Clutterbuck and Tryon and Anor
[2008] FMCAfam 784
•30 July 2008
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 came before my brother Federal Magistrate Halligan in a busy duty list. On that occasion my brother made orders that the husband be joined in the proceedings.
He made the orders sought by the applicant that pursuant to s.69W of the Family Law Act 1975 (Cth) all parties, being the Mr Clutterbuck, Ms Tryon, her husband Mr Tryon together with the subject children, undergo DNA testing at [X].
The decision for DNA testing was appealed by the respondents.
On 7 December 2006 Federal Magistrate Halligan stayed his order for DNA testing pending the determination of the Appeal.
The Appeal was heard by His Honour Justice Coleman and he delivered his reasons and decision on 27 June 2007.
The Appeal was successful and the matter was remitted for re-hearing before me and was heard on 13 and 20 July 2007.
I delivered a judgment on 23 August 2007 and published my reasons.
The re-hearing was a two part application. The first was that all parties undergo DNA testing, and the second was that the applicant spend time with the girls.
The respondents denied at the rehearing that the applicant was the father of the girls. In such matters it is common that DNA testing be carried out as a first step to determine that issue on a sound scientific basis.
It was common ground that at her birth the elder of the two children, [S], was named [SJF]. That birth certificate is dated 24 April 2001 and is marked Applicant Exhibit 1.
It was common ground that six months after the original proceedings were commenced on 8 September 2006, the respondents changed [S]’s name from [SJF] to [SJA]. The date of issue of that birth certificate is 6 March 2007.
On the re-hearing of the matter Mr Schroder of Counsel appeared for the applicant as he does today. Mr Sperling appeared for the children at the re-hearing and Mr O’Dowd appears today for the children.
Mr Burke represented the respondents at the re-hearing. Mr Battley of Counsel represents the respondents today.
On the re-hearing I determined that DNA testing should take place and stood over the application to spend time with the children until the results of that test were made known.
The respondents have not attended by themselves or with the children for DNA testing. It was an agreed fact at this hearing through Mr Burke that the respondents would not attend by themselves or with their children for DNA testing. The husband said the same in cross-examination before me.
In my decision of 23 August 2007 I set out some paragraphs of Justice Coleman’s decision. He made it clear in the Appeal matter, reported as Tryon & Clutterbuck [2007] FamCA 580, that the ordering or not ordering of DNA parentage test under s.69W of the Act is a parenting order.
At paragraph 26 of his judgment His Honour finds:
It is reasonably apparent as a matter of statutory construction that an order under s 69W is, in fact, a parenting order as that term is known or to be understood within the context of the Act.
It is agreed that the declaration that I am being asked to make today is also a parenting order.
Part VII of the Act sets out how a judicial officer must proceed to determine such an application. It is clear that the ordering of the DNA test and a declaration of paternity is a parenting matter as it falls within the broad definition of a parenting order under s.64B of the Act.
This section provides that a parenting order may deal with:
…any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
At paragraph 30 of his judgment His Honour Justice Coleman finds :
It is tolerably clear that the paternity of a child is an aspect of the welfare of a child. That is to say who is, or is not, a child’s biological father as a matter of commonsense, appears to be capable of being an aspect of the welfare of that child
Once a parenting order is to be made, as His Honour points out, s.60CA is enlivened. Section 60CA says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Thus part of my obligation in determining this application, as it was on the re-hearing, is to consider the factors under s.60CC (1),(2),(3) and (4) of the Act to determine what order I should make in the best interests of the children.
That was the reason the Appeal was successful, as during a busy duty list Federal Magistrate Halligan did not give consideration to those matters as is our mandatory obligation prior to making the order for DNA testing.
Evidence
For the applicant I read the following:
a)The amended application filed 28 March 2008.
b)Affidavits filed by him on:
i)8 September 2006;
ii)28 December 2006; and
iii)28 March 2008.
c)A case outline document prepared by his Counsel.
The mother has not filed any affidavit, tendered any evidence or been cross-examined in these proceedings. She joined in filing an amended response on 15 April 2008 with her husband. The totality of the respondents’ evidence is contained in the affidavit of the husband filed 15 April 2008.
The applicant and the husband were examined and cross-examined.
Nowhere in any affidavit or other material is there a denial of the assertion by the applicant that he and the mother had a sexual relationship from 1994 up to May 2006 and during the relevant conception period of the girls.
Uncontested Facts
The applicant was born in 1943.
The mother was born in 1966 and the husband was born in 1959.
The respondents were married in 1988.
Around the date of or shortly after the birth of their third child, [U], the respondents and the applicant commenced a relationship when the applicant carried out building work on their property.
In 1994 the applicant purchased a restaurant. For a period of time the mother worked in the restaurant as a waitress on Friday and Saturday nights.
The applicant asserts that for the five years he owned the restaurant the mother and her children travelled with him to the fruit and fish markets on a regular basis to purchase produce for the restaurant. There is no denial of this evidence by the respondents.
In 2001 the child [SJA] is born. The applicant is present at her birth.
In March 2003 the respondents, all their children and the applicant travel to the United States. The husband changes $4,000 cash into US Dollars for the applicant for the trip.
In 2003 [E] is born. The applicant is present at her birth.
On the long weekend in October 2004 the applicant, mother and girls attend a holiday in [N]. It is agreed that the applicant and the mother shared a bed room on that holiday.
In January 2005 the applicant separates from his wife.
In October 2005 the applicant moves to a unit in [K]. It is clear from photographs tendered, being the annexure A to the affidavit filed by the applicant on 28 December 2006, that the mother and girls spent time at that unit cooking, eating meals, cleaning up and engaging in social interaction.
In January 2006 the applicant, mother and girls attend a cruise in Hawaii for some 10 to 11 days. The mother contributes one third to the cost of the trip and the applicant two thirds. It is agreed that the applicant and the mother shared a bed room on that holiday.
In May 2006 the mother tells the applicant that he can no longer see the family and the applicant has not seen the children since that time.
The applicant commenced proceedings on 8 September 2006 for DNA testing and time with the girls.
The respondents have always lived together as an intact family and all five children have lived with the respondents all their lives.
The respondents have had an ongoing relationship with the applicant and have known him since early 1993.
The respondents’ older three children refer to the applicant as “Uncle B” or “B”. All five children call the husband “Dad”, “Daddy” or “Father”.
There is no denial by the mother or her husband that the applicant and the mother had a sexual relationship for a number of years and during the time of conception of the girls and from 1994 up to 2006.
There is no denial by the mother or her husband that the applicant gave the mother $4,000 when she was pregnant with [S].
There is no denial by the mother or her husband that the mother told the applicant in July 2000 that she was pregnant with his child and told him again she was pregnant with his child in 2003.
There is no denial by the mother or her husband that up until May 2006 the applicant was spending regular time with all the children, including the three boys.
The children’s names
It is agreed that six months after these proceedings commenced the respondents changed [S]’s name from [SJF] to [SJA].
[F] is the applicant’s middle name. He says “[F]” was initially chosen to show his connection to the child and that this was something agreed between him and the mother.
In cross-examination the husband gave very different reasons.
He agreed that the commencement of these proceedings had had an impact on the decision to change the child’s name because he did not want any “confusion” to be generated.
The husband says the name [F] was initially chosen because it was the name of the mother’s deceased Aunt, a woman he had never met. The husband relied upon what his wife told him as to the existence of this Aunt, her name and her death.
It was put to the husband that if the name [F] was chosen because it was his wife’s Aunt’s name why would there be confusion just because Mr Clutterbuck’s middle name was also [F]. He said:
I did not want any connection to be made between the child and Mr Clutterbuck because she is my daughter.
The husband said he was not aware that Mr Clutterbuck’s middle name was [F] before the Court proceedings. He was very concerned that [S] would be confused. He was asked how she would be confused. He said “because as things unfolded she would have found out”. He also said he and the mother would tell [S] they had changed her name in the future. He did not know what words he would use but he would tell her.
The husband denied that [S] would recite her name in the car as “[SJF]”.
I cannot see that the respondents’ actions have eased any confusion for the child. Their actions may well have increased her confusion in the future.
The husband can only tell the Court what his wife told him because he has no knowledge of this Aunt.
The evidence of the applicant is that the mother told him she wanted [F] in the middle name to reflect his name. Her husband tells the Court the name [F] was chosen by him and his wife to reflect a deceased maternal Aunt’s name. An Aunt the husband has never met. The husband has relied entirely upon what he has been told by his wife. The only person who knows the facts is the mother and I do not have the benefit of her evidence.
I have difficulty in accepting the husband’s version of events as it hinges on what the mother told him. The mother, as she is entitled to do, has not filed any affidavit or subjected herself to cross-examination and yet she is the only person who can clarify this evidence for me as the husband has no knowledge of the existence or name of this Aunt.
In those circumstances I accept the applicant’s version of why [S]’s middle name was originally [F].
In relation to [E], the applicant asserted that her middle name [G] was chosen because that was his deceased mother’s name.
The husband said the name [G] was chosen because children are a gift of grace from God and scripturally [G] is number five, [E] is the fifth child of the family, and thus her name was chosen.
The husband said his wife has never told him that [E]’s middle name was chosen because it was Mr Clutterbuck’s deceased mother’s name.
I accept that evidence.
Husband’s evidence
Mr O’Dowd, the Independent Children’s Lawyer, asked the husband why he had not complied with the orders I made in August for he, his wife and the two girls to attend DNA testing. He said it was for religious reasons:
My beliefs are that the body is sacred and is a temple of God. And as I am a baptised member of my church my body is protected and these things are not given to others.
He confirmed that his religious beliefs precluded him from giving saliva swabs, tests, and that included his wife and his children. This evidence came out for the first time in cross-examination. There was no mention of religious matters before FM Halligan, his Honour Justice Coleman, or before me on the re-hearing. There is no mention of this belief and its consequences in the husband’s affidavit.
I do not accept this is the reason the respondents have not carried out the order for DNA testing.
It was put to the husband that His Honour Justice Coleman’s decision meant that the question of the paternity of the child is relevant to the welfare of children and children have a right to know who their biological parents are. The husband answered “I believe I am the biological father”. The husband was pressed on this being a question of the child’s right to know and ultimately answered “yes it is”. I agree with that evidence.
Upon questioning why he did not attend the holiday at [N] and with his wife, daughters and the applicant, he answered that the needed to attend sporting commitments for his sons. I found this evidence difficult to accept. It is difficult to accept that a father of children would be comfortable with his children and his wife going to [N] with someone he asserts to be a mere family friend in circumstances where it was clear his wife and the family friend were sleeping in the same room.
The husband was asked whether he thought it was strange his wife, daughters and Mr Clutterbuck went on an overseas holiday to Hawaii without him and in circumstances where it was clear his wife and the applicant were sleeping in the same room. He said he was intending to go but was unable. He said there had been other circumstances where the applicant had taken his place such as attending a Winnie the Pooh Concert. Attending a Winnie the Pooh concert is a vastly different event to travelling overseas for a holiday. I had difficulty in seeing any similarity in such events.
The husband agreed that the relationship between his daughters and
Mr Clutterbuck had been one of a close family friend, and it was the same relationship with the boys.
The husband denied the proposition put to him that the reason his wife had not filed an affidavit was because she knew Mr Clutterbuck was the girls’ father and that the mother knew she would have to tell the truth in her affidavit. The husband said he and his wife had chosen to conduct this litigation on legal advice as is their right.
The husband agreed his wife did not wish to file an affidavit or appear in Court in these proceedings. The husband has taken on his shoulders the conduct of the proceedings and has solely shouldered the uncomfortable and distressing consequences of Court proceedings for the sake of his family.
Applicant’s evidence
It is the applicant’s case that the respondents always knew the girls were his children. He said that the mother’s parents said to him he was doing a wonderful thing in going along with the girls being a part of the Tryon family simpliciter.
He says whilst he was able to maintain a relationship with the girls he made no issue of their paternity and was content for the girls to regard themselves as members of the Tryon family. Once he was denied a continuing relationship with the girls in May 2006 his attitude changed.
In the photographic evidence tendered by the applicant it is clear he visited the respondents’ home on many occasions to celebrate birthday parties, Christmas and the like. There are photographs of [S]’s first day of school which were taken by the mother. The husband was not present on that occasion.
In cross-examination it was put to him that the mother never told him on any occasion that she was pregnant with his child. Mr Clutterbuck was firm. He said “categorically she did”.
He was firm on why the name [F] was chosen for [SJ], and why the name [G] was chosen for [E].
He said that he and the mother had a sexual relationship which consisted of engaging in sex up to four times a week up until the relationship ceased in May 2006. This would occur when he visited the home each morning.
The applicant was firm that he visited the mother every morning at her home before he went to work and that he would come back every afternoon or evening, and that this went on for many years.
The husband makes no mention of these visits in his affidavit and these visits are not denied by the respondents.
The applicant says he did not have to tell the mother the girls were his because she knew this as a fact as she had told him they were his children. He further said that his position as their biological father was known in the family. The applicant was firm in his evidence.
The applicant’s explanation of the position he took whilst he continued to have a relationship with the girls assists in understanding the applicant and respondents’ relationship. The applicant’s evidence helps make sense of the nature of the relationship and the manner in which these three adults conducted their lives. The applicant said:
Everybody in the family knew – the grandparents and the children knew I was the father. But I was stepping back and letting Mr Tryon take over. They said, that is the grandparents, said I was doing a great thing. It was a great thing.
I accept this evidence. I accept the applicant only told one person of his relationship with the mother namely her cousin, Ms W. This was done in a letter.
This evidence supports the applicant’s case that whilst he and the girls maintained their relationship he was content for them to be regarded as part of the Tryon family. He had no need to rock the boat whilst he, the mother and his daughters went on holidays together, ate meals at his home and he was able to attend the respondents’ home on a daily basis to see the girls.
This evidence is also consistent with the applicant’s position that the respondents are capable, competent and loving parents and the girls are well cared for.
Much was sought to be made from the fact that the applicant was unaware that the girls were attending dancing. However, [E] was only three years of age when the relationship ceased. [S] was five. Dancing had only commenced in the last year or so of the relationship and I make no adverse finding against the applicant on that issue.
The applicant agreed that upon the birth of the children nothing had changed to distinguish his prior relationship with the Tryon family. However such evidence is not inconsistent with his position that the girls are his daughters. I do not see that evidence in any way damaged his case.
Issues
The salient issues are these:
Firstly, the respondents have failed to carry out DNA testing.
Mr Battley said there was no evidence that the applicant had attended for DNA testing. I reject that submission. The reason this declaration is sought is because the respondents have refused to attend and from the agreed facts via their solicitor they will never attend. The husband said so in his evidence.
The applicant believes he is the father of the children because:
a)He was conducting an ongoing and long term sexual relationship with the mother at the relevant conception time for both children;
b)The mother told him he was the father of the children. The mother has filed no evidence to controvert, deny or assist me to other than accept what the applicant says. Her husband’s evidence cannot assist me in this regard;
c)The mother ,the husband and the maternal family knew he was the father of the children;
d)He maintained an ongoing relationship with the family;
e)He has conducted himself as if he was the father of the girls.
Thus I am left with the following:
a)The failure of the respondents to undergo DNA testing a test which will almost in every case, with certainty, tell who is or who is not a parent of a child;
b)The words spoken by the mother to the applicant when she knew she was pregnant with the children; and
c)The conduct of the applicant and respondents prior to and since the birth of the children.
Findings
On the evidence I have difficulty in accepting that the husband was unaware his wife was conducting a sexual relationship with the applicant at a time both girls were conceived.
His wife and the girls went on at least two holidays with the applicant, without him, and slept in the same bedroom. The applicant was present at the birth of the girls, he gave the wife $4,000 at [S]’s birth, attended [S]’s day-care, and was present on her first day of school. He visited the home every morning and almost each afternoon when the husband was at work. The mother and the children visited him daily at his place of work on building sites, went shopping with him when he owned the restaurant, the wife worked for him on the weekends for a number of years when he owned the restaurant. The mother and girls visited his apartment on many occasions and had meals with him. The applicant was frequently at his home and he and the mother were in constant contact with each other.
The applicant believes these children are his because of his ongoing sexual relationship with the mother at the relevant time and importantly because that is what the mother told him. The husband cannot help me assess this evidence. Only the mother can assist me and I do not have the benefit of her evidence.
I do not have the benefit of a scientific test as to paternity because the respondents have not and will not comply with the order I made for DNA testing. DNA testing would have resolved the issue of paternity once and for all.
There has been no testing of the applicant’s evidence in crucial respects such as a sexual relationship at the relevant time and words spoken between the mother and the applicant when she knew she was pregnant. As such I accept what the applicant says on those issues.
That finding combined with the lack of scientific evidence due to the respondents’ choice and the conduct of the mother towards the applicant leaves me in no doubt that the applicant is telling the truth as to his ongoing sexual relationship with the mother at the relevant time and that the mother told him he was the father of the girls. I also accept his evidence that the mother knows he is the father of the girls.
The applicant is clearly attached to and has had a strong and ongoing relationship with the girls. The photographic compilation he produced to the Court showing the girls from their birth, pre-school, first day of school, holidays and the like until he ceased to see them in May 2006 is extensive and demonstrates a relationship over a long period of time.
The photographic compilation depicts him, the mother and children as a family enjoying significant events: holidays; first days of school; births; birthdays; Christmas; cooking food; eating meals together; cleaning up and enjoying time together.
The applicant’s assertion that he is the biological father of the girls is supported by his conduct from their birth to the present.
The Law – inferences to be drawn
Having made the findings above I must still consider the factors set out in s.60CC (2), (3) and (4) of the Act in order to determine whether I ought to make the orders contended by the applicant as to declaration of paternity because this is a parenting matter and I can only make an order which is in a child’s best interest after a consideration of those sections.
It was submitted to me by Mr Schroder for the applicant that I am entitled under s.69Y of the Act to draw such inferences as may be available on the evidence from the contravention of the respondents in failing to comply with the order I made for DNA testing. This is not a finding of a contravention in the sense of Part 13 of the Act rather a failure to carry out an order.
Section 69Y reads:
(1) If a person is 18 or over contravenes a parentage testing order or an order under section 69X, the person is not liable to any penalty in relation to the contravention.
(2) The Court may draw such inferences from the contravention as appear just in the circumstances.
Any inference I draw is not automatic and is to be drawn from all the evidence, which evidence includes a failure to carry out DNA parentage testing.
What is all the evidence relevant to this section?
The first is that the respondents have not and will not subject themselves or the girls to DNA testing and so testing has not taken place.
Secondly the mother has chosen not to file any evidence or subject herself to cross-examination. She has left that to her husband.
The consequence of that choice is that the mother has not denied, controverted or given her explanation of the events as described by the applicant on important issues such as their sexual relationship, what she told the applicant when she was pregnant with the girls, why the applicant gave her $4,000 when she was pregnant with [S], why she and the girls attended on an overseas holiday and Australian holidays with the applicant and in the absence of her husband and older children, and why she and the girls spent time at the applicant’s home cooking meals, eating together in the absence of her husband and older children. The husband’s evidence could not assist me as he was not present on those occasions.
The husband agrees that the applicant was a close family friend, prior to and after the birth of the girls and had an ongoing relationship with all the Tryon children.
The combination of this evidence supports a finding of a clear and strong inference that the respondents have failed to carry out the DNA testing because the results of that testing would show that the applicant, and not the husband, is the biological father of the girls. This inference is all the more available to me when one has regard to the fact that DNA parentage testing provides a simple, cheap, non-invasive and almost 100% accurate result.
I am also entitled under the rule in Jones v Dunkel to draw an adverse inference from the failure of a party to present evidence to a court which would assist the court in making a finding on a contested issue.
The issue in contest is the paternity of the girls. The carrying out of a DNA test is clearly the most reliable and cogent evidence I could have available to me to make a finding of paternity. The respondents have conducted themselves in such a way that this evidence is not available to me. In those circumstances I am entitled to draw an adverse inference from this conduct being that the provision of the evidence of DNA testing would not have assisted the respondents’ case that the husband is the girls’ biological father.
On all the evidence I an entitled to draw an adverse inference from the respondents’ conduct which inference leads me to a finding that the applicant is the biological father of the girls.
The mother has left it to the applicant to prove his case and I find that he has proven his case. He has discharged his onus to a much higher level than on the balance of probability. I have not only been able to draw an adverse inference from the respondents’ failure to undergo DNA testing but also on the rule in Jones v Dunkel as all the evidence being conduct and behaviour support this finding.
Best Interests of the of the Children
Going now to the question of whether I should make the declaration of paternity.
When making a parenting order there are two primary considerations under s.60CC(2) being the benefit to the child of a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
The declaration of paternity falls squarely under section 60CC (2)(a) as the very issue before me is who are the parents of these children?
As His Honour Justice Coleman said in the Appeal of this matter:
It is tolerably clear that the paternity of a child is an aspect of the welfare of a child. That is to say who is, or is not, a child’s biological father as a matter of commonsense, appears to be capable of being an aspect of the welfare of that child.
Who are the parents is a primary consideration I must have regard to under the Act.
As matters now stand at law Mr Tryon is the male parent which arises out of the presumption of marriage and the declaration in each child’s birth certificate that he is the father and the mother is their mother.
One of the reasons the issue of paternity is before me for determination is the failure of the respondents to undergo a simple, cheap and effective DNA test which would have determined this issue once and for all.
At first blush it seems that if I do not make the declaration then the children may be denied the benefit of a meaningful relationship with their biological father, Mr Clutterbuck.
On the other hand if I do make the declaration there may be a negative impact on the relationship the children now have with the person they regard as their father, the husband Mr Tryon.
However Mr Clutterbuck was a part of this family’s life for 12 to 13 years. The husband was content and condoned his wife’s relationship with the applicant, she and the children attending at least two holidays in his absence, one being overseas. The relationship included the applicant attending the home on a daily basis in the morning and the evenings when the husband was at work.
The girls had a relationship with the applicant prior to May 2006 in circumstances where I have found the husband and mother knew the applicant was the father of the children and that the applicant and the mother had an ongoing sexual relationship. Why a declaration of paternity now would make a difference to the nature of the girls’ relationship with the husband is not apparent to me on the evidence.
There is no evidence that the benefit to the girls of their relationship with the husband or their mother will be damaged by a declaration of paternity.
On the other hand, if I do not make the declaration on the weight of the evidence and having regard to the findings I have made the girls will be denied the benefit of a relationship with their biological father and that may be a harmful outcome for their well being.
The girls may benefit from a renewal of their relationship with
Mr Clutterbuck as well as maintaining the ongoing and supportive relationship with the husband.
The respondents parent the children to a high standard. The girls have a close and loving relationship with their mother and the husband.
The respondents may be uncomfortable with a declaration however I am confident that their high level of parenting will ensure the girls are not impacted upon by their discomfort. There is no evidence that making a declaration of paternity will have a negative impact on the strength and benefit to the girls of their relationship with their mother and her husband.
Thus I find that there will be no negative impact on the benefit to the girls of a meaningful relationship with their mother and her husband by a declaration of paternity.
I find that a failure to make the declaration would damage the benefit to the girls of a meaningful relationship with their biological father as the girls have been denied a relationship with him by the respondents.
Turing to section 60CC(2)(b) I do not see there are any violence or harm issues at this stage.
I must now consider the other matters under s.60CC(3) and (4) of the Act.
Section 60CC(3)(a). Wishes of the child. This is not relevant in these proceedings.
Section 60CC(3)(b)(i). The nature of the relationship of the child with each of the child’s parents. The making of this declaration of paternity will not affect the nature of these children’s relationship with their mother, her husband or their brothers. They come from a close knit family in which the mother and her husband have parented them to a high standard. These children have a right to know who their parents and not just the adults who care for them or fulfil the role of a father.
The declaration may resume their right to a meaningful relationship with their biological father.
Section 60CC(3)(b)(ii). The nature of the relationship of the child with other persons (including any grandparent or other relative of the child). The girls have a close relationship with their brothers and grandparents. I have no evidence that there will be a negative impact on the children’s relationship with their brothers or grandparents by the declaration of paternity.
Section 60CC(3)(c). The willingness and ability of each of the parents to facilitate and encourage a close, continuing relationship between the child and the other parent. This is not a relevant issue.
Section 60CC(3)(d). The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from either his or her parents; or other child, or other persons with whom he or she has been living.
There is no evidence that making a declaration will adversely affect the girls’ circumstances or separate them from Mr and Ms Tryon and their brothers. The declaration will allow the girls to know who their biological father is, namely
Mr Clutterbuck. The girls have been separated from him for two years. A declaration may more likely than not support the girls’ right to know, be cared for and benefit from a relationship with their father.
Section 60CC(3)(e). Practical difficulty and expense of a child spending time and communicating with a parent. There is no practical difficulty or expense.
Section 60CC(3)(f). The capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs. There is no issue that the respondents other than provide for the girls day to day needs. Both the mother and her husband were content to allow the children to spend time with the applicant prior to 2006 and there is no evidence that he is unable to meet any of their needs.
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.
This evidence has not been denied or controverted and is consistent with the conduct of the mother, the applicant and her husband over a 13 year relationship.
Mr Battley submitted that there was no evidence the applicant attended for DNA testing. I do not need to make that finding. The respondents and children failed to attend and thus no testing could be carried out. That submission is not relevant in this matter.
Mr Battley submitted the applicant was not a witness of credit on two issues. The first is he lied to his wife about having a relationship with the mother and secondly he let people at the markets believe [U] was his son. Those are not matters which satisfy me the applicant is not a witness of credit. He admitted he had done these things which were understandable at the time. I found him a truthful and honest witness and I reject that submission.
In all these circumstances of this case and on the weight of the evidence I am satisfied that it is in the best interests of the children that I make the declaration of paternity as contended for by the applicant. The Independent Children’s Lawyer supports the declaration being made.
Therefore, I make orders in accordance with those as set out at the commencement of this judgment.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: Maryrose Portelli
Date: 30 July 2008
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