TNL & CYT

[2005] FamCA 77

[2005] FamCA 77

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT MELBOURNE  

Appeal No. SA34 of 2004
File No. MLF7700 of 2002

IN THE MATTER OF:

TNL

Appellant Husband

and

CYT                

Respondent Wife

REASONS FOR JUDGMENT OF THE FULL COURT

Coram:  Rowlands, Holden and May JJ
Dates of Hearing:                 19 October 2004         
Date of Judgment:                23 February 2005

Appearances:  

The appellant husband appeared in person.

The respondent wife appeared in person.

APPEAL SUMMARY

MATTER:TNL & CYT

APPEAL NUMBER:  SA 34 of 2004

(MLF 7700 of 2001)

CORAM:Rowlands, Holden and May JJ

DATE OF HEARING:  19 October 2004

DATE OF JUDGMENT:  23 February 2005

CATCHWORDS: FAMILY LAW – APPEALS – CHILDREN – PARENTAGE TESTING – FLA 1975 s69W – Jurisdiction to order parentage testing – Whether the trial Judge wrongly exercised his discretion – Whether the trial Judge erred in relying upon the rebuttable presumption of parentage arising from marriage rather than making orders utilising the best available evidence allowed by modern science.

Caselaw cited:

G v H (1993) FLC 92

Fox v Percy (2003) 197 ALR 201

McK and K v O (2001) FLC 93

W v J and S [1998] FamCA 44

OP and HM (2002) FLC 98

Re H and A (Paternity: Blood Tests) (2002) 1 FLR 1145

Appeal dismissed. 
No order as to costs.

1. This is an appeal by the husband against orders made by Mushin J on 21 May 2004 that his application for parentage testing in relation to the child, HKL, be dismissed and that he pay the wife’s costs fixed at $1000, stayed until completion of all proceedings under Part VIII of the Family Law Act 1975 (‘the Act’).

2. The appellant husband asked that this Court make orders for parentage testing of himself, the wife and the child.  The wife resisted the husband’s appeal and sought to maintain the trial Judge’s orders.

3. The husband’s application before Mushin J was filed on 17 March 2004.  In addition to parentage testing, the husband asked that an order made by Mushin J in September 2003 that the husband pay the wife $75 per week by way of spousal maintenance be discharged on the basis that he is unemployed.  The husband asked that in lieu the wife pay spousal maintenance to him in the sum of $200 per week.  The husband also asked that a Nissan Micra motor vehicle be returned to him following orders by Mushin J in September 2003 that it be in the possession of the wife.

4. Mushin J declined to hear the applications regarding spousal maintenance and the motor vehicle. These applications were determined by Brown J on 26 May 2004. Her Honour discharged the spousal maintenance order made by Mushin J, refused the order sought by the husband that the wife pay spousal maintenance to him, and declined to discharge the order made by Mushin J that the wife have possession of the motor vehicle. The only outstanding applications before the…