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…

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 Public Trustee v Arnold

Details

AGLC: Public Trustee v Arnold [2004] NSWSC 127
Case: [2004] NSWSC 127
Decision Date: 1 March 2004

CaseChat Overview and Summary

The Public Trustee, acting in relation to a small estate, sought a declaration that a child was not the offspring of a deceased putative father, and sought an order for the correction of the Births, Deaths and Marriages Register. The putative father had joined in the registration of the child's birth, but later participated in DNA parentage testing, which resulted in a report excluding him as the child's father with 100% certainty. The putative father died shortly after the testing and the mother acknowledged that he was not the child's father. The legal issues before the court were whether the putative father's participation in the DNA testing could be regarded as an admission that he was not the father, and whether the court had the power to order a correction of the register. The court held that the putative father's participation in the DNA testing could be regarded as an admission that he was not the father, and that the court did have the power to order a correction of the register under section 45 of the Births, Deaths and Marriages Registration Act 1995. The court made the declaration and order sought by the Public Trustee.

The court held that the putative father's participation in the DNA testing was an admission that he was not the father, as it was clear from the testing that he could not be the father and he died before he could challenge the results. The court also held that it had the power to order a correction of the register under section 45 of the Act, as the court has the power to make orders that are necessary or desirable for the purposes of the Act. The court noted that the Act provides for the correction of errors in the register, and that the court's order was necessary to correct the error in this case. The court made the declaration and order sought by the Public Trustee, declaring that the child was not the child of the putative father, and requiring the correction of the Births, Deaths and Marriages Register.

Orders