Cousins & Harper and Ors
[2007] FamCA 1135
•21 September 2007
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
That the Notice of Appeal filed 4 May 2007 be dismissed.
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
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 first respondent”), who is the mother of the children, and V Cousins (“the second respondent”) and H Cousins (“the third respondent”), who have been regarded historically as the children’s paternal grandparents.
In orders previously made by the Court, including final orders made in this Court on 1 March 2005 after a hearing, the appellant was regarded as the biological father of the children.
The appellant has represented himself throughout the proceedings in this Court. The appellant has suffered significant injuries in the past and, as he frankly conceded, has limited understanding of the principles governing an appeal to this Court.
The effect of the relief sought by the appellant, if his appeal is allowed, is that his application for parentage testing be reinstated and that orders for parentage testing be made as sought in that application.
As the record would confirm, the appellant has filed no material in the appeal save for his Notice of Appeal. The “grounds of appeal” (Part B) contained in his Notice of Appeal give no clue as to the basis upon which the appellant seeks to impugn the orders of the learned Federal Magistrate of 4 April 2007 or the reasoning process which resulted in those orders. Notwithstanding that the appellant has not filed any material, the Court permitted him to make oral submissions when the appeal was called on for hearing. None of the respondents to the appeal were present at the hearing of the appellant’s appeal.
Reasons for Judgment of the Federal Magistrate
The appeal could be dismissed on the basis that the appellant has given no indication of any possible basis for error on behalf of the learned Federal Magistrate. Rather than adopting that course, however, the Court has, having regard to the appellant’s personal circumstances, undertaken a review of the learned Federal Magistrate’s Reasons for Judgment and the relevant law in order to ascertain whether, though not raised by the appellant, some basis for appellant intervention might be enlivened. That exercise logically commences with a consideration of the learned Federal Magistrate’s Reasons for Judgment.
In her reasons, her Honour referred to the appellant’s application for parentage testing with respect to two children who are now almost 15 years and 12 years of age.
The learned Federal Magistrate recorded that she had “indicated to the father [the appellant] this morning that there were difficulties” with his application in that “there is no substantive application before the Court which might warrant such [parentage] testing to be undertaken.” [Reasons for Judgment, page 4, para 5]. The Court does not have a transcript of the proceedings before her Honour but, in fairness, the appellant does not suggest that her Honour’s statements in relation to advising him of the “difficulties” which his application faced were not made as her reasons suggest.
Reference was made to s 69W Family Law Act 1975 (“the Act”) which her Honour observed “provides that if the parentage of a child is a question in issue in proceedings under this Act, the Court may make an order, being a parentage testing order, requiring a parentage testing procedure to be carried out on a person for the purpose of obtaining information to assist in determining the parentage of the child.” [Reasons for Judgment, page 4, para 5].
Her Honour cited a decision of the Full Court reported as TNL & CYT [2005] FamCA 77 in which the Court said (at 29):
The Court’s power to make an order for parentage testing is clearly subject to the parentage of the child being ‘a question in issue in proceedings under the act’.
In reliance upon that decision her Honour concluded that to order parentage testing, two requirements needed to be satisfied, the first being “that parentage must be relevant to the nature of the proceedings”, the second being that “there must be evidence which places the parentage of a child in doubt.” [Reasons for Judgment, page 4 & 5, para 6].
The learned Federal Magistrate concluded that there was no question in issue in the proceedings before her to which parentage testing could be relevant. She thus concluded that the Court had no power to make a parentage testing order “in isolation” [Reasons for Judgment, page 5, para 8] and thus dismissed the appellant’s application.
The Challenges to the decision of the Learned Federal Magistrate
The appellant has referred this Court to nothing in the evidence before her Honour which renders her decision potentially appealable by reason of erroneous findings of fact. The appeal in this Court proceeds on the basis that her Honour’s conclusion that there was no question in issue in the proceedings before her to which parentage testing may be relevant was both reasonably open to her as a matter of fact and/or inference in reliance upon the facts as found by her.
Necessarily, howsoever expressed, the only basis upon which the appellant might succeed is therefore in reliance upon an erroneous interpretation of s 69W of the Act. Section 69W appears in Part VII of the Act which is entitled, “Children”. Section 69W relevantly provides:
Orders for carrying out of parentage testing procedures
(1) If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order ) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child.
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).
In McK and K v O (2001) FLC 93-089 Mullane J said:
28. The only provision in the Act regarding parentage declarations is section 69VA. It provides:
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
29. That power is not a free standing power. It is clearly expressed to be dependent upon there being proceedings before the court in which the parentage of the child is already an issue.
30. The insertion of s 69VA implies that the parliament considered there was no separate power in the Act at that time to make a declaration of parentage. Section 69VA is the only express power to make a parentage declaration. There is no express power to make such a declaration except in proceedings in which the parentage of the child is already in issue.
Nothing to which the appellant has referred the Court, or the Court has discerned for itself, demonstrates that the learned Federal Magistrate erred in law, in fact or, to the extent that discretion was involved, which does not appear to have been, in discretion in dismissing the appellant’s application.
Historically courts exercising equitable jurisdiction declined to entertain applications seeking “mere declaratory judgments” (Guaranty Trust Co of New York v Hannay & Co (1915) 2 KB 536). Only by statute in 1880 did the Supreme Court of New South Wales acquire the power to grant “a merely declaratory decree” in the exercise of its equitable jurisdiction.
Notwithstanding that statutory provision, and the subsequent Equity Act 1901, the Supreme Court placed a restrictive interpretation on those enabling provisions, consistently ruling that the Court was without power to make a declaration in circumstances where no consequential relief was sought or could be granted (see J C Williamson Ltd v Durno Ltd (1915) 15 SR (NSW) 442).
The Equity Court’s persistence in limiting its powers to make declaratory orders or decrees continued after the passing of the Administration of Justice Act 1924 which reiterated (section 18) that no suit was open to objection on the ground “that a merely declaratory order is sought thereby”. The Court was provided by statute with the power to make “binding declarations of right whether any consequential relief is or could be claimed or not”.
As decisions such as Tooth & Co Ltd v Coombes (1925) 42 WN (NSW) 93 confirm, the Court’s resistance to granting “merely declaratory” decrees continued. In David Jones Ltd v Leventhal (1927) 40 CLR 357, the High Court adopted a similarly restrictive view of the power to grant merely declaratory decrees, the consequence of which in that case, involving a dispute between the landlord and a tenant as to the obligation to pay certain taxes, was to leave the parties to either resolve their differences by negotiation or, in order to attract the jurisdiction of a Court to resolve their dispute, await one party or the other committing a breach of contract resulting in a damages action in the course of determining which the legal rights and obligations of the parties under the lease would be declared. In Langman v Handover (1929) 43 CLR 334 the High Court adopted a similarly constrained view of the power to grant merely declaratory relief.
In 1965 the Equity Act was amended to confer a declaratory jurisdiction on the Supreme Court of New South Wales. Notwithstanding the undoubted ability to exercise the power, Equity Courts could be regarded as having been cautious about exercising that power (see Smart v Allen (1970) 91 WN (NSW) 241; Salmar Holdings Pty Ltd v Hornsby Shire Council (1970) 91 WN (NSW) 234).
Decisions of the High Court in the 1970’s (Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 and Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297) made clear that the amendments to the Equity Act had the effect suggested by their terms. The issue was finally laid to rest in New South Wales by s 75 of the Supreme Court Act 1970 which provided that “no proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential ruling is or could be claimed or not”.
The history of declaratory relief is instructive for present purposes. It is significant that, notwithstanding apparently clear statutory provisions enabling Equity Courts to do so, for 90 years after the first of such statutory provisions was enacted in New South Wales, and until the provisions of the Supreme Court Act of 1970 put the matter beyond doubt, courts exercising equitable jurisdiction resisted granting merely declaratory relief.
It is significant for present purposes that the power to order parentage testing in order that the Court may make declarations about parentage of children is expressly reserved for proceedings constituting a matrimonial cause within s 4 of the Act in which such parentage is an issue. It can thus be suggested with some confidence that the legislative intention evidenced by s 69W of the Act is that the power to order parentage testing and hence make declarations of paternity in reliance upon such testing is intended to be exercised only in the course of proceedings under the Act in which paternity is, or becomes, an issue. There is thus a consistency between the provisions of s 69W, and the history of the exercise of powers to grant purely declaratory relief.
As the Court endeavoured to explain to the appellant, if in the course of proceedings for substantive relief pursuant to Part VII of the Act the parentage of the children the subject of those proceedings were to become a legitimate issue in the proceedings, the appellant could apply for an order for parentage testing pursuant to s 69W(2) of the Act, as could any other party to the proceedings, an independent children’s lawyer representing the children pursuant to s 68L of the Act, or the Court on its own initiative.
Whilst there can be no doubt as to the appellant’s earnestness, that is not a recognised basis for appellate intervention. Nor is his curiosity with respect to the paternity of the children. The appeal must be dismissed.
Whilst no respondent to the appeal has been heard in relation to the issue, having not appeared at the hearing and, been unrepresented on previous directions occasions, the Court cannot see any basis upon which any respondent to the appeal could successfully seek an order for costs of the appeal against the appellant.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of Justice Coleman.
Associate:
Date: 21 September 2007
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