Teasdale & Rossell & Anor
[2021] FCCA 58
•27 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TEASDALE & ROSSELL & ANOR | [2021] FCCA 58 |
| Catchwords: FAMILY LAW – Parenting – Application for Parentage Testing Orders pursuant to section 69W – Child does not have a relationship with the applicant – Child seven years of age – Child lives with second respondent and has only ever known him to be his father – Application dismissed. |
| Legislation: Family Law Act 1975 (Cth), ss.60C, 60CA, 60CC, 69R, 69U, 69V, 69VA, 69W. |
| Cases cited: G v H (1994) 181 CLR 387 In the Marriage of Lee and Tse (2005) Fam LR 167 Brianna & Brianna [2010] FamCAFC 97 Cousins & Harper [2007] FamCA 1135 Bernieres and Anor & Dhopal and Anor [2015] FamCA 736 Re D (Paternity) [2007] 2 FLR 26 Re H and A (Paternity: Blood Tests) [2002] 1 FLR 1145 |
| Applicant: | MR TEASDALE |
| First Respondent: | MS ROSSELL |
| Second Respondent: | MR CANEDO |
| File Number: | BRC 12145 of 2018 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 10 July 2020 |
| Date of Last Submission: | 31 July 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 27 January 2021 |
REPRESENTATION
| Solicitors for the Applicant: | Hofstee Lawyers |
| Solicitors for the First Respondent: | Cornerstone Law Offices |
| Counsel for the Second Respondent: | Mr Thomas |
| Solicitors for the Second Respondent: | McNamara Law |
ORDERS
That the Applicant’s application for parentage testing orders sought in the Amended Initiating Application filed 10 December 2019 be dismissed.
That Orders (2), (3), (4) and (5) of the Orders made 5 September 2019 be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Teasdale & Rossell & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 12145 of 2018
| MR TEASDALE |
Applicant
And
| MS ROSSELL |
First Respondent
And
| MR CANEDO |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an Initiating Application filed 18 October 2018 the applicant, Mr Teasdale sought parenting orders in relation to the child X who was born 2014. His substantive application was to spend time with the child and for the mother, Ms Rossell, and he to share equally parental responsibility for the child. He also sought orders for parentage testing. Judge Middleton made orders for that testing on 5 September 2019. The testing had not taken place when the matter was next before the court and orders were made for the applicant to file an Amended Initiating Application which he did on 10 December 2019. When the matter came before the court again on 6 March 2020 leave was granted for the second respondent, Mr Canedo, to intervene in these proceedings. The second respondent is named as the father of X on his birth certificate and is the person with whom the child lives. On 21 May 2020, I suspended the previous orders for the parentage testing to enable all the parties to argue whether the orders should be made.
The applicant has pressed his application which is opposed by both the mother and the second respondent. It was submitted by the respondents that if the court considers that testing should take place it should be done in a sensitive way given the age of the child and proposed that the sampling be undertaken without alerting the child to the purpose of the testing and that the parties be restrained from releasing the results to the child.
Material Relied On:
The applicant relied on the following material:
a)Amended Initiating Application dated 10 December 2019;
b)His Affidavits filed:
i)19 October 2018; and
ii)10 December 2019.
The mother relied on:
a)Response filed 22 March 2019;
b)Her Affidavits filed:
i)22 March 2019;
ii)7 July 2020; and
iii)31 July 2020.
The second respondent relied on:
a)Response filed 19 June 2020;
b)His Affidavit filed 19 June 2020.
The matter proceeded on the papers by consent of the parties who also relied on their written submissions. As a consequence I am not able to determine any factual disputes however I am satisfied that I am able to determine this limited, but important, issue nonetheless. Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
Evidence
The mother and the second respondent started a relationship in early 2013 but it was short lived. In April of that year the mother commenced a relationship with the applicant which lasted about a month. She then resumed her relationship with the second respondent and they remained in a relationship until 2016. X was born 2014. She was living with the second respondent at the time and his name was placed on the child’s birth certificate as the father.
In her affidavit filed 22 March 2019 the mother said:
[9] At the time X was born I was living with Mr Canedo and at that time had doubts as to whether the applicant or Mr Canedo was the father and inserted Mr Canedo’s name when registering X’ birth.
In her affidavit filed 7 July 2020 the mother gave a different version:
[6] Mr Canedo and I were together at the time X was conceived. At the time I believed that Mr Canedo is X’s father and it is the reason why Mr Canedo is referred to as the father on X’ birth certificate. I still strongly hold this view and I do not doubt it.
I do not accept the mother’s more recent evidence as to her belief. In her 2019 affidavit she also gave evidence of attempting to contact the applicant for months after X’ birth without any response. She then said that a year after X was born the applicant contacted her and she organised three one hour visits for the applicant with X. She said that she did not hear from him again for another year and decided not to respond to his messages as she did not consider he was interested in X. Although the matter proceeded without the benefit of cross-examination the mother’s evidence is at such odds it cannot be said to be reliable. The evidence given in her 2019 affidavit however is, on the balance of probabilities, likely to be closer to the truth. If she had held the belief that the second respondent was the father of X she would not have been contacting the applicant whilst living with the second respondent in order to organise visits for the applicant with the child.
The mother and second respondent went on to have a daughter together. Y is five years of age. Both X and Y live with the second respondent. Y has lived with the second respondent since separation in 2016 and X came into his care in 2018 after intervention by the Department of Child Safety. The children currently communicate with their mother by Facetime but are not spending time with her in person. The mother lives in a remote location.
Legal Approach
Section 69R of the Family Law Act 1975 (Cth) (the Act) provides that if a person’s name is entered as a parent of a child in a register of births the person is presumed to be a parent of the child. That presumption however is rebuttable on the balance of probabilities.[1] It operates ‘until proof to the contrary is forthcoming.’[2]Therefore, given the second respondent is recorded as the child’s father on his birth certificate, he is presumed to be X’s father until there is proof to the contrary.
[1] Section 69U(1)
[2] G v H (1994) 181 CLR 387 at 400 per Deane, Dawson and Gaudron JJ.
Section 69V provides:
[69V] 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.
As well as determining the issue of parentage the court may issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.[3] The applicant invites the court to do so, should his application for parentage testing be successful and a parentage test shows him to be the child’s biological father.
[3] Section 69VA
The power to make an order for parentage testing is found in s.69W which provides:
69W(1) [Court may order parentage testing procedure] 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.
69W(2) [Circumstances in which parentage testing orders may be made] 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.
69W(3) [Who may be objects of parentage testing orders] 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.
As can be seen from that section, the power to make an order for parentage testing is not at large. In order to enliven the discretionary power of the court an applicant needs to overcome two hurdles: firstly the parentage of the child must be a question in issue in the substantive proceedings; and secondly there must be evidence placing the parentage of the child in doubt.[4]
[4] See approaches adopted in: In the Marriage of Lee and Tse (2005) Fam LR 167 and Brianna & Brianna [2010] FamCAFC 97
There is no dispute that the parentage of X is an issue in the substantive proceedings. The applicant has brought proceedings for parenting orders in relation to the child, including a declaration of parentage. For him to have standing to do so he would need to establish that he falls within one of the following categories of people:
a)Either or both of the child’s parents; or
b)The child; or
c)A grandparent of the child; or
d)Any other person concerned with the care, welfare or development of the child.[5]
[5] Section 60C(2)
If the applicant is not the father of the child he will need to show that he is either a grandparent or person concerned with X’s care, welfare or development. There is no suggestion he is a grandparent and given he has not had a relationship with X, save for a handful of one hour visits over five years ago, it could not be said he is a person concerned with the child’s care, welfare or development. The issue of the child’s parentage is therefore clearly an issue in the substantive proceedings, which are proceedings under the Act.
The second pre-requisite for the making of a parentage testing order is that there must be evidence that the issue of the child’s parentage is in doubt. I am satisfied that limb has been established. Both the mother and the applicant gave evidence they were in a sexual relationship around the time X would have been conceived. Although the mother now asserts she did not have any doubts that the second respondent was the father of X that evidence is inconsistent with her earlier evidence and her attempts to involve the applicant in the child’s life.
Discussion
Having found that the two pre-requisite limbs for the making of a parentage testing order have been established I need to turn my mind to the exercise of discretion.
The Full Court[6] in In the Marriage of Lee and Tse[7] said:
[33] The second component of the threshold question is that there must be evidence which places the parentage of a child in doubt: Duroux v Martin, OP and HM. In the former case, the Full Court adopted the formulation by the trial judge, Bell J, regarding the occasions when the Court might exercise its discretion under s 69W (formerly s 66W):
"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, parentage testing orders would not be necessary, but the Court will objectively assess the circumstances giving rise to the applicant's belief". [Citations removed]
[6] Rowlands, Holden and May JJ
[7] (2005) 33 FamLR 167
Given the applicant had a sexual relationship with the mother around the time of the child’s conception and the mother sought him out to have a relationship with the child, notwithstanding he did not follow up opportunities to have that relationship over time, I am satisfied he has an honest, bona fide and reasonable belief as to the doubt surrounding the paternity of the child.
In Cousins & Harper[8] Coleman J considered parentage testing to be obtrusive and had this to say:
……subjecting children to parentage testing procedures, however innocuous or benign they may be, is not something that a court acting in the best interests of the welfare of children would lightly condone.
[8] [2007] FamCA 1135
By virtue of s.60CA, when the court is exercising its discretion in the making of a parenting order it must consider the child’s best interests as the paramount consideration. Although s.60CA does not have application to a parentage testing order I am satisfied that even though a child’s best interests may not be the paramount consideration it remains an important consideration.[9] The Full Court[10] in Brianna & Brianna[11] at paragraph 159 said:
[159] …..it would seem self-evident that when exercising the discretion under s. 69W to make a parentage testing order (the exercise of which discretion is undefined), one of the matters to which the court must have regard in exercising that discretion is the interests of the child in question.
[9] Bernieres and Anor & Dhopal and Anor [2015] FamCA 736
[10] Bryant CJ, Finn and Thackray JJ
[11] [2010] FamCAFC 97
It was submitted on behalf of the applicant that it was in the child’s interests to know the truth. I was referred to the decision of Re D (Paternity)[12] where Hedley J found that the child's identity is something which he should know and that it was thus in his best interests to know the truth… and that in the end truth is easier to live with than doubt or fiction.
[12] [2007] 2 FLR 26
In Re H and A (Paternity: Blood Tests)[13] the English Court of Appeal affirmed that the principles to be drawn from the English cases are:
a)the interests of justice are best served by the ascertainment of the truth; and
b)the Court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences.
[13] [2002] 1 FLR 1145
The Full Court when discussing the exercise of discretion in Brianna said:
[20] The Act gives no assistance as to how that discretion might be exercised; however, certainty as to parentage and issues of identity have increasingly been seen to be of importance in the jurisprudence of courts both in Australia and overseas.
I am satisfied that the issue of the child’s identity, either now or in the long term, is an important consideration to be weighed up along with other relevant considerations.
The child, who is now seven years of age, has only ever known the second respondent as his father. He has been a constant in the child’s life and for the last two years has been his primary carer. The child and his sister live in the full time care of the second respondent. It was submitted that it would be upsetting for him to undergo the necessary test and would cause him to question an important aspect of his life that he has hitherto not had any doubt about.
It was argued that there would be a risk of psychological harm to the child if it were suggested to him that the second respondent might not be his father. Whilst there was no psychological evidence to support the submission I was invited to take judicial notice of the distress that could be caused to a child who is confronted with doubt as to their parentage.
I am satisfied that this issue is also an important consideration. It was submitted by the applicant that these concerns could be addressed by the imposition of conditions on the process such as restraining the parties from telling the child the reason for the testing or the outcome of it, at least in the interim. Whilst I accept that submission, it is somewhat incongruent with the earlier submission that the child is entitled to know the truth. Having said that I accept the intention of the submission was that the withholding of the information was intended to be an interim measure only. The question remains however, with the best will in the world by all involved, can the parties avoid the child becoming aware of the issue?
The applicant argued that the second respondent has in the past acted as if he knew he was not the father and gave as an example the fact that X did not go into the second respondent’s care when he and the mother separated even though Y did. I do not accept that submission. I do not consider it appropriate to draw an inference as to the reasoning behind the parenting arrangements when the parties chose to proceed with the hearing on the papers rather than requiring cross-examination to assist the court in determining disputed questions of fact. That also applies to the alleged conversations and messages where the second respondent is asserted to have suggested he was not the father of X. He has denied any such assertion and the applicant did not take an opportunity to challenge the denial.
The applicant submitted that as the court is required to consider a child’s right to know and be cared for by both his parents when determining a substantive parenting proceeding it is important to take this factor into account when exercising the discretion to make a parentage testing order. I accept this is a consideration that should be addressed. When making a parenting order the court will consider all of the factors set out in s.60CC including the need to consider any relevant fact or circumstance. A significant fact in this case is that the child has only ever known the second respondent as his father and even if he is not the biological father of X he would be seen by the child as his ‘psychological father’. Given the applicant does not have any relationship with the child it may be that this fact will outweigh the consideration of the benefit of the child having a relationship with his biological father although I do not make that finding in this judgment.
I consider it important to also look at what action the applicant has taken to establish a relationship with the child. The mother complained that the applicant did not seek out any time with the child until he was about 12 months of age and did not pursue a relationship after three visits. The applicant said it was five visits. He first applied for orders in October 2018 when the child was four years and nine month of age although according to the mother he had tried to contact her but she did not respond. There is no evidence that he has offered to pay child support for X either to the mother in the early years or to the second respondent now. On the one hand I accept the applicant, by making this application is interested in pursuing a relationship with X, but on the other hand he has not been pro-active and consistent throughout the child’s life.
This is a very finely balanced case as there is merit in the arguments advanced by all of the parties. I have come to the conclusion that X’s interests would not be served by ordering the parentage testing despite there being doubt about who his biological father is. If the applicant had have brought the application much sooner than 2018 and/or he had an ongoing relationship with the child I may have come to a different conclusion. In weighing the arguments raised I consider it would be difficult to keep from a child, who is seven years of age, the reason for him undertaking the test without lying to him. This is a child who has already been removed from his mother’s care and has now been living with the second respondent and his sister for over two years. It would be unsettling for him to bring into question who his father is at this point in his life. In my view this consideration outweighs the other legitimate issue of him knowing the truth that testing could provide.
For these reasons I will dismiss the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 27 January 2021
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