H, AM v L, L

Case [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…

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H, AM v L, L [2013] SASC 7
Case
[2013] SASC 7
Decision Date

CaseChat Overview and Summary

The matter of H, AM v L, L involves a claim by the plaintiff, AMH, to establish parentage, specifically seeking a declaration that LM is his biological father. The case was heard in the South Australian Supreme Court. The primary legal issues revolved around the standard of proof required for the plaintiff to successfully establish parentage, particularly given that one of the parties, LM, was deceased, and the need for credible corroborative evidence as stipulated by section 9(4) of the Family Relationships Act 1975 (SA).

The court had to address the onus of proof and the necessity for corroborative evidence to support the plaintiff's claim. The plaintiff's mother, Mrs H, provided critical evidence, asserting an extramarital affair with LM during a specific period, which she claimed resulted in the plaintiff's conception. However, the court had to assess the credibility and sufficiency of her testimony in light of statutory requirements and common law principles.

The court ultimately found that the plaintiff's mother's evidence, though accepted as truthful, did not provide the necessary corroborative evidence to satisfy section 9(4) of the Act. The court concluded that there was insufficient independent evidence to corroborate the mother's claim about the period of conception and the existence of the relationship with LM. Consequently, the court was unable to make the declaration of parentage sought by the plaintiff.

The final orders of the court were that the plaintiff's claim for a declaration of parentage be dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 EvidenceAMH (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.

Decision

Reasons for decision

NICHOLSON J
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).

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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).