Joyce and Day

[2014] FCCA 3106

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOYCE & DAY [2014] FCCA 3106

Catchwords:
FAMILY LAW – Parenting – paternity testing orders – whether evidence establishes a genuine dispute about paternity.

Legislation:  

Family Law Act1975, ss.69W, 69W(1)

Cousins & Harper & Ors (2007) 38 FamLR 461

Duroux & Martin (1993) 17 Fam LR 130

Applicant: MR JOYCE

Respondent: MS DAY

File Number: BRC 8923 of 2014

Judgment of: Judge Jarrett

Hearing date: 5 December 2014

Date of Last Submission: 5 December 2014

Delivered at: Ipswich

Delivered on: 5 December 2014

REPRESENTATION

Solicitor for the Applicant: Mr Morrison

Solicitors for the Applicant: Walker Pender Group

Solicitor for the Respondent: Ms Stevens

Solicitors for the Respondent: Queensland Indigenouse Family Violence Legal Service

ORDERS

1. The respondent file and serve any affidavit material she wishes to rely on to establish a genuine dispute about paternity by 4:00pm 31 January 2015.

2. The applicant file any affidavit material he wishes to rely on by 4:00pm 13 February 2015.

3. The application be adjourned to 20 February 2015 at 9.30am for directions in the Federal Circuit Court of Australia sitting at Ipswich.

IT IS NOTED that publication of this judgment under the pseudonym Joyce & Day is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT IPSWICH

BRC 8923 of 2014

MR JOYCE

Applicant

And

MS DAY

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is an application for the making of orders for parentage testing under s.69W of the Family Law Act1975. The parties agreed to the making of the order, but there is an issue about who might pay for the test. It is suggested that, if an order for testing is made, Legal Aid may foot the bill. But in the event that Legal Aid does not foot the bill, the father says that the cost ought to be shared equally if it turns out he is the father and the mother says that he should foot the bill, I think, in any event.

2. Section 69W(1) says:

   If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order) requiring a parentage testing procedure to be carried out on a person mentioned in subs.(3) for the purpose of obtaining information to assist in determining the parentage of the child.

3. The opening words in s.69W(1) “If the parentage of a child is a question in issue in proceedings under this Act” have been consistently interpreted as requiring that the parentage testing order not be made lightly and certainly not just because a party requests that an order be made. The annotations to the Butterworths Family Law Service list a number of authorities, including Cousins & Harper (2007) 38 FamLR 461. In Duroux & Martin (1993) 17 Fam LR 130, the Full Court said that the Court:

   …must first be satisfied that the parentage of a child is in issue in proceedings under the Family Law Act. The proceedings, which are a necessary precondition, may, for example, involve the matter of child maintenance, custody or access in which the question of parentage is an issue.

4. There are a number of other cases that bear on the point. 

5. There is also authority that a parentage testing order should not be made unless there is evidence which places the parentage of a child in doubt or, on another formulation, that the applicant must have an honest, bona fide and reasonable belief as to the doubt.  There are at least three decisions that I am aware of, a decision of the Chief Justice of the Family Court when she was the Chief Federal Magistrate, a decision of Walters J of the Family Court of Western Australia when he was a federal magistrate and a decision of my own, where each of us determined consistently, in my view, with earlier Full Court authority that there must be evidence that there is a genuine dispute about parentage before a parentage testing order can be made. 

6. Here, the evidence does not get to that standard.  The father gives evidence in his affidavit about an incident, trying to use as neutral a term as I can possibly use, that occurred between he and the respondent.  He gives evidence about there being a protection order made, but very little else that bears on the question of parentage, except that he had undertaken a DNA swab test at the request of the mother which he says shows that it was likely that he is the father of the child the subject of this dispute, although he says in his evidence that he accepts that the test was not conclusive. 

7. The mother’s evidence in response (and she, too, asks for an order for DNA testing) complains that the contact between she and the applicant was but fleeting and she says that, when she met the applicant, she was in a relationship with a person called Mr C. 

8. It is necessary, I think, to set out paragraphs 5, 6 and 7 of her affidavit.  She says this:

   My daughter, X, was born (omitted) 2011 and is aged three years.  X is in good health. 

   She goes to day care three days per week and spends at least two days per week with her father.  Mr C sees X most days. 

   I was in a relationship with her father, Mr C, between 2008 and 2013.

9. Those three paragraphs seem to be the only paragraphs which touch, at least inferentially, on the paternity of the child. The use of the words “her father” where it appears in paragraph 6 and paragraph 7, no doubt are intended to mean that the child’s father is Mr C. But, oddly, the mother does not swear to that. She does not swear to the genuine, honest and reasonable belief that Mr C is the child’s father. She gives no evidence about the circumstances of the child’s conception, the sort of evidence that one usually sees when a party is attempting to demonstrate that there is a genuine dispute about, or genuine uncertainty about, the paternity of a particular child. Here, there is just none of that.

10. It might seem obstructive and pedantic for the Court to refuse to make an order that the parties are seeking to be made by consent.  But the fact remains that the Court is a statutory court exercising a statutory jurisdiction and only has authority to exercise that jurisdiction when the preconditions for its exercise are made out.  As the authorities to which I have referred to require, there needs to be some evidence demonstrating a genuine dispute between the parties about paternity.  It is not a matter which is left to inference to be drawn from two or three words sprinkled in an affidavit quite fortuitously, it seems to me. 

11. I am not satisfied at the moment that the material demonstrates the requisite standard of dispute. I am not satisfied that the discretion set out in s.69W(1) should be exercised. The parties will have to file some proper material to secure the orders they want if they wish to pursue the matter.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:       5 February 2015