H and G
[2003] FMCAfam 121
•15 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & G | [2003] FMCAfam 121 |
| CHILD SUPPORT – Paternity – application for declaration by unsuccessful carer applicant for administrative assessment – presumption of parentage – declaration of parentage – alleged father disputes paternity. FAMILY LAW – Evidence – paternity – onus of proof. Child Support (Assessment) Act 1989, s.106 J v D (2000) 27 Fam LR 455; FLC 93-062 |
| Applicant: | N H |
| Respondent: | A K G |
| File No: | PAM 3801 of 2002 |
| Delivered on: | 15 April 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 18 March 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Legal Aid Commission of NSW |
| Solicitor for the Respondent: | Mr Harman |
ORDERS
Pursuant to section 69VA of the Family Law Act, it is declared that the Respondent A K G is the father of the child F R H born 25 February 2002. It is further declared that the Respondent is a resident of Australia.
Pursuant to the provisions of section 106(1) of the Child Support (Assessment) Act, the Applicant mother is entitled to administrative assessment of child support payable by the Respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3801 of 2002
| N H |
Applicant
And
| A K G |
Respondent
REASONS FOR JUDGMENT
The Applicant, who is the mother of a child called F R H, seeks a declaration that the Respondent is the father of her child. She also seeks a declaration that she is entitled to an administrative assessment of child support payable by the Respondent.
The Respondent has not filed any documents in reply.
Background
The Applicant says that on one occasion, on about 22nd July 2001, she had sexual intercourse in a car with the Respondent. She also says that she has never had a sexual relationship with any other man. On 25th February 2002, the child Faith was born.
The Applicant applied for an assessment of child support, but the application was refused, because the Respondent’s name did not appear on the child’s birth certificate and there was no evidence that the parties had cohabited during the relevant time. The Applicant and the Respondent were never married.
The Applicant then lodged an objection to the Child Support Agency against the refusal of the Registrar to accept her application for administrative assessment of child support. This objection was unsuccessful.
The Applicant then brought the present application. The application was served on the Respondent, and he appeared at Court on 12th November 2002. He was not legally represented. The Application was adjourned to 26th November 2002. On that occasion, the Respondent again appeared unrepresented, and he agreed to an order to submit to parentage testing with an authorised testing laboratory.
The parties provided the appropriate samples for testing, and a report issued from S Scientific Services dated 14th February 2003, saying that the Respondent was the biological father of the child. The report stated that “the Probability of Paternity is 99.91%”.
Despite this report, the Respondent alleges that he is not the father of the child, saying that there must have been a mistake in the test. He says that he did not have intercourse with the Applicant.
Evidence
The Applicant gave evidence that she was 15 years of age at the time she says that intercourse took place. She said that she was born on
5th March 1986. She was working as a checkout girl at a supermarket, where she met the Respondent, who was also employed there. On the day in question, the Applicant says that she met the Respondent in Parramatta, where he picked her up in his car. After they went into town, they drove to an area where she said he removed her stockings and underpants and attempted to have intercourse with her.
It was put to the Applicant in cross-examination that the Respondent at no time had intercourse with her. She said that he did. She said that he came “very close” to putting his penis in her but she did not “feel anything”.[1] She agreed that she had two other boyfriends but that prior to that date she had not had sexual intercourse with any other male.
[1] Transcript 18/03/03 page 2
The Applicant agreed that the Respondent never actually placed his penis inside her and she did not know that he had ejaculated inside her. She said that she and the Respondent had tried about five or six times to get his penis into her vagina but were unsuccessful, because, as she said, “he was too big and I was too small” .
She said that she avoided the Respondent after that. When she discovered that she was pregnant, her brother telephoned the Respondent, and later her mother did.
The Respondent told the court that the Applicant had been in the car with him, but he denied that he had touched her. He specifically denied kissing the Applicant, or removing any of her clothing, or having sex with her. He denied any attempt to place his penis inside her.
When asked how he could explain the report from the testing laboratory that said there was a 99.91% probability that he was the child’s father, he said he did not know. The only explanation that he could give was that “I’m pretty sure that I didn’t have any relations”.[2]
[2] Transcript 18/03/03 page 16.
The relevant law
Section 69VA allows the Court, as well as deciding the issue of the parentage for the purposes of proceedings, to make a declaration of parentage. Section 69W empowers the Court to make an order that parties should undergo a parentage testing procedure if the parentage of a child is a question in issue in proceedings before the Court. Section 69X enables the Court to make specific orders to require a person concerned to submit to a medical procedure or provide the necessary sample so that the parentage testing can be carried out.
The matter was considered by the Full Court of the Family Court of Australia in J v D (2000) 27 Fam LR 455; FLC 93-062, which was a case where a mother had sought a declaration of paternity against the Respondent, and a parentage test revealed that there was a 99.97% likelihood that the Respondent was the father of her child. The mother admitted that some three weeks previously she had had sexual intercourse with another man but that he had used a condom. The Respondent said that on the occasion in question the Applicant had performed fellatio on him, but he had used a condom. He submitted that the mother must have used his sperm to artificially impregnate herself.
The Full Court held that the mother had established a prima facie case when she gave evidence that she had unprotected sexual intercourse with the Respondent and adduced evidence from the parentage testing that there was a 99.97% chance that the Respondent was the father was her child. She was not under any obligation to call evidence excluding the possibility of other people with whom she had had intercourse being the father of the child in the circumstances of the case. She had discharged the onus that lay upon her applying the Briginshaw test found in s.140 of the Evidence Act 1995 (Cth).
Conclusions
In the present case, I have had the opportunity of seeing and hearing the Applicant and the Respondent give oral evidence. The Applicant has given evidence of an act of partial intercourse between the Respondent and herself. She has given evidence that she did not have intercourse with any other man prior to the act of intercourse she alleged with the Respondent. She said that her family members contacted the Respondent after it was discovered that she was pregnant. I formed the impression that the Applicant was a truthful witness who spoke candidly about an incident that was obviously embarrassing to her.
There is clear evidence that the parties provided samples for the purpose of parentage testing and that the report indicates a 99.91 per cent probability that the Respondent is the father of the child. It is trite to say that this is a high percentage, although it does not exclude every male person in Australia. In his submission on behalf of the Respondent, Mr Harman estimated that .09 per cent of the male population were potential fathers, a group slightly in excess of 3000 people. The fact is that there is no evidence whatsoever that the Applicant had intercourse with any other person, let alone a member of this group of 3000 males.
The Respondent is unable to offer any explanation as to how the parentage test returned such a high percentage probability that he is the father of the child. He maintained his denial that he had had sexual intercourse with the Applicant. The Respondent did not seek to challenge the way in which the test was carried out, nor did he even file any affidavit material. He did not obtain legal advice until his solicitor, Mr Harman, accepted a pro bono referral from the Court, on the day of the hearing. It is to Mr Harman’s credit that he represented the Respondent without charge.
In forming that view, I am conscious of the decision of the High Court of Australia in G v H (1994) FLC 92-504, where it was said that s.140 of the Evidence Act 1995 operated to require the Briginshaw standard to be applied. Section 140(2) requires the Court to take into account the nature of the cause of action or defence, and the nature of the subject matter of the proceeding, and the gravity of the matters alleged. I have done so in this case. It was put to me in submissions on behalf of the Respondent that the consequences of the declaration that I am asked to make are serious, imposing 17 years of child support liability on the Respondent, and I accept that this is a matter of considerable gravity. Such a finding will have long-term consequences for the Applicant, the Respondent and the child herself.
In this case, orders were made for parentage testing, to which the Respondent consented. He complied with those orders, and the result of the test shows a very high probability that the Respondent is the father. The Respondent has given no evidence to show that there is any challenge to the testing procedure, except to maintain his denial of having intercourse with the Applicant. I consider it to be relevant that there is unchallenged evidence that the Applicant was under the age of 16 at the time she alleges that the Respondent had intercourse with her, which means that she was under the age of consent to intercourse.
I have considered all the evidence, bearing in mind the matters referred to in s.140 of the Evidence Act. I accept the evidence of the Applicant. I am satisfied, therefore, that I should make a declaration pursuant to the provisions of section 69VA of the Family Law Act 1975 that the Respondent A K G is the father of the child F R H, born on the 25th February 2002. I declare that the Respondent is a resident of Australia.
I further declare that, pursuant to the provisions of s.106(1) of the Child Support (Assessment) Act 1989, the Applicant, N H, is entitled to administrative assessment of child support for the child, payable by the Respondent.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 11 April 2003
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