Cousins & Harper and Ors

Case [2007] FamCA 1135

FAMILY COURT OF AUSTRALIA

COUSINS & HARPER & ORS [2007] FamCA 1135
FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – CHILDREN – PARENTAGE TESTING – Not established that the Federal Magistrate erred in law, fact or discretion. Parentage testing to be ordered only if paternity is an issue in proceedings: s 69W Family Law Act 1975 discussed; In the Marriage of F and R (1992) FLC 92-300, In the marriage of Diggins (1992) FLC 92-299 and McK and K v O (2001) FLC 93-089 cited. Declarations as to parentage only within power in proceedings constituting matrimonial cause: ss 4 and 69W Family Law Act 1975, Tooth & Co Ltd v Coombes (1925) 42 WN (NSW) 93, David Jones Ltd v Leventhal (1927) 20 CLR 357 cited.
Family Law Act 1975 Part VII; s 69W, s 69W(2), s 68L
Supreme Court Act 1970 s 75
Administration of Justice Act 1924
Equity Act 1901

In the marriage of F and R (1992) FLC 92-300
In the marriage of Diggins (1992) FLC 92-299
McK and K v O (2001) FLC 93-089
Guaranty Trust Co of New South York v Hannay & Co (1915) 2 KB 536
J C Williamson Ltd v Durno Ltd (1915) 15 SR (NSW) 442
Tooth & Co Ltd v Coombes (1925) 42 WN (NSW) 93
David Jones Ltd v Leventhal (1927) 40 CLR 357
Langman v Handover (1929) 43 CLR 334
Smart v Allen (1970) 91 WN (NSW) 241
Salmar Holdings Pty Ltd v Hornsby Shire Council (1970) 91 WN (NSW) 234
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421

Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297

APPELLANT: Mr Cousins
FIRST RESPONDENT: Ms Harper
SECOND RESPONDENT: V  Cousins
THIRD RESPONDENT: H  Cousins
FILE NUMBER: SYC 1104 of 2007
APPEAL NUMBER: EAA 64 of 2007
DATE DELIVERED: 21 September 2007
PLACE DELIVERED: Parramatta
JUDGMENT OF: Coleman J.
HEARING DATE: 14 September 2007
LOWER COURT JURISDICTION: Federal Magistrates Court of Australia
LOWER COURT JUDGMENT DATE: 4 April 2007
LOWER COURT MNC: [2007] FMCfam 301

REPRESENTATION

APPELLANT: In person
FIRST RESPONDENT: No appearance
SECOND RESPONDENT: No appearance
THIRD RESPONDENT: No appearance

Orders

  1. That the Notice of Appeal filed 4 May 2007 be dismissed.

  2. That there be no order for costs of the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as          Cousins & Harper & Ors

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EAA 64 of 2007
File Number: SYC 1104 of 2007

MR COUSINS

Appellant

And

MS HARPER

First Respondent

And

V COUSINS

Second Respondent

And

H  COUSINS

Third Respondent

REASONS FOR JUDGMENT

  1. By Notice of Appeal filed 4 May 2007 Mr Cousins (“the appellant”) appealed against orders made by Federal Magistrate Sexton on 4 April 2007 dismissing the application of the appellant for an order for parentage testing of two children. The respondents to that application were Ms Harper (“the…

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AGLC
Cousins & Harper and Ors [2007] FamCA 1135
Case
[2007] FamCA 1135
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal from a decision of a Federal Magistrate. The appellant sought to challenge observations made by the Federal Magistrate regarding the application of section 69W(1) of the relevant Act, which pertains to parentage testing.

The central legal issue before the Court was whether the Federal Magistrate's interpretation and application of section 69W(1) were correct. Specifically, the Court had to determine if the parentage of the children in question had been established as a "question in issue in proceedings" under the Act, as required by the section, to justify a parentage testing order.

The Court reasoned that while the Federal Magistrate's observations might not have precisely mirrored the wording of section 69W(1), they were not inconsistent with its terms. The Court found that the appellant had failed to demonstrate that the parentage of the children was a question in issue in the substantive proceedings. The Court emphasised that mere curiosity or uncertainty on the part of the appellant was insufficient to elevate parentage to the status of a question in issue. The Court also highlighted the intrusive nature of parentage testing and the paramount importance of the child's welfare, citing previous authorities that stressed the need for a genuine doubt and a bona fide belief that parentage is in issue before such orders would be made.

The appeal was dismissed, and there were no orders for the costs of the appeal.

Orders

Orders of the court

1.

That the Notice of Appeal filed 4 May 2007 be dismissed.

2.

That there be no order for costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It cannot be successfully asserted that her Honour’s observations as to the effect of the section were inconsistent in any way with the terms of that section. Whilst it could be said that the two requirements identified by her Honour do not find expression in s 69W(1) the Court does not consider that this advances the appellant’s cause. Objectively, it may be that it is because of evidence which “places the parentage of a child in doubt” [Reasons for Judgment, page 4 & 5, para 6] in the proceedings that parentage becomes an issue in the proceedings [s 69W(1)] and is thereby “relevant to the nature of the proceedings” as her Honour suggested. [Reasons for Judgment, page 4, para 6]. Without expressing a concluded view, it may be preferable to adhere to the terms of the section than to attempt to paraphrase their nature and effect, but nothing turns on that for present purposes. Nothing to which this Court has been referred in the material before the learned Federal Magistrate demonstrates that the parentage of the two children referred to in the appellant’s application was a “question in issue in proceedings” under the Act as required by the terms of s 69W(1), and nothing raised by the appellant suggests that it was or might have been. The appellant’s curiosity or uncertainty about such matters does not elevate them to that status. It is not difficult to understand why s 69W requires that parentage be a “question in issue in [substantive] proceedings” under the Act before parentage testing would be ordered. Quite apart from the fact that there would be no point unless parentage was a question in issue in the substantive proceedings, parentage testing is obtrusive, and subjecting children to parentage testing procedures, however innocuous or benign they may be, is not something that a Court acting in the best interests of the welfare of children would lightly condone. Butler J recorded in In the marriage of F and R (1992) FLC 92-300 at (79,274):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. However in every case, the interests of the child are paramount and that consideration may supersede the interests of the parties.Significantly, paternity was the “threshold consideration” in the substantive proceedings before his Honour. In the case In the marriage ofDiggins (1992) FLC 92-299 Mullane J refused to make an order for parentage testing where “[T]here is no evidence before me which could be regarded as putting the question of K's paternity in issue in the proceedings between the parties” (at 79,269).

Ratio Decidendi

Legal Principle Established

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