G v H

The applicant, G, sought special leave to appeal to the High Court of Australia from a decision of the Family Court. The dispute concerned the paternity of a child, where the respondent, H, had refused to undergo DNA testing. The parties requested that the case be listed using only initials to protect the child's identity.

The central legal issue before the High Court was whether section 66W(5) of the Family Law Act 1975 (Cth) empowered the Family Court to draw adverse inferences against a person who refused to take a DNA test, even in the absence of other evidence establishing paternity on the balance of probabilities. The applicant argued that the court could draw such inferences, distinct from inferences based on the conventional understanding of available evidence.

The applicant's counsel explained that the term "unreasonable refusal" was not found in the statute itself but reflected the Family Court's approach to interpreting section 66W(5). The first instance judge had found the respondent's refusal to take a DNA test to be unreasonable, particularly given the large number of potential fathers. However, despite this refusal and the respondent's admission of sexual intercourse with the applicant during the relevant period, the judge was not satisfied on the balance of probabilities that the respondent was the father. The judge concluded that the weight to be given to the refusal was insufficient to establish paternity, considering the totality of the evidence, including the existence of other potential fathers.