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[1994] HCA 48
High Court of Australia
1994-10-19
Original judgment source is linked above.
G v H [1994] HCA 48; (1994) 181 CLR 387
BRENNAN(1), DEANE(2), DAWSON(2), GAUDRON(2) AND McHUGH(1) JJ
Family Law - Maintenance of child - Paternity - Power of court to order parentage testing procedure to be carried out - Inferences appearing just to be drawn from contravention of order - Standard of proof of paternity - Range of permissible inferences - Family Law Act 1975 (Cth), s. 66w.
provisions which are relevant to its determination are set out in the
reasons for judgment of the majority. Although we are in agreement
with the conclusion at which their Honours arrive and with much of
what is contained in those reasons, there are two steps in the
reasoning which we are respectfully unable to adopt.
2. The first is the statistical calculation of the likelihood of
concurrent failure of the methods of contraception adopted by H when
having sexual intercourse with her clients. There was no evidence as
to the statistical failure of any of these methods and the postulating
of possible rates of concurrent failure of these methods is not, in
our respectful view, an appropriate consideration in determining
whether, on the balance of probabilities, G is the father of H's
3. The second, and a more important step, relates to the drawing of
an inference of paternity from an unreasonable failure to comply with
a parentage testing order made under s.66W of the Family Law Act 1975
(Cth). In this case, there is no doubt but that G might be the father
of H's child. But there are many other men who might be the father.
G and many others had sexual intercourse with H at about the time of
conception. All other men who had sexual intercourse with H during
the possible period of conception wore condoms and during each of
those acts of intercourse H took additional contraceptive measures.
She did not do so during acts of intercourse with G and G did not
always wear a condom. G and H had a personal, not a paid,
relationship during that period. The difference between the
contraceptive practices adopted when G had sexual intercourse with H
and those adopted when any other man had sexual intercourse with her
makes it more likely that G rather than any other man is the father of
H's child. However, the inference that G is the father cannot be
drawn with much confidence merely from the facts above stated.
4. Then there is G's failure to submit to a parentage testing
procedure ordered under s.66W of the Family Law Act. Section 66W(5)
authorizes the Court to "draw such inferences as appear just in the
circumstances" from a person's failure to comply. It is one thing to
say that the Court may draw an inference; it is another to say what
inference should be drawn. An inference is a tentative or final
assent to the existence of a fact which the drawer of the inference
bases on the existence of some other fact or facts. The drawing of an
inference is an exercise of the ordinary powers of human reason in the
light of human experience; it is not affected directly by any rule of
law. Legal principle may confine the basic facts in order to exclude
irrelevancies and, where proof beyond reasonable doubt is required,
the legal standard of proof precludes the drawing of an inference for
the purpose of determining an issue in litigation when the basic facts
are consistent with an innocent inference ((1) Martin v. Osborne
[1936] HCA 23; (1936) 55 CLR 367.). But the drawing of an inference is part of the
process of fact finding: it has to do with the minor premiss in the
syllogism of judgment, not with the major premiss of legal principle.
Therefore, although s.66W(5) authorizes the drawing of a just inference
from a failure to comply with a parentage testing order, it can say
nothing about the inference which should be drawn from the facts of a
5. In many cases, it would be just to draw from a putative father's
failure to comply with a s.66W order the inference that he knows facts
which make it likely that the test would establish his paternity
((2) See Re C (No.2) (1992) 15 Fam LR 355.). Provided the putative
father's failure to comply can be attributed to his consciousness of
facts demonstrating his likely paternity, it is just to draw the
inference that there are facts having that probative effect. But that
is not the present case. Here, Lindenmayer J noted that G "appears to
have declined to submit to testing because, subjectively, he believes
that he is being singled out or discriminated against - in effect, his
objection comes down to 'Why should I have to undergo testing and not
them?'". His Honour refused to draw an inference of paternity,
"Although I have little doubt that the respondent is
certainly frightened that there is a possibility, however
remote, that the results of the test may indicate fairly
conclusively that he is the father I am not prepared in the
circumstances to draw the inference that the test was
refused because the respondent believed that he is the
father or at the least that there was such a high risk of
that conclusion being reached that he preferred to stifle
the evidence".
In our opinion, his Honour was entitled to refuse to draw an inference
of paternity from G's refusal to submit to parentage testing. If the
failure to submit was attributable to G's stated objection to the
making of the parentage testing order, his mere failure to submit to
the procedure says nothing which tends to identify the father of H's
6. Nevertheless, G could have submitted to the parentage testing
procedure and thereby provided the evidence needed to confirm or deny
his paternity. There was no reasonable ground (such as a religious
objection or physical infirmity) advanced for G's failure to submit
to the procedure ordered but his failure simply leaves the Court
with the applicant's evidence as the only material from which an
inference of his paternity might be drawn. But, in the absence of
the evidence - indeed, the conclusive evidence - which G could have
provided, the inference of his paternity can be drawn with more
confidence than it would otherwise have been drawn ((3) Jones v.
Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308, 312, 321 (the citations from R. v.
Burdett (1820) 4 B and Ald 95 (106 ER 873)); Finance Facilities Pty.
Ltd. v. Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 119.) .
7. When a question of paternity arises and the evidence discloses
that one of two or more men must be the father but it is uncertain
which of those men is the father, a slight preponderance of evidence
tending to show that a particular man is the father may be sufficient
to establish paternity if that man fails without reasonable excuse
to comply with a parentage testing order. That is because, first,
paternity is an issue that, as between two or more men, is inherently
difficult to prove without proper parentage testing, so that a slight
preponderance of evidence may be all that can be offered in proof and,
secondly, the testing procedures now available have been demonstrated
to be so accurate that their results will almost inevitably conclude
8. We do not suggest that paternity is not a serious issue. It is
serious because paternity carries with it both significant privileges
and grave responsibilities, only some of which relate to monetary
obligations. The attribution of paternity may be seen by a child's
mother to be no more than the means of procuring a maintenance order
during the child's infancy, but a finding that a particular man is the
child's father might well be of the greatest significance to the child
in establishing his or her lifetime identity. But, when a court is
deciding whether a party on whom rests the burden of proving an issue
on the balance of probabilities has discharged that burden, regard
must be had to that party's ability to adduce evidence relevant to
the issue and any failure on the part of the other party to adduce
available evidence in response. As Mason CJ, Deane and Dawson JJ
explained in Weissensteiner v. The Queen ((4) [1993] HCA 65; (1993) 178 CLR 217 at
"it has never really been doubted that when a party to
litigation fails to accept an opportunity to place before
the court evidence of facts within his or her knowledge
which, if they exist at all, would explain or contradict
the evidence against that party, the court may more
readily accept that evidence. It is not just because
uncontradicted evidence is easier or safer to accept than
contradicted evidence. That is almost a truism. It is
because doubts about the reliability of witnesses or about
the inferences to be drawn from the evidence may be more
readily discounted in the absence of contradictory evidence
from a party who might be expected to give or call it."
In order that justice be done so far as the nature of the subject
permits, the burden of proof of paternity in proceedings for the
maintenance of a child born to an unmarried mother must be discharged
when the party on whom it rests adduces the evidence available to her
or him and that evidence tilts the balance of probability in favour
of the paternity alleged and the putative father, having the sole
capacity to provide conclusive evidence by submitting to a parentage
9. Although Strauss J, with whom Fogarty and Wilczek JJ agreed in
the Full Court might be taken to suggest, contrary to our opinion,
that it is just to infer from G's failure to submit to the parentage
testing procedure that G is the father of H's child, his Honour
ultimately treated G's failure simply as a circumstance strengthening
the inference drawn from other evidence. His Honour said ((5) G v.
H [1993] FamCA 39; (1993) 16 Fam LR 525 at 532-533.):
"The evidence of the appellant raises a sufficient prima
facie case against the respondent. That there was a prima
facie case is implicit in the finding that the respondent's
refusal to undergo parentage testing was unreasonable.
Having regard to the practically conclusive evidence which
only he can make available, he has not sufficiently
answered the appellant's case."
10. We agree. It follows that in our view a finding of paternity was
properly made by the Full Court. We would dismiss the appeal.
DEANE, DAWSON AND GAUDRON JJ H is the mother of a male child born
on 31 July 1987. She claims that G, with whom she had a personal and
sexual relationship in 1986, is the child's father. She brought
proceedings against him in the Family Court of Australia for
maintenance of the child and for an order, under s.66W(1) of the
Family Law Act 1975 (Cth)("the Act"), that she and he "submit to
testing procedures for the purpose of obtaining information to assist
in determining the parentage of the child". Parentage was in issue
because H worked as a prostitute during the period of her relationship
with G and, according to her answers to specific questions or
interrogatories, she engaged in sexual intercourse "with clients on
4 or 5 days of the week and (had) between 3 and 6 clients per day".
2. Although there was an earlier provision to similar effect ((6)
Section 99A(4), which was inserted by s.54 of the [Family Law Amendment
](/cgi-bin/viewdoc/au/legis/cth/num_act/flaa1983194/)Act 1983 (Cth) and repealed by s.53 of the [Family Law Amendment Act
](/cgi-bin/viewdoc/au/legis/cth/num_act/flaa1987194/)1987 (Cth), provided that "(w)here a person who has attained the age of
18 years fails to comply with a direction given under sub-section (1)
to submit to a prescribed medical procedure, the person is not liable
to any penalty in respect of the failure to comply, but the court may
draw such inferences from the failure to comply as appear proper in the circumstances."),
s.66W was inserted in the Act in 1987 along with other provisions
directed "to ensur(ing) that children receive a proper level of
financial support from their parents" ((7) Section 66A(1),
identifying the principal object of Div. 6 of the Act which is
concerned with the maintenance of children.) and to facilitating proof
of parentage. Those other provisions include the provisions of Div.7
of Pt VII which set forth a number of presumptions, including
presumptions of parentage arising from marriage ((8) s.66P), from
registration of birth ((9) Section 66R provides that "(a) person
whose name is entered in a register of births or parentage information,
kept under the law of the Commonwealth or of a State, Territory or
prescribed overseas jurisdiction, as a parent of a child shall be
presumed to be a parent of the child."), from findings of courts
((10) s.66S.) and from an executed instrument acknowledging paternity
((11) s.66T.). Section 66Q, which is also in Div.7, establishes a
presumption based on cohabitation and provides that "(a) child born to
a woman who, for a period of at least 6 months ending not more than 10
months before the birth, cohabited with a man to whom she was not
married shall be presumed to be a child of that man." By s.66U, each
of the presumptions arising under Div.7 "is rebuttable by proof on a
3. Division 8 of Pt VII, which was also inserted in 1987, is
concerned with evidence of parentage. Section 66W, which is in that
"(1)... where the parentage of a child is in issue in
proceedings under this Act, the court may, on the request
of a party to the proceedings, on the request of a person
representing the child under an order made under section
65 ((12) Section 65 provides that "(w)here, in any proceedings
under this Act in which the welfare of a child is relevant, it appears
to the court that the child ought to be separately represented, the
court may, of its own motion, or on the application of the child
or of an organization concerned with the welfare of children or
of any other person, order that the child be separately
represented, and the court may make such other orders as it
considers necessary for the purpose of securing such separate
representation.") or of its own motion, make an order requiring a
parentage testing procedure to be carried out in relation to
a person referred to in subsection (2) for the purpose of
obtaining information to assist in determining the parentage
of the child.
(2) The order under subsection (1) may be made in
relation to:
(a) the child;
(b) a person known to be the mother of the child; or
(c) any other person where the court is of the opinion
that the information that could be obtained if
the parentage testing procedure were to be carried
out in relation to the person might assist in
determining the parentage of the child.
...
(5) Where a person who has attained 18 years of age
contravenes an order under this section, the person is not
liable to any penalty in relation to the contravention, but
the court may draw such inferences as appear just in the
circumstances."
4. An order was made, without opposition, that a parentage testing
procedure be carried out by Genetic Technologies Corporation Pty. Ltd.
in relation to G, H and the child. Evidence was presented, and it has
not been challenged, that the accuracy of DNA fingerprinting, the
technology to be used for the testing procedure, is "(of) the order
of 99.99 percent or greater" and that, if error occurred, "it would
normally result in the person who was the father being shown as not
being the father rather than the other way around". As it happened,
G contravened the order by declining to undergo the test and paternity
had to be decided on the basis of the available evidence and the
inference, if any, to be drawn pursuant to s.66W(5) of the Act.
5. The matter was heard at first instance by Lindenmayer J who said
that he "harbour(ed) grave doubts as to the credibility of (H)",
largely because she had given evidence in earlier proceeding in the
Magistrate's Court denying that she worked as a prostitute after
August 1986 and denying, also, that she had had sexual intercourse
with any male person other than G after that date. Even so, certain
matters were not in dispute and parts of H's evidence were not
challenged. Critically, it was not disputed that there had been a
personal and sexual relationship between G and H in 1986. And it is
common ground that H's evidence as to the various contraceptive and
preventive measures employed with her clients was not questioned or
challenged in any way. In particular, she was not cross-examined on
her evidence that, from mid-1986, she used a diaphragm and spermicide
and that, as well, she required her clients to use a condom to prevent
6. The point of contest in relation to H's evidence concerned the
contraceptive and preventive measures adopted in her relationship
with G. Her evidence was that, on some occasions, she took no
contraceptive measures at all and that G never used condoms. G, on
the other hand, gave evidence that he did use condoms, but he could
not recall with what frequency and admitted he could not say he had
used a condom on every occasion. Under cross-examination, he conceded
that it was "possible" that he was the father of the child. The
learned trial judge rejected H's evidence on this issue and found that
G used condoms "as often as possible" and "more often than not".
7. The unchallenged evidence of H as to the contraceptive measures
taken by and with her clients did not significantly advance her case
in the eyes of the trial judge. Rather, his Honour observed that
"(a)ll contraceptive and prophylactic devices are prone to failure
to one extent or another" and concluded, on that basis, that even if
H's evidence were taken at its highest, it would "not ... be ...
sufficient to exclude, from the ranks of possible fathers ..., any of
the male clients with whom she had sexual intercourse during ... the
relevant period". In this last regard and notwithstanding that there
was no suggestion to H in cross-examination that her pregnancy had
been an unusually short or long one, his Honour found that conception
could have occurred over a period of 9 weeks during which H "must be
taken to have had sexual intercourse with between 108 and 270 male
clients". Thus, his Honour saw H's case as depending substantially
on the inference, if any, to be drawn from G's failure to submit to
8. The trial judge found that G's refusal to submit to testing
was unreasonable (a matter to which we shall return), but was "not
prepared ... to draw the inference that the test was refused because
(G) believed that he (was) the father or at the least that there was
such a high risk of that conclusion being reached that he preferred
to stifle the evidence". His Honour then concluded that, in the
circumstances, "the weight to be attached to the refusal to submit
to testing is insufficient even when considered in the light of the
admitted acts of sexual intercourse ... to establish ... that (G) is
indeed the father of the child". That conclusion was reached in a
context in which the trial judge considered that proof was required
on the balance of probabilities but, following Briginshaw v.
Briginshaw ((13) [1938] HCA 34; (1938) 60 CLR 336.), "with full regard to the
9. H appealed successfully to the Full Court of the Family Court.
As appears from the judgment of Strauss J (with which Fogarty and
Wilczek JJ agreed), the Full Court approached the matter on the basis
that, in the circumstances, the inference to be drawn pursuant to
s.66W(5) was that "(G) should be held to be the father of the
child" ((14) [1993] FamCA 39; (1993) 16 Fam LR 525 at 533.). The matters requiring
that inference to be drawn were identified in these terms:
"The evidence of (H) raises a sufficient prima facie case
against (G). That there was a prima facie case is implicit
in the finding that (G's) refusal to undergo parentage
testing was unreasonable. Having regard to the practically
conclusive evidence which only he can make available, he has
not sufficiently answered (that) case." ((15) ibid. at 532-533.)
10. The argument in this Court has two aspects. The first concerns
s.66W(5). It was put that an adverse inference under that sub-section
is only "just" if "not inconsistent with other evidence, including
reasons for refusal, found by the (trial) Judge". The second concerns
the evidence in the case. It was said that the Full Court proceeded
to overturn the conclusion of the trial judge without reference to the
facts other than G's refusal to submit to the test ordered under
s.66W(1). It is convenient to deal first with the evidence in the
case. And that requires some consideration of Briginshaw v.
11. It is true that, apart from G's refusal to submit to testing, the
Full Court did not refer to the effect of the evidence in the case
beyond saying that the "evidence of (H) raises a sufficient prima
facie case against" G. Moreover, their Honours were in error in
saying that the existence of a prima facie case was "implicit" in the
finding of the trial judge that G's refusal was unreasonable. That
finding did not reflect his Honour's assessment of the strength of the
case against G. Rather, it was concerned with the reasons proffered
by him for refusing to submit to the test, namely his assertion (which
was not persisted with in cross-examination) that he always used a
condom and his belief (which may be related to that assertion) that he
should not be singled out for testing. Notwithstanding his earlier
finding that the evidence of H, even at its highest, did not exclude
the possibility that one of her clients might be the father, the trial
judge considered that those reasons did not constitute an acceptable
explanation because there was "an ongoing sexual relationship during
the time in which conception (might) have occurred". In taking that
approach, his Honour doubtless had in mind s.66W(2)(c) of the Act
which permits the making of an order for a parentage testing procedure
to be carried out in relation to a person if the court is of the
opinion that the test "might assist in determining ... parentage" (our
12. Nonetheless, the Full Court was correct in overturning the
decision of the learned trial judge. As will be seen, the trial judge
was in error in approaching the case on the basis that the case was
one in which the particular considerations referred to in Briginshaw
v. Briginshaw were applicable. Once those considerations are put to
one side, the case was one in which, in the circumstances clearly
established by the evidence, the "just" inference to be drawn from G's
continuing contravention of the order that he submit to testing was
that it was more probable than not that the outcome of the test would
be unfavourable to him. And that must lead to the finding that, on
the probabilities, he was the father of the child. We turn to explain
13. As already indicated, H's evidence as to the contraceptive and
preventive measures taken in the course of her work was not the
subject of cross-examination. The trial judge considered that
evidence to be of little significance because of the possibility
that the measures might have failed. However, in adopting that
approach, his Honour seems to have overlooked that evidence-in-chief
and cross-examination had been led and conducted by both sides on the
basis that it could be assumed that the methods of contraception
involved were ordinarily reliable and that no evidence at all was
led to cast doubt upon or disprove such an assumption. Moreover,
the learned trial judge would seem to have overlooked the full
significance of H's unchallenged evidence that in her relations with
persons other than G, a combination of three contraceptive methods was
invariably used. That is important because if, on a given occasion,
there were one chance in ten of any one of the measures failing (in
the sense of not offering complete protection against the possibility
of conception) and the reasons for the failure of any one measure were
unrelated to the others, there would be only one chance in a thousand
of all three failing at the same time. And on that statistical basis,
if one assumes that H had intercourse with 250 clients during the
period in which conception could have occurred (a figure towards the
upper end of the range postulated by the trial judge), there would be
only less than one chance in four that all three contraceptive methods
would fail on at least one occasion ((16) If the probability of the
combined contraceptive methods not failing on any given occasion is
assumed to be 999 chances in 1,000, or .999, then the probability of
their failing at least once on 250 independent occasions is 1-(.999),
or about .22.) whereas the evidence indicated that G had actually
had unprotected sex with H on a number of occasions during the relevant
period. Of course, that says nothing about the statistical probability
of conception either during unprotected voluntary intercourse with G or
in the event of such a failure of contraceptive methods during
intercourse with a client. Moreover, there is a difference between
statistical and legal probability. However, the trial judge seems to
have had no regard to the fact that H deposed to measures which were
used in combination and, perhaps, that is why her evidence was not seen
14. Whatever the statistical probabilities, the unchallenged evidence
of the contraceptive and preventive measures which H used with her
clients, in particular the evidence that all three measures were
always used, her evidence that, with G, there were occasions when she
took no contraceptive measures and the fact that there were occasions
when G did not use a condom (which is implicit in the trial judge's
finding that G used a condom as often as possible and more often than
not) and G's own admission that it was "possible" that he was the
father of the child, lead to the conclusion, as a matter of legal
reasoning, that of all the persons with whom H had intercourse in the
period during which conception could have occurred, G is the most
likely to be the father of the child. Indeed, unless there are
special considerations relating to proof of paternity, there is much
to be said for the view that the material in evidence was of itself
sufficient to discharge the onus of proof, upon the probabilities,
which rested upon H. It is, however, unnecessary to pursue that
question. It suffices for present purposes that, as will be seen,
the material in evidence gave rise to a situation in which the "just"
inference to be drawn from G's continuing contravention of the Family
Court's order was an inference that it was more probable than not that
the outcome of the test would be unfavourable to him.
15. It has been clear since the decision in Briginshaw v. Briginshaw
that in civil cases the standard of proof is on the balance of
probabilities, with due regard being had to the nature of the issue
involved so that "(t)he seriousness of an allegation made, the
inherent unlikelihood of an occurrence of a given description, or the
gravity of the consequences flowing from a particular finding are
considerations which must affect the answer to the question whether
the issue has been proved to the reasonable satisfaction of the
tribunal." ((17) (1938) 60 CLR at 362 per Dixon J; see also at 347,
350. See, as to the civil standard generally, Newis v. Lark (1571) 2
Plowd 403 at 412 (75 ER 609 at 621); Cooper v. Slade [1858] EngR 546; (1858) 6 HLC 746
at 772-773 [1858] EngR 546; (10 ER 1488 at 1498-1499); Neat Holdings Pty. Ltd. v.
Karajan Holdings Pty. Ltd. [1992] HCA 66; (1992) 110 ALR 449 at 449-450,
[1992] HCA 66; 67 ALJR 170 at 170-171.) Thus, if there is an issue of "importance
and gravity", to use the words of the trial judge, due regard must be
16. Not every case involves issues of importance and gravity in the
Briginshaw v. Briginshaw sense. The need to proceed with caution
is clear if, for example, there is an allegation of fraud or an
allegation of criminal or moral wrongdoing, as in Briginshaw v.
Briginshaw where the allegation was adultery by a married woman, an
allegation involving serious legal consequences when that case was
decided ((18) See (1938) 60 CLR at 347, 350, 353, 368, 372. See
generally, as to allegations of fraud or criminal or moral wrongdoing,
Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691 at 701, 712; Rejfek v. McElroy
[1965] HCA 46; (1965) 112 CLR 517 at 521-522; but cf. Neat Holdings Pty. Ltd. v.
Karajan Holdings Pty. Ltd. (1992) 110 ALR at 450-451, 67 ALJR at
171-172.). Paternity is a serious matter, both for father and
for child. However, it is not clear that the question of paternity
should be approached on the basis that it involves a grave or serious
allegation in the Briginshaw v. Briginshaw sense when what is at issue
is the maintenance of a child and the evidence establishes that the
person concerned is more likely than anyone else to be the father.
After all, paternity can be determined easily and, for practical
purposes, conclusively. And now that that is so, it is difficult to
see why, if a person who could be the father declines to participate
in procedures which will provide proof one way or the other, the
child's rights to maintenance and support should nonetheless depend on
the biological fact of paternity being established on the basis that,
so far as the putative father is concerned, the biological fact
involves an allegation in much the same category as an allegation of
moral or criminal wrongdoing. Moreover, while a determination of
parentage for the purposes of Family Law Act proceedings is obviously
a serious matter for both the child and the putative parent, such a
determination cannot properly be regarded as a declaration of
paternity in the traditional sense. As Strauss J pointed out in the
Full Court, there is some doubt as to whether the Family Court has
the power to make such a declaration, and it is "neither necessary
nor desirable" that such a declaration be made in a case such as the
present ((19) (1993) 16 Fam LR at 534. See also Re C (No.2) (1992) 15
Fam LR 355 at 365; Duroux and Martin [1993] FamCA 125; (1993) 17 Fam LR 130 at 134.) .
17. As earlier indicated, there are several presumptions in Div.7
of Pt VII which are "rebuttable by proof on a balance of
probabilities" ((20) See s.66U.). Those presumptions proceed on a
basis which is diametrically opposed to the notion that, in maintenance
proceedings, the biological fact of parentage involves an important or
grave allegation to which due regard must be had before a finding is
made in that regard. Rather, the presumptions operate in the interests
of the child and provide the basis for the imposition of parental
duties and responsibilities unless and until proof to the contrary is
forthcoming. And although there is no presumption involved, s.66W(5)
also operates, in our view, on a basis that is opposed to the notion
that the biological fact of parentage, standing alone, involves a
serious or grave allegation to be determined by reference to
Briginshaw v. Briginshaw considerations. The expression "just
inference" is, perhaps, novel, but it is apt, at the very least,
to convey the notion that, given technological advances which have
made proof of parentage both simple and, for practical purposes,
conclusive, inferences should be drawn from a refusal to submit to
testing, free of the reluctance that might be expected if the
biological fact, as distinct from its possibility, were to be regarded
18. Given the presumptions in Div.7 and the terms of s.66W(5), it
seems to us that, where in proceedings under the Act the evidence
establishes that a particular person could be the father of the child
concerned, the question of actual paternity ought to be approached
free of restraints inherent in the view that that question is, of its
nature, one that "affect(s) the nature of the answer to the question
whether (it) has been proved to the reasonable satisfaction of the
(court)" ((21) Briginshaw v. Briginshaw (1938) 60 CLR at 362.).
19. The inference with which s.66W(5) is concerned is that to be
drawn from the contravention of an order requiring a parentage testing
procedure to be carried out. It is not an inference to be drawn from
the reasonableness or otherwise of the refusal to submit to testing or
the explanation, if any, proffered for that refusal. It may sometimes
be necessary to consider those reasons or explanations for the purpose
of determining whether they preclude or negate an inference that might
otherwise be drawn. And in that process it may be relevant to
determine whether or not they are reasonable. But even so, the
inference with which s.66W(5) is concerned is that to be drawn from
contravention of an order under s.66W(1). For present purposes and in
terms of s.66W(2)(c) it is contravention of an order by a person in
relation to whom "(a) parentage testing procedure ... might assist in
20. The inference, if any, to be drawn pursuant to s.66W(5) of the
Act will depend on the circumstances of the particular case. And, of
course, it must be consistent with the evidence and the findings. As
a general rule, there will be an inference as to the state of mind of
the person who has contravened the order made under s.66W(1) and
another as to the question whether he or she is the parent of the
21. So far as G's state of mind is concerned, it may be inferred that
he has chosen to take the risk of being held to be the father of H's
child and liable for his maintenance and support rather than submit to
a test which will effectively disclose whether or not he is in fact
the father. That is not an inference that is in any way inconsistent
with the evidence, the findings or the reasons proffered by him for
refusing the test. And if, as here, the evidence establishes that a
particular person is the most likely person to be the father and that
person 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
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.
23. It must be remembered that, while the proceedings in form are
between H and G, the underlying purpose of their availability is,
as said above, to ensure "that children receive a proper level of
financial support from their parents" ((25) s.66A(1).). An order
under s.66W that a person submit to a parentage testing procedure will
only be made where the court thinks it appropriate in the
circumstances. When made, it can ordinarily be readily obeyed. If
obeyed, it will effectively disclose whether the particular person is
in fact the parent. If, as in the present case, such an order is made
for the purposes of proceedings in relation to the maintenance of a
child against the person whom the evidence identifies as the most
likely to be the father of the child and that person, without
reasonable excuse, refuses to submit to the order, the just inference
to be drawn for the purposes of those proceedings is that it is more
probable than not that the court-ordered test would disclose that that
person is the father. Indeed, depending upon the circumstances, such
an inference could be "just" for the purposes of such maintenance
proceedings notwithstanding that the other evidence in the case did not
24. Although we have expressed the inferences which should properly
and justly be drawn in the circumstances of this case a little
differently from the inference identified by the Full Court of the
Family Court, there is no need for any variation of its order by which
the matter was remitted to the trial judge for further consideration.
# G
H \[1994\] HCA 48;
(1994) 181 CLR 387
(1994) 124 ALR 353
(1936) 55 CLR 367
(1992) 15 Fam LR 355
(1959) 101 CLR 298
(1971) 127 CLR 106
(1993) 178 CLR 217
(1993) 16 Fam LR 525
(1938) 60 CLR 336
(1992) 110 ALR 449
(1940) 63 CLR 691
(1965) 112 CLR 517
(1992) 15
Fam LR 355
(1993) 17 Fam LR 130
(1991) 173 CLR 95