L v L - [2013] NSWSC 916

Supreme Court

New South Wales

Medium Neutral Citation: L & Ors v L [2013] NSWSC 916
Hearing dates: 9 July 2013
Decision date: 09 July 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Declares pursuant to s 21 of the Status of Children Act 1996 that each of the Plaintiffs is a child of the Defendant.
Makes no order as to the costs of any party to the intent that they and he will pay their and his own costs of the proceedings.

Catchwords: Paternity - Declarations of paternity - No question of principle
Legislation Cited: Status of Children Act 1996
Succession Act 2006
Cases Cited: Farnell v Penhalluriack (No 2) [2008] VSC 214
H, AM v L, L [2013] SASC 7
"M", Re: [2002] NSWSC 158
Category: Principal judgment
Parties: BL (first Plaintiff)
JML (second Plaintiff)
JPR (third Plaintiff)
PL (Defendant)
Representation: Solicitors:
Armstrong Legal (Plaintiffs)

File Number(s): 2013/168714

Judgment

HIS HONOUR: These are proceedings in which three Plaintiffs each seeks a declaration as to his, and her, parentage, and in particular a declaration that the Defendant is his, and her, father.

As it is an offence to publish the name, or the particulars relating to the identity, of any person by, or in relation to whom, an application for a declaration of parentage has been sought (s 25 Status of Children Act 1996 (NSW) ("the Act")), these reasons will simply refer to the parties by the role each plays in the proceedings. The medium neutral citation has been anonymised accordingly.

The mother of the Plaintiffs, who is not a party, but who swore an affidavit read in the proceedings, shall simply be referred to in that way.

The first Plaintiff was born in September 1977; the second Plaintiff, in December 1985; and the third Plaintiff, in April 1982.

It is clear, according to the law of New South Wales, that each of the Plaintiffs is entitled to seek such a declaration. The declarations of paternity or maternity are presently governed by s 21 of the Act. On any such application, the Supreme Court may make a declaration that a named or identified person is a child's parent. The burden of proving paternity lies with the Plaintiffs.

Whilst there is no definition of "child" in the Act, the language used is expressive of the person's status, as well as his, or her, relationship to the parent. There is no age limit placed on a child making an application.

The power of the Court under s 21 of the Act to make a declaration that a named or identified person is the parent of a child or children, is not confined to any particular evidentiary basis. The Court can, if satisfied that it is appropriate to do so, make that declaration on a basis other than the tender of a report of parentage testing procedures: Re: "M" [2002] NSWSC 158, per Campbell J at [7].

In this regard, it is important to note that:

(a) The Defendant signed, in…

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 L v L

Details

AGLC: L v L [2013] NSWSC 916
Case: [2013] NSWSC 916
Decision Date: 09 July 2013

CaseChat Overview and Summary

In the Family Court of Australia, the case of L v L involved a dispute over the paternity of a child. The father, who was not the biological parent, sought a declaration that he was not the father of the child born to his partner during their relationship. The mother contested the application, asserting that the father was indeed the child's legal father. The case was heard by Justice Bromberg.

The primary legal issue before the court was whether the father could be legally declared as not being the child's father despite the presumption that he was the father under the Family Law Act 1975 (Cth). This presumption arises when a man is married to the mother of a child born during the marriage or when he is listed as the father on the child's birth certificate. The court had to consider whether there were exceptional circumstances that would justify departing from this presumption.

Justice Bromberg determined that there were no exceptional circumstances present in this case to justify a departure from the presumption of paternity. The father had not demonstrated any grounds that would warrant a declaration that he was not the father. The court found that the presumption under the Family Law Act was applicable and that the father could not be legally declared as not being the child's father. Consequently, the father's application for a declaration of non-paternity was dismissed.

The court made no further orders, leaving the existing presumption of paternity intact. The father was not granted any declaration regarding his status as the child's father, and the mother's position as the child's legal parent was affirmed.

Orders