Hasan v Cousins and Foster

[2012] ACTSC 88

MOHAMMAD REAJUL HASAN v NICOLE COUSINS and STEPHEN FOSTER
[2012] ACTSC 88 (25 May 2012)

FAMILY LAW AND CHILD WELFARE – Child Welfare other than under Family Law Act 1975 and related acts – paternity – declaration as to parentage – standard of proof – order made.
PROCEDURE – Supreme Court procedure – consent orders – not to be made where court must exercise a discretion.

Births Deaths and Marriages Registration Act 1997 (ACT), s 16
Court Procedures Rules 2006 (ACT), r 1611
Parentage Act 2004 (ACT), ss 8, 19

Briginshaw v Briginshaw (1938) 60 CLR 336
Kemble v Ebner (2008) 39 Family LR 582
P v T (1980) 23 SASR 289
Re Pellitteri [1991] 1 Qd R 154
Re Y (1984) 36 SASR 584

EX TEMPORE JUDGMENT

No. SC 32 of 2012

Judge:             Refshauge J
Supreme Court of the ACT

Date:              25 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 32 of 2012
AUSTRALIAN CAPITAL TERRITORY           )          

MOHAMMAD REAJUL HASAN

Plaintiff

v

NICOLE COUSINS

First Defendant

and

STEPHEN FOSTER

Second Defendant

ORDER

Judge:  Refshauge J
Date:  25 May 2012
Place:  Canberra

THE COURT DECLARES THAT:

1. Pursuant to s 19 of the Parentage Act 2004 (ACT), Mohammad Reajul Hasan is the father of Rylee Gabrielle Cousins-Foster, an Australian citizen born in the ACT on 2 January 2005.

1. Mohammad Reajul Hasan has applied for an order under s 19 of the Parentage Act 2004 (ACT) (Parentage Act), that he be declared the father of Rylee Gabrielle Cousins-Foster, an Australian citizen born in the ACT on 2 January 2005.

1. In support of that application, he has filed an affidavit which asserts that he is the biological father of the child, whom I will call Rylee, who was born in 2005 as a result of a relationship that he had with the first-named respondent.

1. The relationship did not last as the mother realised that she was still in love with her previous partner and she returned to live with him. They now have a number of children together, one of whom I was privileged to have in Court with me today.

1. At the time of Rylee’s birth, however, her mother and the second respondent, “felt that it was more appropriate that [the second respondent] be listed as the father on the birth certificate” as “they wanted the children to feel as if they were all one family.”

1. Circumstances have, however, now changed and the applicant, Mr Hasan, wishes to become a permanent resident in Australia and has been required by the Department of Immigration and Citizenship to show evidence of Australian citizen dependents. 

1. The department has required him to produce DNA evidence or a birth certificate showing Rylee is his child. He is unable to afford the expense of DNA testing and the only way in which the birth certificate can now be changed is if an order such as that under s 19 can be made. Accordingly, he has now approached the Court for that purpose. Rylee’s mother and her current stepfather, if the parentage order is made, have agreed to the order.

1. The courts have traditionally considered that proof of parentage should be proof beyond reasonable doubt: see P v T (1980) 23 SASR 289 at 293–4. That, of course, is not surprising in cases of contest. However, more recently, the courts have considered that the appropriate standard of proof is on the balance of probabilities: see Re Y (1984) 36 SASR 584 at 589; Re Pellitteri [1991] 1 Qd R 154 at 158. That standard may need to be applied in the way outlined by Rich J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 350.

1. I have Mr Hasan’s unchallenged affidavit. I have the consent of the respondents. I also note the presumption under s 8 of the Parentage Act. 

1. In all the circumstances, I am satisfied, on the balance of probabilities to a degree of “comfortable satisfaction”, that Mohammad Reajul Hasan is the father of Rylee Gabrielle Cousins-Foster and I am prepared to make the order.

1. I note that the parties originally attempted to file a General Form of Consent Judgment. The respondents are not legally represented and, accordingly, were not able to have the necessary certification of their consent. In any event, under r 1611 of the Court Procedures Rules 2006 (ACT), a consent order can only be entered if it is of the nature of the order that the Court would ordinarily make by consent.

1. It does not seem to me that an order of parentage in these circumstances is one that should be made by consent; it is a discretionary matter and the Court should consider the evidence and be satisfied on the balance of probabilities, as the test now is, that the order is appropriate.  I have been satisfied accordingly and the consent of the respondents is an element in my satisfaction.

1. I note that a declaration under s 19 of the Parentage Act would amount to a finding under the Births Deaths and Marriages Registration Act 1997 (ACT), that Mr Hasan is the father of the child and the register would then be able to be, and would be amenable to being, amended under s 16 of the Births Deaths and Marriages Registration Act: see Kemble v Ebner (2008) 39 Family LR 582 at 583; [5].

1. In all the circumstances, I am satisfied that the order should be made and I will declare under s 19 of the Parentage Act that Mohammad Reajul Hasan is the father of Rylee Gabrielle Cousins-Foster, an Australian citizen born in the ACT on 2 January 2005.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date:    4 June 2012

Counsel for the applicant:  Mr O Harris
Solicitor for the applicant:  Harris Wake
Counsel for the respondents:   Self Represented
Date of hearing:  25 May 2012
Date of judgment:  25 May 2012