JFL & TP

The Family Court of Australia considered an application by the mother, JFL, seeking orders for parentage testing of her child, KAL, and for the respondent, TP, to pay child maintenance. The applicant contended that TP was the father of KAL, born in 1983, and sought orders for DNA testing and weekly maintenance. TP, by his response, sought a permanent stay or dismissal of the application.

The primary legal issue before the Court was whether it should exercise its jurisdiction to make a parentage testing order under sections 69V, W, and X of the *Family Law Act 1975* (Cth). This question was framed as a preliminary matter, with TP arguing that the application should be stayed or dismissed based on the principles of *res judicata* and issue estoppel, given a previous maintenance application in 1984 that was dismissed by the Magistrates' Court. The applicant countered that parentage and child welfare cases constitute an exception to the general rule of *res judicata*, particularly where new and significant scientific evidence is available.

The Court reasoned that while the 1984 proceedings resulted in a dismissal of the maintenance claim, the scientific testing at that time was conducted by agreement and the dismissal was based on the available evidence not satisfying the court of paternity. Crucially, the Court noted significant advancements in DNA testing technology over the intervening years, which could now provide a much higher degree of certainty regarding paternity. Drawing on authorities such as *R v McCormick; Ex parte Brennan*, *Trigg v Kettle*, and *Re F (W) (an infant)*, and particularly the Full Court of the Family Court's decision in *Schorel and Schorel*, the Court concluded that *res judicata* and issue estoppel have a very limited application in family law, especially concerning child welfare and maintenance. The Court found that the public interest in ensuring the correct determination of paternity and child support, particularly with the availability of substantially improved scientific evidence, outweighed the principle of finality in litigation in this instance.

Consequently, the Court exercised its discretion under sections 69W and 69X of the *Family Law Act* to order parentage testing. The Court found that the applicant was not prevented from proceeding with her current application by *res judicata* or issue estoppel, given the fundamental importance of the new evidence that could be obtained through modern DNA testing. The Court ordered that parentage testing procedures be carried out in relation to JFL, TP, and KAL.