JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 – 31 January, 23 February, 4 July 18 – 19 September 2007
DATE OF JUDGMENT:	24 June 2008
CASE MAY BE CITED AS:	Farnell v Penhalluriack (No 2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 214

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APPLICATION FOR DECLARATION OF PATERNITY – whether relationship of biological father and child exists – deceased male and living mother and daughter – onus and standard of proof – mother married and living with husband at time of child’s birth - effect of statutory presumption and prima facie position that husband is the father –displacement by contrary evidence - evidence of sexual contact and opportunity, relationship and physical likeness – deceased male could have been biological father – three DNA tests to the contrary - properly proved and tested DNA evidence virtually conclusive – no reason to doubt reliability of DNA evidence - application for declaration of paternity dismissed - Status of Children Act 1974, ss 5, 8(1) and 10(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Cook and Mr P J Gates	Monahan + Rowell
For the Defendant	Mr G J C Silbert and Ms K R Rees	T J Mulvany & Co

HIS HONOUR:

Patricia Farnell makes application for a declaration of paternity under s 10(1) of the Status of Children Act 1974 (Vic) in respect of her daughter, Cindie Sassons. She alleges the late Malcolm Henry Chipperton is Ms Sassons’ father.

As was held by Brennan and McHugh JJ in G v H,[1] paternity is a serious issue:[2]

It is a serious issue 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.

[1](1994) 181 CLR 387.

[2]Ibid 391 per Brennan and McHugh JJ; see also at 399 per Deane, Dawson and Gaudron JJ.

Section 10(1)(a) allows a declaration of paternity to be issued if a female applicant proves to the satisfaction of the court that a named male is the father of her child, whether or not he is living or dead. The test in s 10(1) is expressed in terms of whether “the relationship” is proved to exist, by which is meant the biological relationship of father and child.

Serious though the issue of paternity is, an application for a declaration of paternity is a civil application, and the standard of proof applicable in such a proceeding is the ordinary civil standard,…

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 (No 2)

Details

AGLC: Farnell v Penhalluriack (No 2) [2008] VSC 214
Case: [2008] VSC 214
Decision Date: 24 June 2008

CaseChat Overview and Summary

In the matter of Farnell v Penhalluriack (No 2), the applicant sought a declaration of paternity in the Family Court of Australia. The applicant, a deceased man, was alleged to be the biological father of a child born to a woman who was married to another man at the time of the child's birth. The child and the woman, now living, also participated in the proceedings. The central dispute was whether the applicant was the biological father of the child and, if not, whether the applicant could be excluded with certainty based on DNA evidence.

The court was required to consider the onus and standard of proof in paternity cases, the effect of statutory presumptions under the Status of Children Act 1974, and the extent to which DNA evidence could exclude paternity. The court had to assess whether the evidence of sexual contact, opportunity, relationship, and physical likeness between the applicant and the child could sufficiently counter the DNA evidence. Furthermore, the court needed to determine whether the statutory presumption that the husband was the father could be rebutted by the evidence presented.

The court found that the statutory presumption under the Status of Children Act 1974 that the husband was the father was not rebutted by the evidence of sexual contact, opportunity, relationship, and physical likeness. The court gave significant weight to the three DNA tests conducted, which were found to be properly proved and tested. The DNA evidence was considered virtually conclusive, and there was no reason to doubt its reliability. As a result, the court dismissed the application for a declaration of paternity. The court held that the DNA evidence effectively excluded the applicant as the biological father of the child.

The final orders of the court dismissed the application for a declaration of paternity, with costs awarded against the applicant.

Orders