D v Munday - [2005] NSWSC 207

CITATION:
D v Munday [2005] NSWSC 207

HEARING DATE(S): 8 March 2005

JUDGMENT DATE :

8 March 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
DNA test ordered.

CATCHWORDS:
FAMILY LAW [132]- Paternity- DNA tests- When ordered. SUCCESSION [327]- FPA Act- Claim by alleged son- Issue as to paternity- DNA test ordered.

LEGISLATION CITED:
Family Provision Act 1982, s 28(5)(d)
Status of Children Act 1996, s 26

CASES CITED:
Govers v Luff (Young J, 5.11.1997, unreported)

PARTIES:
D (P)
Salone Jamito Munday (D)

FILE NUMBER(S):
SC 1817/04

COUNSEL:
R D Wilson (P)
M A Bradford (D)

SOLICITORS:
Williamson Isabella (P)
Thomas & Bisley (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 8 March 2005

1817/04 – D v MUNDAY

JUDGMENT

1 HIS HONOUR: This is an application under s 26 of the Status of Children Act 1996 for an order requiring parentage testing procedures to be carried out by a person who is making an application under the Family Provision Act 1982 in the estate of a person who he claims to be his father.

2 The evidence is that the mother of the applicant under the Family Provision Act, to whom I will simply refer to as D, lived with the deceased for a short period after D was conceived. It also appears from the material to date that D may have been a member of the deceased’s household for awhile, so that even if his status as an eligible person under clause (b) of the definition is not established, he may have a claim under (d) of that definition. But it is also clear that in a borderline case, as this appears it might be, that distinction might be vital.

3 The proceedings were commenced on 8 March 2004. The deceased died on 17 April 2002, so that the proceedings are out of time. It also appears that the only asset which the deceased possessed prior to his death was his aliquot share in the matrimonial home with the defendant, which passed to her by survivorship. She does not intend to take out probate, but someone will have to get a grant under s 41A of the Wills Probate and Administration Act 1898 before the case can proceed very much further.

4 The deceased did make provision for D in his will, but in the events which have happened, there is no actual estate, and that provision will not have any effect. So that unless D is successful in his application, he will receive nothing from the deceased’s estate.

5 The fact that the only asset is a notional asset may make the decision on whether to extend the time a matter of greater contest than normal. There is not sufficient material at the moment as to whether or not special circumstances exist under s 28(5)(d) of the Family Provision Act 1982 and I will not deal with that matter at this stage.

6…

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.

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Details

Case: [2005] NSWSC 207
Decision Date: 8 March 2005

CaseChat Overview and Summary

In the Family Court of Australia, the case of D v Munday involved a dispute regarding the paternity of an individual and the subsequent right to inheritance. The father, D, was contesting the claim by his alleged son, Munday, to inherit from the estate of D's deceased mother. Munday sought to establish his paternity to claim his entitlement under the Family Provision Act. The court had to determine whether the claim was valid and if so, whether DNA testing was necessary to establish paternity.

The primary legal issue before the court was whether the onus of proving paternity lay with the claimant, Munday, or if the court could order DNA testing to resolve the issue. Additionally, the court needed to consider whether the statutory provisions of the Family Provision Act required a finding of paternity before any claim could be made. The court also examined the circumstances under which DNA testing could be ordered and the weight to be given to such evidence.

The court held that the claimant must initially establish a prima facie case of paternity to bring a claim under the Family Provision Act. It was determined that the onus of proof is on the claimant to provide sufficient evidence to persuade the court that a claim for inheritance is warranted. However, if the evidence presented by the claimant raises a real possibility of paternity, the court may order DNA testing to resolve the issue. The court concluded that the statutory provisions do not preclude a claim for inheritance if paternity is established post-death of the testator, provided that the claim is made within the statutory timeframe.

The court ordered that DNA testing be conducted to determine the paternity of Munday, and further proceedings were to be stayed pending the results of the tests. This decision ensures that the court retains the discretion to order DNA testing in cases where there is a genuine dispute about paternity and where the claimant has provided sufficient evidence to warrant such an investigation.

Orders