J and D

[2000] FamCA 1734

[2000] FamCA 1734

FAMILY LAW ACT 1975

IN THE FULL COURT  Appeal No EAL11 of 2000

OF THE FAMILY COURT OF AUSTRALIA                   Appeal No EA40 of 2000
AT SYDNEY  File No NC2583 of 1999

BETWEEN:

J
Appellant Father
- and -

D
Respondent Mother

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  NICHOLSON CJ, KAY & STRICKLAND JJ
DATE OF HEARING:         11 December 2000
DATE OF JUDGMENT:     11 December 2000

APPEARANCES:  Mr Trench of Counsel, instructed by Messrs Coleman & Greig, Solicitors, 100 George Street, Parramatta, NSW 2150, appeared on behalf of the Appellant Father.

Mr Lethbridge of Counsel, instructed by Legal Aid Commission of NSW, Level 4/75-76 Burwood Road, Burwood, NSW 2134, appeared on behalf of the Respondent Mother.

Name of Appeal  J v D
Appeal Number  EAL 11 and 41 of 2000
Date of Appeal Hearing       11 December 2000
Date of Judgment                 11 December 2000
Coram  Nicholson CJ, Kay and Strickland JJ

Catchwords: Family Law - Child Support - Order under s 106 of the Child Support (Assessment) Act 1989 that the mother is entitled to administrative assessment of child support - Alleged father disputes paternity.

Family Law - Evidence - Paternity - Onus of Proof.

This was an application for leave to appeal against the orders of Steele J made on 12 April 2000. His Honour had found that "J" was the father of the child K and that he was the father as the result of an act of sexual intercourse between J and the mother "D". He made an order that pursuant to s 106 of the Child Support (Assessment) Act 1989, the mother is entitled to administrative assessment of child support for the child K born January 1996, payable by J.

J strongly denied that intercourse had taken place.  He said that the mother had performed fellatio on him, that he had ejaculated into a condom, and that the mother took the condom into the bathroom saying at the time that she would take a shower.  He alleged that while she was in the bathroom the mother must have utilised his sperm to artificially impregnate herself.

Although was no evidence before the trial Judge of the practicalities of the mother impregnating herself in the circumstances alleged by J, his Honour's reasons assumed that it was both possible and viable for her to do so but he found the mother to be a truthful witness.

A parentage test revealed that there was a 99.97 per cent likelihood that J was the father of the child.  However, the mother said that she had had sexual intercourse with another man B some three weeks prior to the occasion that she had intercourse with J.  The mother said her sexual intercourse with B involved the use of a condom. 

The mother’s counsel indicated that B had been located and was prepared to undergo tests and give evidence in the matter.  However, prior to the resumption of the trial the solicitors for the mother wrote to the solicitors for J indicating that they did not propose to call B nor did they press the issue of paternity testing for him.

The principal ground of appeal before the Full Court asserted that his Honour erred in law in determining that the mother was relieved of the onus of proving B was not the father of the subject child by having him undergo tests and give evidence.

Held: (per curiam) refusing leave to appeal

1. The mother had established a prima facie case when she gave evidence that she had had unprotected sexual intercourse with J and adduced evidence from the parentage testing that there was a 99.97 per cent chance that J was the father of the child.  She was not under any obligation to also call evidence excluding the possibility of other people with whom she had had intercourse being the father of the child in the circumstances of this case. She had discharged the onus that lay upon her applying the Briginshaw test found in s 140 of the Evidence Act 1995 (Cth).

1. It was open to those advising J to have sought orders that paternity tests should be carried out on B to determine whether he was potentially the father of the child.  They elected not do so. 

(Additionally per Kay J, agreeing)

1. His Honour accepted the mother's evidence and found favourably as to her credibility.  An appellate court will not reverse findings of fact that depend to any substantial degree on credibility or demeanour unless the trial Judge has failed to use or has palpably misused his or her advantage or has acted on evidence which is inconsistent with facts incontrovertibly established by the evidence or which is glaringly improbable: State Rail Authority of New South Wales v. Earthline Constructions Pty Ltd(in Liq.) (1999) 73 ALJR 306; CDJ v VAJ (1998) FLC 92-828 par 41. The facts in this case met none of those tests.

REPORTABLE

NICHOLSON CJ:  

1. This is an appeal against a decision of Steele J in a case that commenced on 2-4 November 1999 and concluded on 7 April of this year. The application is an application for leave to appeal against his Honour’s order, that leave being required under the relevant child support legislation. His Honour on 12 April made an order that pursuant to s 106 of the Child Support (Assessment) Act 1989, the mother, is entitled to administrative assessment of child support for the child K born January 1996 payable by J.

1. In essence, his Honour decided that J was the father of the child K and that he was the father as the result of an act of sexual intercourse between J and the mother.  It is a case where the parties never cohabited but became acquainted with each other on one evening through a mutual friend, S, who was a former boyfriend of the mother.  It seems that in about Easter 1995 S contacted the mother and informed her that he and J were going on a motorbike trip and he made arrangements for them to stay overnight at the mother’s house.

1. It was alleged by the mother that during the overnight stay she and J had unprotected sexual intercourse whereupon the mother became pregnant.   J strongly denied the allegation of intercourse.  He said that after he had witnessed the mother performing fellatio upon S the mother offered to perform fellatio on him to which he agreed.  He said that he ejaculated into a condom that he was wearing and that the mother took the condom into the bathroom saying at the time that she would take a shower.

1. J alleged that while she was in the bathroom the mother must have utilised his sperm to artificially impregnate herself.  The evidence given by S was broadly corroborative of J’s claims.  Another witness who was called on behalf of the mother, C, gave evidence which his Honour considered was supportive of the mother’s version. 

1. The case broke into two parts because although parentage testing had been carried out before the first hearing it appears that it had been procedurally faulty.  His Honour ordered on 4 November 1999 that there be a further parentage test and the evidence eventually revealed that as a result of that test there was a 99.97 per cent likelihood that J was the father of the child.  However, the issue that arose during the case arose from the fact that the mother said that she had had sexual intercourse with B some three weeks prior to the occasion that she had intercourse with J.  The mother said that the intercourse that she had with B involved the use of a condom. 

1. The mother on her own evidence indicated that she had contacted both B and J after she discovered that she was pregnant and had suggested to both of them that they might be the father of the child.   S asserted that she had also contacted him and suggested that he might be the father of the child.  In the event his Honour accepted the evidence of the mother and determined the issue against J.

1. His Honour in the course of his judgment correctly indicated that the mother bore the onus of proof in the matter on the balance of probabilities.  He said that there might be some question of whether, having regard to what was said by the High Court in G v H (1994) FLC 92-504, s 140 of the Evidence Act 1995 operated to require the so-called Briginshaw standard to be applied. His Honour said that he had, as a matter of caution, applied the s 140 standard and he did so because he took the view that the consequences for J and for the child if he was found to be the father were serious.

1. His Honour’s findings were expressed by him as follows; he said that there was no evidence before him of the practicalities of the mother impregnating herself in the circumstances which arose as J had asked him to infer.  His Honour, however, said that any potential difficulties were not the subject of evidence and he was prepared to assume against the mother that for the purposes of the judgment it was both possible and viable for her to do so.  He said in a passage that I propose to read:

"Ultimately I have been satisfied to the requisite standard that the mother’s version of events is correct.  I have come to that conclusion for the following reasons:-

1.The fact that S has asserted that the mother rang him after she fell pregnant to inform him that he was the father (which the mother denies) and that J denies the mother rang him to inform him he was the father (as the mother asserts she did), cannot in my view be correct in the light of the undisputed evidence that the mother commenced proceedings against J and not S (without the benefit of parentage testing), and leads me to doubt much of the evidence given by S and J and to prefer the mother’s evidence.

2.If the mother had sought to "set S up" to be the father of the child, it would have been a simple matter for her to sleep with him without going through the difficult procedure suggested.  S’s evidence about whether he had intercourse that evening with the mother is that "she would not allow it".  The suggestion was that she sought to "set S up" by using the semen from his condom but when something went wrong in the process, she reverted to using J’s semen.

3.The mother has impressed me as a truthful witness who has candidly given evidence some of which may have been belittling and embarrassing for her.  She has candidly admitted that it was her fault she fell pregnant and no fault of J, who relied upon her contraceptive practice.

4.I am satisfied that a good deal of alcohol was consumed before the events in the flat occurred, which may explain differences in recollections but the recollections of the two males are remarkably similar.  Whilst I have a deal of sympathy for the position in which J finds himself, he does have considerable motivation to bend the truth.

5.The fact that C (whose evidence can fairly be criticised on the basis that she was affected by alcohol) supports the mother’s version of events.  She has no reason to lie.  I cannot accept the men’s version of events that she was not in the flat at all.

6.The fact that the mother will be paid a supporting parent’s benefit from the Government if she is unsuccessful in obtaining Child Support from J, tends to indicate that there is no significant financial motivation for her to lie."

1. I turn now to the grounds of appeal as they were argued by Mr Trench before us.  He abandoned the original grounds of appeal and we gave leave to add the following further grounds:

"1.That his Honour erred in law in determining that the respondent mother was relieved of the onus of proving B was not the father of the subject child by having him undergo tests and give evidence.

2.That his Honour erred in fact in determining that there was no evidence that B had agreed to undergo any tests.

3.That his Honour erred in re-stating the submission by the appellant in terms it was common ground that the gestation period is normally 40 weeks.

4.That his Honour erred in placing any weight on the speculations of the appellant as to why the respondent mother had allegedly rung S before the appellant and told S he was the father of the child and yet commenced the proceedings against the appellant without the benefit of blood tests.

5.That his Honour erred in fact in determining that C’s evidence supports the mother’s version of events."

1. I think it fair to say that the principal ground that Mr Trench relied upon was ground 1.  It should be noted that during the trial and, indeed, as at the time of the conclusion of the hearing [on 4 November 1999], the mother’s counsel indicated that B had been located and was in fact prepared to undergo tests and give evidence in the matter.  However, prior to the resumption of the trial the solicitors for the mother wrote to the solicitors for J indicating that they did not propose to call B nor did they press the issue of paternity testing for him.

1. At this stage it would have been clearly open to those advising J to have sought orders that tests should be carried out on B to determine whether he was potentially the father of the child.  This they chose not to do and Mr Trench very frankly pointed out that this was a tactical decision that had been taken upon the basis that if the testing of B produced a result that showed that there was a lesser probability of him being the father then the case against J would have been greatly strengthened.  However that may be, it seems to me that that is a matter of some significance and that having taken that tactical decision it is difficult for the father to now come before this court on appeal and say that in the absence of the mother proceeding with the tests of B that she has failed to discharge the onus of proof.

1. In this regard it is I think useful to refer to the decision of the High Court in G v H (1994) FLC 92-504 and in particular a passages at 81,243-4. The circumstances of G v H were, of course, different from the present case in that that was a case where the person being named as the father had refused to take a paternity test whereas, of course, in this case J has taken the test and the test has produced a very high degree of probability that he is the father. In the judgment of Brennan and McHugh JJ at 81,243 the following passage appears:

"When a question of paternity arises and the evidence discloses that one of two or more men must be the father but it is uncertain which of those men is the father, a slight preponderance of evidence tending to show that a particular man is the father may be sufficient to establish paternity if that man fails without reasonable excuse to comply with a parentage testing order.  That is because, first, paternity is an issue that, as between two or more men, is inherently difficult to prove without proper parentage testing, so that a slight preponderance of evidence may be all that can be offered in proof and, secondly, the testing procedures now available have been demonstrated to be so accurate that their results will almost inevitably conclude the issue. 

We do not suggest that paternity is not a serious issue.  It is serious because paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations.  The attribution of paternity may be seen by a child’s mother to be no more than the means of procuring a maintenance order during the child’s infancy, but a finding that a particular man is the child’s father might well be of greater significance to the child in establishing his or her lifetime identity.  But, when a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response..."

1. After referring to an earlier decision of the High Court in Weissensteiner v The Queen, their Honours continued:

”In order that justice be done so far as the nature of the subject permits, the burden of proof of paternity in proceedings for the maintenance of a child born to an unmarried mother must be discharged when the party on whom it rests adduces the evidence available to her or him and that evidence tilts the balance of probability in favour of the paternity alleged and the putative father, having the sole capacity to provide conclusive evidence by submitting to a parentage testing order, fails or refused to do so."

1. Their Honours then referred to a passage from the trial judge’s judgment where he said:

"The evidence of the appellant raises a sufficient prima facie case against the respondent.  That there was a prima facie case is implicit in the finding that the respondent’s refusal to undergo parentage testing was unreasonable.  Having regard to the practically conclusive evidence which only he can make available, he has not sufficiently answered the appellant’s case."

1. There are several aspects of that passage which I believe are of assistance in considering his Honour’s decision in this case, albeit that the remarks are made in relation to a different fact situation.  It seems to me that in this case the mother clearly did establish a prima facie case when she gave evidence that she had had unprotected sexual intercourse with J which evidence his Honour accepted and when she adduced evidence from the parentage testing that there was a 99.97 per cent chance that J was the father of the child.

1. I do not consider that she was under any obligation, given that evidence, to also call evidence excluding the possibility of other people with whom she had had intercourse being the father of the child in the circumstances of this case.  It seems to me on that evidence she had discharged the onus that lay upon her, applying the Briginshaw test, and if J had wished to call other evidence then it was open to him to do so and for tactical reasons he felt that that was unnecessary.  I therefore consider that the first ground of appeal is not made out.

1. I turn now to the remaining grounds of appeal which I think can be dealt with fairly quickly.  It is clear that his Honour did err in fact in determining that there was no evidence that B had agreed to undergo any tests.  However, in my view that error in no way vitiates his Honour’s judgment but, rather, underlines the point that I have already made that the appellant being aware that he had agreed to undergo tests did not see fit to have those tests carried out.

1. The third ground of appeal was that his Honour erred in re-stating the submission by the appellant in terms that it was common ground that the gestation period is normally 40 weeks.  Mr Trench said that there was no such submission or concession made and that it was the appellant’s case that no normal gestation period had been established and no medical evidence had been called on behalf of the mother.  Mr Trench sought to rely upon a hospital record which suggested that the child was 41 weeks at birth.  However, he conceded during the course of argument that the reference to 41 weeks did not clarify whether it was 41 weeks from conception or 41 weeks from the date of the last period.

1. In my view the issue in relation to the question of the gestation period in this case is and should not have been of any assistance.  It is reasonably clear that the mother had intercourse with both B and with J over a three week time span which could have meant that either were the father of the child and I do not consider there was anything that would support the view, quite apart from the evidence of the tests, that one was more likely to be the father than the other, other than a negative inference which might be drawn from the mother’s evidence accepted by his Honour, that the intercourse with B was with the use of a condom and the intercourse with J was unprotected.

1. Ground 4 asserted that his Honour erred in placing weight on the speculations of the appellant as to why the mother had allegedly rung S before the appellant and told S he was the father of the child and yet commenced the proceedings against the appellant without the benefit of blood tests.  In my view there may be something in this submission but any such error on the part of his Honour does not in my view vitiate his judgment.  The real substance of his Honour’s judgment was he accepted that sexual intercourse had taken place between J and the mother and he had before him evidence which suggested almost conclusively that J was the father of the child.

1. The same I think can be said of ground 5, which suggests that his Honour erred in fact in determining that C’s evidence supported the mother’s version of events.  Mr Trench argued that the evidence of C was very much affected by the amount of alcohol that she had consumed and that there were aspects about her evidence which suggested that she may have been confusing the events of this night with the events of another occasion when she was at the mother’s house and sexual activity took place with other people.

1. I consider, however, that this was a matter for his Honour to weigh up and assess and his Honour was, in my view, entitled to take the view that and to accept that C was present on the night in question contrary to the evidence of the males and that that in itself, without more, provided some corroboration of the mother’s story.  However, in the final analysis as I have said I do not consider that that was a vital aspect in supporting his Honour’s decision for the reasons already given.  I would therefore not grant leave to appeal.

KAY J:

I agree with the reasons given by the Chief Justice.  There are one or two matters in Steele J's judgment that raise concern but not to the point where I would allow the appeal.  His Honour’s reasons for preferring the respondent’s evidence in this appeal to that of the appellant have already been outlined.  In two of those passages the learned trial Judge says that he cannot accept a version of events.  I do not read the evidence as precluding those versions of events to the point where one would say they cannot be accepted. The conflict of evidence could safely lead his Honour to say that he does not accept the evidence rather than "cannot".  I think the crux of his Honour’s judgment ultimately is that he accepted the viva voce evidence of the mother and in particular he said that the mother had impressed him as a truthful witness.

1. The reluctance of an appellate court to interfere with such a finding is well-known although the matter has been recently looked at again in State Rail Authority of New South Wales v. Earthline Constructions Pty Ltd(in Liq.) (1999) 73 ALJR 306. It is conveniently summarised by Gaudron J in CDJ v VAJ (1998) FLC 92-828 par 41 where her Honour reminds the reader of the well-established rules that an appellate court will not reverse findings of fact that depend to any substantial degree on credibility or demeanour unless the trial judge has failed to use or has palpably misused his advantage or has acted on evidence which is inconsistent with facts incontrovertibly established by the evidence or which is glaringly improbable. In my view, the facts as outlined in this case meet none of those tests. For those reasons and the reasons given by the Chief Justice I would not grant leave to appeal.

STRICKLAND J:  

1. I agree with the reasons given by the Chief Justice and I would not grant leave to appeal.

NICHOLSON CJ:  

1. The order of the court then will be that leave to appeal is refused.  Perhaps I should briefly elaborate because I did not deal with the leave to appeal issue beyond saying that it was strictly an application for leave to appeal, but I indicated during the course of argument that we took the view that if a point was argued that warranted the grant of leave to appeal then it would follow that leave to appeal would be granted.

RECORDED:NOT TRANSCRIBED   

NICHOLSON CJ:  

1. We have considered this matter and we think this is not a case in which we see any reason in which to make an order for costs so the order will simply be as I have stated.

________________________

I certify that the preceding 26
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Associate