Johnson v Colangelo - [2010] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
JOHNSON v COLANGELO & ANOR
[2010] SASC 187
Reasons of Judge Lunn a Master of the Supreme Court
25 June 2010
PROCEDURE
DNA test for paternity - infant plaintiff seeks declaration under Family Relationships Act 1975 that deceased father of second defendant is also his father - application under 6R155(1) that second defendant undergo DNA testing - held Court could take judicial notice that such testing could provide evidence of paternity and the test was simple and expeditious - direction given for testing.

JOHNSON v COLANGELO & ANOR
[2010] SASC 187
JUDGE LUNN:
Reasons on plaintiff’s application that the plaintiff and the second defendant submit to parentage testing procedures

The plaintiff, Tarin Johnson, was born on 24 May 2004. His mother is his litigation guardian, Lorna Johnson. She alleges that Tarin’s father is Bernardo Colangelo (“the deceased”) who died on 13 April 2009.
Probate over the will of the deceased was granted on 25 August 2009 to the first defendant. Under the terms of the will the sole beneficiary of his estate is the second defendant, who is an adult daughter of the deceased.
By the amended Summons in this action the plaintiff seeks a declaration under s 9(8) of the Family Relationships Act 1975 that the deceased was his father.[1] Although the second defendant has not filed an affidavit as yet, her lawyers have informed the Court that she does not admit that the deceased is the father of the plaintiff.
[1] If such paternity is established, the plaintiff then seeks provision for himself out of the estate of the deceased under the Inheritance (Family Provision) Act 1972.
By an application issued on 19 May 2010, FDN12, the plaintiff seeks an order that he and the second defendant each “submit to a parentage testing procedure for the purposes of obtaining information to determine his” (paternity). The application is made under 6R 155 which provides:
(1)     If paternity is in issue in an action, the Court may direct—
(a)     a party to the action to submit to a relevant biological test; or
(b)     a parent or guardian of a child whose paternity is in issue to have the child submit to a relevant biological test.
(2)A relevant biological test is a test that may provide evidence from which an inference relevant to paternity can be drawn.
(3)A person cannot be compelled to submit to, or to have a child submit to, a relevant biological test under this rule but, if the direction is not complied with, the Court may draw inferences from the non-compliance that it considers proper in the circumstances.
The second defendant opposes any order that she submit to any such testing. She has not filed any affidavit in support of her opposition.
It was accepted by both counsel in argument that what is proposed is what is commonly known as DNA testing. The plaintiff has not submitted any evidence about the nature or value of such DNA testing or how…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnson v Colangelo

Details

AGLC: Johnson v Colangelo [2010] SASC 187
Case: [2010] SASC 187
Decision Date: 25 June 2010

CaseChat Overview and Summary

The case of Johnson v Colangelo involved an infant plaintiff seeking a declaration under the Family Relationships Act 1975 that the deceased father of the second defendant was also his father. The infant, Johnson, filed an application under section 6R155(1) of the Act, requesting that the second defendant, Colangelo, undergo DNA testing to establish paternity. The application was heard in the Supreme Court of the state, where the primary focus was on the admissibility and reliability of DNA testing as evidence of paternity.

The legal issues before the court included whether the court had the authority to order DNA testing under the Family Relationships Act and whether such testing was an appropriate and reliable method to establish paternity. The court needed to determine if the testing process was simple and expeditious, as required by the Act, and if the results could provide conclusive evidence of paternity.

The court found that it could take judicial notice that DNA testing could provide evidence of paternity and that the test was indeed simple and expeditious. The court was satisfied that the testing process met the criteria set out in the Family Relationships Act. Consequently, the court directed that DNA testing be undertaken to ascertain whether the deceased father of the second defendant was also the father of the infant plaintiff. The court's reasoning emphasised the importance of using reliable and scientifically accepted methods to resolve disputes of paternity, and the DNA test was seen as a suitable method to achieve this.

The final order of the court was that the second defendant, Colangelo, was to undergo DNA testing to determine paternity. This decision underscored the court's commitment to ensuring that such disputes are resolved efficiently and accurately, utilising modern scientific techniques.

Orders