E v H

Supreme Court of NSW|2016-05-10|Before: Adamson J, Beech-Jones J

Solicitors: Crown Solicitor for NSW (Plaintiff) File Number(s): 2015/306722

Introduction

By summons filed on 19 October 1995, the Attorney-General for the State of New South Wales (the plaintiff) seeks orders including the following: An order pursuant to ss 33(1), (2) and (3)(f) of the Evidence on Commission Act 1995 (NSW) for the taking of two samples of buccal mucosa and a control blood spot, from Thomas Hollins of [address supplied] in the State of New South Wales.
The purpose of the samples the subject of the order is to ascertain whether Mr Hollins is the father of a girl who is presently three years old and living in the Czech Republic.
Mr Hollins, in respect of whom the order was sought, was present in Court at the hearing of the application. He confirmed that he opposed the order; that he did not wish to seek legal advice; and that he would not provide the samples voluntarily.
Mr Hill, who appeared on behalf of the plaintiff, read the affidavits of Emily Howes affirmed on 28 August 2013 and of Nicole Hailstone-Bradley affirmed on 19 October 2015 in support of the application and tendered a transcript of an examination of Mr Hollins on 26 November 2015.

The background to the application

The child was born in Prague in September 2012. Her mother commenced a paternity suit against Mr Hollins in the District Court in Prague for the purpose, at least in part, of obtaining maintenance payments for her daughter. The District Court in Prague made a request for judicial assistance pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. The plaintiff consented to the request and instructed the Crown Solicitor to give effect to it.

The plaintiff's application to examine Mr Hollins

On the plaintiff's application under a previous summons (in proceedings 126179 of 2013) Beech-Jones J made an order pursuant to s 33 of the Evidence on Commission Act 1995 (NSW) (the Act) for the oral examination of Mr Hollins. Mr Hollins was examined by Mr Hill (who appeared on behalf of the plaintiff at the hearing before me on 11 May 2016) before Deputy Registrar Matulewicz on 29 October 2013.

The examination of Mr Hollins on 29 October 2013

In the course of this examination, Mr Hollins made the following admissions. He met the woman who became the child's mother (who lived in the Czech Republic) in Cambodia on about 15 December 2011 while he was travelling over the Christmas break. Their sexual relationship commenced on the day they met. They spent a week together in the course of which they had unprotected sex on at least two occasions. They went their separate ways. At the beginning of January 2012 the woman contacted Mr Hollins and informed him that she was pregnant. As a result of this news, they spent another week together in January in the course of which they had unprotected sex.
Mr Hollins admitted that it was possible that he was the father of the child and that he was not aware of any reason which would rule him out as being her father.
When asked whether he was willing to undergo DNA testing to ascertain whether he was the child's father he said that he would not be willing absent a court order.

The further request and the present proceedings

On 22 October 2014 further request was made by the Prague District Court for the "appointment of an expert to collect primary samples for DNA analysis". This led to the filing of a further summons, in the present proceedings, on 19 October 2015, in which an order was sought for the oral examination of Mr Hollins (this order and associated orders were sought in prayers 1-8 of the summons). On 30 October 2015 Campbell J made the orders sought in prayers 1-8 of the summons which included an order for a further oral examination of Mr Hollins.

The examination of Mr Hollins on 26 November 2015

Mr Moore, who appeared on behalf of the plaintiff, conducted an examination of Mr Hollins before Deputy Registrar Lee on 26 November 2015. Since the previous examination, Mr Hollins had completed his Science Degree, specialising in biology. Mr Hollins said, in substance, that he was unwilling to pay any amount to support the child, unless ordered by a court to do so. He explained his position in the examination as follows: "Well I'm not the father as far as I'm concerned."
At the conclusion of the examination, Mr Hollins told the Deputy Registrar that he was travelling overseas to India on 30 November 2015 for the summer vacation and would be returning on 11 February 2016. For this reason the plaintiff's application for the orders presently sought was deferred.

The relevant statutory provisions

Part 4 of the Act makes provision for the taking of evidence for foreign courts. Section 32 relevantly provides: Application to the Supreme Court for assistance in obtaining evidence for proceedings in other court (1) The following provisions of this Part apply if an application is made to the Supreme Court for an order for evidence to be obtained in the State and the Court is satisfied: (a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside the State, and (b) that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated. . . .
Section 33 relevantly provides: Power of the Supreme Court to give effect to application for assistance (1) The Supreme Court has power, if an application is made under section 32, by order to make such provision for obtaining evidence in the State as may appear to the Court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made. (2) An order under this section may require a specified person to take such steps as the Court may consider appropriate for that purpose. (3) Without limiting the generality of subsections (1) and (2), an order under this section may, in particular, make provision as follows: . . . (e) for the medical examination of any person, (f) without limiting paragraph (e), for the taking and testing of samples of blood from any person. (4) An order under this section is not to require any particular steps to be taken unless they are steps that can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates). . . .

Whether the statutory conditions for making the orders sought have been met

I am satisfied, on the basis of the affidavit of Ms Howe, that a request has been made by the Prague District Court.
I am satisfied that the power conferred by s 33(1) and (2) is sufficient to enable me to order that a buccal swab be taken. Although it is not specifically referred to in s 33(3), it would probably fall within s 33(3)(e), as a medical examination. In any event, I am satisfied that it falls within s 33(1) and (2).
I am also satisfied that the condition in s 33(4) is met. The Status of Children Act 1996 (NSW) provides for such testing in New South Wales. Section 3 relevantly defines "parentage testing order" as meaning an order under s 26 and "parentage testing procedure" as meaning a medical procedure prescribed, or included in a class of medical procedures prescribed by the regulations for the purposes of the definition. The Status of Children Regulation 2013 (NSW) provides, by cl 5, that, for the purposes of the definition of "parentage testing procedure" in s 3(1), DNA typing is a prescribed medical procedure.

Whether the orders ought be made

Mr Hollins has refused to contribute to the maintenance of the child on the ground that he does not accept that he is her father. He has also refused to undergo a paternity test without a court order. It follows that, unless I make the orders sought by the plaintiff, the question whether Mr Hollins is the child's father is unlikely to be determined definitively, although I note that there is strong circumstantial evidence (based on his own admissions) that he is the father. Further, inferences could be drawn from his refusal to volunteer for such a test: see G v H (1994) 181 CLR 387, at 402 per Deane, Dawson and Gaudron JJ.
I consider it to be overwhelmingly in the interests of a child to know who his or her father is: see also E v H (1986) 7 NSWLR 212 at 220D per Hodgson J. DNA testing will provide evidence which is likely to be determinative, one way or the other. There is a strong public policy that fathers ought contribute to the maintenance of their children. Moreover there are other considerations, such as citizenship, which may, in some cases, result from paternity and confer significant rights on children who are able to identify their fathers.
Mr Hollins was unable to articulate any reason why the child ought not know whether he is her father. Moreover, he was prepared to have unprotected sex with the child's mother and can be taken to have known that her pregnancy was a natural and foreseeable consequence.
In my view, all relevant factors weigh in favour of making the orders sought, which appear to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made.

Orders

For the reasons set out above I make the following orders: 1. Pursuant to ss. 33(1), (2) and (3)(f) of the Evidence on Commission Act 1995 (NSW) for the taking of two samples of buccal mucosa and a control blood spot, from Thomas Hollins of 9 Sutherland Road, North Parramatta 2151 in the State of New South Wales. 2. Within 21 days of order 1 above being made, Mr Hollins attend the office of the Consulate General of the Czech Republic 169 Military Road, Dover Heights 2030 in the State of New South Wales. 3. Such attendant in order 2 above be at a date and time within the said 21 days as is agreed between the Czech Republic Consular Officials and Mr Hollins. 4. At the date and time agreed for Mr Hollins to attend the Czech Republic Consulate, as per order 3 above, Mr Hollins: 1. provide to consular officials two forms of identification documents, one of which must be his current passport issued by the Australian government or any foreign government, or a current driver licence photo identity card; 2. will thereafter accompany a consular official to a medical appointment made by the consular official with a qualified medical practitioner in the city of Sydney in the State of New South Wales for the purpose of taking from Mr Hollins blood/buccal samples for DNA testing. 1. The qualified medical practitioner taking the samples, seal and mark the blood and buccal samples in accordance with the directions stipulated by the Letter from De Sieglova, the District Court Prague 10 court appointed expert. 2. The consulate official thereafter take all steps necessary to convey the buccal sample and blood spot/FTA card for the forensic genetic test to Dr Sieglova, in accordance with his letter and shipping instructions. 3. The plaintiff be granted leave to apply on two days' notice for further orders if required.

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: 13 May 2016

Commercial Matters Status of Children Act 1996(NSW)

Status of Children Regulation 2013(NSW)

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