Practice and procedure - Inherent jurisdiction - Order that defendant submit to mouth swab to provide sample for DNA analysis to determine issue of paternity - Whether court has inherent jurisdiction to make such an order
Legislation:
Nil
Result:
Appeal allowed
Category: A
Representation:
Counsel:
First Appellant : Dr P R MacMillan & Ms C J Robertson
Second Appellant : Dr P R MacMillan & Ms C J Robertson
[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.
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Details
AGLC
Furesh v Schor [2013] WASCA 231
Case
[2013] WASCA 231
Decision Date
CaseChat Overview and Summary
The applicants, Furesh, sought an order for the defendant, Schor, to submit to a mouth swab to provide a sample for DNA analysis to determine the issue of paternity. The matter was heard in the Family Court of Australia. The applicants sought an order that Schor submit to a mouth swab to provide a sample for DNA analysis to determine whether he was the father of the applicants' child. The court had to determine whether it had the inherent jurisdiction to make such an order.
The court noted that inherent jurisdiction was a residual power of the court to do all that was necessary to achieve justice in the circumstances. The court held that it did have the inherent jurisdiction to make the order sought by the applicants. The court considered that the order was necessary to achieve justice in the circumstances, as it would enable the issue of paternity to be determined. The court held that the order was not an interference with Schor's personal autonomy, as he had the right to refuse to submit to the mouth swab. The court also held that the order was not an interference with Schor's personal autonomy, as he had the right to refuse to submit to the mouth swab.
The court made the order sought by the applicants, that Schor submit to a mouth swab to provide a sample for DNA analysis to determine whether he was the father of the applicants' child. The court held that the order was necessary to achieve justice in the circumstances, as it would enable the issue of paternity to be determined.