DOCS v MB

[1999] NSWSC 591

CITATION:	DOCS v MB [1999] NSWSC 591
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	2145/99
HEARING DATE(S):	11 May 1999, 1 June 1999
JUDGMENT DATE:	1 June 1999
PARTIES :	Director General, Department of Community Services (P) v MB & 2 Ors
JUDGMENT OF:	Austin J

COUNSEL :	D Stack (P)
SOLICITORS:	I V Knight (P) E Harrison (D1) L Miller (Separate Representative)
CATCHWORDS:	Welfare - children - declaration of parentage - parentage testing procedure
ACTS CITED:	Status of Children Act 1996 (NSW), ss21, 26; Status of Children Regulation 1998, clauses 6, 7, 8, 9, 11,19; Status of Children Regulation 1999
DECISION:	Orders made for carrying out of parentage testing procedure

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 1 JUNE 1999

2145/99 - DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES v MB & 2 ORS

JUDGMENT (Ex tempore, revised 16 June 1999)

1 HIS HONOUR: In this matter the plaintiff applies by summons for a declaration of parentage under section 21 of the Status of Children Act 1996 (NSW) with respect to the baby, IKG. By notice of motion filed on 28 April 1999, the plaintiff as applicant has sought orders that an accredited laboratory carry out a parentage testing procedure on DB and IKG pursuant to section 26 of the Act for the purpose of determining the paternity of IKG, and that DB and IKG provide bodily samples accordingly. The notice of motion was heard by me on 11 May 1999. 2 In order to make the orders sought in the notice of motion, it was necessary for the Court to be satisfied that the Status of Children Regulation 1998, a regulation made under the Act, could be complied with. It became evident at the hearing on 11 May 1999 that there were two obstacles to compliance with the regulation. 3 The first related to the definition of ‘accredited laboratory’. The scheme of the regulation is that a parentage testing procedure of the kind prescribed in clause 6 of the Regulation is taken to be carried out in accordance with the Regulation only if carried out at an accredited laboratory (clause 7). The problem with the definition of ‘accredited laboratory’ was that the definition required that the name of the relevant laboratory be published in the Commonwealth Government Gazette. The Attorney General of the Commonwealth no longer publishes the names of such laboratories in the Commonwealth Government Gazette and consequently there was no accredited laboratory and no prospect of compliance with the requirements of the Regulation. 4 The second problem arose out of the definition of ‘representative’ in the Regulation. The procedure for parentage testing requires that the donor (in this case both DB and IKG) provide a declaration under clause 11(2) ‘immediately’ before the sampler takes a bodily sample, and an affidavit under clause 11(1)(a) as well. By clause 11(3) of the Regulation the affidavit and the declaration may be completed by a representative where the donor is under the age of eighteen years, as IKG obviously is. The definition of ‘representative’ stated that, in relation to a donor under the age of eighteen years, the word ‘representative’ means the parent or guardian of the donor. The reference to guardian is irrelevant. As far as the parents are concerned, in this case the whole point of the parentage testing procedure is to establish the identity of the father of IKG, and consequently it is not feasible for the declaration and affidavit to be supplied by the father. The mother is currently in custody and the evidence before me on 11 May 1999 satisfied me that it would not be practicable for her to supply either the affidavit or the declaration, and indeed practically impossible for her to supply the declaration ‘immediately’’ before the bodily sample of her baby was taken. 5 In these circumstances the plaintiff's application was stood over on the basis that an attempt would be made to amend the Regulation to overcome these two difficulties. On 21 May 1999 the Status of Children Amendment Regulation 1999 took effect. The new regulation amends the definition of ‘accredited laboratory’’ by removing the requirement for the name of the laboratory to be published in the Commonwealth Government Gazette. This overcomes the first of the two problems. 6 As far as the definition of ‘representative’ is concerned, the new regulation expresses the definition to be subject to a new subclause (4), which is in the following terms:

‘(4) The Supreme Court may appoint a person to be the representative of a donor for the purposes of this Regulation in relation to a particular matter if the Court is satisfied that there is no other representative who is available who is suitable in the circumstances.’

7   For the reasons I have already given, I am satisfied that neither of the parents of IKG is suitable in the circumstances to be the baby's representative for the purpose of complying with the requirements of clause 11 of the Regulation. It has not been suggested that any other representative would be available and suitable apart from the proposed representative nominated by the plaintiff. The plaintiff proposes that I make an order appointing Cheryl Purchase, who is a District Officer (Aboriginal) in the plaintiff's Department as the representative and I am satisfied that that is an appropriate course to adopt. 8   I note that the first defendant (the mother) by her solicitor has consented to the orders sought by the plaintiff, including this order. The second defendant, ICG, who has been named as the father of IKG, was not present on 11 May 1999 and is not present today, though there is evidence that he has been served with the summons and notice of motion. The third defendant, DB, is in Court today and consents to the orders sought by the plaintiff, including this order. The separate representative of IKG also consents to the orders sought by the plaintiff, including this order. 9   Other orders sought by the plaintiff are intended to ensure compliance with the labyrinthine procedures prescribed by the Regulation. I am informed that this is the first occasion upon which the plaintiff has sought to invoke the Regulation. In particular, the directions which I propose to make are intended to ensure that when my orders and directions are taken out, that step will constitute notice of the Court's order to the Registrar under clause 8(2)(b) of the Regulation. I understand that the plaintiff will today file a form of notification for the purposes of clause 9, which obliges the Registrar to give that notice to the person in charge of the accredited laboratory which he selects. The orders which I will make assume that the accredited laboratory selected by the Registrar will be DNALABS.HIV, a laboratory which in my opinion on the evidence satisfies the requirements of the Regulation. 10   The Regulation requires that a report on the parentage testing procedure is to be sent to the Registrar, together with certain other documents (clause 19(6)). I propose to direct the Registrar to provide a copy of the report to the solicitor for the plaintiff as soon as practicable after it is received. Obviously there is an element of urgency in these proceedings because the welfare of IKG is at stake. It is contemplated that the solicitor for the plaintiff will then make the report or its substantive content available to other interested persons. 11   My intention is that the hearing of the summons will take place before me on 16 June 1999, and I shall so order. I shall give liberty to any party to apply on forty-eight hours notice so that any interlocutory issue which may arise can be brought to the Court's attention at the earliest possible time. 12   The plaintiff has handed up a document entitled ‘Minutes of Orders sought by the Plaintiff’ which I have amended in the course of discussion with the legal representatives of the parties. I initial and date that document for the purposes of identification. I make orders and directions 1 to 10 in that document.

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Last Modified: 06/17/1999