G v H

[1994] HCATrans 385

!

•

• 'jA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B34 of 1993

B e t w e e n -

.G

Appellant

and

H

Respondent

BRENNAN J
DEANE J
DAWSON J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

G(2) 1 27/6/94

AT BRISBANE ON MONDAY, 27 JUNE 1994c AT 2.17 PM

Copyright in the High Court of Australia

MR P.R. DUTNEY, QC: If the Court pleases, I appear with

MR R.A. HAMWOOD for the appellant. (instructed by

Crowley & Greenhalgh)

MR J.A. JERRARD, QC: If the Court pleases, I appear with

MR R.M. GALLOWAY for the respondent. (instructed

by Walters & Co)

BRENNAN J:	Mr Dutney.
MR DUTNEY:	I hand up the requisite number of copies and

outline of submissions for the appellant.

BRENNAN J: Yes, Mr Dutney.

MR DUTNEY:  Your Honours, the essence of the Full Court

judgment, in our submission, is that passage on

page 111, commencing on the last two lines in the
judgment of His Honour Mr Justice Strauss where

His Honour said:

The evidence of the appellant raises a

sufficient prima facie case against the

respondent. That there was a prima facie case
is implicit in the finding that the

respondent's refusal to undergo parentage

testing was unreasonable. Having regard to

the practically conclusive evidence which only

he can make available, he has not sufficiently

answered the appellant's case.

In our submission, that passage from the judgment of His Honour Mr Justice Strauss really places the

argument in circular fashion. His Honour seems to

imply the prima facie case from the refusal and then find the failure to answer the prima facie case from the refusal as well. That must follow,

because if one has regard to the findings of the

primary judge, there was no prima facie case

established. Can I take Your Honours to the primary judge's

reasons to demonstrate that. Firstly, to page 64

of the book where His Honour makes the particular

finding, commencing in line 5:

Even if I were to take the applicant's

evidence at its highest and believe that the

respondent never used a condom and that only
her clients wore condoms (and always did) and

that at times during sex with the respondent
she also did not use any contraceptive
methods, that would not of itself be evidence

sufficient to exclude, from the ranks of

possible fathers of the child, any of the male

clients with whom she had sexual intercourse

G( 2) 27/6/94

during what might be described as the relevant

period. It is difficult to even suggest that

such a state of events as the applicant

contends for is sufficient to tip the balance

of probabilities in favour of the respondent

being the father as opposed to any of her

clients. The sheer number of other males

involved is just too extraordinarily large in

this case, and the possibility of

contraceptive failure is just too great to be discounted.

That was His Honour's finding based upon acceptance

of the respondent's evidence at its highest but, of

course, His Honour rejected in large part the

evidence which the respondent gave. At page 63 of

the record - - -

BRENNAN J:  Is there any finding by His Honour of what was

assumed at the commencement of that passage?

MR DUTNEY:  The commencement of the passage that I read,

Your Honour?

BRENNAN J: Yes.

Even if I were to take the applicant's

evidence -

Did he ever take the applicant's evidence - - -

MR DUTNEY:  No. His Honour was quite clear in rejecting the

applicant's evidence and, indeed, if I can take

Your Honour to two passages in the primary judge's

reasons to demonstrate the point. Firstly, at

page 68 of the record in the last paragraph:

In many respects, I harbour grave doubts

as to the credibility of the applicant.
Having regard to the matters mentioned above,

and her general demeanour during the

proceedings, I have little doubt that she

would be prepared to tell untruths even under

oath in order to benefit her own position and

that of the child.

Then again at page 75, from about line 12 to the

end of that section of the judgment, His Honour
expressed reservations about some of the other

evidence of the respondent.

DEANE J:  He never rejected the evidences that in her

professional activities the applicant took

contraceptive measures herself and insisted that

the clients used condoms, did he?

MR DUTNEY:	Not in terms, no.
G(2)	27/6/94
DEANE J: Then once one accepts that and accepts the

evidence that as with your client there were

occasions when no condom or other contraceptive was

used, do not all these figures simply become rather

absurd?

MR DUTNEY:  Not in our submission, no, for these reasons.

Firstly, although His Honour never rejected

expressly the respondent's evidence about the use
of condoms and other contraceptive devices with
clients, His Honour did not find it necessary to

deal with it expressly because of the view he took

at page 64 in the passage I read. But what

His Honour does do, particularly in the passage at page 68, is express the view that the respondent would be prepared to say in effect anything which she thought advanced her case.

DEANE J: Are you suggesting that one should read into that

a refusal to accept the evidence as to the

contraceptive and condoms.

MR DUTNEY:  We would submit that one should read into that

that His Honour was unprepared to accept any of the

evidence which the respondent gave that was

advantageous to her case.

DEANE J:	I do not read his judgment that way.
MR DUTNEY:	That is the view that we would submit, but in

any event our primary submission is that His Honour

is right in the passage at page 64. If one leaves aside for the moment the refusal to take the test, the evidence as it appeared before His Honour in

relation to contraceptive use by the clients was

the evidence that the various methods were used

that she gave in the evidence. His Honour was

asked in effect to take judicial notice of the
effectiveness of those contraceptive measures

because there seems to be no evidence that they

were or were not effective methods of
contraception.	So His Honour was required to take

judicial notice of their effectiveness and the

notice he took was that they were not 100 per cent

effective, that there was no such thing as

100 per cent effective contraceptive and in those

circumstances he could not rule out the possibility

that one of the other clients of the respondent was

the father of the child.

Having regard to the fact that there were so

many of them, between 60 and 270, depending on the

view of the evidence which is taken, that he could

not then conclude, even on the balance of

probability, that the appellant was the father as

distinct from any one of those o~her persons.

4   27/6/94

The Full Court simply do not address any part

of that finding of His Honour or that reasoning.

The reasoning of the Full Court seems to proceed

without reference to the evidence before His Honour
the primary judge at all. They seem to be taking
the view that the critical factor in the case was
simply whether or not there was a reasonable
explanation for the failure to take the test. If

the explanation was, as His Honour the primary

judge found, unreasonable, therefore it was just in

the circumstances to infer that the appellant was
the father of the child.

We make two submissions in relation to that. Firstly, in our submission, the reference to a

reasonable or unreasonable excuse, based on
objective criterion is not one which finds any
support in the statute. The statute invokes the

jurisdiction to make inferences merely upon the

refusal, for whatever reason. Once there has been

a refusal the right to draw an adverse inference as to the grounds for that refusal, in our submission,

must arise only where the refusal is unexplained,

which is not this case.

His Honour has found that there was a reason

for the failure to take the test and that it was

not a reason consistent with a desire to stifle the

evidence or a fear of the result of the test, and

that is the finding at page 78 that we refer to in

paragraph 5 of the outline.

Having made such an express finding, based on

the evidence before him, in our submission whether

or not that was reasonable, viewed objectively, is

immaterial and that it does not leave open the

option of inferring that the failure to take the

test was for some other sinister reason. If one is

unable to infer the sinister reason, then one is

simply left with the evidence before His Honour

which the Full Court does not address in their

judgments.

BRENNAN J: What does that take us to at the end of the day?

MR DUTNEY:  At the end of the day, Your Honour, it takes us

to this, that in this particular case the finding

of fact by the trial judge is that the reason the

test was not taken was because the appellant

thought that he was being discriminated against and

not that it was because he wished to stifle the

evidence or thought the evidence was going to be

adverse to him.

DEANE J: But that he was frightened there was a

possibility the test would conclusively show he was

the father.

G(2) 5 27/6/94

MR DUTNEY:  There was a concession in the evidence that

His Honour the primary judge refers to.

DEANE J:	I had in mind page 83, line 15 and following.
MR DUTNEY:	That is really as far as it could be taken.

Because of the express finding based on the

evidence which His Honour made, the inferences, in

our submission, do not replace the actual evidence

which His Honour hears. The evidence which
His Honour heard gave rise to the finding at

page 78. While His Honour may have that view that

there was some concern, in view of the fact that

there was an admission of intercourse with the

respondent during the relevant period, it would be

difficult not to come to the conclusion that there·

was at least a possibility that the appellant might

have been the father of the child. But His Honour

seems not to have found that that was the reason

for the failure to take the test.

BRENNAN J:  Mr Dutney, does it much matter what was in his

mind? I mean, the ultimate facts in the matter are

that the appellant was proved to have had access to

the respondent at the time of conception; that

others were also having access to her at the time

of conception. Now, where does onus of proof come

into this? That much being proved, it is a

question of which of those who had access to her at

the time of conception is the father. She gives

some evidence which indicates a greater likelihood

of him than others; she is not regarded as a

credible witness; but none the less the

relationship between the two parties does not seem

to have been contested and there is no taking of

the test when an order is made. Now, from all of

those circumstances, which way does the balance

come down?

MR DUTNEY:  In our submission, in this case the balance

comes down in favour of the appellant. In a

different case where no explanation is proffered

for the failure to take the test it may be that the

Court can infer from the failure to take the test

some fact that might be relevant such as that there

was a high probability - or that the appellant

might have thought he was the father and that may

have given more credence to the evidence of the

respondent about the contraceptive measures taken

in their relationship.

BRENNAN J: Absent the evidence with respect to the test or

the order that was made for the taking of a test.

MR DUTNEY:  Absent the order for the taking of the test?

BRENNAN J: Yes.

6   27/6/94

MR DUTNEY:  In our submission, on those facts, having regard

to the large number of persons involved, the

respondent here would fail to establish, on the

balance of probabilities, that of all the persons

who were potential candidates the appellant was the

father, because there is no evidence in the facts

that Your Honour has put forward which, of itself,

requires or tips the balance in favour of finding

that this person, as distinct from all of the

others, is the father of the child. He is merely

one possibility amongst a very great number of

possibilities. The facts may balance more in

favour of the present respondent in a case where

fewer persons were involved.

DEANE J: This may help you, but assume that one has a

situation in which 100 males have intercourse once

with these contraceptives measures being taken and

another male has intercourse on a number of

occasions without any contraceptive measures being

taken, what conclusion, in the absence of evidence,

does a court reach about the likelihood of the

person who has intercourse on a number of occasions

without these contraceptives being the father?

MR DUTNEY:  The conclusion that the court could come to, in

our submission, is that as against any particular

individual amongst the 100, it is more probable

that it is the person that had the greater access

who is the father of the child.

DEANE J: Must not the first question be, what is the

likelihood, when all these contraceptive measures

are taken, of there being a failure? Now, if one

reaches the answer that it is one in a hundred, or

two in a hundred, then I suppose one reaches the

likelihood that your client is more likely than

not. If one reaches the conclusion that it is four

in a hundred or more than four in a hundred,

perhaps the likelihood goes the other way.	How on
earth does a court deal with that?

MR DUTNEY:  In the way Your Honour postulates it, a court

really cannot and the respondent would fail to

establish, on the balance of probabilities, that

the particular person against whom the allegation was made was the father. But before I go on with that, the evidence here is not perhaps as strong, certainly not as strong as Your Honour puts forward

in the example, because it was the respondent's

evidence that no contraceptives were used by the

appellant. That evidence was rejected by the trial

judge. The trial judge found that the appellant

used condoms whenever he could, and more often than

not, and that the appellant may have had
intercourse with the respondent during the relevant

period. Now, there is no finding which ties the

G(2) 27/6/94

two events together, save that if there was
intercourse between the two in the relevant period

without the use of a condom, then it appears on the

probabilities of the evidence to have been perhaps

once or a very small number. It was not the norm,

and there is no direct evidence of

intercourse - - -

DEANE J:  My question was assuming two or three times, which

seemed to be a fair enough conclusion from

His Honour's judgment.

DAWSON J: Whilst you are interrupted, Mr Dutney, I do not

understand what part the section, section 66W(5)

plays. In particular I do not understand a just,

as opposed to an unjust, inference. I can

understand a reasonable inference from the facts,

or an unreasonable inference, but that does not

seem to be the same thing as a just inference. In

the discussion that you have just been having, the

section plays no part at all. You just see what

inferences you can draw from the evidence you are

left with. Is the section designed to punish

someone in some way as a matter of justice for

failing to undergo the test?

MR DUTNEY: In our submission, no. If Your Honour looks at

the section and omits the entitlement or the part
after the comma about drawing the inferences, we

are left with a section that says:

Where a person ..... contravenes an order

under this section, the person is not liable

to any penalty in relation to the

contravention -

If the section were to stop there, then it might

well be argued that the court was not allowed to

draw the usual Jones v Dunkel type of inference,

because the section expressly excluded any form or

penalty for failure to take the test.	By adding
the additional words, it makes it clear that the

court is entitled to draw adverse inferences in

appropriate cases, notwithstanding - - -

DAWSON J: How, though? What, is it a sort of admission if

you do not undergo the test?

MR DUTNEY:  It is difficult to get to that conclusion, with

respect, because by its very nature the test is one

which the party ordered to undertake it does not

know what the result is going to be. So it is

really a case where he does not know the result;

it may be adverse; it may be favourable. What the

court here have said is that notwithstanding the
person refusing to take the t~st does not know the

result of it, we are going to deem him to be the

G( 2) 27/6/94

father by virtue of the fact that he has not taken

the test, and that is a just inference.

DAWSON J: Then that is admission by conduct, that is really

what it amounts to, is it not, approaching it that
way?

MR DUTNEY:  Yes. In our submission, the section really does

not permit that, because that is not drawing

inferences which arise by virtue of the fact that

the evidence has been not produced by that party

because the failure to produce evidence of which

you do not have a positive knowledge cannot, by the

use of some inference, convert that evidence into a

positive fact of parenthood.

DAWSON J:	Why can it not, if it is an admission?
MR DUTNEY:	It is really a case of a party admitting

something he does not know the answer to or does

not know.

DAWSON J:  That is presupposing. He might know the answer

to it and that is why he does not take the test,

and therefore it is an admission.

MR DUTNEY: Although in this case there is a finding which

contravenes that. There is a finding of fact which

does not permit, in our submission, of that

conclusion by inference. But in any case, in our

submission, it really would be impossible for the

appellant to know, as a fact, whether he was or he

was not.

DAWSON J: That is the strong point in this particular case,

yes.

DAWSON J: What do you say the section does mean?

MR DUTNEY:  The section means, in our submission, that if a

person fails to take the test then the court is

entitled to draw such inferences as may be open on

the evidence from that refusal to take the test.

DAWSON J: A court is always entitled to draw such

inferences as are open on the evidence, so what do

the words "from such test" add?

MR DUTNEY:  The words "as appear just in the circumstances"?

DAWSON J: Yes.

MR DUTNEY:	In our submission they really do not advance the matter beyond the Jones v Dunkel position because
it can hardly be just, in our submission, as a
matter of inference to find tnat because a person

27/6/94

does not take a test for which there is an

explanation proffered and accepted - - -

DAWSON J:  So that the words "as appear just in the

circumstances" are merely a reiteration of the

Jones v Dunkel test, that you may more readily draw

inferences than if evidence had been given or the

test had been taken.

MR DUTNEY: Yes. In our submission, it is there because,

without it, it may appear that the section
precludes the drawing of such inferences because of

its express omission of any penalty for - - -

DAWSON J: And you go on to say that of course if the

evidence does not allow the drawing of the

inferences, that is the end of the matter.

MR DUTNEY: That is the end of the matter. And the court

seems to accept that in the sense that they accept

it on the basis of whether or not, viewed

objectively, the reason for the refusal is

reasonable. That is the gloss which the court puts

on it. The primary judge and the Full Court take

the view that if an explanation is offered, and

viewed objectively it is reasonable, then the court

will not draw any inference. But in respect of

that, our submission is that it cannot matter

whether the reason is objectively reasonable or

not. If the failure to take the test is explained
and the explanation is accepted, and the
explanation is not consistent with an adverse

finding, then it is not just to infer one by virtue

solely of the failure to take the test, and that it

does not matter objectively whether it is

reasonable or not, providing it is accepted and is

not consistent with the inference.

DAWSON J: Then that does seem to be muddling up something

which is in the nature of an admission by refusing

to take the test if no reasonable explanation is
given.	In other words, it is something akin to a

consciousness of guilt.

MR DUTNEY:  That seems to be the approach taken by the Full

Court. It is not our submission. Our submission

is that the court can only draw such inferences as

are available, applying conventional tests.

DAWSON J:  You are not worried about that, anyway, because

you say there was an explanation and .•.. the

explanation was not consciousness of guilt, but

something else, and that was accepted.

MR DUTNEY: Yes. And what the Full Court have done is they

have put that to one side and they have said, "No,

that is not a correct approach. The correct

10   27/6/94

approach is to look at the explanation and
determine from objective criteria whether it is

reasonable or not. If it is not reasonable, then we do not care what the explanation is or whether

it is accepted. We will treat you as having failed

to explain satisfactorily the failure to take the

test and it is just, in those circumstances, to

punish the failure to take the test by determining

that you are the father, whether or not that be the

fact."

In our submission, first of all it is not

appropriate to infer the end result from the

failure to take the test. It is not a punishment

section. If the legislature had wanted to deem a

person to be the father, unless he had a reasonable

explanation for failing to take the test, it would

be a very simple method to do it.

We put one of the cases in the outline, one of the American cases, really to illustrate the way in

which that result has been achieved in other

jurisdictions, Egan v Ayd, 545 A 2d 55. In the

footnote on page 62 there is reference to other

jurisdictions in the United States where that

result has been achieved by the legislature. But

quite clearly, in this case, in section 66W in the

Family Law Act there has been no such attempt. All the legislature has done is provide that no penalty will flow from the failure to take the test but

that the court can draw such inferences as are just

in the circumstances.

DEANE J: What if the application had been by the child

seeking support? Could it really be said that in

circumstances where the putative father, who

admittedly could have been the father, refused to

take the test that would answer conclusively

whether the child was entitled to support, the just

inference was that the respondent was probably the

father?

MR DUTNEY: In our submission that - - -
DEANE J:	I mean you have the child against one of the

people who have created the situation seeking

support and there is a readily available means of

answering the question and determining his

entitlement. Why would it not be just to infer

against the person who refused to have that means

put into operation that that person should be

treated as the father, and particularly as here,

when the court has said "unless and until he

permits the matter to be concluded conclusively".

MR DUTNEY: Because, in our submission, that is doing in

effect what the section says is not to be done,

G(2) 11 27/6/94

that is it is imposing a penalty on the failure to

take the test, beyond the drawing of inferences.

DEANE J:	No, it is not imposing a penalty, it is seeking
justice from the point of view of the child.
MR DUTNEY:	And in our submission, even when one takes regard of the welfare of the child, it is no more
in the child's interest to have the wrong person appointed or declared to be its parent than it is in its interest to have the right person.
DEANE J:	It might be in the child's interest to have the

person who will not allow the question to be

conclusively determined ordered to pay maintenance,

which is what is involved in these proceedings. As

the Full Court made clear, there is no question of

a declaration of paternity; it is an obligation to

contribute towards the maintenance of the child.'

MR DUTNEY:  In our submission, one of the difficulties that

flows from that approach is this, that it really

leaves then the situation where, in a case such as

this, as many persons who are alleged to be the

father of this child has failed to take the

test - - -

DEANE J:  No, here the most likely one has failed to take

the test.

MR DUTNEY:  If the result of failing to take the test is

going to be that it is just to determine that you

are the father without an otherwise prima facie

case being established is that the respondent can

simply elect as many or as few of the persons with

whom she had a relationship during the relevant

period to make the allegation against, and any of

those or all of those who fail to take the test,

for whatever reason, are then required to pay

maintenance for the child, however likely it might

otherwise be - - -

DEANE J:  But that is not so. On any approach here, your

client is the most likely father, on the evidence.

MR DUTNEY:  On the evidence he is more likely than any other

individual.

DEANE J: Yes.

MR DUTNEY:  But in our submission he is not more likely on

the evidence than some one other of the people

involved. It is the numbers in this case that make

this case different from the run of the mill case.

If there were only two to choose from, for example,

it would be a short step, where one refused to take

the test.

12   27/6/94

McHUGH J:	But you look at it from the point of view of a common lawyer and may not the legislature's
approach be that if there is a scintilla of a case
against a person, and that person refuses to take
the one test that can determine the issue conclusively, then it is just, even if it is not
rational, to hold that person to be the father of
the child. In other words, the legislature is looking at the justice of the situation. When I first read that subsection I though the word "just"
to be quite extraordinary. I had never before seen
a reference to an inference being "just". It might
be a correct inference or a proper inference or a
reasonable inference, but I had never heard of a
just inference before.
MR DUTNEY:	We would prefer the construction that requires a

rational result to be arrived at.

DAWSON J:  It is not only that. Somehow or other it has to

supply the evidence which is missing unless the

injunction is that the court dispense with the

necessity of evidence and decide the case on some

other basis. And anyway the word "inference" is a

word that is more appropriate to evidence than

anything else.

MR DUTNEY:  The approach that the court has here adopted is

to do just that; to dispense with the

evidence - - -

DAWSON J:	We are trying to find out what the section means.
MR DUTNEY:	But if the section means what the Full Court says it means, then one is entitled to dispense
entirely with the evidence in the case. The only
question, the live issue that comes before the court at the point in time when His Honour the
primary judge determined this case would be, did
the appellant or did the appellant not take the
test? If he failed to take the test, then the
result is one way; if he did take the test, then
the result goes the way of the test; but the
evidence is entirely irrelevant.  The only
requirement to have the test ordered in the first
place, in section 66W(2), is that the person ordered to take the test must be a person -

where the court is of the opinion that the

information that could be obtained if the

parentage testing procedure were to be carried

out in relation to the person might assist in

determining the parentage of the child.

so it does not matter whether it is to eliminate

somebody or to add somebody, if .the evidence can

assist and the test is ordered, then that is the

G(2) 13 27/6/94

end of the proceedings if that construction of the

statute is adopted.

DAWSON J: There is difficulty with the word "inference",

because it is not really a matter of inference at

all. I can understand if it is said, because the

test is so conclusive the refusal to take it

constitutes an admission by conduct which, in

itself, is evidence. It is not a matter of

inference. But the use of the word "inference" is

peculiar; infers from what?

MR DUTNEY:  In our submission, an inference can only be

something which logically flows from the fact from

which it arises, namely if someone was ordered to

take a test and failed to take a test, and there

was a dispute as to whether or not they had had a

relationship at the relevant time, then it is

proper to infer that by failing to take the test

they are admitting the relationship. But it is

another step altogether to say that it is just or

proper to infer the result of the whole proceedings

merely from the failure to take the test.

McHUGH J:	Do the parliamentary materials throw any light on what parliament intended when they enacted it?
MR DUTNEY:	I cannot assist Your Honour with that, I am

sorry.	I am told by my friend that they do not
assist.

GAUDRON J:  Mr Dutney, what is wrong with this approach? We

start on the basis that someone is probably the

father. We just take that for the moment, because

it seems to me that is where you have got to make

your attack on whether or not the appellant is

probably the father. But if you proceed on the

basis that someone is probably the father, and it

is a relatively simple thing for him to disprove

it, what is wrong with making the inference in

accordance with 66W(5) that he is the father? That

seems to me to be a fairly simple straightforward

approach and what is involved in the subsection.

MR DUTNEY:  Your Honour, I would simply say this, that if

one starts with the proposition that somebody is

probably the father, then one does not need to

worry about the failure to take the test, because if he is probably the father and he does not take

the test and disprove that he is the father, then

the case must go that way. But this is not a case,

in our submission, where the primary judge's
findings leave open the result that he is probably

the father.

GAUDRON J: But the primary judge's findings are, it seems

to me, a little wide of the mark, if one starts at

G(2) 14 27/6/94

page 64. That seems to me to be where you must

make your case because the evidence on which the

case has proceeded, albeit that there are not

necessarily findings one way or the other, but the

evidence is that certain practices were adopted in

respect to clients and not always adopted with

respect to your client, which I would have thought

would be sufficient to bring him into the category

of "is probably".

MR DUTNEY:  In our submission, and really our whole case to

a large extent depends upon this, because if there

is a prima facie case and it is not unanswered,

then of course the result has to go a particular

way. But in this case, where you have got here

somewhere between 60 and 270 other potential

fathers of the child - - -

GAUDRON J: In respect of whom contraceptive practices were

adopted and no evidence is led as to the

effectiveness or otherwise of the practices said to

have been adopted.	No challenge is made to it,
apparently.

MR DUTNEY:  So far as that is concerned, it is not more

proper, in our submission, for the trial judge, in

the absence of any evidence at all on the subject,

to find that the contraceptive devices were always

going to be effective than it was for him to find

that they were not always likely to be effective.

McHUGH J: That is right, but is there not an evidentiary

onus on your client? I mean there is evidence that
your client had unprotected sex with the mo~her.

The evidence from her, and one would think the high

probability, would be that she would insist on her

clients using condoms. Now, in that situation, she

becomes pregnant. Why is there not a prima facie

case against your client? Is there not an

evidentiary onus on you? Supposing 66W had never

been enacted.	It might be put against you that you
had an evidentiary onus to submit to a blood test

for the purpose of rejecting it. Not a legal onus

but an evidentiary onus.

MR DUTNEY:  Your Honour, our submission is simply this, that

if, as we would submit was proper, His Honour

accepted that contraceptive devices were used but

are not infallible and you have a very large number

of persons involved - perhaps as many as 270 on

His Honour's broadest view, perhaps as few as 60 on

the respondent's narrowest view - the larger the

number of persons involved the greater the

likelihood of contraceptive failure. Now, where

you have got that very large number of persons

involved there is a significant likelihood that

there was contraceptive failure during that period.

G(2) 15 27/6/94

Where you have got evidence against the appellant

that he did not always, although mostly, used a

condom, we do not know whether he did or did not

during the relevant period, but it is likely that

there were contraceptive failures with other

persons during that period because of their sheer
number, then in our submission the prima facie case
is simply not made out. It ceases to become, on
the balance of probabilities, a case where it is

this person is the father and not some one of these

other 60, 100, 150, 200 people.

MCHUGH J:  Is there any evidence or was there any statistics

of which one can take judicial notice as to the

failure rate of condoms?

MR DUTNEY:  I have seen some figures but I do not know

whether Your Honours can take judicial notice of

them.

BRENNAN J:  I am sure we cannot.

DAWSON J: But your answer really to Justice McHugh is the

same as your answer to Justice Gaudron. Be that as it may, if there is a prima facie case, if there is

a failure to answer it that is the end of the

matter, but that is not this case because what was

held to be the evidence which was conclusive in the

end was the failurerto take the test. To say that

if there is a prima facie case which is unanswered

just leaves the section as you pointed out, having

no effect at all, but what was held was that it

adds something, and the question is, what does it

add, the failure to take the test?

MR DUTNEY:	In our submission you look, firstly, precisely the facts here, it adds nothing where there is an
explanation proffered for the failure to take the
test and the explanation is accepted. So it is not
an unexplained failure to take the test - - -

McHUGH J:  But what has the explanation got to do with it?

I have some difficulty with that. All it would

prove is that he believed that he might be the

father; he might even believe he was the father.

MR DUTNEY: 

Our submission is that is really the sorts of

inferences you can draw from the failure to take
the test. You cannot go further than that and
simply infer the result of the case.

DAWSON J: The answer is, if it is to be taken as an

admission, then if there is an explanation which

shows that it is no admission, then it has no

evidentiary value.

MR DUTNEY:  Yes, that is this case.

G(2) 16 27/6/94

BRENNAN J:  Mr Dutney, I must confess the problem I am

having at the moment is with the very notion of the

balance of probabilities in establishing that xis

the father. Section 66W, I would have thought, was

introduced in order to deal with a situation in

which it was possible that more than one man might

be the father and this was going to be some method
by which that problem should be resolved. Is the

onus on an applicant, whether mother or child, an

onus to prove that it is more likely than not that

the respondent is the father or is it an onus to

say that amongst those who might be the father, the

respondent is the most likely one?

MR DUTNEY:  Our submission would be that the onus is to

prove that the respondent, the appellant here, is

more likely than not to be the father.

BRENNAN J: Then 66W might fail in its purpose because it

cannot do much more, can it, than to lead - in the

event of a non-taking of the test - to much more

than saying, there is another indicium that Xis

the most likely one.

MR DUTNEY: Yes, we would agree with that. Indeed, up until

this case that is the approach that has been taken
in the cases. A good example of that is the

decision of Justice Thomas - - -

BRENNAN J:  It may be the approach that is taken, but it

does mean, does it not, that wherever there are a

number of persons who might be the father, that no

onus is capable of discharge so long as none of

them take the test.

MR DUTNEY: Although, as I have said in response to some

questions, that may to some extent depend on the

number of persons and the opportunity of individual

persons.

BRENNAN J:  Oh yes, if there are two, you can do the balance

of probabilities test; if there are three - - -

MR DUTNEY:  If there are three you may well be able to, you

may not. It depends on the facts of the particular

case. But it cannot be a case where, in our

submission - or it ought not to be a case where one

ignores the facts and looks only at whether or not
the test is taken and ignores all other
considerations. The court still is required to
determine the case on the best available evidence

that it has, and if some of the best available

evidence - the best available evidence - is

withheld, then the court has to consider why that

was withheld and whether anything flows, and if

anything flows, what flows from the fact of its

being withheld.

G(2) 17 27/6/94

BRENNAN J:  I can understand your argument if one takes it

at its first level of saying, was there a prima

facie case, on the balance of probabilities, that

the respondent to those proceedings was the father?

Answer: No. What does section 66W add? Nothing.

Therefore you succeed. Now, that is one approach.

The other is to say, was there a prima facie case

established that he was more likely than not to be

the most eligible candidate for paternity? Answer:

Yes. Then one takes 66W into account and says, but

he did not take the test.	Then we confirm the view
that he is.	It is a question of which way you

approach it, is it not?

MR DUTNEY:  As Your Honour puts it, yes. But our submission

is that it remains an adversarial proceeding in

which the respondent alleges that the appellant is the father. Now, on the balance of probabilities,

she must establish, before she is entitled to claim

maintenance or whatever against the appellant, on

the balance of probabilities that he is. So it is

really the former rather than the latter of

Your Honour's tests.

BRENNAN J: Yes, that is the way you put it.

DEANE J:	Why do you not say, when you reach the stage that His Honour indicated to you, that when one reaches
that stage it is just to draw the iuference from
his contravention of the order that the test would
probably have done him more harm than good.
MR DUTNEY:	At the first level in this particular case we

would submit it is not just to draw that inference

here because an explanation was given and accepted

for the failure to take the test which explained

the failure - - -

DEANE J: But that takes you to what Justice McHugh was

putting to you, and that is the unusual thing about

this section, when it talks about just in terms of

drawing an inference, is that it introduces an

objective test as to whether an inference should or

should not be drawn as distinct from directing you

to what is, as it were, the subjective state of

affairs that can be inferred.

MR DUTNEY:  In our submission, something is not necessarily

unjust because it is not objectively reasonable.

There can be a perfectly valid explanation for something which is objectively unreasonable, but

which renders it not just to draw an adverse

inference or finding as a result of behaving in

that subjectively reasonable, but objectively

unreasonable, way. It should not be made to depend upon objective reasonability of what is done rather

than the genuineness of what is done.

18   27/6/94

DEANE J: Except when one reaches the stage that you have

the most likely father, is there not a lot to be

said for the view that if the most likely father

refuses to take the test that will conclusively

prove the issue, it is just to infer that that test

would probably have done him more harm than good.

MR DUTNEY:  No, in our submission, because in facts like

this, in this sort of case where it is a paternity test which is being taken, it is not just to infer

that he is the father because, at best, it is a

wild guess. It is really guessing as to the

result, which is the sort of thing that Jones v

Dunkel, in particular, says the court ought not to engage in. It is a more likely guess, perhaps,

than some other guesses, but it is none the less

simply a guess.

DEANE J:  I follow the way you put it.

MR DUTNEY: There is no evidence that supports it.

BRENNAN J:  I suppose you say it is rather like an admission

in a criminal case by somebody who does not know

the facts admitted.

MR DUTNEY:  I suppose it is like that and where, as I think

Your Honour Justice Dawson said, the explanation

proffered makes it clear that it was not intended

to be an admission anyway.

McHUGH J: What I was putting to you earlier is that in that

situation it might be just to infer that the, person

is the father because of his refusal to und~rgo it,

whether or not he had any particular reason for it.

The section rather looks like it was drafted by a

social worker rather than a lawyer.

DAWSON J:  I was going to ask a question you cannot answer,

Mr Dutney, which is, just in what sense?

MR DUTNEY:  One would have thought, and that is really the

purpose of the reference to Little v Streater, the American case in paragraph 18 of our outline, that one should not forget that children are no more

interested in having persons who are not their

father foisted on them than some fathers are

interested in having the children foisted on them,

if there is in fact no relationship. So, in our

submission, it should not be treated just simply

because someone takes a test, they should therefore
be found to be in some sort of parental

relationship with the child. The child's

interests, we would have thought, go a little

further than that and really require a proper

finding on the evidence before someone is said to

G(2) 19 27/6/94

be their father, as to who that person really is,

and there is a rational basis for so finding.

But can I just conclude with one point. I am

a little concerned at the approach that is taken as

to the point that the appellant is the most likely

father of the child. In saying that and accepting

that, it should not be taken that we are conceding

that it is a much greater likelihood than others,

that there is much of a degree in it, if one has

regard to the evidence. And the evidence is that

he may have had sexual intercourse with the
respondent during the relevant period and that when

he did, over the whole period of the relationship,
he normally wore a condom although there may have

been some occasions when he did not. In our

submission, that evidence alone is insufficient to

infer that he had unprotected sex with the

respondent during the relevant period here. So it

is no more than a possibility, even in this case,

that he had unprotected sex and others did not.	It
may well be, on the evidence here, that he only
had - - -

GAUDRON J: But the finding we have got is only that condoms

were used more often than not. That is at page 63.

MR DUTNEY:  But not in relation to this particular period.

So when one comes to look at - and while we concede

that it is more likely that this appellant is the

father than perhaps another particular individual,
on the evidence and on the findings, because the
period and the use of condoms on the evidence and
on the findings do not marry up, it is not a

likelihood which is much greater than any other

individual, particularly if one has regard to the

findings of the judge about the credibility of the

respondent and the only evidence in relation to

contraceptive use which was capable of challenge,

and that was the use of contraceptives with the

appellant, which His Honour rejected out of hand.

Those are submissions.

BRENNAN J: Thank you, Mr Dutney. Yes, Mr Jerrard.

MR JERRARO: 

The respondent has prepared short outlines of

the submissions and, Your Honours, we have also
prepared a fuller outline of our argument for your

assistance. This outline recites various of the

matters of fact which we say should have been the
basis for the drawing of inferences.

BRENNAN J: Thank you.

MR JERRARD:  The shorter outline is a far condensed version of the longer one.

G(2) 20 27/6/94

BRENNAN J:  We do not need to read the longer one at the

moment.

MR JERRARD:  Your Honours will see that the respondent's

argument is put in the alternative and that the

respondent submits that if what is necessary is for

her to demonstrate that there was a prima facie
case, and if the drawing of an inference depended
upon that inference being reasonable in the

conventional sense, then our submission is that

indeed there was a strong prima facie case. Her

evidence identified the appellant as the only man

who had intercourse with her in which no

contraceptive devices of any kind were used and on

the unchallenged evidence, all other men with whom

she had sexual intercourse were men with whom a

variety of contraceptive devices were used on each

occasions. He was, therefore, the only candidate

for parenthood.

McHUGH J: But is there not a problem about that, that the

trial judge did not accept her evidence that he

never wore a condom, and that being so, you cannot

put your case any higher than saying that he had

had unprotected sex with her and he may have had

unprotected sex with her during this period. That

is as high as you can put it, is it not?

MR JERRARD:	I cannot say that necessarily during the period of potential conception he necessarily had
intercourse without a condom, on the findings of
fact by the trial judge.  I can draw Your Honour's
attention to his own changes in position with
respect to the usage of condoms, which appear in the record itself. For example, at page 28 of the record, in his answers to specific questions in the
second sentence on page 28 his uninformative response was:

The Respondent cannot recall how frequently he

used condoms when having sexual intercourse

with the Applicant.

My submission is, that being the case, really the

position is that he is the only male known to have

had sexual intercourse in which no condoms were

used and in which no other contraceptive devices of

any kinds were used.	So we submit we can say, he
is the only candidate.

McHUGH J: It is difficult to say there was a point 6

probability, is it not, that he was the father?

You might say there is a probability he is the

father, but it seemed to much lower than point 5 on

the scale, leaving aside whatever inference you can

draw about the blood test.

G(2) 21 27/6/94

MR JERRARD:  Your Honour, may I take you to, perhaps, the

fuller outline of argument. The respondent's

essential submission on putting the case this way,

namely that we have a strong prima facie case, is

that the trial judge ought not to have acted on

judicial knowledge or an asserted judicial

knowledge of failure of contraceptive devices
without having given the opportunity to the

appellant to respond to the concern His Honour

announced in his judgment, to adduce evidence of

the reported percentage rates of success of condom

usage. It is our essential submission that if you

take, for example, 100 partners, and where, as the

evidence disclosed here and it was unchallenged,

there were always no less than three forms of

contraception being used, a diaphragm, a spermicide

and a condom, one has to examine the reported

percentage rates of success, or failure if you

like, and apply those to that 100. And even if the

failure rate is as high as 10 per cent, very

rapidly one reduces to a very tiny percentage the

possibility that some other male could be the

father of the child.

McHUGH J: But I know that the very fact that she said that

she always used a diaphragm and spermicide, and at

an earlier stage the.oral contraceptive pill, and

she still became pregnant shows that these devices

are not foolproof. She became pregnant,

notwithstanding the fact that she wore a diaphragm,

used a spermicide, and she still became pregnant,

even with him, on her version.

MR JERRARD: With respect, no, Your Honour. Her evidence

was not - her evidence was that he was the only man
with whom, on some occasions, she did not use any

contraceptive devices at all, that is she swore

positively that on some occasions when having

intercourse with the appellant she did not use any

contraceptive devices at all.

McHUGH J:	I am sorry, I did not grasp that.
MR JERRARD:	May I take you then to - - -

McHUGH J: The trial judge made no finding as to that, did

he?

MR JERRARD:  Your Honour, he certainly made no finding

adverse to her about that. May I take you to

page 2 of our longer outline. That sets out what

we submit are the facts upon which any inferences,

if they must be rationally deductible inferences,

must be drawn. At (b) on page 2, at page 36 of the

record, which is her answers to specific questions,

she swore in answer numbered ll(b) that:

G(2) 22 27/6/94

on some occasions no contraceptive method was

used.

after mid 1986 when having sexual intercourse with

the appellant. Now, he is the only male about whom

she made that statement and, in our submission,

that fact, unchallenged by any cross-examination at

all and not contradicted by any finding of

His Honour's, with respect, does not entitle you to

approach the case on the basis that, plainly,

contraceptive devices failed.

McHUGH J: Except the judge says she was a woman who was prepared to swear to anything.

MR JERRARD: That is, with respect, also perhaps a finding

that was a little unfair to her. There were two

matters upon which her credibility was attacked.

One was that she had not told the Federal

Commissioner for Taxation of the nature of her
employment and the income that she garnered

thereby. The second was the fact that when she had

brought an application in 1990, as I recall, in a

magistrates court she had falsely sworn that she

fitted the criterion necessary to succeed under

that statute, namely that she was not at the

relevant time working as a prostitute.

Now, there was no attack at all upon her

creditworthiness in respect of her usage of
contraceptive devices with other clients and the
evidence disclosed plainly that the appellant
believed that she did take contraceptive
precautions with other clients and that she was
extremely concerned about the possibility of

infection. So, in fact, the appellant's own
position in the witness box appeared to be that he

accepted, without question, that she was careful to

avoid pregnancy by using contraceptive devices with

other men and the only male who was identified by

the evidence with whom none were used was him.	He
belief at all that there were any other men with
did not suggest in the witness box that he had any

whom she had had sexual intercourse in which

contraceptive devices were not used. And he did

not suggest her evidence was false when she swore -

or he did not suggest to any belief in the falsity

of her evidence - - -

McHUGH J: His belief is irrelevant.

MR JERRARD:  He was a man who had a relationship with her.

He might be assumed to have some knowledge of her

practices. He swore, for example, that - - -

McHUGH J: For example, when the solicitor appearing for the

wife put it to him that the condom one of the

G(2) 23 27/6/94

clients used had burst, he had no knowledge of it

did he? I

MR JERRARD:  He swore he could not recall her telling him

that. That was as far as that evidence went. But

his evidence also remarked that he remembered her

taking those pills. He described seeing her have pills. And his interest in contraception went so

far as to notice that she was apparently taking

pills.	He observed that she did say to him that
she went regularly for checks.	Now, none of that

was attacked in any way. And, in my submission,

that being the case, this matter ought to fall for

judgment upon the basis that the unchallenged

evidence was that he was the only man with whom she

had sexual intercourse in which no contraceptive

devices were used.

McHUGH J:  I do not think you can say it was unchallenged.

When you put somebody's credit in issue in the way her credit was put in issue in this particular case, counsel does not have to put to the witness

about everything that she said, that she is telling

lies.

MR JERRARD:  Your Honour, if I could take that up with you a

little further. In my submission, if the appellant

wished to challenge her sworn testimony and her

responses to specific questions as to the usage of
contraceptive devices with other males and non-

usage with him on occasions, he had only to ask.

McHUGH J:  He would not have the faintest clue. He

obviously had a general impression as to what she

did and one would imagine there would be a high

probability that she had protected sex with all her

clients. She would be crazy if she did not in this

AIDS era. But it might also be said that you would

think the appellant would also be very careful,

just as she was skeptical of him, after all he had

had sex with prostitutes in South-East Asia and

they both went off to have an AIDS test, I am sure

that you can draw much from her statements that she

had protected sex with other people.	One would
accept that was probably the case.	But the real

question, it seems to me, on this part of the case

is what you can draw from the proposition that

there was a real possibility that he had

unprotected sex with her during the relevant
period and is that sufficient to make a prima facie

case against him.

MR JERRARD: 

Your Honour, in my submission, if you do accept

your first conclusion as being justifiable, namely
that she probably did, as she swore, have protected

sexual intercourse with a variety of means with all other males, then you are left with one male who is

24   27/6/94

the only male known to have had intercourse in

which there was no contraception.

McHUGH J: Except that has to be weighed with the

possibility that he had - because he may have had
protected sex as well, but then there is the
possibility that a condom broke or whatever happens

to them.

MR JERRARD:  We put our case this way that there being no

evidence at all of any contraceptive failure using

a condom, and Your Honour will observe that she

actually described the usage of the condom not as a

contraceptive device but as a device against the

possibility of - - -

McHUGH J: Sexually transmitted diseases.

MR JERRARD: 

- - - diseases. This appears at page 36 of the

record in her answers to specific questions. She
described that as a usage "to prevent transmission
of disease" rather than as a usage to prevent

pregnancy.  The position is that one is really

assuming, in my submission, a failure in

combination of a number of devices, some used

explicitly to prevent conception and one, the

condom, used to prevent transmission of disease,

which is also a device used to prevent conception,

and it is not sufficient, with respect, to assume

that a condom failed.  One must also make the

assumption that, at the same time, two other

contraceptive devices also failed.  Now that, in my

submission, is a huge assumption to make.

The evidence also disclosed that she had a

test in or about October of 1986 which disclosed

that she was free of all infections. It would

appear then that the precaution she was taking

against infection was succeeding. There is no

suggestion she was disclosed to be pregnant in

October, so it would appear that all precautions

being taken against pregnancy were also successful.

That, in my submission, is also a fair inference

from the evidence that as at the date of that

October test, which test he acknowledged in his

evidence as having taken place, that that test demonstrated the successfulness of devices for

preventing infection and preventing pregnancy.

BRENNAN J:  Mr Jerrard, in terms of principle, do you take

your argument this far, do you, that apart

altogether from section 66W and the failure to take the test on the part of the appellant, the evidence discharged the onus of proof which lay upon the

applicant for the relief?

G(2) 25 27/6/94

MR JER.RARD:  Yes, that is the first basis upon which we put

our case.

BRENNAN J: And you have identified the evidence which you

say supports that?

MR JERRARD:	Yes, Your Honour.
BRENNAN J:	Now, if that submission should fail, either for

reasons that have been discussed with you or

because your client's evidence did not satisfy the

submission to make? judge to the requisite extent, have you any further

MR JER.RARD: Yes, Your Honour, that is our alternative

position. That appears at page 3 of the short

summary and it commences at page 16 of the fuller

outline of argument.

McHUGH J:  Can I just get from you what you mean by "just to infer"? Do you use the word "just" in a rational

sense or a policy sense?

MR JER.RARD:  Your Honour, there are t~o arguments, two ways

in \-Thich we put our case, use them as alternatives,

that is the first part of the respondent's case

before this court assumes that the expression

"just" means just and rational or rationally

deduced from all of the circumstances, including

the refusal, coupled with whatever assumptions you

make about the appellant's knowledge of the facts

or·belief as to the facts.

The alternative argument, beginning at

page 16, is that the expression "just" should be

construed to mean a weighing of consequences, and

the most desirable or least undesirable

consequence. I found no other statute in which the

expression "just inference" was used.

BRENNAN J:  It is not surprising, but then one is used to surprises in this Act.

MR JER.RARD: Yes, Your Honour.

DAWSON J:  Mr Jerrard, what you are saying is that this

Court should overturn the finding of the trial judge, which was that there was no prima facie

case.

MR JER.RARD:  Yes, that the facts that the trial judge ought

to have found are those set out in our fuller

outline of argument; that those in fact disclose a prima facie case and that the Full Court correctly

identified that at the foot of page 111 of the

record; that the respondent's evidence did

establish a prima facie case and, in truth, we add

G( 2) 26 27/6/94

to that the appellant's own conduct of his own case

as strengthening that prima facie case.

BRENNAN J:	Now, you have not succeeded in being able to identify any finding made by the trial judge or,
perhaps, by the Full Court, apart from 66W, which
would support the view that on the evidence given,
a prima facie case on a balance of probabilities was made out, have you?
MR JERRARD:	Your Honour, in my submission that does follow

from the passage in the judgment at the foot of

page 111 and the top of page 112 of the record. I

must rely here, of course, upon the passage at the

foot of page 111:

The evidence of the appellant -

who is now the respondent -

raises a sufficient prima facie case against - how refusing to do something or to call evidence,

McHUGH J:  I do not understand that process of reasoning,

though unreasonable, creates a prima facie case.	I
would have thought the one lesson that was learned
from cases like May v O'Sullivan and Jones v Dunkel
was that there has got to be a prima facie case
before anybody is called on to meet the case, and
therefore you do not draw inferences until there is
a prima facie case to be met.

MR JERRARD:  Your Honour, on the first basis on which we put

our case we have no quarrel with that and submit

that the Full Court of the Family Court actually

correctly directed itself, that it expressed its

view very succinctly and we would be on more

comfortable grounds if, for example, there had been

some actual discussion about the evidence relied

upon, but the Full Court wrote that:

The evidence of the appellant raises a

sufficient prima facie case against the

respondent.

DAWSON J:  But you have got to read that with the next

sentence. I think we went through this on the

application for special leave.

MR JERRARD:	Yes, I was not present -
DAWSON J:	I have a sense of deja vu.

That there was a prima facie case is implicit

in the finding that the respondent's refusal

to undergo parentage testing was unreasonable.

G(2) 27 27/6/94

They seem to be rolling the whole thing up

together.

GAUDRON J: That is really, is it not, a criticism of the

trial judge's approach to it. I would have read it

as such, anyway, that if the trial judge had

continued through, he must have found that there

was a prima facie case by reference to the

unreasonable finding.

MR JERRARD:	Our submission is that if one examines the material that appears in the record and the
supplementary record, there was a strong prima
facie case.  We concede that the Full Court could
have put it more favourably to us but they certainly did find that the evidence of the present
respondent raised such a case, we so submit. We
submit that that argument is not destroyed by the
observation that the existence of a prima facie case was implicit in the trial judge's finding that the refusal was an unr~asonable one, and that there after Their Honours in the Full Court correctly
directed themselves by referring to cases, and the very citations referred to make it plain that one
cannot draw an inference of a logical or deductive
kind unless there is already in existence a prima
facie case.

That was made plain at page 574 of McQueen v

Great Western Railway; that was made plain at the

page cited of Tozer Kembley & Millbourne and it ~as

made plain at the ~elevant pages of Jones v Dunkel.

Indeed, Their Honours have correctly directed

themselves, in my submission. I am responding to

Your Honour Justice McHugh here, that if one

examines the cases that were cited at this stage of

the Full Court's judgment, they correctly directed

themselves and, indeed, went to the very pages

which warned that one cannot draw an inference

unless you have cleared the prima facie hurdle.

DEANE J:  Mr Jarrard, was any question at all asked of your

client questioning or challenging her submission
that she had invariably used the three forms of

contraception with her clients?

MR JERRARD:	No, Your Honour.
DEANE J:	So that was left completely unchallenged in

evidence?

MR JERRARD:  Yes, Your Honour. Your Honour, we advert to

that in our statement of facts in our fuller

outline.

DEANE J: Can I ask you another questi~n. I notice the

trial judge, in effect, said that a 51 per cent

28   27/6/94

probability was not good enough in proceedings of

this character by reason of reference to cases such

as Briginshaw v Briginshaw. Have you anything to

say in relation to that?

MR JERRARD:	If the correct construction of the section is that one looks for a prima facie case and a
rationally deductive inference in a Jones v Dunkel situation, then we do not quarrel with that
observation.

DEANE J: What, you accept that in what are simply

proceedings for maintenance, it is not good enough

to prove on a 51 per cent basis that the respondent

is the father and liable to contribute?

MR JERRARD:	Your Honour, we would not submit that the finding should be made if there were 51 chances in
a 100 that that person was the father.
DEANE J:	We are not talking about a finding of a father in

a declaratory sense; we are talking about whether

somebody should contribute to maintenance and, as I

say, you accept 51 per cent is not good enough for

that.

MR JERRARD:  Yes, Your Honour, if on the view taken by the

trial judge - which, we submit, is that the section

requires a just inference to be a reasonable

inference, a Jones v Dunkel inference, if I can

call it that. Our alternative argument is that

that is not the proper construction - - -

DEANE J:  So if there were two respondents and one was 51

per cent, the other was 49 per cent, the child

stays without any support or maintenance at all.

MR JERRARD:  If one could come to a situation in which one

could find those percentage factors, then yes, we

accept that.

GAUDRON J:  Is there not some difficulty when talking about

percentage factors in the face of subsection (5),

particularly if you get a prima facie case?

MR JERRARD:  Our submission is that there was a prima facie

case.

GAUDRON J:  Why would you then, in the face of

subsection (5), worry about percentages as the

trial judge seemed to do?

MR JERRARD:  Your Honour, we had not advocated that

approach. I was answering Justice Deane's

question, that if such a case could be

demonstrated - - -

G(2) 29 27/6/94

DEANE J:  I was really suggesting you might disown the

approach the trial judge took to onus of proof.

MR JERRARD: Perhaps I have done an injustice to my client's

position, then, Your Honour.	May I take you to our
alternative argument.

GAUDRON J: Indeed. Perhaps I can just add to that. I

would have thought that, clearly, the intended

effect - one intended effect, at least - of

subsection (5) was to get rid of notions such as

those in Briginshaw v Briginshaw, whether it be at

the prima facie level or otherwise.

MR JERRARD:  Yes, Your Honour. This is probably a

convenient time to go to our second argument, then,

commencing at page 16 of the fuller outline.

Your Honours, it assists in following our

submissions here if we can hand to you the

legislation which was passed in 1987, Act No 181 of

1987, which in one hit, as it were, amended a

substantial number of sections of the Family Law

Act.

The point of taking Your Honours to these,

which were considerable amendments, is that at one

and the same time the legislature introduced not
only section 66W but provisions into the Family Law

Act that reversect,..previously taken judicial

attitudes to the ordering of maintenance and

required, specifically, that the duty to pay

maintenance and that obligation fell upon parents

rather than the Commonwealth of Australia. The

sections that most clearly identifiedc this, if I

may take you to them, is section 66B - this is at

the page numbered 3542. Your Honours will see that

the section made a declaration:

The parents of a child have, subject to

this Division, the primary duty to maintain

the child.

Now, if I may take Your Honours to 66B(2)(c)(ii)

you will see that this duty:

(c) is not affected by:

. . . . .

(ii) any entitlement of the child or another

person to an income tested pension, allowance

or benefit.

What had previously occurred when maintenance was squght was that a calculation would be made of the

extent of any social security that the applicant

party might be receiving. A calculation was made

of the financial needs of the child and the

presumed social security was, as it were, taken

· 30 27/6/94

away from the needs of the child and it was the

resulting sum that the non-custodial parent was

ordered to pay.

Now, a legislative reversal of that occurred

in Act No 181 of 1987. In a number of its

sections, the legislature declared that the duty of
the parent to maintain the child was the primary
duty and that the maintenance to be paid was to be

calculated without reference to the possibility of

any social security benefit that might be received.

In other words, the primary duty of the parent was

to pay whatever were the calculated needs of the

child. Section 66B declared the duty and declared

that it was not affected by a possibility of an

entitlement to a pension. In section 66C the

legislature declared that:

in relation to the maintenance of a child, the

court shall:

(a) consider the financial support necessary

for the maintenance of the child; and

(b) determine the financial contribution -

Section 66D set out the matters to be taken into

account when considering the financial support

necessary as required by section 66C(a), and it

provided, in 66D(3)(b)(ii) that in making that

calculation of the financial support necessary the

court would disregard:

any entitlement of the child or any other

person to an income tested pension, allowance

or benefit.

Equally, in 66E, which considered the criteria necessary for the second lot of matters in 66C(b), namely the financial contribution, once again in 66E(4)(a) the courts are instructed to disregard:

any entitlement of the child, or the person

who has the custody of the child, to an income

tested pension, allowance or benefit.

So the focus was moved squarely by the legislature

on to the parents of children. The court was to

consider the needs of the child, determine the

contribution and to do that without reference to

any possibility of social security.

At the same time, section 66W was introduced

in its present form. The notes accompanying the

bill merely remark that:

G(2) 31 27/6/94

Division 8 of the new Part VII providing for

evidence as to parentage re-enacts in amended

form sections 99 and 99A of the Act.

That really does not take the matter any further.

You will observe that all parts of Division 7,

which dealt with children, were reintroduced by

this one Act. It made specific provision for the

welfare of children to be the paramount

consideration. It made specific provision for the

maintenance of children and proceeded on into

parts, in which part W appears, to make specific
provision for finding who was the parent of a

child. In the preceding part in Division 7 it made

specific provision for presumptions of parentage,

for example, a presumption of parentage in

section 66Q which arises from cohabitation:

66Q. A child born to a woman who, for a

period of at least 6 months ending not more

than 10 months before the birth, cohabited

with a man to whom she was not married shall

be presumed to be a child of that man. I understand that there was not - .

BRENNAN J:  Does the Act say what cohabitation means?

4

MR JERRARD:	I cannot assist you th~re just at the moment, Your Honour. r·will have that looked for. That
appears not to have been relied on before the trial

• ju~ge, nor in the Full Court of Appeal in respect of this case. I will attempt to find out, to

resolve a dilemma I have observed, which is a

footnote in one of the publications under this Act

to the effect that a subsection of Act No 181

declared that these provisions in 66Q did not apply

to children born prior to the coming into effect of

that Act. However, as you will see, section 66 of

Act No 181 actually declares to the contrary,

namely that - this is at page 3566:

Sections .•••. 66P to 66T (inclusive) •.... apply

in relation to children whether they were born before, or are born after, the commencement of

this Act.

That is Act No 181. Act No 181 came into force on

1 April 1988. It was introduced into the

parliament in October 1987. I have not been able

to resolve that contradiction between the footnote

and the Act myself as yet but, in any event,

Your Honours, sweeping new provisions were

introduced. They put the responsibility for

maintenance, in particular, ·upon the parent.	The
Act made provisions for presumptions as to

32   27/6/94

parenthood. It made provisions as to finding out
parenthood.

In our submission, in those circumstances, to take up a point raised by Your Honour the presiding

Judge, where you have a case in which there is a person identified by the evidence as a potential

father, who is ordered to submit to one of these

tests and who does not, in defiance of the court

order, in our submission, firstly, it is just that

this child know his father. It is just to the

community that fathers be identified and be

responsible for paying maintenance. It is just

that women be able to demonstrate that nominated

men are the fathers of their children. It is just

that the appellant comply with an order of a court,

which order he did not oppose, nor did he appeal

it.

We submit that it is just to adopt a judicial

policy in support of insistence upon fatherhood
being established by available, certain, non-

intrusive medical procedures, such as that ordered

and that accordingly it is just to draw the

inference of parenthood with the consequent

responsibility for maintenance against persons such

as the appellant who withhold those means so
ordered of establishing parenthood, or its absence,

where parenthood cannot sufficiently be established

by any other means or evidence. And that is our

alternative submission to Your Honours. If I take

you to page - - -

BRENNAN J: Put that to the test. Say, for example, by

obstetrical evidence it was able to be established

that the most likely date for conception was the
13th of the month, say, and from some records that
were kept it was possible to identify A, Band C as

three clients of that day, but not the appellant,

and 66W orders were made against A, Band C.	What
then if they did not comply?

MR JERRARD:  I concede that one can construct these. In my

submission it is just to order that all of them pay

maintenance, if it comes to that. It is, in my

submission, a greater justice than the injustice

done in allowing the object of the Act to be

frustrated by people simply refusing to comply with

orders, when those orders have been made and the
order made has not been overturned on appeal, and
the making of the order was not challenged, and
when the compliance with the order would establish

who was not and who was the father of the child.

Now, I acknowledge that as against the male

who, in actuality, was not the parent, there may be

an injustice. But a greater injustice, in our

33   27/6/94

submission, is done if the policy of the

legislation is frustrated by, for example,

concerted decisions between a number of potential

fathers, all of whom know each other and all of

whom say, well, we will all just refuse to comply.

They cannot prove which of us it is. They will

never say it is all of us, so we are all safe,
provided we all stick together and nobody takes

tests, we are all in the clear.

BRENNAN J: Well, what is the answer to that?

MR JERRARD:  To come to the conclusion that it is just to

draw the inference against each of them, each one

who refuses, that he should pay maintenance as a

parent.

BRENNAN J: But how do you get to that point?

MR JERRARD:  By, in respect of each occasion, when the

evidence establishes that each person is a

potential father of the child, against whom an

order has been made and who has refused - - -

BRENNAN J:  Do you not have to have a finding before you

make an order that the respondent is the father:

MR JERRARD:  I am assuming that.there was material presented

·on the initial application for the making of the

order that showed that this male was a potential

father. The order was made, not complied with,

"

evidence was led at the hearing that - - -

BRENNAN J: Let us say that there is a gang rape, the girl

is pregnant, and they all refuse to take the test.

MR JERRARD:  Yes. It is my submission that against each one

of them, seriatim, if applications are borne and

each one refuses, that it is just to say, you shall

now contribute - - -

BRENNAN J:  But can you say that without making a finding

that you are the father?

MR JERRARD:  As I understand the legislation, it is

necessary to make a finding, yes, that a person is

a parent of the child before the statutory

obligation to pay maintenance falls on the person.

BRENNAN J: You could scarcely make a finding that all five

are the parent of the child, could you?

MR JERRARD: 

In my submission, that achieves the object of

the legislation more than refusing to make the
finding against any one when all have, in concert,
refused to submit. It is a question of justice.

This alternative argument, yvu will appreciate,

27/6/94

assumes that a result which may be obviously

result. inaccurate can still be defended as being a just

BRENNAN J: Let us get clearly the frames of reference.

The argument that is put against you is that the

issue for judicial determination is whether the respondent to an application is the father of a

child. Now, do you accept that at least for the

purposes of your first argument?

MR JERRARD:  On the first bases? Our first argument is,

yes, that we have to establish a prima facie case.

BRENNAN J:	Of the fact that the respondent is the father of the child?
MR JERRARD:	Yes, Your Honour.

BRENNAN J: More likely than not is the father?

MR JERRARD:  Yes.

BRENNAN J: Not simply the most likely of those who could

be?

MR JERRARD:  No, no, that there is a case against that

person prima facie he is the father.

BRENNAN J: Right, we understand that. Now, beyond that point, if that onus is not discharged but it is

proved that he is one of a number who could be the

father, do you then say that provided that person

does not take the test, it is just to make a

finding against him that he is the father.

MR JERRARD:  Yes, Your Honour. Our alternative submission

abandons all requirements of a prima facie case and

says, even if there are 10 potential candidates,
the object of the legislation passed in 1987 was to

place responsibility upon parents to identify

parents, to provide means for doing it, and it is

just, albeit occasionally inaccurate and very

strange when you have a number of men, it is just

to say, this legislation will be thwarted if this

inference is not drawn against you, against this

father, and the next and the other potential father

as well.

BRENNAN J: Can a putative father seeks an order under 66W

against others who may be possible candidates for

paternity and then make a contribution order?

MR JERRARD:  Yes, that may well be the case, Your Honour.

He can join any other party, I am instructed.

Your Honour, essentially our submission that it is just is based upon the argument that the

G(2) 35 27/6/94

legislative policy was very clear and is thwarted

if the inference is not drawn, and that if it is in

truth an injustice against one who is not really

the father, the means exist for that person to

establish he is not the father simply by complying

with the court's order .

BRENNAN J: Yes.

MR JERRARD:  Your Honours, I believe our written submissions

put our two propositions fairly fully and the cases

upon which we rely and why we rely on them.	I
believe you understand our position.	Can I assist
you any further at all?

BRENNAN J: Thank you, Mr Jerrard. Mr Dutney.

MR DUTNEY:  Your Honours, just one point by way of reply and

that is in response to our learned friend's last

submission. If the policy of the legislation is to

consider the welfare of the child, then in our

submission it cannot possibly be in the chi~d's

interest if multiple fathers are found, all of whom

have rights to apply for access and custody and the

other matters that go with fatherhood, simply

• cannot reckon that sort of finding just. It

really, in our submission, reinforce& the view that

the court is required to find, on the evidence, a

rational basis ~pon which paternity is established.

Those are our submissions.

BRENNAN~J:  The Court will consider its decision in this

matter.

AT 3.58 PM THE MATTER WAS ADJOURNED SINE DIE

G(2) 36 27/6/94