JFL & TP

[1999] FamCA 335

[1999] FamCA 335  

FAMILY COURT OF AUSTRALIA

AT MELBOURNE  File No. ML  of 1998

IN THE MATTER OF:

JFL  (Applicant)

and

TP  (Respondent)

JUDGMENT OF THE HONOURABLE JUSTICE SMITHERS

DATES OF HEARING:        25 & 26 March 1999
DATE OF JUDGMENT:      15 April 1999

APPEARANCES:

Mr Pascoe of Counsel (Instructed by Mr G.J. Black, DX 16102 WILLIAMSTOWN) appeared on behalf of the Applicant

Mr St John of Counsel (Instructed by Robertson Ramsay & Waites, 209 North Road, CAULFIELD    VIC    3162) appeared on behalf of the Respondent

1. Before the Court is an Amended Application in accordance with Form 12 in which certain orders are sought by the Applicant mother JFL relating to her child KAL who was born on 14 June 1983.  The Applicant contends that the Respondent TP is the father of the child and seeks orders that a DNA typing parentage testing procedure be undergone and seeks that the Respondent pay maintenance in respect of the child in the sum of $200 per week.  The Respondent by his Response seeks that the mother’s application be permanently stayed or dismissed.

1. The issue for determination is the preliminary one as to whether the Court should exercise its jurisdiction under sections 69V, W and X by making a parentage testing order.

1. This is not the first claim by the Applicant against the Respondent that he pay maintenance for the child.  On 22 February 1984 the Applicant filed a summons seeking just such relief under the Maintenance Act (Vic.) in the Magistrates’ Court at Prahran.

1. The Applicant claims that there existed a sexual relationship between her and the Respondent between July 1981 and October 1982, and she puts the date of conception of the child K at 11 October 1982.  The Respondent admits to such a relationship between the latter part of 1981 and “a significant portion of 1982”.

1. By agreement between the parties, before the hearing on 28 June 1984, there was scientific testing of blood samples of the Applicant, the Respondent, and the child.  The results of the tests are set out in the evidence before me.

1. Dr T, of the Royal Melbourne Hospital Tissue Typing Laboratories, in his report of 30 May 1984, explained the findings as involving the proposition that there was an 83.2% chance that the Respondent was the father of the child.  He said “Expressed in another form Mr P is five times more likely to be the logical father of K than a man selected at random from the Melbourne population (paternity index)”.

1. The mother’s application was duly heard in the Magistrates’ Court and it was dismissed.  There was no declaration as to whether or not the Respondent was K’s father, but it is agreed between the parties that the basis of the dismissal was that the Court was not satisfied that the Respondent was the child’s father.  It is agreed that this was the finding of the Court.

1. The Applicant appealed against the decision to the County Court, but on 10 December 1984 she abandoned the appeal.

1. The present application is brought on the basis that scientific procedures are now available which provide a very high degree of probability indeed, as to the issue of parentage.  Dr  T has sworn a recent affidavit in which he says:

   “Although the results reported (referring to the 1984 results) are correct and we stand by them today, our understanding of the complexity of the HLA system, the technology we use to detect the different HLA types, and the use of other gene systems in determining paternity, have changed dramatically over the last 14 years, to the extent that these particular tests if repeated today could provide different conclusions.”

1. Later Dr T said:

   “If these additional tests were performed today on Ms JL, Mr P and KL, they would either exclude Mr P as the father of K or increase the probability to a level which would be considered more than satisfactory proof of paternity.”

1. The Respondent did not seek to adduce evidence contrary to that of Dr T, as to the huge advances made in the last fourteen years in terms of the significance of the paternity results which are now, as compared with then, available.

1. The Respondent contends however that it is not open to the Applicant to bring another claim for child maintenance, or, as a preliminary matter, for the testing of the three persons involved, as the issues and the claim have already been determined.  He relies on the principles of res judicata and issue estoppel.

1. Definitions of these principles are found in the cases of Blair v Curran (1939) 62 CLR 464 and Jackson v Goldsmith (1950) 81 CLR 446. In Blair v Curran at page 531 and 532 Dixon J said:

   “A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.  The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.  The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment so that it is merged and has no longer an independent existence while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”

1. In Jackson v Goldsmith Fullagar J (who dissented as to the outcome of the case) stated at page 466:

   “The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action.  This rule is not, to my mind, correctly classified under the heading of estoppel at all.”

1. He said that it was a broad rule of public policy.  It was based on the public interest that there should be an end to litigation.

16.Fullagar J went on to say at page 466:

“The rule as to issue estoppel is generally stated in the words of Lord Ellenborough in Outram v Morewood (3).  His Lordship said that parties and privies are ‘precluded from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them . . . has been, on such issue joined, solemnly found against them.’  This is, I think,  a true case of estoppel, analogous to estoppel by deed and estoppel by representation.”

1. In the case of Port of Melbourne Authority v Anshun (1981) 147 CLR 589, a commercial matter, the High Court found an estoppel existed where it had been unreasonable in the first action not to raise as a defence a certain indemnity agreement on the basis that it was so closely connected with the subject matter of that action that it was to be expected that it would have been raised in that action.

1. It was submitted on behalf of the Applicant that the application for testing is a discrete preliminary step in a maintenance application and that as such it does not constitute the same cause of action as the earlier Maintenance Act summons, and that accordingly the principle of res judicata does not apply.

1. There was no court decision in 1984 that there should be a blood test.  It was carried out by agreement of the parties.  In these circumstances, I do not consider that there is a bar to the Court exercising its discretion to order paternity tests.  On the other hand it seems to me that it would be a factor in the exercise of the discretion as to whether to order tests in the current application, as to whether the substantive claim for maintenance and the hearing of the claim with regard to paternity, would be barred by the principles of res judicata or issue estoppel.

1. A further submission by the Applicant is that what was decided was not simply that the Court was not satisfied on the balance of probabilities that the Respondent was the father but that it was not satisfied of this on the available evidence.  I consider this to be a distinction without a difference.  As was put on behalf of the Respondent, if the distinction was of the importance contended for, then there would never be an issue estoppel; all findings are based on the evidence produced in the case under consideration.

1. The Applicant’s alternative claim is that paternity and child welfare cases constitute an exception to the rule of res judicata.  Reference was made to the passage in Bourke & Fogarty “Maintenance Custody and Adoption” at pages 23 and 24:

   “Authorities in both Australia and England suggest that claims in respect of an illegitimate child constitute an exception of the general rule of res judicata and that a dismissal of such a complaint is no bar to the issuing of a subsequent complaint.”

Counsel referred to the two Victorian cases of R v McCormick; Ex parte Brennan (1878) 4 VLR (L) 36, Trigg v Kettle (1915) VLR 167, and to Re F (W) (an infant) (1969) 3 All ER 595.

1. In the first case a summons for the maintenance of an illegitimate child had been dismissed upon the basis that the necessary corroborating evidence had not been provided.  In a later proceeding seeking the identical relief, corroborative evidence was given and a decision was made in favour of the complainant mother.  The validity of this second decision was impugned in the Supreme Court upon the basis of res judicata.  In determining that the second decision was valid, the Court said:

   “The cases of R. v. Machen (a), R. v. Gaunt (b), and R. v. Glynne (c), to which we were referred, are authorities that, where an application for a bastardy order is made to justices out of sessions, their dismissal is not a bar to an application to other justices; although, ‘when the dismissal is upon the merits, the justices, on any subsequent application, ought to defer so much to the former decision, as to treat the matter as res judicata, unless it be shown that what may be called the first trial was, for some reason or other, not fair:’  per Blackburn, J., in R. v. Gaunt (b).  We question whether, on the present application to quash, we are at liberty to treat this observation as deciding a point of law, or merely offering a suggestion for the guidance of justices; but, as in this instance no corroborative evidence whatever was given on the hearing of the first complaint, the observations of the Lord Chief Justice, in R. v. Harrington (d), justify our holding that under the circumstances of that hearing, the so-called decision might be looked upon as in the nature of a nonsuit, and, on the present application, we cannot decide that the justices were precluded in law from entertaining the case.”

1. In Trigg v Kettle Hood J concluded, as stated in the headnote of the report that:

   “The dismissal, even though on the merits, of a complaint on behalf of an illegitimate child against the putative father for maintenance, is not a bar to a fresh complaint.”

1. The first decision in Trigg v Kettle was made on 30 July 1914 in the Court of Petty Sessions at Colac and the subsequent case was heard at the Northcote Court of Petty Sessions on 14 September 1914.  It was not known what was the precise ground on which the earlier summons was dismissed.

1. In coming to his decision Hood J said:

   “The real explanation is that the complainant applies to the magistrates to make an order; but if they will not make an order, no one is bound.”

1. Also he said:

   “It may be, as suggested in one of the cases cited, that a wife fails on the hearing of a complaint, to prove her marriage, or it may be that, on the first hearing, it is not proved that the defendant is the father of the child, or that the complainant has no corroborative evidence as required by the Statute, or that the wife or child is not then without means of support, or that the defendant is not able to contribute to their support.  But a month or two afterwards the child may be without means of support, and the man able to support it, and it would be hard to say that a fresh complaint may not then be made.”

1. The English case of Re F is a more modern decision.  It was decided by Pennycuick J in the Chancery Division of the High Court.  In that case there had been an issue as to paternity of a child.  Again there had been a dismissal of a claim for child maintenance, and a subsequent identical application made.  The evidence in the second case corresponded in all relevant respects with that given at the first hearing.  The justices in the second hearing made a maintenance order.

1. Pennycuick J set aside the order in the second case because of the fact that there was no difference in the evidence adduced in the two hearings.  However he pointed out that the principle of res judicata was not applicable.  He said:

   “There is no doubt that the present case contains many of the elements which go to make up res judicata between two parties.  However counsel referred me to a line of authorities which make it perfectly clear to my mind that the principle of res judicata is not applicable in the present case.”

1. The judge referred to and discussed a number of cases.  In one of these, the case of R v Harrington (1864) 9LT 721, stress was laid by the three judges comprising the Court on the question as to whether any fresh evidence had been produced on the second occasion. Oliver J said:

   “Technically there is nothing to prevent an application being reheard in certain cases.  That right, however, should obviously only be exercised in cases where there is fresh evidence of a serious kind.”

1. It was put on behalf of the Respondent that the jurisdiction to hear a further complaint did not mean that an issue estoppel did not arise in respect of an earlier finding that, for example, it had not been established that the Respondent was the father of the child.  I do not agree as to this.  It seems to me that the authorities referred to in the decision, and the words of Pennycuick J, mean that if there is significant new evidence, a new hearing can be held and a different decision can be reached, including on an issue previously decided.

1. Pennycuick J seemed to view the desirability of the principle of putting an end to litigation in cases of this sort as being taken sufficiently far, by confining it to cases where there is no other or fresh evidence produced in the second case.  As to this he said at page 600:

   “I think that it is probably right to relate the statements quoted above as to hearing the same case on the same evidence to the broad principle on which the principle res judicata is based, namely, that it is in the public interest that there should be an end to litigation, and that nobody should be troubled twice by the same case.”

1. It seems that for a long period the same general approach has been followed with respect to second applications to the Court in both England and Australia.  Implicit in these cases seems to be a concern that in serious matters such as paternity, and the support of children, the Courts are anxious that the correct decision is arrived at even though this might require a second hearing of a case; in other words that this may have to be the price to pay for the proper fulfilment of the Court’s obligations to children in such circumstances.

1. In the view of the learned authors of Halisbury’s Laws of England 4^th edition Vol. 16 at [979] the doctrine of estoppel “has been in retreat in matrimonial proceedings for the last twenty or thirty years”.  The cases referred to in Halsbury for this proposition were considered in the case of Schorel and Schorel, 14 Family Law Reports 105, a decision of the Full Court of the Family Court of May 1990.  The issue in Schorel is stated in the headnote as follows:

   “The husband issued a divorce application in which he set out that the four children in the wife’s custody were all ‘children of the marriage’ (s55A). Custody proceedings were pending and there was a dispute about the paternity of three of the four children. At the divorce hearing, the wife’s solicitor informed the judge about the paternity issue, but said that for the purposes of the divorce hearing, they were not opposing the grant of a declaration in regard to the ‘children of the marriage’ under the Family Law Act 1975 (Cth) s55A.

At a subsequent hearing, the husband argued that the judge’s declaration for the purposes of s55A that all four children were ‘children of the marriage’ created an issue estoppel. The trial judge rejected this and also ordered that the husband and wife and the four children have blood tests pursuant to the Family Law Act 1975 (Cth) s66w. The husband appealed.”

1. The Court concluded, in the words of the joint judgment at page 115, that:

   “Issue estoppel has a very limited application generally in family law, whether in relation to the narrower issue of paternity or in relation to other issues which may have previously been determined between the parties, as particularly the English cases referred to above amply demonstrate.  It is unnecessary for present purposes to consider the outward limits of this view, except perhaps to add that where a matter has been clearly and directly put in issue in contested family law proceedings it may not be open to a party in ordinary circumstances to continue to relitigate that same issue in subsequent proceedings.

Accordingly, we conclude that no issue of estoppel arises in this case.”

1. Further, the court, said:

   “Assuming for the purposes of this discussion that a declaration under s55A can form the basis for an issue estoppel relating to the children referred to (or not referred to) in that declaration, a matter about which we have considerable reservations, it appears to us that no such issue estoppel as that contended by the appellant in this case should arise. Issue estoppel has at best a very limited application in family law proceedings, for reasons referred to in the above cases. Public policy, upon which estoppel is based, does not support the use of that doctrine within this jurisdiction – at least in its jurisdiction in relation to the custody of children. The court had a clear obligation to concern itself with the welfare and interests of the child or children concerned and may not allow that duty to be circumscribed by what are basically technical rules of evidence. Although the adults are the parties in custody and like proceedings, the real ‘party’ is the child whose welfare is being considered. If a child in such a case was separately represented it would be difficult to envisage that the separate representative would be estopped from raising an issue such as paternity.”

1. In the context of issue estoppel or res judicata I do not see that a paternity issue or a child maintenance issue should be looked at differently, in this context, from a child custody case.

1. It was submitted for the Applicant that the circumstances of this case are far from ordinary, and that thus the words in Schorel:

“….. where a matter has been clearly and directly put in issue in contested family law proceedings it may not be open to a party in ordinary circumstances to continue to relitigate that same issue in subsequent proceedings:”

do not preclude a further hearing in respect of the same issues.  I agree with the submission as I believe that the new evidence, if obtained, would be of fundamental importance in establishing whether the Respondent is K’s father and thus grounding effectively the child maintenance case, or causing its dismissal, perhaps or probably without more.  I believe that this case comes within the principles of Schorel and the other cases referred to in that case. 

1. Part of the rationale for this approach is the importance of the Court looking after the interests of children. As pointed out by counsel for the Applicant, an objective of Part VII of the Family Law Act as stated in section 60B(2) is:

   “The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; …..”

1. Also in S v McC (1972) AC 24 at page 59 Lord Hodson said:

   “…. in view of the fact that it must surely be in the best interests of the child in most cases that paternity doubts should be resolved by the best evidence, and, as in adoption, the child be told the truth as soon as possible.”

1. Counsel for the Respondent relied upon the High Court case of Brewer v Brewer (1953) 88 C.L.R. 1. In that case there was a decree of dissolution of marriage granted to a husband on the ground of the wife’s adultery, which the wife admitted. Later on the wife brought proceedings for maintenance against the husband and alleged that he had over-indulged in alcohol, had been violent to her, and had had affairs with various women.

1. The wife appealed against the decision of the Full Court of the Supreme Court of Victoria which, in overturning the decision of the judge at first instance, had found against her.  This was on the basis that her evidence as to the husband’s behaviour was not admissible on the ground that had it been given in the divorce hearing it might have resulted in the refusal of a decree.

1. The case was argued and decided without reference to the special situation with respect to issue estoppel and res judicata in the paternity child maintenance and child custody areas of family law.

1. It was held that the wife was not estopped from giving evidence as to the husband’s conduct in the maintenance claim because these allegations did not controvert any issue decided at the time of the divorce decree.  Thus the Respondent says that there should be a different outcome in the present application as the fresh claim would directly challenge the earlier decision with respect to the finding as to paternity.

1. It does not seem to me that Brewer’s case excludes by inference the approach in the cases I have referred to, and the cases discussed in those cases.  Had the intention been to do so, I expect that there would have been specific reference to them, and to the other writings in that regard.

1. Reference was made on behalf of the Respondent to cases in this court where in connection with property issues the court has refused to permit issues to be relitigated.  These include the recent case of Blackman (1998) F.L.C. 92-791.  They are distinguishable on the basis that they do not deal with paternity, child maintenance, or custody of a child.

1. In my opinion in this case the Applicant is not prevented from proceeding with her current application for child maintenance by way of res judicata or issue estoppel arising out of the 1984 proceedings.  It is of great importance that matters such as child maintenance and paternity should be canvassed in the light of the best evidence that can be obtained.  It is not fatal in these cases that a court is being asked to come to a different conclusion from that of a previous court on a fundamental finding.  Of course, if the evidence to be adduced is essentially the same as on the first occasion then the applicant would be prevented from relitigating the issue on the basis of public policy, as occurred in Re F referred to above.

1. In this case a drastically different level of information is now available from parentage testing procedures as to the likelihood of the Respondent being the father of the child, than was available before.   Now a very much clearer outcome of the issue as to paternity would be able to be arrived at, compared with 1984, (even though that was relatively high in itself).  The difference is so marked that I am of the view that the earlier decision should be no bar to the hearing of this new application.

1. It was submitted on behalf of the Respondent that in any event I should not exercise my discretion to order testing given that each party had gone their separate ways since 1984, and that there was no evidence that the child has had difficulty as to her identity, and that the identification of the Respondent as her father would not necessarily be to the child’s advantage.  I believe that the opposite view could more easily be taken on these points and do not consider that they constitute a reason against the exercise of the discretion to order tests.  Also the ability of the court to provide a just outcome in terms of the issue as to the child’s maintenance is most important.

1. In these circumstances I am of the view that I should exercise my discretion under sections 69W and 69X of the Family Law Act to order paternity testing in this case. The orders I will make have been drafted on behalf of the Applicant and altered after submissions of both Counsel were made, on the assumption that I would find for the Applicant. I am of the view that they are in an appropriate form.

1. I will order as follows:

   (1)That pursuant to section 66W of the Family Law Act, parentage testing (“D.N.A.”) procedures be carried out in relation to the following persons:

   (a)JFL;

   (b)TLP;

   (c)the child KAL born 14 June 1983.

2. That the parentage testing (D.N.A.) procedures be conducted at Simons Gene Type Laboratories, 60-70 Hanover Street. Fitzroy (“the Laboratory”), on such dates and times as are respectively agreed between the said persons and the Laboratory.

3. That each of the said persons provide such bodily samples and submit to such procedures and furnish such information relevant to each such person’s medical and family history as may be required by the Laboratory from time to time to enable it to carry out such parentage testing (D.N.A.) procedures and to prepare a report thereon under the Family Law Regulations.

4. (a)     That the costs of such parentage testing (D.N.A.) procedures be paid in the first instance equally by JFL and TLP not later than seven days prior to the date of testing.

   (b)That the ultimate questions as to the costs to be paid in respect of the testing by each party be reserved.

5. That there be liberty to the parties to apply generally herein.

1. That the application be adjourned to a directions hearing to be held as soon as practicable after submission of the report or otherwise as agreed between the parties.

2. That the costs of this application be reserved.
   IT IS CERTIFIED:

3. That pursuant to O. 38 r. 26 of the Family Law Rules it was reasonable to brief Counsel.

4. AND IT IS REQUESTED that upon the completion of the parentage testing (D.N.A.) procedures, the Laboratory prepare a report thereon and forthwith make such report available to the Registrar of the Family Court of Australia at Melbourne.

I certify that this and the preceding  17  pages
is a true copy of the Reasons for Judgment
herein of His Honour Justice Smithers

Associate