Cocks v Juncken - [1947] HCA 16

Foil

JAP, In the Kenm

Manias of HomBert

(1966n0̂ n%3i iTO FamLR877

CLR174

74 C.L.R.]OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

COCKS . .

Appellant

;

Complainant,

JUXCKEN .

Respondent.

Defendant,

ON APPEAL FROM THE SUPREME COURT OF

SOUTH AUSTRALIA.

Legitimacy—Evidence—Presumption—Bcbuttal—Child conceived before, and born H. C. of A.

after, marriage—Paternity—Pregnancy known to husband at time of marriage— 1947.

Child acknowledged by him—Evidence that another man was father of child—

Admissibility.

Melbourne,

Feb. 27, 28 ;

High Court—Appeal from Suprreme Court of State—Competency—Judgment involving

June 9.

civil right—Value of £300—Affiliation proceedings in court of summary jurisdic

Latham C.J.,

tion—Order against defendant for maintenance of child—Order quashed on appeal

Rich, Starke,

Williams JJ.Di.xon and

to Supreme Court—Complainant’s right of appeal to High Court—Judiciary

Act 1903-1940 (No. 6 of 1903—No. 50 of 1940), s. 35 (1) (a) (2)—Mainterumce

Act 1926-1941 (S.A.) (No. 1780 of 1926—No. 44 of 1941).

There is a presumption that a child born in wedlock is legitimate. It apphes to a child conceived before the marriage, but it is a presumption of fact only and may be rebutted in any case by clear and satisfactory evidence that the child was not procreated by the husband. In the case of a child conceived before marriage the presumption does not become irrebuttable by reason of the fact that the husband knew the wife was pregnant when he married her or that he acknowledged the child as his own.

Poulett Peerage Case, (1903) A.O. 395, applied.

R. V. Luffe, (1807) 8 East 193 [103 E.R. 316], explained and distinguished: Dictum of Lord Ellenborough C..1., therein, not followed.

Decision of the Supreme Court of South Australia (Full Court), (1946) In affiliation proceedings under the Maintenance Act 1926-1941 (S.A.) a court of summary jurisdiction adjudged the defendant to be the father of the

S.A.S.R. 84, reversed.

VOL. LXXIV.

278HIGH COURT

[1947,

H. C..OF A.

child in question and ordered him to pay 12s tid. a week for maintenance until

the child attained eighteen years or until further order. The present value of the weekly payments, calculated actuarially (on the assumption that the order Cocksremained unaltered), exceeded £300. On appeal by the defendant to the

1947.

JUNCKEN.

Supreme Court of the State, the order was qua.shed.

Held that, under s. 35 (1) (a) (2) of the Judiciury Act I903-1940, an appeal lay by the complainant from the decision of the Supreme Court to the High Court, because a civil right of the value of £300 was involved.

Appeal from the Supreme Court of South Australia.

The complaint, under the Maintenance Act 1926-1941 (S.A.), of Arthur Wellesley Cocks, an officer of the Children’s Welfare and Public Relief Board of South Australia, stated that Raelene Patricia Simper, a female child of the age of eight months, was an illegitimate child born of the body of Brunhilde Irene Simper and that the defendant, Douglas Juncken,…

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 Cocks v Juncken

Details

AGLC: Cocks v Juncken [1947] HCA 16
Case: [1947] HCA 16
Decision Date: 9 June 1947

CaseChat Overview and Summary

The High Court of Australia considered the presumption of legitimacy in the case of *Cocks v Juncken*. The dispute concerned the paternity of a child conceived before marriage but born thereafter, and the admissibility of evidence seeking to rebut this presumption.

The central legal issue before the Court was whether evidence could be admitted to prove that a child, born during a marriage, was not the child of the husband, notwithstanding the presumption of legitimacy. Specifically, the Court had to determine the circumstances under which this presumption could be rebutted and the nature of the evidence required for such rebuttal.

The Court affirmed the long-standing presumption of legitimacy, which presumes a child born during a marriage to be the legitimate child of the husband. However, it also held that this presumption is rebuttable. The Court reasoned that the presumption is one of law, not of fact, and can be overturned by evidence showing that the husband could not have been the father. This evidence need not be conclusive proof of non-paternity, but it must be strong, clear, and satisfactory, demonstrating beyond reasonable doubt that the husband is not the father. The Court indicated that evidence of the husband's impotence or non-access to the wife during the period of conception would be relevant, as would evidence pointing to another man as the biological father, provided such evidence meets the required standard of proof.

Orders