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 of paternity pursuant to s67ZC of the FLA.  It was argued that it was in the best interests of the child to use the father’s surname and have the father’s name included on his birth certificate.

Held: in dismissing the application:

1. Given the child welfare responsibilities of DOCS under the State legislation, it may be inferred that the assistant manager of the Hunter Area of the Department is a child welfare officer within para (a) of the definition of that expression in section 60D of the Family Law Act.

2. It was clear that the regulations referred to in s69ZC(1) related to the preparations and reports from parentage testing procedures carried out pursuant to parenting testing orders. There had been no parentage testing orders made in this case. Accordingly subsection 69ZC(1) had no application to the testing certificate and the testing certificate, as an unsworn statement, was not admissible.

3. Parentage testing orders could not have been made, in the circumstances of the case, for 2 reasons. Firstly, the power to make an order is, by section 69W(1), subject to the parentage of the child being “a question in issue in proceedings under this Act.” W v J and S [1998] FamCA 44 discussed and applied. Secondly, sub-sections 69W(1) and (3) of the FLA and regulations 21F and 21I relate to procedures and testing of bodily samples from live persons, not human remains.

4. The insertion of section 69VA implied that the parliament considered there was no separate power in the Act at that time to make a declaration of parentage.  Section 69VA is the only express power to make a parentage declaration.  There is no express power to make such a declaration except in proceedings in which the parentage of the child is already in issue.

5. Section 67ZC makes no reference to declarations of parentage and does not purport to give power to make any declarations.  "Orders" is not defined to include declarations and on the face of it does not.

REPORTABLE

INTRODUCTION

1. This was a hearing to an application seeking a declaration that MN who died on 24 July, 1999 is the father of KJ born on 9 October, 1998.  The applicants are the mother and maternal grandmother of the child.  The child is the subject of a care order made by the Children's Court at Broadmeadow on 18 May, 1999 under section 72 of the Children's (Care and Protection) Act 1987 (NSW) and also an order of the same date placing the child under the supervision of an officer of the New South Wales Department of Community Services (DOCS) and in the custody of the respondent.

1. The respondent I am told is the father of MN.  The evidence is that RJ, a child of the mother and MN, born 16 August, 1997, also resides in the care of the respondent pursuant to an order of the Children's Court made in January 1999.

1. I am told that in about December 1999 samples from the remains of MN and bodily samples from the mother and KJ were taken and submitted to a DNA testing laboratory.  The applicants seek to tender a certificate from the laboratory as evidence that DNA testing shows that the probability of MN being the father of KJ is 99.97 per cent.

SECTION 69 ZK OF THE FAMILY LAW ACT

1. The applicants, when I raised the issue, conceded that section 69ZK of the Family Law Act applies to KJ. They seek to rely upon a document purporting to be a consent by the Department to the declaration as sought and which consent purports to be signed by Wendy Wilson, Assistant Manager of DOCS, Hunter Region. Also attached is a letter which purports to be signed by a Jeevani Korathota, solicitor, and purports to be from the legal services unit of DOCS. The letter states that:

   Wendy Wilson is an assistant manager of the Department and is a child welfare officer pursuant to the Children and Young Persons (Care and Protection) Act NSW 1998. [sic]

2. Section 69ZK of the Family Law Act provides:

   69ZK   (1)      A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:

   
   

   (a)      the order is expressed to come into effect when the child ceases to be under that care; or

   
   

   (b)      the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.

   
   

   (2)      Nothing in this Act, and no decree under this Act, affects:

   
   

   (a)      the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or

   
   

   (b)      any such order made or action taken; or

   
   

   (c)      the operation of a child welfare law in relation to a child.

   
   

   (3)      If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child.

3. The applicants concede the section applies to the child in question and they seek to prove consent to their application under paragraph 69ZK(1)(b).  The evidence of consent is not sworn evidence, but what appear to be faxed copies of two letters.  There is no other evidence by affidavit or otherwise to authenticate the documents. 

1. Subsection 150(3) of the Evidence Act (CTH) 1995 provides:

   (3)      If a document purports to have been signed by an office holder in his or her official capacity, it is presumed, unless the contrary is proved, that:

   
   

   (a)      the document was signed by the office holder acting in that capacity; and

   
   

   (b)      the office holder held the relevant office when the document was signed.

   
   
   

2. Pursuant to subsection 150(4) "office holder" includes:

   a person holding any other office under an Australian law or a law of a foreign country.

3. "Australian law" includes a law of NSW (see part 1 of the dictionary to the Evidence Act). Section 69ZK requires the consent of a:

   Child welfare officer of the relevant State.

4. "Child welfare officer" in relation to a State or Territory is defined by section 60D as:

   (a)      a person who, because he or she holds, or performs the duties of, a prescribed office of the State or Territory, has responsibilities in relation to a child welfare law of the State or Territory; or

   
   

   (b)      a person authorised in writing by such a person for the purposes of this Part.

5. A letter from DOCS purporting to consent to the application does not purport to be signed by a person who is a child welfare officer.  It is signed by "Wendy Wilson.  Assistant Manager.  NSW Department of Community Services, Hunter Area."

1. An attempt has been made to have a solicitor for DOCS provide legal advice by a letter tended with the purported consent to the effect that Wendy Wilson is a child welfare officer, that is not by affidavit and is not admissible. 

1. Accordingly applying section 150 (3) of the Evidence Act to the purported consent the question then is whether that description can be taken to imply that Wendy Wilson is a child welfare officer. Given the child welfare responsibilities of the Department under the State legislation I am prepared to infer that the assistant manager of the Hunter Area of the Department is a child welfare officer within para (a) of the definition of that expression in section 60D of the Family Law Act.

ADMISSIBILITY OF THE TESTING CERTIFICATE

1. The applicants seek to rely upon section 69ZC of the Family Law Act. Subsection 69ZC(1) provides:

   (1)      A report made in accordance with regulations covered by paragraph 69ZB(b) may be received in evidence in any proceedings under this Act.

2. Section 69ZB provides:

   Regulations about carrying out, and reporting on, parentage testing procedures

   The regulations may make provision relating to:

   (a)      the carrying out of parentage testing procedures under parentage testing orders; and

   (b)      the preparation of reports relating to the information obtained as the result of carrying out such procedures.

3. It is clear that the regulations relate to the preparations and reports from parentage testing procedures carried out pursuant to parenting testing orders.  The provisions of the Act as to making a parentage testing orders are:

   69W(1)          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 subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child.

   
   

   (2)      A court may make a parentage testing order:

   
   

   (a)      on its own initiative; or

   
   

   (b)      on the application of:

   (i)       a party to the proceedings; or

   
   

   (ii)      a person representing the child under an order made under section 68L.

   (3)      A parentage testing order may be made in relation to:

   (a)      the child; or

   (b)      a person known to be the mother of the child; or

   (c)      any other person, if the court is of the opinion that, if the parentage testing procedure were to be carried out in relation to the person, the information that could be obtained might assist in determining the parentage of the child.

   (4)      A parentage testing order may be made subject to terms and conditions.

   (5)      This section does not affect the generality of section 69V.

4. 69X(1) If a court makes a parentage testing order, it may also make orders under subsection (2) or (4).

   (2)      The court may make such orders as it considers necessary or desirable:

   
   

   (a)      to enable the parentage testing procedure to be carried out; or

   
   

   (b)      to make the parentage testing procedure more effective or reliable.

   
   

   (3)      Some examples of the kinds of orders the court may make under subsection (2) are as follows:

   
   

   (a)      an order requiring a person to submit to a medical procedure;

   
   

   (b)      an order requiring a person to provide a bodily sample;

   
   

   (c)      an order requiring a person to provide information relevant to the person's medical or family history.

   
   

   (4)      The court may make such orders as it considers just in relation to costs incurred in relation to:

   
   

   (a)      the carrying out of the parentage testing procedure or other orders made by the court in relation to the parentage testing procedure; or

   
   

   (b)      the preparation of reports relating to the information obtained as a result of carrying out the parentage testing procedure.

5. There have been no parentage testing orders.  Accordingly subsection 69ZC(1) has no application to the testing certificate and the testing certificate, as an unsworn statement, is not admissible. 

SECTION 69W ORDERING PARENTAGE TESTING

1. Indeed, it appears that parentage testing orders could not have been made, even if they had been sought, for two reasons.  One is that the power to make an order is by section 69W(1) subject to the parentage of the child being:

   a question in issue in proceedings under this Act.   

2. In 1998 the Full Court in an unreported decision of 4 February, 1998 of W v J and S [1998] Fam CA 44 had occasion to consider the power to make an order for parentage testing under section 69W where there were no other proceedings current. Section 69W of course, begins with the words:

   If the parentage of a child is a question in issue in proceedings under this Act.

3. The Full Court in that decision upheld a decision of Moore J that there was no power to order parentage testing if there were no other proceedings under the Act in which parentage was an issue.  An application for an order for parentage testing was not of itself sufficient to give the court power to order parentage testing. 

1. The second reason parentage testing could not have been ordered is that the provisions of the Act and the Regulations relate to procedures and testing of bodily samples from live persons, not human remains.  Subsection 69W(3) provides for the order to be made in relation to:

   a child

   a person known to be the mother of the child or

   any other person.

2. The power to make a parentage testing order set out in subsection 69W(1) is to: “make an order (a parentage testing order) requiring a parentage testing procedure to be carried out on a person mentioned in subsection 3...”

1. Similarly the regulations provide for bodily samples (eg reg 21F) to be taken from persons who are referred to with the expression, “donor”, (eg reg 21F), who are required to complete declarations (reg 21F(3)) and the regulations also provide for a bodily sample to be placed in a container in the presence of the donor and the label to be signed by the donor (reg 21I(1)).  There is no provision in the regulations for the use of samples of human remains. 

1. It is clear that the applicants could not have obtained an order for parentage testing in the present circumstances. 

PARENTAGE DECLARATION

1. Another question which arises in these proceedings is whether there is a power to make a paternity declaration where there are no other proceedings current.  The applicants submit there is. 

1. There are specific provisions of the Family Law Act which give courts power to make declarations. Section 113 gives power to make a declaration in proceedings for a declaration of validity of a marriage or for dissolution or annulment of a marriage. Section 78 gives power to make declarations as to interests of parties in property. Section 55A provides for a declaration to be made in divorce proceedings regarding arrangements for children under 18.

1. The only provision in the Act regarding parentage declarations is section 69VA.  It provides:

   As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

2. That power is not a free standing power.  It is clearly expressed to be dependent upon there being proceedings before the court in which the parentage of the child is already an issue. 

1. The insertion of section 69VA implies that the parliament considered there was no separate power in the Act at that time to make a declaration of parentage.  Section 69VA is the only express power to make a parentage declaration.  There is no express power to make such a declaration except in proceedings in which the parentage of the child is already in issue. 

THE WELFARE ARGUMENT

1. Counsel for the applicants argued that the power to make a declaration of paternity is within the power provided by section 67ZC.  It provides:

   67ZC   (1)      In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.

   
   

   (2)      In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

   
   

   Note: Division 10 deals with how a court determines a child's best interests.

2. The submission was that it is in the best interests of the child to use his father's surname and have his father's details included in his birth certificate and a declaration of paternity would assist that process and is therefore in the child's best interests.   

1. But section 67ZC makes no reference to declarations of parentage and does not purport to give power to make any declarations.  "Orders" is not defined to include declarations and on the face of it does not.  This submission must therefore also fail.

CONCLUSIONS

1. The application before the court must fail because:

a:        The DNA testing certificate is inadmissible and

b:There is no power to grant the application as there are no proceedings before the court where paternity is a question in issue.

LEGAL REPRESENTATION

1. When this matter came before the court in the duty list on the first occasion I raised with the solicitor for the applicant my concern that there was no power for the court to make a paternity declaration as sought.

1. She was not able to assist the court as to the legal basis on which the application was brought. The proceedings were adjourned to enable her to provide the court with that information. On the second occasion counsel had been briefed, but the only additional submission made was to the effect that there was power to make such declarations under section 69ZC of the Act. That submission also had no merit.

1. It appeared that Ms Melville, the solicitor who appeared on the return date and who also prepared the application, did not give any serious consideration to the legal issues before bringing the proceedings.  The Court has serious concerns as to whether the applicants might be charged by the solicitor for the work done in the proceedings, as it appears to have been below the standard that the applicants would be entitled to expect from a competent solicitor.  A copy of the judgment should be forwarded direct to the applicants.

ORDERS

1. The orders of the court are:

1. the application of the mother and the maternal grandmother filed 12 December, 2000 is refused and dismissed.

2. the registry manager is to forward a copy of the judgment direct to the applicants.

I certify that this page and the previous pages is a true copy of the judgment handed down by Justice Mullane dated 11 July 2001.  _________________________

Associate