[2013] HCA 7
Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497
Cameron v Cole (1944) 68 CLR 571
[1944] HCA 5
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
[2000] HCA 47
Dickason v Dickason (1913) 17 CLR 50
Source
Original judgment source is linked above.
Catchwords
[1992] HCA 10
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38[2013] HCA 7
Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497
Cameron v Cole (1944) 68 CLR 571[1944] HCA 5
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194[2000] HCA 47
Dickason v Dickason (1913) 17 CLR 50[1913] HCA 77
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63
G v H (1994) 181 CLR 387[1994] HCA 48
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532[2008] HCA 4
House v R (1936) 55 CLR 499[1936] HCA 40
In the marriage of Lee and Tse (2005) 33 Fam LR 167[2005] FamCA 77
Lane v Morrison (2009) 239 CLR 230
[2009] HCA 29
North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146
[2004] HCA 31
Russell v Russell (1976) 134 CLR 495
[1976] HCA 23
Wainohu v New South Wales (2011) 243 CLR 181
[2011] HCA 24
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Judgment (5 paragraphs)
[1]
Background
The evidence (unsurprisingly unchallenged, given the absence of any contradictor) establishes the following.
The plaintiff and the first defendant's mother (the birth mother) met in early 1985 and commenced a sexual relationship. In about June 1985, the birth mother informed the plaintiff that she was pregnant. The plaintiff assumed that he was the father of the child. Following the birth of the first defendant in early 1986, the plaintiff was registered as his father. The first defendant's birth certificate evidences that registration (s 156 of the Evidence Act 1995 (NSW)).
The relationship between the plaintiff and the birth mother ended in 1987. The plaintiff paid maintenance to the birth mother in respect of the first defendant from about 1988 or 1989. He also paid half of the school and boarding fees for the first defendant to attend a private school in Sydney and, after the first defendant completed his schooling, assisted him with his living expenses. The plaintiff maintained personal contact with the first defendant whilst the first defendant was at school.
In early 2018, the plaintiff asked the first defendant to undertake DNA testing to ascertain whether he was the first defendant's biological father. (The evidence is unclear as to what prompted this request.) The first defendant agreed to have the DNA test carried out. Each of the plaintiff and the first defendant provided a buccal sample for DNA testing and the plaintiff sent the samples to "Easy DNA" in Queensland for analysis.
In March 2018, the plaintiff received the results of the DNA tests; those being that he was not the first defendant's biological father.
The plaintiff through his solicitors sought to have his name removed as the first defendant's father on the Register of Births, Deaths and Marriages (the Register) but was informed that one of the requirements for this to occur was that a DNA test be carried out in accordance with the Family Law Act 1975 (Cth). As I understand it, the DNA test carried out already did not meet those requirements because of an inability to establish a secure chain of delivery in relation to the samples submitted for testing.
The plaintiff requested the first defendant to take a further DNA test. The first defendant refused, but stated that he "accept[ed] the results" and said that a "further test is not necessary".
On 1 March 2019, in these proceedings, orders were made pursuant to ss 26 and 27 of the Status of Children Act 1996 (NSW) (Status of Children Act) requiring the first defendant to submit to a parentage testing procedure. Personal service of the orders made on 1 March 2019 was effected on the first defendant on 22 March 2019, as noted above.
The first defendant has not complied with the orders made by the Court on 1 March 2019.
[2]
Relevant provisions
Section 45(2) of the Registration Act provides as follows:
45 Correction of Register
(1) The Registrar may correct the Register:
(a) to reflect a finding made on inquiry under Division 2, or
(b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.
(2) The Registrar must, if required by a court, correct the Register.
(3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry.
Although the Registration Act does not define "court" (and nor does the Interpretation Act 1987 (NSW)), there can be no doubt that this Court falls within that term. This Court is a court established by the New South Wales Act 1823 (UK) (Act 4 Geo.IV c.96) and continued by s 22 of the Supreme Court Act 1970 (NSW) (Supreme Court Act). It is a superior court of record with general and unlimited jurisdiction within New South Wales (save for, and subject to, the extent to which federal jurisdiction is conferred on other courts) (see s 22 and 23 of the Supreme Court Act).
As noted in the plaintiff's submissions, the essential characteristics of a court (see Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7) include: the exercise of judicial power (that is, the power to conclusively determine disputes between parties according to law: Lane v Morrison (2009) 239 CLR 230; [2009] HCA 29 at [22] per French CJ and Gummow J, at [114] per Hayne, Heydon, Crennan, Kiefel and Bell JJ; Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 515 per McHugh JA); independence in decision making from the executive government and impartiality (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [3] per Gleeson CJ, McHugh, Gummow and Hayne J; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 at [10] per Gummow, Hayne, Heydon and Kiefel JJ; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31 at [29] per McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ); the application of procedural fairness and adherence to the "open court principle" (Dickason v Dickason (1913) 17 CLR 50; [1913] HCA 77; Russell v Russell (1976) 134 CLR 495; [1976] HCA 23); and the provision of reasons for the court's decision (Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]-[56] per French CJ and Kiefel J, as her Honour then was); all features exhibited by this Court.
[3]
Determination
For the following reasons, I was persuaded that it was appropriate to grant the relief sought.
I was satisfied that on the balance of probabilities the plaintiff is not the biological father of the first defendant. In that regard, I noted that the DNA test performed on the buccal samples provided by the plaintiff and the first defendant in early 2018 concluded that there was a 0% probability that the plaintiff was the first defendant's biological father. The plaintiff explained the process that was carried out to obtain the DNA testing. There is nothing to suggest that the testing was unreliable or that the sample was tainted in any way.
Reliance was placed by the plaintiff on the evidence that the first defendant said in March 2018 that he "accept[ed] the results ... [and that] a further test is not necessary". I place little weight on this other than to note that the first defendant does not positively maintain a contradictory stance and does not resist the making of the orders.
Reliance was also placed by the plaintiff on the fact that the first defendant has failed to comply with the order that he participate in a parentage testing procedure. Section 29 of the Status of Children Act provides that a contravention of a parentage testing order permits the Court to draw such inferences as appear just in the circumstances. It is submitted by the plaintiff that the inference should be drawn that the first defendant did not submit to the parentage testing procedure because he knew that the results of the test would (again) show that the plaintiff is not his biological father. I was not prepared to draw that inference. There may be a number of reasons why the first defendant has refused to participate in further DNA testing (not least if there has been a breakdown in the relationship between the parties). Certainly, the first defendant can have no personal knowledge of the circumstances of his conception (unlike the birth mother, who I am told is aware of the proceedings but has not sought to intervene).
I was left, therefore, with little other than the fact of the one DNA test that has been obtained. Nevertheless, I was satisfied on the basis of that test, to the requisite standard of proof, that the plaintiff is not the first defendant's biological father and it seems to me not in the interests of the administration of justice (nor in the public interest) that the plaintiff be required to take further steps to compel DNA testing of the first defendant (such as an application for contempt for the first defendant's failure to comply with the orders already made) as would be necessary otherwise to establish the lack of a biological relationship between the two.
[4]
Conclusion
Accordingly, I made the following orders:
1. Declare that Laurance John Tracey Crawford is not the biological father of Thomas Charles Davidson-Crawford.
2. Order, pursuant to s 45(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW), that the Registrar of Births, Deaths and Marriages correct the Register maintained pursuant to s 43 of the Births, Deaths and Marriages Registration Act 1995 (NSW) by deleting the name of Laurence John Tracey Crawford as the father of Thomas Charles Davidson-Crawford from the Register.
3. No order as to the costs of the proceedings.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 18 June 2019
There was no appearance by or on behalf of the first defendant at the hearing (nor has any notice of appearance been filed by the first defendant in these proceedings). He has taken no step in the proceedings at all.
The evidence establishes that the first defendant was personally served with the summons on 7 September 2018 (see the affidavit of service sworn 20 February 2019 of Mr Rodney Smith (Mr Smith's first affidavit) at [3]). Orders made by the Court on 1 March 2019 and accompanying documents were personally served on him on 22 March 2019 (see the affidavit sworn on that date by Ms Shani Willis at [3]). A copy of the Orders had also been served at the first defendant's usual place of residence (and where he was later personally served on 22 March 2019) on 6 March 2019 (see the affidavit sworn 8 March 2019 of Mr Rodney Smith (Mr Smith's second affidavit) at [1]. The first defendant was notified of the hearing date of 7 June 2019 by letters dated 21 May 2019 (see the affidavit sworn 29 May 2019 of Ms Georgia Connelly at [3]-[8]).
The plaintiff submitted, and I accepted, that the first defendant had been given a reasonable opportunity to appear and present his case (if he so wished), having been given notice of the existence of the proceedings, the interlocutory orders, and the hearing date (thus, I was satisfied that the requirements of natural justice had been met - see Cameron v Cole (1944) 68 CLR 571 at 589; [1944] HCA 5 (per Rich J)). In accordance with the requirements of Div 1 of Pt 6 of the Civil Procedure Act 2005 (NSW), and in particular, ss 56 and 59, I therefore proceeded to hear the matter pursuant to r 29.7(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) in the absence of the first defendant.
It is noted that the Registration Act makes specific reference to the District Court (see, for example, s 19(1)) and to the Local Court (see, for example, s 63), which demonstrates that where the Parliament intended to specify a particular court it did so expressly. As it has not specified a specific court in s 45, it is submitted by the plaintiff (and I accept) that this demonstrates a legislative intention that includes (in the reference to "court") each of the Supreme, District or Local Courts of this State.
Finally, in this regard, the plaintiff notes that there is no provision in the Registration Act that indicates any legislative intention that this Court is not a "court" within the meaning of s 45. Insofar as s 19(2) of the Registration Act refers to "any court of another State or the Commonwealth", it is submitted) and I accept) that it is highly improbable that there was a legislative intention to exclude this Court.
The plaintiff provided copies of the Second Reading Speech and Explanatory Memorandum in relation to the bill which led to the Registration Act but, as noted by the plaintiff, no assistance is to be gleaned from those extrinsic materials.
I accept that this Court is a "court" for the purposes of s 45 of the Registration Act.
The Registration Act does not impose any express conditions or requirements on the exercise of the power to require the Registrar to correct the Register. The discretion to exercise that power is subject to the usual requirements and limitations applicable to discretionary powers. Thus, the ambit of the discretion is determined by the subject matter and the purpose of the statutory provisions conferring the discretion (see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [19] per Gleeson CJ, Gaudron and Hayne JJ; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; [1947] HCA 21 per Dixon J); and the discretion must be exercised "judicially" (see House v R (1936) 55 CLR 499; [1936] HCA 40 per Starke J), i.e., according to rules of reason and justice and not arbitrarily or capriciously or according to private opinion.
The subject matter of s 45 is the content of the Register maintained under s 43 of the Registration Act. The purpose of s 45 of the Registration Act is obviously to enable errors in the Register to be corrected.
I was also satisfied in all the circumstances that it was appropriate to exercise the discretion to require the Registrar to correct the Register by ordering the deletion of his name as the father of the first defendant from the Register.
In order to obtain a declaration, a party must satisfy the requirements articulated in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; [1992] HCA 10 per Mason CJ, Dawson, Toohey and Gaudron JJ:, namely that: there be a controversy between the parties for determination and not abstract or hypothetical questions; the person seeking relief must have a "real interest"; and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties". Their Honours also stated (at 583) that "where a person's rights or liabilities will or might be affected by the exercise or non-exercise of a statutory power following upon an inquiry, that person is prima facie entitled to be accord natural justice in the conduct of the inquiry".
I was satisfied that the requirements were met, for the following reasons. First, the controversy between the parties is clearly whether the plaintiff is the biological father of the first defendant and whether he is entitled to have the Register maintained pursuant to s 43 of the Registration Act corrected. The Court is not being asked to give an advisory opinion nor to answer a question which is purely hypothetical; rather, the resolution of the proceedings will affect the contents of a statutory register. Second, the proceedings concern the "real interest" of the parties to know, and have determined, their legal relationship (see what was said in G v H (1994) 181 CLR 387 at 391; [1994] HCA 48 per Brennan and McHugh JJ; and In the marriage of Lee and Tse (2005) 33 Fam LR 167; [2005] FamCA 77). I accept that, insofar as a child (as does society more generally) has a vested interest to determine paternity it must follow that the father also has a "vested interest" to know and have determined the identity of his offspring.
Third, there can be no issue as to standing as the proceedings concern the correction of the public record (as constituted by the Register) insofar as it concerns the plaintiff. Fourth, as I have concluded above, this Court has jurisdiction to make an order pursuant to s 45 of the Registration Act. Fifth, I am satisfied that the first defendant has a legal interest in opposing the claim (for the same reasons that the plaintiff has in bringing the proceedings) namely that the determination of his paternity is a matter in which the first defendant has a vested interest.
Sixth, I accept that the making of a declaration is the appropriate mechanism to give legal recognition to the position as between the parties in relation to the lack or paternity; and such a declaration provides the foundation for an order under s 45 of the Registration Act.
It was submitted, and I accepted, that there is no conduct on the part of the plaintiff that would warrant the refusal to make the declaration sought on discretionary grounds; nor is there a basis for concluding that that would lack utility. The plaintiff has deposed to his concern to have his affairs in order. I see no reason not to accept that.
I did give consideration as to whether the birth mother was an appropriate party to be joined to the proceedings but was persuaded that she was not a necessary party (and I am informed that she is aware of the proceedings); and, relevantly, I was informed that there was no intent to make any claim against her in relation to the amounts paid by way of maintenance in respect of the first defendant over the years.
Accordingly, I was satisfied that the making of the declaration sought was a proper and suitable order upon which the order under s 45 should be founded.
I was not, however, prepared to order the first defendant to pay the plaintiff's costs. I accept that the general rule is that costs should follow the event; and that the plaintiff has succeeded in the relief claimed. I also accept that the hearing before me would not have been necessary had the first defendant complied with the orders made for the further DNA testing. However, in circumstances where the first defendant has taken no step in the proceeding and has not actively resisted the orders sought (and where, at the very least, the proceedings had to be commenced in order to obtain the orders for compulsory DNA testing, even though those were not complied with), I concluded that it would not be appropriate to make a costs order against the first defendant without him having an opportunity to argue against that course and to explain his position in relation to the matter. Particularly in light of the difficult personal issues to which proceedings of this kind are likely to give rise, I considered that there should be no order as to costs.