Withers and Bates and Anor
[2011] FMCAfam 730
•21 July 2011
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] born [in] 1994 (“the child”).
Background
On 19 November 2003 Mr Bates filed an application in this Court in which he sought a declaration pursuant to Section 107 of the Child Support (Assessment) Act 1989 that he was not a person liable to pay child support for the child (“the first application”).[2] That application was listed for initial mention on 27 January 2004.
[2] See Annexure “A” to the mother’s affidavit filed 16 February 2011
In support of the first application Mr Bates filed an affidavit in which he stated that he had doubts about the paternity of the child because the mother had confided in him that she had been involved in a sexual relationship with his own father.
Mr Bates and the child underwent DNA paternity testing and the report of those tests dated 2 December 2003 showed that Mr Bates’s relative chance of paternity was 99.998%. That report also noted that a “close blood relative of the putative father (eg brother) may have a similar chance of paternity”.[3]
[3] See Annexure “C” to that affidavit
On 12 January 2004 Mr Bates filed a Notice of Discontinuance in relation to all of the orders sought by him in the first application. The matter was removed from the list on 27 January 2004.
Court records reveal that on 18 February 2005 Mr Bates made an application for consent orders in the Family Court of Australia (“the second application”). The orders sought were made by consent on
23 February 2005 (“the consent orders”).
The consent orders were drawn up by Mr Bates’s then solicitors. They referred to Mr Bates as “the father” and, inter alia, made provision for the child to “reside with the father and the mother on a shared basis with alternate weeks with either parent”.
On 28 October 2010, the mother filed an application in this Court (“the third application”) seeking orders as follows:
1. That Orders made 23 February 2005 be discharged.
2. That the Mother and Father have equal shared parental responsibility for (the child).
3. That (the child) reside with the mother.
4. That (the child) spend time and communicate with the Father as agreed between the Father and (the child) from time to time.
5. That the Court declares that (the child) has resided with the Mother as and from 21 December 2006.
Mr Bates filed a Response to the third application on 25 January 2011. He named his own father (Mr Castles) as the second respondent and sought an Order as follows:
That pursuant to section 107 of the Child Support (Assessment) Act 1989 it be declared that the first named Respondent … is not liable for administrative assessment of child support in regards to the child …, on the basis that the first named Respondent is not the father of the said child.
He also sought orders that would require him, the mother, the child and his own father to take part in DNA parentage testing, in addition to specific orders about how that parentage testing should be funded.
On 7 March 2011 Mr Castles filed a response and affidavit. At that time he was not represented by a lawyer, but it was clear that he was opposed to the parentage testing orders sought by his son, Mr Bates.
In Burnie on 22 March 2011 Federal Magistrate Turner set down the parentage testing application in Mr Bates' Response for hearing before me in Launceston on 28 June 2011.
Mr Bates filed a further affidavit on 15 June 2011. In that affidavit, he said:
7. (The child)’s parentage has been an issue between (the mother), my father and I since her birth. (The mother) and I had made agreements about (the child)’s residential arrangements and child support issues even though the issue of her biological parentage has never been properly addressed.
Mr Castles instructed solicitors and they filed his Amended Response on 16 June 2011. That simply sought that the orders in Mr Bates' Response be dismissed “as far as they relate to the second named respondent” and an order for costs against Mr Bates. That Amended Response was supported by an affidavit in which Mr Castles admits to having had sexual intercourse with the mother on two occasions, firstly “in or about July/August 1993” and secondly “around Christmas time” in December 1993. He says that Mr Bates did not raise the issue of the child’s paternity with him until 2003 or 2004.
The scientific evidence
At the start of the hearing I raised the fact that Mr Bates had not filed any expert evidence in support of his case. In relation to that, his counsel then filed an affidavit that had been sworn at Adelaide the previous day by Professor L, a South Australian forensic scientist. [4]
[4] It appears that the legal practitioner before whom Professor L swore his affidavit may not have been in Adelaide at the time that the affidavit was sworn. Section 186 of the Evidence Act 1995 provides that affidavits for use in an Australian court exercising federal jurisdiction may be sworn before any Australian lawyer without the issue of any commission for taking affidavits (my emphasis). Section 59 of the Federal Magistrates Act 1999 also uses the word “before” in relation to swearing or affirming affidavits. I hold the view that the word “before” requires a deponent to be physically in the presence of the person before whom an affidavit is being sworn, and consequently, an affidavit cannot be sworn over the telephone. However, I have not taken that into account in deciding this matter.
Professor L’s affidavit says this at the last sentence:
If the Court wishes to address whether (Mr Castles) is, or is not, the biological father of (the child) then this can only be addressed by obtaining a DNA profile from all concerned.
However, it is my view that the question of whether the Court should order the “obtaining a DNA profile from all concerned” is one that only needs to be considered if Mr Bates is allowed to continue with the application contained in his Response filed 25 January 2011.
Abuse of process or estoppel?
Also at the start of the hearing I queried whether Mr Bates' Response was an abuse of process, or alternatively, whether he was estopped by the earlier proceedings from proceeding further with his Response.
I raised those issues because:
·Mr Bates was raising an issue that he had raised in litigation before;
·he obtained DNA testing results which gave him a relative chance of paternity of 99.998%;
·he then discontinued that earlier litigation; and
·he had subsequently been the applicant in the second application, in which he had signed documents describing himself as “the father”.
I indicated that Mr Bates’s counsel needed to persuade me that
Mr Bates should be allowed to proceed with his Response.
After an adjournment to consider the matters that I had raised,
Mr Bates’s counsel referred me to the High Court decision 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, Cocker v Tempest:[7]
“The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice.”
That statement foreshadowed the contemporary approach in the United Kingdom and Australia which takes no narrow view of what can constitute “abuse of process”. Nevertheless, certain categories of conduct attracting the intervention of the courts emerged in the 19th and 20th centuries and included:
“(a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
(b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
(c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.”[8]
[7] [1841] EngR 242
[8] Other references omitted.
He also referred me to paragraph 28, where their Honours went on to say:
The term “abuse of process”, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed. In Walton v Gardiner[9] the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police[10] that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be “manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people”. This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are “seriously and unfairly burdensome, 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.
Mr Bates’s counsel sought to persuade me that raising the issue the child’s paternity does not constitute an abuse of process of the types set out in the paragraphs referred to immediately above.
He further submitted that Mr Bates is not estopped by his earlier actions from raising the issue of paternity now.
However, Mr Castles’s counsel responded by referring me to the decision of O’Ryan J in Steen v Black,[12] where his Honour said:
[12] (2000) FLC 93-005
In Halsbury’s Laws of Australia the learned editors said at p 359,104, pa [190-165]:
“The doctrines of res judicata and issue estoppel have been extended to apply to matters which were not raised in the prior proceedings but which could and should have been raised. There will be an estoppel where the matter relied upon in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it there. The test of unreasonableness is to be preferred to one that considers whether it would be an abuse of process to raise the matter in the second action. It is insufficient that the matter could have been raised in the earlier proceedings; it must have been unreasonable not to have done so.”
I consider that to be a correct statement of the law. However, I consider it appropriate to refer to other decisions as well.
In Steen v Black, O’Ryan J also referred to the 1843 English decision of Henderson v. Henderson.[13] In that decision Sir James Wigram VC had said:
… where a given matter becomes the subject of litigation in, and adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the 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
At paragraph 5.35 of Blackman v Blackman,[14] Ellis, Lindenmayer and Gun JJ said:
In Port of Melbourne Authority v. Anshun Pty Ltd [No. 2] (supra)[15] Gibbs CJ, Mason and Aickin JJ, after analysing numerous cases, in England, Australia and the United States, in which Sir James Wigram's dictum has been the subject of comment, approval and attempted refinement, referred (at 602) to a statement by Somervell LJ in Greenhalgh v. Mallard [1947] 2 All ER 255 at 257 (which, they said, had been recently approved by Lord Wilberforce in Brisbane City Council v. Attorney-General (Qld) (supra)[16] at 425), in which his Lordship said:-
“res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but ... it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised 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
In the High Court decision in Walton v Gardiner,[17] Mason CJ, Deane and Dawson JJ said:
…proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
[17] (1993) 177 CLR 378
In Rogers v The Queen, Mason CJ said:[18]
The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to a fixed category.
[18] (1994) 181 CLR 251 at page 255
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 proceedings between the same parties. In relation to the latter 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 been unreasonable not to plead it. Failure to do so means that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.
[19] [2003] FamCA 992
Mr Bates’s counsel suggested that it was significant that Mr Bates is a respondent to the mother’s application. In my view, in relation to abuse of process or estoppel, it makes no difference whether one is the applicant or the respondent.
I am also of the view that the mother’s apparent acquiescence in relation to undergoing parentage testing (even though she is unwilling to pay for it) has no bearing upon whether Mr Bates' Response is an abuse of process or whether he is estopped from proceeding further.
When I consider the matters referred to above, I conclude that, subject only to the paramountcy principle referred to below, Mr Bates should not be allowed to proceed with his application for parentage testing orders. I am further of the view that it matters little whether one uses the terms “abuse of process” or “estoppel”.
Mr Bates instituted proceedings in 2003 at a time when he said that the issue of paternity of the child was of concern to him. He referred then to his doubts about the paternity of the child and to the fact that his father had been involved in a sexual relationship with the child’s mother. He organised DNA testing which showed that his relative chance of paternity was 99.998%, and he was told in the report of that testing that a close blood relative could have a similar chance of paternity. He chose to discontinue those proceedings and a little more than a year later he was the applicant in proceedings for parenting orders in which he and his solicitor signed documents which identified him as the child’s father. In my view, subject only to what I say below about the paramountcy principle, he cannot now raise an issue that he was fully aware of in 2003/04 and chose not to pursue at that time.
The paramountcy principle
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[20].
[20] Section 60CA
In his submissions to me, Mr Bates’s counsel stated that the court’s overriding duty was to promote the best interests of the child. He suggested that the child needs certainty in relation to her paternity and that the best interests of the child would be promoted by ordering the parentage testing sought by Mr Bates. I must admit that I found that submission to be interesting when one considers that Mr Bates’s affidavit mentions absolutely nothing about why parentage testing would be in the child’s best interests. Indeed, it is quite clear from
Mr Bates’s affidavit that he is seeking parentage testing orders only in relation to his liability to pay child support.[21] At paragraph 9 of his affidavit filed 15 June 2011, he said:
I agree with the Orders 1 - 4 sought in (the mother)’s Application. I do not agree to Order 5 which seeks a retrospective change to the Orders. I believe (the mother) is attempting to obtain back dated child support despite the child support agreement that was registered with the agency. I am content to contribute to (the child)’s financial support however, given there is uncertainty regarding (the child)’s parentage I seek an Order for the completion of a paternity test before such time as there is further discussion about financial support.
[21] It is also clear from the first order sought in his Response.
That simply repeats what he had said in an earlier affidavit.
It is also reasonable to conclude (as Mr Bates has done) that the fifth order sought by the mother relates to payments of child support. It therefore follows from what the father has said (as quoted above) that the only issue in contention between the mother and Mr Bates relates to child support payments. It is also clear that orders made under the Child Support (Assessment) Act 1989 are not parenting orders under the Family Law Act 1975.[22]
[22] See the note to Paragraph (f) of sub-section 64B(2) of the Family Law Act 1975.
In F & Z, FM Walters said:[23]
Clearly, and notwithstanding the demise of terms such as custody, guardianship and access, the Full Court’s comment in Duroux & Martin holds true.[24] If the parentage testing sought pursuant to s.69W is a question in issue in proceedings for a particular species of parenting order, then the best interests of the child will be the paramount consideration. Where the substantive proceedings relate to an application for child maintenance or child support orders only, however, it is clear that the welfare or best 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
All counsel accepted that to be a correct statement of the law, and I do too. Consequently, consideration of the child’s best interests is not paramount in relation to the orders sought by Mr Bates.
Clearly, consideration of the child’s best interests is important in relation to the questions of how much child support is paid for a child. That can be clearly inferred from a reading of section 4 of the Child Support (Assessment) Act 1989. However, I am not being asked at this stage to determine what child support the mother should receive from Mr Bates. Indeed, I may never be asked to do so.
I am of the view that there is an onus upon Mr Bates to persuade me that the orders he seeks are in the best interests of the child. However, there is a complete dearth of evidence in his affidavits in relation to that, and his counsel’s attempt to bolster his submissions by referring to the best interests of the child was based upon generalisations and not upon any evidence before the Court. The simple fact is that the considerations referred to in section 60CC of the Family Law Act 1975 are just not addressed in either of Mr Bates’s affidavits.
In those circumstances, I am still of the view that Mr Bates should not be allowed to proceed with his application for parentage testing orders, and I will make orders to take account of that.
If there are to be any applications for costs arising from these Reasons, I will hear them at a time to be advised.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Roberts FM
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