[22] More important, so far as G's paternity is concerned, there is an inference of a different kind. Leaving aside special considerations which arise in criminal cases as a result of the right to silence ((22) See Petty v. The Queen [1991] HCA 34; (1991) 173 CLR 95 at 99-101, 106-107, 118-122, 125-130. See also Weissensteiner v. The Queen [1993] HCA 65; (1993) 178 CLR 217 at 224-229, 231-236, 240-246; and the cases there referred to.), 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. Thus, for example, there may sometimes be an inference in civil cases that the evidence, if called, would not assist that party's case ((23) Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298.). And there may sometimes be an inference in criminal cases of "guilty knowledge", in the sense of knowledge that the evidence cannot be explained in a way that is consistent with innocence ((24) See, for example, Weissensteiner v. The Queen (1993) 178 CLR at 243-245 and the cases there cited.). They are inferences that are to be drawn, if at all, in accordance with strict legal reasoning. In other cases, the failure to give evidence may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence. 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."
15 I was also referred to the decision of Hodgson J (as he then was) in E v H (1986) 7 NSWLR 212 at 220D. In that case his Honour said:
"In my view also in most cases it is in the interests of the child and of justice that questions such as this be decided on the best available evidence. In my view to overcome that consideration would require quite specific and powerful evidence that the interests of the child would be harmed by the making of blood tests."
16 I was also referred to the decision of the New South Wales Court of Appeal in British American Tobacco Australia Services Ltd v Eubanks (2004) 60 NSWLR 483, particularly at par [42]. That case held, among other things, that proceedings for an order to be made against a person under section 33 of the Evidence on Commission Act 1995 raise an issue of substance affecting that person's civil rights and do not involve merely a matter of practice and procedure. Such proceedings are not therefore to be characterised as interlocutory. The evidence permitted to be obtained under that Act in compliance with a request by a foreign court or tribunal is restricted to evidence for use in a trial, thereby excluding the obtaining of evidence that might lead to the procurement of evidence. However, such evidence is not restricted to testimony that is both admissible (other than by way of general relevance) and actually to be admitted in the foreign proceedings.
17 The plaintiff submitted that the evidence established that a court outside New South Wales had made a request and the proceedings had been instituted in Sweden. Section 33 of the Evidence on Commission Act 1995 and s 26 of the Status of Children Act 1996 in combination, conferred a power on this Court to order that Mr G provide a bodily sample to determine paternity. It was submitted that the results of any testing of that sample would assist the Swedish court to determine the identity of the child's father. The evidence so far available from Sweden prime facie suggested that Mr G was the child's father. It was submitted that it was in the child's best interests, as well as in the public interest, to know his true identity. For example, if Mr G were the father of the child then, pursuant to s 10B of the Australian Citizenship Act 1948, she would be entitled to Australian citizenship.
Decision
18 In my opinion, the parentage testing procedure that the plaintiff seeks would, if carried out, assist in determining the parentage of the child: s 26(1). In deciding whether or not to make that order I have taken into account Mr G's objection, which in general terms, is that it would be inimical to the interests of his family, particularly his daughters, if such an order were made. This submission is made upon the basis that, presumably, a positive identification of him as the father of the child may have financial and emotional ramifications adverse to the interests of his family and his daughters. In the circumstances of the present case, I consider that these objections are valid. I have also had regard to the fact that contravention of a parentage testing order under s 27 would not render Mr G liable to any penalty in relation to the contravention: s 29(1). The Court may draw such inferences as appear just in the circumstances: s 29(2).
19 I have also taken into account what was said in G v H (supra) at par [21], that if the evidence establishes that a particular person is the most likely person to be the father and he has chosen to risk a finding that he is the father rather than submit to a parentage test, there is no injustice involved if such a finding is ultimately made. The evidence available from the Swedish court, in my opinion, presently establishes that Mr G is the most likely person to be the child's father.
Orders
20 Although the summons proposes a detailed regime to give effect to an order for the taking and testing of appropriate samples, it was obviously formulated without the assistance of Mr G and without the benefit of any understanding of whether or not he would be prepared to cooperate in any way. While Mr G's attitude to the making of an order may fairly be inferred from his opposition to it, it does not follow that his attitude will not have changed once he has been given an opportunity to consider these reasons, or that he should be excluded from an opportunity to contribute to a discussion upon the form of any orders that might be made.
21 Accordingly, whilst I am prepared to make an order in accordance with paragraph 1 of the summons, I would invite the plaintiff, and Mr G if so minded, to bring in short minutes of the orders upon which they are able to agree or, in the absence of agreement, for which they respectively contend.