F & Z
[2005] FMCAfam 394
•11 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & Z | [2005] FMCAfam 394 |
| CHILD SUPPORT – Children – application to extend time to apply for declaration pursuant to section 107 of the Child Support (Assessment) Act 1989 – principles applicable to application to extend time. FAMILY LAW – Application for parentage testing under section 69W of the Family Law Act 1975 – meaning and effect of section 69W – whether parentage relevant to nature of substantive proceedings – whether evidence which places parentage of child in doubt – whether putative father has an “honest, bona fide and reasonable belief” as to the doubt that he is the child’s father – discussion of dicta in OP & HM [2002] FamCA 454 and TNL & CYT [2005] FamCA 77 – effect of presumption under section 69R of the Family Law Act 1975 arising from person’s name being entered as a parent of a child in a register of births or parentage information kept under a law of a State – evidence required to rebut presumption created by section 69R – whether the interests of justice are best served by the ascertainment of the truth (in relation to parentage) – whether the court should be furnished with the best available science or scientific evidence regarding parentage (and not be confined to alternatives such as presumptions or inferences) – whether relatively weak evidence is sufficient to rebut presumption under section 69R – whether welfare or best interests of child comprise the paramount consideration, or only a relevant but important consideration, in an application for parentage testing pursuant to section 69W – nature of discretion under section 69W – parentage testing ordered. |
| Family Law Act 1975, ss.65E, 68L, 69R, 69W, 69X Child Support (Assessment) Act 1989, s.107 |
| TNL & CYT (2005) FamCA 77 OP & HM (2002) FamCA 454 Duroux & Martin (1993) FLC 92-432 F & R (1992) FLC 92-300 Mr A & Ms B & Ms S (2005) FamCA 655 S & McC; W & W (1972) AC 24 Re H & A (Children) (2002) EWCA Civ 383 G & H (1993) FLC 92-380 J & P (1985) 10 FamLR 490 Briginshaw & Briginshaw (1938) 60 CLR 336 Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd (1992) 2 VR 505 M & M (2002) FMCAfam 274 A & P (2004) FMCAfam 303 | ||
| Applicant: | F | |
| Respondent: | Z |
| File Number: | MLM 4647 OF 2005 |
| Judgment of: | Walters FM |
| Hearing date: | 19 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 11 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mort of Counsel |
| Solicitors for the Applicant: | Whyte Just & Moore |
| Counsel for the Respondent: | Dr Alexander of Counsel |
| Solicitors for the Respondent: | Monash Oakleigh Legal Service |
ORDERS
All relevant time limits be extended in such manner as to enable, authorise and permit the applicant to bring his applications for:
(a)a declaration pursuant to section 107 of the Child Support (Assessment) Act 1989; and
(b)parentage testing pursuant to section 69W of the Family Law Act 1975.
Pursuant to section 69W of the Family Law Act 1975, the parties sign all such documents and do all acts and things necessary to:
(a)undergo an approved parentage testing procedure (“the Procedure”) to ascertain whether the applicant is the natural father of the child; and
(b)cause, permit and encourage the said child to fully and effectively participate in and otherwise and undergo the Procedure.
Pursuant to section 69X of the Family Law Act 1975, the parties and the said child within 21 days of the date of this order do attend upon a registered medical practitioner of pathologist to enable a bodily sample to be taken from them for the Procedure to be carried out by such accredited laboratory as may be agreed upon between the parties.
The cost of the Procedure be paid by the applicant.
The matter be otherwise adjourned to 11 October 2005 at 9.45am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 4647 of 2005
| f |
Applicant
And
| Z |
Respondent
REASONS FOR JUDGMENT
Introduction
The question for determination in this matter is whether the Court should make an order requiring a parenting testing procedure to be carried out for the purpose of obtaining information to assist in determining the parentage of a young child. I shall refer to the child (a boy) as “R”.
The applicant (to whom I shall refer as “F”) applied for the parentage testing order. The respondent (to whom I shall refer as “Z”) opposes it.
Z is R’s mother. F maintains that he has “significants doubts” as to whether he is R’s father.
Background
F’s application for parentage testing orders is not made in a vacuum. The parentage testing is sought by way of an interim order in the context of F’s application for a declaration pursuant to s.107(4)(c) of the Child Support (Assessment) Act1989 (“CSAA”) that Z is not entitled to administrative assessment of child support for R payable by him. The Court may grant such a declaration if it is satisfied that F is not a parent of R.
F was born in Victoria in November 1944, and is now 60. Z was born in China in June 1964. She is now 41. R was born in Victoria on
28 October 2002 — when F was 57 and Z was 38.
F and Z were never married to each other. Nor did they ever live together. They were involved in what both describe as “a sexual relationship” from approximately October 2001 until March 2002. They met each other once or twice a week during that period.
According to Z, F would pick her up from her home on Friday or Saturday and they would spend the weekend together at F’s residence or in a motel. It is not in dispute that F and Z had unprotected sexual intercourse during the times they spent together.
During the six month period of their relationship, F lived in a suburb of Geelong. Z lived in a suburb of Melbourne.
According to F, he was advised (presumably by Z) that Z could not have children. According to Z, she and F never discussed her ability to have children, and they did not discuss methods of contraception. Z said:
Instead, I informed (F) that I did not have children. (F) advised me that he is a good father, with two daughters; however, he also said words to the effect that “I still needed to have a boy”. (F) did not inform me that he did not want to have a child with me.[1]
[1] See paragraph 4 of Z’s affidavit (sworn 11 July 2005).
F’s evidence was that he had made it clear to Z that he did not wish to have children with her.
Z underwent a pregnancy test in mid 19 March 2002. That evening, she informed F that she was pregnant. According to F, he was “devastated” when Z advised him that she was pregnant and that she believed that he was the father. According to Z she was “devastated” by F’s negative reaction to the news that she was pregnant (and by his suggestion that she get an abortion).
It would appear that the relationship between F and Z ended immediately after the announcement of Z’s pregnancy. F did not attend the hospital for R’s birth.
R has lived with Z since his birth, and it would appear that F has had very little contact with him.
The Department of Human Services is Involved
During the period leading up to R’s birth, Z was unhappy. She may have been suffering from depression. In late November 2002, the Department of Human Services received a notification alleging that Z was unable to provide adequate care for R. After appropriate investigative steps, the Department issued a Protection Application by Apprehension in relation to R. It assessed that R was “at risk of immediate and significant harm” due to certain of Z’s behaviours, her lack of parenting skills and an absence (on Z’s part) of “bonding, attachment and warmth towards R”.[2]
[2] See Exhibit A2.
An Interim Accommodation Order was granted in the Melbourne Children’s Court on 12 December 2002, providing for R to reside in a community placement until 18 December 2002. It was also ordered that R live with Z’s mother until 24 January 2003.
On 20 March 2003, Departmental officers recommended that the protection application for R be withdrawn. By that stage, the Department was satisfied that R was living in a safe and supportive environment with Z and her parents. Z was also receiving appropriate support from her local Maternal and Child Health Centre. As a result, statutory intervention was not considered necessary.
During the period of the Department’s involvement (from mid December 2002 to mid March 2003), F cooperated with the process and was present for home visits. He also had contact with R on what would appear to have been a fairly regular basis.[3] It is clear, however, that F and Z did not resume their relationship after R’s birth, and certainly did not live together.
[3] See Exhibit A2.
Leaving aside the period of the Department’s involvement, it appears that Z’s care of R has otherwise being appropriate and uneventful.
R’s Birth Certificate
It seems that F did not immediately sign the Birth Registration Statement relating to R’s birth. The Victorian Department of Justice wrote to him some time after 27 November 2002 to “remind him of his responsibility to sign the Birth Registration Statement” and to give him the opportunity “to lodge with the Registry any relevant legal objections in signing the form”.[4] F later signed the Birth Registration Statement. He asserts that he did so because he “accepted the advice of Z that she believed (he) was the father”.[5]
[4] See Annexure XZ3 to Z’s Affidavit.
[5] See paragraph 8 of F’s Affidavit (sworn 27 May 2005).
R’s Birth Certificate contains the full details of F and Z, and records them as the informants of the birth.
Child Support Assessment
At some stage after R’s birth, Z applied for and obtained an assessment of child support in relation to R. The current assessment[6] was issued on 3 June 2005 and relates to the period from 1 December 2004 to 28 February 2006. It requires F to pay Z a monthly amount of $1,189.00 by way of child support for R.
[6] Exhibit A1.
It was not in dispute that F has always met his child support obligations (although Z asserts that his payments have sometimes been “delayed”).
The evidence before me does not reveal when an assessment for child support first issued.
Section 107 Declaration
Following an exchange of correspondence between the parties or their solicitors commencing in or about early January 2005[7], F filed an application in this Court on 30 May 2005. Under the heading “Final Orders Sought by Applicant”, he applied for the s.107 declaration referred to in paragraph 4 above. Under the heading “Interim or Procedural Orders Sought”, he applied for an order for parentage testing.
[7] See Annexure RF1 to F’s Affidavit.
F filed an amended application on 1 July 2005. The purpose of the amendment was to include an application for an order granting F leave to bring his substantive application out of time.
The Hearing
F’s application for an extension of time within which to bring his substantive application, and his application for a parentage testing order, were argued before me on 19 July 2005. Mr Mort appeared for F, and Dr Alexander appeared for Z. The applications were argued “on the papers”, and neither Counsel sought to cross examine the other party.
At the completion of the hearing on 19 July 2005, I adjourned the matter for a short time to consider Counsels’ submissions. During the adjournment, I became aware of the decision of the Full Court in TNL & CYT (2005) FamCA 77. The judgment in TNL & CYT was delivered on 23 February 2005. Neither Mr Mort nor Dr Alexander had referred to the case during the course of their submissions.
Upon the resumption of the hearing on the afternoon of 19 July 2005, I provided Mr Mort and Dr Alexander with a copy of the decision in TNL & CYT and stood the matter down in order to give them the opportunity to read the decision and formulate any further submissions that they might be minded to make. The hearing resumed approximately 45 minutes later.
After hearing further submissions from Mr Mort and Dr Alexander (based on TNL & CYT), and with the knowledge and consent of Counsel, I indicated that I would make such orders as I considered appropriate at that time and that I would provide reasons for my decision at a later stage. I proceeded to make orders requiring the parties and R to undergo parentage testing, and granting F leave to bring his substantive application out of time. It follows that these Reasons are for the purpose of explaining the decision that I made on 19 July 2005.
The Application to Extend Time
It was not in dispute that F’s application for a declaration pursuant to s.107 of the CSAA was out of time. Pursuant to rule 25A.04 of the Federal Magistrates Court Rules 2001, such an application must be filed within 28 days after receiving a notice given under s.34 of the CSAA — being a notice from the Child Support Registrar to a person from whom the payment of child support is sought to the effect that an application for administrative assessment of child support has been received and accepted, and that the recipient of the notice may object to the Child Support Registrar’s decision in that regard.
I was not provided with any evidence (from either party) as to when F received the notice pursuant to s.34. It follows that, although neither party disputed that F’s application was out of time, I do not know to what extent it is out of time.
In OP & HM (2002) FamCA 454, the Full Court said (at paragraph 19):
The principles to be applied in determining an application for an extension of time are fairly well settled. Whilst there is a broad discretion, the fundamental issue is whether an extension of time will enable the Court to do justice between the parties. This is normally shown by the applicant demonstrating that there are adequate reasons which explain the delay, that there is a substantial issue to be raised on the hearing of the application, and that no hardship or injustice will be caused to the respondent which cannot be compensated by orders as to costs or otherwise ….
Extending Time — Delay
As I have already observed, there is no evidence before me as to the extent of the delay in F filing his substantive application. It is clear, however, that F formally requested Z to involve herself in parentage testing on 12 September 2004.[8] The period between September 2004 and the filing of F’s application on 30 May 2005 is adequately explained, in my opinion, by the fact that F was endeavouring to persuade Z or her solicitors to agree to the parentage testing procedures without the necessity of having to file an application for appropriate orders. The correspondence attached to F’s affidavit (sworn 27 May 2005) demonstrates that F adopted a sensible and reasonable approach to the matter. Further, F asserted that his solicitors received an email from Z’s previous solicitors indicating that “there may be some prospect of Z agreeing to the paternity testing”[9] According to F, Z then changed solicitors. Z, for her part, said:
“I am unaware of any email sent to (F’s) solicitor in response to a letter from him to (my previous solicitors) indicating a prospect of me agreeing to a paternity test.”[10]
[8] See Annexure XZ4 to Z’s Affidavit.
[9] See paragraph 21 of F’s Affidavit sworn 27 May 2005.
[10] See paragraph 14 of Z’s Affidavit.
It is clear from the above extract from Z’s affidavit that, although she may be unaware of any email sent to F’s solicitor, she does not dispute that such an email might have been sent. Nor does Z depose to the fact that she has never indicated to her solicitors that she might agree to parentage testing.
In relation to the period prior to January 2005, I am prepared to accept that there may have been a delay of something in the order of one and a half years. F’s explanation for the delay during this period is as follows:
On or about October 2002 the time of (R’s) birth, it was one of the worst times in my life. I was paying significant amounts of spousal maintenance to my former wife. I was devastated when I was advised I would have an obligation for child support.
I thought that I had no choice.
That my daughter (JF) has seen (R) and has advised me that she does not believe that the child has any physical resemblance to me.
I believe that I have been most naïve in believing (Z) when she advised me that I was the father of (R). After consideration of this matter I now believe that I may not be the father of (R).
That I was born on the 10th November 1944 and am 60 years of age. I was brought up in the generation where one had to been seen to do the “right thing”. Accordingly I did not contemplate seeking to challenge the paternity of (R). I thought the “right” thing was to accept what (Z) was telling me and to sign the Birth Certificate and pay child support.
It is apparent that it was only over time that F formed the view that he might not be R’s father. He seems to have first acted upon that view (or, at least, his concern that he may not be R’s father) in September 2004.
Given that neither party was cross examined in the proceedings before me, and given that Z did not directly challenge F’s explanation of the delay in her affidavit material, I have no reason to reject F’s explanation for it. I accept, therefore, that he was emotionally vulnerable at the time of R’s birth and that he felt obliged to accept Z’s assurance that he was R’s father, to sign the Birth Registration Statement and, ultimately, to pay child support.
Even if I am wrong in concluding that the delay has been adequately explained, I am of the view that other factors relevant to the determination of F’s application for an extension of time cumulatively outweigh any failure on his part to provide such an explanation. Relevantly, and for reasons upon which I shall expand later in this judgment, I am of the view that an extension of time is necessary — in the broadest sense — to enable the Court to do justice between the parties. Put another way, I am of the view that a refusal to extend time has the clear potential to cause a serious injustice to F (and, conceivably, to R). At the same time, I cannot see how an extension of time could possibly cause any form of injustice (let alone a serious injustice) to Z.
Extending Time — Substantial Issue
In my opinion, a substantial issue is indeed to be raised at the hearing of the primary application. The hearing will involve a determination of no less an issue than the question of whether (for all relevant purposes under the CSAA) F is R’s father. The implications arising from the answer to that question are both extremely significant and wide ranging.
Suffice it to say — at this stage — that F clearly concedes that he could be R’s father. Indeed, it would not be inappropriate to record that there is a likelihood (perhaps a strong likelihood) that he is R’s father. But it is also possible that he is not.
Extending Time — Hardship or Injustice to the Respondent
Dr Alexander did not argue that any hardship or injustice would be caused to Z if an extension of time were to be granted — let alone any hardship or injustice which could not be compensated by a costs order or in some other way. Indeed, it is difficult to imagine what hardship or injustice could conceivably result from granting the relevant extension of time. The only ground relied upon by F in support of his application for the s.107 declaration is his assertion that he is not or may not be R’s father, and hence that Z has never been entitled to an administrative assessment of child support for R payable by F. In practical terms, the success or failure of that application stands or falls on the results of the parentage testing now sought by F. If F is R’s biological father, then he has said that he will meet his child support obligations. If he is not R’s biological father, then F has no legal obligation to pay child support for R.
I cannot speculate as to whether F might be minded to seek to recover child support paid to Z in the event of the evidence eventually supporting a conclusion to the effect that R is not his biological child. The fact of the matter is, however, that any application that F might be minded to make in that regard would ultimately be dealt with on its merits and according to law. In dealing with such an application (should it ever be made), the Court has ample power to ensure that the orders that it considers appropriate are neither unjust nor likely to cause undue hardship to Z.[11]
[11] See, for example, DRP & AJL (2004) FLC 98-022.
I note, as well, that Z asserts that she has “no doubt” that F is R’s father. If that is so, then it is difficult to see why she should not be willing to involve herself and R in the parentage testing procedure (which, these days, is neither painful nor unduly invasive). The only reason provided by Z for her refusal to undergo parentage testing appears in paragraph 17 of her affidavit and is as follows:
I am without doubt that (F) is the father of my child. I therefore do not wish to subject my son and myself to the paternity test and associated embarrassment.
Given R’s age, I fail to understand how the parentage testing procedure could have any adverse affect upon R whatsoever. Similarly, it is difficult to understand why Z might consider such a procedure to be embarrassing for her. Still, some possibilities exist.
Z might find it embarrassing or distasteful that F is suggesting, in essence, that she had or might have had a sexual relationship with another man at the same time as she was involved in a sexual relationship with F. She might consider that such an assertion or suggestion on F’s part is an insult to her and (perhaps) is suggestive of some degree of deceit, immorality or promiscuity on her part. If that is how Z feels, then the carrying out of a parentage testing procedure is unlikely to have any discernable impact on such feelings one way or the other. If the parentage testing is not carried out, then F will continue to suspect that R is not his child (and that Z may have had a sexual relationship with another man at the same time as she was having a sexual relationship with him) and Z’s “embarrassment” will continue. If the parentage testing is carried out, and if F is found to be R’s father, then F’s doubts as to Z’s faithfulness (as it were) might remain, but it would be clear beyond argument that F is indeed R’s father, and that Z has not attempted to attribute paternity of her child to the wrong person. Finally, if the parentage testing is carried out and it reveals that F is not R’s father, then Z might well be embarrassed, but at least the potential for a significant (and ongoing) injustice will have been averted.
In any event, Z provided no particulars of the manner in which her (and R’s) involvement in a parentage testing procedure could be regarded as an embarrassment.
Extending Time — Conclusion
The Court has a broad discretion as to whether or not to extend time. Given that the fundamental issue is whether an extension of time will enable the Court to do justice between the parties, I am satisfied that an extension should indeed be granted.
Quite apart from the well recognised principles summarised in paragraph 32 above, I note that s.107 of the CSAA does not — itself — fix the time limit within which an application for a declaration must be made. Section 107(2) is as follows:
The application must be made within the time prescribed by the applicable Rules of Court or within such further time as is allowed under the applicable Rules of Court.
It is apparent from s.107(2) that the possibility of a grant of an extension of time is specifically recognised in the legislation.
The 28 day time limit applicable to F’s application is prescribed in Rule 25A.04 of this Court’s rules. The placement of the time limit within Rules of Court and the clear recognition of the possibility of a grant of an extension of time contained within s.107(2) serve to reinforce the need for flexibility when dealing with such matters. Courts must retain such a flexible approach when endeavouring to do justice between parties — and particularly so in an application such as that initiated by F. I also note the following:
(a)Rule 1.06 of the Federal Magistrate Court Rules (2001) is as follows:
Court May Dispense with Rules
(1)The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
(2)If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
(b) Rule 3.05 of the Rules is as follows:
Extension or Shortening of Time Fixed
(1)The Court may extend or shorten a time fixed by these Rules or by a judgment, decree or order ...
(3)The time fixed may be extended even if the time fixed has passed ...
The two Rules referred to above not only empower the Court to extend time limits when it is appropriate to do so, but also effectively “normalise” such extensions (as it were). The fundamental issue remains whether an extension of time will enable the Court to do justice between the parties. The other factors referred to in the passage from OP & HM referred to in paragraph 32 above must always remain subordinate to that consideration.
Parentage Testing — F’s submissions
The primary elements of F’s case are these:
a)Although he had a sexual relationship with Z for approximately six months (covering the period during which R was conceived), they were never married, they did not reside together and they only saw each other one or two days per week.
b)Z is untruthful, and is capable of misleading him. For example:
i)Z told him that she could not have children.
ii)Z told him that she had never been married (but later told him that she had been married twice before).
iii)Z told him that she had $500,000.00 to invest in property (but told him a few months later that she had no money).
c)During their relationship, Z had a boarder living in her home. It is possible that Z had a sexual relationship with the boarder at the same time as she was having a sexual relationship with F.
d)Z’s attitude and behaviour at and shortly after the time of R’s birth raise questions as to her stability and psychiatric/psychological health.
e)Z may have been motivated to say that F is the father of her child in order to maintain a link between Z and F’s daughter, who sponsored Z’s parents to live in Australia after they had travelled from China.
f)F’s daughter considers that R has no physical resemblance to F.
g)Z’s ongoing refusal to involve herself and R in parentage testing heightens F’s suspicions that he is not R’s father.[12]
[12] See Annexure RF2 to F’s Affidavit.
Parentage Testing — Z’s Submissions
Z’s case can be summarised as follows:
a)She denies that she had any other sexual partners during her relationship with F.
b)Z denies that she had a sexual relationship with her boarder. In any event, the boarder is 68 years old and only lived in Z’s home between February and April 2001. The boarder himself denies that he has ever had sexual relations with Z.
c)Z denies that she and F ever discussed her ability to have a child, and denies that they discussed methods of contraception. She also denies that F told her that he did not want to have a child with her.
d)Whilst Z admits that the Department of Human Services became involved after R’s birth, she seems to suggest that she was not suffering from any psychological/psychiatric problems at that time.
e)Z denies being untruthful to F, and denies telling him that she had never been married or that she had been married twice. She asserts that she told F that she had been married once only (when she was 26 years old), for a period of five years.
f)She denies that she told F that she had $500,000.00 to invest in property, and denies that she told him a few months later that she had no money.
g)F signed the Victorian Birth Registration Statement for R, thereby acknowledging that he is R’s father.
h)Section 69R of the Family Law Act 1975 creates a presumption of parentage arising from registration of birth.
i)F has married (or remarried) since his relationship with Z ended, and “ ... because F is now committed to a third wife he is trying to avoid child support payments on his son’s behalf.”[13]
j)Although F’s daughter is sponsoring Z’s parents, the arrangement is not as F described it. When R was seven weeks old, F advised Z that “ ... R looked so much like F’s younger twin brothers as children.”[14]
k)Because Z is “without doubt” that F is R’s father, she does not wish “to subject (R) and (herself) to the paternity test and associated embarrassment”.
[13] See paragraph 11 of Z’s Affidavit.
[14] See paragraph 15 of Z’s Affidavit.
Discussion
The starting point in determining whether an order for parentage testing should be made in these proceedings is to place the application now before the Court in its proper context. The substantive final order sought by F is a declaration pursuant to s.107 of the CSAA that Z was not entitled to administrative assessment of child support for R payable by F. Pursuant to s.107(4)(c), the Court may grant such a declaration if it is satisfied that F is not a parent of R.
It follows from the above, and from the material filed on behalf of the parties, that R’s parentage is a question in issue in the substantive proceedings. Indeed, it is the question in the substantive proceedings.
Section 69W of the Family Law Act 1975 is as follows:
69W(1) [Court may order parentage testing procedure] 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.
69W(2) [Circumstances in which parentage testing orders may be made] 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.
69W(3) [Who may be objects of parentage testing orders] 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.
Section 69V of the Family Law Act 1975 is as follows:
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.
In TNL & CYT, the Full Court said:[15]
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. To satisfy this threshold question, the authorities suggest that the applicant must overcome two hurdles. First, parentage must be relevant to the nature of the proceedings ...
The second component of the threshold question is that there must be evidence which places the parentage of a child in doubt ...
[15] See paragraphs 29 to 34.
In relation to the first of the two “hurdles”, it is clear that jurisdiction to make an order for parentage testing under s.69W is established where the only pending application before the Court is an application brought pursuant to the provisions of the CSAA.[16] As indicated above, I am of the view that parentage is clearly (and obviously) an issue in an application — such as F’s substantive application in the present case — based upon s.107(4)(c) of the CSAA.
[16] See Duroux & Martin (1993) FLC 92-432 and TNL & CYT (2005) FamCA 77.
In relation to the second component of the threshold question (namely, that there must be evidence which places the parentage of a child in doubt), the Full Court in Duroux & Martin (1993) FLC 92-432 approved the following formulation (by Butler J in F & R (1992) FLC 92-300) as “a correct approach”:
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.
The above formulation has since been approved by the Full Court in OP & HM and TNL & CYT.
The Court must consider, therefore, whether F has “an honest, bona fide and reasonable belief as to the doubt” that he is R’s father.
Honest, Bona Fide and Reasonable Belief
The basis of F’s doubts regarding his paternity of R is summarised in paragraph 52 above. Whilst it is true that Z places in issue all or almost all of the matters raised by F, the fact of the matter is that her Counsel (Dr Alexander) did not seek to cross examine F. It follows that his evidence remains untested.
Dr Alexander argued that F’s expressed doubts as to his paternity of R were not honest and bona fide. She did so by suggesting that, in seeking an order for parentage testing, F was endeavouring to avoid or “get out of” his obligation to pay child support to Z for R. That is a submission which I can barely understand, and which I cannot accept. If F is not R’s father, then he is entitled to the appropriate declaration under s.107 of the CSAA. If he is R’s father, then the parentage testing will demonstrate that fact and his application for the declaration will be unsuccessful. F’s statements that he has paid the assessed amount of child support for R in the past, and that he will continue to do so in the future if he is found to be R’s father, were not seriously disputed. To suggest that F has sought an order for parentage testing in order to avoid having to pay child support for his own child defies logic. The reality is that he seeks the order for parentage testing in order to avoid having to pay child support for a child of whom he is not the father.
In my opinion, and having regard to the matters described in paragraph 52 above (to which I shall refer as “F’s core factors”), there is no reason why I should not accept that F’s doubts are both honest and bona fide. When read cumulatively, the circumstances are capable of giving rise to a belief on F’s behalf that there is doubt as to his parentage of R. Obviously, F’s core factors could not, of themselves, persuade the Court that R is not F’s child (even if they were not contradicted by Z). But that is not the test that should be applied at this stage of the proceedings. As envisaged in s.69W of the Family Law Act, F seeks a parentage testing order on an interim or preliminary basis for the purpose of obtaining information to assist in determining the parentage of the child (emphasis added). The results of the parentage testing are, in effect, to be added to F’s core factors, and thereafter presented to the Court in support of F’s substantive application for a declaration pursuant to s.107 of the CSAA. The reality, however, is that the results of the parentage testing procedure will ultimately overshadow and affectively supplant both F’s core factors and the factors relied upon by Z in paragraph 53 above.
Put another way, on what basis can the Court objectively assess the circumstances giving rise to F’s belief that he might not be R’s father and then conclude that F’s honestly held belief is so unreasonable as to not amount to an appropriate doubt? After all, and unlike a number of cases dealing with the issue of parentage testing, F and Z were never married, and they never lived together. They were apart for approximately five nights of each week during their six month relationship. From F’s point of view, Z can fairly be regarded as something other than open and honest. F’s daughter has suggested that R does not resemble him, and Z had a boarder living in her house at or around the time that she fell pregnant with R. Although Z asserts that the boarder was 68 years old at the time that he lived in her home, F was himself 57 years old when R was born.
Z has disclosed almost nothing of her background in her affidavit material, and she has refused to undergo parentage testing. Given the state of the evidence before me, and the manner in which the case was run, it would be harsh indeed for the Court to conclude that F’s belief as to the doubt which he expresses is not honest, bona fide and reasonable. To hold otherwise would be to condemn F to many years (if not a lifetime) of frustration, uncertainty and ongoing resentment.
Although it is not strictly necessary for me to analyse the matters raised by Z in answer to F’s core factors (which matters are set out in paragraph 53 above), it is appropriate that I comment on three of them:
a)F’s assertion that Z told him that she could not have children appears — on a prima facie basis – to be more plausible than Z’s assertions that she and F never discussed her ability to have a child, and never discussed methods of contraception. Given the nature of the relationship between F and Z (as described by each of them), it seems most unlikely that the possibility and consequences of Z becoming pregnant as a result of having unprotected sex with F would not have been raised in some form.
b)Z’s suggestion that she was not suffering from any psychological/psychiatric problems at the time of (or shortly after) R’s birth is clearly in conflict with the Department of Human Services’ Case Summary (comprising Exhibit A2).
c)I have already commented on the unsatisfactory nature of the only actual reason provided by Z for her refusal to undergo parentage testing.[17]
[17] See paragraphs 43 – 46 above.
When the observations recorded in the preceding paragraph are added to the matters discussed in paragraphs 63 to 67 above, it seems to me that the conclusion that I have reached (to the effect that it would be harsh indeed for the Court to conclude that F’s belief as to the doubt which he expresses is not honest, bone fide and reasonable) is even more likely to be correct.
Effect of Presumption
Dr Alexander argued that Z sought to rely upon the provisions of s.69R of the Family Law Act 1975 — which creates a presumption of parentage arising from registration of birth. Section 69R is as follows:
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 … a State …, the person is presumed to be a parent of the child.
Section 69U(1) provides that a presumption arising under s.69R is rebuttable by proof on a balance of probabilities.
It is not in dispute that F’s name is entered as R’s father in R’s Birth Certificate. Nor is it in dispute that the Birth Certificate reflects particulars recorded in the Registry of Births, Deaths and Marriages for the State of Victoria. Further, it is not in dispute that F signed the Birth Registration Statement as required by the Victorian Births, Deaths and Marriages Act 1996.
It follows from the above that R’s Birth Certificate creates a (rebuttable) presumption that F is his father.
In Mr A & Ms B & Ms S (2005) FamCA 655, Brown J said:
Presumptions of law are arbitrary in so much as they apply to a basic fact situation without regard to the individual case before the Court. The presumption created by s.69R is rebuttable; the conclusion as to the existence of the presumed fact (in this case, that the person whose name is entered in the register is the parent of the child) must be drawn in the absence of evidence to the contrary. This “rule of presumption” does little more than reflect the probative value of the basic fact. The evidence needed to rebut a rebuttable presumption of law can vary from presumption to presumption.
In TNL & CYT (2005) FamCA 77, the Full Court considered the effect of rebuttable presumptions of parentage - in the context of an argument on the part of a putative father to the effect that parentage ought not to be determined by presumptions, but by the best available evidence allowed by modern science. In passages which might be considered obiter[18], the Full Court cited (with a clear approval) extracts from a number of decisions dealing with presumptions of parentage.
[18] The Full Court held that the trial judge had failed to consider the provisions of s.69W of the Family Law Act 1975 and that, in any event, his Honour lacked jurisdiction to make orders for parentage testing because the parentage of the child was not “a question in issue” in the proceedings.
The earliest of those decisions is S & McC; W & W (1972) AC 24 — which has been described as “the leading case” in relation to parentage testing.[19]
[19] See, for example, Re H & A (Children) (2002) EWCA Civ 383 and Re F (a Minor) (1993) 3 All ER 596.
In Re F (a Minor) (1993) All ER 596, Balcombe LJ held that the following principles can be derived from S & McC:
(1)The presumption of legitimacy merely determines the onus of proof …
(2)Public policy no longer requires that special protection should be given by the law to the status of legitimacy …
(3)The interests of justice will normally require that available evidence be not suppressed and that the truth be ascertained whenever possible … In many cases, the interests of the child are also best served if the truth is ascertained …
(4)However, the interests of justice may conflict with the interests of the child. In general, the Court ought to permit a blood test of a young child to be taken unless satisfied that that would be against the child’s interests; it does not need first to be satisfied that the outcome of the test will be for the benefit of the child …
(5)… it is not really protecting the child to ban a blood test on some vague and shadowy conjecture that it may turn out to be to its disadvantage; it may equally well turn out to be for its advantage or at least to do it no harm …
The Full Court in TNL & CYT also referred to the recent decision of the English Court of Appeal in Re H & A (Children) (2002) EWCA Civ 383. In that case, Thorpe LJ, with whom the other members of the Court of Appeal agreed, described one of the parties as being “on an uncompleted journey of discovery of the truth”. His Honour also commented that “unpalatable truth can be easier to live with than uncertainty”.
After referring to a passage from S & McC, Thorpe LJ said that the principles to be derived from the English cases are these:
a)The interests of justice are best served by the ascertainment of the truth.
b)The Court should be furnished with the best available science, and not be confined to such unsatisfactory alternatives as presumptions and inferences.
In TNL & CYT, the Full Court referred to Thorpe LJ’s judgment in Re H & A (Children) as follows:
In the principal judgment delivered by Thorpe LJ, His Honour said … that his statements apply “with even greater logic in a later era”. His Honour stressed that there had been significant scientific advances such that blood is no longer required for paternity tests and that the legal concept of “legitimacy” has been abandoned. In relation to the trial judge’s reliance on the presumption of legitimacy of children born during the currency of the marriage, Thorpe LJ said.....
Twenty years on I question the relevance of the presumption or the justification of its application. In the 19th century, when science had nothing to offer and illegitimacy was a social stigma as well as a depriver of rights, the presumption was a necessary tool, the use of which required no justification. That Common Law presumption, only rebuttable by proof beyond reasonable doubt, was modified by s.26 of the Family Law Reform Act (1969) by enabling the presumption to be rebutted on the balance of probabilities. But as science has hastened on and as more and more children are born out of marriage, it seems to me that the paternity of any child is to be established by science and not by a legal presumption or inference. (emphasis added)
In TNL & CYT, the Full Court also said (in relation to Re H & A (Children):
… It appears the Court applied the principle formulated by Lord Hodson in S & McC that “There must be few cases where the interests of children can be shown to be best served by the suppression of truth”.
S & McC was cited with approval in a number of first instance decisions in the Family Court of Australia prior to the decision of the Full Court in G & H (1993) FLC 92-380. For example, in J & P (1985) 10 FamLR 490, Treyvand J referred (with approval) to the following passage from Lord Reid’s speech in S & McC[20]
The presumption of legitimacy now merely determines the onus of proof. Once evidence has been led, it must be weighed without using the presumption as a make-weight in the scale for legitimacy. So even weak evidence against legitimacy must prevail if there is no other evidence to counter balance it. The presumption will only come in at that stage in the very rare case of the evidence being so evenly balanced that the Court is unable to reach a decision on it. I cannot recollect ever having seen or heard of a case of any kind where the Court could not reach a decision on the evidence before it.
See also McArthur (1982) 10 FamLR 962.
[20] At 41.
The decision in S & McC was also approved by the Full Court in G v H (1993) FLC 92-380. In a passage cited by the Full Court in TNL & CYT, Fogarty J said (at page 79,942):
Paternity is now a medical and not a legal issue. Society is entitled, through the legislative and the Courts to inexpensive, prompt and virtually certain procedure to decide this question. Paternity is no mere inter partes issue. The child and society have a vested interest in the correct outcome. The reasons for that are many, including hereditary, the sense of identity and the private and public obligation of financial support … so emphasised by the legislature over the past decade.
An appeal from the Full Court’s decision in G & H was dismissed by the High Court in G & H (1994) FLC 92-504. In that case Brennan and McHugh JJ said (at page 81,244):
We do not suggest that paternity is not a serious issue. It is serious because paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations. The attribution of paternity may be seen by a child’s mother to be no more than the means of procuring a maintenance order during the child’s infancy, but a finding that a particular man is the child’s father might well be of the greatest significance to the child in establishing his or her lifetime identity. But, when a Court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response.
In the same case, Deane, Dawson and Gaudron JJ said (at page 81,248):
… There are several presumptions in division 7 of part VII (which division includes s.69R) which are “rebuttable by proof on a balance on probabilities”. Those presumptions proceed on a basis which is diametrically opposed to the notion that, in maintenance proceedings, the biological fact of parentage involves an important or grave allegation to which few regard must be had before a finding is made in that regard. Rather, the presumptions operate in the interests of the child and provide the basis for the imposition of parental duties and responsibilities unless and until proof to the contrary is forthcoming.
In my opinion, it is clear from the decisions of the High Court and the Full Court in G & H (as it is clear from the English decisions to which I have made reference) that a presumption such as that recorded in s.69R is of little assistance to the Court where a party leads evidence — even relatively weak evidence — to rebut the presumption. Once a Court is persuaded that an applicant for a parentage testing order has an honest and bone fide doubt regarding the parentage of the subject child, and provided that the applicant’s thought processes leading to the formation of the doubt are not so disordered or affected by malice or other extraneous considerations as to lead the Court to conclude that the doubt is obviously and objectively unreasonable, then an order for parentage testing should be granted.
Presumptions such as that contained in s.69R of the Family Law Act do no more than establish what might be described as the “default” position (to use computer terminology). Whilst s.66U provides that such presumptions are rebuttable by proof on a balance of probabilities, the High Court in G & H made it clear that the evidence required to rebut such a presumption is not the same as that which might be required to prove “a grave or serious allegation in the Briginshaw & Briginshaw sense”[21]. It was held in Briginshaw, of course, that, in civil cases, the standard of proof is on the balance of probabilities, but with due regard being had to the nature of the issue involved - so that the … seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal”[22].
[21] See G & H (1994) FLC 92-504 at 81,248, referring to the well known dicta in Briginshaw & Briginshaw (1938) 60 CLR 336 at 362.
[22] Briginshaw & Briginshaw (1938) 60 CLR 336 at 362-3
The High Court also said in G & H[23]:
the presumptions operate in the interests of the child and provide the basis for the imposition of parental duties and responsibilities unless and until proof to the contrary is forthcoming.
[23] At 81, 248.
In my opinion, the most cursory analysis of a presumption such as that contained in s.69R necessarily confirms that the approach to the application of such a presumption must be in accordance with the principles described in the preceding paragraphs of these Reasons. The fact that a putative father has signed a document, the effect of which is to cause him to be registered as a child’s father on that child’s Birth Certificate, is a matter of little weight when and if the child’s parentage is genuinely placed in issue. There are now and have been in the past a number of cases before the Courts involving applications for repayment of child support or maintenance by men who believed that they were the biological fathers of children in or formerly part of their household — whether such children were born in or out of wedlock. It is notorious in this jurisdiction that the ready availability of DNA testing has allowed such men to obtain scientific verification of doubts or concerns that they may have had regarding the parentage of their children. Sometimes those doubts or concerns have been in existence for a very long time. Absent DNA testing at a very early stage, therefore, a person to whom the paternity of a child is attributed may not always know whether he is in fact the biological father of the child at the time that the registration of the birth takes place. In many cases, and particularly when the sexual relationship between the parties was short lived or not mutually exclusive, or when it began immediately after or ended immediately before the mother’s involvement in another relationship, the putative father cannot possibly know whether he is indeed the child’s biological father. In the vast majority of cases, the putative father accepts that the child is his — but he clearly does so on the basis of belief, and perhaps trust. Unfortunately, the results of certain litigation in this and other courts have demonstrated that such trust can occasionally be misplaced.
In the particular circumstances of the present case, the reality is that F could not possibly have known whether he was indeed R’s father at the time that he signed the birth notification form. He assumed that he was, and he may well have trusted Z and believed her when she said that she was pregnant to him. He no longer trusts her, and he is no longer prepared to believe all that she says. Whilst there is a strong possibility that he is R’s father, the issue can be determined conclusively if parentage testing is ordered.[24]
[24] See G v H (1994) FLC 92-504 at 81,248.
Two Earlier Decisions in the Federal Magistrates Court
It follows from the above that, with the greatest of respect to their Honours, I am not persuaded that the approaches described by Bryant CFM (as her Honour the Chief Justice then was) in M & M (2002) FMCAfam 274 and Jarrett FM in A & P (2004) FMCAfam 303 are the correct ones, the approaches in those cases were as follows:
In considering whether to make a parentage testing order under s.69W … there must be some real issue as to paternity; evidence which places the paternity of a child in doubt, before a Court can embark upon the process of subjecting a child to the procedures for parentage testing (M & M).
… Before an order for parentage testing can be made, there must be some evidence from which it objectively appears that parentage is in dispute between the parties. That is, I think, simply another way of stating the tests set out in the Act namely that there must be a “genuine dispute” between the parties as to parentage. If I am satisfied that such a genuine dispute exists,
I might (but not must) make the orders sought (A & P).
In my opinion, neither approach is fully consistent with the approach approved by the Full Court in Duroux & Martin the dicta in the Full Court and High Court decisions in G v H (G v H (1993) FLC 92-380 and G v H (1994) FLC 92-504), and the sentiments endorsed by the Full Court in TNL & CYT (including the Full Court’s reference to Re H & A (Children). The tests in M & M and A & P set the bar too high (as it were) and fail to give adequate weight to principles such as those summarised by the English Court of Appeal in Re H & A (Children).[25]
[25] See paragraphs 78 to 82 above
The approach adopted by Butler J in F & R (as approved in Duroux v Martin and subsequent cases) has much to commend it. In that case, as in this, the applicant held an honest and (he says) reasonable belief that he may not be the child’s father, and requested orders for parentage testing. In the meantime, he was meeting his responsibilities in relation to child support and was prepared to meet all costs associated with parentage testing.[26]
[26] See F & R at page 79, 271.
Welfare or Best Interests of Child
After articulating the test described in paragraph 60 above, (being that an applicant must have “an honest, bona fide and reasonable belief as to the doubt (associated with the parentage)”, Butler in F & R concluded as follows:
The principle to be applied is that the welfare of the child is paramount. In the long and the short term, a child has a distinct and important interest in knowing its paternity. Reasons include inheritance and maintenance rights but more importantly there is the human reason of identity. Modern thinking is firmly of the view that a child should know of its parentage and that everything should be done to make the knowledge available to a child. Without this knowledge, the child’s personal sense of identity is in doubt and never resolved, leaving confusion or doubt as a lasting heritage.[27]
[27] See page 79,275.
In Duroux & Martin, the Full Court, whilst approving most of Butler J’s comments, found that his Honour was in error in holding that “the principle to be applied is that the welfare of the child is paramount”. The Full Court said:[28]
“In relation to this statement, it should be noted that s.64(1)(a) of the Family Law Act provides that the welfare of a child is the paramount consideration only in cases involving custody, guardianship, welfare or access. It is clearly not paramount in proceedings for child maintenance such as were before Butler J …. However, as was said in Chandra and Chandra (unreported)…
In all proceedings, especially in the Family Court, the welfare of a child, if relevant, is a factor, but except as provided in s.64 not a paramount factor.
There will, of course, be cases where parentage testing is ordered as a necessary adjunct in proceedings relating to custody or access. In such cases, the provisions of s.64(1)(a) will clearly apply.
[28] At p. 80,407
Since 1995, s.65E has replaced the former provisions of s.64(1)(a). Section 65E is as follows:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Clearly, and notwithstanding the demise of terms such as custody, guardianship and access, the Full Court’s comment in Duroux & Martin holds true. If the parentage testing sought pursuant to s.69W is a question in issue in proceedings for a particular species of parenting order, then the best interests of the child will be the paramount consideration. Where the substantive proceedings relate to an application for child maintenance or child support orders only, however, it is clear that the welfare or best interests of the child comprise a relevant (and, in my opinion, an extremely important) factor. But they do not comprise the paramount factor.
Given the principal or primary application before the Court in the present matter (being F’s application for a declaration pursuant to s.107 of the CSAA), and bearing in mind considerations such as those referred to by Butler J in the passage quoted at paragraph 94 above, it is difficult to identify any factors which might be regarded as having more weight than R’s best interests in the broadest sense. At the end of the day, the only reason proffered by Z in support of her opposition to the making of an order for parentage testing is the fact that she does not wish to subject R and herself to the paternity test “and associated embarrassment”. I have already found that such a reason should be given little weight.
Discretion
There can be no doubt that the discretion conferred upon the Court by s.69W is unfettered.[29] In Duroux & Martin, the Full Court held that it was inappropriate to endeavour to “afford further guidance” as to the circumstances in which an order for parentage testing should be made.[30] Having so held, their Honours then cited with approval the following passage from the decision of the Full Court of the Supreme Court of Victoria in Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd (1992) 2 VR 505:
No judicial discretion is absolute in the ordinary sense, because it must be exercised judicially, but that is the only limitation which I would admit upon a discretion given by the legislature to a superior court in perfectly general terms, except in the rare cases where previously declared principles of the Common Law or ordinary principles of statutory interpretation must result in a reading down.
[29] See F & R (1992) FLC 92-300, Duroux & Martin (1993) FLC 92-432.
[30] Page 80,409.
In my opinion, the passage quoted above clearly applies to an exercise of discretion pursuant to s.69W. It matters not that the Federal Magistrates Court is a court of record and not a superior court. The principles that apply in this court are and must necessarily be identical with those that would apply if the application had been brought in the Family Court of Australia.
I am of the view that it is appropriate to exercise my discretion in favour of granting the order for parentage testing sought by F. I am of that view because of the reasons that I have expressed above, and because I have taken into account the following:
a)F’s core factors;
b)my finding that the parentage of R is a question in issue in the substantive proceedings now before the Court;
c)my view that there is evidence which places the parentage of R in doubt in F’s mind;
d)my view that F’s doubt is honest, bona fide and not obviously unreasonable;
e)the unreality and inappropriateness of parentage, in a case such as this, being determined by the application of the rebuttable presumption contained in s.69R;
f)the concept that paternity is now a medical and not a legal issue stricto sensu;
g)my recognition of the fact that paternity is no mere inter partes issue, and that children and society have a vested interest in the correct outcome;
h)my acceptance of the principles that —
i)the interests of justice are best served by the ascertainment of the truth; and
ii)the Court should be furnished with the best available science, and not be confined to such unsatisfactory alternatives as presumptions and inferences;
i)the absence of evidence that parentage testing is either inconvenient or (for example) morally or religiously repugnant from Z’s point of view;
j)the fact that the only real reason proffered by Z for opposing the making of a parentage testing order is the assertion that such testing would — in some wholly unidentified way — be “embarrassing”; and
k)the fact that the potential injustice to F of refusing to make the parentage testing order substantially outweighs any potential injustice to Z (and R) of making it (and I note that Z presented no evidence whatsoever as to the manner in which the making of a parentage testing order might amount to an injustice from her point of view).
Orders
There will be the following orders:
(1)All relevant time limits be extended in such manner as to enable, authorise and permit the applicant to bring his applications for:
a)a declaration pursuant to section 107 of the Child Support (Assessment) Act 1989; and
b)parentage testing pursuant to section 69W of the Family Law Act 1975.
(2)Pursuant to section 69W of the Family Law Act 1975, the parties sign all such documents and do all acts and things necessary to:
a)undergo an approved parentage testing procedure (“the Procedure”) to ascertain whether the applicant is the natural father of the child; and
b)cause, permit and encourage the said child to fully and effectively participate in and otherwise and undergo the Procedure.
(3)Pursuant to section 69X of the Family Law Act 1975, the parties and the said child within 21 days of the date of this order do attend upon a registered medical practitioner of pathologist to enable a bodily sample to be taken from them for the Procedure to be carried out by such accredited laboratory as may be agreed upon between the parties.
(4)The cost of the Procedure be paid by the applicant.
(5)The matter be otherwise adjourned to 11 October 2005 at 9.45am.
I, Barbara Mendleson, certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Walters FM
Deputy Associate: B Mendleson
Date: 11 August 2005
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