Public Trustee v Arnold

[2004] NSWSC 127

CITATION:	PUBLIC TRUSTEE v. ARNOLD [2004] NSWSC 127
HEARING DATE(S):	01/03/2004
JUDGMENT DATE:	1 March 2004
JURISDICTION:	EQUITY
JUDGMENT OF:	Bryson J at 1
DECISION:	Declaration that deceased not father of infant - Order altering Register - see [8].
CATCHWORDS:	INFANTS - Parentage - registration of birth - Putative father (since deceased) joined in registration of birth but later participated in DNA parentage testing which resulted in report excluding him as father with 100% certainty - he died soon after testing - mother acknowledged that he was not the father - Public Trustee administering small estate applied for and obtained orders declaring that infant was not child of deceased and requiring correction of Births D & M Register under Birth Death and Marriages Registration Act 1995 s.45.
LEGISLATION CITED:	Family Law Act 1975; s. 69B Births Deaths and Marriages Registration Act 1995; Subs.45(2)
PARTIES :	Public Trustee - Plaintiff Yvette Kim Arnold - Defendant
FILE NUMBER(S):	SC 1314/2004
COUNSEL:	L.J. Ellison - Public Trustee
SOLICITORS:	Mr Maher Solicitor for the Public Trustee

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

MONDAY 1 MARCH 2004

1314/04 PUBLIC TRUSTEE v. YVETTE ARNOLD

JUDGMENT

1 HIS HONOUR: The documents I have seen are the summons, two affidavits of Kevin Thomas O'Brien of 28 January 2004 and 24 February 2004. I have also read the affidavit of service of Adrian Hogan sworn 16 February 2004. I have admitted into evidence exhibit A the process server's report. The defendant was duly served and was called this morning at 10.30 am and did not appear.

2 Although the infant has an interest in the relief claimed in the summons, I have not given directions for the infant to be joined as a party or for any arrangements to be made for his representation because of the overwhelming clarity of the evidence in support of the claim for declaration, and also because of the smallness of the amount of the estate, which does not warrant significant expenditure on costs in relation to a question on which it appears to me there can be no real room for doubt.

3 The deceased, who died on 5 April 2001, had joined in the registration of the infant’s birth in terms which showed that he was the infant's father; this process was completed on 1 August 2000. He joined in parentage testing which apparently was carried out in accordance with the procedure in the Family Law Act 1975 sections 69B and following, although the procedure may not have strictly been applicable in the absence of any litigation in the Family Court in which parentage was in issue.

4 Parentage testing resulted in a scientific report dated 9 March 2001 which shows to the point of certainty, insofar as anything in science can be certain in relation to paternity, that he was not the father of the infant.

5 Mr Peterson's death followed about 4 weeks after the date of the report, and I take it that he had not had any real opportunity to take any measures based on what had been reported. The Public Trustee elected to administer his estate, the only asset being proceeds of a superannuation fund totalling $45,115, some of which has been expended so that the Public Trustee at present holds $42,900. If the infant were the child of Mr Peterson, the estate would pass to the infant. If the infant were not the child of Mr Peterson the estate would pass to Mr Peterson's parents.

6 Evidence of Mr O'Brien, the solicitor employed by the Public Trustee with responsibility for this estate, shows that the mother of the child has acknowledged in a conversation with him in the clearest way that Mr Peterson was not the child's father; she explained the circumstance of the relationship in a way which makes it quite credible that he knowingly gave her an acknowledgment for birth registration without in fact being the father. The mother confirmed what she had explained to Mr O’Brien in writing, in a document which Mr O'Brien produces with his evidence.

7 In these circumstances it is quite clear that I should find and I should make a declaration in the terms of claim 1 in the summons to the effect that Mr Peterson is not the biological father of the infant. I have been asked to go on to make a declaration that the acknowledgment of paternity in effect made by joining the birth registration be annulled. In my view I should not make an order exactly in the terms asked but should make an order pursuant to subsection 45(2) of the Births Deaths and Marriages Registration Act 1995, requiring the Registrar to correct the register so as to conform with the declaratory order.

8 My orders are:

(1) I make declaration 1 as claimed in the summons.

(2) I make the following further order: Order pursuant to section 45 of the Births Deaths and Marriages Registration Act 1995 that the birth certificate and particulars recorded in registration of birth registered 48611/2000 be corrected by the Registrar so as not to show Garry Wayne Peterson as the father of the infant.

(3) I order that the plaintiff's costs on the indemnity basis be paid out of the estate of the deceased. The exhibit is to remain in the file.

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Last Modified: 03/23/2004