Donato and Withers and Anor

[2008] FamCA 843

FAMILY COURT OF AUSTRALIA

DONATO & WITHERS AND ANOR [2008] FamCA 843

FAMILY LAW – CHILDREN – Parentage testing

Family Law Act 1975 (Cth) ss 69W, 69R, 69U
Birth, Deaths and Marriages Registration Act 1999 (Vic)
Commonwealth Powers (Family Law – Children) Act 1986 (Vic)

F and R (1992) FLC 92-300
Lee and Tse (2005) 33 Fam LR 167
Duroux v Martin (1993) FLC 92-432
OP and HM (2002) FLC 98-017

APPLICANT: Mr Donato

FIRST RESPONDENT: Ms Withers

SECOND RESPONDENT: Mr Congelo

FILE NUMBER: MLC 6252 of 2008

DATE DELIVERED 2 September 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 2 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Traficante solicitor (acting as counsel)

SOLICITOR FOR THE APPLICANT: Rosetta Traficante Solicitor

COUNSEL FOR THE FIRST RESPONDENT: Mr Lynch (acting as Counsel)

SOLICITOR FOR THE FIRST RESPONDENT: Peter Lynch

COUNSEL FOR THE SECOND RESPONDENT: Mr Moss  (acting as Counsel)

SOLICITOR FOR THE SECOND RESPONDENT: John Snodgrass & Associates

Orders

1. I grant leave to the applicant Mr Donato to amend his application filed 9 July 2008 by including in the orders sought the name of the Victorian Institute of Forensic Medicine as the accredited paternity testing laboratory and I further grant leave to the applicant to amend his application to add “such testing to be at the expense of the applicant [Mr Donato]”.

2. On or before 7 November 2008 Mr Donato and the child born … April 1999 shall each attend on the Victorian Institute of Forensic Medicine and provide such information and such bodily sample for parentage testing as the said Victorian Institute of Forensic Medicine reasonably requests.

3. Ms Withers shall bring the said child when she attends on the Victorian Institute of Forensic Medicine and do all acts and sign all documents for the child to give such bodily sample for parentage testing as the said Victorian Institute of Forensic Medicine reasonably requests.

4. The applicant Mr Donato shall be solely responsible for the cost of the said testing and shall pay the same upon request by the said Victorian Institute of Forensic Medicine.

5. The relief in paragraph 1 of the interim or procedural orders sought in the application of Mr Donato file 9 July 2008 be and is hereby otherwise dismissed.

6. I adjourn the said application for final orders and the responses by the first and second respondents to the Judicial Duty List at 10.00am on 17 December 2008.

7. By 4.00pm on 20 November 2008 the applicant file and serve an affidavit annexing the results of the tests conducted in accordance with this order.

8. By 4.00pm on 26 November 2008 the applicant Mr Donato file and serve an amended application setting out:

   (a)       the Part VII orders he seeks as final orders;

   (b)       any Part VII orders that he seeks as interim orders

   together with an affidavit in support for any interim orders that he seeks.

9. By 4.00pm on 10 December 2008 the first and second respondent each file and serve an amended response and any affidavit relied upon.

AND THE COURT NOTES that this matter is not part of Watt J’s docket nor is it part-heard before him.

The publication of this judgment under the pseudonym Donato & Withers and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6252/2008

MR DONATO

Applicant

And

MS WITHERS

First Respondent

And

MR CONGELO

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The point of contention between the parties to these proceedings (at this stage) is whether I should order DNA testing to ascertain if the applicant is the father of the child born in April 1999 to her mother Ms J who was released from prison on the day of the child’s birth. The child is currently 9 years of age. The mother died in November 2005 in Melbourne.

2. The child had a turbulent infancy, having been placed in fostercare at an early age.  She has resided with her maternal grandmother Ms Withers, the first named respondent, in P, Victoria since the age of 14 months. Up until her mother’s death in 2005 the child had irregular contact with her mother due largely to the mother’s drug addiction. 

3. The child has lived her life under the impression that the second respondent is her biological father.  It is the second respondent’s position that he is the child’s father.  The second respondent is currently incarcerated and in a correctional facility.  He is 50 years of age.  He is usually employed as a driver.    

4. The applicant, Mr Donato is 53 years old and is unemployed.  He resides in B, Victoria.   He claims that he is the child’s father, based on one sexual encounter with the mother (at the relevant time), the physical resemblance between the child and him, and other evidence to which I will refer. 

5. In his application filed 9 July 2008 he seeks an order pursuant to s 69W of the Family Law Act 1975 (Cth), that he, the second respondent and the child undergo parentage testing in order to determine the paternity of the child. The applicant has stated that he will pay for such testing to be conducted by an approved laboratory.

6. The maternal grandmother and the second respondent seek to have his application for parentage testing dismissed.  Both respondents seek orders that the child live with the maternal grandmother and spend time and communicate with the second respondent as agreed between them.

7. Given that the child has resided with her grandmother since she was 14 months of age, I made an interim order preserving this arrangement on 6 August 2008. The order provides that the child will live with the maternal grandmother who will have sole parental responsibility for her. The order was not opposed by the applicant or the second respondent.

DOCUMENTS RELIED UPON

1. The applicant  relied upon the following documents:

   ·His Initiating Application filed 9 July 2008;

   ·His affidavits sworn or affirmed 2 July 2008 and 27 August 2008; and

   ·The affidavit of Mr V sworn or affirmed 27 August 2008.

2. The maternal grandmother relied upon the following documents:

   ·Her Response to an Application in a Case filed 28 July 2008;

   ·Her affidavit sworn or affirmed 25 July 2008;

   ·Her Response to an Application for Final Orders filed 28 July 2008.

3. The second respondent relied upon the following documents:

   ·His Response to an Application in a Case filed 26 August 2008;

   ·His affidavit sworn or affirmed 9 August 2008;and

   ·He also filed a Response to an Application for Final Orders on 26 August 2008.

LEGAL PRINCIPLES

1. Part VII, Division 12, Subdivision D of the Family Law Act deals with presumptions of parentage.  Section 69R provides:

   If a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.

2. The child’s birth certificate issued on 22 June 1999, pursuant to the Birth, Deaths and Marriages Registration Act 1999 (Vic), lists the second respondent as the child’s father.  This birth certificate is annexed to the maternal grandmother’s affidavit.

3. Under s 69R, the second respondent is therefore presumed to be the child’s father as a result of the registration of her birth. 

4. Section 69U(1) provides that such a presumption is rebuttable by proof on the balance of probabilities. Part VII Division 12 Subdivision E provides for obtaining evidence as to parentage.

5. In 1986 Victoria referred to the Commonwealth nearly all of its legislative powers in respect of children pursuant to the Commonwealth Powers (Family Law – Children) Act 1986 (Vic).  This legislation was amended on 5 November 1997 to include:

   (b) the determination of a child's parentage for the purposes of the law of the Commonwealth, whether or not the determination of the child's parentage is incidental to the determination of any other matter within the powers of the Commonwealth

6. I am therefore satisfied that in Victoria this court has the jurisdiction to make the order sought by the applicant under the following provisions of the Act.

7. Section 69V provides that:

   If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order requiring any person to give such evidence as is material to the question.

8. Section 69W provides that:

   (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.

   (2)A court may make a parentage testing order:

   (a) on its own initiative; or

   (b)  on the application of:

   (i)a party to the proceedings; or

   (ii)a person representing the child under an order made under section 68L.

   (3)A parentage testing order may be made in relation to:

   (a)  the child; or

   (b)  a person known to be the mother of the child; or

   (c)  any other person, if the court is of the opinion that, if the parentage testing procedure were to be carried out in relation to the person, the information that could be obtained might assist in determining the parentage of the child.

9. It is clear from ss 69V and 69W(1) that the Court can only exercise its discretion if the parentage of a child is a “question in issue” in proceedings under the Act.  The Court’s discretion is not unfettered and must be applied pursuant to the rules of justice and fairness between the parties: F and R (1992) FLC 92-300. As the best interests of the child remain a relevant consideration, such an order cannot be made simply to satisfy a person’s doubts or as part of a fishing expedition.

10. In order to satisfy this threshold question the Full Court (Rowlands, Holden and May JJ) in Lee and Tse (2005) 33 Fam LR 167 at 171-2 identified two matters that the applicant must overcome:

    a)Parentage must be relevant to the nature of the proceedings; and

    b)There must be evidence which places the parentage of a child in doubt: Duroux v Martin (1993) FLC 92-432 and OP and HM (2002) FLC 98-017.

11. In Duroux v Martin at 80,405, the Full Court (Ellis, Finn and Joske JJ) observed that:

    … a Court must first be satisfied that the parentage of a child is in issue in proceedings under the Family Law Act. The proceedings, which are a necessary precondition, may, for example, involve the matter of child maintenance, custody or access in which the question of parentage is an issue.

12. Their Honours went on at 80,407 to adopt the words of the trial Judge, Justice Bell, where his Honour held that an “applicant must have an honest, bona fide and reasonable belief as to the doubt” as to the parentage of the child.

13. In light of the interim orders for parentage testing sought by the applicant, I must consider whether the child’s parentage is a question in issue in the proceedings.  I refer to the Final Orders sought by the applicant in his Initiating Application which read:

    That the applicant does not need to particularise his claim until he has received the results of the parentage testing.

14. On the basis of this application alone, I am not satisfied that the child’s parentage is in issue in any proceedings under the Act as no proceedings for parenting orders have yet been instituted by the applicant.  The sections set out above do not empower the Court to make an order for parentage testing in isolation. 

15. Ms Traficante appearing on behalf of the applicant indicated that he proposed to seeks orders for appropriate time and communication with the child if he was found to be her father.

16. Turning to the maternal grandmother’s Response to an Application for Final Orders, it appears that the child’s parentage becomes an issue as the orders sought by her include that the child should live with her and spend time and communicate with the second respondent as agreed between them.

17. I am therefore satisfied that the proceedings involve a parenting order dealing with whom the child should live and spend time or communicate with pursuant to Part VII of the Act.  The child’s parentage is an issue relevant to such a determination, in circumstances where the applicant stands by ready to seek parenting orders that would involve him in the child’s life, and the child’s primary carer proposes an ongoing relationship between the child and the second respondent, and opposes any involvement of the applicant in the child’s life. 

18. The second matter that the applicant needs to establish is that there is evidence which places the child’s parentage in doubt.  The maternal grandmother and the second respondent deposed that the deceased mother and the second respondent commenced a relationship in 1998.  The second respondent deposed at paragraph 7 of his affidavit that he lived in a de facto relationship with the deceased mother during that year.  Furthermore, that in September or October 1998, when both he and the deceased mother were arrested (on drug-related charges), the deceased mother was pregnant and their parents and friends had been informed of the pregnancy.  The deceased mother and the second respondent never married.  The second respondent has attempted to maintain a relationship with the child, despite his numerous periods of incarceration and the child was taken by the deceased mother to visit him in prison. 

19. In the applicant’s affidavit sworn or affirmed on 2 July 2008, he was vague as to the nature of his relationship with the (deceased) mother.  Paragraph 7 of that affidavit read:

    I first met [the mother] in 1998 and we were friends.  We did not have a relationship.  However after [the child] was born [the mother] had informed me that [the child] was my daughter.  [The child] was three months old.

20. The affidavits of the maternal grandmother and the second respondent made reference to the fact that nowhere in the applicant’s affidavit, did he claim that he had a sexual relationship with the (deceased) mother.  The maternal grandmother claimed at paragraph 2(c) of her affidavit, “that [she] never heard [the mother] (whilst she was alive) say that the applicant was the biological father of [the child].” She makes clear, however, that the applicant asserted that he was the child’s father, at the mother’s funeral.

21. The applicant filed a second affidavit sworn or affirmed on 27 August 2008, in which he provided greater specificity.  At paragraph 4 he deposed:

    … I had a sexual relationship with [the child]’s mother.  The sexual relationship was when both [the mother] and I met at […] on or about July 1998.  At the end of the evening both [the mother] and I went to my former place of residence at [B].  There were no other sexual encounters between us. 

22. This assertion could, if his allegation is correct, and allowing for some uncertainty as to the date of their one sexual encounter, mean that the applicant is the child’s father, but, by itself, does not cast sufficient doubt to justify an order for parentage testing. 

23. The applicant also annexed an undated handwritten note with a photo of a young girl to his affidavit sworn or affirmed on 27 August 2008.  The note read:

    Dear [Mr Donato],

    Thoughts are of you often!  Lets work all this out hey?  Look at his innocient [sic] little princess who has no idea, but know she loves you?  Come on?

    [The mother] & [the child]

    xoxoxoxo

24. There was no dispute that the photo accompanying this note is a photo of the child.  Mr Lynch appearing on behalf of the maternal grandmother stated that in his client’s view, the handwriting in the note was consistent with that of the deceased mother.  The applicant also annexed an undated handwritten letter to his affidavit sworn or affirmed on 27 August 2008.  At paragraph 11 of this affidavit he deposed:

    I never did receive this letter until June 2007, and this letter was given to me by the person that purchased my home in [B].  He informed me that he found this letter underneath his home.  However, prior to [the mother] dying we discussed that I have paternity testing.

25. This explanation explains in part why the applicant’s application was not brought earlier..

26. The letter read:

    Dear [Mr Donato],

    How are things for you, over your way?

    Well I thought I’d write you a little note to let you know that you do mean alot [sic] to “[the child]” & myself, But [sic] come on you know about this un-comfortable situation we are both  inn [sic], Well [sic] all I can say [Mr Donato] is for this pridicument [sic] to go even any further, something must be done Imediately [sic].

    As its [sic] very hard to live day by day, and you know who comes home soon (1½ yrs) and it will all be so very confusing, for especially my or Our? [sic] [child]!! O.K.

    I am being very serious and adult about the whole thing, So [sic] start doing Something [sic], and we will get the test done O.K?

    I know she has got some kind of special bond with you but [sic]? That [sic] doesn’t mean anything!?

    Please understand, for it’s a very confusing situation?  If not for me? Please for [the child] whom is a geourgouse [sic] Inocant [sic] girl who needs to know And [sic] very Important [sic] thing?  And you know what this is?

    Understand Please [Mr Donato]?

    Thoughts & Love

    [The mother] & [the child] xoxo

27. On its face, this letter appears to be written by the deceased mother to the applicant.    Although I cannot be certain as to the identity of the author of this letter, Mr Lynch appearing on behalf of the maternal grandmother again stated that in his client’s view, the handwriting in the letter was consistent with that of the deceased mother.  Both the note recited above and this letter are signed “[The mother] & [the child].”

28. I note that the author of the letter, who I accept was the deceased mother, makes reference to uncertainty regarding the paternity of [the child] and the potential for difficulty when an unknown third party returns home in a year and a half’s time (presumably a reference to the second respondent’s release from imprisonment.).  This detail is consistent with the extended periods of incarceration that the second respondent has undergone during [the child]’s life. 

29. In consideration of this evidence, and in light of the unusual spelling of the child’s name, the absence of any doubt that the photo attached to the first note is a photograph of the child, and the fact that the notes, by their content, suggest that they were written by the child’s mother, I am satisfied that the applicant has presented the Court with sufficient evidence to place the child’s parentage in doubt. This doubt was obviously in the mother’s mind, and she saw it as desirable, for the child’s sake, to place the matter beyond doubt by having parentage testing   I am therefore satisfied that the applicant’s belief that he might be the father is honest, bona fide and reasonable. I am also satisfied that DNA parentage testing evidence, if it shows the applicant to be the father, will be sufficient to displace the presumption of paternity that flows from the birth certificate.

30. The applicant sought, in his application, to have the second respondent participate in the parentage testing. At the hearing on 2 September 2008, the   applicant did not to press the issue, and I will therefore make no order for him to participate.

31. Pursuant to s 69W of the Act, I am therefore prepared to exercise my discretion to make an order for parentage testing of the applicant and the child.

32. I note that pursuant to s 69U, if the doubts regarding the child’s parentage are determined in applicant’s favour, the parentage evidence is sufficient to displace the presumption in favour of the second respondent.  

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate: …

Date:  15 September 2008