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.