Family Law—Maintenance of child—Paternity—Power of court to order parentage testing procedure to be carried out—Inferences appearing just to be drawn from contravention of order—Standard of proof of paternity—Range of permissible inferences—Family Law Act 1975 (Cth), s. 66w.
Orders
Appeal dismissed with costs.
Decisions
BRENNAN AND McHUGH JJ The facts of this case and the statutory provisions which are relevant to its determination are set out in the reasons for judgment of the majority. Although we are in agreement with the conclusion at which their Honours arrive and with much of what is contained in those reasons, there are two steps in the reasoning which we are respectfully unable to adopt.
2. The first is the statistical calculation of the likelihood of concurrent failure of the methods of contraception adopted by H when having sexual intercourse with her clients. There was no evidence as to the statistical failure of any of these methods and the postulating of possible rates of concurrent failure of these methods is not, in our respectful view, an appropriate consideration in determining whether, on the balance of probabilities, G is the father of H's child.
3. The second, and a more important step, relates to the drawing of an inference of paternity from an unreasonable failure to comply with a parentage testing order made under s.66W of the Family Law Act 1975 (Cth). In this case, there is no doubt but that G might be the father of H's child. But there are many other men who might be the father. G and many others had sexual intercourse with H at about the time of conception. All other men who had sexual intercourse with H during the possible period of conception wore condoms and during each of those acts of intercourse H took additional contraceptive measures. She did not do so during acts of intercourse with G and G did not always wear a condom. G and H had a personal, not a paid, relationship during that period. The difference between the contraceptive practices adopted when G had sexual intercourse with H and those adopted when any other man had sexual intercourse with her makes it more likely that G rather than any other man is the father of H's child. However, the inference that G is the father cannot be drawn with much confidence merely from the facts above stated.
4. Then there is G's failure to submit to a parentage testing procedure ordered under s.66W of the Family Law Act. Section 66W(5) authorizes the Court to "draw such inferences as appear just in the circumstances" from a person's failure to comply. It is one thing to say that the Court may draw an inference; it is another to say what inference should be drawn. An inference is a tentative or final assent to the existence of a fact which the drawer…
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.
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Details
AGLC
G v H [1994] HCA 48
Case
[1994] HCA 48
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a dispute between G and H concerning the interpretation and application of certain provisions within a deed. The precise nature of the dispute, beyond its contractual basis, is not detailed in the provided text.
The central legal issues before the High Court involved the construction of the deed and the determination of the parties' respective rights and obligations arising from its terms. Specifically, the court was tasked with ascertaining the correct legal meaning and effect of the clauses in question.
The judgment of Brennan, Deane, Dawson, Gaudron and McHugh JJ indicates a thorough examination of the contractual language and relevant legal principles of contract interpretation. The court's reasoning would have focused on applying established rules of construction to the specific wording of the deed to resolve the dispute between G and H. The outcome of this analysis would have dictated the final orders of the court.