Keevers v Chapman - [2015] QSC 161

SUPREME COURT OF QUEENSLAND

CITATION:

Keevers v Chapman [2015] QSC 161

PARTIES:

KEVIN KEEVERS

(applicant)

v
ADRIAN RAYMOND CHAPMAN

(respondent)

FILE NO/S:

2592 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2015

JUDGE:

Martin J

ORDER:

The applicant is to bring in minutes of order

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION – CHILDREN – PARENTAGE: PRESUMPTION, PROOF AND EVIDENCE – GENERALLY – where the applicant was granted limited letters of administration – where the respondent claims to be the only child of the deceased – where the applicant seeks an order that the respondent undertake a parentage procedure – whether a parentage testing order under s 11 of the Status of Children Act 1978 should be made

Matrimonial Causes Act 1959 (Cth), s 6, s 71
Status of Children Act 1978, s 8, s 10, s 11, s 24, s 25, s 26

Duroux v Martin (1993) 17 Fam LR 130
In the Marriage of F & R (1992) 15 Fam LR 533
Re Riley [1996] 1 Qd R 209

COUNSEL:

S Blaxland for the applicant

P MacMillan for the respondent

SOLICITORS:

Simpson Quinn Lawyers for the applicant

Peel Legal for the respondent

Morris Archibald Keevers was married to Lynette Keevers from December 1965 until May 1973. Lynette Keevers gave birth to Adrian Raymond Keevers on 25 November 1968. Lynette later remarried and changed both her and Adrian’s surname to Chapman. Those names were used by the parties in the proceeding and I will use them here.
In June 2013 Morris Keevers died without leaving a will and his brother Kevin was granted limited letters of administration. One of the terms of the letters of administration was that Kevin Keevers was to “make such enquiries and undertake such advertising and investigations as may be reasonable to ascertain the existence and whereabouts of any closer next of kin of the deceased than the administrator and his siblings”. Those enquiries were made and led Kevin Keevers to Adrian Chapman. Mr Chapman says that Morris Keevers was his father. If that is so, then he will inherit the whole of Morris Keevers’ estate.
The application
The applicant seeks a number of orders under the Status of Children Act 1978 (‘the Act’), but, at this hearing he sought only an order under s 11 of the Act. In other words, he is seeking an order that Mr Chapman undertake a parentage testing procedure.
So far as is relevant, the Act provides:
“8 Recognition of paternity
(1) The relationship of father and child and any other relationship traced in any degree through that relationship shall, for any purpose related to succession to property or to the construction of a will or other testamentary disposition or of a document creating a trust or for the purpose of an application under Part 4 of the Succession Act 1981, be…

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.

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Details

Case: [2015] QSC 161
Decision Date: 17 June 2015

CaseChat Overview and Summary

The case of Keevers v Chapman involved a dispute over the parentage of Adrian Chapman, who claimed to be the only child of the deceased, Morris Keevers. The applicant, who was granted limited letters of administration, sought an order that Adrian undertake a parentage procedure, specifically a parentage testing order under section 11 of the Status of Children Act 1978. The court was tasked with determining whether the evidence presented was sufficient to warrant such an order. Adrian argued that several rebuttable presumptions were in his favour, including that he was born during the marriage of his parents, and that Morris, being named on his birth certificate, was presumed to be his father. These presumptions, however, could be rebutted on the balance of probabilities. Adrian also pointed to a decision in divorce proceedings that the requirements of section 71 of the Matrimonial Causes Act 1959 (Cth) had been met concerning him, though this did not directly address his parentage.

The applicant countered with various pieces of evidence, including statements from Morris's siblings and Morris himself, which cast doubt on Adrian's parentage. Morris had explicitly stated that Adrian was not his son, believed his wife was committing adultery, thought he was sterile, and expressed a desire that Adrian should not benefit from his estate. Adrian's birth certificate was also amended to change his surname from Keevers to Chapman, and Morris had contested Adrian's paternity in divorce proceedings. Additionally, Adrian had initially agreed to a DNA test but later withdrew. The court held that the evidence presented by the applicant supported an honest, bona fide, and reasonable belief that there were doubts about Adrian's parentage, which warranted the issuance of a parentage testing order.

Ultimately, the court ruled in favour of the applicant and ordered that Adrian Chapman undergo a parentage test. The decision was based on the strong evidence provided by the applicant, which the court found to be credible and sufficient to justify the order. This decision highlighted the importance of considering all relevant evidence, even if it includes hearsay, in applications for parentage testing orders. The court's ruling underscored the need to address such disputes promptly, especially given the passage of time and the potential impact on the memories of those involved.

Orders

Orders of the court

The applicant is to bring in minutes of order

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In my respectful opinion the test proffered by Butler J and approved by the Full Court of the Family Court of Australia is a test which can guide the decision-making process under s 11. What is the evidence? The respondent points to rebuttable presumptions which are, he says, in his favour. Section 24 of the Act creates a presumption that the respondent is a child of Lynette Chapman and Morris Keevers because he was born while the marriage was in place. There is a further presumption, under s 25, that Morris Keever, being named in the birth certificate as the parent of Adrian Chapman is presumed to be his parent. These presumptions are rebuttable and s 29 provides that they are rebuttable on the balance of probabilities. The respondent also relied upon the presumption afforded by s 26. He pointed to the decision of the Supreme Court of New South Wales in the divorce proceedings in which it was declared that the requirements of s 71 of the Matrimonial Causes Act 1959 (Cth) had been complied with in respect of Adrian. Section 71, though, related to the proper provision for a child of the marriage and “child of the marriage” had the wide definition set out in s 6 of that Act and discussed above. That is not a finding which falls within s 26 of the Act. The applicant relies upon a number of matters which are, strictly speaking, hearsay, but this is an application for an order that a particular test be undertaken and not for final relief in the sense that a declaration is sought. To that end, it is open to the applicant to rely upon evidence consisting of statements by the deceased’s siblings about the relationship with Adrian Chapman. In summary that evidence is:(a) The deceased expressly said that Adrian was not his son.(b) The deceased believed that Lynette had been committing adultery during the marriage.(c) The deceased believed he was sterile or, at least, had a very low sperm count.(d) The deceased expressed desire that Adrian not benefit from his estate.(e) The deceased had been married three times but there were no children of those marriages, apart from Adrian.(f) Adrian’s birth certificate was amended to change his surname from Keevers to Chapman.(g) In the divorce proceedings, the deceased put into issue the paternity of Adrian and Lynette Chapman did not traverse those allegations.(h) There was also the curious circumstance in which the maintenance proceedings brought by Lynette Chapman were dismissed when she declined to offer any evidence on that matter. There is also evidence that, at one stage, Adrian Chapman agreed to undertake a DNA and later recanted. The case for the respondent does not assert dishonesty or a lack of bona fides, but does, in effect, argue that it would be unreasonable to form a belief as to any doubt about parentage. I do not agree. These circumstances are extremely difficult for the parties, especially when so many years have passed and the lapse of time has had its inevitable effect on the memories of those who are still involved. Nevertheless, the material relied upon by the applicant does support a conclusion that the belief of the applicant about the doubts surrounding the parentage of Adrian Chapman is honest, bona fide and reasonable. It is supported by strong statements made by the deceased which are, in turn, reflected in actions taken which are consistent with Adrian not being the child of the deceased.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Keevers v Chapman [2015] QSC 161
PARTIES:	KEVIN KEEVERS (applicant) v ADRIAN RAYMOND CHAPMAN (respondent)
FILE NO/S:	2592 of 2014
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 June 2015
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2015
JUDGE:	Martin J
ORDER:	The applicant is to bring in minutes of order
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION – CHILDREN – PARENTAGE: PRESUMPTION, PROOF AND EVIDENCE – GENERALLY – where the applicant was granted limited letters of administration – where the respondent claims to be the only child of the deceased – where the applicant seeks an order that the respondent undertake a parentage procedure – whether a parentage testing order under s 11 of the Status of Children Act 1978 should be made Matrimonial Causes Act 1959 (Cth), s 6, s 71 Status of Children Act 1978, s 8, s 10, s 11, s 24, s 25, s 26 Duroux v Martin (1993) 17 Fam LR 130 In the Marriage of F & R (1992) 15 Fam LR 533 Re Riley [1996] 1 Qd R 209
COUNSEL:	S Blaxland for the applicant P MacMillan for the respondent
SOLICITORS:	Simpson Quinn Lawyers for the applicant Peel Legal for the respondent