Grant and Reynolds

FAMILY COURT OF AUSTRALIA

GRANT & REYNOLDS

[2007] FamCA 1548

FAMILY LAW – CHILDREN – Parenting testing procedures – Appeal from decision of Queensland Magistrate – Where Queensland Magistrate ordered appellant to submit to DNA testing to determine paternity – Where appellant previously consented to DNA testing – Where appellant since refuses to submit to DNA testing – Where appellant alleges that respondent had sexual intercourse with other men during course of their relationship – Where respondent denies allegations – Where appellant cannot state reasons for information and belief – Appeal dismissed

Family Law Act 1975 (Cth)

APPLICANT/APPELLANT:

Mr Grant

RESPONDENT:

Ms Reynolds

FILE NUMBER:

BRC

10012

2007

DATE DELIVERED:

26 October 2007

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

26 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blonde of Counsel appeared for the Applicant

SOLICITOR FOR THE APPLICANT:

Temple-Smith Partners, Solicitors

SOLICITOR FOR THE RESPONDENT:

Ms Heath, Solicitor of Legal Aid appeared for the Respondent

Orders

IT IS ORDERED:

The Applicant’s Notice of Appeal dated 21 August 2007 is dismissed.
That parentage testing procedures be carried out for the purpose of obtaining information to assist in determining the parentage of the child … born … November 1998.
That the Applicant, MR GRANT present himself for bodily sample collection as arranged by Legal Aid Queensland to enable a bodily sample to be taken for parentage testing procedures.
That the Respondent, MS REYNOLDS present herself and the child, … for bodily sample collection as arranged by Legal Aid Queensland to enable bodily samples to be taken for parentage testing procedures.
That the collection, storage and delivery of bodily samples, the parentage testing procedures, and the report prepared to determine parentage be in accordance with the Family Law Act 1975 and the procedures prescribed in the Family Law Regulations.
a. That the cost of parentage testing procedures be paid at first instance by the Respondent or the Respondent’s nominee.
b.That if the Applicant is found, on the balance of probabilities, to be a parent of the child, all costs of and incidental to the parentage testing procedures be paid by the Applicant to the Respondent or the Respondent’s nominee within thirty (30) days of a written demand for payment.
c.That in the proceedings commenced by the Respondent or the Respondent’s nominee to recover the costs of parentage testing the production of a copy from the laboratory which conducted the parentage testing shall be conclusive evidence of the costs of the parentage testing procedures.
That if the Applicant fails to appear in Court or fails to provide his bodily sample for the parentage testing procedures the Respondent has liberty to apply for final orders in the terms of her application filed in the State Magistrates Court on 21 May 2007.
This matter is adjourned to the Judicial Duty List at 10.00 am on 15 January 2008.

IT IS NOTED that publication of this judgment under the pseudonym Grant & Reynolds is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC10012 of 2007

MR GRANT

Applicant/Appellant

And

MS REYNOLDS

Respondent

REASONS FOR JUDGMENT

This is an appeal from an order of Magistrate Previtera made on … July 2007 in the Magistrates Court at Brisbane.
RECORDED: NOT TRANSCRIBED
Paragraph 1 of those orders was that parentage testing procedures be carried out for the purpose of obtaining information to assist in determining the parentage of the child … born in November 1998. The balance of the orders are facilitating type orders.
The original application which formed the basis of the order made by the Magistrate had been lodged in the State Magistrates Court on 21 May this year and that application is contained on the Magistrates Court file which has been subpoenaed and is placed with the papers in this matter.
The orders sought were:
"Upon the Court being satisfied of the matters set out in s 106A(4) of the Child Support Assessment Act it is declared under s 106A of the Assessment Act that [Ms Reynolds], the mother, is entitled to an administrative assessment of child support payable by [the father].”
And then:
"Pursuant to s 69VA of the Family Law Act it is declared that [Mr Grant] is the father of the child.”
That is the substantive proceeding that is before the Court - namely, a declaration that Mr Grant is the father of the child.
The further order sought is a final order that within 30 days of the date of this order the respondent pay to the applicant or the applicant's nominee the costs of and incidental to these proceedings, including the costs of the parentage testing procedure.
Interim orders sought were to the effect that parentage testing procedures be carried out and the rest of the orders were in accordance with the procedures that are normally followed in such matters.
As this hearing is de nova I do not have to concern myself with the evidence before the Magistrate. I note all the parties were legally represented.
The mother relies on two affidavits, the first of which was sworn on 8 May 2007. In that affidavit she says that she has known the respondent since she was about 12 years of age. She says they had an intimate relationship involving sexual intercourse in January, February and March 1998 when they both lived in Tasmania at the time. She says:
"The child was conceived as a result of my relationship with the respondent. My relationship with the respondent ended soon after I told him I was pregnant.”
She says:
"Before [the child] was born I entered into a relationship with [Mr H]. [Mr H] is shown as father on [the child]'s birth certificate, but I know he is not the father as I was already pregnant when we commenced a sexual relationship.”
She says the child was born on or near his due date, the date of birth of the child as indicated in the application, which is 27 November 1998. I accept that, if the mother's evidence is correct, that the only person with whom she had sexual relationships was the respondent in January, February, March of that year then he is the father.
She says:
"I believe the respondent is the father of the child as I did not have sexual intercourse with any male other than the respondent in the period January to late March 1998.”
She says:
"Since 2003 I have tried to correct the record of birth of the child, but the respondent will not communicate with me.”
In a subsequent affidavit filed on 18 September she responds to an affidavit by the respondent denying various allegations that he makes in his material. She says in par 2.7:
"In relation to paragraphs 10 and 11, I say the respondent made life very difficult for me and I decided to move back to my home town in Queensland. He did not want to be involved in anything to do with the pregnancy and made it clear he wanted me out of his house. His only concern seemed to be that he would have to pay child support.”
The mother has since separated from the relationship with Mr H. There was a child born of that relationship in January 2000. After that separation consent orders were made dated 20 March 2002 that refer to the children of the relationship, the child born in November 1998 and a child F born in January 2000 reside with the mother.
The father filed an affidavit in these proceedings sworn on 16 July and filed on 18 July. In that affidavit he says:
"From about December 1997 until April 1998 [the mother] and I had a relationship involving sexual intercourse. [The mother] continued to live in a house in [D], although she would stay at my home two to three nights each week.”
Subsequently in that affidavit he said when he was informed by the applicant that she was pregnant he said:
"Given my belief that she had engaged in sexual intercourse with other men during our relationship I had doubts that I was the father of the child.”
He makes a series of allegations that the applicant had sexual relationships with other men. The applicant denies such claims.
The respondent does not set out the basis of his belief in many instances, such as:
"I believe that [Mr H] visited [the mother] for two or three days during the course of our relationship.”
The mother says that just was not the fact. He does not say how he came to that belief.
In paragraph 16 of his affidavit he says that in late February 2003 he received a letter from the Legal Aid Commission of Queensland inviting him to participate in DNA testing. At paragraph 17 he says he agreed to that. There is no explanation why if he agreed then what has transpired where he is not agreeable now. In paragraph 20 in June 2005 he was served with an application by the applicant seeking an order for parentage testing. Paragraph 21, he did not oppose the mother's application. However, because she was self-represented her application was not successful. In view of his current attitude it is curious he did not oppose an order being made at that point in time.
I turn to consider the law to be applied in this matter. This is not the final determination for a declaration as to paternity. That is not what is being sought. What is being sought is evidence on that very issue, evidence which in most instances is considered 100 per cent reliable.
It is not clear to me for the purposes of s 106A what the Registrar's determination was. Was it simply on the basis there was no presumption in law that Mr Grant is the father of this child. 106A is appropriate. The application is brought under subdivision (e).
RECORDED: NOT TRANSCRIBED
Subdivision (d) of Div 12, Pt 2 Div 12, deals with presumptions of parentage and it deals with the usual types of presumptions. Where parties are married, their children are deemed to be legitimate and there is no question of that unless it is then challenged and the evidence may be rebutted, as it occasionally is. There are presumptions arising from, for example, the fact that a person has signed an acknowledgement on a birth certificate. Presumptions that arise from the fact the parties cohabitated even if they were not married, even if they have not signed the birth certificate.
However, as I understand the position the applicant does not rely on any presumption in law. She simply says as a matter of plain old hard evidence he is the father. She says:
"Accept my word on it.”
He says:
"I might be the father.”
Where a Court has this conflict when the respondent is saying:
"I'm not admitting I'm the father, but I might have been because we were having sexual relations at that time.”
the only fair way in my view to resolve the matter is to order DNA testing.
The evidence of the applicant herself is sufficient if it is credible. The only way of confirming its credibility is by way of DNA testing. As I say, the relevant subdivision for my consideration to my mind is the evidentiary provisions contained in subdivision (e) dealing with parentage evidence and it says:
"If the parentage of a child is a question in issue in proceedings under this Act- - -”
well it is
"- - -the Court may make an order requiring a parentage testing procedure to be carried out on a person mentioned in sub-s 3 for the purpose of obtaining information to assist in determining the parentage of the child.”
A very fundamental question and any child is entitled, I would have thought, to have that issue resolved by a Court of law. The mother is entitled to have it resolved.
I do not accept the submission made that the mother should have brought proceedings against Mr H. The plain fact of the matter is she says she was pregnant before she met Mr H. It seems to me that that would be a classically futile process if her evidence be accepted and it may be accepted.
In my view s 69W was inserted into the law to remove doubt where there is conflicting evidence, giving the Court the power to force people to submit to DNA testing. There is little prejudice to the respondent in submitting to the test.
RECORDED: NOT TRANSCRIBED
I propose to dismiss the appeal. The orders of Magistrate Previtera can stand.
I will refer briefly in passing to the cases to which I was referred. Duroux v Martin a decision of the Full Court November 1993 reported at 17 FLR. The Court there ruled:
"The Court should be cautious in relying upon inconsistencies in evidence relating to events which occurred a long time ago as a basis upon which to refuse an order for parentage testing. Paternity is fundamentally a medical rather than a legal issue.”
I could not agree more.
I was referred to a decision this year, a single Judge decision of Coleman J in the matter of Tryon v Clutterbuck. I do want to record that Tryon v Clutterbuck is a pseudonym that has been used, so they are not the actual names of the litigants. That decision largely stemmed from the fact that the Magistrate had made an order without giving adequate reasons. There a stranger sought an order for parentage testing against a woman who was married, who was cohabiting with her husband and the husband was named on the birth certificate. There were three presumptions in law, all reinforcing each other and where they disputed that an order for parentage testing should be made, they did not want it and the Magistrate made it. The Judge ordered that the matter go back for a rehearing.
The situation is not comparable to the situation here. Here the mother asserts a fact, the respondent disputes the fact. The Court has got a perfectly valid method of resolving that and that is the scientific medical basis of ordering DNA testing so those orders will stand.
RECORDED: NOT TRANSCRIBED
ORDERS DELIVERED
RECORDED: NOT TRANSCRIBED
15 January 10 am duty list.
RECORDED: NOT TRANSCRIBED

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate

Date: 26 October 2007

[2007] FamCA 1548

26 October 2007

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Costs

Remedies

Jurisdiction