G v H

[1993] HCATrans 196

I~

..

.

• '16

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No B19 of 1993

Brisbane

B e t w e e n -

Q

Applicant

and

H

Respondent

Application for special leave

to appeal

BRENNAN ACJ

DAWSON J

TOOHEY J

Copyright in the High Court of Australia 1 2/7/93

TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON FRIDAY, 2 JULY 1993, AT 10.14 AM

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

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

Crowley & Greenhalgh)

MR R.M. GALLOWAY: If it please the Court, I appear on

behalf of the respondent.	(instructed by Walters &
Co)

BRENNAN ACJ: Gentlemen, this case has been listed by the

initials only, in order that if the parties thought

it appropriate it could be retained with that

listing in order to protect the identity of the

child. Have either of the parties any objection to

the manner of listing by the initials only?

MR DUTNEY:	We have got no objection to that, Your Honour.
MR GALLOWAY:	We have none, if it please Your Honour, and would ask that henceforth it be continued under
that listing.

BRENNAN ACJ: Yes, Mr Dutney.

MR DUTNEY:  Thank you, Your Honour. Your Honours, the point

which the applicant seeks to raise in this case by
way of appeal is whether section 66W(5) of the

Family Law Act entitles the Family Court to draw
inferences adverse to a person refusing to take a

DNA test despite the evidence in the nature of a

judgment by default, as it were, as opposed to

drawing inferences int~" conventional sense; that

is, inferences reasonat_ available on the

evidence.

The facts in the case were simple, although it

is an unusual case. The principal point which

concerned His Honour at first instance was the very

large number of potential possible fathers of the

child. His Honour dealt with the question, both of

the refusal to take the test and of the inferences
to be drawn from it, in the judgment at first

instance at page 27 of the application book, where

His Honour said that:

The established facts are such, that I find it

impossible to infer that the true reason for

the respondent's refusal was a belief on his

part that he is the father or at least that

there is such a high risk of that conclusion

being reached from the tests that he prefers

to stifle that evidence and submit to the

provisions of s.66W(5).

And then he concluded, at the bottom of page 28 of the application book, by saying:

2   2/7/93

Therefore, after examining the totality of the

available evidence, especially that evidence

in relatio~ to the number of other persons who

had sexual intercourse with the applicant at

the possible time of conception, I am not
satisfied, on the balance of probabilities,

that the respondent is the father of the

child. I make this decision notwithstanding

what I regard as the unreasonable refusal, on

the part of the respondent, to undergo
parentage testing, and his admission that
sexual intercourse would have taken place at
some time during the possible relevant period
of conception. The circumstances of the case

are such, that in my view the weight to be

attached to the refusal to submit to testing

is insufficient even when considered in the

light of the admitted acts of sexual
intercourse between the respondent and the

applicant at the possible time of conception,

to establish, on the balance of probabilities

that the respondent is indeed the father of

the child.

TOOHEY J: Could I just ask you this, Mr Dutney, I notice

that in that passage .that you read to us, and in

some other passages from other judgments, the

expression "unreasonable refusal" appears: does

that appear anywhere in the statute, or does that

simply reflect the approach that the Family Court

has taken to the relevant section?

MR DUTNEY:  It is the latter, Your Honour. Your Honour will

find the provisions of the statute at page 20 of
the application book in the judgment, where
subsection (5) is set out in full. It simply

provides that:

Where a person who had attained 18 years of

age contravenes an order under this section,

the person is not liable to any penalty in

relation to the contravention, but the court

may draw such inferences as appear just in the

circumstances.

And the concept of "reasonable" refusal or

"unreasonable" refusal seems to be a gloss put on

it by the earlier single judge decisions.

TOOHEY J:  Do you have any submission to make about the use

of that expression in relation to the statutory

provision?

MR DUTNEY:  The use of the - - -

2/7/93

TOOHEY J:  Of the notion of unreasonableness, or

reasonableness, as in some way bearing upon the

manner in which the court may draw inferences?

MR DUTNEY:	Your Honour, that seems to be what the Full Court placed most reliance on, if one goes to
their judgment.  Our submission on it is simply
this: that the question of whether the refusal was
reasonable or unreasonable is a circumstance which
the court takes into account in determining whether to draw any inference at all from the failure to
take the test.  So that if, for example, there were
a religious reason or some medical reason why the
test was not taken, which the court considered to be reasonable, then it would be a proper case in
which no inference of any sort would be drawn
against the person refusing to take the test in those circumstances.

But the question here, we submit, is somewhat

different to that. The question is whether, if the

test is taken or refused to be taken for some other reason, some reason which the Court finds not to be

a reasonable reason for refusing the test, whether

the court can, in effect, then give a judgment by

default, which is a provision which applies in some

of the American jurisdictions where, if a test is

not taken, there is an express statutory provision

that judgment can be given in default on the

question, or that the court can find, despite the

weight of the evidence - and various other

expressions are used in the various American

statutes.

The Family Law Act here provides no such

penalty, as it were, for failing to take the test. applicable for failing to take the test, but leaves

open to the court the opportunity to draw

inferences and, in our submission, that can only be

the opportunity to draw inferences which are

reasonably open, having regard to the other

evidence which the court has heard.

In other words, we submit that it still

requires, in the absence of a test, a judicial

determination of the case, so that the evidence is

weighed and a determination made whether on the
balance of probabilities the person refusing is, or
is not, the father of the child. And, in a case,

with the unusual facts here, we have a situation

where the Full Court's approach has been simply

this: that because he failed to take the test

without a reasonable excuse and because, had he

taken the test, the matter would have effectively

been conclusively decided one way or the other,

therefore, it was just in the circumstances because

4   2/7/93

he withheld the evidence that he should be selected

from among as many as 270 other possible fathers as

the father in fact, as simply a penalty for not

taking the test.

BRENNAN ACJ:	Your proposition is that, consistently with the statute, the non-taking of the test is merely a
fact which, in all the circumstances of the case,
may or may not be material to the drawing of any
adverse interest?
MR DUTNEY:	Yes, Your Honour, and there is a further

question which arises which is, we submit, of some

importance as well. Your Honours will recall that

the judge at first instance, having looked at some

authorities and, in particular, a case he cites of

Re C, a judgment of Justice Fogarty at first

instance, that is was not possible to draw an

inference of the type which the Full Court drew,

that is, you could not draw an inference which was
the ultimate fact which the court was called upon
to determine, but only inferences intermediate to

that such as, for example, as to credibility or as

to whether, in fact, he was a potential father or

not, when he was denying it. Facts of that sort

could be corroborated or inferred from the failure

to take the test. But in this case, what the

Full Court have said is that the just inference to

draw in a case such as this where there is a

refusal unreasonably to take the test, is simply

that this person who refused is the father.

In our submission, that really goes well

beyond what the statute allows and brings it in

line with some other statutes which make that

express provision, which this one does not. This

one confers a discretion on the court as to whether

or not it will draw an inference and as to what

inference it drew, and it is significant that in

material finding of the trial judge which bears	this case the Full Court have not criticized any	upon this issue or, indeed, the approach he took to
the discretion, but have simply said, "In our view
this matter is of such significance that it will
decide the case".

BRENNAN ACJ:  Mr Dutney, there were proceedings in the

magistrates court, at one stage; do those

proceedings raise any estoppel or res judicata?

MR DUTNEY:	I do not think so, Your Honour.
BRENNAN ACJ:	Why not?

MR DUTNEY: It is different legislation for a start.

2/7/93

BRENNAN ACJ: Well, be it so; was it the same issue between

the same parties?

MR DUTNEY: There was a statutory prohibition in the

magistrates court proceedings in the finding of

paternity where there were other potential - or

where the applicant was a common prostitute the
statute did not permit a finding to be made in

those circumstances. So, because of that

particular statutory provision I would hesitate to

argue that there is any estoppel of that sort

against raising the issue under different

legislation in these circumstances.

BRENNAN ACJ:  In other words, it was decided pursuant to a

statutory direction and not as a finding of fact?

MR DUTNEY:  I think that is right, Your Honour. The statute

certainly prohibited the finding that was obtained

or made by the Full Court in this case.

BRENNAN ACJ:	I see.
MR DUTNEY:	I am reminded by my junior that she failed also

for lack of corroboration in the magistrates court, but there was a prohibition in the statute as well.

BRENNAN ACJ: Well, that may be so, but if the issue in the

magistrates court was paternity or no, and if she

failed on the facts in the magistrates court, does

that not conclude that issue, subject to the

statutory provision that you have just mentioned?

MR DUTNEY:  Your Honour, I am inclined to say no, without

really having examined that point in any detail. I

have taken the view, in looking at it, that because

of the statutory provisions under the Queensland

Act involved in the magistrates court, that there

was no such res judicata or issue estoppel raised here. Indeed, the Full Court of the Family Court

paternity was not a matter binding for all time	seem to have taken the view that the finding of
between the parties either, in any case. They seem
to leave open the prospect of a reopening at any
time. It does seem that certainly that is the view
those courts have taken.

BRENNAN ACJ: Well, the problem is that whatever view the

Full Court of the Family Court may have taken, we do not wish to grant special leave in a case that

goes off on some point that is conclusive, but not

considered below.

MR DUTNEY:  As I say, the approach I have taken is that it

is not a point which has been taken below, but

because of the particular - I am reminded by my

friend of something that I was not aware of - that,

6   2/7/93

in fact, an application was made to Justice Bulley

specifically that there was an issue estoppal, and

that application was rejected by Mr Justice Bulley

in earlier proceedings in the Family Court.	So the
matter was raised, and there has been a

determination by Justice Bulley that there is no

issue estoppel.

BRENNAN ACJ:	I see.
MR DUTNEY:	Your Honours, the only other matters I was going

to direct your attention to were to take you to

some short passages from the judgment of the

Full Court to demonstrate that, in fact, their

determination was one without regard to the
evidence beyond the evidence of the refusal to take

the test.

TOOHEY J: 

Can I just ask you this before you.take us to

that part of the judgment: if, from the evidence
of the mother, and by that I include any supporting

evidence, there was a prima facie case of

paternity, would the refusal to take the test

justify the court in drawing inferences which it

might have been reluctant to draw in the absence of

the refusal to take the test?

MR DUTNEY: Yes, it could. It could enable - - -

TOOHEY J:  I do not know whether I am making myself clear,

but there is a distinction, I think, between using
the refusal to take the test in order to make up
inadequacies in the case presented on behalf of
in this case, the present respondent, and the use
of the failure to take the test, as it were, to

strengthen inferences that might in any event have

been drawn.

MR DUTNEY:  Your Honour, we would not argue with the

proposition that the failure to take the test would

allow the drawing of proper inferences to

strengthen evidence which was there, but that is
not this case, and indeed there is a finding at

page 54, by the Full Court, the last two lines of

page 54 of the application book, where it is said:

The evidence of the appellant raises a

sufficient prima facie case against the

respondent.

But if Your Honours read on to the next sentence,

it seems that that prima facie case, according to

the Full Court, is to be implied from the finding
that the refusal to undergo parentage testing was

unreasonable, because otherwise the evidence which

the trial judge accepted, in the absence of such an
implication, would not have permitted the finding

7   2/7/93

of a prima facie case because His Honour's reasons,

both the passages that I have referred you to and

earlier at page 8 of the application book, are such

that he did not find that there was evidence upon

which he could conclude, with or without any

inference available under section 66W, that the

present applicant was the father of the child.

They seem to have first of all implied a prima

facie case from the fact that the refusal was

unreasonable, and then gone on that, because the
evidence of the test was not made available, in the

next sentence, therefore that prima facie case was

not answered, therefore, after looking at some

authorities on the next page, the just inference

was that he was, in fact, the father. And that

seems to be the process of reasoning with which the

other two members of the court agreed, which really

leaves out of account the questions of evidence at
all, because there is no criticism of the judge's

findings on the evidence, or of the way he applied

that evidence, only of the fact that he did not

draw an inference of paternity by reason only of

the failure to take the test. And the effect of
the judgment, if it stands, in our submission, is

to make the failure to take the test an event of

default which will conclude the case against the

party failing to take the test.

So, it is a case of either take the test, or

there will be no judicial determination; there will

simply be a finding against you as a punishment for

failing to take the test. In our submission, that

is an important point, which really ought to be put

right, and for those reasons special leave ought to

be granted.

As I say, there is the second, somewhat

lesser, point as to the extent to which inferences

can be drawn. This is the only case that we are

aware of where an inference of this type has been

drawn. The other cases, the judges have used the

power to draw inferences for the purpose of

determining the sorts of things Your Honour

Justice Toohey was suggesting earlier, rather than

determining the actual question before the court by

inference. The question also arises in this case,

whether that·is a permissible use of the right to

draw inferences under the section. So that, in our

submission, really both points are important, but

particularly the first point. Those are our

submissions, Your Honour.

BRENNAN ACJ: Yes, thank you. Yes, Mr Galloway.

MR GALLOWAY: If it please the Court, I have some

submissions to hand to the Court.

2/7/93

BRENNAN ACJ:	Thank you.
MR GALLOWAY:	These are drawn, as the Court can appreciate, responsively to the affidavit.
BRENNAN ACJ:	Mr Galloway, taking your first page, the last

paragraph on that page, when Justice Strauss said:

the just inference to be drawn from refusal to

undergo parentage testing must take into

account the probative quality of the

evidence -

now, assuming the probative quality of the evidence
is very high indeed, what does that have to say

about the inference to be drawn from the refusal in

this case?

MR GALLOWAY:  Your Honour, it was not the only evidence.

There was what His Honour the trial judge found to be the unreasonable failure to take the test,

contrasting that with, as my learned friend

Mr Dutney has already indicated, reasonable

refusal.

BRENNAN ACJ: Well, an "unreasonable failure" to take a test

which would be conclusive.

MR GALLOWAY: Absolutely conclusive of the issue, as far as

medical science can make it.

BRENNAN ACJ: Yes.

MR GALLOWAY: But, His Honour the trial judge had before

him, as did members of the Full Court, the fact of

admitted acts of intercourse at the relevant time;

not one, but a number, and those were found to be during the relevant period of conception, set out at page 4 of the record; that is, during part of

the first week of November of 1986 -

BRENNAN ACJ:  We can appreciate this, but you are not dealing with my question. My question is in

relation to what Justice Strauss said as to the way

in which an inference should be dealt with; an

inference from an unreasonable refusal to take the

test. Now, is Justice Strauss saying that if you

have got an unreasonable refusal to take a test

which could be conclusive, that some fact adverse

to the putative father can be drawn from that fact?

MR GALLOWAY:  We do not contend that he is saying that in

this particular case, because there are other facts

which, when added to the unreasonable refusal and

to the knowledge of the applicant here of the
likely outcome of such a test, all of those facts
together compel, we respectfully submit, a finding

9   2/7/93

that it is more probable than not that he is the

father.

This applicant stood uniquely in relationship to the respondent.	He was in a relationship with
her.	He was not a client. There were the admitted

acts of intercourse. There was his knowledge that

the test would be conclusive and there was

conception at the relevant period. Those facts, in

our submission, coupled with the inference that can

rightly be drawn, leads Justice Strauss to a proper

conclusion, that is, that he ought to find that it

is probable that the applicant here is the father.

It is not as if there were no other evidence.

It is not as if the test were ordered against a

stranger to this lady. It is a fact that

Justice Bell ordered that a test be taken, without

the protest or objection of the applicant. He did

not on that occasion take the opportunity to say to

the court that that would not be fair because he

was being singled out.	He neither opposed, nor
consented to the making of such an order.	He has

then ignored it, and determined that he should not

do so on grounds that His Honour the trial judge

found were untenable and unreasonable. And,

indeed, the more my learned friend may say that

there were other possible fathers, the less

reasonable, therefore, became his refusal to

undergo the test.

TOOHEY J: Well, when you put it that way, you are really

using the refusal, as of itself, sufficient to

warrant a finding of paternity.

MR GALLOWAY:  We would not wish to be heard to say that, if

it please Your Honour.

TOOHEY J: That is what is sounded like.

MR GALLOWAY: In certain circumstances, it is a very

significant piece of evidence and, indeed,

historically paternity has always been difficult to

establish. In circumstances where now the means of absolute proof are at hand and, indeed, at the hand of the applicant, and he refuses to extend that

hand, then a court is fortified against a

background of other evidence, in drawing the

necessary inference and finding him to be the

father.

BRENNAN ACJ:  I can understand how it might act more readily

on the other evidence and draw an inference from

the other evidence, but I am at a loss to

understand how failure to take the test itself

provides a foundation for the drawing of an
inference, especially in the light of the reasons

10   2/7/93

for the failure found by the trial judge at

page 20. In other words that is the reason why he

did not take it, and even if one looks at it from

the point of view, as one might in some cases, that

there is a refusal to take a test indicative of a

consciousness of guilt, to use the criminal law

term, one can scarcely say that that applies in a

case like this, where there is a consciousness of

inability to say whether one is the father or not.

MR GALLOWAY:  Then we would say, so much greater is the need

to take the test to determine the issue.

BRENNAN ACJ: That may well be right -

MR GALLOWAY:	So little is the risk.
BRENNAN ACJ:	- - - but why does one draw an inference from

a failure when the reasons for it are as stated at

page 20?

MR GALLOWAY:  Because one must. It is a matter of policy to

determine the issue of paternity where the proof

lies in the hand of the respondent, as he was

below.

BRENNAN ACJ: Well, is that not an important question for

determination?

MR GALLOWAY:  It is an important question which was, in our

respectful submission, conclusively determined

without sufficient doubt in the court below.

DAWSON J: What did Mr Justice Strauss do? Did he decide

the case on the basis of the prima facie case,
raised by the evidence of the appellant, or did he

decide it on the basis of an inference?

MR GALLOWAY:  He determined the case, we would submit, on

the fact that there had been a relationship; there

had been acts of sexual intercourse at the period

of conception. These were, by this time,

uncontested facts. There was, as well, the refusal

to take the test.

DAWSON J: Well, once you have got a prima facie case and no

evidence - well, there was evidence from the

respondent - - -

MR GALLOWAY:  There was some evidence below from the

respondent, yes, there was.	Then His Honour felt
fortified - - -

DAWSON J: But that was not enough to dispel the prima facie

case, presumably.

11   2/7/93

TOOHEY J: That is the difficulty, is it not? If you take

that sentence at the foot of page 54, on its own

and in isolation, then that strengthens your

submission, Mr Galloway, very considerably, when

His Honour says:

the evidence of the appellant raises a

sufficient prima facie case against the

respondent.

MR GALLOWAY:  Yes.

TOOHEY J: But the difficulty lies in what follows, when

His Honour says:

That there was a prima facie case is implicit

in the finding that the respondent's refusal

to undergo parentage testing was unreasonable.

MR GALLOWAY:  Yes. We would not ask this Court to

read -

DAWSON J: What does that mean, that last sentence?

MR GALLOWAY:  Indeed, one must ask.

DAWSON J: Well, I am asking.

MR GALLOWAY:  I am about to answer, I hope, Your Honour. It

does not mean that the prima facie case, identified

in the first of those sentences, is only to be

found because it is implicit in a finding of

refusal. That simply is not in accordance with the

facts.

DAWSON J: Well, I read that sentence as saying, "Well,

because there is a prima facie case raised against

him, on the evidence of the appellant, it is

unreasonable for him not to undergo a test and

provide the answer, if he is asserting it enough".

MR GALLOWAY:  That is the reading we contend for. Were it

otherwise, His Honour would have reasoned the other

way. He would have put the second sentence first

and said, "Because there has been a refusal to

undergo the testing, that fact is sufficient to

support my finding that there is a prima facie

case". His Honour does not reason that way; rather

he reasons in the way for which I have earlier

contended. That being so, it seems a simple matter

of adding together the evidence that was available

- the facts of a prima facie case being the

relationship; the intercourse at the relevant time;
his knowledge of the test; his refusal to take the

test - combined, His Honour felt that in the

circumstances it was appropriate that he should be

held to be the father.

12   2/7/93

TOOHEY J: 

You see, if you go to the foot of page 56 and the

top of page 57, you get that same blend, as it
were, of sufficiency derived from the respondent's

evidence, and the extent to which the inference

really carries the respondent across the barrier.

MR GALLOWAY:  Yes. He does not - - -

TOOHEY J: It is not clear.

MR GALLOWAY:	He does not depend his judgment upon a sole thing; that is, the failure to take the test. It
depends - - -

TOOHEY J: Well, that is part of the difficulty in deciding

whether that is, in fact, the way in which

His Honour approached the case.

MR GALLOWAY: Well, it was an important aspect of it.

His Honour has devoted much of his judgment to the test and the results that can be drawn from it and upon what should be made of the failure, but that

is not all, for below, and as my learned friend

Mr Dutney has pointed out, there were no

interferences with the facts found below. There
were sufficient other facts to give rise to a prima

facie case, which he was then called upon, we

submit, to rebut.

BRENNAN ACJ: 

Am I right in thinking, Mr Galloway, that you

do not contend for an operation of section 66W(5),
which would entitle a court to draw an inference of

paternity merely from an unreasonable failure to

take a test?

MR GALLOWAY:  No, Your Honour. That is complained of in the

affidavit, and rather differently in my friend's

submissions, as being enough to amount to a deeming

provision or, as it were, a default judgment.	No,
we do not contend for that.

BRENNAN ACJ:  So the question then simply is whether or not

Mr Justice Strauss, in the passage to which we have

been directed, 54 to 55, was embracing the
proposition which you do not embrace, or whether he

was simply saying that on the evidence other than

the failure to take the parentage test, there was a
prima facie case, and the failure to take the
parentage test merely leaves the matter as it was

before.

MR GALLOWAY:  We contend he says that, and he has felt that

His Honour the trial judge has erred and the three

judges of the Full Court have substituted their

discretion. Your Honour, in the judgment of Justice Fogarty he agreed substantially with Justice Strauss and added some further comments.

13   2/7/93

He said, at page 37 of the record, the final

paragraph, exactly at the point for which we

contend:

The deliberate decision by the respondent

to refuse to comply with that order without

reasonable excuse and thus to stifle that

evidence, coupled with the other facts

referred to by Strauss J, makes it just to

infer that the respondent should be held to be

the father of the child.

That is the reasoning of the court, in my submission.

BRENNAN ACJ: Well, that is using the failure as one of the

foundations for the inference, is it not?

MR GALLOWAY:  Yes it is. And that is a conventional

approach and, in my submission, there was nothing

unconventional or unusual about the way the

Full Court have dealt with this. In my submission,

therefore, there is nothing in that decision to

justify the grant of special leave. Those are our

submissions, if it please the Court.

BRENNAN ACJ:  We need not trouble you in reply, Mr Dutney.

There will be a grant of special leave in this

case.

AT 10.47 AM THE MATTER WAS ADJOURNED SINE DIE

14 2/7/93