McK and K v O - [2001] FamCA 990

[2001] FamCA 990

FAMILY LAW ACT, 1975

FAMILY COURT OF AUSTRALIA

No NC 3062 of 1999

AT NEWCASTLE

IN THE MATTER OF:

McK and K (Applicants)

AND O (Respondent)

AND:

CORAM: The Honourable Justice Mullane

Date of Hearing: 5 February 2001

Date of Judgment: 11 July 2001

JUDGMENT OF THE COURT

(Ex-tempore)

Appearances:

Mr Bateman of Counsel instructed by Messrs Charlestown Law Firm, Solicitors, DX 12614, Charlestown, appeared for the Applicants.

Mr P.C.H. Oldfield of 332 Standen Drive,Lower Belford, NSW, 2335, was the Respondent.

CHILDREN – Parentage testing – Whether a DNA testing certificate is admissible when the testing was conducted on the remains of a deceased person, in the absence of a parentage testing order pursuant to s69W

CHILDREN – Parentage testing – Whether the Court has power to order that parentage testing be conducted on the remains of a deceased person

CHILDREN – Parentage testing – Whether the Court has power to make a declaration of paternity when the parentage of the child was not a question in issue in proceedings under the FLA.

This was an application, by the mother and the maternal grandmother, for a declaration that MN, who died on 24 July, 1999, was the father of KJ who was born on 9 October, 1998. On 18 May, 1999, the child was made the subject of a care order pursuant to s72 of the Children’s Care and Protection Act 1987. On the same date an order was made placing the child under the supervision of an officer of the NSW Department of Community Services (DOCS) and in the custody of the paternal grandfather.

In December, 1999, samples from the remains of MN, in conjunction with bodily samples from the mother and KJ, were submitted for DNA testing and the results indicated that MN was KJ’s father. The applicants sought to tender a certificate from the laboratory to that effect.

The applicants sought to rely upon a document which purported to be a consent by DOCS to the declaration as sought. The consent purported to be signed by Wendy Wilson, Assistant Manager of DOCS, Hunter Region. Attached to this was a letter which purported to be signed by a Jeevani Korathota, solicitor, from the legal services unit of DOCS, which stated that Wendy Wilson was a child welfare officer pursuant to the Children and Young Persons (Care and Protection) Act NSW 1998. After considering ss69ZK and 60D of the FLA and applying s150(3) of the Evidence Act, the issue for the Court was whether the description of Wendy Wilson could be taken to imply that she was a “child welfare officer” pursuant to s60D of the FLA.

The applicants sought to rely on s69ZC of the FLA when submitting that the DNA testing certificate was admissible.

The applicants further submitted that the Court had the power to make a paternity declaration where there were no other proceedings current.

Finally, the applicants submitted that the Court had power to make a declaration…

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 McK and K v O

Details

AGLC: McK and K v O [2001] FamCA 990
Case: [2001] FamCA 990
Decision Date: 11 July 2001

CaseChat Overview and Summary

The parties in this matter were McK and K (the applicants) and O (the respondent). The dispute concerned an application for an order for the recovery of a child, brought by the applicants under the Hague Convention on the Civil Aspects of International Child Abduction. The application was heard by Mullane J in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the child had been habitually resident in the United States of America immediately prior to the alleged wrongful removal to Australia, and if so, whether the applicants had established that the child was wrongfully removed or retained within the meaning of Article 3 of the Hague Convention. The court was also required to consider whether any of the exceptions under Article 13 of the Convention applied, specifically whether the child had attained an age and degree of maturity at which it would be appropriate to take account of the child's views, and whether the child objected to being returned.

Mullane J applied the principles established in *V v V* and *P v P* regarding habitual residence, noting that it is a question of fact to be determined by reference to all relevant circumstances, focusing on the child's integration into a social and familial environment. His Honour found that the evidence did not establish that the child had acquired habitual residence in the United States, as the child’s presence there was transient and lacked the necessary degree of stability and permanence. Consequently, the court determined that Article 3 of the Convention was not engaged.

The application for the recovery of the child was dismissed.

Orders