Hill v Fruean - [2014] NZHC 682

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…

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 Hill v Fruean

Details

AGLC: Hill v Fruean [2014] NZHC 682
Case: [2014] NZHC 682
Decision Date: 4 April 2014

CaseChat Overview and Summary

Alan Hill appeals a Family Court recommendation that he undergo a parentage test in proceedings brought by Delphine Matilda Fruean seeking a declaration of paternity. Fruean contends that the High Court lacks jurisdiction to hear Hill's appeal as the Family Court's recommendation does not constitute an "order" as defined in section 174(1AA) of the Family Proceedings Act 1980 (FPA). Hill contends that the statutory power to make a recommendation under section 54 of the FPA is a statutory power of decision and thus an "order" within the meaning of section 174(1AA). The Court considered the issue of whether a recommendation made under section 54 of the FPA is an "order" that is appealable under section 174(1AA). The Court held that the making of a recommendation under section 54 of the FPA is not an "order" and thus not appealable. The Court reasoned that the statutory power to make a recommendation does not compel a person to submit to a parentage test or to consent to a test being carried out on a child and that a person who is subject to a recommendation has opportunities to persuade the Court that no adverse inference should be drawn. The Court also noted that the term "order" appears in a specific way throughout the FPA and that it is only because of advances in science in the 34 years since the enactment of section 174 that a section 54 recommendation is now factually decisive. The Court concluded that the grounds for any appeal against a paternity order made against Hill would likely overlap with the grounds advanced in support of the appeal he presently wishes to bring. The Court held that if 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 Fruean's application under section 10 of the Status of Children Act 1969. 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.

Orders