Tryon & Clutterbuck (No 2)
[2009] FamCAFC 176
•15 September 2009
FAMILY COURT OF AUSTRALIA
| TRYON & CLUTTERBUCK (NO 2) | [2009] FamCAFC 176 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – CHILDREN – Federal Magistrate made a declaration of parenting following refusals to undergo parentage testing as ordered – The mother and husband appealed this declaration – Appellants asserted that the Federal Magistrate made errors of pre-judgment, gave inadequate weight to the presumptions of paternity arising from marriage and registration of the birth, wrongly drew inferences from the failure to undergo testing, and the absence of evidence of the mother, and wrongly placed weight on evidence of conduct subsequent to the children’s birth FAMILY LAW – APPEAL - PRE-JUDGMENT - There is no rigid structure required for assessment of evidence – Appellants made no application for disqualification FAMILY LAW – APPEAL - PRESUMPTIONS OF PATERNITY – Federal Magistrate stated and considered the presumptions arising in this case – Appellants submitted that the Briginshaw test guided the degree of satisfaction in relation to declaration of paternity – Federal Magistrate effectively applied such a standard FAMILY LAW – APPEAL - INFERENCES AND ABSENCE OF EVIDENCE – Inferences available to be drawn in light of failure to undergo ordered testing are not limited to those which might be drawn from an unexplained failure to give or call evidence – Failure of husband to advance a reasonable excuse for refusing testing earlier in the proceedings was a factor upon which the Federal Magistrate could rely in assessing the evidence FAMILY LAW – APPEAL - EVIDENCE OF SUBSEQUENT CONDUCT – Evidence of post conception events can be relevant to issues of paternity – Retrospectant evidence can be considered and given the weight that is appropriate given its circumstantial nature – No appellable error in Federal Magistrates approach FAMILY LAW – APPEAL - IS A PARENTAGE TESTING ORDER A PARENTING ORDER? – Not the subject of challenge in this appeal – Silence on the question ought not be considered to be acceptance that a testing order is a parenting order (per Warnick and Strickland JJ) – This question may require legislative clarification (per Finn J) FAMILY LAW - DECLARATION OF PARENTING – Precise circumstances and manner of making a declaration are unclear under s 69VA (per Finn J) FAMILY LAW – APPEAL – Appeal dismissed |
| Family Law Act 1975 (Cth) ss 55A(1), 66W, 69P, 69R, 69U, 69VA, 69W-Z, 70NAC, 70NAE, 70NDA, 90RE(1), 94(1) |
| Astway Pty Ltd v Counsel of the City of the Gold Coast [2008] QCA 073 Hay v Hay (1998) FLC 92-819 Jones v Dunkel (1959) 101 CLR 298 |
| APPELLANTS: | Mr TRYON and Ms TRYON |
| RESPONDENT: | Mr CLUTTERBUCK |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAM | 4199 | of | 2006 |
| APPEAL NUMBER: | EA | 95 | of | 2008 |
| DATE DELIVERED: | 15 September 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Warnick and Strickland JJ |
| HEARING DATE: | 3 June 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 July 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 784 |
REPRESENTATION
| COUNSEL FOR THE APPELLANTS: | Mr Battley |
| SOLICITOR FOR THE APPELLANTS: | Christopher M Edwards |
| COUNSEL FOR THE RESPONDENT: | Mr Moss |
| SOLICITOR FOR THE RESPONDENT: | Lexington Law Group |
| INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
That the appeal be dismissed.
That the appellants pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Tryon & Clutterbuck (No 2)is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 95 of 2008
File Number: PAM 4199 of 2006
| Mr and Ms TRYON |
Appellants
And
| Mr CLUTTERBUCK |
Respondent
REASONS FOR JUDGMENT
FINN J:
It will be useful to provide a history of the proceedings leading up to this appeal before referring to the issues raised by it.
History of the proceedings
On 8 September 2006 Mr Clutterbuck (to whom it is convenient to refer as “the father”) filed an application in the Federal Magistrates Court of Australia against Ms Tryon (to whom I will refer as “the wife”) seeking orders that two of the wife’s five children, being SJF Tryon (born March 2001) and E Tryon (born June 2003) live with the wife, but spend defined time (being essentially alternate weekend and half school holidays) with the father.
In his affidavit in support of his application, the father claimed to have had a sexual relationship with the wife from 1993/1994 to 2006. He further claimed that when the wife became pregnant with SJF, she had informed him that she was pregnant with his child, and that when she became pregnant with E, she had also informed him that she was pregnant with his child. The father also claimed that he had been present at the birth of both of those children.
On 6 October 2006 the wife filed a response seeking the dismissal of the father’s application to spend time with the children. In a supporting affidavit (also filed 6 October 2006) the wife claimed that the two children were the children of herself and her husband, Mr Tryon (“the husband”), and that none of the children “are aware of any relationship between the Applicant and me”. (See reasons for judgment of Coleman J delivered 4 May 2007, paragraph 19).
I mention here that the husband and the wife had married in 1988. They have lived together ever since, along with the five children who have been born to the wife since the date of the marriage. Included in those five children, are the two children who were the subject of the father’s application.
On 13 October 2006, the father’s application came before Halligan FM with both the father and the wife being represented by counsel. On that occasion, his Honour made an order joining the husband as the second respondent to the father’s application.
Apparently on the basis of an oral application made on behalf of the father (see reasons for judgment of Coleman J of 4 May 2007, paragraph 7), Halligan FM also made orders on 13 October 2006 expressly pursuant to s 69W of the Family Law Act 1975 (Cth) (“the Act”) for the father, the wife, the husband and the two children, S and E, to undergo DNA parentage testing to determine whether those children were the children of the father. (I will later set out the terms of s 69W).
An appeal by the husband and the wife against those parentage testing orders was upheld by Coleman J on 4 May 2007, with the “matter … [being] remitted for rehearing by another Federal Magistrate”.
There was then a hearing before Henderson FM on 13 July 2007 which continued on 20 July 2007. It is clear from her Honour’s reasons for judgment (subsequently delivered on 23 August 2007) that the applications before her at that hearing were the father’s application (still apparently in oral form) for orders that DNA parentage testing be carried out on himself, the children, the wife and the husband, and his application that pending the results of such testing, he be able to spend time with the children.
The wife and the husband (who again had been joined as second respondent by her Honour at the hearing) opposed both the applications for parentage testing orders and for orders that the children spend time with the father.
On 23 August 2007, her Honour made orders expressly pursuant to s 69W of the Act for parentage testing of the father, the wife, the husband and the two children. However, she dismissed the father’s interim application to spend time with the children.
As already indicated, her Honour published reasons for judgment for her orders of 23 August 2007. In those reasons her Honour recorded that before her the father had relied on his application filed 8 September 2006, an affidavit filed by him on 8 September 2006 and two affidavits filed by him on 28 December 2006, and that the wife and the husband had relied on the wife’s response and an affidavit filed by her on 6 October 2006 and on an affidavit by the husband sworn on 12 July 2007.
It is important for present purposes to note that there was no appeal against her Honour’s parentage testing orders made on 23 August 2007.
On 10 March 2008 the matter again came before Henderson FM. On that occasion the legal representative of the father foreshadowed that he would be filing an amended application for a declaration of parentage in his client’s favour on the basis that “the inference” could be drawn (under s 69Y(2)) from the failure of the wife and the husband to comply with her Honour’s order of 23 August 2007 for parentage testing of themselves and the two children (Transcript 10 March 2008, p 3). Her Honour adjourned the matter pending the filing of that amended application by the father and of a reply by the wife and the husband.
On 28 March 2008 an amended application (supported by an affidavit) was filed on behalf of the father seeking a declaration that he is the father of the two children in question and also orders for him to spend time with the two children (essentially on an alternate weekend and half school holidays basis).
An amended response was filed by the husband and the wife on 15 April 2008 seeking the dismissal of the father’s application. That amended response was supported by an affidavit from the husband (also filed 15 April 2008). There was no affidavit from the wife.
Following an adjournment of the matter on 20 May 2008, the matter was finally heard by Henderson FM on 8 July 2008. At that hearing, and as recorded by her Honour in her reasons for judgment published 30 July 2008, the father relied on three affidavits (filed 8 September 2006; 28 December 2006; and 28 March 2008) and was cross-examined. The husband relied on one affidavit (filed 15 April 2008) and was cross-examined. However, the wife gave no evidence in any form; her Honour recorded in her reasons the position in relation to the wife as being:
30. The [wife] has not filed any affidavit, tendered any evidence or been cross-examined in these proceedings. She joined in filing an amended response on 15 April 2008 with her husband. The totality of the [husband and the wife’s] evidence is contained in the affidavit of the husband filed 15 April 2008.
This statement by her Honour that the wife had not filed “any affidavit…in these proceedings” might seem perplexing given that the wife had filed an affidavit on 6 October 2006 in support of her original response (also filed that day). That affidavit is not in the Appeal Book, but it is referred to in the reasons for judgment of Coleman J of 4 May 2007 and of Henderson FM of 23 August 2007 (both of which documents are in the Appeal Book).
Presumably, however, her Honour made this statement on the basis that the wife had chosen not to rely on her affidavit filed 6 October 2006 at the hearing on 8 July 2008 of the father’s amended application. This would appear to be the position as it emerges from the first three pages of the transcript of that hearing, where counsel appearing for the wife and the husband informed her Honour that he appeared for both the husband and the wife (as respondents), that they had filed an amended response on 15 April 2008, but that the wife as first respondent was not present in court nor had she filed an affidavit, and that there was only an affidavit from the husband as second respondent.
On 30 July 2008 her Honour delivered reasons for judgment and made a declaration pursuant to s 69VA of the Act that the father was the father of the two subject children. No order was made in relation to the father’s application to spend time with the children, and the fate of that application is unclear.
The precise terms of the declaration contained in her Honour’s order of 30 July 2008 is as follows:
1.A Declaration is made pursuant [to] section 69VA of the Family Law Act 1975 (Cth) that [Mr Clutterbuck] is the father of the children [SJF] born in … 2001 and [E] born in … 2003.
It is this declaration which the husband and the wife now seek to challenge by this appeal.
Relevant statutory provisions
Before referring to the issues raised on the appeal, it will also be useful to refer to the provisions of the Act which have relevance in this case.
The provisions of the Act concerning parentage issues begin in Sub-division D of Division 12 of Part VII. That sub-division contains certain presumptions in relation to parentage, of which the following have present relevance:
69P (1) If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband.
…
69RIf a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
Section 69U then provides for the rebuttal of certain of the presumptions contained in the sub-division, including those contained in s 69P and s 69R:
69U (1) A presumption arising under this Subdivision is rebuttable by proof on a balance of probabilities. (Emphasis added)
(2) Where:
(a) 2 or more presumptions arising under this Subdivision are relevant in any proceedings; and
(b) those presumptions, or some of those presumptions, conflict with each other and are not rebutted in the proceedings;
the presumption that appears to the court to be the more or most likely to be correct prevails.
(3)This section does not apply to a presumption arising under subsection 69S(1).
Sub-division E of Division 12 then contains provisions relating to evidence of, and declarations of, parentage, with the following provisions having present relevance:
69VIf 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.
69VAAs well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
69W(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 in original)
(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) an independent children’s lawyer representing the child’s interests 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.
69X (1) If a court makes a parentage testing order, it may also make orders under subsection (2) or (4).
(2)The court may make such orders as it considers necessary or desirable:
(a) to enable the parentage testing procedure to be carried out; or
(b) to make the parentage testing procedure more effective or reliable.
(3)Some examples of the kinds of orders the court may make under subsection (2) are as follows:
(a) an order requiring a person to submit to a medical procedure;
(b) an order requiring a person to provide a bodily sample;
(c) an order requiring a person to provide information relevant to the person’s medical or family history.
(4)The court may make such orders as it considers just in relation to costs incurred in relation to:
(a) the carrying out of the parentage testing procedure or other orders made by the court in relation to the parentage testing procedure; or
(b) the preparation of reports relating to the information obtained as a result of carrying out the parentage testing procedure.
…
69Y (1) If a person who is 18 or over contravenes a parentage testing order or an order under section 69X, the person is not liable to any penalty in relation to the contravention.
(2)The court may draw such inferences from the contravention as appear just in the circumstances. (Emphasis added)
69Z(1) This section applies if a parentage testing order, or an order under section 69X, requires a medical procedure or other act to be carried out in relation to a child who is under 18.
(2)The procedure or act must not be carried out in relation to the child under the order without the consent of:
(a) a parent of the child; or
(b) a guardian of the child; or
(c) a person who, under a parenting order, has responsibility for the child’s long‑term or day‑to‑day care, welfare and development.
(3)The court may draw such inferences from a failure or refusal to consent as mentioned in subsection (2) as appear just in the circumstances.
...
It should be noted that the declaration of parentage (or paternity) which is the subject of this appeal was expressly made pursuant to s 69VA. Prior to the insertion of s 69VA by the Family Law Amendment Act 2000 (Cth) there had been uncertainty as to whether a declaration of parentage (or paternity) could be made under the Act (see Re C (No 2) (1992) FLC 92-284 at 79,107 per Fogarty J; and G v H (1993) FLC 92-380 at 79,942 per Strauss J).
The relevant paragraphs from the Explanatory Memorandum to the Family Law Amendment Bill 1999/2000 relating to the insertion of s 69VA are as follows:
296.Existing section 69V provides that if the parentage of a child is in issue in proceedings under the Act, the court may make an order requiring any person to give evidence in relation to the parentage of the child. On the basis of this evidence the court can make a decision about the parentage of the child for the purposes of the proceedings. However, such a finding will not determine the issue of parentage for the purposes of any other Commonwealth law.
297.Item 69 inserts section 69VA that will enable the court, in deciding the issue of parentage of a child, to declare that parentage for the purposes of all laws of the Commonwealth.
Notwithstanding that explanation, the precise circumstances and manner in which a declaration of parentage can, or should, be made are, in my view, somewhat unclear given the language of s 69VA itself. However, these were not matters raised in this appeal. Nor was any issue raised as to whether such a declaration is a “decree” for the purpose of founding a competent appeal; but it is unnecessary to say more about such a possible issue given the outcome of this appeal. (See in this regard for the purposes of s 94(1) of the Act the definition of “decree” in s 4; the Full Court decision in Hay v Hay (1998) FLC 92-819 at [26]-[28]; and compare the provisions of s 55A(1) and s 90RE(1).)
Issues raised by this appeal
As Warnick and Strickland JJ have identified in their joint reasons, there are seven complaints, or groups of complaints, which emerge from the written outline of counsel for the appellant husband and wife in support of the 17 grounds of appeal pursued by them. These complaints are:
·that her Honour’s fact-finding miscarried in that the transcript of the hearing reflected pre-judgment of issues adverse to the appellants and the structure of her judgment involved the making of findings adverse to the appellants before a consideration of the evidence of the respondent father;
·that her Honour gave no or inadequate weight to the onus which was on the father to prove his case to the degree necessary to rebut the presumptions of paternity contained in s 69P (child born during marriage) and s 69R (registration of birth);
·that her Honour gave undue weight to an issue about the reason for each child being given a particular Christian name;
·that her Honour wrongly drew inferences from (i) the husband and the wife’s failure to undergo DNA testing, and (ii) the absence of any evidence from the wife;
·that her Honour failed (i) to have proper regard to the absence of evidence in the father’s case that he was fertile and had unprotected sexual intercourse with the wife at the time of the conception, and (ii) to draw an inference from the father’s non-attendance for DNA testing;
·that her Honour wrongly admitted and/or gave undue weight to certain photographs and to evidence, especially about the conduct of the parties, subsequent to the birth of each of the girls;
·that her Honour wrongly approached the question of the best interests of the children.
In their joint reasons Warnick and Strickland JJ have discussed at some length, and ultimately rejected, each of those complaints or groups of complaints, and thus have concluded that the appeal should be dismissed. I am in general agreement with their Honour’s reasons for rejecting each of the appellants’ complaints, and accordingly, I agree that the appeal must be dismissed. However, I wish to make the following observations of my own.
The essence of the appellants’ case, as I understood it, particularly having regard to the oral submissions made in support of the appeal, is encapsulated in the following propositions. If the presumption of parentage arising from the fact of birth during a marriage (s 69P) and/or from the parentage details contained in a government register of births (s 69R) (both of which presumptions in this case supported the husband’s paternity of the children in question) was to have been rebutted, this should have been done only on the basis of evidence adduced by the party seeking to rebut those presumptions, and evidence directed to the circumstances at the time of the conception of the child (or children) and not evidence of later events. Thus, the wife’s failure to give any evidence and her failure to comply with the order for parentage testing should not have been relied upon by the Federal Magistrate (as it was submitted had been done by her) to fill any gaps in the father’s case. The father’s evidence alone, did not reach the standard of proof required for the rebuttal of the statutory presumptions which established paternity in the husband.
These arguments necessitate a close examination of the structure and content of her Honour’s reasons for making the declaration of paternity in favour of the father. Such an examination is contained in the joint reasons of Warnick and Strickland JJ and therefore need not be undertaken in any depth by me. However, there are certain aspects of her Honour’s reasons which I would want to emphasise for the reason that they demonstrate that there is no substance in the appeal (at least on the basis on which it was argued).
At the commencement of her reasons and immediately after referring to the applications which were before her, her Honour expressly acknowledged (paragraph 4) that the “birth in marriage” and “registration” presumptions then currently operated to establish paternity in the husband, and she went on to explain (paragraph 5) that the applicant father sought to rebut those presumptions. Much later in her reasons (paragraph 156) her Honour expressly accepted the submission made on behalf of the husband and the wife that a declaration of paternity is “a grave decision” and that there was a need for her to be satisfied on the evidence that such a declaration should be made. She had also earlier (at paragraph 119) observed (no doubt with the provisions of s 69U(1) in mind) that the father had “discharged his onus to a much higher level than on the balance of probabilities”. It is thus clear that the starting points for her Honour’s decision were the operation of the presumptions and the onus on the applicant father to rebut them. It should also be noted that her Honour reiterated towards the end of her reasons (in paragraph 124), and before reaching her final conclusion to make a declaration in favour of the father, that the presumptions operated to establish paternity in the husband (unless of course rebutted).
Following her acknowledgement of the operation of the relevant presumptions and of the need for the applicant father to rebut them, her Honour set out (in paragraphs 7 to 28) the procedural history of the matter (as I have earlier done in these reasons). The fact that she had earlier (on 23 August 2007) made an order for DNA testing of all relevant parties and the fact the husband and the wife had not attended, nor permitted the two children to attend for such testing, were matters which, in my view, it was essential for her Honour not only to record, but also to take into account in reaching her decision to make the declaration in favour of the father.
As I have earlier mentioned, the husband and the wife chose, for whatever reason, not to appeal the orders for parentage testing made on 23 August 2007. It may well be that many of the complaints now raised by them on this appeal would have been more appropriately raised in an appeal against the parentage testing orders of 23 August 2007. But that opportunity was not taken.
It is true that after setting out the procedural history, her Honour recorded (in paragraphs 33-54) what she described as “Uncontested Facts”, and that in that context she observed that there had been no denial by the wife and the husband of various matters including, importantly, the father’s claims that the wife had had a sexual relationship with him at the times of the conceptions of the two children, and that the wife had told the father that she was pregnant with his child on both occasions. Her Honour then dealt (at paragraphs 55-69) with the evidence concerning the issue of changes in the two children’s names (which was, in my view, a somewhat peripheral issue), and then with the husband’s evidence (paragraphs 70-78), before setting out (in paragraphs 79-93) the applicant father’s evidence.
But like Warnick and Strickland JJ, I do not accept that there is some rigid structure for the recording and assessment of the evidence of the parties, particularly in the circumstances of the present case. Certainly there can be no substance in the complaint of pre-judgment because of the structure of her Honour’s reasons. Nor does anything in the transcript of the hearing before her Honour support such a complaint, particularly given the history of the case.
It is also true that much of the father’s evidence as recorded by her Honour at various places in her reasons, related to events after the births of the children and not to events at the time of their conceptions. In my view much of this evidence was of little or no relevance. But its reception does not, in my view, undermine the correctness of her Honour’s ultimate decision.
Further, it is true that throughout her reasons, and particularly when considering any inference to be drawn under s 69Y(2) from the failure of the wife and the husband to undergo themselves, or to permit the two children to undergo, DNA testing, her Honour can be seen as placing significant weight on the wife’s failure to deny the allegations of the father first that he had a sexual relationship with her at the times of the children’s conceptions, and secondly that she had told him on both occasions that she was pregnant with his child. However, I do not accept that in the circumstances of this case particularly given the wife’s failure to comply with the orders for DNA testing, that her Honour was not entitled to place the weight which she clearly did in reaching her ultimate determination on the wife’s failure to place any evidence at all before the court.
It has to be remembered that this was a case where orders had already been made under s 69W requiring all relevant persons to undergo DNA parentage testing. Those orders were neither appealed nor complied with by the husband and the wife. On the application of the father, her Honour was then prepared to draw under s 69Y(2) what she described (in paragraph 115 of her reasons) as a “clear and strong inference” that the husband and the wife “have failed to carry out the DNA testing because the results of that testing would show that [the father], and not the husband, is the biological father of the girls”.
From the paragraphs of her reasons which then follow, it is clear that her Honour drew the inference of the father’s paternity not only on the basis of the appellants’ failure to comply with the parentage testing orders, but also on all the evidence before her, and on the fact that the wife failed to give evidence at all:
117.The issue in contest is the paternity of the girls. The carrying out of a DNA test is clearly the most reliable and cogent evidence I could have available to me to make a finding of paternity. The [husband and the wife] have conducted themselves in such a way that this evidence is not available to me. In those circumstances I am entitled to draw an adverse inference from this conduct being that the provision of the evidence of DNA testing would not have assisted the [husband and the wife’s] case that the husband is the girls’ biological father.
118.On all the evidence I an entitled to draw an adverse inference from the [the husband and the wife’s] conduct which inference leads me to a finding that the [father] is the biological father of the girls.
119.The [wife] has left it to the [father] to prove his case and I find that he has proven his case. He has discharged his onus to a much higher level than on the balance of probability. I have not only been able to draw an adverse inference from the [husband and the wife’s] failure to undergo DNA testing but also on the rule in Jones v Dunkel as all the evidence being conduct and behaviour support this finding.
It is again true, as the appellants contend, that her Honour did not find expressly that the drawing of such an inference was or would be “just”. But I do not regard that omission by her Honour as fatal. It is sufficient that this appellate court is satisfied of the justice of the inference drawn.
Having reached the conclusions in the paragraphs from her reasons which I have just set out, her Honour went on to consider on the basis that a declaration of paternity is “a parenting order”, whether it would be in the best interests of the children for her to make the declaration in favour of the father. Again, like Warnick and Strickland JJ, I am not necessarily persuaded that parentage declarations (or orders for parentage testing) are parenting orders. But this is not the case where that matter has to be decided, although it may well be that resolution of that matter will require legislative clarification.
Finally, I agree with Warnick and Strickland JJ that a costs order in the father’s favour on a party/party basis would in the circumstances be justified.
WARNICK and STRICKLAND JJ
Five children live in the household of Mr and Ms Tryon. The three older children were all born in the early nineties. No-one has ever challenged that they are the natural children of the husband and wife. However, in September 2006 Mr Clutterbuck applied to the Federal Magistrates Court of Australia seeking a declaration that he is the biological father of the two youngest children, both girls, born in 2001 and 2003 respectively. He also sought orders that he spend time with those children.
Ultimately, the application was tried before Federal Magistrate Henderson on 8 July 2008. As her Honour said in her reasons for judgment, delivered 30 July 2008, in disposition of the application:
4.As the matter now stands at law the presumption of paternity is that [Mr Tryon], the husband of [Ms Tryon], the mother, is the father of the children for the following:
a)He is named as the father on their respective birth certificates. …
b)The children were born during the marriage of the respondents who have never separated and were living as husband and wife at the time of conception of both children. The respondents continue to live together as husband and wife.
Nonetheless, Henderson FM found all applicable presumptions rebutted and declared that Mr Clutterbuck (the father) is the father of the girls. The husband and wife appeal that declaration.
The application of the father had come before Halligan FM as long ago as 13 October 2006. He ordered that the parties – father, husband and wife - together with the girls, undergo DNA testing. That order was appealed, and was also stayed by the Federal Magistrate pending determination of that appeal. The appeal was allowed by Coleman J and the application remitted for rehearing before another Federal Magistrate. On 23 August 2007, Henderson FM ordered that the parties attend with the girls for DNA testing. However, as her Honour recorded in her reasons for the order now under appeal:
20.The respondents have not attended by themselves or with the children for DNA testing. It was an agreed fact at this hearing through Mr Burke that the respondents would not attend by themselves or with their children for DNA testing. The husband said the same in cross-examination before me.
In the trial before Henderson FM, the wife filed no affidavit material nor tendered any other evidence and thus was not cross-examined. However, both the husband and wife were represented by solicitor and counsel. The father and the husband were each examined and cross-examined.
The amended Notice of Appeal contains 17 “live” grounds. In the outline of argument upon which he relied (“his outline”), Mr Battley, counsel for the wife and husband, grouped the grounds, but even so, it is the arguments adumbrated in the summary in support of each group that best express the issues in the appeal. These are as follows:
a)That the fact finding process employed by her Honour miscarried, in that the transcript reflected prejudgment of issues, as did the structure of the judgment.
And that the Federal Magistrate:
b)gave no or inadequate weight to the onus that was upon the father to prove his case or to the degree of satisfaction required in respect of that case and did not reach findings of fact in the context of, or against the background of, statutory presumptions of paternity.
c)gave undue weight to an issue about the reason for each child being given a particular Christian name.
d)wrongly drew inferences from:
(i)the husband and wife’s failure to undergo DNA testing;
(ii)the absence of evidence from the wife.
e)Failed:
(i)to have proper regard to the absence of evidence in the father’s case that he was fertile and had unprotected sexual intercourse with the mother at the times of conception
(ii)to draw an inference from the father’s non-attendance for DNA testing.
f)wrongly admitted and/or gave undue weight to photographs of the father, the wife and the girls and to evidence, especially about the conduct of the parties, subsequent to the birth of each of the girls.
g)wrongly approached the question of “the best interests of the children”.
a)That the fact finding process employed by her Honour miscarried, in that the transcript reflected prejudgment of issues, as did the structure of the judgment.
As to the second point, concerning the structure of the judgment, Mr Battley argues that her Honour made findings adverse to the wife’s and husband’s case, before considering the father’s evidence.
As seen from paragraph 4 (quoted earlier), at the outset of her reasons, her Honour noted two matters giving rise to presumptions of paternity in the husband’s favour. Thus, in our view her Honour recognised at the outset the task that confronted the father.
Her Honour then set out a “History” which covered the course of the father’s application until the trial, and included some discussion of the principles upon which the appeal from Halligan FM, heard by Coleman J, was upheld. As well, Henderson FM referred to the hearing of the remitted application before her in July 2007, following which her Honour ordered DNA testing. Her Honour noted that during that hearing some matters relating to a change to one of the Christian names of the older of “the girls” were not denied.
Following the “History”, the Federal Magistrate set out the “Evidence” upon which each party relied, saying:
30.The mother has not filed any affidavit, tendered any evidence or been cross-examined in these proceedings. She joined in filing an amended response on 15 April 2008 with her husband. The totality of the respondents’ evidence is contained in the affidavit of the husband filed 15 April 2008.
…
32.Nowhere in any affidavit or other material is there a denial of the assertion by the applicant that he and the mother had a sexual relationship from 1994 up to May 2006 and during the relevant conception period of the girls.
Then, her Honour recorded “Uncontested Facts”, a part which included a history of the contact between the parties:
36.Around the date of or shortly after the birth of their third child, [U], [elsewhere recorded as June 1993] the respondents and the applicant commenced a relationship when the applicant carried out building work on their property.
37.In 1994 the applicant purchased a restaurant. For a period of time the mother worked in the restaurant as a waitress on Friday and Saturday nights.
38.The applicant asserts that for the five years he owned the restaurant the mother and her children travelled with him to the fruit and fish markets on a regular basis to purchase produce for the restaurant. There is no denial of this evidence by the respondents.
39.On 23 March 2001 the child [SJA] is born. The applicant is present at her birth.
40.In March 2003 the respondents, all their children and the applicant travel to the United States. The husband changes $4,000 cash into US Dollars for the applicant for the trip.
41.On 20 June 2003 [E] is born. The applicant is present at her birth.
42.On the long weekend in October 2004 the applicant, mother and girls attend a holiday in [N]. It is agreed that the applicant and the mother shared a bed room on that holiday.
43.In January 2005 the applicant separates from his wife.
44.In October 2005 the applicant moves to a unit in [K]. It is clear from photographs tendered, being the annexure A to the affidavit filed by the applicant on 28 December 2006, that the mother and girls spent time at that unit cooking, eating meals, cleaning up and engaging in social interaction.
45.In January 2006 the applicant, mother and girls attend a cruise in Hawaii for some 10 to 11 days. The mother contributes one third to the cost of the trip and the applicant two thirds. It is agreed that the applicant and the mother shared a bed room on that holiday.
46.In May 2006 the mother tells the applicant that he can no longer see the family and the applicant has not seen the children since that time.
…
51.There is no denial by the mother or her husband that the applicant and the mother had a sexual relationship for a number of years and during the time of conception of the girls and from 1994 up to 2006.
52.There is no denial by the mother or her husband that the applicant gave the mother $4,000 when she was pregnant with [S].
53.There is no denial by the mother or her husband that the mother told the applicant in July 2000 that she was pregnant with his child and told him again she was pregnant with his child in 2003.
54.There is no denial by the mother or her husband that up until May 2006 the applicant was spending regular time with all the children, including the three boys.
We note that in paragraphs 51 to 54 inclusive, by noting the absence of denials of assertions by the father, the Federal Magistrate was in effect making at least a preliminary assessment of significant parts of the father’s evidence.
Following the segment containing those paragraphs, the Federal Magistrate dealt with issues about “The children’s names” and made findings about those issues which will be later discussed. For present purposes we note that Henderson FM addressed both the father’s case on point, and that of the husband. Next, her Honour dealt with the “Husband’s evidence” and then the father’s evidence (under the heading “Applicant’s evidence”). In both these sections the Federal Magistrate made some rulings, accepting or rejecting evidence. We further observe that, by the time she had reached those parts of her reasons, her Honour had already discussed substantial parts of the evidence, including the father’s case, in the segments entitled “Uncontested facts” and “The children’s names”.
After her Honour had set out the balance of the father’s evidence, she addressed matters under the heading “Issues”, but the following content is more in the way of a summary of the father’s case and the position at which her Honour had arrived, which she identified as:
97.Thus I am left with the following:
a)The failure of the respondents to undergo DNA testing a test which will almost in every case, with certainty, tell who is or who is not a parent of a child;
b)The words spoken by the mother to the applicant when she knew she was pregnant with the children; and
c)The conduct of the applicant and respondents prior to and since the birth of the children.
Then, her Honour set out “Findings”, as follows:
98.On the evidence I have difficulty in accepting that the husband was unaware his wife was conducting a sexual relationship with the applicant at a time both girls were conceived.
99.His wife and the girls went on at least two holidays with the applicant, without him, and slept in the same bedroom. The applicant was present at the birth of the girls, he gave the wife $4,000 at [S’s] birth, attended [S’s] day-care, and was present on her first day school. He visited the home every morning and almost each afternoon when the husband was at work. The mother and the children visited him daily at his place of work on building sites, went shopping with him when he owned the restaurant, the wife worked for him on the weekends for a number of years when he owned the restaurant. The mother and girls visited his apartment on many occasions and had meals with him. The applicant was frequently at his home and he and the mother were in constant contact with each other.
100.The applicant believes these children are his because of his ongoing sexual relationship with the mother at the relevant time and importantly because that is what the mother told him. The husband cannot help me assess this evidence. Only the mother can assist me and I do not have the benefit of her evidence.
101.I do not have the benefit of a scientific test as to paternity because the respondents have not and will not comply with the order I made for DNA testing. DNA testing would have resolved the issue of paternity once and for all.
102.There has been no testing of the applicant’s evidence in crucial respects such as a sexual relationship at the relevant time and words spoken between the mother and the applicant when she knew she was pregnant. As such I accept what the applicant says on those issues. That finding combined with the lack of scientific evidence due to the respondents’ choice and the conduct of the mother towards the applicant leaves me in no doubt that the applicant is telling the truth as to his ongoing sexual relationship with the mother at the relevant time and that the mother told him he was the father of the girls. I also accept his evidence that the mother knows he is the father of the girls.
103.The applicant is clearly attached to and has had a strong and ongoing relationship with the girls. The photographic compilation he produced to the Court showing the girls from their birth, pre-school, first day of school, holidays and the like until he ceased to see them in May 2006 is extensive and demonstrates a relationship over a long period of time.
104.The photographic compilation depicts him, the mother and children as a family enjoying significant events: holidays; first days of school; births; birthdays; Christmas; cooking food; eating meals together; cleaning up and enjoying time together.
105.The applicant’s assertion that he is the biological father of the girls is supported by his conduct from their birth to the present.
We note that in this section the Federal Magistrate referred at the outset to the husband’s credit. By that stage of course, she had reviewed substantial evidence in the trial.
In the next segment of her reasons, her Honour addressed “The Law – inferences to be drawn”, in particular dealing with the failure of the husband and wife to participate in DNA testing.
The final segment of her Honour’s reasons is entitled “Best Interests of the Children”.
We reject the argument that anything about the structure of her Honour’s judgment indicates prejudgment of issues. While in some cases reasons for judgment might well discuss the evidence of an applicant first, often findings as to disputed facts will only be made after considering all of the evidence. In this case one of the two expected “primary” witnesses gave no evidence. The husband’s evidence was restricted in scope. We see no reason why it could not have been assessed “first”. In any event, before the husband’s evidence was addressed, much of the father’s case was, as seen, set out under the heading “Uncontested Facts” and “The Children’s names”.
Mr Battley did not point to any particular finding to demonstrate that, had another sequence of deliberations relating to it been employed, that finding would not have been open or even be called into doubt.
In his outline, Mr Battley does refer to some findings by the Federal Magistrate that favoured the father. In doing so, he makes comment about the findings or the evidence in support of them, but none of these remarks amount to assertions that the finding was not available, except as is more particularly discussed later in respect of other arguments.
In his outline Mr Battley also argues that the Federal Magistrate should have engaged in a three step process related to fact finding and credit issues by considering whether or not the husband was a credible witness, whether or not the father was a credible witness and whether the father had provided sufficient evidence to make out his case against the backdrop of legislative presumptions of the husband’s paternity.
The question of the sufficiency of evidence to rebut presumptions will be discussed later.
In relation to the present argument, we do not accept that there is some rigid structure or sequence within which a trial judge must assess evidence.
As to the argument that remarks by the Federal Magistrate in the course of proceedings evidenced prejudgment of factual issues, a number of points in the transcript are listed in Mr Battley’s written outline. Most relate to the trial, but a few to proceedings a couple of months earlier. On that occasion there was confusion about whether the matter had been set for an interim or a final hearing. Discussion arose about the identity of the case of each party, for the apparent purpose of ascertaining whether the trial could proceed or the husband and wife ought be permitted time to gather further material. In that context, remarks were made about inferences that might be drawn from the failure of the husband and wife to undergo DNA testing and from the absence of evidence from the wife. The case was adjourned.
In oral submissions before us, Mr Battley did not take us to all of the transcript references, but highlighted the one which he indicated he thought to be his strongest support. That exchange, towards the outset of the trial was:
FEDERAL MAGISTRATE: Your client’s wife isn’t here, but the husband of the - - -
MR BATTLEY: That is so. The second respondent is here, your Honour.
FEDERAL MAGISTRATE: But not the first respondent.
MR BATTLEY: Not the first respondent, and the - - -
FEDERAL MAGISTRATE: Is there a particular reason that you’re able to advance why the first respondent isn’t here, the mother of the children?
MR BATTLEY: I’ve taken further instructions on that, your Honour, but there is an amended response from both respondents. There’s just no affidavit from the first respondent.
We have considered that and all the other references. We do not regard any as indicating prejudgment of any disputed fact or issue.
In any event, Mr Battley, when Counsel for the husband and wife at trial, made no application at any time for the Federal Magistrate to disqualify herself.
We find no merit in these arguments.
b)That the Federal Magistrate gave no or inadequate weight to the onus that was upon the father to prove his case or the degree of satisfaction required in respect of that case and did not reach findings of fact in the context of or against the background of, statutory presumptions of paternity.
The relevant presumptions were those contained in the following sections of the Family Law Act 1975 (Cth) (“the Act”):
69P(1) [Child born during marriage] If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband.
…
69R If a person’s name is entered as a parent of a child in a register of births or parentage information kept under law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
We repeat that, in paragraph 4 at the outset of her reasons, Henderson FM recognised these presumptions. That her Honour remained well aware of them is apparent from the following paragraph, towards the end of her judgment, when her Honour was addressing the “Best Interests of the Children”.
124.As matters now stand at law [Mr Tryon] is the male parent which arises out of the presumption of marriage and the declaration in each child’s birth certificate that he is the father and the mother is their mother.
As to the proposition that the learned Federal Magistrate failed to have proper regard to the onus of proof on the father and the degree of satisfaction required, (submitted to be “the Briginshaw test”, as encapsulated in s 140 of the Evidence Act (Cth)) the following passages of her Honour’s reasons are pertinent:
(Having, as seen in paragraph 4, outlined the presumptions in favour of the husband)
5.The applicant seeks an order that the presumption of paternity in respect of the children be rebutted.
(And, having considered the evidence and legal context that bore upon the issue of paternity, just before moving to conclude her reasons, by addressing the “Best Interests of the Children”):
119.The mother has left it to the applicant to prove his case and I find that he has proven his case. He has discharged his onus to a much higher level than on the balance of probability. I have not only been able to draw an adverse inference from the respondents’ failure to undergo DNA testing but also on the rule in Jones v Dunkel as all the evidence being conduct and behaviour support this finding.
In G v H (1994) 181 CLR 387 the majority discussed the applicability of the Briginshaw test to the issue of paternity. Their Honours said:
…However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v. Briginshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father. …
However, later in the same passage, their Honours distinguished a determination of parentage for the purposes of proceedings under the Act, from declarations of paternity. Their Honours said:
…Moreover, while a determination of parentage for the purposes of Family Law Act proceedings is obviously a serious matter for both the child and the putative parent, such a determination cannot properly be regarded as a declaration of paternity in the traditional sense. As Strauss J. pointed out in the Full Court, there is some doubt as to whether the Family Court has the power to make such a declaration, and it is “neither necessary nor desirable” that such a declaration be made in a case such as the present. …
We would not necessarily take the majority as deciding that the Briginshaw standard applies to a declaration of paternity under s 69VA of the Act, though their Honours distinguished declarations of paternity in the traditional sense from the nature of proceedings with which the appeal before them was concerned. However, for the purposes of considering Mr Battley’s argument in this appeal, we accept that the Briginshaw standard was appropriate, but reject his argument, because we consider that Henderson FM effectively applied the Briginshaw test.
We see no foundation for the arguments that the Federal Magistrate reached findings of fact out of the context of the statutory presumptions, or that her Honour failed to appreciate the onus on the father to prove his case, or the degree of satisfaction required as to that case.
c)That Henderson FM gave undue weight to an issue about the reason for each child being given a particular Christian name.
Early in her reasons, the Federal Magistrate recorded:
16.It was common ground that at her birth the elder of the two children, [S], was named [SJF]. …
17.It was common ground that six months after the original proceedings were commenced on 8 September 2006, the respondents changed [S’s] name from [SJF] to [SJA]. …
Then, under the heading, “The children’s names”, her Honour said:
55.It is agreed that six months after these proceedings commenced the respondents changed [S’s] name from [SJF] to [SJA].
56.[F] is the applicant’s middle name. He says “[F]” was initially chosen to show his connection to the child and that this was something agreed between him and the mother.
57.In cross-examination the husband gave very different reasons. He agreed that the commencement of these proceedings had had an impact on the decision to change the child’s name because he did not want any “confusion” to be generated.
58.The husband says the name [F] was initially chosen because it was the name of the mother’s deceased Aunt, a woman he had never met. The husband relied upon what his wife told him as to the existence of this Aunt, her name and her death.
59.It was put to the husband that if the name [F] was chosen because it was his wife’s Aunt’s name why would there be confusion just because Mr [Clutterbuck’s] middle name was also [F]. He said:
I did not want any connection to be made between the child and Mr [Clutterbuck] because she is my daughter.
60.The husband said he was not aware that Mr [Clutterbuck’s] middle name was [F] before the Court proceedings. He was very concerned that [S] would be confused. He was asked how she would be confused. He said “because as things unfolded she would have found out”. He also said he and the mother would tell [S] they had changed her name in the future. He did not know what words he would use but he would tell her.
61.The husband denied that [S] would recite her name in the car as “[SJF]”.
62.I cannot see that the respondents’ actions have eased any confusion for the child. Their actions may well have increased her confusion in the future.
63.The husband can only tell the Court what his wife told him because he has no knowledge of this Aunt.
64.The evidence of the applicant is that the mother told him she wanted [F] in the middle name to reflect his name. Her husband tells the Court the name [F] was chosen by him and his wife to reflect a deceased maternal Aunt’s name. An Aunt the husband has never met. The husband has relied entirely upon what he has been told by his wife. The only person who knows the facts is the mother and I do not have the benefit of her evidence.
65.I have difficulty in accepting the husband’s version of events as it hinges on what the mother told him. The mother, as she is entitled to do, has not filed any affidavit or subjected herself to cross-examination and yet she is the only person who can clarify this evidence for me as the husband has no knowledge of the existence or name of this Aunt.
66.In those circumstances I accept the applicant’s version of why [S’s] middle name was originally [F].
67.In relation to [E], the applicant asserted that her middle name [G] was chosen because that was his deceased mother’s name.
68.The husband said the name [G] was chosen because children are a gift of grace from God and scripturally [G] is number five, [E] is the fifth child of the family, and thus her name was chosen.
69.The husband said his wife has never told him that [E’s] middle name was chosen because it was Mr [Clutterbuck’s] deceased mother’s name. I accept that evidence.
As to the assertion that these findings were given undue weight, there is no indication that that was so. Indeed, in subsequent stages of her judgment when her Honour summarised and weighed findings, those about the girls’ names are not mentioned.
d)That Henderson FM wrongly drew inferences from:
(i)the husband and wife’s failure to undergo DNA testing;
(ii)the absence of evidence from the wife.
(i)the husband and wife’s failure to undergo DNA testing;
As to this, when addressing generally the “Husband’s evidence”, Henderson FM said:
70.Mr O’Dowd, the Independent Children’s Lawyer, asked the husband why he had not complied with the orders I made in August for he, his wife and the two girls to attend DNA testing. He said it was for religious reasons:
My beliefs are that the body is sacred and is a temple of God. And as I am a baptised member of my church my body is protected and these things are not given to others.
71.He confirmed that his religious beliefs precluded him from giving saliva swabs, tests, and that included his wife and his children. This evidence came out for the first time in cross-examination. There was no mention of religious matters before FM Halligan, his Honour Justice Coleman, or before me on the re-hearing. There is no mention of this belief and its consequences in the husband’s affidavit.
72.I do not accept this is the reason the respondents have not carried out the order for DNA testing.
The Federal Magistrate returned to the question of the failure of the husband and wife to attend testing under the heading “The Law – inferences to be drawn”:
…
107.It was submitted to me by Mr Schroder for the applicant that I am entitled under s.69Y of the Act to draw such inferences as may be available on the evidence from the contravention of the respondents in failing to comply with the order I made for DNA testing. This is not a finding of a contravention in the sense of Part 13 of the Act rather a failure to carry out an order. [The reference ought to be to Division 13A Part VII rather than “Part 13”].
108.Section 69Y reads:
(1) If a person is 18 or over contravenes a parentage testing order or an order under section 69X, the person is not liable to any penalty in relation to the contravention.
(2) The Court may draw such inferences from the contravention as appear just in the circumstances.
109.Any inference I draw is not automatic and is to be drawn from all the evidence, which evidence includes a failure to carry out DNA parentage testing.
110.What is all the evidence relevant to this section?
111.The first is that the respondents have not and will not subject themselves or the girls to DNA testing and so testing has not taken place.
112.Secondly the mother has chosen not to file any evidence or subject herself to cross-examination. She has left that to her husband.
113.The consequence of that choice is that the mother has not denied, controverted or given her explanation of the events as described by the applicant on important issues such as their sexual relationship, what she told the applicant when she was pregnant with the girls, why the applicant gave her $4,000 when she was pregnant with [S], why she and the girls attended on an overseas holiday and Australian holidays with the applicant and in the absence of her husband and older children, and why she and the girls spent time at the applicant’s home cooking meals, eating together in the absence of her husband and older children. The husband’s evidence could not assist me as he was not present on those occasions.
114.The husband agrees that the applicant was a close family friend, prior to and after the birth of the girls and had an ongoing relationship with all the [Tryon] children.
115.The combination of this evidence supports a finding of a clear and strong inference that the respondents have failed to carry out the DNA testing because the results of that testing would show that the applicant, and not the husband, is the biological father of the girls. This inference is all the more available to me when one has regard to the fact that DNA parentage testing provides a simple, cheap, non-invasive and almost 100% accurate result.
116.I am also entitled under the rule in Jones v Dunkel to draw an adverse inference from the failure of a party to present evidence to a court which would assist the court in making a finding on a contested issue.
117.The issue in contest is the paternity of the girls. The carrying out of a DNA test is clearly the most reliable and cogent evidence I could have available to me to make a finding of paternity. The respondents have conducted themselves in such a way that this evidence is not available to me. In those circumstances I am entitled to draw an adverse inference from this conduct being that the provision of the evidence of DNA testing would not have assisted the respondents’ case that the husband is the girls’ biological father.
118.On all the evidence I an entitled to draw an adverse inference from the respondents’ conduct which inference leads me to a finding that the applicant is the biological father of the girls.
And, as already seen, the concluding paragraph of this section:
119.The mother has left it to the applicant to prove his case and I find that he has proven his case. He has discharged his onus to a much higher level than on the balance of probability. I have not only been able to draw an adverse inference from the respondents’ failure to undergo DNA testing but also on the rule in Jones v Dunkel as all the evidence being conduct and behaviour support this finding.
Via his outline, Mr Battley argues that the husband’s “failure to comply with the order for parentage testing cannot be attributed to his consciousness of facts demonstrating his likely non-paternity --- particularly (but not limited to) his reasonable explanation for such failure”. Further, that:
…There may be valid forensic reasons for earlier non-disclosure. Even though there is some qualification on the strict adversarial procedures that are followed in other jurisdictions, there is no basis for her Honour to conclude recent invention when there is no mandate for a litigant to plead or lead or give evidence in a particular way – particularly when legally represented. See also Re: C (No 2) 106 FLR 82.
Apart from this argument, that the husband’s excuse was unjustifiably rejected, to which we will return, Mr Battley raised three other points. Firstly, that s 69Y speaks of a situation in which a party ordered to attend for DNA testing “contravenes” that order and of the court drawing inferences from “the contravention”. Mr Battley pointed to what the learned Magistrate said in paragraph 107 quoted above, that “this is not a finding of a contravention in the sense of Part 13 of the Act rather a failure to carry out an order”. Thus, he suggested Henderson FM had not found a contravention. Mr Battley confirms that he is not arguing that, before drawing an inference from a failure by a person to attend as ordered for DNA testing, the learned Magistrate was bound to have formally found the person “guilty” of a contravention under Division 13A. Rather, Mr Battley simply argues that, as under s 69Y it was a “contravention” that rendered inferences available, and the learned Magistrate had not found “contravention”, Mr Battley’s arguments that the inferences drawn by Henderson FM should not been drawn are stronger than they would be, had the Federal Magistrate concluded that there had been a contravention.
In Division 13A, s 70NAC expresses the meaning of “Contravened An Order” and, so far as relevant, is in these terms:
Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a)where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; …
There is a defence of “reasonable excuse”. That term “reasonable excuse” is not defined exhaustively, though circumstances which may constitute it are set out in s 70NAE, the first subsection of which provides.
Meaning of reasonable excuse for contravening an order
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
…
We see no merit in the distinction between a finding of “contravention” and one of “a failure to comply” in the circumstances here. In our view, all that the learned Magistrate was saying in paragraph 107 was that the wife and husband were not being “convicted” of a contravention upon a formal proceeding under Division 13A.
As seen, contravention is established if a person bound by an order “intentionally failed to comply with” it. These words are almost identical to the words used by Henderson FM in paragraph 107 of her reasons. Her Honour considered the one “excuse” offered for the failure and rejected it. In our view it is clear that, had her Honour chosen to use the word “contravention” rather than the term “failure to carry out an order” she could readily and accurately have done so.
Though it may well be preferable for a judge, in the circumstances that presented, to use the language found in s 69Y, we think nothing turns on the use of different words in this case.
As to the second of the “other” points raised by Mr Battley, we perceive him to present an argument to the effect that the inference available from a failure to undergo DNA testing should be circumscribed by the same limitations as apply to inferences drawn by application of the principle in Jones v Dunkel (1959) 101 CLR 298. In short, an inference cannot be drawn to fill gaps in the case of a party with an onus of proof. Whether that is what Henderson FM did, either when drawing inferences in reliance upon s 69Y or by applying the Jones v Dunkel principle will be discussed when considering the next argument.
With regard to the present proposition, we do not accept that the inferences that the court might draw under s 69Y of the Act are limited to those which might be drawn from an unexplained failure by a party to give or call evidence. In Re C (No 2) (1992) FLC 92-284 Fogarty J said, considering the terms of s 66W(5) of the Act (equivalent for present purposes to s 69Y):
The statutory consequence of not complying with the second test is set out in s66W(5) referred to previously, namely that “the court may draw such inferences as appear just in the circumstances”. At first sight this appears to give little by way of legislative guidance. No doubt it is described in that way in order to give the Court a wide discretion to cater for the various circumstances in which a failure to comply may occur. For example, in some cases the respondent may put forward grounds of objection to participating in the tests and it would be necessary for the Court to evaluate the validity of any objection and the inferences to be drawn from that. (p 79,106)
Later, his Honour said:
I conclude that the refusal, without explanation, by the respondent to participate in the second parentage test order is a striking and significant circumstance. The Act and Regulations now contain clear and detailed procedures for parentage testing, including the type of medical procedures which are considered by the Legislature to be appropriate for that purpose (see Regulation 21B). As I indicated earlier, parentage is a medical rather than a legal issue. The procedures now adopted are well recognized and legislatively approved. They are likely to be determinant of the issue either way and in a manner which takes it out of the area of challenged evidence about past events, credibility and presumptions. In addition, the determination of such an issue has an importance to the child involved which would normally transcend the tactical interests of the parents in the particular litigation.
In my view, this is a clear case to draw an inference adverse to the respondent. The question then is — what inference may legitimately be drawn? It would not be permissible to conclude directly from the failure to take the test that the person is, in fact, a parent of the child in question. One can, and I think in this case should, however, draw the conclusions that the person concerned believes that the tests are likely to be adverse to his interests and that they demonstrate a knowledge of facts by him which, if established, would support that conclusion. Relevantly here, the inference which I draw from the respondent's refusal is the knowledge by him of the fact that the parties had intercourse at the relevant time and the belief by him that he is the father or at least that there is such a high risk of that conclusion being reached from the tests that he prefers to stifle that evidence and submit to the provisions of s66W(5).
…
Here the combination of the evidence as to intercourse at or about the relevant time, the results of the first test and the refusal to take the second test, cause me to conclude that the respondent is the father of C. I do so withstanding the countervailing factors, principally the presumptions referred to above and the caution which must be exercised in determining issues which have occurred so many years previous. (pp 79,108, 79,109)
Two years after the decision in Re C (No 2), in G v H (1994) 181 CLR 387 the High Court discussed inferences that might be drawn from s 66W(5). The majority (Deane, Dawson and Gaudron JJ) said:
The inference to be drawn in the present case
The inference with which s. 66W(5) is concerned is that to be drawn from the contravention of an order requiring a parentage testing procedure to be carried out. It is not an inference to be drawn from the reasonableness or otherwise of the refusal to submit to testing or the explanation, if any, proffered for that refusal. It may sometimes be necessary to consider those reasons or explanations for the purpose of determining whether they preclude or negate an inference that might otherwise be drawn. And in that process it may be relevant to determine whether or not they are reasonable. But even so, the inference with which s. 66W(5) is concerned is that to be drawn from contravention of an order under s. 66W(1). For present purposes and in terms of s. 66W(2)(c) it is contravention of an order by a person in relation to whom “[a] parentage testing procedure... might assist in determining the parentage of the child”.
The inference, if any, to be drawn pursuant to s. 66W(5) of the Act will depend on the circumstances of the particular case. And, of course, it must be consistent with the evidence and the findings. As a general rule, there will be an inference as to the state of mind of the person who has contravened the order made under s. 66W(1) and another as to the question whether he or she is the parent of the child concerned.
…
… it is well settled that, in the course of the ordinary processes of legal reasoning, an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so. Thus, for example, there may sometimes be an inference in civil cases that the evidence, if called, would not assist that party's case. And there may sometimes be an inference in criminal cases of “guilty knowledge”, in the sense of knowledge that the evidence cannot be explained in a way that is consistent with innocence. They are inferences that are to be drawn, if at all, in accordance with strict legal reasoning. In other cases, the failure to give evidence may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence. The inferences which s. 66W(5) allows are “such inferences as appear just in the circumstances”. They are not confined to inferences that can or should be drawn as a matter of strict legal reasoning and they certainly extend beyond those inferences that may be drawn from the other available evidence. That is not to say that s. 66W(5) permits of surmise: as earlier indicated, the inferences must be consistent with the other evidence. In all the circumstances of the present case, the ``just'' inference to be drawn was that it was more probable than not that the outcome of the court-ordered test would be unfavourable to G. And given the accuracy of the test, that must lead to the finding that, on the probabilities, he was the father of the child. (footnotes omitted) (401, 402)
Mr Battley argued that G v H was distinguishable from the present case because in G v H no presumptions of paternity applied. That is an observation which merely goes to the significance of any inference drawn to the overall result. It does not affect their Honours’ observations about the nature of the inferences that might be drawn.
Our rejection of Mr Battley’s contention about limitations on the inferences that can be drawn in reliance on s 69Y is strongly supported by the statements quoted, particularly those of the members of the High Court.
The third of the “other” contentions raised by Mr Battley was that the Federal Magistrate did not address the question of whether the inferences she drew in reliance on s 69Y were “just in the circumstances”. In our view, her Honour’s reasons quoted, particularly paragraphs 108-110 and 115-119 demonstrate that her Honour addressed that question.
Returning to the central argument here, that Henderson FM ought not have rejected the “excuse” of the husband and wife for failing to undergo DNA testing, Mr Battley suggested that there was evidence before her Honour of an excuse for non-compliance with the order for DNA testing by the wife and the husband and that her Honour ought have accepted it. He referred us to the following exchange:
MR O’DOWD: I will start again. You were aware that orders were made by this Court in August 2007?---To attend here?
No, no, that there were orders made by her Honour in August 2007 that you, Mr [Clutterbuck], your wife and the two girl attend for paternity testing?---Yes.
And what are your reasons for not having attended for that testing, yourself personally, first?---Religious reasons for not submitting to that test.
Religious reasons; what reasons – can you expand on what those religious reasons are?---My beliefs are that the body is sacred; the body is a temple of God; the blood most particularly but all the bodily substances are holy and as a baptised member of my church I believe that those things should be protected and that I shouldn’t be giving those things.
Certainly, and that relates to blood?---And other substances.
What other substances would those be?---Whatever the body produced of its own self.
So your religious beliefs preclude you from a saliva swab test?---That is right.
And precludes, I presume, your wife?---That is right.
And the two girls?---That is right.
So the reason why you were not given testing has nothing to do with whether or not Mr [Clutterbuck] is the father of these children, is that what you are telling the Court?---That is right.
We do not accept that the exchange quoted represents evidence, admissible on behalf of the wife, as to her non-compliance. Rather, the husband contended that his beliefs as to how he should act also included a belief as to how the wife should act. Thus, in our view, there is an absence of evidence from the wife bearing on the matter of reasonable excuse for her failure to undergo DNA testing.
As to the husband’s excuse on his own behalf, Mr Battley suggested that the husband was not challenged as to whether his religious beliefs were genuinely held. The exchange quoted came from the husband virtually at the end of his evidence, when being cross-examined by the independent children’s lawyer, after counsel for the father had cross-examined the husband. While counsel for the father might have been able to seek leave to ask questions arising out of the husband’s responses, the husband’s religious beliefs are not obviously something about which the father could give instructions for cross-examination, so the failure to seek leave to further cross-examine does not necessarily work against the father.
Section 70NDA, (in subdivision D of Division 13A) dealing with the position where “Contravention established but reasonable excuse for contravention”, by virtue of paragraph (c), makes plain that the onus of establishing reasonable excuse falls on the respondent to a contravention application. We appreciate that Henderson FM was not dealing with a formal contravention application, but it is clear that in any event the evidentiary onus in respect of excuse fell upon the husband.
In our view, Henderson FM was entitled on the case before her, to consider that the failure of the husband to earlier advance his contention about religious beliefs was a factor upon which she could rely in assessing the weight to be given to his evidence about that. The conclusion to which she came was well open to her.
The absence of evidence from the wife
The argument here was that “a Jones v Dunkel inference cannot fill gaps in the evidence, or convert conjecture and suspicion into inference”, but that that is what Henderson FM did. The “gaps” allegedly were that the father had failed to give evidence of his own fertility and of unprotected vaginal intercourse, leading to ejaculation, during the period of conception of each of the girls. Whether these “absences” had any real significance in the father’s case is a question to be answered in the context of all of the evidence. We have already set out a great deal of the Federal Magistrate’s recount of the father’s case. Included in that case were not only claims of a sexual relationship with the mother over a long period of time, including the periods of expected conception of the girls, but evidence that the mother had told the father that he was the father of each of the girls, the evidence of the name F given to the older girl to reflect the father’s own name and his attendance at the birth of each child. In our view, the father’s was a powerful case, on that evidence alone.
We note that, for the obvious purpose of countering the father’s evidence, the husband gave evidence that he had sexual intercourse with the wife during the period of conception of each girl, but gave none of the detail which it is now suggested ought have been given by the father.
In our view, it was implicit in the father’s case that he contended fertility and unprotected vaginal intercourse, with ejaculation.
We do not consider that the Federal Magistrate used the absence of evidence from the wife or the non-compliance, without accepted excuse, with an order for DNA testing, to fill gaps in the father’s case.
e)That the Federal Magistrate failed:
(i)to have proper regard to the absence of evidence in the father’s case that he was fertile and had unprotected sexual intercourse with the mother at the time of conception and
(ii)to draw an inference from the father’s non-attendance for DNA testing
the absences in the father’s case
The argument is simply that the Federal Magistrate should have drawn inferences by applying the Jones v Dunkel principle. To a large extent the argument fails because of what we have said in respect of the implications in the father’s case. In short, any “absences” were not such as to give rise to any inferences. Put another way, there was much in his case which militated against the drawing of any inferences against him. We are also doubtful that an argument about inferences to support the wife’s “case” adds any force to the proposition that the father failed to prove his case, when the approach of the wife was not to put forward her own evidence, but to put the father to proof. In any event, there is no doubt that at trial the Federal Magistrate was well aware of the contention now argued before us. Her Honour said:
156.The thrust of submissions by Mr Battley were as follows. The declaration of paternity is a grave decision and I need to be satisfied on the evidence that I should make such a declaration because of the consequences of such a decision. I accept that submission.
157.The evidence of sexual intercourse is not satisfactory. There is no evidence of unprotected intercourse and the applicant’s evidence that he and the mother had sex is not evidence of sexual intercourse. I reject that submission. It is not denied by the mother that she and the applicant engaged in sexual intercourse and that they had a full sexual relationship. The applicant’s evidence is clear that he and the mother had sex and had a sexual relationship at a time relevant to the conception of the girls.
158.This evidence has not been denied or controverted and is consistent with the conduct of the mother, the applicant and her husband over a 13 year relationship.
…
160.Mr Battley submitted the applicant was not a witness of credit on two issues. The first is he lied to his wife about having a relationship with the mother and secondly he let people at the markets believe [U] was his son. Those are not matters which satisfy me the applicant is not a witness of credit. He admitted he had done these things which were understandable at the time. I found him a truthful and honest witness and I reject that submission.
the father’s non-attendance for DNA testing
Mr Moss, counsel for the father on appeal, took us to a concession recorded in the transcript that he said was that the husband and wife had, through their solicitors, notified their intention not to attend DNA testing. Thus, he argued, it had been pointless for the father to attend.
Henderson FM said:
159.Mr Battley submitted that there was no evidence the applicant attended for DNA testing. I do not need to make that finding. The respondents and children failed to attend and thus no testing could be carried out. That submission is not relevant in this matter.
We discern no error in the learned Federal Magistrate’s treatment of this contention.
(f) That Henderson FM wrongly admitted and/or gave undue weight to photographs and to evidence, especially about the conduct of the parties subsequent to the birth of each of the girls
As seen, references to a folder of photographs appeared in passages of her Honour’s reasons. Mr Battley submitted that the photographs were “inadmissible per se in that it was not probative of any facts relevant to the proceedings”.
The passages in which Henderson FM referred to the photographs include:
44.In October 2005 the applicant moves to a unit in [K]. It is clear from photographs tendered, being the annexure A to the affidavit filed by the applicant on 28 December 2006, that the mother and girls spent time at that unit cooking, eating meals, cleaning up and engaging in social interaction.
…
103.The applicant is clearly attached to and has had a strong and ongoing relationship with the girls. The photographic compilation he produced to the Court showing the girls from their birth, pre-school, first day of school, holidays and the like until he ceased to see them in May 2006 is extensive and demonstrates a relationship over a long period of time.
104.The photographic compilation depicts him, the mother and children as a family enjoying significant events: holidays; first days of school; births; birthdays; Christmas; cooking food; eating meals together; cleaning up and enjoying time together.
We reject Mr Battley’s proposition that evidence of events post-conception of each girl could not be relevant to the issue of paternity.
As Ormiston JA said, sitting in the Supreme Court of Victoria, Court of Appeal, in FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33:
…Retrospectant evidence, even in criminal trials, for example, where consciousness of guilt is relied upon, may often illuminate events in the past, so long as it is a reasonable inference to argue back from the later events to a particular earlier event.
Consistently, Atkinson J sitting in the supreme Court of Queensland, Court of Appeal, in Astway Pty Ltd v Counsel of the City of the Gold Coast [2008] QCA 073 said:
[43]…JD Heydon’s Cross on Evidence at [1170] explains that retrospectant evidence is a type of circumstantial evidence in which the subsequent occurrence of an act, state of mind or state of affairs justifies an inference that the act was done, or that the state or mind or affairs previously existed. The term comes from 1 Wigmore, Evidence §43.
Finally, as to this argument, and of some pertinence to this matter, Griffith CJ in Cullen v Welsbach Light Co of Australasia Ltd (1907) 4 CLR 990 said at 1002:
If the only party in possession of direct evidence withholds it he cannot complain that effect is given to the circumstantial evidence.
We have already spoken of the strength of the father’s evidence on critical matters. These critical matters fit within the context of the broader relationship between the father, the wife, the husband and all of the children in their household. That relationship, as the learned Magistrate said, helped explain and support the father’s essential contentions.
It was within that secondary area of the evidence that Henderson FM placed the photographs. In our view, the Federal Magistrate treated the photographs as demonstrative of that to which the father had in any event deposed. Of themselves, the photographs may carry very little weight, so little as possibly to have been considered irrelevant, but in the circumstances of this case, we are not persuaded that their admission and such weight as was given to them by the learned Federal Magistrate, constituted appellable error.
g)That Henderson FM wrongly approached the question of “the best interests of the children”
As to this aspect, the learned Federal Magistrate said:
21.In my decision of 23 August 2007 I set out some paragraphs of Justice Coleman’s decision. He made it clear in the Appeal matter, reported as Tryon & Clutterbuck [2007] FamCA 580, that the ordering or not ordering of DNA parentage test under s. 69W of the Act is a parenting order.
22.At paragraph 26 of his judgment His Honour finds:
It is reasonably apparent as a matter of statutory construction that an order under s 69W is, in fact, a parenting order as that term is known or to be understood within the context of the Act.
23.It is agreed that the declaration that I am being asked to make today is also a parenting order.
24.Part VII of the Act sets out how a judicial officer must proceed to determine such an application. It is clear that the ordering of the DNA test and a declaration of paternity is a parenting matter as it falls within the broad definition of a parenting order under s.64B of the Act. This section provides that a parenting order may deal with:
…any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
25.At paragraph 30 of his judgment His Honour Justice Coleman finds :
It is tolerably clear that the paternity of a child is an aspect of the welfare of a child. That is to say who is, or is not, a child’s biological father as a matter of commonsense, appears to be capable of being an aspect of the welfare of that child
26.Once a parenting order is to be made, as His Honour points out, s.60CA is enlivened. Section 60CA says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
27.Thus part of my obligation in determining this application, as it was on the re-hearing, is to consider the factors under s.60CC (1),(2),(3) and (4) of the Act to determine what order I should make in the best interests of the children.
28.That was the reason the Appeal was successful, as during a busy duty list Federal Magistrate Halligan did not give consideration to those matters as is our mandatory obligation prior to making the order for DNA testing.
Then, in the second last segment of her reasons, Henderson FM continued:
106.Having made the findings above I must still consider the factors set out in s.60CC (2),(3) and (4) of the Act in order to determine whether I ought to make the orders contended by the applicant as to declaration of paternity because this is a parenting matter and I can only make an order which is in a child’s best interest after a consideration of those sections.
And in the last section under the heading “Best Interests of the Children”, the Federal Magistrate said:
126.At first blush it seems that if I do not make the declaration then the children may be denied the benefit of a meaningful relationship with their biological father, Mr [Clutterbuck].
127.On the other hand if I do make the declaration there may be a negative impact on the relationship the children now have with the person they regard as their father, the husband Mr [Tryon].
128.However Mr [Clutterbuck] was a part of this family’s life for 12 to 13 years. The husband was content and condoned his wife’s relationship with the applicant, she and the children attending at least two holidays in his absence, one being overseas. The relationship included the applicant attending the home on a daily basis in the morning and the evenings when the husband was at work.
129.The girls had a relationship with the applicant prior to May 2006 in circumstances where I have found the husband and mother knew the applicant was the father of the children and that the applicant and the mother had an ongoing sexual relationship. Why a declaration of paternity now would make a difference to the nature of the girls’ relationship with the husband is not apparent to me on the evidence.
130.There is no evidence that the benefit to the girls of their relationship with the husband or their mother will be damaged by a declaration of paternity.
131.On the other hand, if I do not make the declaration on the weight of the evidence and having regard to the findings I have made the girls will be denied the benefit of a relationship with their biological father and that may be a harmful outcome for their well being.
132.The girls may benefit from a renewal of their relationship with Mr [Clutterbuck] as well as maintaining the ongoing and supportive relationship with the husband.
133.The respondents parent the children to a high standard. The girls have a close and loving relationship with their mother and the husband. The respondents may be uncomfortable with a declaration however I am confident that their high level of parenting will ensure the girls are not impacted upon by their discomfort. There is no evidence that making a declaration of paternity will have a negative impact on the strength and benefit to the girls of their relationship with their mother and her husband.
134.Thus I find that there will be no negative impact on the benefit to the girls of a meaningful relationship with their mother and her husband by a declaration of paternity.
135.I find that a failure to make the declaration would damage the benefit to the girls of a meaningful relationship with their biological father as the girls have been denied a relationship with him by the respondents.
The correctness of the conclusion of Coleman J in Tryon and Clutterbuck, that an order for parentage testing is a parenting order and of the conclusion of Henderson FM and (apparently) of the submissions of counsel appearing before her, that a declaration under s 69VA of the Act is a parenting order, has not been challenged before us. Nor in view of what follows, are they conclusions that need examination in the disposition of this appeal. Therefore, of them, we say only that we would not wish our silence to be taken as acceptance that those conclusions are correct.
There are really only two fairly narrow aspects to Mr Battley’s arguments here. He asserts that there was no evidence that the children were well cared for and had a loving and supporting family environment in which was evinced a high standard of care. However such evidence is to be found in that given by the father and recorded by the Federal Magistrate in paragraph 91 of her reasons as follows:
91.This evidence is also consistent with the applicant’s position that the respondents are capable, competent and loving parents and the girls are well cared for.
Mr Battley also argued that probative evidence was required before it could be said that if a declaration was not made, then the children could be denied a meaningful relationship with their father. We think however that that was a matter of deduction, which was available to her Honour from the fact that the father had been excluded from involvement with the children and the prospect, well open in our view, that a declaration would advance the chances of involvement of the father in the children’s lives.
Therefore, assuming for the moment that the decision whether to make a declaration of parentage or not was one in which the best interests of the children were paramount, and therefore an assessment of factors set out in s 60CC of the Act was necessary, we see no error in the Federal Magistrate’s consideration of the case as it presented before her.
Conclusion overall
As we have found no merit in any of the arguments on the appeal, it ought be dismissed.
Costs
In the event which has transpired the father sought costs on an indemnity basis, Mr Moss arguing that the appeal was without merit. Though we have found it so, we do not think that the appeal was recklessly or negligently brought or that every ground was clearly unarguable. We see no basis for any costs award to be on an indemnity basis.
Mr Battley did not oppose costs on a party/party basis. We consider the nature of the proceedings and the result justifies an order for costs on that basis.
I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 15 September 2009
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