H, AM v L, L - [2013] SASC 7

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
H, AM v L, L
[2013] SASC 7
Reasons for Decision of The Honourable Justice Nicholson
4 February 2013
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - PARENTAGE - PROOF AND PRESUMPTIONS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - ONUS OF PROOF - GENERAL RULE
The plaintiff has sought, inter alia, a declaration of paternity and alleges that he is the biological son of Mr M, now deceased. Such a declaration is a necessary step to make good his claim to be entitled to inherit the intestate estate of Mr M. The plaintiff claims that he was conceived out of an adulterous relationship between his mother and Mr M. The plaintiff was only informed of this fact, by his mother, following the death of Mr M. The defendant, administrator of Mr M’s intestate estate, denies the plaintiff’s claim. The central issue for determination is whether a declaration of paternity sought by the plaintiff, under s9 of the Family Relationships Act, ought to be made. However, in this respect, two issues of law needed to be addressed: first, whether the plaintiff must prove his case according to the ordinary civil standard, on balance of probabilities, or the criminal standard, beyond reasonable doubt and second, the meaning of the requirement, pursuant to ss9(4) of the Family Relationships Act 1975, (SA) that the claim, must be supported by “credible corroborative evidence” and whether or not on the facts this requirement had been satisfied.
Held – the plaintiff’s application, pursuant to s9 of the Family Relationships Act, is to be determined in accordance with the ordinary civil standard of proof, on a balance of probabilities – the plaintiff’s claim, that a relationship of father and child existed between himself and Mr M, is supported by the necessary credible corroborative evidence - the plaintiff is entitled to the declaration of paternity sought.
Family Relationships Act 1975 (SA) s7, s8, s9; Administration and Probate Act 1919 (SA), s72A, s72B, s72G, Part 3A; Community Welfare Act 1972-1976 s102; Family Law Act 1975 (Cth) s66W, Division 7; Status of Children Act 1974 (Vic) s10; Status of Children Act 1978 (NT); Status of Children Act 1978 (Qld); Status of Children Act 1974 (Tas); Parentage Act 2004 (ACT); Status of Children Act 1996 (NSW); Co Litt s188; BL Com vol 1, p447; Cross on Evidence 8th Australian edition, JD Heydon LexisNexus Butterworths at [15050], referred to.
P v T (1980) 23 SASR 289; W v C (1981) 28 SASR 130, not followed.
In Estate of Simmons (deceased) (1990) 56 SASR 1; Re Gardiner [1936] SASR 84; Leon Kolecki (deceased) [2011] SASC 158; Cocks v Juncken (1947) 74 CLR 277; Preston-Jones v Preston-Jones [1951] AC 391; Cavanett v Chambers [1968] SASR 97; Flaherty v Piva; Ex parte Piva [1960] Qd R 53; The King v Luffe (1807) 8 East 193 (KB), 103 ER 316; Mackie v Bassing (1978) 18 SASR 292; Briginshaw v Briginshaw (1938) 60 CLR 336; Blyth v Blyth [1996] AC 643; W v C (1982) 29 SASR 435; Re Y (1984) 36 SASR 584; Stanberg Pty Ltd v Tabibi [2012] SASC 187; Rejfek v McElroy (1965) 112 CLR 517; Re Pellitteri [1991] 1 Qd R 154; Re Fleetwood [2012] QSC 325; Re Cressy [1993] QSC 216; Re Wintour [2002] QSC 173; G v H (1994) 181 CLR 387; Farnell v Penhalluriach (No 2) [2008] VSC 214; Helebrant v Perdic [2010] VSC 580; Re Estate of Della Vedova (dec’d) [2012] VSC 341; R v Hodnett (1786) 1 TR 96, 99 ER 993; DPP v Hester [1973] AC 296, [1972] 3 All ER 1056, (1972) 57 Cr App R 212; Jones v Dunkel (1959) 101 CLR 298; Doney v The Queen (1990) 171 CLR 207; Popovic v Derks [1961] VR 413; Thomas v Jones [1921] 1 KB 22; Kurth v Paff; ex parte Paff (1968) 62 QJPR 78; Collie v Collie [1922] VLR 269; Ridley v Whipp (1916) 22 CLR 381; R v Gill (2003) 142 A Crim R 22; BRS v The Queen (1997) 191 CLR 275, considered.

H, AM v L, L
[2013] SASC 7
Civil
NICHOLSON J.
Introduction

The plaintiff, AMH, seeks, inter alia, a declaration that he is the son of SM (Mr M), now deceased. The obtaining of such a declaration of parentage, pursuant to s9 of the Family Relationships Act 1975 (SA) is a necessary step if the plaintiff is to make good his claim to be solely entitled to inherit the estate of Mr M, who died intestate[1] on 17 January 2009.[2] On 2 November 2009, Letters of Administration were granted in this court appointing the defendant (LL, a niece of the deceased) administrator of Mr M’s intestate estate.[3]
[1]    Administration and Probate Act 1919 (SA), s72B(1).
[2]    Exhibit P1, Document headed “Agreed Facts & Documents”.
[3]    Exhibit D4.
The plaintiff claims that he was conceived out of an adulterous relationship between his mother and Mr M and that the net proceeds of the estate should be paid to him. The defendant denies that the plaintiff is the son of Mr M.[4] However, she does concede that, if the plaintiff were to be granted a declaration of paternity he would be beneficially entitled to receive the whole of the intestate estate, after the deduction of usual and proper expenses associated with its administration.[5]
[4] Defence filed on 29 October 2010, at [4] and [5].
[5] Defence at [4].
The plaintiff was born on 24 December 1968 and is one of four siblings. His mother, MFH (Mrs H), was married to KFH (Mr H) from 1956 until Mr H died in 1994.[6] Until 2009, the plaintiff believed Mr H to be his father.[7] However, soon after the death of Mr M in 2009, Mrs H told her son that Mr M and not Mr H was his biological father. Shortly thereafter the plaintiff initiated these proceedings.[8]
[6]    T62.
[7]    The birth certificate of the plaintiff, Exhibit P3, lists KFH as the father.
[8]    Summons dated 7 September 2010.
Issues
The plaintiff also sought an order restraining the defendant from distributing the estate until the issue of paternity had been resolved. However, the defendant has earlier provided an undertaking in this respect[9] and it is not a matter that the court now needs to address. The defendant, in her capacity as administrator, has undertaken not to conduct any distribution of the estate until this action is resolved by a judgment of the court or a discontinuance, or until she is otherwise released from her undertaking by this court. There has been no suggestion that this undertaking has, or will not be complied with.
[9] Undertaking filed on 14 October 2010.
It follows, given the concession in the defendant’s filed defence,[10] that the only matter for determination is whether the declaration of parentage sought by the plaintiff ought to be made.
[10] If the plaintiff is declared to be the son of the intestate deceased, he is beneficially entitled to receive the estate after the deduction of usual and proper expenses associated with administration.
Some relevant matters of law
It is agreed that Mr M died intestate.[11] The distribution of the estate is therefore governed by Pt 3A of the Administration and Probate Act 1919 (SA),[12] which is designed to provide for a reasonable method of dividing the estate of a person who has not left a will disposing of his or her property.[13] This trial has been conducted on the agreed basis that Mr M’s wife OM (Mrs M) predeceased him and that he and Mrs M had no children.[14] In these circumstances, the plaintiff, if he is the biological son of Mr M, will qualify as the sole issue and will inherit the whole of the estate.[15]
[11] Exhibit P1.
[12] Part 3A of the Administration and Probate Act 1919 (SA) applies to estates of persons who die wholly or partially intestate after 29 January 1976; s72A(1).
[13] In Estate of Simmons (deceased) (1990) 56 SASR 1 at 16 (Legoe J).
[14] This agreed basis is binding on the parties to and for the purpose of these proceedings. If, in fact, Mrs M did not predecease Mr M and/or Mr M was found to have fathered other children, different considerations might arise in connection with the administration of the estate.
[15] Administration and Probate Act, s72G(1)(c).
If the plaintiff is the son of Mr M, the fact that he is an ex-nuptial child not formally adopted by Mr M under the laws relating to adoption would not diminish his rights to succession. Statutory reform, pursuant to the Family Relationships Act 1975 (SA), altered the position at common law, that an ex-nuptial child could not be an heir or next-of-kin of any person except his or her own issue.[16] Such a child now has the same rights to succession as any child born into a marriage.
[16] Re Gardiner [1936] SASR 84 at 86.
However, the paternity of a child born outside marriage is recognised under s7 of the Family Relationships Act in only limited circumstances.[17]
[17] It is only through one of these limited circumstances that an ex-nuptial child might satisfy the definition of child for the purpose of Part 3A of the Administration and Probate Act, Leon Kolecki (deceased) [2011] SASC 158 at [26].
7—Recognition of paternity
A person shall be recognised as the father of a child born outside marriage only if—
(a)he is recognised as father of the child by reason of legitimation of the child, or under the law relating to the adoption of children; or
(b) he has acknowledged in proceedings for registration of the birth of the child (either in this State or in some other place) that he is the father of the child; or
(c) he has been, during his lifetime, adjudged by a court of competent jurisdiction (either of this State, or of some other place) to be the father of the child; or
(d) he has been adjudged under this Act to be the father of the child,
and no other person is, under this Act, taken to be the father or co-parent of the child.
Given that Mr M is deceased, the only manner in which he now might be recognised as the plaintiff’s father is if he is so adjudged pursuant to subsection (d).
This court has the jurisdiction, pursuant to s9 of the Family Relationships Act, to make a declaration of parentage on the application of a putative child in the position of the plaintiff. It does not matter that one of the persons in relation to whom the declaration is sought is dead.[18] Section 9 provides as follows.
[18] Sub-section 9(2). However, where one of the two persons concerned is dead the additional requirement in ss9(4) is invoked.
9—Declaration of parentage
(1)Where—
(a) a female person alleges that a particular person is the father or co-parent of her child; or
(b) a person alleges that the relationship of father or co-parent and child exists between that person and another person; or
(c) a person whose pecuniary interests, or whose rights or obligations at law or in equity, are affected according to whether the relationship of father or co-parent and child exists between two persons desires the court to determine whether such relationship exists between those persons,
that person may apply to the Court for a declaration of parentage, and if it is proved to the satisfaction of the Court that the relationship exists, the Court may make such a declaration.
(2)A declaration may be made under this section whether or not one or both of the persons in relation to whom the declaration is sought are dead.
(3) The Court should not proceed to make a declaration under this section unless it is satisfied, as far as reasonably practicable, that all living persons whose interests are affected by the declaration have had the opportunity to make representations to the Court in relation to the subject matter of the proceedings.
(4) Where a person claims that the relationship of father or co-parent and child exists between two persons, and one or both of those persons are dead at the time of the proceedings, a declaration shall not be made under this section unless the claim is supported by credible corroborative evidence.
An application for a declaration of paternity in the circumstances of the present case could have been made by Mrs H pursuant to ss9(1)(a). However, the application has been made by the plaintiff, the putative child, pursuant to, as it would appear, ss9(1)(b). I confirm that, after hearing the evidence of the plaintiff, the plaintiff’s mother and the defendant and after hearing from counsel,[19] I was satisfied, as far as reasonably practicable, of the matter provided for in ss9(3).
[19] T69-70.
The burden of proving paternity lies with the plaintiff. This is reinforced by the statutory presumption as to paternity in certain circumstances where the mother is married. Section 8 of the Family Relationships Act provides, inter alia, that a child born to a woman during her marriage or within 10 months after the marriage has been dissolved by death or divorce is presumed to be a child of its mother and her husband or former husband.[20] The plaintiff was born whilst his mother was married to Mr H. As such, the presumption applies and the onus rests with the plaintiff to prove to the contrary.[21]
[20] This section enacts the common law presumption that applied to children born during a marriage, whether conceived before or after the ceremony of marriage and to children conceived during the marriage, whether born before or after the marriage was dissolved by the husband’s death or otherwise, Cocks v Juncken (1947) 74 CLR 277 at 294.
[21] Family Relationships Act 1975 (SA), ss8(1).
In this respect, two issues of law, each of which is not without some difficulty, will need to be addressed. The first is the standard of proof that must be satisfied by the plaintiff. The second is the requirement, pursuant to ss9(4), that the claim that a relationship of father and child exists between the plaintiff and Mr M must be supported by “credible corroborative evidence”. I will need to deal with these two issues at some length. However, before doing so, I will summarise the evidence adduced by the parties.
The Evidence
AMH (the plaintiff)
The plaintiff was born on 24 December 1968.[22] He has worked mainly as a truck driver but shortly prior to the trial he became unemployed.[23]
[22] T10.
[23] T12.
He was informed by his mother at her home in Virginia[24] about “two or three years ago” that Mr M was his biological father.[25] This revelation came as a complete “shock” to the plaintiff. He had never had any previous indication that his mother’s husband, Mr H, then deceased, was not his father. The plaintiff had no recollection of ever meeting Mr M. He had never seen his mother in a relationship with a man other than her husband.[26]
[24] The Adelaide suburb.
[25] T11.
[26] T12-13.
At his mother’s suggestion and soon after receiving this information, the plaintiff attended at the probate office to see if Mr M had left a will.[27] The plaintiff was cross-examined about his motive for seeking a declaration as to parentage. I did not find this helpful. I accept that the plaintiff has told the truth about the source and timing of his newfound knowledge.
MFH (the plaintiff’s mother)
[27] T17-18.
The evidence of the plaintiff’s mother, and an assessment of its reliability and of her credibility will be fundamental to a determination of the paternity issue. At the time of trial, her husband Mr H, Mr M and Ms M were all deceased. The court has not had the benefit of any evidence they may have been able to give relevant to the issues in the case.
Mrs H was born on 12 January 1935 and at the time of giving her evidence was 77 years of age.[28] She married her only husband, Mr H, on 24 March 1956; they had met in 1954. They never separated and he died in 1994. Mrs H is the mother of four children (oldest to youngest): a daughter NSH,[29] and three sons, GFH,[30] the plaintiff[31] and PGH.[32]
[28] T20.
[29] Born 7 June 1960, Exhibit P1, T21.
[30] Born 26 September 1961, P1, T21.
[31] Born 24 December 1968, P1, T21.
[32] Born 28 November 1970, P1, T21.
She first met Mr M in 1953 when, at the age of 18 and unmarried, she was working and living as a trainee nurse at the Mareeba Babies’ Hospital, Woodville.[33] Mr M was working, installing lights, at the Hospital. Mr M made advances towards Mrs H but no relationship eventuated and Mrs H remained unaware of Mr M’s name.
[33] T20.
During this period Mr M removed a photograph of Mrs H from a drawer in her room at the Hospital. Presumably he had or was able to gain access to her room whilst performing his duties. Mrs H only became aware that this photo had been removed by Mr M when he showed it to her some years later, after they had commenced their affair but before the plaintiff was born.[34]
[34] T40.
On an occasion when Mrs H was living at the Hospital, Mr M’s wife came and confronted Mrs H about what Mrs M presumed to be an affair.[35] It was only then and in that way that Mrs H became aware of Mr M’s name. Until then she had no knowledge that Mr M was married; moreover she “didn’t care because [she] wasn’t interested in him”.[36]
[35] Mrs H was not at the Hospital at the time Mrs M attended; she was informed by a third person that Mrs M had attended for this purpose, T25.
[36] T25.
After these events in or about 1953, Mrs H did not see Mr M again until 1967, some 11 years after she had married her husband.[37] The only contact she had had with Mr M prior to this second encounter in 1967 was the receipt of a letter, “full of soppy lovingness”, written by Mr M in 1960 to Mrs H.[38] Mrs H kept this first letter for quite some time, notwithstanding the risk that her husband might discover it, because “it was very romantic”.[39]
[37] T24.
[38] T23-24.
[39] T56.
Mrs H’s encounter with Mr M in 1967 was unplanned.
I was walking home from the bus stop and he stopped and spoke to me and asked me if I wanted a lift home because he knew where I lived. And it wasn’t far away from home but stupidly I got in the car and went with him. I didn’t know who he was at first. I didn’t get in until he told me who he was. Then we kind of started a relationship after that.[40]
Thereafter, Mr M regularly visited Mrs H at her Greenacres family home, usually at or around lunchtimes. Occasionally they would get together during the evenings, when she worked, part-time, as a cleaner.[41]
[40] T23.
[41] T27.
Mrs H at first said that a sexual relationship began in 1967.[42] However, she corrected herself and said that such a relationship did not commence until January 1968.[43] Mr M was the only person with whom Mrs H engaged in extra-marital sexual relations during her marriage.[44] This sexual relationship persisted for a period of three years.[45] Over this period she and Mr M irregularly[46] engaged in sexual intercourse approximately once per week. However, even though they stopped having sexual intercourse in 1971 or 1972, they continued with a non-sexual relationship until about 1974.[47]
[42] T28.
[43] T31-32.
[44] T34.
[45] T28.
[46] During cross-examination Mrs H used the term “spasmodic”, T61.
[47] T60.
Mrs H gave birth to the plaintiff on 24 December 1968. She described him, when born, as “quite big, about 10 pounds or something”.[48] Mrs H recalled a specific time in 1968 when she had engaged in sexual intercourse with Mr M. The date was 26 March 1968 (approximately nine months before the plaintiff’s birth). Her memory of this was vivid because the timing caused her to feel extremely ashamed. It was two days after her wedding anniversary and one day prior to her husband’s birthday. Mrs H recalled that Mr M attended her house twice on that date and on both occasions they engaged in sexual intercourse.[49]
[48] T30.
[49] T31.

It was submitted by counsel for the plaintiff and conceded by counsel for the defendant that I would be entitled to take judicial notice of the normal period of human gestation. In Preston-Jones v Preston-Jones,[50] Lord Simonds observed “it has never, I think, been doubted that the court has judicial knowledge of the normal period of human gestation”. However, judicial notice cannot be taken of the limits of abnormal periods of gestation. As Bray CJ stated in this court in Cavanett v Chambers,[51]
The Court does, through ancient and inveterate practice, take notice of certain biological facts, such as the normal period of gestation: per Lord Simonds in Preston-Jones v Preston-Jones (though not the limits of abnormal periods of gestation; cf. Flaherty v Piva; Ex parte Piva).
The court is therefore “entitled as a matter of judicial knowledge to know that, just as there is a ‘normal’ period of gestation, so there are ‘abnormal’ cases”,[52] but it is not entitled to set its own view of possible or probable periods of abnormality.[53]
[50] [1951] AC 391 at 401.
[51] [1968] SASR 97 at 100.
[52] Preston-Jones v Preston-Jones [1951] AC 391 at 403 (Lord Simonds).
[53] Preston-Jones v Preston-Jones [1951] AC 391 at 403; cf Flaherty v Piva; Ex parte Piva [1960] Qd R 53 at 59-60. Judicial notice has been taken of the fact that a fortnight is too short a period for human gestation; The King v Luffe (1807) 8 East 193 (KB); 103 ER 316.
With respect to the present case, the facts (which I accept) that the normal period of gestation is approximately 9 months and that the plaintiff was “quite big, about 10 pounds…” at birth from which a close to full term pregnancy can be inferred, support an inference that the plaintiff’s conception took place in March 1968, consistently with Mrs H’s evidence of having engaged in sexual intercourse with Mr M on 26 March 1968.
Mrs H said that during her marriage she had only two sexual partners, her husband and Mr M. She also said that she was not involved in a sexual relationship, with any other man, including her husband, in 1968 and more specifically at or around the time that the plaintiff was, according to the normal period of gestation, conceived.[54] She gave the following evidence in chief.[55]
[54] T33 and T47.
[55] T33-34.
QBefore the break you had given some evidence about a sexual relationship between yourself and Mr [SM].
AYes.
QWere you involved in any other sexual relationship at or around 1968.
ANo.
QWith any other man.
ANo.
QWith your husband.
ANot that I’m aware of. I’m fairly sure that we were having a break at the time.
QWas this something unusual for your relationship.
ANo, it wasn’t.
QHad you been taking any form of birth control.
ANo.
QAt any time prior to the birth of your fourth child, had you taken any birth control.
ANo, I hadn’t.
QAt any time during the course of your marriage to [KFH] had you had an affair with any other man other than Mr [M].
ANo, I hadn’t.
QHad you had sexual relationships with any other man other than the two men that we have been discussing.
ANo, only my husband.
The italicised answer represents Mrs H’s first and instinctive response to a question of fundamental importance. By its terms it suggests a lack of confidence or assuredness.
The issue was taken up during cross-examination at which time Mrs H was more definitive.[56]
[56] T47-48.
QYou married, I think, your husband in 1956.
AYes.
QUntil the time that he died you lived with him continuously.
AI did.
QAt no time did you have a discussion with him during that period as to your son Andrew not being his son.
ANo, I didn’t.
QHe never raised it with you.
AHe never raised it with me.
QThere was never any suggestion by anybody in your family that Andrew was not his son.
ANo.
QThe position is, isn’t it, that you did have sexual relations with your husband from time to time.
AFrom time to time, yes, but not around the time Andrew was born.
QI’m suggesting to you that some time in March or April of 1968 you did have sexual relationships with your husband.
ANo, I didn’t.
QAre you saying that you did not have any sexual relationship with him, for example, in 1968.
AI didn’t have any sexual relations with him in 1968.
QAnd so you’re saying to us that although your husband did not have sexual relations with you in 1968, he nevertheless never spoke to you about the possibility of your son Andrew not being your [sic] son.
ANo, he didn’t.
QAnd on no occasion did he ever during his life with you as husband and wife ever make any comment to you suggesting he had any doubts about that matter.
ANo, he had no doubts.
HIS HONOUR
QSorry, you said what.
AHe had no doubts. He didn’t tell me that he had had any doubts about Andrew – my husband.
In due course, the plaintiff was born and brought up as part of Mr and Mrs H’s family. In many, if not most, marriages this set of circumstances would lead to some level of inquiry and investigation on the part of a person in the position of Mr H; where has this child come from? However, according to Mrs H, when she became noticeably pregnant, she simply “told him [she] was pregnant, and left it at that and he didn’t seem to either worry or notice any difference”.[57]
[57] T22.
Mrs H said that she felt terrible shame in having engaged in an extra-marital affair unbeknown to her husband and particularly so given that she fell pregnant. Nevertheless, Mrs H maintained throughout her evidence that Mr H never raised nor alluded to any feeling of uncertainty about who had fathered the plaintiff; “he never raised it with me… he had no doubts”.[58]
[58] T47.
There is “nowt funnier than folk”. Nevertheless, I find this aspect of Mrs H’s evidence difficult to accept if, in fact, it had been the case that she and Mr H had not engaged in sexual relations during the early months of 1968. Mr H had been married to Mrs H for more than a decade at the time she fell pregnant with the plaintiff in 1968. He had fathered two children previously, NSH and GFH. According to Mrs H, she and her husband had not engaged in sexual relations of any nature during the period within which the plaintiff would have been conceived, indeed, at no time during the whole of 1968. Yet, he did not during the course of the pregnancy or thereafter make any enquiry as to whether he definitely was the father.
Mr H may have been a particularly passive and uninquiring husband. Mrs H described their relationship in the following succinct and simple terms.[59]
Generally we were quite happy, and he was a very introverted person and couldn’t show his feelings at all. We were kind of happy together, except we didn’t often have sex.
However, it is difficult to accept that he was as passive and uninquiring as that. According to Mrs H, the topic was never even adverted to.
[59] T22.
I expect that Mrs H did love and care for her husband and notwithstanding that, on her account, the relationship was largely platonic. Nevertheless, her evidence about Mr H’s very curious lack of reaction to the circumstances, as she has described them, is in my view intrinsically difficult to accept. This was not a situation where Mr H was aware of his wife’s infidelity and that he might not be the father of the plaintiff, but determined for the sake of the family and as a consequence of his own moral framework to say and do nothing other than to treat the plaintiff in the same way as the three other children. This is a case where, given Mrs H’s account of the overall circumstances, Mr H must have been aware of the truth. I can accept that he may have chosen to act no differently towards the plaintiff and the family generally; but to say nothing at all to Mrs H, even in private, from the outset and over decades whilst bringing up the plaintiff as part of the family really does strain credulity.
It may be that Mrs H is confused about or poorly recalls the period or the extent of the period or periods in 1968 during which she and Mr H did not engage in sexual relations. Mrs H gave her evidence on this topic in 2012, some 44 years after the plaintiff’s conception. In contrast, Mr H’s reactions (or lack of reactions) to the extent they might be reflective of his then state of mind were relatively contemporaneous with the conception. On the question of whether or not Mr and Mrs H had any sexual relations, even if only on a few isolated occasions, in or about March or April 1968, Mr H’s behaviour and reactions, as described by Mrs H, might be a more reliable guide than Mrs H’s recollection given some 44 years later.
The fact that Mrs H was engaging in an extramarital affair with Mr M during March and April 1968 is essential to the plaintiff’s case. However, and particularly bearing in mind the presumption of paternity in marriage provided for by s8 of the Family Relationships Act, it is also important for the plaintiff to establish that Mr and Mrs H were not engaging in sexual relations at or around the inferred time of conception. If Mrs H’s evidence is seen as unreliable on this issue and there is no other relevant evidence, the plaintiff’s case will be significantly undermined.
During cross-examination Mrs H was also questioned about the paternity of her youngest son, PGH. PGH was born on 28 November 1970. At no time during her marriage until after PGH was born, did Mrs H employ any contraception with respect to either her husband or Mr M. She said that she resumed sexual relations with her husband in 1969 and 1970 for the purpose of having a fourth child.
During this time she also was continuing to have sexual relations with Mr M.[60] Nonetheless, she was confident that PGH was the son of her husband rather than of Mr M.[61] It seems therefore that Mrs H was willing, at least at this stage, to engage in sexual relations with both men throughout the same period of time.[62] This enhances the possibility that this was also occurring at the time of the plaintiff’s conception; enhances it in the sense that Mrs H was not necessarily averse to having two sexual partners during the same period of time. As previously posited this would be more consistent with her husband’s otherwise unusual behaviour at the time of the plaintiff’s conception.
[60] T61-62.
[61] T62.
[62] T61.30-62.1.
Mrs H said that Mr M was aware, when she fell pregnant in 1968, that the child had been fathered by him.[63] He never denied it.[64] Indeed he was “very happy when I had a son and said he was proud to have a son”.[65] After the plaintiff’s birth Mr M saw him on four occasions when he visited Mrs H at her home.[66] He never assisted financially with respect to the child. Mrs H did not request nor want any assistance because she would have had to explain to her husband where it had come from.[67] During cross-examination Mrs H was pressed as to why, given that after the birth her relationship with Mr M continued for a number of years, Mr M had seen his child on only so few occasions. She explained that her mother[68] would care for her children at her own home on a regular basis.[69]
[63] T34.
[64] T35.
[65] T67.
[66] T34.
[67] T34.
[68] Mrs H’s mother is deceased, T68.
[69] T68.
Mrs H explained how the plaintiff came to be named. She said that Mr M was involved in the choosing of the name.[70]
QWhat about the name of the baby, Andrew, was there involvement there.
AYes, he didn’t tell me what to name the child, but he told me that he had a nephew, Andreas, or something like that, so.
This evidence is of some potential significance and is to be considered in the light of the defendant’s evidence to the effect that her brother (Mr M’s nephew)[71] is named Andrzejki, which she conceded can be interpreted from Polish to English, as Andrew.[72] This evidence of the defendant provides some corroboration for Mrs H’s evidence that Mr M told her of a nephew named Andreas or (Andrzejki) which, in turn, played some part in the choice of the plaintiff’s first or given name. Counsel for the plaintiff argued that this is strong evidence that the court can rely upon for corroboration of the evidence of Mrs H, and consequently the plaintiff’s claim. I will need to return to this issue.
[70] T35.
[71] The defendant’s late mother was Mr M’s sister.
[72] T90-91.
Mrs H attested to learning a number of things about Mr M. The purpose behind this evidence was to bolster or support her credibility with respect to her claim that she knew Mr M well enough to be consistent with having had an affair with him. The accuracy of a number of these matters was challenged in the evidence of the defendant but without evidence to the contrary being adduced other than in respect of a couple of issues.
(i)Mr M was a member of the Rosicrucian society or “cult”; he would often attend Mrs H’s house with Rosicrucian books.[73] She understood him to be antagonistic towards the Christian religion and she was never aware, and he never told her, that he was Catholic.[74]
(ii)Mr M resided at 17 Sanderson Avenue, Parkholm; Mrs H visited this house on one occasion.[75] Mrs H purported to describe details of the house and its interiors; she saw a lot of Rosicrucian pamphlets in the house.[76]
(iii)   Mr M drove a white Ford Falcon.[77]
(iv)    Mr M was born on 18 April 1926 in Poszan, Poland.[78]
(v)     Mrs H believed Mr M to work as an electrician.[79]
(vi)    Mr M travelled to Poland in the late ‘60s or early’70s “but I don’t know whether he took [Mrs M] with him or what happened”.[80]
(vii) Mr M owned a cat and he told Mrs H that Mrs M did not like cats.[81]
(viii) Mr M was involved in a relatively serious motorbike accident at some time      between their first and second periods of association.[82]
[73] T26.
[74] T54.
[75] T37.
[76] T38.
[77] T38.
[78] T38.
[79] T38.
[80] T38.
[81] T38 and T56.
[82] T39.
The first time that Mrs H encountered Mr M’s wife, was when she came to Mrs H’s home, in or around 1970,[83] with a man by the name of GW.[84] Mrs M wanted to speak with Mrs H. However, it was a Saturday morning and Mrs H’s entire family, including her husband, were at home. They agreed to meet another time in the city at Mrs M’s place of employment.
[83] Before the youngest, PGH, was born.
[84] T50-51.
At this meeting Mrs M produced divorce application documents which featured the name of Mrs H.[85] Documents of this description were tendered,[86] although whether or not these or all of these documents are the ones that were shown to Mrs H in 1970 is not clear. Mrs H consulted a lawyer after this meeting with Mrs M. She did so for the purpose of denying the claims of adultery in order to avoid any “upheaval with either him, his family or mine”.[87] It is an agreed fact[88] that Mrs M lodged a petition with the Supreme Court of South Australia in 1971 seeking orders including a decree of dissolution of marriage and alleging grounds of cruelty and adultery.
[85] T35-36.
[86] Exhibit P1.
[87] T36.
[88] Exhibit P1.
The agreed documents,[89] in particular the affidavit of Mrs M,[90] are evidence that Mrs M asserted in 1971 or so that her husband, Mr M, had been involved in an adulterous relationship with Mrs H between the months of December 1952 and December 1954 and also between January 1968 and June 1970. The plaintiff was born 24 December 1968, almost 12 months after the second period of alleged adultery was said to have commenced. The documents, at most, are evidence of an opinion held at the time by Mrs M most likely based substantially, if not solely, on hearsay or assumption. They are not admissible as evidence of the truth of the allegations contained therein. They only go so far as to show that assertions and allegations were made. They are of some probative value, in that they lend support to Mrs H’s evidence that she knew and associated with Mr M.
[89] Exhibit P1
[90] Exhibit P1.
The plaintiff argued that this evidence concerning the divorce proceedings operated, regardless of its truth, to independently corroborate the plaintiff’s claim. I will need to return to this issue.
On 28 July 1972 Mrs H swore an affidavit denying any sexual relations with Mr M.[91] However, she said that she lied about any sexual relations to maintain the status quo. She denied that her husband had any knowledge of the divorce proceedings and her alleged adultery; she also said that she did not tell her husband about the fees she paid to the lawyer.[92] In my view, Mrs H’s denials of adultery at or around the time of the divorce proceedings were false and are readily to be explained by the reasons she gave; to keep the status quo, that is, to keep secret her adulterous affair and (her belief in) the paternity of the plaintiff.
[91] Exhibit D2, T51.
[92] T48-50.
Mrs H did not know how the divorce proceedings finally concluded. However and notwithstanding Mrs M’s threats, she continued to see Mr M[93] until the relationship ceased, rather abruptly, in 1974.[94] The last occasion Mrs H saw Mr M was when he attended her workplace at Telecom and asked her to leave her family and run off with him. Mrs H refused and told him that he should go back to Mrs M. Shortly after this encounter she and her family moved to Virginia, Adelaide and she “never saw him again”.[95] All contact, written or spoken, ceased.
[93] T49.
[94] T37.
[95] T37.
Mrs H became aware of the death of Mr M by seeing his death notice in the newspaper.[96] It was only after this that she told the plaintiff about his true biological father.[97] She decided to do this because she “had a terrible feeling of grief and a feeling that I’d lost the opportunity to get them back together”.[98] She later conceded that she also “wondered if [Mr M] left anything for Andrew… because he knew Andrew was his son”[99] and also that she had found out that Mr M died intestate after ringing the probate office.[100] She also subsequently became aware, after seeing it in the newspaper, that there was a house being sold on behalf of Mr M’s estate.[101]
[96] T41.
[97] T41.
[98] T40.
[99] T41.
[100] T41.
[101] T65.
Mrs H’s descriptions of the events surrounding her disclosure to the plaintiff are consistent with the plaintiff’s evidence in this respect. Mrs H said that the plaintiff was extremely shocked.[102] She subsequently told her daughter and two other sons when the time came for a DNA test to be conducted.[103] As a result of this Mrs H experienced some problems in her family, in particular, with her daughter who “thought it was something terrible and she’s never got over it”.[104]
[102] T41.
[103] Mrs H initially said that she told them a day or two after disclosing the information to the plaintiff. Later in her evidence she agreed that this actually occurred quite some time after she had discussed the matter with the plaintiff, T65.
[104] T65.
Prior to Mrs H telling the plaintiff, she had told only two other people of her adulterous affair. One was a female friend who had found herself in a similar situation in 1968.[105] The other person was a priest at a Catholic church in Port Adelaide from whom she received advice shortly after the birth of the plaintiff.[106] His advice was that she should not tell anyone because it would cause a lot of family trouble.[107] The reason why she did not inform the plaintiff much earlier and in particular at or after the death in 1994 of her husband was also explored in cross-examination. She maintained that she did not know whether or not Mrs M was still alive.
Assessment of Mrs H’s evidence
[105] T41-42, 64.
[106] T58-59.
[107] T58.

After hearing the evidence of Mrs H and after reviewing the transcript of her evidence I was and remain quite satisfied that she was doing her best to tell the truth. I have little doubt at all that, as time passed, Mrs H became more and more anxious and ashamed about the affair. She was rightly concerned about the reactions of her adult children and in my view, and with respect, acted bravely in telling both the plaintiff and her other adult children about these events that took place so very long ago. I accept that she genuinely believes that Mr M was the father of the plaintiff.
The cross-examination of Mrs H did not raise any significant inconsistencies in her evidence generally and, in particular, as to the circumstances surrounding and the nature of her relationship with Mr M. I am satisfied that they engaged in acts of sexual intercourse during the period of their relationship commencing in early 1968. There were periods when Mrs H became very confused and conflated events and dates. However, on my consideration of her evidence as a whole, this, and other aspects of her evidence which also lacked clarity, have not caused me to doubt her evidence concerning the essential aspects of the sexual relationship between herself and Mr M. It must have been a very difficult thing for Mrs H to confront her adult children to explain her past and particularly so given that the plaintiff had lived 40 years or so with the belief that Mr H had been his father.
In my view, Mrs H tried her best to assist the court and to recall as best she could the relevant events. Nevertheless, I am also satisfied, given the extremely long passage of time between the relationship and the plaintiff’s birth, and the trial, that there is significant potential for matters of detail to have been lost and matters of detail to have been confused and now mistaken.
DNA Testing
GFH is Mrs H’s second child, born 26 September 1961. He is seven years older than the plaintiff. The plaintiff, until recently, believed GFH to be his elder paternal brother. However, DNA profiles obtained from buccal swab samples taken from the plaintiff and GFH in February 2012 revealed that the two men do not share the same father.[108] This is a matter of fact that has been agreed by the parties.[109] It is not determinative of the central issue in this trial. However, it does demonstrate that Mrs H involved herself in sexual relations with at least two men and that she conceived at least two of her children with different fathers.
[108] Jonathon Faris, DNA Solutions Pty Ltd laboratory manager prepared a report dated 11 May 2012 reviewing the analysis undertaken to determine the Y-STR profile of each sample, Exhibit P1.
[109] Exhibit P1, [18].
The argument in support of the plaintiff’s case proceeds as follows. Mrs H maintained that apart from her affair with Mr M she did not at any time have sexual relations with anyone other than her husband. She specifically denied having sexual relations with anyone other than her husband between 1960 and 1962[110] during which time GFH was conceived. If Mrs H’s evidence here were to be accepted it would necessarily follow that GFH’s father was Mr H, as always understood by Mrs H and the plaintiff. It would follow from that finding, in conjunction with the DNA evidence, that the plaintiff’s father was not Mr H. It would further follow from Mrs H’s evidence to the effect that Mr M was the only other person with whom she had a sexual relationship that Mr M must have been the father of the plaintiff.
[110] T121.
A question that will need to be considered is whether the DNA evidence is capable of satisfying the requirement of “credible corroborative evidence” in support of the claim.[111]
LL (the defendant)
[111] Family Relationships Act 1975, ss9(4).
The defendant was unable to shed any light on the events surrounding the conception and birth of the plaintiff. Her evidence was of marginal relevance and only insofar as it provided information about her uncle, Mr M, that either supported or contradicted the account given by Mrs H.
The defendant was born in Poznan, Poland and her mother was Mr M’s sister.[112] The defendant first met her uncle in June of 1971 when he was visiting his family in Poland following the death of his sister (the defendant’s mother).[113] It was an expensive trip and she was told and she believed that it was for that reason Mrs M did not also come. The defendant had no inkling that divorce proceedings may have been in train; her uncle spoke fondly of his wife.[114] The second time she met Mr M was in 1976 when he again visited Poland, this time with Mrs M.[115]
[112] T75.
[113] T77.
[114] T77, 92-93.
[115] T79-80.
It was not until 1993, when the defendant and her husband moved to Adelaide, that she began having regular contact with Mr and Mrs M.[116] This, of course, was almost 20 years after the alleged affair with Mrs H had come to an end. Regular contact continued until Mr M passed away in 2009. In the early 1990’s, they regularly attended, together, a Catholic church located on Unley Road.[117] The defendant said that she never heard or saw anything to suggest that Mr M was involved in the Rosicrucian society.[118] Both his and Mrs M’s funerals were conducted according to the rites of the Catholic Church.[119]
[116] T79, 85.
[117] T82.
[118] T84.
[119] T84.
The defendant also gave evidence of a cat or cats owned by Mr and Mrs M. Contrary to the evidence given by Mrs H, Mrs M was very fond of a particular cat, “it was like a baby… she loves her cat”.[120]
[120] T86.
I have no reason to believe that the defendant was doing otherwise than genuinely attempting to assist the court and to tell the truth. However her evidence is of little assistance. She had minimal contact with or knowledge about Mr M until she moved to Australia in the early 1990s, nearly twenty years after Mrs H last had contact with Mr M. Over such a lengthy period aspects of Mr and Mrs M’s life, including beliefs and practices may well have altered. The defendant conceded that, prior to the commencement of these proceedings, she had not been aware that Mrs M had applied for a divorce.[121]
[121] T96-98.
The defendant became aware of the plaintiff’s claim in February or March of 2010 upon receiving a letter from the plaintiff’s solicitor. As far as she was aware, and after making enquiries, no one in her family or amongst family friends had any knowledge that the deceased had a son.[122]
[122] T102-103.
Standard of proof
In this state, the question of whether a plaintiff in affiliation proceedings must prove the case according to the ordinary civil standard, on balance of probabilities, or the criminal standard, beyond reasonable doubt, is not settled. There are three first instance decisions in this court that have dealt with the point in the context of s9 of the Family Relationships Act. However, in my view, the matter calls for further consideration and in a wider context.
Before mentioning the three decisions dealing with s9, the earlier Full Court decision in Mackie v Bassing[123] should be referred to. That case concerned affiliation proceedings under legislation, then in force, designed to provide for, inter alia, the maintenance of wives and children. Section 102 of the Community Welfare Act 1972-1976 provided:
Upon the hearing of an affiliation case, the court may, if satisfied upon the evidence that the defendant is the father of the child, adjudge him to be the father of the child.
Section 140 provided, in effect, that where a complaint concerned a child born outside marriage the mother’s evidence required corroboration in a material particular before a defendant, not her husband, might be declared the father.[124]
[123] (1978) 18 SASR 292.
[124] There were exceptions to this requirement where the defendant had the opportunity to give evidence on his own behalf but did not.
Hogarth ACJ held[125] that affiliation proceedings are in substance proceedings between party and party. As such, the ordinary civil standard “should apply in general”, but “leaving aside the possible exception in the case of proceedings which might result in the bastardisation of a child.” But for this possibility, about which he wished to “express no opinion”, his Honour was “convinced that the word satisfied [in s102] means satisfied on the balance of probabilities, but always bearing in mind… the gravity of the subject matter.”[126] Hogarth ACJ continued:
The facts disclosed in the case stated before us could not relate to the bastardisation of a child[127] - if indeed the concept of bastardisation still has any place in the law of South Australia following the passing of the Family Relationships Act 1975. That question can be considered if and when it arises.
[125] At 297-298.
[126] Citing Briginshaw v Briginshaw (1938) 60 CLR 336 and Blyth v Blyth [1996] AC 643.
[127] The mother was unmarried.
Zelling J and White J were of the same opinion.[128] However, neither expressly reserved for future consideration the situation where affiliation proceedings, if successful, would lead to the bastardisation of a child.
[128] At 302-3; 304ff.
P v T[129] concerned an application by a putative father who was not the mother’s husband for a declaration of paternity. The applicant wished to obtain an order for access to the child. Cox J held that the standard of proof required under s9 of the Family Relationships Act is that beyond reasonable doubt. His Honour, after considering the relevant sections of the Family Relationships Act, including the statutory presumption in s8 along with the common law presumption of legitimacy, concluded that the legislature had not intended a change from the common law position.[130]
There was a time when the common law presumption was considered to be in certain circumstances, irrebuttable, or rebuttable only in a particular way, but those old restrictions have now been abolished… . Indeed, it is implicit in ss 8 and 9 of the Family Relationships Act that the presumption of parenthood (as the marginal note calls it) may be displaced by evidence led in proceedings under that Act. Section 8 does not say what degree of “proof to the contrary” will be needed. The common law position, however, is clear; it must be proof akin to the standard in criminal cases – that is, proof beyond reasonable doubt: In the Estate of L; Piggot v Piggot; and see Connolly v Connolly. I see no reason to suppose that Parliament intended to change or replace the common law standard in the case of an application under s9 of the Family Relationships Act where the question in issue is the paternity of child born in lawful wedlock. (Citations omitted.)
In reaching this conclusion, Cox J did not overlook Mackie v Bassing; his Honour noted the express reservation by Hogarth ACJ in that case, as referred to above.
[129] (1980) 23 SASR 289.
[130] P v T (1980) 23 SASR 289 at 294. It is arguable that, given that his Honour was able to dismiss the application on the facts even on an application of the civil standard of proof, his Honour’s determination of the standard of proof issue may have been by way of obiter dictum. I do not need to express a final view on this. Strictly the decision is not binding on me in any event. Nevertheless, a considered statement of the law on a topic such as this by Cox J is to be given significant weight.
In all respects material to the present proceedings, ss7, 8 and 9 of the Family Relationships Act have remained in the same form from the time of their enactment in 1975.
In W v C,[131] a man applied pursuant to s9 for a declaration that he was the father of a child born to a woman who was at the time living with her husband. White J dismissed the application. White J (as did the parties) accepted that Cox J in P v T had correctly stated the law and that proof beyond reasonable doubt was required. White J offered no independent reasoning but observed:[132]
The facts of this case illustrate the wisdom of the decision [in P v T] and I am happy to accept it, if only for the sake of the unrepresented child.
His Honour described the applicant’s evidence of paternity as “very strong” but was able to identify a reasonable doubt. With respect, White J’s alacritous adoption of P v T and his application of the criminal standard to the facts before him illustrated the temper of the times – a very real concern about “bastardising” a child, particularly where that child was living as part of an extant family and was unrepresented in the proceedings.
[131] (1981) 28 SASR 130.
[132] (1981) 28 SASR 130 at 132.
The Full Court[133] dismissed an appeal. Sangster J, with whom King CJ agreed, held that it was open to White J to find paternity had not been proved beyond reasonable doubt. Mohr J approved of White J’s finding in this respect in stronger terms. His Honour also indicated his agreement with White J that the criminal standard of proof applied. However, King CJ said this.[134]
The learned trial Judge held that the burden of proof resting on the appellant was proof beyond reasonable doubt. Counsel for the appellant before us conceded that this was the correct onus and we have not been called upon to consider the question. I mention this, not to doubt the view of the learned trial Judge nor the wisdom of counsel’s concession but simply to point out that, as the matter was not in dispute before us and was not argued, this case is not to be regarded as a decision of the Full Court on the issue of onus of proof.
[133] W v C (1982) 29 SASR 435.
[134] At 345.
In Re Y,[135] an application pursuant to s9 of the Family Relationships Act was brought on behalf of an infant child by her next friend for a declaration of paternity. The purpose behind obtaining the declaration was, as in the present case, to enable satisfaction of a condition precedent to the applicant being able to establish her right to a beneficial interest in the intestate estate of her putative father.
[135] (1984) 36 SASR 584.
The applicant’s mother was married to Y; they had separated although the marriage had never been dissolved. After separation the mother entered into a series of de facto relationships with three men in turn, including T, the putative father. Olsson J found that the evidence established “conclusively” that the applicant was not the lawful issue of the marriage of her mother and Y. For his Honour, the sole substantive issue to be determined was “given that the applicant was patently illegitimate and the issue of [her mother], who is her father?”[136] His Honour addressed the issue of the standard of proof and found that in the circumstances of the case before him the applicant was only required to prove her case on the balance of probabilities. His Honour referred to and purported to distinguish P v T and W v C on the basis that both concerned applications which, if granted, would have had the effect of bastardising the child in question. However, the essential issue before Olsson J was who was the father of a plainly illegitimate child which illegitimacy was recognised (indeed embraced) by the applicant. His Honour said this.[137]
Insofar as the head note in the report of P v T suggests that the standard of proof required under ss8 and 9 of the Family Relationships Act 1975 is proof beyond reasonable doubt, then I would beg to differ. I do not consider that the decision stands for any proposition wider than that indicated by Cox J in his reasons for decision, namely that, in his view, where the effect of a declaration is to bastardize a child, then proof beyond reasonable doubt is required.
In this case such issue is conclusively determined beyond any possibility of contrary argument. It is therefore unnecessary for me to pursue the question further, other than to say that, with the very greatest of respect which I must accord the conclusion of Cox J, I perceive an argument to the contrary – having regard, inter alia, to the changes wrought in the law by provisions such as s34h of the Evidence Act, as discussed by the Court of Appeal In re Jenion; Jenion v Wynne and any impact which these may necessarily or logically have had upon the old common law rules. Further, as Hogarth CJ indicated in Mackie v Bassing, it may well be that, as a consequence of the enactment of the Act, the concept of bastardization may no longer have any place in South Australian law. There is also the express wording of the Act to consider as to which the dictum of Latham CJ in Briginshaw v Briginshaw would appear relevant. I would therefore wish to reserve my position in relation to it for consideration when it again directly arises in the future.
So far as the present application is concerned I conclude that the onus is on the applicant to establish the main issue which emerges on the evidence upon the footing adverted to in Mackie v Bassing, that is to say on the balance of probabilities, but always bearing in mind the gravity of the subject matter. (Citations omitted.)
[136] At 588.
[137] At 589.
The approach apparently available to Olsson J to focus on who was the father of a child, acknowledged to be illegitimate, is not open on the facts of the present case. In any event, I have some conceptual difficulty with the notion that the determination of an application for a declaration of paternity, under s9 of the Family Relationships Act, may attract a standard of proof applicable in some circumstances and a different standard of proof applicable in others.
Situations where an analogous approach to proof might apply are those embraced in the line of authorities represented by Briginshaw v Briginshaw.[138] Briginshaw, as presently understood, does not mandate anything other than the two standards of proof, the civil and the criminal, but seeks to draw a distinction between the standard of proof and “the process of persuasion of the mind having regard to the gravity or otherwise of the fact of whose existence the mind is to be persuaded”.[139] In any event, Cox J in P v T did not purport to adopt a civil standard of proof in conjunction with a Briginshaw approach. Whilst the approach adopted by Olsson J is not open to me in the present case, his Honour did express, in the extract quoted above, some misgivings about the correctness of the conclusion of Cox J in any event. With respect, I share those misgivings.
[138] (1938) 60 CLR 336. For a recent discussion of these authorities in this court see Stanberg Pty Ltd v Tabibi [2012] SASC 187 at [80] to [118] (Peek J).
[139] See Rejfek v McElroy (1965) 112 CLR 517 at 521.
Re Pellitteri[140] concerned an application by a putative father for a declaration of parentage. Section 8(1) of the Status of Children Act 1978 (Qld) provided:
Where the name of the father of a child is entered in the Register of Births in relation to the child, a certified copy of the entry… shall be evidence and, in the absence of evidence to the contrary, conclusive evidence that the person named as father… is the father of the child.
[140] [1991] 1 Qd R 154.
Thomas J held that the civil standard applied with respect to an application which sought to displace the prima facie position established by s8, “but with full regard to the importance and gravity of the issue”.
It is… appropriate for the Court to look at the legal and practical realities of the application, and to identify the circumstance that the application is to illegitimise a child whose present status is that of a legitimated person. Proceedings of this kind used to be regarded as requiring proof that would exclude all reasonable doubt in the mind of the Court to which the question was submitted. (Gaskill v Gaskill [1921] P 421, 433). Whilst such a standard seems to have been applied in some recent cases in South Australia (P v T (1980) 23 SASR 289; W v C (1981) 28 SASR 130) and the matter has been left open by the South Australia Full Court (W v C (1982) 29 SASR 345), I agree with Olsson J in Re Y (1984) 36 SASR 584, 589 that the issue in such a case needs to be proved on the civil standard, that is to say on the balance of probabilities, but with full regard to the importance and gravity of the issues. Since Briginshaw v Briginshaw (1938) 60 CLR 336, 347, 363, 368 and Rejfek v McElroy (1965) 112 CLR 517, 521, I do not think it is seriously arguable that the criminal standard (or its equivalent) applies to such determinations.[141]
[141] Re Pellitteri at 158.

His Honour observed that, because of the nature of the issues, he would not be prepared to make the required finding on a mere balance of probability “ie a 51 per cent finding, or a satisfaction that the scales tilt slightly more in one direction than the other”. His Honour would not have been prepared to make such a finding unless he was able to hold what is sometimes referred to as a “comfortable” satisfaction that the applicant was in fact the father of the child. In this respect, I apprehend that his Honour was adopting a Briginshaw approach, at least in the sense that, the process of persuasion of the mind, albeit in accordance with the civil standard, needed to take account of the gravity or otherwise of the finding of fact in question.[142] The approach of Thomas J has been applied in a number of subsequent Queensland decisions.[143]
[142] Compare Rejfekv McElroy (1965) 112 CLR 517 at 521.
[143] See, for example, Re Fleetwood [2012] QSC 325 at [9]; Re Cressy [1993] QSC 216 and Re Wintour [2002] QSC 173.
In G v H[144] the question of parentage of a child was in issue and relevant to the question of the maintenance of that child. The High Court had to consider the consequences that should follow from a refusal by a person, whom the evidence suggested could have been the father in question, to submit to an order for parentage testing under s66W(1) of the Family Law Act 1975 (Cth). In so doing, the High Court considered the proper approach to proof of an allegation that the man was the father of a child for these purposes. Division 7 of the Family Law Act provided for a number of presumptions including: presumptions of parentage arising from marriage,[145] from registration of birth,[146] and from co-habitation.[147] Each of the presumptions “is rebuttable by proof on a balance of probabilities”. In other words, the question presently under consideration (civil or criminal standard) was foreclosed by the terms of the legislation. However, the majority of the High Court expressed a view about the relevance of the Briginshaw approach.[148]
Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrong doing as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided. Paternity is a serious matter both for father and child. However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v Brigingshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father. … [I]t is difficult to see why, if a person who could be the father declines to participate in procedures which will provide proof one way or the other, the child’s rights to maintenance and support should none the less depend on the biological factor to paternity being established on the basis that, so far as the putative father is concerned, the biological fact involves an allegation in much the same category as an allegation of moral or criminal wrongdoing.
The majority continued:[149]
Given the presumptions in Division 7 and the terms of s66W(5) it seems to us that, where in proceedings under the Act the evidence establishes that a particular person could be the father of the child concerned, the question of actual paternity ought to be approached free of restraints inherent in the view that that question is, of its nature, one that “affect[s] the nature of the answer to the question whether [it] has been proved to a reasonable satisfaction of the [court]”.[150]
[144] (1994) 181 CLR 387.
[145] Section 66P.
[146] Section 66R.
[147] Section 66Q.
[148] Deane, Dawson and Gaudron JJ at 399-400 (citations omitted).
[149] At 400-401.
[150] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
Brennan and McHugh JJ held that when the evidence discloses that one of two or more men must be the father, a slight preponderance of evidence tending to show that a particular man is the father may be sufficient to establish paternity if he fails without reasonable excuse to comply with a parentage testing order.
The decision of the High Court in G v H is distinguishable. It was given in a context where the legislation already provided for the standard of proof to be the civil standard. The issue determined was that, given the statutory framework involved and the purpose of the particular litigation, it was not a situation that called for a Briginshaw approach to the civil standard. Significant to the reasoning of the court was that the case involved an unmarried mother, proceedings for the maintenance of a child, an order that a man, thought likely to be the father, undertake parentage testing which would have established the position one way or the other and the refusal of that man to abide by that order. The rejection by the majority of the Briginshaw approach, in the passage earlier cited, appears to have been arrived at with this context in mind.
Nevertheless, the position of the majority in G v H was adopted by Bell J in the Supreme Court of Victoria in Farnell v Penhalluriach (No 2).[151]This case involved an application for paternity pursuant to the s10 of the Status of Children Act 1974 (Vic). Sub-section 10(1) provided as follows.
[151] [2008] VSC 214.
Any person… who –
(a)…
(b)…
(c)…
May apply to the Supreme Court for a declaration of parentage and if it is proved to the satisfaction of the court that the relationship exists the court may make a declaration of parentage whether or not the parent or the child or both of them are living or dead.
Bell J said this.[152]
Serious though the issue of paternity is, an application for a declaration of paternity is a civil application, and the standard of proof applicable in such proceedings is the ordinary civil standard, namely the balance of probabilities. As the High Court held in G v H in reference to the essentially beneficial nature of the paternity provisions of the Family Law Act 1975 (Cth), it was not necessary, in applications under those provisions, to prove paternity according to the higher civil standard that applies when the question involves a grave allegation. I think the paternity provisions of the Status of Children Act are analogous in this respect. Therefore, in an application for a declaration of paternity, it is sufficient to prove the facts according to the ordinary civil standard. The applicant does not have to achieve the higher civil standard discussed in Briginshaw v Briginshaw. The decision in G v H has overtaken the authority of earlier decisions that the higher standard was applicable.
Subsequent decisions of the Victorian Supreme Court have adopted and applied this approach.[153]
[152] At [4] (citations omitted).
[153] Helebrant v Perdic [2010] VSC 580 at [24]-[28] (Beach J); Re Estate of Della Vedova(dec’d) [2012] VSC 341 at [20]-[21] (Habersberger J).
The decisions of this court in P v T and W v C were given in the early 1980s. Since then, the trend of the authorities has been against the application of the criminal standard. I agree that the issue of paternity can be, and usually will be, of undoubted importance and significance to the parties involved. Nevertheless, I also agree with the reasoning in the later cases that there is no reason to approach the question of paternity as if it was a matter of such gravity as to require an analysis of the evidence different from that which would be undertaken in any ordinary civil proceeding. The language used in s9 of the Family Relationships Act (“if it is proved to the satisfaction of the court”) is not materially distinguishable from that used in the relevant provisions (set out above) in Victoria or Queensland. There is nothing about this language, in the context of an ordinary civil proceeding, to suggest that the standard of beyond reasonable doubt is called for.
Historically the illegitimate child was vilius nullius – “the son of nobody”.[154] Such a person was treated as a second class citizen, both legally and socially. Pursuant to changes in social attitudes and policy, legislation was passed throughout Australia in the mid-1970s which removed the legal distinction between legitimate and illegitimate children.[155] Notwithstanding this, and as can be discerned from the language used by and the approach of two judges of this court in P v T[156] and W v C,[157] a finding that someone was born illegitimately was perceived by many to be socially unacceptable and had the potential to cause prejudice to the person concerned and to the parents, in particular, to the mother.
[154] Co Litt, s 188, BL Com, vol 1, p447; R v Hodnett (1786) 1 TR 96, 99 ER 993.
[155] Status of Children Act 1978 (NT); Status of Children Act 1978 (Qld); Family Relationships Act 1975 (SA); Status of Children Act 1974 (Tas); Status of Children Act 1974 (Vic); see also Parentage Act 2004 (ACT) and Status of Children Act 1996 (NSW).
[156] (1980) 23 SASR 289.
[157] (1982) 29 SASR 345.
However, the effect of modern statutory approaches is such that very often a declaration of parentage, even though it may have the effect of establishing that a person had been born illegitimately, can be of great advantage to that person. It can be of great advantage financially such as would be the case in the present proceedings or following an application for maintenance under the Family Law Act. It also can be of significant benefit in other respects including providing the opportunity for a biological father and child to develop a close and rewarding relationship not necessarily in lieu of but often in addition to that which exists between that child and the person they believed, at first, to be their father. In the present case, there would be a certain artificiality about adopting a criminal standard or a Briginshaw type approach where the persons still living who would be most significantly affected by the declaration sought, the plaintiff and his mother, are positively advocating the claim.
I mention, only briefly, two other, considerations. The first is that, at least in South Australia, the legislation provides that where one of the parties to the putative parent/child relationship is deceased the claim (for a declaration of parentage) must be “supported by credible corroborative evidence”.[158] This adds a measure of protection where one of the parties most significantly affected by a declaration is not alive and able to give evidence on their own behalf. It will supply or add an additional evidentiary burden or safeguard notwithstanding that the onus remains on a balance of probabilities.[159]
[158] This does not appear to be a requirement in all other jurisdictions, see, for example, Victoria and Queensland.
[159] The value, in this respect, of a requirement of corroboration was identified by White AJ in Mackie v Bassing (1978) 18 SASR 292 at 304.
It is true that a finding of paternity, often against a young man, can have grave consequences for him but not necessarily for the mother or child, to whom alternative welfare relief may be available if the proceedings fail. One protection is already given to the defendant in the form of the requirement as to corroboration. … That is the safeguard built into the section which is designed to be a statutory component of the clarity of proof which is required in any civil proceedings where grave matter is alleged against a defendant.
Second, in the interest of comity and given the desirability of achieving consistent outcomes across all jurisdictions, it would be unfortunate if proceedings for declarations of parentage pursued in accordance with s9 of the Family Relationships Act would lead to results different from similar proceedings based on identical or very similar facts in other jurisdictions. If P v T were still good law in this State, it is conceivable that a child might obtain the benefit of a parenting declaration under the Family Law Act for maintenance purposes in circumstances where the child would not be entitled to such a declaration under s9 of the Family Relationships Act for estate distribution purposes. However, if the father should die after a declaration under the Family Law Act had been obtained, s7(c) of the Family Relationships Act would operate to give effect to the Family Law Act declaration (arrived at on a balance of probabilities with no application of Briginshaw principles). This would be so notwithstanding that it would stand in stark contrast with the requirement for any entitlement to a declaration under s9 of the Family Relationships Act to have been proved beyond reasonable doubt or on balance but with an application of Briginshaw principles, if one or other of the earlier lines of authority in this State were to be followed.
For these reasons, I take the view that the reasoning and the decisions of this court in P v T and W v C should not be followed and that an application under ss9(1) of the Family Relationships Act, such as the one presently before the court, is to be determined in accordance with the ordinary civil standard of proof, that is, on a balance of probabilities and without reference to or application of the considerations raised in Briginshaw v Briginshaw.
I agree with Thomas J in Re Pellitteri[160] that it would not be helpful to characterise the process as one involving percentage likelihoods such that a plaintiff need only establish a 51 per cent chance nor to ask whether the evidence is such as to “tip the scales”. I prefer to approach it from the perspective that the plaintiff must prove facts from which a conclusion can be reached, in the sense of an actual persuasion on a balance of probabilities, that Mr M was his biological father. “The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”[161]
[160] [1991] 1 Qd R 154.
[161] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 304 (Dixon CJ).
Credible corroborative evidence
Given that Mr M is deceased, ss9(4) of the Family Relationships Act requires that there be credible corroborative evidence to support the plaintiff’s claim before a declaration of parentage might be made. I am not aware of any case law dealing with the meaning and application of ss9(4). At the outset I make two observations about ss9(4). The first is that it is not readily apparent what, if any, work there is for the qualifier “credible” to do. All evidence before it is accepted as reliable, presumably has to be “credible”. In DPP v Hester Lord Morris observed:[162]
The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible evidence.
[162] [1973] AC 296 at 315; [1972] 3 All ER 1056 at 1065; (1972) 57 Cr App R 212 at 229.
The second initial observation is that ss9(4) identifies the “claim” as having to be supported by “credible corroborative evidence”. Ordinarily, corroborative evidence by its nature, will serve to corroborate other evidence not the “claim” itself. In the present case, the claim (that Mr M is the biological father of the plaintiff) has been brought by the plaintiff but, essentially, wholly in reliance on the evidence of his mother, Mrs H. It is not necessary for her evidence in its entirety to be corroborated, only that part which directly bears on the claim that the plaintiff was conceived following an act of sexual intercourse with Mr M.
In criminal law corroboration refers to independent evidence of some material fact which implicates (in the sense that it involves) the accused in the offence charged and tends to confirm that person’s guilt. The essence of corroborative evidence is that it confirms, or supports, or strengthens a complainant’s evidence in the sense that it renders it more probable.[163]
[163] R v Baskerville [1916] 2 KB 658; Doney v The Queen (1990) 171 CLR 207 at 211.
It has been held, with respect to affiliation proceedings, that such evidence must serve to implicate the putative father in a material particular.[164] Sholl J in Popovic v Derks[165] said this.
[C]orroboration is evidence rendering the factum probandum more probable by strengthening the proof of one or more facta probabilia. In an affiliation case the factum probandum is paternity. The most important factum probabile is intercourse at the material time. Corroboration may be of that factum probabile by evidence shewing that such intercourse was very likely, and thereby rendering more probable the complainant’s evidence thereof.
. . . .
The vital factor to be proved in a bastardy case is that a child is being born to the [mother] as the result of sexual connection with the man. From the nature of the case it is almost inevitable that there never will be any direct corroboration of sexual connection. The evidence in corroboration must always be circumstantial evidence of the main fact, that is to say, evidence from which it may be inferred that the main fact happened.
[164] Popovic v Derks [1961] VR 413; Thomas v Jones [1921] 1 KB 22; Kurth v Paff; ex parte Paff (1968) 62 QJPR 78.
[165] [1961] VR 413 at 418.
Corroboration does not mean the same thing as independent proof of the material fact in controversy.[166] Corroboration need not be independent evidence of everything which the corroborated witness says. Otherwise, the evidence of the latter (in this case Mrs H) would be unnecessary.[167] What is capable of amounting to corroboration is a question of law. Whether in a particular case it is to be accepted as such is a question of fact for the tribunal of fact.[168]
[166] Collie v Collie [1922] VLR 269 at 280 (Mann J).
[167] Popovic v Derks [1961] VR 413 at 419.
[168] Popovic v Derks at 420 and cases there cited.
Counsel for the plaintiff argued that the evidence of Mrs H, itself, satisfied the requirement for credible corroborative evidence. This cannot be so. Her evidence is the primary evidence in support of the plaintiff’s “claim”; it cannot also be the corroborating evidence. As Isaacs J observed in Ridley v Whipp,[169] corroboration must be by independent testimony and must be such as by its own force to support the contention in question.
[169] (1916) 22 CLR 381 at 392.
Evidence is not corroborative if it is "intractably neutral".[170] In R v Gill,[171] Redlich J explained this notion.
Evidence is not capable of constituting corroboration if indeed the evidence is intractably neutral, in the sense that it is incapable of being perceived as supporting the evidence of the accomplice in a relevant way. The difference between evidence which is incapable of supporting a particular hypothesis and evidence which is capable of supporting competing hypotheses is critical. In the latter circumstance, it will be for the tribunal of fact to consider which hypothesis such evidence supports.
[170] BRS v The Queen (1997) 191 CLR 275 at 297.
[171] (2003) 142 A Crim R 22 at [13].
In the present case, what is required is corroboration of that aspect of Mrs H’s evidence which forms the basis of the plaintiff’s claim. A failure by the plaintiff to produce credible corroborative evidence, that is, evidence in addition to and apart from that of his mother, would be fatal to the success of his claim.
In my view ss9(4) does not require the plaintiff to adduce evidence corroborative of Mrs H’s evidence that she knew and had a relationship of some nature with Mr M at a time prior to and around the birth of the plaintiff. Furthermore, for the reasons earlier expressed I see no reason to doubt that Mrs H has told the truth in this respect and that her evidence is reliable at least to this extent. Nevertheless, there are three matters of evidence which offer some independent corroboration and support to her evidence on this issue.
(i) The fact that the plaintiff carries the name “Andrew” together with the defendant’s evidence that Mr M had a nephew of the same (or very similar) name in Polish is consistent with and supports Mrs H’s account of allowing Mr M to be involved in the naming of the plaintiff for the reasons she gave.
(ii)Mrs M’s application for divorce (together with supporting documentation) filed in 1971 was consistent with Mrs H’s evidence and supported an inference that either Mrs H or Mr M or both had presented in such a way as to lead Mrs M to believe that they were engaged in an affair. This provides some corroboration of Mrs H’s evidence to the extent that, prior to and at the time of Mrs M’s allegations, Mrs H knew and associated, in some way, with Mr M.
(iii)The fact that Mrs H was prepared to tell her son of her shameful secret (corroborated by the evidence of the plaintiff) after some 40 or so years of keeping silent, given the inevitability that the information would come to the attention of her other adult children and more publically, is consistent with and corroborative of her account of a clandestine relationship with Mr M having taken place those 40 or so years ago.

The various descriptions by Mrs H of Mr M’s conduct and statements in her presence, whilst admissible as first hand observations indicative of Mr M’s state of mind and by and large consistent with and supportive of Mrs H’s evidence, are not independent of her evidence and do not qualify as corroborative evidence. The evidence of the “very romantic” letter received in 1960 also cannot be relied on by the plaintiff for this purpose. The conflict in the relevant authorities about the admissibility of such evidence is dealt with in Cross on Evidence.[172] In my view, in the circumstances of the present case, this letter can only be seen as “self-corroboration” and therefore of no corroborative value. In any event, it relates only to the very early, first stage of the alleged relationship in 1960 and cannot assist in determining what, if anything, occurred in and after 1968.
[172] 8^th Australian edition, JD Heydon LexisNexus Butterworths at [15050].
Similarly Mrs H’s evidence of telling a woman friend and a priest of her predicament can only amount to self-corroboration. Whilst it can be of some potential assistance with reference to Mrs H’s contemporaneous state of mind and credibility generally, it cannot assist with the ss9(4) requirement.
Findings and conclusion
I make the following findings of fact,[173] based on my acceptance of Mrs H’s evidence, subject to the qualifications as expressed.
(1)    Mrs H engaged in a sexual relationship with Mr M during the period from        approximately the beginning of 1968 until sometime in either 1971 or 1972.
(2)    The plaintiff was conceived in late March 1968 or a matter of weeks or so       either side of late March.
(3)    Prior to 1968 Mrs H did not engage in sexual intercourse with Mr M.
(4)    During her married years Mrs H only ever had two sexual partners, her    husband, Mr H, and Mr M. In this respect some (independent) corroboration, albeit of only limited weight, arises from the plaintiff’s          evidence that he had never, as a young person, seen his mother in a relationship with a man other than her husband.
(5)    GFH, Mrs H’s second child, was born 26 September 1961 and was,         therefore conceived at a time when Mrs H’s only sexual partner was her     husband, Mr H.
(6)    During the period 1968[174] to sometime in 1970 when Mrs H’s youngest child, PGH, was conceived (born 28 November 1970), Mrs H was having        sexual intercourse with both her husband, Mr H, and Mr M.
[173] These findings have been arrived at on the balance of probabilities. However, and if I am wrong as to the standard of proof, I would reach the same findings following a Briginshaw analysis. I recognise that it can be a serious or grave undertaking to make such a finding as ultimately sought by the plaintiff where, as here: the person who may have thought he was the biological father is now deceased, the person who had lived his whole life without assuming the role of father in any respect (and who, on the defence case, may not have been the biological father) is now deceased, the finding will determine inheritance issues and where four adult siblings, still living, may be detrimentally affected by new knowledge concerning the behaviour of their mother as a young mother towards another man and towards their now deceased father. If it was necessary to specifically take account of these matters when engaged in the “process of persuasion [or otherwise] of the mind”, I would reach the same conclusions.
[174] For the reasons earlier given, I cannot be satisfied on the basis of Mrs H's evidence taken in isolation that no acts of intercourse with her husband occurred in the first half of 1968.
If these were the only findings available on the state of the evidence, I would not be able to conclude even on a balance of probabilities, that Mr M was the father of the plaintiff. The fact that both men had “access” (as the older authorities quaintly put it) to Mrs H would mean that there would be nothing by which one or other of two conflicting inferences of equal degree of probability could be preferred.[175]
[175] Jones v Dunkel (1959) 101 CLR 304 (Dixon CJ).
However, Mrs H insists that during the early part of this period – specifically throughout 1968 and more specifically on 26 March 1968 – she was having sexual intercourse with Mr M but not with her husband. If this is correct then her husband cannot have been the father of the plaintiff. It is this evidence, central to the plaintiff’s case that, taken alone and for the reasons previously given, I would have difficulty in accepting. It is this aspect of the claim – access by Mr M and non-access by Mr H at the critical time – that would need to be corroborated pursuant to ss9(4) and as to which I would have required corroboration (or additional proof) in any event.
The DNA test evidence which conclusively demonstrates that the plaintiff and his older brother, GFH had different fathers supplies the necessary credible corroboration. That evidence, together with my acceptance of Mrs H’s evidence that she only ever had two sexual partners and was not in a sexual relationship with anyone other than her husband at the time of GFH’s conception, proves that Mr H is not the plaintiff’s father. It follows, from that evidence, that any access to Mrs H that Mr H may have had during or around March 1968 did not result in the plaintiff’s conception. The plaintiff must have been conceived by someone else. Mrs H only ever had two sexual partners; that someone else was Mr M.
Orders
The plaintiff is entitled to the declaration sought. The plaintiff is to prepare draft minutes of orders consistent with these reasons. As to the costs of the proceedings, my initial inclination is that the plaintiff would be entitled to an order that the defendant pay his costs on a party and party basis. I also incline to the view that the defendant would be entitled to an order that her own costs together with any costs payable to the plaintiff are to be paid from the estate on a full indemnity basis.
I have not heard from the parties on these matters and have not reached a concluded view. However, if the parties can reach an agreement on the question of costs the plaintiff is to include proposed orders for costs in the draft minutes. Otherwise I will hear from the parties further.