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 Section 26 of the Status of Children Act 1996 provides in subsection (1):

“In proceedings where the parentage of a child is in issue, the Supreme Court may make an order requiring a parentage testing procedure to be carried out ... “.

7 Mr Bradford, for the estate, says that this is such a case. Mr Raoul Wilson, for the applicant, denies this, and his argument is that the deceased signed a paternity acknowledgment within the meaning of s 11 of the Children (Equality of Status) Act 1976. That paternity acknowledgment was countersigned by the mother and has not been annulled, so that the man who signed the acknowledgment by virtue of that section, is presumed to be the father of the child.

8 Section 13 of the current Act provides that certain consequences follow if a man executes a formal paternity acknowledgment or any other instrument acknowledging that he is the child’s father, and the section makes it quite clear that it extends to instruments executed before the commencement of the section. Section 18 of the 1976 Act and s 15 of the 1996 Act make it clear that the presumption is rebuttable by proof on the balance of probabilities.

9 Section 19 of the 1996 Act, which had its rough equivalent in the previous Act, requires an instrument acknowledging paternity to be executed in the presence of a class of persons prescribed by the regulations. Under Regulation 6 of the Children (Equality of Status) Regulations 1977, those persons were solicitors and officers of the then Department of Youth and Community Services, who had been nominated for the time being by the Director of that department for the purposes of the regulations.

10 The form before the Court is merely witnessed by a person who gives his or her qualification as “JP”, even though the note on the form draws attention to the limited class of qualified witnesses. There is not the material to show that that person was a prescribed witness, but the 1996 Act raises the presumption in the case not only of a formal paternity acknowledgment, but also with any other instrument acknowledging paternity, so that the point may not matter that much.

11 The surrounding evidence is that the widow, who of course was not in the picture at the relevant time, 1991, when the acknowledgment was signed, cannot accept that the signature is her husband’s signature. She says that in any event, he had very limited capacity to read and write. On the other hand, D’s mother says that whilst she agrees there was some limitation, she says he had sufficient capacity, and she actually saw him sign the instrument, and she countersigned it. She gives the impression that there was no problem about it whatsoever.

12 However, the deceased told members of his family that he was not the father of D, from an early stage. He, however, paid child support for D until his death. In this respect, he may have had no option because of the signing of the acknowledgment and the consequential alteration of the birth certificate which resulted in the Registrar of Births, Deaths and Marriages having been given the paternity acknowledgment.

13 Again, the explanation about what the deceased told his family may well be (assuming, as one must, that he actually did tell his parents that he was not the father of the child), that it was to keep his mother happy, and for that purpose alone. Accordingly, the presumption is that the deceased was the father, but there is some material, which might make a court come to the view that the presumption has been rebutted on the balance of probabilities.

14 It may be, and I take no final position on this, that if that question were before me today, I would not have been satisfied on the balance of probabilities that the presumption had been displaced. Mr Bradford says that, whether that be right or not, the Court is entitled to know the truth, and the truth is out there, ready to be known, by having the appropriate testing procedure. He refers to what I said in Govers v Luff, 5 November 1997, unreported, a decision under the 1976 Act that:

"The cases under the Act suggest that where there is power to make an order for blood tests in order to determine the question before the Court, then unless there is something to the contrary, the tests should be ordered because the Court needs to know the truth.”

15 Mr Wilson says there is not sufficient doubt in this case. With respect, I beg to differ. I believe that I should follow the approach that I took in Govers v Luff and should make an order for the appropriate test. I will leave it to Mr Bradford to draft the appropriate form of order and show it to Mr Wilson; if there is agreement I will make it, if not, I will, of course, direct my mind to the form.

16 In the first instance, the applicant must pay the cost of the blood test or DNA test, but that should be part of their costs in the cause.

17 I make orders in accordance with the amended short minutes: I have amended order 4. The matter is stood over to the Registrar’s list at 9.30 am on Friday 22 April 2005, with liberty to restore before Young CJ in Eq on three days’ notice.

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