Thomson v Raffaele

[2005] ACTSC 139

THOMSON v RAFFAELE [2005] ACTSC 139 (9 December 2005)

EX TEMPORE RULING

FAMILY LAW – paternity – declarations of paternity and of non-paternity – amendment of particulars on register of births

Births, Deaths and Marriages Registration Act 1997 (ACT)

No. SC 854 of 2005

Judge:          Gyles J
Supreme Court of the Australian Capital Territory
Date:           9 December 2005

IN THE SUPREME COURT OF THE     )
  )          No. SC 854 of 2005
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: VIVIEN DENISE THOMSON

Applicant

AND:RAYMOND JOSEPH MARK RAFFAELE

First Respondent

AND:ROBERT JOHN FLINT

Second Respondent

ORDER

Judge:  Gyles J
Date:  9 December 2005
Place:  Canberra

THE COURT DECLARES THAT:

1. Robert John Flint is a parent of the child born on 10 December 1998 and registered as Shaun William Raffaele. 

1. Raymond Joseph Mark Raffaele is not a parent of the child born on 10 December 1998 registered as Shaun William Raffaele. 

THE COURT ORDERS THAT:

1. The register of births maintained under the Births, Deaths and Marriages Registration Act 1997 (ACT) in relation to Shaun William Raffaele be amended:

(i)     by omitting the surname ‘Raffaele’ and adding in lieu thereof the surname ‘Flint’;

(ii)     by omitting the details of the father and adding in lieu thereof the name ‘Robert John Flint, occupation farmer, birth place Canberra, age 37’. 

1. This is an application for orders to declare paternity and to rectify the register of births.  The applicant is the former wife of the first respondent.  The register of births indicates that a child born on 10 December 1998 during the currency of that marriage was named Shaun William Raffaele, with the father identified as Raymond Joseph Raffaele. 

1. The second respondent was a person with whom the applicant had sexual relations for a reasonable lengthy period during the course of the marriage, particularly at the time when the then husband, the first respondent, was absent from home and living and working in South Australia.  I am satisfied that the evidence establishes that the second respondent was, in truth, the father of the child born on 10 December 1998.

1. In coming to that conclusion I have taken into account the following factors:

·        the DNA testing undertaken by the applicant; 

·        the oral evidence of the applicant given today at the hearing; 

·        the consent, albeit informal, of both respondents and their non-appearance despite being served;

·        the photographs which were tendered of the three children of the applicant and her explanation of their differences in appearance;

·        the applicant’s evidence concerning her relationship with Robert Flint at the relevant time proximate to the time of conception.

1. As the applicant is not legally represented, and as the two respondents, although served, have not appeared, I have not had any assistance as to the legal position in this matter.  There is jurisdiction under the Births, Deaths and Marriages Registration Act 1997 (ACT) (the Act) which allows for the alteration of details of birth in the register maintained under that Act.

1. The notice of motion also seeks declarations as to paternity and non-paternity.  Those declarations are not expressly provided for in the Act. However, in my view, they are necessary findings to be made along the way to making the orders which there is jurisdiction to make and that is probably sufficient to enable them to be made.  Furthermore, the power of this Court, sitting as a Court of Chancery, would extend that far in an appropriate case. 

1. I should add that I have heard no argument concerning any effect that the Family Law Act1975 (Cth) may have upon these proceedings. I do not deem it appropriate to try and do exhaustive research upon that point. Such research as I have done would indicate that the orders made are appropriate.

1. Taking into account the evidence as to arrangements for the welfare of the child, I am prepared to make the orders sought in substance. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gyles.

Associate:

Date:    22 December 2005

Counsel for the Applicant:  The Applicant appeared in person

Date of hearing:  9 December 2005

Date of judgment:   9 December 2005