Thorpe and Becker
[2011] FMCAfam 1270
•12 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THORPE & BECKER | [2011] FMCAfam 1270 |
| FAMILY LAW – Children – paternity – parentage testing. |
| Applicant: | MS THORPE |
| Respondent: | MR BECKER |
| File Number: | DGC 1824 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 12 September 2011 |
| Date of Last Submission: | 12 September 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 12 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Devine of Counsel |
| Solicitors for the Applicant: | Peninsula Community Legal Centre |
| Counsel for the Respondent: | No appearance by or on behalf of the Respondent |
ORDERS
The matter be adjourned for undefended final hearing on 30 November 2011 at 10.00 a.m.
IT IS NOTED that publication of this judgment under the pseudonym Thorpe & Becker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 1824 of 2011
| MS THORPE |
Applicant
And
| MR BECKER |
Respondent
REASONS FOR JUDGMENT
(as revised from transcript)
This case concerns the paternity of a child. There is no doubt the applicant is the mother. The mother says the respondent is the child’s biological father and he denies the claim.
The respondent in this case failed to attend for the parentage testing that was arranged with Genetic Technologies. However, there is the evidence by the mother that he is in fact the father of the child and some suggestion that he may have at some stage in the past indicated to the Child Support Agency that he was the father.
This case has, however, the opportunity to have proper testing carried out that would put beyond any practicable doubt the paternity of the child in question, as the child has a sibling of which the respondent is the acknowledged father. The orders on the previous occasion recognised this, and provided for testing of the child and the sibling if the father failed to comply with the genetic testing order.
The mother’s solicitors have been diligent in requesting aid and following up with Legal Aid on a number of occasions in order to attempt to have the funding approved and to obtain the genetic test prior to Court today. As yet legal aid has not been approved for the test.
The difficulty that confronts the Court and the child in this case is: on an undefended basis the mother may well be able to establish that, at the requisite standard of proof, the child is likely to be of the father. However, the denial of paternity by the father remains a fact that the child will have to live with for the rest of their life. The state of the evidence will be such that without genetic testing, and following an undefended hearing the father could well, in the future, complain that he had some excuse for not attending and that the order of the Court should not be taken as representing the true facts. He may then have a basis in law to apply to set aside the orders and the child will suffer the uncertainty again.
More importantly, the child should not be placed in a position where for the rest of their life there is any real uncertainty as to their paternity.
In these circumstances, it seems to me that the needs of the child cry out for the matter to be adjourned and the testing to take place. The child can then know for certain (on a practical view) whether or not the respondent is the child’s father and also the precise nature of the relationship between the two siblings.
This is a case where it is obvious that the truth is essential to the psychological health of the child for the remainder of their life. The child ought not be denied the truth, nor the evidence that puts the truth beyond doubt, with respect to the child’s identity. The child should not suffer the cruel doubts raised here if the respondent is the father, nor should the child suffer the loss of the opportunity to discover the identity of their biological father if it is not the respondent.
I will therefore adjourn the case, on the motion of the Court and ask that counsel for the mother pass on to Legal Aid my concern that:
a)It seems that the matter has now cost more in lawyers’ fees than the costs of the relevant DNA testing;
b)In this particular case, the interests of the child call out for there to be certainty about paternity that is not deniable in the future;
c)My sincere hope that Legal Aid will be able to make funding arrangements for the necessary DNA test to be carried out so that this child may know the truth with confidence.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 23 November 2011
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