| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 7534 of 2004
| PATRICIA FARNELL | Plaintiff |
| V | |
| FRANCIS WILLIAM PENHALLURIACK as the Executor in the Estate of MALCOLM HILARY CHIPPERTON | First Defendant |
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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.
[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,…
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- AGLC
- Farnell v Penhalluriack (No 2) [2008] VSC 214
- Case
- [2008] VSC 214
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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