Farnell v Penhalluriack
[2006] VSC 240
•23 March 2006
| 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 application by consent.
On 16 September 1998 Patricia Farnell brought an application for maintenance for Cindie Sassons against Chipperton and on 16 October 1998, in an interlocutory application, sought another DNA test as she did not believe the result of the first test.
On the same day however Frederico, J dismissed both applications. He gave reasons for doing so in the course of which he said:
"I respect Mrs Farnell's allegation that it may have been possible that the tissue samples used by the parentage testing organisation had been mixed up with other samples. It seems unlikely but it certainly could be a possibility. On the other hand it is not appropriate in my view to order further parentage testing because nothing now depends on it. The application for maintenance in relation to the child that was brought by the child has been dismissed. There is no basis upon which Ms Farnell can now bring a further application on behalf of the child whilst the child's application stands dismissed, therefore it amounts to an abuse of process and it is appropriate that I dismiss Ms Farnell's application for further parentage testing filed this day."
His Honour also dismissed the application for maintenance.
It should be noted that these dismissals occurred without any determination on the merits of either application.
His Honour took the view, as he said, that there was no point proceeding further, not because paternity had not been determined against Mrs Farnell's contention but because the dismissal of the daughter's application meant that another application by Mrs Farnell for the same relief was an abuse of process.
On 20 October 1998 and on 30 November 1998 Cindie Sassons brought another two applications for a DNA test and for "Financial Assistance" against Chipperton. There was no proceeding on foot to which the first could relate. It would therefore have been inutile.
On 2 December 1998 both applications were dismissed by Frederico, J and Cindie Sassons was restrained under s.118 of the Family Law Act 1976 from bringing any further applications without leave, other than an application to set aside the consent order of 12 August 1998. Such dismissal involved no finding as to paternity. On 9 December 1998 Patricia Farnell brought an application for leave to appeal out of time and on 15 January 1999 an application for another DNA test. On the same day a series of consent orders were made by Judicial Registrar Nikakis resulting in what were, in effect, self-executing orders to finalise all proceedings if a further DNA test by the Red Cross was negative as to Chipperton 's paternity.
I have considerable doubt as to the jurisdiction of Judicial Registrar Nikakis to make these orders but nevertheless they were made. They provided for a further DNA test to be undertaken by the Red Cross Blood Unit. If it proved congruent with the earlier test the matters would be brought to an end. The Red Cross test was negative. In July 1999 another application by Ms Farnell was lodged seeking leave to appeal out of time against the orders made by Judicial Registrar Nikakis, despite the fact that they were made by consent. On 30 August 1999 Frederico, J dismissed that application and made further orders under s.118 against both Mrs Farnell and Cindie Sassons.
Despite all of these proceedings, at no time has a judicial determination of Cindie Sassons' parentage been made.
In a careful and well presented argument Ms Rees for the defendant submitted that an estoppel or estoppels had been established against Mrs Farnell such that this matter should now be stayed and not permitted to go to trial. She analysed the nature of an issue estoppel and submitted that the orders of the Family Court necessarily proceeded on the basis of a finding that Chipperton was not Cindie Sassons' father. But this is not so. The DNA tests which seem to have been accepted by Miss Sassons as determining the matter were only evidence of non parentage, not a determination of it. They may be very strong evidence but they do not preclude the court examining other evidence.
In the proceedings which occurred in the Family Court the course of those proceedings meant that Frederico, J made the orders he did because of the procedural irregularities which had earlier occurred. Furthermore Ms Sassons had allowed her proceeding to be dismissed by consent.
The jurisdiction of this court under the Status of Children Act is a remnant of the common law parens patriae jurisdiction, once exercised by the Court of Chancery. Whilst most of that jurisdiction has now been assumed by the Family Court, those parts that remain must be exercised by this Court in much the same way as the Family Court would in similar circumstances.
The essence of the type of estoppel relied upon by Ms Rees is that created by a solemn finding by a court of a precise fact put in issue against a party: Jackson v Goldsmith[1]. In a helpful judgment cited by Mr Tatarka for the plaintiff, the Full Court of the Family Court, (Simpson, Fogarty and Purvis, JJ) in The Marriage of GH & ML Schorel[2], considered the question of issue estoppel with respect to family proceedings. The case concerned the welfare of children. Their Honours warned against a too rigid approach to estoppel in this area, although they recognised that as they were concerned in that case with the children's welfare, special considerations applied. Their Honours said:
"The cases appear to us to establish that whatever might be the scope of issue estoppel in ordinary civil litigation it has a much more limited application in matrimonial causes and more especially in litigation which involves the welfare of children. That approach is based upon the view that the duty of courts in family law has a wider and more public element and imposes a greater responsibility to elicit the actual facts but more particularly it is based on the obligation of such courts to have regard to the welfare and protection of children within its jurisdiction."[3]
[1](1950) 81 CLR 460, per Williams J
[2](1990) 14 Fam LR 105
[3](1990) Fam LR 105 at 111.
Their Honours referred to a number of English cases and cited a passage from Karlzise Zdiftan v Rainer & Keilor Ltd (No.2)[4]:
"All estoppels are not odious but must be applied so as to work justice and not injustice and I think the principle of issue estoppel must be applied in the circumstances in a subsequent case with this overriding consideration in mind."
[4](1967) 1 AC 853 at 947.
In the circumstances of this case it is not appropriate that it be prematurely terminated because of the prior Family Court proceedings. No estoppels arose from them which affect the plaintiff here. She should be allowed to proceed to trial. In reaching this conclusion I should make it clear that no inference should be drawn as to the strength or otherwise of the plaintiff's case. Ms Rees cogently pointed out a large number of matters which will create difficulties, perhaps insuperable difficulties, for the plaintiff at that trial, not the least of which will be two negative DNA tests and the evidentiary presumptions which she will have to overcome if she is to succeed. In the circumstances, this application to stay the proceeding at this stage will be dismissed.
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