Re: "M"

[2002] NSWSC 158

CITATION:	Re: "M" [2002] NSWSC 158
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC Not disclosed
HEARING DATE(S):	12 February 2002; and 21 February 2002
JUDGMENT DATE:	21 February 2002
PARTIES :	Not disclosed
JUDGMENT OF:	Campbell J

COUNSEL :	M W Anderson (plaintiff)
SOLICITORS:	Crown Solicitor's Office (plaintiff)
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - CHILD WELFARE other than under Family Law Act 1975 and related Acts - paternity - prerequisites for proof of paternity by tender of report of DNA testing - proof of paternity based on DNA testing other than by tender of report
LEGISLATION CITED:	Status of Children Act 1996 Status of Children Regulation 1998
DECISION:	Paternity declaration made

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

THURSDAY 21 FEBRUARY 2002

RE: ‘M’

JUDGMENT – (Ex Tempore)

1 HIS HONOUR: This matter was before me on 12 February 2002. On that occasion I was not satisfied that the evidence before me justified the making of a declaration of paternity.

2 Today, the matter is back before me. On this occasion the plaintiff does not rely solely upon the tender of a report to establish paternity. Some, but not all, of the evidentiary gaps which I identified on the last occasion have been filled. For example, I am now satisfied that the person who took the sample from the child is a qualified person. Most importantly, on this occasion the plaintiff reads an affidavit from the Manager of the relevant testing laboratory. The Manager has appropriate scientific qualifications, and has reviewed the entire testing procedure which was conducted in the present case, and then expressed an opinion about the paternity of the child.

3 That testing procedure contained some departures from the procedure laid down under the Status of Children Act 1996. The most serious departure is that the Court Registrar sent a notice to the testing laboratory, naming the sampler as being a particular person; in fact, someone else took the sample.

4 When reg 9(2)(b) has a mandatory requirement that a Registrar’s notice must contain, amongst other things, “the name ... of the sampler”, and reg 10 goes on to state what the person in charge of the laboratory must inform the “sampler” of, it seems to me that the person who takes the sample must be the person who was named in the Registrar’s notice, if the procedure under the regulations is to be complied with.

5 In my earlier judgment I quoted reg 7, which says that a parentage testing procedure is taken to be carried out in accordance with the regulation “only if” it is carried out in compliance with Divisions 2 and 3 of the regulation.

6 There could be some ways in which it could be said that a testing procedure had been “carried out in compliance with Divisions 2 and 3”, if there were some slight departures from what was there set out. To take an easy example, a few typographical errors in reproducing the prescribed forms, which did not create any real doubt about what was being said, would not prevent the procedure being “carried out in compliance with Divisions 2 and 3”. However I have difficulty in seeing how a testing procedure which failed to comply with something which a provision of Divisions 2 or 3 says “must” be done, could count as a procedure “carried out in compliance with Divisions 2 and 3”.

7 However, if there is a departure from the strict requirements of the regulation, but there is other evidence which satisfies me that a declaration can be made, I am free to act on that other evidence. In the present case, the affidavit of the Manager of the testing laboratory so satisfies me. The legal representative of the child supports the making of the order.

8 I make a declaration in accordance with the draft order provided to me which I have signed and dated today’s date.

9 I note that s 25 of the Status of Children Act 1996 prohibits a person from publishing the name or particulars relating to the identity of any person by or in relation to whom an application for a declaration of parentage is brought. That provision will apply to the order which I have made. For greater certainty, however, I also order that the name of the child, and the name of the father, referred to in my order, not be disclosed, save to the parties of these proceedings, and to the Registrar of Births Deaths and Marriages and the Children’s Court and legal representatives appearing in proceedings relating to the child in the Children’s Court.

8 March 2002

10 In accordance with the requirements of the Status of Children Act 1996 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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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

TUESDAY 12 FEBRUARY 2002

RE: ‘M’

JUDGMENT - (Ex Tempore)

1 HIS HONOUR: This is an application under s 21 of the Status of Children Act 1996 for a declaration of paternity in relation to a girl born last year. She has been placed under the care of the Minister by an order of the Children’s Court. There are some proceedings in the Children’s Court to determine what her care and control in the future will be.

2 The proceedings in the Children’s Court are complicated by the fact that two men each claim to be the father of the child. It is important for the Children’s Court to know who really is the father of the child, so that it is able to have the proceedings there properly constituted, and so that it can decide what weight to give to the wishes of each of these two men – ordinarily the Court would place greater weight on wishes expressed by the father of the child, than by someone who is not the father.

3 The present application is brought by the Director General, as authorised by s 21(1)(d) of the Status of Children Act1996.

4 On 7 January 2002 Simpson J made orders for carrying out of a parentage testing procedure on the child and on one of the men who claims to be her father, and who was willing to provide samples for the purpose of testing. That order nominated a particular accredited laboratory as being the laboratory which was to carry out the test.

5 The matter came before me today and there were tendered in evidence documents in the form of Forms 1 to 4 inclusive of the Regulations under the Status of Children Regulation 1998.

6 The following provisions of the Act are relevant:

“21 Applications for declarations in the Supreme Court
(1) Any of the following persons may make an application to the Supreme Court for a declaration of parentage under this section: …
(d) the Director-General when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or
…
(2) On any such application, the Supreme Court may make a declaration that a named or identified person is a child’s parent.
…
26 Orders for carrying out of parentage testing procedures
(1) In proceedings where the parentage of a child is in issue, the Supreme Court may make an order requiring a parentage testing procedure to be carried out on any of the following persons for the purpose of obtaining information to assist in determining the parentage of the child:
(a) the child, or
(b) a person known to be a parent of the child, or
(c) any other person, if the Court is of the opinion that the information that could be obtained if the parentage testing procedure were to be carried out in relation to the person might assist in determining the parentage of the child.
(2) A parentage testing order may be made by the Court:
(a) on the application of a party to the proceedings, or
(b) on the application of the Director-General, or
(c) on the application of a person representing the child under an order made under section 34, or
(d) of its own motion.
31 Reports on parentage testing procedures
(1) A report made in accordance with regulations made under section 36(2)(b) may be received in evidence in any proceedings under this Act.
(2) If any such report is received in evidence in any proceedings under this Act, the Supreme Court may make an order requiring the person who made the report, or any person whose evidence may be relevant in relation to the report, to appear before the Court and give evidence in relation to the report.
(3) An order under subsection (2) may be made by the Court:
(a) on the application of a party to the proceedings, or
(b) on the application of the Director-General, or
(c) on the application of a person representing a child under an order made under section 34, or
(d) of its own motion.

...
33 Offence: Taking of bodily sample by unqualified persons
(1) A person must not take any bodily sample purportedly for the purpose of giving effect to a parentage testing order or an order under section 27 unless the person is a qualified person.
Maximum penalty: 2 penalty units
(2) For the purposes of this section, qualified person means:
(a) a medical practitioner, or
(b) a registered nurse, or
(c) any other person belonging to a class of persons prescribed by the regulations for the purposes of this section
36 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Without affecting the generality of subsection (1), the regulations may make provision with respect to any of the following matters:
(a) the carrying out of parentage testing procedures under parentage testing orders,
(b) the preparation of reports in relation to the information obtained as the result of the carrying out of such procedures.”

7 It will be observed that the power of the court under s 21 to make a declaration that a named or identified person is a child’s parent, is not confined to any particular evidentiary basis. The court can, if it is satisfied it is appropriate to do so, make that declaration on a basis other than the tender of a report of parentage testing procedures. However, in the present case, the only basis on which the order is sought, which has any substance at all, is the tender of a report of the parentage testing procedure.

8 Section 31(1) relaxes the rules of evidence somewhat in permitting a report to be received in evidence in proceedings under the Act, without it necessarily being proved by the person who made it. However, as a condition of that happening, the court needs to be satisfied that the report has been made in accordance with the regulations made under s 36(2)(b).

9 I turn now to the Regulation which has been made under the Status of Children Act in 1998. Clause 6 prescribes, amongst other things, DNA typing as a procedure which is prescribed as a parentage testing procedure. Clause 7 says:

“7 Compliance with this Regulation
A parentage testing procedure is taken to be carried out in accordance with this Regulation only if:
(a) it is carried out:
(i) in compliance with Divisions 2 and 3, and
(ii) at an accredited laboratory, and
(iii) in accordance with the standards of practice that entitle a laboratory to be accredited by NATA, and

(b) where a bodily sample is taken as part of the procedure --- the sample is taken by a qualified person within the meaning of section 33(2) of the Act, and
(c) it is supplemented by a report under Division 4.”

10 Division 2 of the Regulation sets out a carefully structured regime of preliminary notices which are to be sent before the parentage testing procedure is carried out. It contains the following provisions:

“8 Parties to notify court of authorised sampler
(1) Unless the Supreme Court gives a direction under subclause (2), the parties to proceedings in which the Court has made a parentage testing order must notify the court registrar, within such period and in such manner as is specified by the court, of the name and address of the sampler who is to take the bodily samples for the purpose of giving effect to the Court’s order.
(2) The Court may:
(a) direct that a particular person is to be the sampler who is to take the bodily samples concerned within such period as is specified by the court, and
(b) arrange for a notice of its direction to be given to the court registrar.
9 Court to notify accredited laboratory of certain matters.
(1) On receiving a notice under clause 8, the court registrar:
(a) must decide which accredited laboratory the bodily samples are to be sent to, and
(b) must notify the person in charge of the accredited laboratory of the decision.
(2) The notice referred to in subclause (1)(b) must contain the following information:
(a) the number of the proceedings in the Supreme Court,
(b) the name of the donor to whom the parentage testing order relates,
(c) the purpose of the testing,
(d) the name and business or work address of the sampler,
(e) the qualifications of the sampler, in terms of section 33(2) of the Act, to be a sampler,
(f) the date the order was made,
(g) the period within which the bodily samples are to be taken,
(h) the name of the donor’s representative if the donor is under the age of 18 years or is suffering from a disability.
10 Laboratory to notify sampler of certain matters
(1) On receiving a notice under clause 9, the persons in charge of the laboratory must notify the sampler of the following matters:
(a) the number of the proceedings in the Supreme Court,
(b) the name of the donor to whom the parentage testing order relates,
(c) the purpose of the testing,
(d) the date the order was made,
(e) the period within which the bodily samples are to be taken,
(f) the address to which the bodily samples are to be sent,
(g) the name of the donor’s representative if the donor is under the age of 18 years or is suffering from a disability.
(2) The person in charge of the laboratory must also send to the sampler:

(a) instructions for taking the bodily samples, and

(b) sufficient disposable containers and sufficient insulated packages for storing and transporting the bodily samples, and

(c) a label for each container and package.
(3) The person in charge of the laboratory must ensure that all containers referred to in subclause (2)(b) are:

(a) pre-sterilised, and

(b) capable of being sealed in such a manner that, if opened after being sealed, that fact would be evident on inspecting the container.
(4) The person in charge of the laboratory need not comply with the requirements of subclauses (2) and (3) if the person is reasonably satisfied that:

(a) the sampler has the requisite instructions, disposable containers, insulated packages and labels referred to in subclause (2)(a)—(c) to use in relation to the sample, and

(b) the disposable containers to be used by the sampler are:
(i) pre-sterilised, and
(ii) capable of being sealed in such a manner that, if opened after being sealed, that fact would be evident on inspecting the container.”

11 Division 3 of the Regulation contains a set of procedures, also carefully thought out, to control the collection, storage and testing of samples. It includes:

“11 Provision of information by donor Forms 1 and 2
(1) A sampler must not take a bodily sample from a donor unless the donor has:
(a) completed an affidavit in accordance with Form 1, and
(b) either:
(i) provided to the sampler a recent photograph of the donor, measuring approximately 45 millimetres, by 35 millimetres, that shows a full face view of the donor’s head and the donor’s shoulders against a plain background, or
(ii) made a written arrangement with the sampler for a photograph of that kind to be taken
(2) Immediately before the sampler takes a bodily sample from the donor, the donor must complete a declaration in accordance with Form 2.
(3) The affidavit, declaration or written arrangement referred to in this clause:
(a) If the donor is under the age of 18 years --- may be completed by the persons’ representative, or
(b) If the donor is a person who is suffering from a disability --- must be completed by the person’s representative.”

12 Division 3 of the Regulation also includes other regulations designed to ensure integrity in the sample collecting procedure and that samples are carefully labelled, tracked, and stored before being tested.

13 Division 4 of the Regulation says:

“19. Reports --- Form 4
(1) A report must be prepared in accordance with this clause relating to the information obtained as a result of carrying out a parentage testing procedure.
(2) The report must be in accordance with Form 4.
(3) Part 1 of the report must be completed by the nominated reporter identified in the report.
(4) Part 2 of the report must be completed by:
(a) the person who carried out the parentage testing procedure, or
(b) the person under whose supervision the parentage testing procedure was carried out.
(5) A report completed otherwise that in accordance with this clause has no effect.
(6) A nominated reporter must send the report to the court registrar, together with the documents referred to in clause 17(2).”

14 It is to be observed that Regulation 19(1) says that the report which is provided for by this Clause has to be one “relating to the information obtained as a result of carrying out a parentage testing procedure”. Because of the terms of Regulation 7, a report can be prepared in accordance with Clause 19 only if the requirements of Division 2 and Division 3 of the Regulations have also been carried out. Regulation 19(5) makes clear the fundamental importance of compliance with the regime laid down by the Regulation.

15 In the present case, the evidence which I have seen does not satisfy me that the requirements of Regulation 10(1) have been carried out. There is no evidence of any communication from the person in charge of the laboratory to the sampler about the various matters set out in Clause 10(1). Nor is there any evidence to show that the person in charge of the laboratory has carried out the procedures required by Clause 10(2), (3) and (4) – which can be broadly be summarised as requiring the person in charge of the laboratory to inform the sampler about the proper ways of taking and storing samples, and supply the sampler with all necessary equipment, or else be satisfied that the person who takes the samples already has the information and skill and facilities needed to be able to properly take samples and store them.

16 Regulation 11 is directed to the sampler. It requires, it seems to me, the sampler to know that the donor has completed an affidavit in accordance with Form 1, at the time the bodily sample is taken. I am not at present satisfied that the sampler had this knowledge in this case.

17 Section 33 of the Act limits the people who are able to take bodily samples. Regulation 22 has widened the class of prescribed persons. Regulation 22 says:

“22. Persons prescribed as “qualified persons” under section 33 of the Act
For the purposes of section 33 (2) of the Act, persons employed by a hospital, pathology practice, parentage testing practice or a medical practitioner for the purpose of taking a bodily sample from a donor are prescribed as qualified persons.”

18 In the present case, the notice which was sent by the registrar, under Regulation 9, identified the sampler who was to take a sample from the child as being a particular named woman (whom I will call ‘A’). In fact, ‘A’ did not take the sample from the child. The Form 3 which was completed, says that the sample was taken by another named woman, ‘B’, who works for the same organisation as ‘A’. ‘B’ gives her occupation in the Form 3 as “Admin”.

19 While I would be prepared to infer that “B” was a person employed by a parentage testing practice, when she gives her occupation as “Admin” I am not prepared to infer that she is employed by the parentage testing practice “for the purpose of taking a bodily sample from a donor”; thus, I am not, at least on the evidence presently before me, satisfied that the sample has been taken by a qualified person.

20 While it is open to the court to make declarations of parentage under s 21 on the basis of whatever evidence seems to the court to be appropriate, when the court is asked to act on the basis of evidence of DNA testing procedures, proved by tender of a report under s 31 of the Act, the Court has no power to act on the results of parentage testing procedures which did not follow the strict regime which has been laid down by the Act and the Regulation. Indeed, once it is clear that the procedures laid down by the Act and Regulation have not been followed, s 31 does not enable the report to be received in evidence.

21 The way that DNA testing is conducted is such that the results are often extraordinarily highly probative of the matter at issue. In the present case, the report which was tendered before me, said that the probability that the man who was tested was the genetic father of the child had been calculated at 99.9998 percent. Given the highly persuasive nature of the evidence, it is all the more important that meticulous care be taken in following the procedures Parliament has laid down, if the mere tender of a report is to be accepted as proof of parenthood.

22 On the evidence before me I would not be prepared to make the declaration of paternity which is sought. However, it may be that the gaps in the evidence will be able to be filled.

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Last Modified: 03/20/2002