VAKROS & LETSOS - [2012] FamCAFC 40

FAMILY COURT OF AUSTRALIA

VAKROS & LETSOS

[2012] FamCAFC 40

FAMILY LAW – APPEAL – CHILDREN – DECLARATION OF PARENTAGE – Whether the Federal Magistrate erred in finding contrary to the evidence that the presumption of paternity under s 69Q of the Family Law Act applied – Where the date of termination of cohabitation between the mother and the respondent was not in dispute – Where the Federal Magistrate, in finding that the presumption under s 69Q applied, seemed to have relied on the respondent’s evidence that he and the mother had unprotected sexual intercourse post cohabitation and during the period in which the child was conceived – Error established.

FAMILY LAW – APPEAL – CHILDREN – DECLARATION OF PARENTAGE – Whether the Federal Magistrate erred in finding contrary to the evidence that the presumption of parentage under s 69R of the Family Law Act was rebutted – Where the Federal Magistrate found that the birth certificate registered for the child prior to its amendment gave not details as to the identity of the father of the child and therefore found that no presumption under s 69R applied – No appealable error established.

FAMILY LAW – APPEAL – CHILDREN – DECLARATION OF PARENTAGE – Whether the Federal Magistrate erred in drawing an inference under s 69Y of the Family Law Act without determining first that a contravention had occurred and second that such an inference appeared just in the circumstances – Where no challenge was made to the findings upon which the Federal Magistrate based his conclusion that the inference could and should be drawn, but rather the reasoning process by which the Federal Magistrate came to such conclusion – No appealable error established.

FAMILY LAW – APPEAL – CHILDREN – DECLARATION OF PARENTAGE – Whether the Federal Magistrate denied the mother procedural fairness in advising what paragraphs of the mother’s affidavits should be read, or in issuing, ultra vires, a warrant for the mother’s arrest if she failed to attend on the next return date – Where the mother absented herself from the proceedings – No appealable error established.

FAMILY LAW – APPEAL – CHILDREN – INTERIM PARENTING ORDERS – Whether the Federal Magistrate denied the mother procedural fairness in making interim parenting orders when such issues were not before the court – Error established.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the mother filed two applications in an appeal to adduce further evidence – Where such evidence was available during the proceedings before the Federal Magistrate – Applications dismissed.

Family Law Act 1975 (Cth) ss 69Q, 69R, 69Y
Federal Magistrates Court Rules 2001 (Cth) r 25B.03

Allesch v Maunz (2000) 203 CLR 172
CDJ v VAJ (1998) 197 CLR 172
Coulton v Holcombe (1986) 162 CLR 1
Finlayson vFinlayson & Gillam (2002) FLC 93-121
G v H (1994) 181 CLR 387
Tryon & Clutterbuck (No. 2) (2009) FLC 93-412

APPELLANT:

Ms Vakros

RESPONDENT:

Mr Letsos

INDEPENDENT CHILDREN’S LAWYER:

Jennifer Weate & Associates

FILE NUMBER:

SYC

2710

2007

FIRST APPEAL NUMBER:	EA	135	of	2011
SECOND APPEAL NUMBER:	EA	136	of	2011

DATE DELIVERED:

16 March 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ainslie-Wallace and
Murphy JJ

HEARING DATE:

2 February 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

26 September 2011 and
18 November 2011

LOWER COURT MNC:

[2011] FMCAfam 1383 and
[2011] FMCAfam 1395

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Battley

SOLICITOR FOR THE APPELLANT:

Lees & Givney

FOR THE RESPONDENT:

In person

FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

Orders

That the appeal against the orders made by Federal Magistrate Kemp on 26 September 2011 be allowed in part.
That paragraph 7 of the orders made by Federal Magistrate Kemp on 26 September 2011 be set aside.
That the matter be remitted for rehearing in relation to the issue of interim parenting arrangements.
That the appeal otherwise be dismissed.
That the appellant pay any legal costs incurred by the respondent in relation to the appeal.
That both parties be granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to both parties in respect of the rehearing of the matter in relation to the issue of interim parenting arrangements.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vakros & Letsos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

First Appeal Number: EA 135 of 2011
Second Appeal Number: EA 136 of 2011
File Number: SYC 2710 of 2007

Ms Vakros

Appellant

And

Mr Letsos

Respondent

REASONS FOR JUDGMENT

This appeal concerns orders and declarations made by a Federal Magistrate about the parentage of a little girl who was born in January 2007 (“the child”).
The respondent (“Mr Letsos”) asserts that he is the father of the child. The appellant (“the mother”) denies this is so and asserts another man, her present partner, is the father.
On 26 September 2011 the Federal Magistrate made the following orders and declarations:
…
(3) The Court, pursuant to s.69VA of the Family Law Act 1975 (“the Act”), declares that the Applicant is the father of the child [X] born in 2007, also known as [X] (“the child”).
(4) The Applicant (without the need for the Respondent’s consent), within 14 days of today’s date, do all acts and things and sign all documents to ensure that he is recorded as the child’s father on the child’s birth certificate as recorded on the Registry of Births, Deaths & Marriages.
…
His Honour further made interim parenting orders providing that the respondent spend time with the child at a contact centre. His Honour ordered:
(7) By consent of the Applicant and the Independent Children’s Lawyer, and pending further order, Orders be made in accordance with the handwritten minute of order document dated 26 September 2011 and signed by the Applicant and the Independent Children’s Lawyer and initialled by me and placed with the papers, as follows:
(a) The Applicant and Respondent, within 7 days, contact Interrelate Family Centre located… and do all acts and things required by that service to enable the child [X], also known as [X], to spend supervised time with the Applicant at the first available opportunity.
(b) The child, [X], spend time with the Applicant, on a supervised basis, and subject to availability at Interrelate Family Centre, for no less than 2 hours each week.
(c) The parties share the cost of the service provided by Interrelate Family Service.
(d) The Respondent do all acts and things to ensure that [X] is delivered to the Interrelate Family Centre at the appointed time.
(e) The time that [X] spends with the Applicant shall take place at the Centre in the absence of the Respondent and her partner, [Mr Tekosis].
The mother filed two applications in an appeal on 17 January 2012. In each, leave is sought to adduce further evidence in the appeal. The thrust of the proposed evidence is contained in affidavits sworn by her and by her partner, Mr Tekosis on 12 January 2012.
In her affidavit, the mother wishes to reply to an affidavit of Mr Letsos sworn on 20 December 2011 (and which was filed in support of his application that she be dealt with for contempt). However the material sought to be adduced in this further evidence relates to the subject matter before the Federal Magistrate in 2009 and 2011, namely the parentage of the child. The affidavit of Mr Tekosis too goes to the parentage of the child and the circumstances of his relationship with the mother.

Background

This litigation spanned many court appearances over a number of years.
For the majority of the time Mr Letsos has appeared for himself. The mother has been represented for most of the appearances in the court.
In April 2007, after the child’s birth, Mr Letsos brought an application in the Federal Magistrates Court seeking orders that the mother undergo DNA testing to determine the parentage of the child. Mr Letsos filed a number of amended applications all seeking essentially the same orders and in each he sought the order for parentage testing. The mother filed a number of responses to the applications, each seeking that Mr Letsos’ application be dismissed.
Mr Letsos’ application was heard on 7 December 2007, 14 February 2008 and 10 November 2008. The mother was represented by counsel, Mr Battley. Judgment was delivered and orders made on 25 August 2009.
On 25 August 2009 the Federal Magistrate made the following order (inter alia):
(1) Pursuant to section 69W of the Family Law Act 1975, the parties sign all such documents and do all acts and things necessary to undergo an approved parentage DNA testing procedure (“the Procedure”) to be carried out by a certified testing agency as agreed between the parties and failing agreement as nominated by the Applicant, (“the Agency”), in relation to the following:
(a) Mr Letsos, born in 1964;
(b) Ms Vakros; born in 1971; and
(c) [X], born in 2007.
His Honour made further, facilitative orders in relation to the testing including:
(5) The parties ensure they submit to the Procedure within 28 days from the date of these Orders and the respondent mother ensure that the child also submits to the Procedure as advised by the Agency.
The appellant did not undertake DNA parentage testing in accordance with his Honour’s orders.
In reaching his decision to make the declaration as to paternity on 26 September 2011, his Honour took into account the mother’s failure to undergo the ordered parentage testing.
It is important to observe here that there was no appeal from the order for parentage testing or the findings made in the Federal Magistrate’s judgment of 25 August 2009.
After the order for parentage testing was made on 25 August 2009, the matter was adjourned to 14 December 2009. On that day the mother did not appear and Mr Letsos was given leave to amend the return date on his application for parenting orders to 19 March 2010. On 19 March 2010 the mother did not appear. The matter was then stood over until 22 April 2010 and the mother was directed to bring the child and attend on a Family Consultant. She did not attend the consultation nor did she appear before the court.
On 22 April 2010 the Federal Magistrate ordered that an Independent Children's Lawyer be appointed and stood the matter over to the 4 June 2010 when Mr Battley appeared for the mother and an Independent Children's Lawyer appeared. Ultimately the application for declaration of parentage was set down for hearing over two days starting on 8 February 2011.
The matter proceeded on 8 and 9 February 2011 and did not conclude. The Independent Children’s Lawyer had earlier been excused from attendance by his Honour and did not take part in the hearing on 8 and 9 February 2011.
At the conclusion of the hearing on 9 February 2011, his Honour invited the Independent Children's Lawyer to again appear and assist the court. He further directed the mother to file affidavits relevant to the person she asserted was the father of the child. The hearing was set down for 4 and 5 August 2011 but was adjourned on the application of the mother and over objection of both Mr Mr Letsos and the Independent Children’s Lawyer. The hearing was then adjourned, part heard to 26 and 27 September 2011.
On 26 September 2011 the mother appeared unrepresented. She sought a dismissal of Mr Letsos’ application on the basis that in correspondence the Independent Children's Lawyer referred to the child’s birth date as 1997 and, she argued, that meant that the child to whom the proceedings related was 14 years old and could not therefore be related to her child. Unsurprisingly this specious argument was rejected. The mother declined to take any further part in the proceedings of 26 September 2011; the matter was concluded and orders made in her absence.

The Federal Magistrate’s Reasons for Decision

As we have indicated, no appeal was brought against the orders and determination of the Federal Magistrate of 25 August 2009. At [9] of his reasons of 26 September 2011, the Federal Magistrate incorporated into the reasons for his decision of 26 September 2011, the findings and decision of 25 August 2009. The earlier findings are relevant to his subsequent findings and orders to which this appeal is directed and we will refer to those reasons of 25 August 2009 where it is necessary to give context to the instant appeal.

Reasons of 25 August 2009

There was no dispute that the mother and Mr Letsos had been in a sexual relationship. The parties disputed the date on which they ceased to have sexual contact. The mother asserted that she ceased having sex with Mr Letsos on or before 1 February 2006. Mr Letsos asserted that although no longer living in the same house, they continued to have sexual contact up to 23 May 2006. There was no dispute that Mr Letsos was imprisoned for a short time in April 2006, bail being refused relating to a number of charges allegedly relating to his conduct towards the mother. Mr Letsos alleges that after he was released from prison, he and the mother had a sexual relationship from 7 April until 23 May 2006. The mother denied this.
His Honour considered the evidence of both Mr Letsos and the mother on this issue.
He referred to the mother’s concession that at a time after she said the sexual relationship had ended with Mr Letsos, she had sent Mr Letsos a picture of her genitals and visited him while he was in prison. His Honour found at [50] that her answer to Mr Letsos’ question of whether they had had sexual intercourse in the eight weeks before the hearing was “not convincing”. He referred at [52] to her assertion that she was not intimate with Mr Letsos but had said in answer to Mr Letsos’ question whether she had given him a “blow job” in the preceding eight weeks, she answered: “yes”.
His Honour said at [59]:
59.However, the one critical question that the applicant asked the mother, namely “When was the last time that we had sexual intercourse in 2006?” was given the answer “I don’t recall”. This was a high watermark for the applicant. The mother then gave further evidence that she recalled their relationship ended in January 2006. Her evidence was that no sexual intercourse with the applicant occurred after that date. That answer was inconsistent with her answer that she did not have sex with the applicant after he was released from detention in April 2006. She did not recall whether there was an occasion of sexual intercourse on 19 February 2006. That was again inconsistent with her subsequent denial that sexual intercourse had continued after 1 February 2006. The applicant put to her that on 19 February 2006 the parties were in a sexual intercourse relationship and her response was “If that is what you believe”.
His Honour identified the test to be applied by him in determining the issue at hand, namely whether the applicant, Mr Letsos, held a bona fide reasonable doubt that he was the father of the child.
His Honour acknowledged the submissions made both by Mr Letsos and on behalf of the mother in which the credit and bona fides of the other was attacked and said at [98] and [99]:
98. While the Court accepts that the applicant was not an impressive witness, the Court also formed the view that the mother was not entirely forthcoming and responsive to the applicant’s questioning, which the Court accepts was largely ineffectual due to the applicant being self-represented, lacking any subjectivity, and affected by the surrounding relationship issues between himself and the mother.
99. The Court is of the view that even if it accepted that it could not believe the evidence of the applicant as to the matters set out in paragraph 96 above, it is not of the view that his evidence as to his beliefs concerning doubts as to the parentage of the child should not be accepted. This is particularly the case, as the evidence before the Court is consistent with the applicant’s continued assertion, not only before this Court but before the Local Court of NSW, that the subject child may be his. Further, the evidence of the mother itself is so uncertain and unsatisfactory as to lead the Court to the view that the applicant’s subjective doubt is reasonably held.
Turning to the evidence before him, his Honour commented at [101] and [102]:
101.There is no evidence before the Court as to vaginal intercourse, unprotected intercourse, ejaculation, fertility (his), or the mother’s medical records.
102. The lack of material before the Court relevant to the matters in paragraph 101, would appear to be a product of how the applicant conducted these proceedings. While the Court accepts that the mother is not obligated to provide such material and it is the applicant who bears the onus, the Court is also of the view that it is for that reason that the test has been formulated as it has. The applicant does not have to establish, on the balance of probabilities, that he is the father, only that he has an honest, bona fide, and reasonable doubt as to that matter. In light of the evidence before it, and notwithstanding the detailed and considered submissions of Mr Battley, the Court accepts that the applicant has such a doubt and that this doubt, on the evidence is reasonably held…
As we have indicated, his Honour made an order that the mother and the child undergo parentage testing.

Reasons of 26 September 2011

At the outset of his reasons, his Honour noted that the mother did not comply with the ordered parentage testing. Indeed, he recorded an exchange between counsel for the mother and the bench about that issue and, after counsel indicated that “[t]here [has] been no compliance with the order that [his] Honour made on 25 August 2009”, his Honour enquired of counsel whether the mother intended to comply, to which counsel said that he had “no instructions” on the matter.
His Honour then moved to a consideration of s 69Q(b) of the Family Law Act 1975 (Cth) (“the Act”) which permits a presumption to be drawn that a child is the child of a man if:
…
(b) at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married;
…
Referring to that section, his Honour indicated at [8] that on his calculations, 44 weeks prior to the birth of the child “equates to the first week of March 2006”.
His Honour said at [9]:
9. The applicant has asserted that he had had unprotected sexual relations with the respondent, from about 7 April 2006 up until 23 May 2006. That would appear to be within the terms of the presumption arising under section 69Q of the Act in his favour. The Court has had the benefit of the cross-examination of the respondent mother in the proceedings, which gave rise to the orders for the DNA parenting test. The decision and the orders are an Exhibit before me and the Court incorporates the findings and decision in this decision as if fully set out herein.
His Honour then turned to s 69R of the Act which enables a presumption to be drawn that a person is the parent of a child from the entry of that person’s name on the child’s birth certificate.
His Honour observed that there were two birth certificates for the child in evidence. The first, recording her birth in January 2007, ascribed no name to the father. He further noted that in May 2011 the mother sought an amendment to the certificate to include the name of her then partner, Mr Tekosis who, she asserted was the father of the child. The certificate was amended on 16 June 2011.

His Honour found, correctly in our opinion, that no presumption could flow from the first registered birth certificate, no father being identified. As to whether Mr Tekosis had the benefit of the presumption contained in the section, his Honour said at [10(c)]:
…
c) …In the circumstances of this matter, the Court is of the view that that presumption has been substantially rebutted by the evidence before the Court. In the proceedings for the DNA testing, [Mr Tekosis’] name was never mentioned by the applicant (sic) and she proffered no other person who could be the father of the child in those earlier proceedings.
His Honour referred to an affidavit sworn by the mother on 12 November 2010 in which she deposed to her relationship with Mr Tekosis and referred to her reason for not identifying him as the father of the child being a fear that Mr Letsos would harass or abuse him. His Honour indicated at [12(b)(iii)] that he had “…real reservations concerning that fear, given the history of the litigation between both the applicant and the respondent…”
It was not until the hearing on 8 February 2011 that the mother said that a person she referred to as “Mr X” was the father, later being said to be a reference to her partner, Mr Tekosis.
After referring to the circumstances in which the mother refused to take any further part in the proceedings on 26 September 2011, his Honour said at [21] that since neither she nor Mr Tekosis was cross examined on their affidavits asserting that he was the father of the child, he would place no weight on them where there was a controversy.
At [30] his Honour referred to an exchange with Mr Battley in which his Honour said that if it was to be asserted that Mr Tekosis was the child’s father it needed to be directly stated, to which Mr Battley indicated that he was going to seek the Federal Magistrate’s leave to file such material. It seems that an order to this effect was made on 9 February 2011.
At [32] his Honour observed that the mother did not file any affidavit in compliance with that direction and said:
32. …As indicated by the applicant today, the respondent has not complied with that order and her affidavit material stands as that existing on 9 February 2011, notwithstanding the exchange between the Court and the respondent’s counsel. In those circumstances, again, the inference can be made that no further affidavit material, in the light of a Jones & Dunkell submission, would have assisted the respondent in asserting that anyone other than the applicant was the father of the child.
At [23] his Honour had said:
23. …In this regard, the Court is of the view that the completion of the statutory declaration by [Mr Tekosis], giving rise to him being recorded as the father, was such a tactical device adopted by the respondent. Accordingly, the Court deals with that on the basis that any presumption said to arise from that, has to that extent been rebutted by the material before the Court.
His Honour indicated that both Mr Letsos and the Independent Children's Lawyer argued that he should draw the inference that Mr Letsos is the father of the child from the mother’s failure to comply with the order for parentage testing and further indicated that he would make a declaration of parentage as a result.
Section 69Y of the Act states:
69Y Orders directed to persons 18 or over
(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.
His Honour observed that in coming to that decision he was obliged to consider any presumptions arising under Subdivision D of Part VII, Division 12 of the Act. We have referred to his findings in relation to the two presumptions identified by him as arising in the matter; that relating to the period of cohabitation and from the birth certificate.
At [22] and following his Honour considered whether to draw the inference and said:
22. The Court has had regard to the extensive transcript of the cross-examination of the applicant by Mr Battley. Notwithstanding the extensive nature of that cross-examination, the Court is satisfied that there has been nothing raised which would rebut the presumption that, the Court says, justly flows from the respondent’s refusal to comply with the parentage testing orders made on 25 August 2009.
23. Mr Battley at one point in the proceedings, raised the issue as to whether the mother was strictly obligated to comply with those orders if the applicant had not done so. The Court made it clear that the respondent had the opportunity of rectifying any such position, by carrying out a test in accordance with those orders, and on a number of occasions, queried with Mr Battley whether that opportunity had been taken up. It became apparent that a tactical decision had been made by the respondent that the orders were not going to be complied with and that the matter would be left to testing the applicant’s evidence and introducing other material which might satisfy the Court that any presumption would be otherwise rebutted…
24. As said, the Court, given that the respondent has elected not to take further part in the proceedings nor present a case, notwithstanding that she was this morning self-represented, is left with the clear inference flowing from her failure to carry out the DNA testing procedures as ordered, that the applicant is indeed the father of the child and the Court will make the declaration of parentage as sought by the applicant and supported by the Independent Children’s Lawyer.
25. The Court has also had regard to Exhibit ICL1, the Independent Children’s Lawyer’s letter of 1 September 2011, seeking to engage the respondent in fulfilling the orders for DNA testing. In that letter, the Independent Children’s Lawyer states that a number of contacts have been made in relation to DNA testing laboratories that offer the appropriate service, information was enclosed and confirmation was given that the Independent Children’s Lawyer was willing to assist both the applicant and the respondent to ensure the test was completed.
He observed that the Independent Children's Lawyer received no response from the mother to that letter.
At [28] his Honour turned to a consideration of s 69Y and said:
28. …Further, the inference does not give rise to a presumption; it allows the Court to draw such inferences from the contravention as appear just in the circumstances. Given the material before the Court, the Court does not need to find that there has been a formal (in the sense of a hearing) contravention application of the orders for DNA testing. Mr Battley confirmed that there has been no compliance with the relevant order.
At [40] his Honour said:
40. Again, when considering the inference that the Court has to draw and as to whether that inference is just, the Court must consider the conduct of the respondent. As raised by Ms Weate, who, as said, appears for the Independent Children’s Lawyer, no appeal was lodged against the parentage testing orders. Further, the respondent’s conduct, both prior to and subsequent to the child’s birth, are important matters to consider. Given the material asserted by the applicant as to the contact that he has had with the child, albeit limited, it is consistent with an inference that the applicant is the father.
His Honour at [38] recorded that the mother did not deny that Mr Letsos had had contact with the child but referred to it as not being “substantial”. His Honour found at [40] that Mr Letsos’ contact with the child was consistent with an inference that he is the father.

Parenting Orders

At [41] and following, his Honour considered the parenting orders that Mr Letsos sought to be made consequent on a declaration of parentage in his favour and referred to a minute of orders which both Mr Letsos and the Independent Children's Lawyer asked him to make. His Honour made orders that were broadly consistent with the agreed position of the Independent Children's Lawyer and Mr Letsos.

The Appeal

The mother raised four grounds of challenge to his Honour’s findings:
1. That the learned federal magistrate erred in finding that the presumption of paternity, pursuant to s.69Q of the Family Law Act 1975 (“the Act”) applied. This was contrary to the evidence.
2. That the learned federal magistrate erred in finding that the presumption of parentage, resulting from the registration of a person’s name as a parent in a register of births kept under a law of a State, had been rebutted; such presumption is pursuant to s.69R of the Act. This was contrary to the evidence.
3. That the learned federal magistrate denied the appellant procedural fairness in:-
(i) advising the respondent on 26 September 2011 what paragraphs of the appellant’s affidavits should be read;
(ii) making interim parenting orders when such issues were not before the court; and in
(iii) acting ultra vires by issuing a warrant for the appellant’s arrest.
4. That the learned federal magistrate erred in drawing an inference, pursuant to s.69Y, without:
(i) determining that a contravention of a parentage testing order had occurred; and whether
(ii) the inference, flowing from the alleged contravention, appeared just in the circumstances.

Ground 1: That the learned federal magistrate erred in finding that the presumption of paternity, pursuant to s.69Q of the Family Law Act 1975 (“the Act”) applied. This was contrary to the evidence.

In the written summary of argument, counsel for the mother argued that the termination of cohabitation between the mother and Mr Letsos was not in dispute, each saying that she left his home on 1 February 2006. It was argued that a finding that the parties had “unprotected sexual relations” could not substitute for cohabitation.
We accept this argument. The section is clearly intended to apply to circumstances where parties are living together and a child is born to the woman. The presumption arises from the fact of cohabitation not from incidences of sexual intercourse per se.
In his findings, his Honour seems to have found the presumption flowing from reliance on Mr Letsos’ evidence that he and the mother had unprotected sexual intercourse in the period in which the child was conceived as enlivening the presumption. In this he was in error.
However, for reasons that will appear later, this finding does not determine the outcome of the appeal.

Ground 2: That the learned federal magistrate erred in finding that the presumption of parentage, resulting from the registration of a person’s name as a parent in a register of births kept under a law of a State, had been rebutted; such presumption is pursuant to s.69R of the Act. This was contrary to the evidence.

The written argument asserts, in effect, that his Honour made no finding that Mr Tekosis was registered as the child’s father. It was argued:
His Honour, however, did not find that Mr Tekosis was, in fact, registered as [X]’s father. He notes that:-
…it would appear [Counsel’s emphasis] that the child’s birth certificate was amended… and (that it) was recorded on 16 June 2011 that the child’s father was [Mr Tekosis]: para. 10(b).
It was further argued that his Honour’s conclusion that the presumption in favour of Mr Tekosis had been rebutted was unsupported by the evidence.
This must be rejected.
First, his Honour found that the birth certificate registered for the child in January 2007 gave no details of the father and thus no presumption would flow from that certificate. He then said at [10(b)]:
…
b) …Subsequent, however, to that, it would appear that in May 2011, the respondent forwarded to the said registry a statutory declaration completed by her and by a Mr Tekosis, wherein the mother and Mr Tekosis declare that Mr Tekosis is the biological father of the child. That document was lodged on or about the date it was received by the registry and it would appear that the child’s birth certificate was amended consequent to that lodgement, pursuant to section 18A and recorded on 16 June 2011 that the child’s father was Mr Tekosis.
A reading of the paragraph in the judgment rather than as selectively quoted in counsel’s submissions, makes it plain that his Honour was not merely supposing the matter to have been done but making a finding on the evidence of the statutory declaration and other documents. His use of the word “appear” is nothing more than a turn of phrase as is clear from the reasons and the evidence before him.
Exhibit ICL2 is a bundle of documents produced by Births, Deaths and Marriages and tendered by the Independent Children's Lawyer on 26 September 2011. Included in those documents is a copy of a statutory declaration signed by both the mother and Mr Tekosis in which they declare that he is the biological father of the child and each request that the details of the father be included on the birth record. Mr Tekosis’ declaration was made on 30 March 2011.
Further, the documents contain a letter from the mother indicating to the registrar that she was enclosing an application to: “register a name change for my daughter to her father’s name” and “[add] my daughter’s father to her birth certificate”.
The bundle of documents contains a birth certificate for the child on which the following is noted:
Amended consequent to Section 18(a). Registrar 16 June 2011. The full name of the registered person was previously recorded as [X]. Registrar 1 July 2011.
Quite what formed the basis for the challenge to his Honour’s finding was not made clear in argument and remains unclear to us.
As to the reasons for finding the presumption rebutted, we have set these out at [32] to [40]. His Honour provided ample reasons for finding that the presumption flowing from the registration of Mr Tekosis on the child’s birth certificate was rebutted by other evidence.
This ground fails.

Ground 4: That the learned federal magistrate erred in drawing an inference, pursuant to s.69Y, without: (i) determining that a contravention of a parentage testing order had occurred; and whether (ii) the inference, flowing from the alleged contravention, appeared just in the circumstances.

A number of arguments were made in relation to this ground. However, it is important to note that no challenge was made to his Honour’s findings of fact on which he based his conclusion that the inference was available. What was challenged was his Honour’s reasoning process by which he came to that determination.
Section 69Y is as follows:
69Y Orders directed to persons 18 or over
(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.
It was first argued that the reasons disclose that the Federal Magistrate:
(i) drew an inference that the respondent was the father of the child; and then
(ii) determined that such inference “would appear just in the circumstance (sic)”: para. 5
It was asserted that the section requires a two step process, namely a consideration first of whether the propounded presumption arises and secondly a determination of whether this presumption is a just one in the circumstances. The argument is that a reading of his Honour’s reasons demonstrates that he drew the inference that the respondent was the child’s father without having first determined that that inference was just.
We do not accept the argument that the section neither mandates nor even requires a two step approach. Certainly no authority was cited for the proposition.
The drawing of inferences is an exercise of judicial fact finding. The drawing of an inference is based on a consideration of the facts and circumstances established by the evidence, and part of that consideration is the determination whether the inference is a just one. We see no reason to bifurcate the intellectual process.
In G v H (1994) 181 CLR 387, the High Court considered the inferences that may be drawn pursuant to a finding of contravention of an order requiring parentage testing. At page 401 Deane, Dawson and Gaudron JJ said:
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…
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.
Further at page 402, their Honours continued (footnotes omitted):
…Leaving aside special considerations which arise in criminal cases as a result of the right to silence, 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… 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.
It is appropriate to record that we do not accept that his Honour’s judgment reveals his Honour had drawn the inference contended for by Mr Letsos or the Independent Children's Lawyer before he considered the evidence on which that the inference was drawn.
Support for this argument was sought to be drawn from [4] and [5] of his Honour’s reasons where he said:
4. No contravention proceedings were brought, but the mothers’ (sic) failure gives rise to an inference that the applicant is the father. The Court has regard to section 69Y of the Act…
5. As indicated, the inference which the Independent Children’s Lawyer and the applicant seek that the Court draws from the respondent’s failure to carry out the parentage testing orders, is that the applicant is the father of the child, and that such an inference would appear just in the circumstances of this matter.
Even if his Honour was expressing his concluded view in paragraph 5, that, of itself does not mean that his reasoning process was in error. When read as a whole it is clear to us that his Honour did indeed approach the determination of whether to draw the presumption was just in the light of all of the evidence before him.
In following paragraphs, his Honour adverted to sections 69Q and 69R. He then set out the history of the proceedings and the circumstances in which the mother refused to take any further part in the proceedings. In considering the conduct of the proceedings to that point, his Honour said at [22]:
22. The Court has had regard to the extensive transcript of the cross-examination of the applicant by Mr Battley. Notwithstanding the extensive nature of that cross-examination, the Court is satisfied that there has been nothing raised which would rebut the presumption that, the Court says, justly flows from the respondent’s refusal to comply with the parentage testing orders made on 25 August 2009.

Further his Honour said at [24]:
24. As said, the Court, given that the respondent has elected not to take further part in the proceedings nor present a case, notwithstanding that she was this morning self-represented, is left with the clear inference flowing from her failure to carry out the DNA testing procedures as ordered, that the applicant is indeed the father of the child and the Court will make the declaration of parentage as sought by the applicant and supported by the Independent Children's Lawyer.
His Honour considered the question of whether to draw the inference pursuant to s 69Y at [27] and following. After referring to the evidence before him, he said at [40]:
40. Again, when considering the inference that the Court has to draw and as to whether that inference is just, the Court must consider the conduct of the respondent… no appeal was lodged against the parentage testing orders. Further, the respondent’s conduct, both prior to and subsequent to the child’s birth, are important matters to consider. Given the material asserted by the applicant as to the contact that he has had with the child, albeit limited, it is consistent with an inference that the applicant is the father.
We respectfully agree with the Full Court in Tryon & Clutterbuck (No 2) (2009) FLC 93-412 (“Tryon”) when considering an argument that the structure of a Federal Magistrate’s reasons revealed prejudgment of issues as articulated by Finn J in her separate decision at 83,640:
51. 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…
A reading of his Honour’s reasons as a whole does not support the asserted error.
Secondly, in the written argument, counsel submitted under the heading:
Contravention/Non-Compliance/Refusal/Failure to Take Test
This issue is not raised, it is emphasised, to illustrate semantic differences. It is conceded, therefore, that the mother has not participated in a parentage test.
The submissions then set out the Federal Magistrate’s order of 25 August 2009 for parentage testing. The submission continued:
Is non-participation equal to contravention/non-compliance/refusal/failure to take test?
The answer to this question must be “yes”. It might be expected that this would be a matter within the knowledge of Mr Battley since he was counsel for the appellant in Tryon. No reference was made by him to that authority either in written or oral argument.
In Tryon the Full Court considered a matter in which, it was argued, inter alia, that a Federal Magistrate had erred in drawing an inference pursuant to s 69Y.
The Federal Magistrate had said, apropos, the inference available to be drawn in reliance on s 69Y (as appears in their Honours’ reasons at [99]): “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”.
In particular their Honours noted at [102] that counsel for the appellant, Mr Battley argued 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’”.
Their Honours continued at [102]:
102. …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.
The Full Court held in a joint judgment of Warnick and Strickland JJ, with which Finn J in a separate decision agreed, that there was no merit in the argument drawing that distinction.
Their Honours referred to Division 13A, s 70NAC of the Act which is to the following effect:
70NAC 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…
…
At [105] their Honours Warnick and Strickland JJ said:
105. 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.
To the extent that the written submission advances an argument that, although his Honour had before him evidence of non-compliance and counsel’s concession of the fact, he did not make a finding that the mother had contravened the order, we reject that argument.
In our view, it is not necessary that there be a hearing or even a positive finding of contravention. It can be seen in this case that the mother had contravened the order within the meaning of s 70NAC.
In his reasons for judgment of 26 September 2011, his Honour observed at [3] that the mother had not complied with the order for parentage testing. The Federal Magistrate returned to the issue of compliance with that order at [22] and following when he came to consider whether to draw the inference pursuant to s 69Y.
As we have set out, his Honour was satisfied at [22] that there had been “…nothing raised which would rebut the presumption that, the Court says, justly flows from the respondent’s refusal to comply with the parentage testing orders made on 25 August 2009”.
Although his Honour did not make a finding in terms that the mother had “contravened” the order for DNA testing, he made clear findings that she had failed to comply with it.
No argument has been made to us that causes us to depart from the view expressed by the Full Court in Tryon. We see no distinction in this case between “contravened” and “failed to comply” with an order.
Thirdly, counsel for the mother argued that his Honour’s orders of 25 August 2009 were framed in such a way that the mother’s obligation to comply with them did not crystallise until conditions precedent were fulfilled by Mr Letsos. It was submitted that because the obligations on Mr Letsos were not fulfilled, the mother’s obligation to comply with the order never arose. Thus, it was argued, she could not have been found to have “contravened” the order to give rise to the inference.
We enquired of counsel for the mother whether this argument had been raised before his Honour.
Counsel indicated that, while he could not answer that matter directly, he would provide transcript references to us. The appeal hearing concluded without him having done so.
In his reasons of 26 September 2011, his Honour said at [23]:
23. Mr Battley at one point in the proceedings, raised the issue as to whether the mother was strictly obligated to comply with those orders if the applicant had not done so. The Court made it clear that the respondent had the opportunity of rectifying any such position, by carrying out a test in accordance with those orders, and on a number of occasions, queried with Mr Battley whether that opportunity had been taken up…
It was not altogether clear to us whether this passage in his Honour’s reasons was a reference to the argument put to us in pursuit of this ground of appeal and, as we could find no reference in the transcript to that argument being made, the Appeals Registrar wrote to Mr Battley inviting him to provide us with transcript references to demonstrate that the argument sought to raised with us was squarely raised during the proceedings before the Federal Magistrate.
In response, counsel for the mother made further submissions. We set them out in full:
1. Neither argument nor submission was made to the Federal Magistrate in respect of Appeal Ground 4 or the other Appeal Grounds: instructions to appear had been withdrawn.
2. Her Honour Justice Ainslie-Wallace asked counsel to identify where the court had been informed of the appellant’s obligation to comply with Order 1, made on 25 August 2009: AB6:1587.
3. The court, respectfully, is referred to:-
(i) AB1:38 at paragraph 23.
Mr Battley, at one point in the proceedings, raised the issue as to whether the mother was strictly obliged to comply with those orders if the applicant had not done so…
This is an extract from His Honour’s Reasons for Judgment, dated 26 September 2011.
(ii)AB:1132, lines 12-24.
His Honour: “Mr Batley [sic], the matter has been before this court on a number of occasions. You have submitted to the court on a number of occasions that the respondent mother has failed to comply with the court’s orders regarding the paternity testing.
Batley:“That is not in evidence in this hearing, your Honour.
…
His Honour: “Well, Mr Batley, I’m of the view it is.
Mr Batley: “Well, would your Honour be so kind as to tell me, please, what evidence in your Honour’s view is before the court?”
4.His Honour was referring to submissions from counsel during direction’s (sic) hearings. The Transcripts of those hearings are not before the court. The appellant’s argument is ventilated on this point and is found at AB3:701.
5.The appellant submits, respectfully, that the court had been informed at the directions’ (sic) hearing, that the respondent’s failure to nominate an agency pursuant to Order 1, meant that no obligation to comply with the Order had crystallised on the appellant. This was irrespective of Order 2.
6.It is emphasised that paragraphs 4 and 5 above are based on counsel’s recollection. Such recollections, however, are consistent with his Honour’s comments at AB4:1132.
7.Further, it is counsel’s recollection – and, again, consistent with his Honour’s extracts at AB1:31 – that non-compliance was asserted. Contravention or culpability was not admitted.
Although the transcripts of the directions hearings were not in the appeal books, we accept counsel’s assertion that in a directions hearing he outlined his contention that there had been no obligation on the mother to comply with his Honour’s orders because Mr Letsos had not complied with the obligations precedent. We are also aware that, after the conclusion of the hearing on 9 February 2011, Mr Battley did not again appear for the mother until 23 December 2011.
We do note however that in [4] of these submissions where counsel asserts in reference to AB3:701 that “[t]he appellant’s argument is ventilated on this point…”, this is a reference to his written outline of argument in this court, not to any argument made to the Federal Magistrate.
We turn then to the proceedings before the Federal Magistrate.
A consideration of the transcript of the hearing of 8 and 9 February 2011 is instructive in considering this submission.
First, at no time did counsel for the mother put to Mr Letsos that he had in some way failed to comply with the ordered parentage testing or any asserted precondition of the order. This omission is, in our view, particularly significant.
In the hearing of 8 and 9 February 2011, Mr Letsos relied on an affidavit sworn by him on 14 July 2010. Counsel for the mother took objections to the content of the affidavit, going through it paragraph by paragraph. His Honour ruled on the objections.
So much of paragraph 197 as survived that process read:
Despite many requests by the Applicant the Respondent mother failed to adhere to the Courts orders.
Mr Letsos was given leave by his Honour to elaborate on that statement. He said that he had had a number of telephone conversations with the mother in which he said words to her to the effect: “…just do the DNA…”
In the course of his elaboration, Mr Letsos returned to the question of the steps he had taken to comply with the order for DNA testing. He said:
---Now, your Honour, the court made an order on 25 August 2009 to have a DNA test done. As I put on the record, as I put in evidence, I said from the Bar table that I’ve gone – I went to [a suburb in Sydney], did all what I had to do…
Over a barrage of objections, he was allowed to give evidence of the steps he took to comply with the order:
[Mr Letsos]: …I went to [an address in Sydney], which is a place where – that they do DNA testing…
Mr Letsos continued:
---The lady was very helpful there and said that they could not perform that type of testing, and she sent me to four other places. The first place, again, was in [a suburb in Sydney]. Since – when I went to the second place they said that they cannot do it without the child present, the child must be present…
Again after objections had been rejected, Mr Letsos said:
---Your Honour, I then contacted an organisation which I’d like to tender the document, so Mr Battley then can then go call them and – and do his checks, and then there’s no anonymous and – and whatever he wants to call it. So I’d like to tender the document…
Mr Letsos referred to a DNA test conducted based on samples taken from the child and himself and referred to the document in which the results were contained.
Counsel for the mother called for the document to which Mr Letsos referred. Mr Letsos said that he did not have it in court but could produce it later in the day to which counsel, perplexingly, objected. In any event, the Federal Magistrate granted leave to Mr Letsos to produce that document later in the day.
Counsel for the mother cross-examined Mr Letsos over the whole of 8 February 2011 and the whole of the next day.
On 9 February 2011, counsel for the mother said: “I’m finished with this man”, which we take to be an indication that he had completed his cross-examination of Mr Letsos. It seems that his Honour understood that to be so because there followed a discussion about Mr Battley reserving his right to cross examine Mr Letsos further on the document relating to the DNA testing.
As we have indicated, at no point did Mr Battley suggest to Mr Letsos that there was a step or steps he had failed to take in pursuit of the ordered parentage testing nor, we stress, was it suggested to Mr Letsos that his assertions that he had had a number of telephone conversations with the mother asking her to have the test and his assertions that he had “done all what he had to do” was incorrect. We also point out that the mother was present on that day, and Mr Battley was alert, in his words on 9 February 2011:
…I was conscious of no Brown v Dunn issue…
In this light, the failure to directly challenge Mr Letsos’ assertions or directly raise the point now sought to be advanced, is in our view significant.
At the time of this hearing, the mother had filed no affidavit that traversed Mr Letsos’ affidavit.
Secondly, we can find nowhere in the transcript of 8 and 9 February 2011 (observing that the mother appeared for herself on the final day of the hearing, 26 September 2011 but left without taking part in the proceedings) where Mr Battley put to the Federal Magistrate that the mother was not required to comply with the order of 25 August 2009 to undergo DNA testing because obligations precedent on Mr Letsos had not been performed.
This is not because the issue of her compliance was not raised, to the contrary, his Honour was clearly (and in our view understandably) most concerned that there had been no compliance with his order made 18 months before.
On 8 February 2011, his Honour said to counsel for the mother:
His Honour: …I need to delve into some further factual matters, but it may be that the submission is simply that your client has not complied with an order made for DNA testing.
Mr Battley: Well, I wouldn’t want you to – you see, this is the difficulty, your Honour, isn’t it, if your Honour comes to hearing this matter with that view, then your Honour has formed a view in respect of my client.
His Honour: No, Mr Battley. No, that’s not correct. All I’ve formed a view is – I haven’t formed a view as to whether there is any reasonable explanation for non-compliance, and presumably I’ll hear some of that.
Mr Battley – Well, why? There’s no application for contravention. That’s not relevant…
Counsel argued that there was no evidence before his Honour of the earlier decision to order DNA testing or the reasons for it. (We disagree with the assertion that a court cannot take notice of its own orders, nor a judicial officer his reasons for making the order when it was inextricably linked to the matter before him, but it is not necessary to consider this point in detail).
He further argued that there was no evidence before the court that the mother had not complied with the ordered testing.
His Honour said referring to the affidavit of Mr Letsos sworn on 14 July 2009:
His Honour: Is there anything in this material about the compliance or the non-compliance with those orders?
Mr Battley: Not that I have discerned, your Honour. No, your Honour.
Perhaps counsel had overlooked Mr Letsos’ assertion in the affidavit at paragraph 197:
Despite many requests by the Applicant the Respondent mother failed to adhere to the Courts orders.
We accept that later in the proceedings objection was taken to that paragraph and was partially successful, however, it was perhaps not strictly correct to say that there was nothing in Mr Letsos’ affidavit going to the mother’s non-compliance.
However, in the course of dealing with objections to Mr Letsos’ affidavit, and in particular paragraph 197 to which we have earlier referred, objection was taken to Mr Letsos’ assertion that the mother had failed to comply with the court’s orders.
In the course of submissions on the objection his Honour said to counsel for the mother:
…bearing in mind he [Mr Letsos] is self-represented, is seeking to put before the court that the assertion that the respondent mother failed to adhere to the court orders…
There followed further submissions and argument by Mr Battley. His Honour indicated that he would allow the first part of the sentence to be given and gave leave to Mr Letsos to give evidence about the orders with which he said the mother had failed to comply.
The submissions continued:
Mr Battley: That is an assumption on behalf of the court that the mother has failed to adhere to the court orders. There’s no evidence whatsoever before your Honour’s court to that effect.
…
His Honour: Mr Battley, the matter has been before this court on a number of occasions. You have submitted to the court on a number of previous occasions that the respondent mother has failed to comply with the court’s orders regarding the paternity testing.
Mr Battley: That is not in evidence in this hearing, your Honour.
…
His Honour: Well, Mr Battley, I’m of the view it is.
Mr Battley: Well, would your Honour be so kind as to tell me, please, what evidence in your Honour’s view is before the court?
In response to Mr Battley’s question to his Honour as to where that evidence was, he said:
…As I understand it, the applicant is asserting that the respondent mother failed to adhere to the court’s orders. The only reference to the court’s orders in this document is the orders of 25 September 2009 (sic) which would appear to be the orders pursuant to section 69W, although the applicant refers to 69X in number 3 for there to be the DNA testing procedure set out.
His Honour said:
…The whole application before this court is relevant to a declaration of parentage flowing from the decision of this court made in August 2009.
…
That is, as far as I can see, this applicant is seeking to put the court’s orders made on that occasion before the court and the mother’s failure to adhere to them. Now, as said, the court is dealing with a self-represented litigant and the court has obligations to ensure that what he is seeking to put before the court is properly addressed by the court.

Mr Battley then argued that there was no evidence of “many requests” made by the applicant and his Honour reminded Mr Battley that he had given Mr Letsos leave to adduce that evidence.
His Honour said:
His Honour: Mr Battley, I’m giving leave for the applicant in respect of the request position, but I am allowing the balance of 197 and I take it that the court’s orders that are referred to, the orders of ---
Mr Letsos: 25 August 2009.
…
Mr Battley: Your Honour, that’s a matter for the litigant. It’s not a matter for the court.
His Honour: 25 August 2009. [Mr Letsos], is that the position that you’re asserting before the court? I need to know that.
Mr Letsos: Yes, your Honour. That’s the exact position I’m asserting before the court.
Mr Battley: Might it be noted that your Honour led the applicant to that position.
His Honour said:
His Honour: …the effect of what he is seeking is to put before the court the respondent’s asserted failure to comply with the court’s orders made by this court on 25 August for DNA testing. That matter has been a live issue from the day that the matter came before this court following the delivery of its reasons, right up to when the matter was set down.
It’s been raised a number of times between the court and you, Mr Battley, personally where there were issues as to whether there was a breach of the order or whether there was a failure to comply, and the court I think on previous occasions, and the court can take regard of the totality of the record under Division 12A of the proceedings that on a previous occasion you indicated that the respondent was not going to carry out that order. That’s the case, is it not, Mr Battley?
Mr Battley: No. No, it is not, your Honour.
His Honour: So you say that the respondent will carry out the order?
Mr Battley: No, I didn’t say that at all, your Honour. What I’m saying to your Honour is that where your Honour says that your Honour is entitled to take notice of the totality of the record before determining this matter, I say that is wrong in law. I say that your Honour referred to evidence that is before the court. I asked most respectfully, your Honour, for your Honour to identify the evidence that you say is before the court at this hearing.
On 9 February 2011 when the hearing was adjourned to be completed at another time, the following exchange occurred:
Mr Battley: Your Honour, I think I’ve made it clear, with respect, what the respondent’s position is.
His Honour: Well, just remind the court so it’s on the record.
Mr Battley: There has been no compliance with the order that your Honour made on 25 August 2009.
His Honour: Yes, I understand that. In light of this revelation, is there going to be compliance?
Mr Battley: I don’t have any instructions on that, your Honour.
His Honour: That just means there may or may not be.
Mr Battley: That’s the only way you could interpret that, your Honour, yes.
His Honour said:
His Honour: …but then, Mr Battley, I have enormous difficulties with why---
Mr Battley: She doesn’t have to give you an explanation, your Honour.
His Honour: ---the testing just doesn’t occur.
…
Mr Battley: Well, that’s – you may have enormous difficulty, your Honour, but this is not a police state. If someone makes an order, if someone chooses not to obey an order, there’s no penalty under the Family Law Act ---
…
---for not complying with a DNA test. It says so explicitly.
…
---The risk she runs, your Honour, as your Honour is well aware, is that your Honour may draw an inference providing it is just in the circumstances.
…
We claim – our case is quite simple. We claim that your Honour won’t draw an inference that [Mr Letsos] urges upon you.
Returning to the asserted argument on this ground of appeal, although we accept that at a directions hearing counsel for the mother may have foreshadowed to his Honour the argument sought to be advanced before us, as we have indicated at no point did counsel squarely raise with Mr Letsos that he had failed to comply with all or any of his obligations under the order.
The circumstances in which propositions that have not been raised at trial are sought to be advanced on appeal were discussed in Coulton v Holcombe (1986) 162 CLR 1, where Gibbs CJ, Wilson, Brennan and Dawson JJ said at 7 to 8 (footnotes omitted):
…To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish… In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd.… Bloemen v. The Commonwealth… In O'Brien v. Komesaroff... Mason J., in a judgment in which the other members of the Court concurred, said:
“In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh… Suttor v. Gundowda Pty. Ltd.… Green v. Sommerville…). However, this is not such a case. The facts are not admitted nor are they beyond controversy.
The consequence is that the appellants’ case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.”
In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six justices of this Court (University of Wollongong v. Metwally [No 2]…) the Court said:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The Court of Appeal recognized the great importance, in the public interest, of these principles. Their Honours summarized them in the following terms:
“the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court”.
These principles have been applied by this Court. For example, in Finlayson vFinlayson & Gillam (2002) FLC 93-121 the Court said at 89,267 (original emphasis):
There is ample authority for the proposition that a party cannot raise on appeal a point not raised at trial if it could possibly have been met by calling evidence below: see Water Board v Moustakas (1988) 180 CLR 491 at 497; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; University of Wollongong v Metwally [No. 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; and O’Brien v Komesaroff (1982) 150 CLR 310 at 319. The same principle, founded as it is on the necessity to ensure procedural fairness to the parties, must preclude a trial Judge from deciding a case on a basis not raised by the pleading or submissions of the parties before him or her without at least giving the parties an opportunity to address the issue by making further submissions and, if then sought, to adduce further evidence relevant to the issue. As the trial Judge did not give the parties (and, in particular, the husband) such an opportunity in this case, the essential question is whether, had she done so the husband might possibly have been able to adduce some evidence which answered the point.
The failure to raise the asserted point in court at a time during which Mr Letsos “might possibly have been able to adduce some evidence which answered the point” is in our view fatal to the mother raising it on appeal. Discharge of what is fundamentally a rule of procedural fairness requires more than indicating to the court what the potential argument will be as the cases amply demonstrate. It was clear that counsel had completed his cross examination of Mr Letsos when the matter was adjourned. That he was not instructed when the matter finally was determined by his Honour is not to the point. In our view, in order to advance this argument on appeal, it should have been raised during Mr Letsos’ cross examination. That it was not leaves the mother unable to pursue it on appeal and we reject it.
As we have already noted, his Honour found that the mother failed to comply, a finding that was open to him and which, neither before him nor before us was in issue.
His Honour directly considered whether it was just in the circumstances to draw the inference and made that finding. As the quoted paragraphs from his reasons demonstrate, his Honour considered whether to draw the presumption against the whole of the evidence before him.
We find no error in his Honour’s approach to the drawing of the inference in s 69Y. This ground of appeal must therefore fail.

Ground 3: That the learned federal magistrate denied the appellant procedural fairness in:- (i) advising the respondent on 26 September 2011 what paragraphs of the appellant’s affidavits should be read; (ii) making interim parenting orders when such issues were not before the court; and in (iii) acting ultra vires by issuing a warrant for the appellant’s arrest.

We have indicated that the mother took a limited role in the proceedings of 26 September 2011. Both she and Mr Tekosis had sworn and filed affidavits in those proceedings.
On 26 September 2011, when the proceedings were called on, the mother appeared and Mr Tekosis was with her. The mother asked whether he could be permitted to sit at the bar table. His Honour refused, accepting Mr Letsos’ argument that Mr Tekosis was a witness in the case and was to be cross-examined.
In answer to his Honour’s question as to whether Mr Tekosis was to be a witness in the case, the mother said:
[Ms Vakros]: …he doesn’t have to be a witness for this request that I’m making.
…
Right. Because this case needs to be dismissed there’s an – I don’t, look, this application is based on a 14 year old and I don’t have a 14 year old. So this is why I’m coming in here today to ask you if you could please dismiss this case because I don’t have a 14 year old. So I think you’ve just got the wrong person.
[Mr Tekosis]: That’s correct.
The mother then referred to documents containing a reference to “…a child born on … 1997”. His Honour said:
His Honour: …do you have a child, [X]?
[Ms Vakros]: I have a child, [X], yes.
His Honour: And that was the child the subject of earlier orders for a DNA parentage test?
[Ms Vakros]: Yes, but---
His Honour: And you have complied with those orders?
[Ms Vakros]: But it’s in regards to a 14 year old.
His Honour: Now just answer. How old is [X]?
[Ms Vakros]: But I can’t do the DNA – well, if people knew how old she was I wouldn’t be here today.
His Honour: Yes.
His Honour reminded the mother that he had made orders for parentage testing for an [X] born in January 2007 to which the mother said:
[Ms Vakros]: But that was the previous case. This is a new one. He’s declaring to be the father of a 14 year old.
His Honour informed the mother that it was clear that all applications before the court related to a child born in January 2007. The mother said that she had documents that referred to a child born in 1997 in letters from the Independent Children's Lawyer. The following exchange occurred:
His Honour said to the mother:
…But at this point in time as far as the court is concerned it’s dealing with an application for a declaration of parentage by [Mr Letsos] in respect of a child, [X], born in January 2007. That’s clearly spelled out in the amended initiating application filed 20 October 2010. It’s clearly spelt out in my orders for that testing on 25 August 2009---
The mother said:
[Ms Vakros]: No, no. I’m leaving.
[Mr Tekosis]: You go find the 14 year old, right, and you stay away from my family. Everyone stay… – let’s go.
[Ms Vakros]: I’m sorry. We’re not staying.
His Honour then requested that security remove Mr Tekosis from the courtroom and the mother said: “If he leaves I’m leaving too”. His Honour asked her to take a seat to which Mr Tekosis said: “We’re both leaving. No, she’s not taking a seat. Come with me”.
Both left the court room and on his Honour’s request, the Independent Children's Lawyer made enquiries to see whether the mother had remained in the court precincts, and was told that both had left the building.
We turn then to the particulars of this ground of appeal.

Ground 3(i): advising the respondent on 26 September 2011 what paragraphs of the appellant’s affidavits should be read

Before embarking on the final day of the hearing, his Honour sought submissions from the Independent Children's Lawyer about the affidavits filed by the mother and Mr Tekosis. The Independent Children's Lawyer submitted that if his Honour was “formally requested to read any documents then… they would need to be read”. His Honour said that it might require him to consider the transcripts. Mr Letsos submitted that he objected to: “any affidavits that I can’t cross-examine people”.
His Honour referred to a transcript (although it is not clear of which day) and in which his Honour mentioned an affidavit of “[Mr Tekosis]” and one of the mother of the same date and said: “So I will look at those documents”.
After observing that the “the material of the mother is not extensive” his Honour said:
And to some extent Ms Weate I can – the court can understand [Mr Letsos’] objection on the basis that if the persons who have sworn affidavits are not available for cross-examination, they should be rejected and not formally read. However, it may be that the material in those affidavits could be read by the court with – placing little weight ---
…
---on those matters where there is any contrary position asserted to that of the applicant. Yes. The difficulty is that as I understand security are now texting my deputy associate to indicate that parties want to come back into court. It’s a – Ms Weate, I think the best course may be – because the court can’t get engaged with communicating via text messages with security outside asking whether the mother can come back in. Of course the mother can come back in if she wishes to be here.
The Independent Children's Lawyer offered to inform security of his Honour’s view.
His Honour then indicated that he would take a short adjournment to enable that to happen and said:
…If they are not coming back, you might want to use the five minutes just to discuss with [Mr Letsos] the receipt of some of the material from the respondent. Because, to some extent, the affidavit of [Mr Tekosis] does not say in any way that he is the father of the child. And having that material before me may indicate something which would be – which would assist the court in excluding [Mr Tekosis], bearing in mind that all he says is that the child regards him as her father. He would have had the opportunity of stating a lot more, which he has obviously elected, potentially, not to do. But that’s a matter between, I think, I just need to know what I should read. It’s not a large amount of material. It’s only a few pages. But perhaps the ICL may even want to read that.
When the court resumed the Independent Children's Lawyer informed his Honour that both the mother and Mr Tekosis had been seen leaving the building.
His Honour then identified, with the assistance of the Independent Children's Lawyer, the documents filed on behalf of the mother being two affidavits sworn by her and one of Mr Tekosis sworn on 12 November 2010. His Honour said: “And then there’s another one 16 November 2010”. His Honour said: “Well, that’s all of the material that was identified by Mr Battley on behalf of the mother”.
Somewhat presciently Mr Letsos said to his Honour:
[Mr Letsos]: Your Honour, would it be appropriate, I don’t know if legally or thing, but it would it be appropriate for me to request or ask if the court can contact [Ms Vakros] and ask her to come back…
His Honour noted that the mother had decided to leave and not return but said that the Independent Children's Lawyer might make a phone call to her.
Mr Letsos then said:
[Mr Letsos]: If there’s an attempt like that on the record, at least we’ve done and the court has done everything in their power to try and get [Ms Vakros] to come back to prosecute her case, and we don’t want to be said that we didn’t – no one gave her the opportunity to prosecute her case.
The Independent Children's Lawyer indicated that she would try to contact the mother and his Honour stood the matter down. On resumption, the Independent Children's Lawyer told his Honour that she had attempted to make contact with the mother but the phone rang out and went to a voice mail that only allowed the caller to leave a phone number but not a message.
His Honour reminded Mr Letsos that when the matter concluded on 9 February 2011, there remained outstanding cross-examination on some issues. Mr Letsos indicated that he had no documents to produce and his Honour observed that, in that event, the cross-examination was concluded.
On the issue of the affidavits filed in the mother’s case, the Independent Children's Lawyer said that she “assumed” that his Honour would read all three affidavits identified in the mother’s case.
Mr Letsos reiterated his objection to the mother’s affidavit on the basis that she was not available to be cross-examined. He made no objection to Mr Tekosis’ affidavit being read in the proceedings.
His Honour then said to the Independent Children's Lawyer:
...Well, Ms Weate, do you say anything because I’m minded to – as far as the affidavit of [Ms Vakros] is concerned, the one with the six paragraphs, I’m minded to reject that affidavit. The affidavit of [Ms Vakros] with the 20 paragraphs in it, [Mr Letsos], what do you say about that, bearing in mind that paragraph deposes to a relationship with you?
His Honour then said:
His Honour: Is there an agreement between the parties as to what parts of [Ms Vakros’] affidavit I should read?
Ms Weate: Well, certainly, the most relevant paragraph there is paragraph 5.
His Honour: Yes.
Ms Weate: Where she admits to having a relationship during the relevant time.
His Honour: So if I read paragraph 5 of that?
[Mr Letsos]: Yes, your Honour.
His Honour: And then paragraph 7 she refers to:
At the time I first met [Mr Tekosis] my relationship with the applicant was breaking down. I had, by that time, separated from the applicant several times for short periods.
Do the parties want me to read that sentence?
Both the Independent Children's Lawyer and Mr Letsos agreed
His Honour then turned to paragraph 8 of that affidavit and enquired of the parties whether it was to be read. Neither the Independent Children's Lawyer nor Mr Letsos expressed a view and his Honour indicated that he would read the first sentence of paragraph 8 which reads:
I had not previously disclosed this because I am afraid that the Applicant will harass, threaten and abuse and assault [Mr Tekosis].
It seems that the affidavits of the mother to which his Honour was referring was one filed on 11 March 2011 comprising six paragraphs and one filed on 16 November 2010 comprising 20 paragraphs.

His Honour then said:
His Honour: Paragraph 12, anybody?
Ms Weate: Your Honour, that’s different to what the father – what the applicant says.
His Honour: Yes. It is, but it also says that whilst he has never had significant time. He must have had some time.
His Honour indicated that he would read paragraph 12 and the first sentence of paragraph 14 to which neither the Independent Children's Lawyer nor Mr Letsos took objection. His Honour again noted that there was no objection to his reading the affidavit of Mr Tekosis.
In written submissions, counsel for the mother argued that: “His Honour inappropriately… suggested that certain paragraphs of the appellant’s affidavits should be ‘read’ (i.e. not objected to)”.
There follows an abbreviated extract from the transcript and the submission continued:
Notwithstanding that no further ‘objections’ were not taken (sic) by either the ICL or the respondent, His Honour ignored paragraphs 15-20.
In the proceedings on 26 September 2011 Mr Letsos relied on an affidavit sworn by him on 25 September 2011. It was argued that his Honour placed too much weight on this affidavit of Mr Letsos when he had not been cross-examined on the contents.
It was also argued that his Honour placed insufficient weight on a statutory declaration sworn by Mr Tekosis asserting he was the father of the child. Although it was argued that the statutory declaration was tendered in the proceedings by the Independent Children's Lawyer, there is no record in the appeal books of that document as an exhibit. In any event, nothing turns on this point.
It is apparent that the Federal Magistrate had before him an affidavit of Mr Tekosis in which he asserted that he was in no doubt that the child regarded him as her father. Mr Letsos took no objection to the Federal Magistrate considering that affidavit in the proceedings.
In our view, it was a matter entirely within the Federal Magistrate’s discretion to what extent he had regard to the material before him, and as we have indicated, he considered the mother’s affidavit to the extent that it was not subject to controversy. We do not accept the assertion in the submissions that his Honour took an inappropriate course. Far from indicating to the Independent Children's Lawyer and Mr Letsos the parts to which “objection” should not be taken, the Federal Magistrate was indicating those parts to which he would have regard given Mr Letsos’ objection to the consideration of any affidavit on which the mother was not cross-examined.
Given the mother’s exit from the court and her failure to take any further role in the proceedings, it seems to us that his Honour would have been entitled, in the exercise of his discretion, to have no regard at all to the material filed by the mother.
As Kirby J said in Allesch v Maunz (2000) 203 CLR 172 at [35] speaking of the principle to afford a hearing:
35. It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made…
However, at [38] and [39] he said (footnotes omitted):
38. …it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39. Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
In our view, his Honour was perfectly entitled to have regard to some parts of the mother’s affidavit and not others as he did. Further to proceed to conclusion of the matter in the circumstances we have described could not and did not operate to deprive the mother of procedural fairness. She had been given an opportunity to be heard, she declined that opportunity. Given the attenuated nature of the proceedings, the extraordinarily extended cross-examination of Mr Letsos and the many times the matter had been before the court, his Honour was, respectfully, entirely correct in bringing the matter to a conclusion.
His Honour was well aware of his obligations to Mr Letsos as a self-represented litigant and sought, through the intervention of the Independent Children’s Lawyer, to identify the evidence relevant to the determination of the matter. Although Mr Letsos objected to the receipt of any evidence of either the mother or Mr Tekosis without their being available for cross-examination, his Honour admitted parts of their affidavits.
We find no substance in this particular of the ground.

Ground 3(iii): acting ultra vires by issuing a warrant for the appellant’s arrest

It was argued that his Honour acted “ultra vires” in issuing a warrant for the arrest of the mother. It is to be observed that the issue of the warrant occurred on 18 November 2011.
On 11 November 2011, Mr Letsos filed an application that the mother be dealt with for contempt and supported by an affidavit sworn on 13 November 2011. The matter came before his Honour on 18 November 2011.
After ascertaining that Mr Letsos had personally served the documents on the mother, his Honour indicated that he was reluctant to deal with the contempt application in her absence. Over the objections of Mr Letsos, his Honour foreshadowed that he would relist the matter shortly and order that the mother personally attend the court, and if she did not he would issue a warrant for her arrest but that the warrant would lie in the registry to be executed forthwith on her non-compliance.
His Honour ordered (inter alia):
(1) That the applicant father be given leave to amend the Contempt Application filed on 11 November 2011 at paragraph 4 with respect to the date of the alleged contempt to read “4 October 2011 and continuing”.
(2) That the Amended Contempt Application be served on the respondent mother.
(3) That the respondent mother personally attend this Court on 24 November 2011 and bring with her the child, [X] born in January 2007 (“the child”), and deliver her at 10.00am on that day to the Director of Child Dispute Service or her nominee to facilitate the father spending time with the child in the presence of a child care worker at the child care facility on level 2, in accordance with the orders made on 26 September 2011, for a period of no less that (sic) 2 hours.
…
(5) That the Contempt Application filed 11 November 2011 and the Application in a Case filed 15 November 2011 be adjourned to 1 December 2011 at 9.30am for mention.
(6) The respondent mother personally attend on the adjourned date of 1 December 2011 at 9.30am referred to in order 5 above.
…
(8) A warrant for the arrest of the mother issue forthwith but lie in the Registry to be executed if the mother fails to comply with any of orders 3, 6 and 7 above.
His Honour delivered reasons for his decision, he said at [7]:
7. The Court, at first blush, having read the affidavit of the applicant, is most concerned by the correspondence attached to that affidavit, said to have been sent to him by the respondent mother. The Court in the circumstances, until the respondent mother attends personally, can make no findings, as the respondent mother needs to be afforded procedural fairness to deal with that application and potentially to have the benefit of some legal advice. However, the Court is concerned that the respondent mother has not attended today to answer the Contempt Application. Accordingly, the Court considered whether it issued an immediate warrant for the arrest of the mother or whether it made an order that she personally attend Court and only upon non-compliance with that order would a warrant issue.
Turning to the written submissions on this point, it was argued that his Honour issued the warrant based on an application for contempt that was to be, on his Honour’s directions, amended and served personally on the mother. It was thus argued that the warrant was issued in relation to an application for contempt that had not then been served on the mother. We reject that argument.
His Honour was satisfied that the mother had been personally served with the Contempt Application and affidavit of Mr Letsos. She did not appear. A reading of the transcript of that day makes it clear that his Honour’s decision to issue a warrant was based on his order that she personally attend the next hearing date. Whether an amended application for contempt was ordered to be filed and personally served is immaterial.
It was further argued that “Section 65Q empowers the court to issue a warrant for the arrest of an alleged offender. It specifies the offences to which it is limited; s.112AP Applications (i.e. contempt applications) are not captured by s.65Q”.
We take this argument to be that the only power residing in the court to issue a warrant is found in s 65Q of the Act. We reject that argument.
His Honour was exercising power under the Federal Magistrates Court Rules 2001 (Cth). Rule 25B.03 is in the following form:
25B.03 Failure of respondent to attend
If a respondent fails to attend the hearing of the application in person or by a lawyer, the Court may:
(a) determine the proceeding; or
(b) issue a warrant for the respondent’s arrest to bring the respondent before a court; or
(c) adjourn the application.
In our view, his Honour had the power necessary to issue a warrant for the arrest of the mother if she failed to attend pursuant to his orders.
As part of the submission on this particular of ground 3, the Full Court was “invited to peruse the correspondence referred to” in his Honour’s decision. Since there was no challenge in this ground to his Honour’s findings of fact supporting his decision, we see no utility in accepting the invitation. The argument advanced in the written submissions was that the order that a warrant issue and lie in the Registry was beyond power.
Finally, we observe that although his Honour ordered that a warrant issue, it was never executed and that order was vacated on 23 December 2011.

Ground 3(ii): making interim parenting orders when such issues were not before the court

From the first application filed by Mr Letsos, he sought orders for spending time with the child. With the various amended applications, the form of order sought may have been varied, but, essentially he maintained from the outset that he wished to spend time with the child. Little of the affidavit material before his Honour referred to matters directed to the making of parenting orders. However his Honour had some evidence of the fact that Mr Letsos had spent time with the child with the consent of the mother, albeit, in her assertion, not “significant time”. Mr Letsos’ affidavit gave detail of that time.
At the conclusion of the hearing on 26 September 2011, having determined to make the declaration as to parentage in favour of Mr Letsos, his Honour considered whether to proceed and make other parenting orders.
At [48] and [49] of the reasons for judgment of 26 September 2011, his Honour said
48. If the respondent had attended today, and if the matter had progressed to a two‑day hearing with a decision following that, it is likely that the Court would then have set the matter for further determination of any time if the Court declared that the applicant was, indeed, the father. That matter would have been the subject of some directions, with the respondent’s input. However, the respondent, by removing herself from the Court today, has prevented that occurring without, what could only be regarded as, a substantial delay in the applicant being able to progress that matter.
49. In those circumstances, the Court is of the view that the orders proposed by the Independent Children’s Lawyer and agreed to by the applicant, are in the best interests of the child, going forward, in that they provide a supervised environment for the father to spend some time. They will, accordingly, assist the father in developing a relationship with the child. Further, they assist that in a safe and secure way, where the child’s time with the father can be assessed by supervisors and the subject of appropriate recording. Further, they deal with the conceded matters that the father has referred to in the memorandum report, which would indicate that some supervision, at least at this stage, would be in the child’s best interests.
His Honour’s orders in relation to the child were made on an interim basis and provided for two hours of supervised time to be spent with the child each week and, as his Honour observed at [45]:
45. …The Court is of the view that the position adopted by the respondent – namely, opposing orders for any parentage testing, which necessitated a long hearing process, where the applicant was cross‑examined at length over many days, only to give rise to orders for there to be parentage testing, and then not to comply with those orders, requiring the applicant to further progress a declaration for parentage proceedings – is evidence of the respondent seeking to avoid the engagement of any relationship between the child and the applicant…
Before us it was argued that in making parenting orders on 26 September 2011: “[t]he appellant was deprived of the opportunity of putting evidence before the court in respect of the parenting orders. Further, she was deprived of a hearing. Audi alteram partem”.
The argument that the mother was deprived of an opportunity to put evidence to the court needs to be examined in the context of this case.
In her responses to Mr Letsos’ applications, the mother sought no order other than the application be dismissed. As we have indicated there was in the evidence before his Honour some evidence that Mr Letsos had spent time with the child, and, as his Honour noted at [38]:
38. Nevertheless, the respondent does not deny that the applicant had spent some time with the child. What she asserts, is that the applicant had spent no significant time. The respondent’s position, seems to be that it is her view, that it is in the best interests of the child that the applicant simply have no relationship with the child. It would appear that she has taken steps throughout the conduct of these proceedings, to seek to achieve that end.
With considerable hesitation we have come to the view that this argument has some merit. It seems from a reading of the transcript and his Honour’s reasons that the hearings both in February and September were directed to Mr Letsos’ application for a declaration of parentage. The opening words of paragraph 2 of his Honour’s reasons of 26 September 2011 put that beyond doubt:
2. The Court deals today with the adjourned hearing of the applicant’s application for a declaration of parentage in respect of the child [X] born in January 2007 (“the child”), currently aged 4 years. The hearing commenced on 8 and 9 February 2011…
Further, his Honour was clearly aware that the matter had been listed for consideration of the declaration of parentage only. At [47] he said:
47. …The Court is now in a position where it must make the declaration that the applicant seeks. The Court must consider the issue of interim time. On one view, and the Court raised this with both the applicant and the Independent Children’s Lawyer, the matter was set down simply for the parentage declaration proceedings today. The Court directed both the applicant and the Independent Children’s Lawyer to those orders that specifically referred to that matter.
We have significant reservations that, had the hearings in February and September 2011 concerned both the application for declaration and contact orders, the mother’s approach and conduct would have been any different. The transcript of the matter well supports his Honour’s conclusions about the mother reflected in paragraph 38 of his reasons.
However, on this point only, we are of the view that his Honour erred such that the matter should be remitted to the Federal Magistrate’s Court for hearing on the question of the parenting orders.
Although we accept the error to which Ground 1 points, we are of the view that when the whole of the evidence before his Honour is considered, there was abundant evidence from which his Honour could and did comfortably make the declaration of paternity in favour of Mr Letsos.
We note that there was no challenge to any of his Honour’s findings of fact made either in August 2009 or in September 2011 and the challenges as articulated in the grounds of appeal asserted that his conclusions were contrary to the evidence.
We therefore propose to allow the appeal in relation to the parenting orders but otherwise dismiss it.
At the commencement of the appeal hearing counsel for the mother handed to the Full Court two documents entitled “Submission – Points on ‘reasons for Judgment’ 25 August 2009” and “Submission – Points on ‘reasons for judgment’ 26 September 2011”. Neither document had been received by Mr Letsos and each was received by us as an aide memoir to the submissions of the mother on the appeal. Each document comprised a paragraph by paragraph analysis of his Honour’s reasons for decision and raised various criticisms of the reasons. First, since there had been no appeal against the orders and determination of 25 August 2009 we can see no basis in our receiving that document and we have paid it no regard.
The document relating to the Reasons of 26 September 2011, refers to various paragraphs in the reasons but as far as we can see makes no attempt to relate such submissions as appear in it to any propounded ground of appeal. It seems to be a commentary on his Honour’s reasons. Further, some of the commentary, at least on its face seems to attempt to raise new grounds of appeal. By way of example, at [3] and [4] it is asserted:
3. The court says the “mother’s failure gives rise to an inference that the applicant is the father”. Please see AB3:699-702
4.The court says “such an inference would appear just in the circumstances of this matter”: AB1:31 para. 5.
The word “would” implies a conditional finding not an absolute one. Moreover, the court does not indicate what circumstances exist to justify the drawing of the inference. Please see AB3:699-702
This appears to raise a new ground of appeal, namely that his Honour’s decision to draw the inference referred to was unsupported by the evidence or that his reasons for so doing were insufficiently exposed. Whatever the point sought to be made in this document, it is not in aid of the grounds of appeal and we did not have regard to it.

Applications to Adduce Further Evidence

The circumstances in which leave may be given on an appeal to adduce further evidence are well known. In CDJ v VAJ (1998) 197 CLR 172 McHugh, Gummow and Callinan JJ said at page 20:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

At page 202, their Honours continued:
…Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
The further evidence that both the mother and Mr Tekosis would put before this court if leave be given is material that each was able to put before the Federal Magistrate. If that were not done, it was by reason, not of any incapacity but a decision not to do so. Indeed a deal of what the mother seeks to say in the further evidence was before the court in her earlier affidavit.
We are of the view that, having regard to the principles to which we have referred, there is nothing in the affidavits which meet the requirement for leave. We will dismiss the applications in the appeal.

Costs

As is customary we sought submissions as to costs from both parties. As Mr Letsos appeared for himself, any costs order made in his favour would be limited to certain disbursements.
However, given that the appeal was substantially unsuccessful we see no reason but to order that the mother pay Mr Letsos’ costs to the extent that he has a valid claim.
We do however propose to grant to each party a certificate limited only to the re-hearing of the parenting aspect of the matter.

I certify that the preceding two hundred and thirty one (231) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Murphy JJ) delivered on 16 March 2012.

Associate:

Date: 16 March 2012