Secretary Of the ATTORNEY-GENERAL'S Department and Evans and Norris
[2010] FMCAfam 913
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SECRETARY OF THE ATTORNEY-GENERAL'S DEPARTMENT & EVANS and NORRIS | [2010] FMCAfam 913 |
| FAMILY LAW – Parentage testing – request from foreign court – convention – regulation explanatory notes. |
| Family Law Act 1975, ss.69V, 69W, 69XA, 69ZW Family Law Regulations 1984 Family Law Amendment Regulations 2000 (No.2) 2000 No.81 Family Law Amendment Regulations 2007 (No.3) Legislative Instruments Act 2003 Swedish Act On Blood Examination (Sweden), s.1 |
| British American Tobacco Australia Services Ltd v Eubanks for the United States of America; Cannar v Eubanks for the United States of America; British American Tobacco (Investments) Ltd v Eubanks for the United States of America [2004] NSWCA 158 Recognition and Enforcement of Decisions Relating to Maintenance Obligations 1973 |
| Applicant: | SECRETARY OF THE ATTORNEY-GENERAL'S DEPARTMENT |
| First Respondent: | MR J EVANS |
| Second Respondent: | MR NORRIS |
| File Number: | BRC 11752 of 2009 |
| Judgment of: | Coates FM |
| Hearing date: | 1 March 2010 |
| Date of Last Submission: | 1 March 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 30 August 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Hanson, Australian Government Solicitor |
| Solicitor for the First Respondent: | No appearance |
| Counsel for the Second Respondent: | Mr Blaxland |
| Solicitors for the Second Respondent: | Easton Lawyers |
ORDERS
The Initiating Application (Family Law) filed 24 December 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Secretary of the Attorney-General’s Department & Evans and Norris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 11752 of 2009
| SECRETARY OF THE ATTORNEY-GENERAL'S DEPARTMENT |
Applicant
And
| MR J EVANS |
First Respondent
| MR NORRIS |
Second Respondent
REASONS FOR JUDGMENT
This case involves an application to enable an order of a Swedish court to be effected in Australia, by a parallel order of an Australian court.
It would mean that Mr Norris, of Queensland, would be ordered to undergo a parentage test, commonly known as a DNA test.
Reducing the opposing cases to basics, there is acceptance by both sides that the making of orders for such testing will depend on an application of an international convention to the Family Law Act 1975 (“the Act”).
For ease of reference I will refer to the applicant as the Secretary, the first respondent as Mr J Evans and the second respondent as Mr Norris.
Mr J Evans supports the Secretary’s case.
The Secretary’s initial material relied upon the convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations 1973.
Amended material was filed to rely only on the convention for the Taking of Evidence Abroad in Civil or Commercial Matters 1970.
The reason for that, I imagine, is that there is no mention of maintenance issues in the filed material.
For ease of reference I will refer to the two conventions as the maintenance convention and the evidence convention.
The only alleged factual background put before this Court is that:
a)Mr J Evans was born in 1990;
b)In or about May 2006, Mr J Evans sought orders from a Swedish Court confirming that Mr Norris was his father and Mr B Evans was not his father.
c)He alleged that his mother had unprotected sex with Mr Norris, while married to another man, Mr B Evans, who had been “sterilised”, according to the material.
d)The relationship occurred at a relevant time before Mr J Evans’s birth.
e)On 27 November 2007, the [omitted] Court ordered, when investigating paternity, a blood sample/mouth swab of Mr Norris pursuant to s.1 of a Swedish act entitled Swedish Act On Blood Examination (Sweden).
f)According to Swedish law, Mr Norris is obliged to cooperate.
g)He has refused to do so.
h)On 28 June 2008 a letter of request was transmitted to the Supreme Court of Queensland seeking implementation of the Swedish order.
i)The letter of request was re-directed to the Commonwealth Attorney-General’s Department
j)On 18 December 2008 the Australian Government Solicitor corresponded with Mr Norris seeking his statutory declaration that he was Mr J Evans’s father, otherwise this application would be made to the Court.
k)On 24 December 2009, the Secretary’s application was filed in this Court.
At this stage it is worth stating or summarising part of the law which is brought before the Court.
Countries agreeing to or making an international treaty, arrangement, agreement or convention may request other member countries to assist in taking evidence for matters in civil judicial proceedings. This is done through a letter of request.
A common question is how domestic legislation adopts or is to give effect to an international convention. It is a question of interpretation.
I will reproduce the relevant sections of the Family Law Act 1975 being relied on because the wording is important to interpretation.
Section 69W states:
(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 mention 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) an independent children’s lawyer representing the child’s interests 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.
(4)A parentage testing order may be made subject to terms and conditions.
(5)This section does not affect the generality of section 69V."
Section 69V states:
“If the parentage of a child is a question in issue in proceedings under this Act, the Court may make an order requiring any person to give such evidence as is material to the question.”
Section 69XA is headed “Matters related particularly to parentage testing for the purposes of an international agreement.
(1)“The Secretary may commence or continue proceedings under section 69W if it is necessary or convenient to do so for the purpose of an international agreement or arrangement.”
For present purposes the rest of the section is not relevant.
That the sections come within consideration under an international convention is due to operation of the Family Law Regulations 1984.
There is no need to repeat the operative regulations, as it is not disputed that there is a general power to consider applications and make orders.
In referring to the effects of the evidence convention, Mr Hanson, for the Secretary, submitted that s.69XA of the Act appears to allow the secretary to commence proceedings, not limited by the wording of s.69W.
He submitted that s.69W does not limit the operation of s.69XA, otherwise the latter section has no meaning.
The submission recognises, in my view, that there is no mention of maintenance proceedings in the Swedish material.
I was then taken to the Family Law Amendment Regulations 2000 (No.2) 2000 No.81. A computer print out was provided.
Mr Hanson conceded that those Regulations appear to relate to and limit maintenance obligations and he pointed to the last star point on page 2, stating “The Regulations…make provision for determination of parentage disputes in court proceedings in overseas maintenance cases”.
But he submitted that the regulations were not exclusively for foreign maintenance cases, such was only a focus.
He supported this with his reference to page 7 of the Explanatory Statement for the Regulations and Item 23, where a new Part IIIB was inserted and described with the words “relating to an international agreement or arrangement to which Australia is a party”. He said this was an intention not to limit the regulations to maintenance obligations.
He said such was mirrored in the Explanatory Statement for the Family Law Amendment Regulations 2007 (No.3), which appeared to deal with a range of family law regulation matters.
He submitted that the 2007 Regulations omitted regulations which were inserted into the Act, such as now can be seen in s,69XA, but that “the clear intent of Parliament was to replicate the sub-regulations themselves and provide a parenting testing regime for the purposes of the relevant international agreements or regulations or arrangements”.
Reference to “relevant international agreements or regulations or arrangements” in the plural supports his submission that the reference was not only to the maintenance conventions, but other international agreements and arrangements as well.
Mr Hanson then referred to cases dealing with international agreements or conventions.
In British American Tobacco Australia Services Ltd v Eubanks for the United States of America; Cannar v Eubanks for the United States of America; British American Tobacco (Investments) Ltd v Eubanks for the United States of America [2004] NSWCA 158, proceedings against tobacco companies were instituted in the United States and a letter of request was issued for a former solicitor of one of the companies to be examined before the Supreme Court of NSW in relation to matters identified in the letter of request.
The judgment of Spigelman CJ, at page 496 confirmed that evidence may be taken pursuant to a letter of request from another country under treaty or agreement or arrangement.
I was also referred to Gred v Busson [2003] EWHC 3001 (QB), an English decision and to the comment by Burnton J that: “comity requires this court to view a letter of request issued by a foreign court for the purpose of civil proceedings before it benevolently. It is our pleasure and duty to assist those courts and the parties to them in arriving at a fair and just determination of their civil litigation where we can properly do so”.
I was also referred to a statement by the Special Commission in The Hague on the practical operation of evidence taking and conventions, February 2009, where Australia, a government response I assume, stated it takes a “broad and liberal interpretation of the phrase ‘civil and commercial matters’” with that approach taken by the NSW Supreme Court in Sykes v Richardson (2007) NSWSC 418.
It appears to me that the Secretary is submitting, although careful not to state such in so many words, that merely because of the existence of the explanations referred to, the international agreement, the amendments to the Act and unrelated decisions, I have no discretion to exercise.
The issue of the Court’s power to make any orders must be apparent from the subject matter before the Court and the purpose of the legislation under consideration.
In my view, even if the submission is correct that an intention has been shown to go beyond maintenance obligations, there still must be a power for me to exercise to make the orders sought.
As Spigelman CJ and Burnton J carefully stated, and using Burnton J’s words, foreign courts will be assisted “where we can properly do so”, and I put the emphasis on the word properly.
That brings into contention then the respondent’s opposition to the orders sought.
I have examined the grounds of Mr Blaxland of counsel for Mr Norris and paraphrase them as follows:
a)That there is no general power to order such DNA testing, it must come within the Family Law Act 1975;
b)Family law is different from civil or commercial matters and so the evidence convention does not apply;
c)An investigation of paternity in Sweden could not have been brought in this Court because the purpose of the parentage testing is not stated.
d)The first respondent does not come under the jurisdiction of the Act because there is no allegation he is the child of a marriage or a person otherwise within the Act’s jurisdiction.
e)DNA testing is an invasion of privacy.
While there is a scatter gun approach to opposing the application to cover all possible arguments, many of the submissions relate to the interpretation as to the application of the evidence convention to the Act. In my view, this comes down to what power the Court has.
The power must come from the legislation and in this case, from the convention taken in as domestic law.
The wording of s.69W(1) states that “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 parenting testing procedure to be carried out…”.
The authorities have always stressed that the underlined words are crucial, there must be some matter on foot bringing parentage into issue. It is a threshold question, see Brianna & Brianna [2010] FamCAFC 97 at paragraph 18 and 19.
Mr Blaxland also referred me to Duroux and Martin [1993] FamCA 125; (1993) FLC 92-432, where it was said:
“To justify an order for parentage testing under s66W(1), a Court must first be satisfied that the parentage of a child is in issue in proceedings under the Family Law Act. The proceedings, which are a necessary precondition, may, for example, involve the matter of child maintenance, custody or access, in which the question of parentage is an issue. This threshold question raises no difficulty in the circumstances of this case as clearly the question of paternity is in issue between the parties in the proceedings for child maintenance brought pursuant to Park VII of the Act.”
I was also referred to Cousins & Harper and Ors [2007] FamCA 1135, the Court stated:
“[I] cannot envisage a situation where the Court will order parentage testing merely because it is requested to do so. In my view an applicant must have an honest, bona fide and reasonable belief as to the doubt. An objective test is not to be applied, for the evidence in such applications is seldom (if ever) sufficient to enable the Court to come to any objective conclusion, and if it were true, parentage testing orders would not be necessary, but the Court will objectively assess the circumstances giving rise to the applicant’s belief. However in every case, the interests of the child are paramount and that consideration may supersede the interests of the parties.
Significantly, paternity was the “threshold consideration in the substantive proceedings before his Honour.”
But those cases go to matters considered entirely under domestic legislation and I am being asked to consider a foreign court order from another signatory country.
In this matter, s.69W of the Act must be read in conjunction with the articles of the convention, in particular, article 3 states: “A Letter of Request shall specify-…(c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto…”
The use of the word “shall” has a long legal interpretative history as to whether it is merely directive and discretionary or mandatory, as to the consequences of its application.
Two circumstances assist in its meaning in this case.
a)First, sub section 3(c) of the article not only states the nature of the proceedings shall be identified; but
b)Second, all necessary information shall be specified.
As I can see no reference to applying the convention on a stand alone basis, I must apply the decisions of the authorities, such as Brianna, and in doing so, I must conclude that article 3 of the convention then mandates what the letter of request will contain and shall be identified.
On the little material available, there is no statement complying with article 3 stating the nature of proceedings.
In my view, the application for a parentage test, if granted, would result in a fact, a determination of parentage. That does not go to the nature of the proceeding.
The nature of the proceeding goes to an issue in a proceeding, as identified in the authorities.
So the letter of request did not identify the nature of proceedings in Sweden.
Without that, I cannot determine that the test is required for a parenting matter as required by the Act. There is a missing link between the Swedish matter in its application to the Australian Family Law Act.
If parentage were an issue in Sweden, for example for maintenance or for a best interests decision then I would have the power to make the order sought and I would consider making the orders sought, probably taking into account the age of Mr J Evans. Such would be an exercise of the Court’s discretion.
Because of that interpretation, I am not shown how in the particular circumstances my power is enlivened or the purpose of the Family Law Act 1975 has been changed in some way to allow general DNA testing under it when there is no other related issue.
As to Mr Blaxland’s other submissions:
a)Family law is different from civil or commercial matters - without a definitive ruling by higher courts, I do not accept that family law is necessarily separate from civil law, as was submitted, like canon or military law.
In certain circumstances, I have no doubt that the evidence convention could be used in the manner suggested, however, not under the Family Law Act 1975 in the circumstances presented. I keep in mind that the original letter of request was directed to the Supreme Court of Queensland and it may be there is a state Act which would allow for such parenting testing.
b)As there is no allegation that Mr J Evans is the child of a marriage or a de facto relationship for a parenting order, he does not come within the Act’s jurisdiction. I agree.
c)That DNA testing is an invasion of privacy - DNA testing is an invasive procedure, even though that may consist only of a mouth swab. Such is an assault on a person and Australians still live in a free society where privacy is important and where the assault which would result from a DNA test must be authorised, justified or excused at law. Sections 69V and W of the Family Law Act 1975 are careful not to infringe privacy unless there are certain and narrow issues to be decided and no other interference, either by private or state application, can be granted outside of the legislation. Privacy is an important issue and one which is under pressure daily.
That is why Article 3, to which Australia agreed, requires reference to the nature of the proceedings with all necessary information stated.
As no evidence has been put before the Court as to the nature of the Swedish proceeding, and as this is an invasive procedure which will result in Mr Norris' DNA identification possibly being kept for no known reason, a privacy issue, the right to exercise discretion is recognised in the Act.
Does reliance on threshold tests nullify s.60XA as is Mr Hanson’s submission?
On the wording, that cannot be the case.
The secretary’s role is clear, the secretary may commence or continue proceedings in a proper case, but not in an improper case.
In my view, there is no great controversy over what is a proper case. It is one, under the Act, where parentage is in issue for a purpose of the Act. There is no reference in the Swedish judgment or letter of request that the action was brought in relation to a purpose of the Act.
The purpose of the parentage testing may be for some other reason, for example so that Mr J Evans knows his family medical history or something of that nature, but there is no tie to the Family Law Act 1975 apparent in the material.
Merely applying the convention because it is there for a civil matter in Sweden is no answer to the requirement of s.69W or in fact 69V, that parentage must be in question, in issue, in proceedings under the Act. The Act cannot be used to determine generally a mere question of parentage, the proceedings must be related to issues which can be raised under the Act.
I am not persuaded to make the order sought and dismiss the application.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 30 August 2010
0
2
0