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

1. 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.

1. 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.

1. 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.

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

1. 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.

1. 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.

1. 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].

1. In this regard, it is important to note that:

(a) The Defendant signed, in the case of two of the Plaintiffs, an acknowledgement of paternity dated 28 May 2011 and, in relation to the third, a Statutory Declaration acknowledging that he is the father of the second Plaintiff;

(b) During the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth of each Plaintiff, the Defendant cohabited with the mother of each Plaintiff, although not married to her; and

(c) The Defendant was recorded in the Births, Deaths and Marriages Register, or a register of births or parentage information kept under a law of the Commonwealth, as the father of each Plaintiff.

1. Furthermore, the Defendant, who appeared at the hearing, does not oppose the making of each of the declarations sought. In fact, he has sworn an affidavit acknowledging that he lived from October 1976, with the mother of each of the Plaintiffs; that since 1979, he lived with her on a full-time basis; that he was present at the hospital for the birth of each of the Plaintiffs; that he was named as the father of the first Plaintiff on the first Plaintiff's Certificate of Baptism; that he signed a Statutory Declaration acknowledging that he was the natural father of each Plaintiff to enable his name to be added to the Birth Certificate of each Plaintiff.

1. He also informed me, from the bar Table, without opposition, that he and the Plaintiffs' mother, were recently married.

1. In addition, the Plaintiffs' mother, in an affidavit affirmed by her in September 2012, states that she has been in a relationship with the Defendant from October 1976 and that they have lived in an exclusive de facto relationship since 1979. She also confirms that, at the time of the conception of each of the Plaintiffs, she was in an exclusive relationship with the Defendant and that he is the biological father of each Plaintiff.

1. In Farnell v Penhalluriack (No 2) [2008] VSC 214, Bell J, at [4], wrote (omitting citations):

"Serious though the issue of paternity is, an application for a declaration of paternity is a civil application, and the standard of proof applicable in such proceedings is the ordinary civil standard, namely the balance of probabilities. As the High Court held in G v H in reference to the essentially beneficial nature of the paternity provisions of the Family Law Act 1975 (Cth), it was not necessary, in applications under those provisions, to prove paternity according to the higher civil standard that applies when the question involves a grave allegation. I think the paternity provisions of the Status of Children Act are analogous in this respect. Therefore, in an application for a declaration of paternity, it is sufficient to prove the facts according to the ordinary civil standard. The applicant does not have to achieve the higher civil standard discussed in Briginshaw v Briginshaw. The decision in G v H has overtaken the authority of earlier decisions that the higher standard was applicable."

1. As was recently pointed out by Nicholson J in H, AM v L, L [2013] SASC 7 at [83]:

"... the effect of modern statutory approaches is such that very often a declaration of parentage, even though it may have the effect of establishing that a person had been born illegitimately, can be of great advantage to that person. It can be of great advantage financially such as would be the case in the present proceedings or following an application for maintenance under the Family Law Act. It also can be of significant benefit in other respects including providing the opportunity for a biological father and child to develop a close and rewarding relationship not necessarily in lieu of but often in addition to that which exists between that child and the person they believed, at first, to be their father. In the present case, there would be a certain artificiality about adopting a criminal standard or a Briginshaw type approach where the persons still living who would be most significantly affected by the declaration sought, the plaintiff and his mother, are positively advocating the claim."

1. All of the available evidence to which I have referred, as well as other evidence that I have read, clearly establishes the paternity of each of the Plaintiffs. I am satisfied that the Defendant is the father of each of the Plaintiffs and has been since his, and her, birth. I declare accordingly.

1. I make no order as to costs to the intent that each of the parties will pay their and his own costs of the proceedings.

1. In accordance with the requirements of the Act this matter was heard, and judgment delivered, in closed court. I am satisfied that publication of my reasons for judgment in this case will not result in contravention of s 25 of the Act. I authorise the publication of the reasons for judgment, but of no other document relating to the proceedings.

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Decision last updated: 10 July 2013