TNL & CYT
[2005] FamCA 77
•23 February 2005
[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.
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’).
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.
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.
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 Court relate to alteration of property interests pursuant to s 79 of the Act.
In the proceedings before us, the respondent wife asserted that she was not served with the husband’s Summary of Argument in accordance with Rule 22.26 of the Family Law Rules2004 (‘the Rules’). This was strongly denied and contested by the husband. In the end, the wife was satisfied with the opportunity to view the husband’s Summary of Argument during an adjournment.
The wife failed to file and serve her own Summary of Argument in response and claimed to be unaware of this requirement. We have, therefore, relied solely upon her oral submissions.
It should be noted that the husband attempted to adduce evidence in addition to that admitted at trial in his Pre-Argument Statement and Summary of Argument. However, he failed to make an application to adduce further evidence pursuant to Rule 22.51 of the Rules and we have thus not considered this evidence.
Background
In relation to the relevant factual background, the trial Judge found:
§ The parties married outside in Hong Kong in March 1987;
§ One child was born during the marriage, HKL, born in July 1987 (now aged 17);
§ The parties separated in mid-2001;
§ HKL has resided with the wife since the parties’ separation;
§ HKL was treated throughout the marriage as a child of their marriage; and
§ The father has paid child support for HKL since the parties’ separation.
The trial Judge relied upon the parties’ Certificate of Marriage, which records March 1987 as the date of marriage. It should be noted that it appears that both parties did not regard March 1987 as the date of their marriage, rather the date they registered their intention to marry. The parties attached significance to the day on which they had a small dinner party with the mother’s family members. The trial Judge, at the suggestion of the mother’s solicitor, treated this event as the Chinese equivalent of a betrothal ceremony. While the mother contended that this event occurred in December 1986, the father contended that it occurred some time in 1987.
10. In support of his application for parentage testing, the father pursued three lines of argument. First, the father asserted that HKL is not his biological child demonstrated by the fact HKL has treated him badly following the parties’ separation. He particularly stressed that HKL assaulted him in his home in early 2003 and did not apologise.
11. Secondly, in terms of other potential fathers, the husband alleged that the wife had a sexual relationship with a work colleague. The husband suggested that the attention paid to the wife by her colleague was unusual and gave rise to a question as to whether their relationship was sexual.
12. Thirdly, the husband rejected the wife’s assertions regarding the date of conception and the child’s gestation period. The mother alleged that the parties first had sexual intercourse on the date of their ‘wedding’, or betrothal ceremony, which she asserts was December 1986 and that the child, born in July 1987, was born prematurely at seven months. She stated that before that date she was living with her family at home and had no sexual relations with any other men. She said her family would not have allowed this to occur.
13. The mother said that the parties specifically selected the date of the ‘wedding’ and the date of registration, as it is important in Chinese culture to select a ‘good date’ for such occasions.
14. In support of her contention that the child was a premature baby, the mother said the child was very small, that phototherapy of the baby was required and that two or three days after the birth the child had to undergo blood tests as the doctor identified some problems.
15. The father stated that the parties’ ‘wedding’, or betrothal ceremony, occurred some time in 1987. He said that the parties had sexual relations before this ceremony but was unsure of the exact date.
16. The father asserted that the child was a full term baby. He suggested that Asian babies usually suffer from jaundice and thus require phototherapy.
Judgment of the trial Judge
17. In relation to inferences and factual matters, the trial Judge recognised that ‘there is a significant cultural aspect to this matter … in terms of the expectation that the child of a Chinese couple will treat his or her parents with appropriate respect’. However, his Honour noted that ‘while the husband may culturally see [HKL] as being not his son, that cultural belief does not translate to a legal position’.
18. With regard to the husband’s assertion that the wife had a sexual relationship with her work colleague, his Honour was not satisfied that a sexual relationship existed between them and found ‘no specific allegations with regard to any other possible father’.
19. As to the timing of conception and the gestation period, the trial Judge preferred the evidence of the wife to that of the husband. His Honour said at par 14:
“There is a point here at which I must make a decision between which version of the evidence I believe, that of the wife or that of the husband. The wife swore that HKL was not a full term baby and that he was born at seven months, which is consistent with the entirety of the evidence including the approximate dates of conception. In the circumstances and particularly given the vagueness of the husband’s evidence, I find that I prefer the evidence of the wife to that of the husband”.
20. The trial Judge emphasised that in reaching a determination, he considered the ‘significant cultural factor at work in this matter’. His Honour also noted that at the time of the trial HKL was close to turning 17.
21. His Honour formed the view that:
“… in the circumstances ... there is nothing to be gained by this application, particularly given, as has in fact occurred, that the husband has paid child support for him since the parties’ separation”.
22. His Honour then concluded at par 16:
“Section 69P of the Family Law Act enacts a presumption of parentage in respect of a child born to a woman while she is married, the presumption being that the child is a child of the woman and her husband. Section 69U provides that a presumption arising under that section and others is rebuttable by proof on a balance of probabilities. Where there are two conflicting presumptions, which do not exist in this case, there are provisions to overcome such conflict. It should be clear on the basis of my findings to date that I am not satisfied either on the balance of probabilities or even on a prima facie case that the husband has established a rebuttal of the presumption in section 69P and, accordingly, his application for DNA testing will be dismissed”.
23. The attention of the trial Judge was not drawn to whether he had jurisdiction to make orders for parentage testing pursuant to s 69W of the Act or the decisions of this Court discussed below.
Grounds of Appeal
24. Both parties are from non-English speaking backgrounds and the Court provided interpreters for the two languages, Cantonese and Mandarin. While the wife had legal representation at first instance, both parties were self-represented in the appellate proceedings. This may provide some explanation for the fact that the husband failed to clearly articulate specific grounds of appeal in his Notice of Appeal. We have gleaned four grounds of appeal from his oral and written submissions:
1.The trial Judge wrongly exercised his discretion.
2.The trial Judge erred in preferring the wife’s evidence over that of the husband regarding the conception date and the child’s gestation period;
3.The trial Judge erred in not utilising the best available evidence allowed by modern science: G v H (1993) FLC 92-380; and
4.The trial Judge erred in failing to hear significant parts of the husband’s evidence.
Jurisdiction to order parentage testing
25. While neither party raised the issue of jurisdiction, it is central to the case.
26. Section 69W of the Act provides:
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 mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child (emphasis added).
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)a person representing the child 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.
27. Section 69V provides:
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.
28. Section 69W is located in Part VII (Children), Division 12 (Proceedings and Jurisdiction), Subdivision E (Parentage Evidence) of the Act.
29. The Court’s power to make an order for parentage testing is clearly subject to the parentage of the child being ‘a question in issue’ in proceedings under the Act. To satisfy this threshold question, the authorities suggest that the applicant must overcome two hurdles. First, parentage must be relevant to the nature of the proceedings. In G v H (1993) FLC 92-432, the Full Court observed:
“… [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”.
30. The Full Court was of the view that jurisdiction would also be established where the only pending application before the Court was brought pursuant to the provisions of the Child Support (Assessment) Act 1989.
31. In McK and K v O (2001) FLC 93-089, Mullane J considered an application for a parentage declaration in circumstances where there were no other proceedings and the alleged father was dead. His Honour dismissed the application for a parentage declaration and noted that parentage testing orders could not have been made for two reasons. First, that there were no proceedings before the court where parentage was a question in issue and, secondly, that ss 69W(1) and (3) of the Act related to bodily samples from live persons rather than human remains.
32. Mullane J considered the unreported Full Court decision of W v J and S [1998] FamCA 44 in which the Full Court (consisting of Fogarty, Baker and Kay JJ) upheld the decision of Moore J. Her Honour found that a Magistrate erred in making a parentage testing order where there were no other current proceedings under the Act in which parentage was an issue. Baker J noted that an application for an order for parentage testing was not of itself sufficient to give the Court power to order parentage testing.
33. The second component of the threshold question is that there must be evidence which places the parentage of a child in doubt: G v H (supra), OP and HM (2002) FLC 98-017 (in Australian Child Support Cases 1998-2003). 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” (emphasis added).
34. In OP v HM (supra) the Full Court applied G v H (supra) in upholding Martin J’s dismissal of an application for parentage testing. The Full Court accepted the trial Judge’s finding that the husband could not have had either a bona fide or reasonable belief that he was anything other than the father of the child. The trial Judge found that the husband accepted he was the father of one of the children and, as to the other child, the only evidence he adduced was a calculation putting the possible date of conception at a time when he was not having sexual intercourse with the mother over a period of weeks. He did not provide any medical or other evidence to support this calculation. The trial Judge concluded, ‘there is no cogent evidence putting in issue the paternity of the children, apart from the husband harbouring doubts’.
35. As to the present matter, Mushin J erred in failing to consider the provisions of s 69W of the Act. In any event, his Honour lacked jurisdiction to make the orders. It does not appear that, on the material before the trial Judge or before us, the parentage of the child was ‘a question in issue’ in these particular proceedings.
36. There are a number of areas in the appeal argued by the parties which merit some reference although we have found that Mushin J did not have jurisdiction to make the orders.
The trial Judge’s preference for the wife’s evidence
37. The husband asserts that the trial Judge erred in preferring the evidence of the wife to that of the husband. As noted previously, the trial Judge said at par 14:
“The wife swore that HKL was not a full term baby and that he was born at seven months, which is consistent with the entirety of the evidence including the approximate dates of conception. In the circumstances and particularly given the vagueness of the husband’s evidence, I find that I prefer the evidence of the wife to that of the husband”.
38. In the High Court decision of Fox v Percy (2003) 197 ALR 201, Gleeson CJ, Gummow, Kirby JJ stated at pp 209-210:
“[28] …[t]he mere fact that a trial Judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
[29] That this is so is demonstrated in several recent decisions of this court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.
….
[30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”):
… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical” (citations omitted).
39.We have formed the view the trial Judge’s preference for the wife’s evidence regarding the gestation period and date of conception to that of the husband’s is not ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. This is not a case where it has been shown that an appeal court should interfere with a trial Judge’s finding of fact.
The Court should have the best available evidence allowed by science
40. We understand that the husband challenges the trial Judge’s reliance upon the rebuttable presumption of parentage in respect of a child born to a woman while she is married, the presumption being that the child is a child of the woman and her husband (s 69P). It is the husband’s case that the Court should have before it the best available evidence allowed by modern science. He specifically stated that he wished to utilise ‘up-to-date technology’.
41. The husband relied upon G v H (supra) where the Full Court considered the ‘just’ inference that can be drawn pursuant to s 66W(5) (now s 69Y(2)) against a person who contravenes a parentage testing order. Fogarty J noted at p 79,942:
“Paternity is now a medical and not a legal issue. Society is entitled, through the legislature and the Courts, to an inexpensive, prompt and virtually certain procedure to decide this question. Paternity is no mere inter partes issue. The child and society have a vested interest in the correct outcome. The reasons for that are many, including heredity, the sense of identity and the private and public obligation of financial support directly relevant in this case and so emphasized by the legislature over the past decade”.
42. In that same case, Strauss J referred to the House of Lords decision in S v McC and M; W v W [1972] AC 24, (1970) FLR Rep 619 in which the legitimacy of children was in issue. Lord McDermott cited with approval the judgment of Denning MR in the Court of Appeal reported at (1970) 1 WLR at 677:
“In my opinion, when a court is asked to decide whether a child is legitimate or not, it should have before it the best evidence which is available. It should decide on all the evidence, and not on half of it. There is at hand in these days expert scientific evidence - by means of a blood test - which can in most cases resolve the issue conclusively. In the absence of strong reason to the contrary, a blood test should be made available. The interests of justice so require".
43. Strauss J also referred to Lord Hodson’s comments at pp 57-58:
"The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth. Scientific evidence of blood groups has been available since the early part of this century and the progress of serology has been so rapid that in many cases certainty or near certainty can be reached in the ascertainment of paternity. Why should the risk be taken of a judicial decision being made which is factually wrong and may later be demonstrated to be wrong?”
44. The English Court of Appeal recently considered an application for a paternity test in Re H and A (Parternity: Blood Tests) (2002) 1 FLR 1145. The Court affirmed that the principles to be drawn from the English cases are:
1.The interests of justice are best served by the ascertainment of the truth; and
2.The Court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences.
45. In the principal judgment delivered by Thorpe LJ, he referred to Lord Hodson’s judgment in S v McC and M; W v W cited above and said that his statements apply ‘with even greater logic in a later era’. His Honour stressed that there have been significant scientific advances such that blood is no longer required for paternity tests and that the legal concept of ‘legitimacy’ has been abandoned. In relation to the trial Judge’s reliance on the presumption of legitimacy of children born during the currency of marriage, Thorpe LJ said at p 1154:
“Twenty years on I question the relevance of the presumption or the justification for its application. In the nineteenth century, when science had nothing to offer and illegitimacy was a social stigma as well as a depriver of rights, the presumption was a necessary tool, the use of which required no justification. That common law presumption, only rebuttable by proof beyond reasonable doubt, was modified by s 26 of the Family Law Reform Act 1969 by enabling the presumption to be rebutted on the balance of probabilities. But as science has hastened on and as more and more children are born out of marriage it seems to me that the paternity of any child is to be established by science and not by legal presumption or inference” (emphasis added).
46. The relevant provisions of the United Kingdom legislation are different from those in Australia and, in the absence of consent, demand that the best interests of the child are given particular consideration. In Re H and A (supra), the husband brought his application for parentage testing under s 21 (3) of the Family Law Reform Act 1969 (UK), which commenced operation on 1 April 2001. Section 21(3) and (4) provides:
(3) A blood sample may be taken from a person under the age of sixteen years, not being such a person as is referred to in sub-section (4) of this section -
(a) if the person who has the care and control of him consents; or
(b)where that person does not consent, if the court considers that it would be in his best interests for the sample to be taken (emphasis added).
47. Given the number of people who were aware that paternity was in issue, the Court of Appeal found that it was necessary to consider ‘the advantages of establishing scientific fact, which allows for planned management, against the risks of perpetuating a state of uncertainty that breeds gossip and rumour’. It appears the Court applied the principle formulated by Lord Hodson in S v McC and M; W v W that ‘there must be few cases where the interests of children can be shown to be best served by the suppression of truth’.
48. The Full Court of this Court has expressed the view that in parentage testing applications, the best interests of the child are the paramount consideration where parenting orders are also sought: G v H (supra).
49. In this appeal, it is unnecessary to discuss matters concerning the trial Judge’s exercise of discretion, including the best interests of the child, as we have formed the view that the Court has no jurisdiction to make parentage orders.
50. The appeal must accordingly fail.
51. It should be noted that the husband did not pursue his appeal against Mushin J’s order that he pay the wife’s costs in the sum of $1000, stayed until completion of all proceedings under Part VIII of the Act. The husband’s grounds of appeal were not directed at this order and he did not address the matter in his written or oral submissions.
Costs
52. Both parties asked for an order for costs in relation to the appeal.
53. The wife provided no details as to the costs she incurred in resisting the appeal and given that she did not file any documentation, it would appear that her costs were minimal.
54. The husband’s costs related mostly to some preparation of documents.
55. In the circumstances, there should be no order for costs.
56. The formal orders of the court will be as follows:
That the appeal is dismissed.
That there be no order as to costs.
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