their biological parents are if only for reason of medical history. The mother and her husband have not undergone a simple test which would have resolved the paternity of the children despite an order having been made for them to do so. The respondents’ conduct has demonstrated an attitude more closely aligned with their needs than in promoting the girls’ right to know who their biological parents are and to be cared for and benefit from a meaningful relationship with their parents. The applicant has conducted himself appropriately in regard to this matter. Section 60CC(3)(j). Any family violence involving the child or a member of the child’s family. There is no evidence of any family violence. Section 60CC(3)(k). This section is not relevant. Section 60CC(3)(l). Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. Not relevant. Section 60CC(3)(m). Any other fact or circumstance that the court thinks is relevant. The applicant has, with great fortitude, continued these proceedings. He commenced his proceedings on 8 September 2006. He has been through one Appeal from the decision of Federal Magistrate Halligan to order DNA testing. He conducted a re-hearing before me on that issue. He has seen the respondents fail to carry out the testing as ordered. Following on from the failure of DNA testing being carried out he asked by application that the Court make a declaration of paternity. The declaration of paternity hearing was listed by me for final hearing on 20 May 2008. On 20 May 2008 Mr Burke sought an adjournment on behalf of the respondents asserting he believed the matter was listed for an interim hearing not a final hearing and he was not prepared to run a final hearing. I granted the adjournment and made an indemnity costs order against the respondents. I listed the matter for final hearing on 8 July 2008. The applicant’s commitment to a relationship with his children is clear. The thrust of submissions by Mr Battley were as follows. The declaration of paternity is a grave decision and I need to be satisfied on the evidence that I should make such a declaration because of the consequences of such a decision. I accept that submission. The evidence of sexual intercourse is not satisfactory. There is no evidence of unprotected intercourse and the applicant’s evidence that he and the mother had sex is not evidence of sexual intercourse. I reject that submission. It is not denied by the mother that she and the applicant engaged in sexual intercourse and that they had a full sexual relationship. The applicant’s evidence is clear that he and the mother had sex and had a sexual relationship at a time relevant to the conception of the girls.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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