Hill v Fruean
[2014] NZHC 682
•4 April 2014
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2013-404-004824
[2014] NZHC 682
UNDER The Status of Children Act 1969 AND Family Proceedings Act 1980 IN THE MATTER of an appeal in the Family Court at Auckland BETWEEN ALAN HILL Appellant AND DELPHINE MATILDA FRUEAN Respondent
| Hearing: | 11 March 2014 |
| Appearances: | G M Cameron for the Appellant |
| E B Parsons for the Respondent |
[1] Mr Hill seeks to appeal a recommendation made by the Family Court that he
undergo a paternity test. Ms Fruean says that such recommendations are not
appealable and that this Court therefore has no jurisdiction in the matter.
Background
[2] Ms Fruean has brought proceedings in the Family Court seeking a declaration
under s 10 of the Status of Children Act 1969 (the SCA) that Mr Hill is the father of
her adult son. Section 10 provides:
10 Declaration as to paternity
(1) In this section, eligible person means a person—
(a) who is a woman and who alleges that a named person is the father of her child; or (b) who alleges that the relationship of father and child exists between the person and another named person; or (c) who wishes to have it determined whether the relationship of father and child exists between 2 named persons, and has a proper interest in the result. (2) A Family Court or the High Court may make a declaration of paternity (whether the alleged father or the alleged child or both of
them are living or dead) if—
(a) an eligible person applies to the Court for the declaration; and (b) it is proved to the Court's satisfaction that the relationship exists. (3) A Court considering an application under subsection (2) may, either on its own initiative or on an application for the purpose by a party to the proceedings, make a declaration of non-paternity (whether the alleged father or the alleged child or both of them are living or dead) if it is proved to the Court's satisfaction that the relationship does not exist.
(4) If a declaration of paternity under subsection (2) is made after the death of the father or of the child, the Court may, at the same or any later time, make a declaration determining, for the purposes of section 7(1)(b), whether any of the requirements of section 7(1)(b) have been satisfied.
(5) If an application under subsection (2) is made—
(a) to a Family Court, the provisions of the Family Proceedings Act 1980 (except sections 47 to 50) apply to the application as if it were an application for a paternity order under section 47 of that Act: (b) to the High Court, the provisions of the Declaratory Judgments Act 1908 apply to the application. (6) Every question of fact that arises in applying any of subsections
(2) to (4) must be decided on a balance of probabilities.[3] Because the application was made to the Family Court rather than to this
Court, it is, in general terms, governed by the Family Proceedings Act 1980 (the
FPA). And in the present case the Family Court has made a recommendation under
s 54 of the FPA that a parentage test be carried out on Mr Hill and Ms Fruean’s son.[1]
Section 54 relevantly provides:
54 Parentage tests
(1) In any civil proceedings (whether under this Act or not) in which the
parentage of a child is in issue -
(a)
The Court may, of its own motion or on the application of a party to the proceedings, recommend that parentage tests be
carried out on –
(i) The child; and
(ii) Any person who may be a natural parent of the child
-
and that a report of the results be compiled, by a person who is qualified to compile such a report, and submitted to the Court; and
(b) Whether or not the Court has made a recommendation under paragraph (a) of this subsection, the Court may, of its own motion or on the application of a party to the proceedings, adjourn the proceedings in order to allow time for such parentage tests to be carried out and for such a report to be compiled and submitted to the Court.
[4] As I have said, counsel for Ms Fruean has challenged this Court’s jurisdiction
to hear an appeal from such a recommendation. The basis on which she does so is
that s 174 of the FPA does not permit such appeals. That section relevantly provides:
(1AA) This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act (other than criminal
proceedings or proceedings under section 130), to—
(a) make or refuse to make an order; or (b) dismiss the proceedings; or (c) otherwise finally determine the proceedings.
(1) A party to proceedings in which there is made a decision to which subsection (1A) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision. (1A) The High Court Rules and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under subsection (1) as if it were an appeal under section 72 of that Act. … [5] Although on the face of subs (1AA), s 174 applies only to proceedings under
the FPA, it governs appeals in proceedings such as the present, by virtue of s 10(5)(a)
of the SCA (above). By virtue of that provision, an application for a declaration of
paternity under s 10 is deemed to be an application for a paternity order under the
2
FPA.
[6] Ms Parsons for Ms Fruean challenges this Court’s jurisdiction to hear Mr
Hill’s appeal on the grounds that a recommendation made under s 54 does not
constitute an “order” in terms of s 174(1AA)(a) and thus cannot be appealed.
[7] Before considering the issue of jurisdiction in more detail, however, it is
necessary to say a little more about the factual context. It is somewhat unusual.
[8] As I have said, Ms Fruean’s son, in respect of whom she seeks the declaration
of paternity, is now an adult. He was born in 1987. Indeed, he now has a child of his
own. He supports his mother’s application and, indeed, would have standing under
s 10 to apply himself.
[9] In 1995, Ms Fruean made an application under the SCA s 10 for a declaration
that Mr Hill was her son’s father. The Family Court made a s 54 recommendation
3
that a blood test be carried out on the child and on Mr Hill in that context.
[10] On that occasion Mr Hill followed the recommendation and took the test.
The result was that he was said to have a zero per cent chance of being the boy’s
father.
[11] In the years that followed, it seems that the Family Court file relating to those
proceedings has been lost. Counsel’s files are also missing. It is accordingly not
known whether Ms Fruean’s s 10 application was formally abandoned at that point
or whether the matter just lapsed. But it is not in dispute that the results of the test
on that occasion were indeed negative.
[12] When the present, new application was brought by Ms Fruean, Mr Hill
challenged it on the grounds of res judicata. That issue was considered and rejected
4
| by Judge Maude in September 2011. | No appeal was filed against that decision. |
[13] The basis on which the fresh application has been advanced by Ms Fruean is
that there were various flaws in the testing processes adopted on the earlier occasion
and, she says, there is a real risk that the relevant sample taken from Mr Hill was
5
| contaminated. | The specific allegations by Ms Fruean were fully canvassed by |
6
| Judge Burns in his judgment dated 11 October 2013. | He concluded: |
[60] I certainly am fully aware of the significance of the outcome of this case for both parties and child. I have given considerable consideration to the facts of the case which are unique. I have reached the conclusion however because of the findings that I have made that the justice of the situation is best met by requiring the parties and the child (now an adult) to undergo a further DNA diagnosis in appropriately controlled circumstances to ensure the reliability of the outcome. I need to stress that the findings in this case are not to be regarded as any adverse comment on the expertise, reputation or experience of the three professionals involved in this case who have kindly provided evidence. I consider that the problems largely stemmed from the misunderstanding between the two lawyers as to which of the two laboratories were to provide the analysis. The instructions from Ms
Southwick’s firm meant that the respondent it appeared went to the wrong
laboratory. There were significant delays which caused issues of itself. Those delays have led to suspicion. If I do not order a further test the applicant will continue to harbor (sic) a strong sense of injustice for the rest of her life. It is likely that her son will also harbor (sic) that sense of injustice. This will fester away and be destructive. Whilst I understand that the respondent will feel a sense of injustice at the outcome to a large extent the situation remains within his control. If he is convinced as he says he is to the Court that the 1995 test results were reliable there should be no prejudice to him in undertaking a second test because he will believe that the outcome will be the same. There will be no adverse consequences to him because the cost will be paid by the applicant and if he is successful (as he believes he will be) then she will be responsible for his costs. That process will then clear up the concerns held by the applicant and provide a certain outcome.
[61] I indicate that if the respondent elects not to participate in a second
testing regime then it is likely that the Court will draw the following
inferences:
(i) That the evidence given by the applicant that there are only two candidates for paternity be accepted:
(ii) The failure to undertake a second test means that the respondent truly believes that he in fact is the father and knows that the first test results were wrong; and
(iii) Other periphery facts referred to by the applicant in her first affidavit are likely to be accepted by the Court.
[62] Therefore I warn the respondent that he is at serious risk of a paternity order being made against him without the results of a second test in any event. In the light of that warning he will need to make his election as to what is to happen.
[14] The judgment concludes in the following terms:
[63] Once the outcome is known the report is to be filed forthwith with the Court and brought to my attention. I adjourn the proceedings to the
Registrar’s list in six weeks time to monitor receipt of the report. If the
respondent elects not to undertake the process as he has indicated and I
received advice at the Registrar’s that that remains his election I will then set
the case down for a further one hour hearing before me. I will hear any further evidence that either party wishes to adduce and then make a decision on the evidence that is before the Court and take into account the inferences that I have indicated I am likely to draw.
[15] The references in the above passages by the Judge to the drawing of
inferences are based on s 57 of the FPA which provides:
(1)
In any civil proceedings in which the natural parentage of a child is in issue, whether or not the Court has recommended under section 54(1) of this Act that parentage tests should be carried out on a person, evidence may be given to the Court as to the refusal of that person to consent (or, where the person is under 16 years of age, as to the refusal to consent to such parentage tests of the person who is competent to do so on that person's behalf).
(2)
Subject to the right of the person who refuses to consent to the parentage tests to explain the reasons for that person's refusal, and to cross-examine witnesses and call evidence, the Court may draw such inferences (if any) from the fact of refusal as appear to it to be proper in the circumstances.
[16] It is therefore s 57 which gives the seemingly anodyne s 54 recommendatory
power real teeth.
Can a s 54 recommendation be appealed?
[17] There is, of course, no doubt that a declaration of paternity that is made on
the basis of inferences drawn from a refusal to undergo a parentage test would be
appealable under s 174. As I have said, such a declaration is deemed to be an order
by s 10(5) of the SCA. The drawing of the inference and reasons for the refusal
could, no doubt, be explored in that context. The issue is, rather, whether the
recommendation itself can be appealed, prior to the Court drawing an inference or
making any substantive declaration. As I have said, the answer depends on whether
such a recommendation can also be said to be an “order”.
Relevant decisions
[18] Limited support for Mr Hill’s position (that a recommendation is an order
which is appealable) can be found in the form of a recent judgment of this Court in
7
| Smith v Smith. | That case involved an appeal from an ex parte s 54 recommendation |
made by the Family Court in relation to Mr Brown, who claimed to be the father of
S. The appeal was brought by Mr Smith, who was married to S’s mother and was
named as her father on S’s birth certificate (although it seems he had been
continuously in jail over the six year period of her life).
[19] In terms of whether a recommendation is an “order”, Mallon J said:
[37] I accept Mr Smith's submission that a decision of the court need not be described as an order, in order to qualify as an order. A court decision
may, for instance, make a “direction” or a “declaration”. This is specifically recognised in the definition of ‘interlocutory order’ in the High Court Rules
which begins by defining that as “an order or a direction of the court” that
concerns a matter of procedure or grants some relief ancillary to that claimed in a pleading. The nature of the decision, rather than how it is described, should be the focus.
[38] The lawyer for the child submits that a recommendation is not an order because it does not compel a person to submit to a parentage test or to consent to a test being carried out on a child. It is also the case that a person who is subject to a recommendation under s 54 has opportunities to persuade the Court that no adverse inference should be drawn. In the present case this can be done in response to the guardianship application. It can also be done in the substantive hearing determining whether to make the paternity order. The lawyer for the child suggested that Mr Smith's interests were also not irretrievably affected because he might make an application for a rehearing of the decision to recommend parentage tests.
[39] These opportunities mean a recommendation does not have any final effect. However a recommendation does require a response from the person to whom the recommendation concerns. That is because failure to act in accordance with the recommendation has consequences. Evidence can be given, in proceedings in which the natural parentage of a child is in issue, of the refusal to consent to the test and the Court may draw such inferences as may be proper in the circumstances.
[40] Although this is also the case where no recommendation has been made, the person who is the subject of a recommendation properly might expect that an adverse inference may more readily be drawn where a
recommendation has been made. As it was put in I v S ss 54 and 57 are “such
that if a recommendation is made and the blood tests are not undertaken by the Respondent then inevitably there will need to be further submissions as
to what, if any, inference should be drawn under s 57.”
[41] In this case there is the further consequence that Mr Smith is faced with responding to the application to place Sarah in the guardianship of the Court for the purpose of obtaining consent to the paternity test. In that context Mr Smith would also need to explain why, in his view, it was not appropriate for the Court to recommend the parentage test and why he did not consent to it. However, as noted, he will be able to raise the same matters in opposition to this application that he would have raised before the recommendation was made.
[42] That a recommendation may qualify as an appealable “order” (because it is capable of affecting rights) is supported by the approach that is
taken in the judicial review context where a “statutory power of decision”
may be reviewed. The courts have considered whether this includes a
statutory power to make a recommendation. For example:
(a)
Hot Holdings Pty Ltd v Creasy: the applicant for judicial review sought to review a preliminary assessment and recommendation to the Minister on the granting of mining exploration licences. The High Court of Australia held that it was reviewable. That was because, although the recommendation did not bind the Minister, it was a relevant consideration that the Minister was bound to have regard to either as a matter of statute or good administrative practice.
(b)
Zhao v New Zealand Law Society: a barrister, seeking to practise as a solicitor on his own account, sought to review an adverse recommendation by an interview panel of the Law Society as to his fitness to practise. The High Court held that the recommendation was reviewable because of its influence in the determination of his fitness to practise.
[43] As Mr Smith submits, a party can make an application under s 54 for a recommendation to be made. In response to the application the Court decides whether or not to grant the application. That is a decision of the Court whether to exercise a statutory power. The exercise of that power is capable of affecting the rights of those to whom the recommendation relates. In the absence of a sufficiently compelling explanation for not following the recommendation, an adverse inference may be drawn. That is to say that it will be a relevant factor in the Court's assessment as to whether a paternity declaration should be made. These factors suggest a recommendation would be reviewable. [Footnotes omitted]
[20] She concluded:
[44] For these reasons I am inclined to the view that there may be a right of appeal in respect of a recommendation made under s 54. However in this case it is not necessary to reach a concluded view. That is because here the recommendation has no irretrievable effect on Mr Smith's and the child's rights. Mr Smith will have an opportunity to submit on why he refused parentage testing in the context of the guardianship application. If those reasons are compelling, the guardianship order will not be made. I therefore consider that if there is a right of appeal I should to decline to entertain it. The appeal will be overtaken by the next stages of the proceeding.
[21] Ms Parsons, for Ms Fruean, necessarily submitted that Mallon J’s
“inclination” was wrong. In support of that submission she sought to rely on two
other decisions in which this Court has considered the ambit of similar appeal
provisions.
[22] The first of these is GEH v AJH.[8]
[8][23] In that case, G sought to appeal the findings of violence made against him in
proceedings under the Domestic Violence Act 1995 (DVA), in which he had, in fact,
successfully opposed the making of a protection order against him. The issue before
the Court (on an application to strike out his appeal) was whether, despite his having
successfully resisted the application for a protection order, he was able to appeal the adverse findings, which were said to have a potentially serious effect on him in other
proceedings under the Care of Children Act 2004.
[24] The wording of the relevant part of the appeal provision in the DVA (s 91) is
materially identical to s 174(1AA) of the FPA.
[25] G contended that a finding of violence was the first of a series of decisions
that had to be made when determining an application for a protection order. He said
that each such “decision” could be appealed under s 91. Venning J rejected that
9
submission. He said:
The right to appeal provided by s 91(1) is “against the decision”. Just what
constitutes a decision for the purposes of such an appeal is set out in s
91(1AA). The decision is to:
(a) make or refuse to make an order; (b) dismiss the proceeding; or (c) otherwise finally determine the proceeding.
The relevant decision in this case was the decision to refuse to make the
protection order sought by Mrs H…
The submission for Mr H seeks to depart from, or engraft on to the statutory language something that is not there. The submission also overlooks the
word “to” employed by Parliament in s 91(1AA). The use of “to” to
introduce the categories of decision restricts the appealable decision to one
falling into one of the three categories in (a), (b) or (c).[26] A similar issue came before Fogarty J earlier this year in BLH v MNL.[10]
[10]
There, B was also seeking to appeal findings of violence made against her. The
relevant appeal provision in that case was s 143(1) of the Care of Children Act 2004,
which provides:
143 Appeals to High Court
(1) This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act (other than criminal
proceedings), to –
(a)
make or refuse to make an order (other than an interlocutory or interim order); or
(b) dismiss the proceedings; or (c) otherwise finally determine the proceedings.
Having discussed both Mallon J’s and Venning J’s judgments, Fogarty J
stated that “there is no avoiding this Court having to choose between the two lines of
reasoning.”[11] He preferred the latter:
[11]
[24] I think that in this case, the “proceedings” as the term is used in s
143(1), are the applications for Parenting Orders…
[25] There are obvious policy reasons for Parliament preventing satellite litigation; appeals to the High Court in the course of the Family Court resolving the issues in a set of proceedings. The goal of this litigation in the Family Court is for the Court to settle the shared parenting of this child because the parents themselves cannot agree. I think the restraints on appeals in each of the Domestic Violence Act 1995, Care of Children Act 2004, and Family Proceedings Act 1980 are intended to ensure that the whole process is completed in the Family Court before there is a right of appeal.
[26] The Care of Children Act 2004 statutory provision, s 143(1)(a) additionally specifically excludes interlocutory or interim orders. I think that makes it even more clear that the purpose is to allow appeals only of final
determination of the proceedings. Section 143(1)(c)“otherwise finally
determine the proceedings” sums up the statutory policy.
[27] It cannot be argued, and was not, that the findings of family violence in this case determined the proceedings, the Parenting Orders applications…
[28] Given that I have to choose, I prefer to follow Venning J's reasoning. This appeal is outside the jurisdiction of this Court to hear. The findings of domestic violence made by the Judge under s 60 are not orders. They do not dismiss the proceedings. They do not otherwise finally determine the proceedings.
My view
[28] There seem to me to be a number of points of distinction between GEH and
BLH and the present case:
(a) Findings of violence seem to me to be factual in nature. They are not, as Venning J said in GEH, “decisions” to “do” anything. By contrast,
the exercise of the s 54 power involves, quite clearly, “a decision to
make” a recommendation.
(b) In GEH, the appellant faced the additional hurdle that he was seeking to appeal a finding made in the context of a proceeding in which he
had been ultimately successful. No doubt if he had been seeking to
appeal a protection order that had been made against him then he
could have attacked the findings of violence in that context. And if,
for example, the findings of violence had been made in breach of
natural justice, he no doubt could also have initiated judicial review
proceedings, regardless of whether a protection order had been made.
(c) The specific exclusion of interlocutory orders from the statutory appeal provision under consideration in BLH removes that case
somewhat from the present. Indeed the fact that Parliament has felt
the need expressly to exclude an interlocutory order from the ambit of
“order” in s 143(1) arguably invites the argument that, in the absence
of such an exclusion, a wider interpretation is warranted.
[29] Turning now to address more directly the question at hand, I begin by
recording my agreement with Mallon J that the making of a recommendation under
s 54 is far from being merely a case management step or some other incidental
interlocutory decision. The statutory coupling of the recommendatory power with
the power to draw determinative inferences from a refusal to comply with a
recommendation appear to me to come as close as Parliament can come to
authorising the Court to compel a parentage test, without crossing the line that is
12
now drawn by s 11 of the New Zealand Bill of Rights Act 1986.
[30] Indeed, the fact that the recommendation is likely to be determinative of the
substantive proceeding can be seen from the present case.
[31] If Mr Hill chooses to comply with the recommendation and take the test, he
13
| will, almost certainly, either be shown to be the father or be shown not to be. | The |
paternity would, or would not, be made on that basis and, in either event, an appeal
would be futile.
[32] If, on the other hand, Mr Hill chooses not to comply then the terms of Judge
Burns’ decision make it clear that it is virtually inevitable that the Judge will draw an
inference that he is the child’s father. Any appeal from that decision (the decision to
make a paternity order) would presumably focus on the drawing of the inference
which, in turn, would require the Court to consider the reasons why Mr Hill refused
to take the test. Those reasons would, no doubt, largely overlap with the reasons he
opposed the making of the recommendation.
[33] Be all that as it may, however, I have formed the conclusion that a
recommendation is not appealable independently of an appeal against a declaration
or order of paternity. My conclusion is based largely on the application of orthodox
principles of statutory interpretation. I set out the matters I regard as particularly
relevant, below.
First, the ordinary meaning of the word “order” would not, in my view
encompass a recommendation. Notwithstanding the adverse consequences that may
flow from non-compliance in the present case, there is still no element of
compulsion, strictly so-called.
Relatedly, although I accept Mallon J’s point that recommendations are
included within the ambit of “statutory powers of decision” under the Judicature
Amendment Act 1972, that is the result of a specific expansion of the definition of
“statutory power” to include a power:14
(e) To make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person. [36] As the learned authors of McGechan state:
This paragraph was added by s 10(2) Judicature Amendment Act 1977 as a consequence of the decision of Perry J in Thames Jockey Club Inc v NZ
Racing Authority … . Perry J held that the power conferred by the Racing
cases, however, the degree of probability one way or another will be overwhelming.
14
Judicature Amendment Act 1972, s 3.
Act 1971 on the New Zealand Racing Authority to advise the Minister on the grant of totalisator licences and to recommend the withholding of licences was not an exercise of a statutory power of decision; it was the Minister who had the power of decision and he could accept or reject the advice as he pleased. The situation was remedied by the inclusion of para (e) in the definition of statutory power in accordance with the recommendations in
para 26 of the Public and Administrative Law Reform Committee’s Eighth
Report (1975). [emphasis added]
[37] Thirdly, an application of the ejusdem generis rule would suggest that the
words in s 174(1AA)(a) (“make or refuse to make an order”) are coloured by their
association with paragraphs (b) and (c), which refer to de jure determinations which
15
| in some way finally resolve the underlying proceedings. | Although I have accepted |
above that in many cases a recommendation may in reality be determinative of the
proceeding, in law, the issue of paternity is not determined unless and until an order
is made. Moreover, it is only because of advances in science in the 34 years since
the enactment of s 174 that a s 54 recommendation is now quite so factually
decisive. Prior to the widespread availability of DNA testing, the scientific limits of
blood-type analysis meant that, at best, paternity could in some cases be ruled out
with some degree of certainty. At the time s 174 was enacted, therefore, it could not
be said that a s 54 recommendation was determinative even in a de facto way.
[38] Fourthly, the word “order” appears in a quite specific way throughout the
FPA, as it does throughout all statutes dealing with issues of status and rights in the
family context. There are, for example, over 25 different kinds of “order” that can
be made under the FPA and it seems obvious that it is to appeals against those kinds
of orders that s 174(1AA)(a) is directed.
[39] Fifthly, s 174(9) provides:
(9) Except in the case of an order made under section 34 or section 39(4) or where the court making the order appealed from otherwise directs, the operation of an order made under this Act shall not be suspended by an appeal under this section, and every order made under this Act may be enforced in the same manner in all respects as if no appeal under this section were pending.
A recommendation cannot be “enforced”.
Sixthly, I respectfully agree with Fogarty J’s statement at [25] in BLH (set out
at [27] above) that permitting appeals prior to the final resolution of the particular
proceedings does not sit well with the policy of legislation such as the FPA.
[41] In the present case I have already noted that the grounds for any appeal
against a paternity order made against Mr Hill would be likely significantly to
overlap with the grounds advanced in support of the appeal he presently wishes to
bring. But in the event that the present appeal was heard and did not succeed, there
would remain the undesirable possibility of Mr Hill bringing a subsequent appeal. In
other words, he could appeal against both the recommendation and, later, against the
adverse inferences and finding of paternity.
[42] Lastly, it is important to note that applications for declarations of paternity
under s 10 of the SCA can be made either to the Family Court or to the High Court.
Section 10(5) provides that if an application is made to the Family Court then the
application is governed by the FPA. If the application is made to the High Court,
then s 10(5) states that the Declaratory Judgments Act 1908 (the DJA) applies.
[43] Although in hearing any application made under the DJA the High Court
16
| would have available to it the power to make a recommendation under s 54 | any |
appeal in relation to any aspect of those proceedings would need to be brought under
s 8 of the DJA, which is phrased in the following terms:
Appeal to Court of Appeal
An appeal shall lie to the Court of Appeal from any judgment or order given or made in pursuance of this Act, in the same manner as in the case of a final judgment of the High Court.
[44] Section 8 thus clearly suggests that it is the final judgment or order made under the Act that is appealable. If that is correct, then consistency would demand that the same, limited, appeal rights should apply in relation to a section 10
application which is made to the Family Court.
[45] While I have some sympathy for Mr Hill’s position, for the reasons just given
I am of the view that this Court has no jurisdiction to hear an appeal from a
recommendation made pursuant to s 54 of the FPA. If Mr Hill wishes to contest the
recommendation the appropriate course is for him to decline to take the parentage
test and to await Judge Burns’ decision on Ms Fruean’s application under s 10 of the
SCA. Any challenge to the recommendation (and to whatever inferences may be
drawn by Judge Burns) can be pursued in the context of an appeal against any
paternity order that is made.
[46] My provisional view is that in the rather unusual circumstances of this case,
the costs of this application should lie where they fall. If Ms Parsons has a different
view, however, she may file a memorandum within five working days. Mr Hill shall
then have five working days to respond and I will determine the matter on the
papers.
____________________
Rebecca Ellis J
| Judgment: | 4 April 2014 |
| RESERVED JUDGMENT OF ELLIS J |
This judgment was delivered by me on Friday 4 April 2014 at 3 pm
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel/Solicitors:
G M Cameron, Barrister, Auckland
E B Parsons, Barrister, Auckland
HILL v FRUEAN [2014] NZHC 682 [4 April 2014]
DMF v AH [2013] NZFC 8247.
2
Applications for paternity orders may be sought under s 47 of the FPA.
3
Prior to 2005 s 54 referred to “blood” tests rather than “parentage” tests. Advances in science
mean that DNA testing can now occur without the need for taking blood.
4
DMF V AH FC Manukau FAM-2010-092-840, 27 September 2011.
5
In summary, the defects identified by Ms Fruean were (a) Mr Hill attended the wrong testing centre after considerable delay; (b) There were no witnesses to the collection of his blood; (c) The photograph required to be produced by Mr Hill was not validated on the reverse side in accordance with the required protocols; (d) The blood collector indicated that she had taken the
blood on 4 September 1995 rather than 12 September 1995; (e) Mr Hill’s sample was sent to the
wrong centre for analysis; (f) Mr Hill’s DNA was extracted by DNA Diagnostics rather than ARVS which had been contracted to undertake the testing process; and (g) Ms Fruean’s name
was incorrectly recorded on the DNA Diagnostics’ sheet.
6
DMF v AH, above n 1.
7
Smith v Smith [2013] NZHC 2536
GEH v AJH HC Auckland CIV-2009-404-373, 1 April 2009.
9
At [13]-[15].
BLH v MNL [2014] NZHC 194.
At [18].
12
It is interesting to note that the predecessor to s 54 (s 50 of the Domestic Proceedings Act 1968)
gave the Court the power to “direct”, rather than “recommend” a genetic test. However the
section also appeared to contemplate that such a direction might not be complied with and, in
those circumstances, authorised the Court to regard non-compliance as “evidence corroborating
the evidence of the mother”.
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I accept that even DNA testing cannot provide 100 per cent certainty as to paternity. In most
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The link was even clearer in s 174 as originally enacted which provided:
(1) Subject to subsections (3) and (4) of this section, where in any proceedings under this Act (other than criminal proceedings or proceedings under section 130 of this Act), a Family Court or District Court has made or has refused to make an order, or has otherwise finally determined or has dismissed the proceedings, a party to the proceedings or any other person prejudicially
affected may, … appeal to the High Court …
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Section 54(1) makes it clear that the section applies to any civil proceedings. And “Court” is
defined in the FPA as including the High Court.
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