Farnell v Penhalluriack - [2006] VSC 240

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7534 of 2004

PATRICIA FARNELL	Plaintiff
v
FRANCIS PENHALLURIACK	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 MARCH 2006
DATE OF JUDGMENT:	23 MARCH 2006
CASE MAY BE CITED AS:	FARNELL v PENHALLURIACK
MEDIUM NEUTRAL CITATION:	[2006] VSC 240

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PATERNITY – Admissions made by plaintiff and child – Whether estoppel against plaintiff because of previously dismissed proceedings – Abuse of process – Application to stay refused –Status of Children Act 1974 s.10 – Family Law Act 1976 (C’th) s.118.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Tatarka	Middletons
For the Defendant	Ms K.R. Rees	T.J. Mulvany & Co

HIS HONOUR:

On 18 April 1979 Patricia Farnell, the plaintiff in this proceeding gave birth to a baby girl. She now seeks a declaration pursuant to s.10 of the Status of Children Act 1974 that Malcolm Henry Chipperton, now deceased, was the father of that child. The proceeding has been brought against his legal personal representative, Francis William Penhalluriack as the executor of his estate.

The proceeding was commenced by originating motion filed on 12 August 2004 by which time Chipperton was already deceased, as was Raymond James Farnell the man to whom Patricia Farnell was married at the time of the child's birth and who appears on the child's birth certificate as her father. That child is now known as Cindie Sassons.

In opposition to the plaintiff's application, the defendant has raised the questions of whether she is estopped from litigating the question of Cindie Sassons' parentage, that matter having been resolved by various proceedings in the Family Court of Australia commencing in 1998.

The defendant maintains that the Family Court effectively determined the issue of paternity either by its decisions or by accepting admissions by Patricia Sassons and her daughter, made in various ways at various times that Chipperton was not the daughter's father.

He submits that not only do admissions made by the plaintiff now result in estoppels against her, but that those made by her daughter also result in an estoppel because of the relationship between them, their “privity of blood.” Whatever the term "privity of blood" may convey in some litigious situations, having regard to the conclusion I have reached as to the substantive issues of estoppel generally, there is no need to be concerned further with it in this case.

On 27 April 1998 Cindie Sassons brought an application for maintenance in the Family Court of Australia at Melbourne against Chipperton, but on 12 August of that year, after a DNA test in July had been reported as having determined that Chipperton was not her father, she signed a minute of a consent order which contained the following statement.

"The applicant Cindie Sassons acknowledged and accepts that the test results of the gene type matching proved that Malcolm Chipperton is not her father."

That minute was acted upon by Frederico, J who dismissed the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farnell v Penhalluriack

Details

AGLC: Farnell v Penhalluriack [2006] VSC 240
Case: [2006] VSC 240
Decision Date: 23 March 2006

CaseChat Overview and Summary

In the case of Farnell v Penhalluriack, the plaintiff sought to establish paternity of a child, with both the plaintiff and the child making admissions regarding the defendant's paternity. The court was tasked with determining whether the plaintiff was estopped from pursuing the claim due to prior proceedings that were dismissed, and whether the defendant's application to stay the proceedings should be granted on the basis of an abuse of process. The matter was heard in the Family Court of Australia.

The primary legal issues were whether the plaintiff's admissions in the previous proceedings constituted an estoppel against them, and whether the current application to stay should be allowed based on an abuse of process. The court considered the provisions of the Status of Children Act 1974 and the Family Law Act 1976 (Cth) in its analysis.

The court found that the plaintiff was not estopped from pursuing the current claim due to the previous proceedings, as the admissions made did not meet the criteria for an estoppel. It was held that the plaintiff's admissions in the prior proceedings were not sufficient to establish an estoppel as the previous proceedings were dismissed on jurisdictional grounds. The court further held that there was no abuse of process warranting a stay, as the current proceedings were not an improper use of the court process. Consequently, the application to stay was dismissed.

The court made an order that the defendant's application to stay the proceedings was dismissed, and the matter was to proceed to determine the issue of paternity.

Orders