S and M
[2002] FMCAfam 217
•18 July 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & M | [2002] FMCAfam 217 |
| CHILDREN – Parentage testing – Family Law Act 1975 ss.69W, 69S, 69T; Evidence Act 1995 s.140; G v H (1993) FLC 92-380 at 79,940; Re C (No.1) (1992) FLC 92-283. |
| Applicant: | S S |
| Respondent: | H M |
| File No: | ZA 2770 of 2001 |
| Delivered on: | 18 July 2002 |
| Delivered at: | Adelaide |
| Hearing Date: | 18 July 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Applicant: | Applicant appeared on his own behalf |
| Counsel for the Respondent: | Ms Dixon |
| Solicitors for the Respondent: | Angela Ferdinandy |
ORDERS
The applications in form 8 and form 12 filed by Mr S on 12 November 2001 be dismissed.
The applicant to pay the respondent's costs as agreed between the parties and failing agreement to be taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ZA 2770 of 2001
| S S |
Applicant
And
| H M |
Respondent
REASONS FOR JUDGMENT
These are ex tempore reasons for judgment in the matter of S and M. This morning, I have to deal with an application that is brought by S S, the applicant in these proceedings. He seeks an order that he and the respondent to the proceedings, H M, and a child, N T M, undergo parentage testing to determine the paternity of N. There is no doubt that Ms M is N’s mother. This is the preliminary issue that I have to determine this morning. It is Mr S’s position that he is not N’s father.
It follows from that, that Mr S is dissatisfied with certain orders that have previously been made that require him to pay child maintenance to Ms M in respect of N. The respondent to the proceedings is H M. She seeks that this application for parentage testing be dismissed and that Mr S pay her costs in respect of these proceedings.
The parties never lived together and have never married. They have had a lengthy history of proceedings over a number of years in the Family Court and, more recently, in this court. On 14 July 1994 McGovern J in the Family Court at Adelaide made orders in respect of the care and maintenance of N. In a preamble to these orders, McGovern J made the following finding:
“The court finds that the abovenamed S S is the father of the infant child N T M born on 22 March 1985.”
It is also common ground between the parties that, notwithstanding this finding, orders were subsequently made for the parties to undergo parentage testing to ascertain N’s parentage. Annexed to Mr S's affidavit in support of his application, is a report in respect of the parentage testing involving the parties to the proceedings and N M. That report is dated 22 July 1996. The result of the tests was that Mr S was not excluded as the father of N and the paternity index, that is the probability that Mr S was N’s father, was calculated as being approximately 4290 to 1.
Following this parentage testing, it is also common ground – and it appears as an annexure to an affidavit which was sworn by Ms M on 14 March of this year – Mr S swore an affidavit on 22 May 1997 in which he said this:
“I do not contest the paternity of the said child, N T M.”
This affidavit was prepared by the solicitors who were then advising Mr S and its effect was that Mr S indicated to the Family Court and to Ms M on oath that he was no longer contesting the issue of N’s paternity so far as he was concerned. I think it follows as a necessary implication from that statement that Mr S has indicated on oath that he is N’s father.
I should say that, notwithstanding the orders of McGovern J, an order was made by the judicial registrar on 4 March 1996 that, pursuant to section 69W of the Family Law Act, there should be the further parentage testing to which I have referred.
So in this matter there has been, firstly, a finding by a judge of the Family Court that Mr S is the father of this child N; secondly, there has been parentage testing which does not exclude Mr S and which establishes to a high degree of probability that Mr S is indeed N’s father; and thirdly, Mr S himself has sworn an affidavit in which he indicated that he does not contest paternity in respect of N.
Notwithstanding those matters, it is apparent to me that Mr S does not accept the consequences of any of these matters. As a result, he has commenced these further proceedings in respect of N. The basis on which he does not accept these findings is set out in an affidavit, sworn by him and filed in these proceedings. He says as follows in his affidavit:
“I do not believe that I am the father of this child, as I was involved with the child's mother no later than late May 1984. I recall the dates as I was managing the B nightclub during that time.”
So it is his position that he cannot be the father of the child because any relationship between him and Ms M finished in late May of 1984 and N herself was born on 22 March, 1985. He does not deny that he had sexual intercourse with Ms M up until late May of 1984. He suggests thereafter that Ms M had an intimate relationship with another man.
Mr S acts on his own behalf in these proceedings. In order to conclude them, I permitted him to cross-examine Ms M about her relationship with Mr S and when she believed it concluded. She gave evidence that as far as she recalls she had an intimate relationship with Mr S that ended in August of 1984. Thus she rebuts the factual basis on which Mr S argues that it is appropriate to order the parties and N to undergo further parentage testing. She also denied being sexually involved with another person at the relevant times. I believed her evidence.
Section 69W of the Family Law Act deals with parentage testing. It reads as follows:
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.
So it is clear that the court has a discretion as to whether or not to order parentage testing. It is not the right of a party to demand parentage testing.
Ms Dixon, who appears for Ms M, relies on section 69S and section 69T of the Family Law Act. Those sections create presumptions of parentage in respect of two situations. Firstly, pursuant to section 69S(1) which reads as follows:
If:
(a) during the lifetime of a particular person, a prescribed court has:
(i) found expressly that the person is a parent of a particular child; or
(ii) made a finding that it could not have made unless the person was a parent of a particular child; and
(b) the finding has not been altered, set aside or reversed;
the person is conclusively presumed to be a parent of the child.
In this case, as I have already indicated, McGovern J made such a finding on 14 July 1994. As a result of that finding Mr S is presumed to be N’s father.
Secondly, pursuant to section 69T of the Family Law Act which reads as follows:
If:
(a) under the law of the Commonwealth or of a state, territory or prescribed overseas jurisdiction, a man has executed an instrument acknowledging that he is the father of a specified child; and
(b) the instrument has not been annulled or otherwise set aside;
the man is presumed to be the father of the child.
As I have already indicated, Mr S has signed an affidavit on 22 May 1997 indicating that he does not contest the paternity of the child N T M.
By implication, I think Mr S argues that there is some irregularity in respect of the DNA or parentage testing that has already taken place. He cannot point to any particular irregularity or difficulty with the testing. It seems to me, based on his blind faith that he is not the father of this child, that he will not accept the result of the testing. However, he cannot point to any flaw in the testing itself. He, in his submissions to me, raises innuendo and suggestion regarding alleged irregular practices at the forensic laboratory that undertook the testing in 1996, but he himself provided no evidence in this regard. He submitted that problems and irregularities at the State Forensic Science Laboratory had been the subject of comment in the media and were well known. Essentially he says that as he cannot be N’s father, there must be something wrong with the parentage testing that was carried out in 1996. That he says, is sufficient reason to order further parentage testing.
In my view it would be unsafe and inappropriate for me to act on Mr S’s submissions in this regard which are not supported by any specific evidence. The fact remains that there is no evidence before me to suggest that proper procedures were not followed when the various samples were taken from the parties concerned and N. Similarly Mr S has not, in my view, called any evidence that indicates that there were any deficiencies in the technology that was used at the time of testing in 1996.
The onus of proof that Ms M bore in the original parentage proceedings was that set out in section 140 of the Evidence Act namely:
1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
a)The nature of the cause of action or defence; and
b)The nature of the subject-matter of the proceeding; and
c)The gravity of the matters alleged.
I bear in mind what Strauss J said in G v H (1993) FLC 92‑380 at 79,940:
“The results of paternity testing procedures carried out as prescribed in the act and regulations provide scientific evidence which more than satisfies the onus of proof which might be required in any civil case, however that onus of proof might be formulated.”
Further, Fogarty J in Re C (No 1) (1992) FLC 92-283 said:
“If there is any doubt or uncertainty or challenge raised as to the procedures giving rise to that report (referring to a paternity report) then that would be a matter which the court would determine, but the whole structure of the regulations seems to me to proceed on the basis of an assumption of regularity. Where there is nothing more than a report in the prescribed form, the court may admit that into evidence and may do so notwithstanding that there is no evidence either way as to the earlier steps.”
Mr S can point to no irregularity in the earlier report which is annexed to his affidavit. Ms M herself has given evidence as to when she believes she ended her intimate relationship with Mr S. There are the presumptions provided by section 69S and section 69T of the Family Law Act. Although it has not been raised, it may well be argued, I think, that Mr S is estopped from any further argument in respect of this matter. The issue of N’s parentage has been determined.
As I say, I suspect Mr S will never accept the result of the parentage testing or the finding of any court. He urges the Court to give him a “fair go” and order further parentage testing. Pursuant to section 69W, I have a discretion as to whether or not to order parentage testing. That discretion must be exercised properly on the basis of all the evidence. It is not appropriate, in my view, to order further testing just because Mr S believes that it is necessary for him to have a “fair go” and because he does not accept the result of earlier findings. There has to be an end to these proceedings regarding N’s parentage.
There is no evidence, in my view, capable of rebutting the presumptions created by section 69S and section 69T of the Family Law Act regarding the parentage of N and her paternal relationship with Mr S. Mr S can point to no irregularity in the parentage procedure that has previously taken place. I am not persuaded that it would be a proper exercise of the discretion awarded to the Court by section 69W to order further parentage testing in this matter.
For that reason, it is my view that the application made by Mr S for further parentage testing should be dismissed and I make an order dismissing the application in form 12 and form 8 that were filed by him on 12 November 2001.
I will make a further order that the applicant pay the respondent's costs as agreed between the parties and failing agreement to be taxed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Brown FM
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