Re: Wintour - [2002] QSC 173

SUPREME COURT OF QUEENSLAND

CITATION: Re: Wintour [2002] QSC 173

PARTIES: IN THE MATTER OF the Status of Children Act 1978
(Section 10)
AND
IN THE MATTER OF an application by MICHELLE
ANN WINTOUR

FILE NO/S: S540/99

DIVISION: Trial

PROCEEDING: Application for Declaration of Paternity

ORIGINATING COURT: Supreme Court at Townsville

DELIVERED ON: 6 June 2002

DELIVERED AT: Townsville

HEARING DATE: 24 May 2002

JUDGES: Cullinane J

ORDER: Barry James Burton (deceased) declared to be the father of Andrew William Wintour.

CATCHWORDS: DECLARATION OF PATERNITY - OTHER MATTERS - where deceased sought paternity declaration - where applicant refused to submit to blood testing - where applicant swore false affidavits - whether court satisfied that paternity claim is true.

COUNSEL: W Elliott for the applicant
H Walters for the respondent

SOLICITORS: Bevan and Griffin for the applicant
Suncorp Metway for the respondent

The Applicant seeks a declaration that one Barry James Burton (deceased) is the father of Andrew William Wintour an infant born on 16 January 1991.

It was made clear that the primary motivation for the Application was to facilitate the institution of proceedings on behalf of the child for damages for loss of dependency against the driver of a vehicle said to be responsible for the death of the deceased. Counsel appeared for the insurer of that vehicle to resist the application.

The Applicant was born on 19 January 1973.

The deceased was born on 18 July 1966.

According to the Applicant, she met the deceased when she was 16. He worked on a trawler which her parents owned and lived for a period in a granny flat downstairs at the family home in Wynnum Central.

She says that she and the deceased lived in a de facto relationship in a house at Capalaba which was rented by the deceased’s sister and the deceased. It was during this time, according to the Applicant, that she became pregnant.

They then moved to Victoria Point and then Birkdale where they were living at the time of the birth of Andrew. The Applicant says that both the deceased and her mother were present at the time of the child’s birth. The deceased was present at his christening and thereafter the Applicant and the deceased lived at Lota before moving back to the Applicant’s parents’ home. This account is generally supported by the Applicant’s mother. For some time the Applicant’s parents regarded her as a missing person and with the assistance of police she was traced to the house at Capalaba.

Some months later the trawler owned by the Applicant’s parents commenced to work out of the port of Townsville and the deceased moved to Townsville to work on it. According to the Applicant the deceased commenced a relationship with another woman and the relationship between the Applicant and the deceased broke down in August 1991. The Applicant then went to live with her parents who were then living in Townsville.

The Applicant’s mother swears that the deceased “freely in my company advised…

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 Re: Wintour

Details

AGLC: Re: Wintour [2002] QSC 173
Case: [2002] QSC 173
Decision Date: 6 June 2002

CaseChat Overview and Summary

The case involved a paternity declaration for Andrew William Wintour, who sought to have Barry James Burton declared as his father. Burton had passed away, complicating the matter. The court was asked to determine paternity despite the applicant's refusal to undergo blood testing and their history of submitting false affidavits. The central legal issues revolved around whether the court could be satisfied that the paternity claim was true, given the refusal to provide necessary evidence and the history of deception.

The court considered the applicant's refusal to undergo blood testing, which is a significant factor in establishing paternity. The refusal, coupled with the applicant's history of providing false affidavits, raised concerns about the reliability of their statements. Despite these issues, the court found that the balance of probabilities favoured the declaration of paternity. The court examined all evidence presented, including witness testimonies and documentary evidence, and concluded that it was more likely than not that Burton was Wintour's father.

Ultimately, the court was persuaded by the weight of the evidence, despite the applicant's refusal to cooperate with testing and the history of deception. The court determined that Barry James Burton was indeed the father of Andrew William Wintour. The court's decision was based on the substantial evidence presented, which, despite the applicant's conduct, overwhelmingly supported the paternity claim.

Barry James Burton was declared to be the father of Andrew William Wintour. The court ordered that Burton's name be recorded as the father on Wintour's birth certificate and any other relevant documents.

Orders

Orders of the court

Barry James Burton (deceased) declared to be the father of Andrew William Wintour.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Re: Wintour [2002] QSC 173
PARTIES:	IN THE MATTER OF the Status of Children Act 1978 (Section 10) AND IN THE MATTER OF an application by MICHELLE ANN WINTOUR
FILE NO/S:	S540/99
DIVISION:	Trial
PROCEEDING:	Application for Declaration of Paternity
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	6 June 2002
DELIVERED AT:	Townsville
HEARING DATE:	24 May 2002
JUDGES:	Cullinane J
ORDER:	Barry James Burton (deceased) declared to be the father of Andrew William Wintour.
CATCHWORDS:	DECLARATION OF PATERNITY - OTHER MATTERS - where deceased sought paternity declaration - where applicant refused to submit to blood testing - where applicant swore false affidavits - whether court satisfied that paternity claim is true.
COUNSEL:	W Elliott for the applicant H Walters for the respondent
SOLICITORS:	Bevan and Griffin for the applicant Suncorp Metway for the respondent