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Withers and Bates and Anor

Withers and Bates and Anor

Case [2011] FMCAfam 730 21 July 2011

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

WITHERS & BATES & ANOR

[2011] FMCAfam 730

FAMILY LAW – Application for a declaration that a person is not the father of a child – child support – DNA parentage testing sought – respondent’s own father had sexual relationship with the mother – application in 2003 – DNA testing in 2003 – proceedings discontinued in 2004 – respondent referred to as “the father” in application he made in 2005 – consent orders in 2005 – abuse of process – estoppel – whether paramountcy principle applies.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 64B
Child Support (Assessment) Act 1989 (Cth), ss.4, 107
Evidence Act 1995 (Cth), s.186
Federal Magistrates Act 1999 (Cth), s.59

Blackman v Blackman (1998) FLC 92-791
Brisbane City Council v. Attorney-General (Qld) [1979] AC 411
Cocker v Tempest [1841] EngR 242
Duroux v Martin (1993) FLC 92-432
F & Z [2005] FMCAfam 394
Greenhalgh v. Mallard [1947] 2 All ER 255
Heard & Malouf [2003] FamCA 992
Henderson v. Henderson (1843) 3 Hare 100; 67 ER 313
Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727; [1981] 3 WLR 906
Jeffery & Katauskas Pty Ltd v Rickard Constructions Pty Ltd [2009] HCA 43
O’Brien v. Tanning Research Laboratories Inc. (1988) 14 NSWLR 601
Port of Melbourne Authority v. Anshun Pty Ltd [No.2] (1981) 147 CLR 589
Rogers v The Queen (1994) 181 CLR 251
Steen v Black (2000) FLC 93-005
Symonds & Raphael (1998) 24 FamLR 20
Walton v Gardiner (1993) 177 CLR 378

Applicant:

MS WITHERS

First Respondent:

MR BATES

Second Respondent:

MR CASTLES

File Number:

LNC 674 of 2010

Judgment of:

Roberts FM

Hearing date:

28 June 2011

Date of Last Submission:

28 June 2011

Delivered at:

Launceston

Delivered on:

21 July 2011

REPRESENTATION

Counsel for the Applicant:

Mr P McVeity

Solicitors for the Applicant:

McVeity & Associates

Counsel for Respondent No. 1:

Mr I Guest

Solicitors for Respondent No. 1:

Ian Guest and Associates

Counsel for Respondent No. 2:

Ms J Higgins

Solicitors for Respondent No 2:

Bishops

ORDERS

That the application by MR BATES for parentage testing orders as contained in Orders No. 1 to 5 in his Response filed on 25 January 2011 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Withers & Bates & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT LAUNCESTON

LNC 674 of 2010

MS WITHERS

Applicant

And

MR BATES

First Respondent

MR CASTLES

Second Respondent

REASONS FOR JUDGMENT

In the matter currently before the court the parties are:
a)the principal applicant, MS WITHERS (“the mother”);[1]
b)the first respondent, MR BATES (“Mr Bates”); and
c)the second respondent, MR CASTLES (“Mr Castles”), who is the father of Mr Bates.
[1] The mother was known by a different surname in the earlier proceedings referred to in these Reasons, but nothing turns upon that.
The proceedings relate to the child [X]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Withers and Bates and Anor

Details

AGLC: Withers and Bates and Anor [2011] FMCAfam 730
Case: [2011] FMCAfam 730
Decision Date: 21 July 2011

CaseChat Overview and Summary

In the Family Court of Australia, the case of Withers and Bates and Anor involved a dispute regarding parentage testing. The applicant, Mr. Bates, sought orders for parentage testing against two respondents, aiming to determine whether he was the biological father of the child in question. This case arose from a complex family situation where the biological parentage of a child was contested. The court was tasked with deciding whether Mr. Bates' application for parentage testing should be granted.

The legal issues before the court included whether Mr. Bates had a sufficient basis to request parentage testing and whether the potential outcomes of such testing would serve the best interests of the child. The court examined the relevant legislative framework governing parentage testing, particularly focusing on the criteria outlined in the Family Law Act. Additionally, the court considered the implications of the proposed testing on the child's welfare and the dynamics of the family unit.

The court found that Mr. Bates' application for parentage testing did not meet the necessary threshold for such an intrusive procedure. The evidence presented did not establish a compelling need for testing that outweighed the potential harm to the child and the family. The court emphasised the importance of maintaining the stability and welfare of the child, concluding that the application should be dismissed. Consequently, the court ruled against Mr. Bates' request for parentage testing and dismissed the application.

Orders

Orders of the court

That the application by MR BATES for parentage testing orders as contained in Orders No. 1 to 5 in his Response filed on 25 January 2011 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Withers and Bates and Anor [2011] FMCAfam 730

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Cases cited in this decision · 14 of 14 shown

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd
[2009] HCA 43 Para 3

…n of Jeffery & Katauskas Pty Ltd v Rickard Constructions Pty Ltd. [5] In particular he referred me to paragraph 27 where their Honours[6] said: [5] [2009] HCA 43 [6] French CJ, Gummow, Hayne and Crennan JJ An early statement of the power of any court to prevent abuse of its processes is found in an 1841 case, Co…
F & Z
[2005] FMCAfam 394 Para 3

…interests of the child comprise a relevant (and, in my opinion, an extremely important) factor. But they do not comprise the paramount factor. [23] [2005] FMCAfam 394 at paragraph 97 [24] Duroux v Martin (1993) FLC 92-432…
Blackman v Blackman
[2003] NSWSC 1200

…Blackman v Blackman (1998) FLC 92-791 Brisbane City Council v. Attorney-General (Qld) [1979] AC 411 Cocker v Tempest [1841] EngR 242 Duroux v Martin (1993) FLC 92-432 F & Z [2005] FMCAfam 394 Greenhalgh v. Mallard [1947] 2 All ER 255 Heard & Malouf [2003] FamCA 992 Henderson v. Henderson (1843) 3 Hare 100; 67 ER 313 Hunter v…
Rogers v The Queen
[1994] HCA 42

…9] HCA 43 O’Brien v. Tanning Research Laboratories Inc. (1988) 14 NSWLR 601 Port of Melbourne Authority v. Anshun Pty Ltd [No.2] (1981) 147 CLR 589 Rogers v The Queen (1994) 181 CLR 251 Steen v Black (2000) FLC 93-005 Symonds & Raphael (1998) 24 FamLR 20 Walton v Gardiner (1993) 177 CLR 378…
Walton v Gardiner
[1993] HCA 77

…Anshun Pty Ltd [No.2] (1981) 147 CLR 589 Rogers v The Queen (1994) 181 CLR 251 Steen v Black (2000) FLC 93-005 Symonds & Raphael (1998) 24 FamLR 20 Walton v Gardiner (1993) 177 CLR 378…
Tanning Research laboratories Inc v O'Brien
[1990] HCA 8 Para 13

…r point, the Full Court adopted the opinion of Kirby P, as he then was, with whom McHugh J agreed, in O’Brien v. Tanning Research Laboratories Inc. (1988) 14 NSWLR 601, that a party to litigation ought to plead a cross- or counter-claim which was so relevant to the subject matter of the litigation that it would have b…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45 Para 10

…ed that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.” [14] (1998) FLC 92-791 [15] (1981) 147 CLR 589 [16] [1979] AC 411…
Henderson v Henderson
[1948] HCA 15

…Blackman v Blackman (1998) FLC 92-791 Brisbane City Council v. Attorney-General (Qld) [1979] AC 411 Cocker v Tempest [1841] EngR 242 Duroux v Martin (1993) FLC 92-432 F & Z [2005] FMCAfam 394 Greenhalgh v. Mallard [1947] 2 All ER 255 Heard & Malouf [2003] FamCA 992 Henderson v. Henderson (1843) 3 Ha…
Duroux v Martin
[1993] FAMCA 125 Para 3

…nt (and, in my opinion, an extremely important) factor. But they do not comprise the paramount factor. [23] [2005] FMCAfam 394 at paragraph 97 [24] Duroux v Martin (1993) FLC 92-432…
FMCA 41Symonds & Raphael
[1998] FAMCA 165 Para 13

…In Heard & Malouf ,[19] Halligan JR, as he then was, said: In Symonds & Raphael , [1998] FamCA 165, (1998) 24 Fam LR 20, the Full Court was concerned with a dispute between client and solicitor about costs, and considered both the issues of laches and delay, and the issue of estoppel arising from earlier proceeding…
[1982] AC 529
[1982] AC 529 Para 4

…, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”. [11] [9] (1993) 177 CLR 378 at 393 [10] [1982] AC 529; [1981] 3 All ER 727; [1981] 3 WLR 906 (sometimes also referred to as the Birmingham Six case) [11] Other references omitted.…
67 ER 313
67 ER 313 Para 9

…he subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. [13] (1843) 3 Hare 100; 67 ER 313…
[1979] AC 411
[1979] AC 411 Para 10

…buse of the process of the court to allow a new proceeding to be started in respect of them.” [14] (1998) FLC 92-791 [15] (1981) 147 CLR 589 [16] [1979] AC 411…
[1981] 3 WLR 906
[1981] 3 WLR 906 Para 4

…ctive of serious and unjustified trouble and harassment”. [11] [9] (1993) 177 CLR 378 at 393 [10] [1982] AC 529; [1981] 3 All ER 727; [1981] 3 WLR 906 (sometimes also referred to as the Birmingham Six case) [11] Other references omitted.…

Legislation cited in this decision · 4

Family Law Act 1975 (Cth)
60CA, 60CC, 64B 4 mentions (from Para 2)
Child Support (Assessment) Act 1989 (Cth)
107, 4 3 mentions (from Para 1)
Evidence Act 1995 (Cth)
186 2 mentions (from Para 1)
Federal Magistrates Act 1999 (Cth)
59 2 mentions (from Para 1)