Kohari v NSW Trustee & Guardian

The Legislation

1. Before proceeding further, it is useful to say something about the Status of Children Act, Division 6 of which deals with parentage evidence. Relevant to this case are ss 26, 27 and 29 of that Act. Those sections are in the following terms: "26(1) In proceedings where the parentage of a child is in issue, the Supreme Court may make an order requiring a parentage testing procedure to be carried out on any of the following persons for the purpose of obtaining information to assist in determining the parentage of the child: (a) the child, or (b) a person known to be a parent of the child, or (c) any other person, if 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. (2) A parentage testing order may be made by the Court: (a) on the application of a party to the proceedings, or (b) on the application of the Director-General, or (c) on the application of a person representing the child under an order made under section 34, or (d) of its own motion. (3) A parentage testing order may be made subject to terms and conditions. (4) In deciding whether to make a parentage testing order, the Court must: (a) consider and determine any objection made by a party to the proceedings on account of medical, religious or other grounds, and (b) if it determines that an objection is valid, take the objection into account in deciding whether to make the order. 27(1) If the Supreme Court makes a parentage testing order, the Court may make such other orders as it considers necessary or desirable: (a) to enable the parentage testing procedure to be carried out, or (b) to make the parentage testing procedure more effective or reliable. (2) Some examples of the kinds of order that the Court can make under subsection (1) are as follows: (a) an order requiring a person to submit to a medical procedure, (b) an order requiring a person to provide a bodily sample, (c) an order requiring a person to surrender a bodily sample previously obtained from that person or from another person (regardless of whether that other person is still living) that has been stored or otherwise preserved, (d) an order requiring a person to furnish information relevant to the person's medical or family history. (3) The Court may also make such costs orders as it considers just in relation to costs incurred in relation to: (a) the carrying out of the parentage testing procedure or other orders made by the Court in relation to the parentage testing procedure, or (b) the preparation of reports in relation to the information obtained as a result of the carrying out of the parentage testing procedure. (4) In deciding whether to make an order under this section, the Court must: (a) consider and determine any objection made by a party to the proceedings on account of medical, religious or other grounds, and (b) if it determines that an objection is valid, take the objection into account in deciding whether to make the order. … 29(1) If a person who is 18 years or more of age contravenes a parentage testing order or an order under section 27, the person is not liable to any penalty in relation to the contravention. (2) However, the Court may draw such inferences as appear just in the circumstances."

Orders sought

1. The principal order sought by the Defendant in the notice of motion is that the following people, namely, the Plaintiff, the deceased's former wife and the mother of the Plaintiff, Julie Clark, a person acknowledged by the deceased to be his biological son with Ms Clark, Joseph Kohari, and the sister of the deceased, Susanna Urganics, each provide a DNA sample, by saliva taken from the cheek cells, to an authorised person, in order to assist in determining whether the Plaintiff is the biological son of the deceased.
2. There was evidence that each of Julie Clark, Joseph Kohari and Susanna Urganics, was personally served with a copy of the notice of motion and each was named as a party to the notice of motion. Each was also given written notice that the notice of motion was to be heard on 21 September 2016 and that if he/she did not appear, an order may be made in his/her absence: Uniform Civil Procedure Rules - Schedule 10 - Provisions regarding procedure under particular legislation.
3. There was an appearance only by the Plaintiff, although his counsel read an affidavit of Ms Clark in opposition to the relief sought against her in the notice of motion. There was no appearance by, or on behalf of, the other persons identified, and no evidence given that he, or she, had responded to the Defendant's solicitors.
4. The Plaintiff opposed the grant of the relief sought in the Defendant's notice of motion. He did not swear an affidavit stating his objections on account of medical, or religious, grounds, to the making of the order sought, but his counsel has made submissions, in writing, outlining the reasons why the Court should not make such an order. In substance, they included the delay in making the application; the inconvenience that would be caused by making the order sought; the limited utility of making an order; and that there was no credible evidence that the Plaintiff is not the son of the deceased.
5. Ms Clark, who disclosed her residential address as being in Deception Bay, Queensland, swore an affidavit on 12 September 2016, stating that she regards "the prospect of having to undergo a procedure to take a sample of my DNA particularly invasive. I do not wish to be forced to undergo it. I do not wish to participate in it. I oppose the defendant's application."
6. Bearing in mind the nature of the testing proposed, the samples can be obtained without any substantial physical bodily interference. I accept, however, that the order to undergo testing may be an invasion of a person's rights. As White J noted in McCann v McCann [2011] NSWSC 1544 at [29], "Section 26 … empowers the making of orders for the carrying out of parentage testing procedures and to that extent, it interferes with a person's right to protect his or her bodily integrity. Nonetheless, that right is a matter which is to be taken into account in determining whether the discretion for which s 26 provides should be exercised in favour of making a parentage testing order."
7. I am also of the view that whilst the objections made by Ms Clark are not based on medical or religious grounds, they are "other" grounds that the Court takes into account. However, the weight to be attached to each is not significant, since Ms Clark did not state why having to undergo a procedure to take a sample of her DNA is particularly invasive; why she does not wish to be forced to undergo it; or why she does not wish to participate in it.
8. As stated, there is no evidence of the attitude of either Mr Joseph Kohari, or Ms Urganics, to the relief sought in the notice of motion. Neither has advanced any grounds, medical, religious or otherwise, in opposition to the making of the order.
9. I was satisfied that I should proceed with the hearing of the notice of motion. The persons who have not appeared have been given the opportunity to be heard on the question whether the court should require him and her, respectively, to submit to testing. (Also, all that could be said in opposition to the making of the order has been said by counsel for the Plaintiff.)

Whether the substantive proceedings are proceedings in which parentage of a child is in issue

1. As will have been read, the circumstances in which the Court may make an order under s 26 are constrained. Merely because an application for an order has been made, is not, of itself, sufficient to give the Court power to make such an order.
2. The purpose described in s 26 prescribes the ambit or scope of the power to make an order. Here, as stated, there was really no dispute that the substantive proceeding is one where the parentage of a child is in issue. In this regard, the Plaintiff's parentage is relevant to the nature of the proceedings - to establish one ground of eligibility to make a claim for a family provision order.
3. Whilst there is no definition of "child" in the Act, it is clear "that 'child' carries no age connotation and refers to the relationship of a person to a parent, regardless of the person's age: AW v CW (2002) 54 NSWLR 445; [2002] NSWSC 301, per Barrett J, at [8].
4. The Plaintiff, in opposition to the relief sought in the notice of motion, did not appear to be asserting any dishonesty, or a lack of bona fides, by the Defendant, in raising the issue of parentage, but argued that it would be unreasonable to form a belief as to any doubt about the parentage of the Plaintiff. He relied upon the following matters in support of his submissions.
5. The deceased married Ms Clark, the Plaintiff's mother, on 15 December 1974, and was married to her at the date of the Plaintiff's birth on 1 December 1978. It follows that the presumption that a child born from a woman during a marriage is presumed to be a child of the woman and her husband applies.
6. The Birth Certificate of the Plaintiff, registered under the Births Deaths and Marriages Registration Act 1995 (NSW), revealed that the deceased was named as the father of the Plaintiff. Section 49(2) of the Births, Deaths and Marriages Registration Act provides that a certificate certifying particulars contained in an entry is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry.
7. There was a Death Certificate of the deceased registered under the Births Deaths and Marriages Registration Act in which the Plaintiff is identified as a child of the deceased.
8. Section 11(1) of the Status of Children Act provides that a person is presumed to be a child's parent if the person's name is entered as the child's parent in the Births, Deaths and Marriages Register. However, s 15 of that Act provides that a presumption arising under Part 3 Division 1, or a parentage presumption arising under any other Act or rule of law, that is rebuttable, is rebuttable by proof on the balance of probabilities and that every presumption arising under the same Division (except for a presumption arising under s 12(1) or s 14(1) - (3)) is a rebuttable presumption.
9. The deceased and Ms Clark separated some time towards the end of 1979 or early 1980, but they were not divorced until 1988.
10. It is acknowledged that the Defendant does not have any DNA sample of the deceased, his late parents, or his sister, Ms Urganics.
11. The issue of paternity is raised by the Defendant having regard to the following evidence: 1. Ms Santa, the sole beneficiary named in the Will of the deceased, in her affidavit of 13 July 2015, deposes that the deceased told her that Ms Clark became pregnant as a result of one of her indiscretions and bore an illegitimate child, whom she named Robert. The deceased, apparently, commenced divorce proceedings almost immediately after the birth of the Plaintiff, and he left the matrimonial home before the child's second birthday. 2. Ms Santa also deposes to a conversation with Ms Clark in about 1989 when the deceased and Ms Santa went to visit Ms Clark to see her new house in Canley Heights, at which time Ms Santa says that Ms Clark said to her: "Let me tell you something. Paul is not Robert's father. I had a love affair with another man." 3. She also says that the deceased never recognised the Plaintiff as his child and never supported him. 4. Annexure A to Ms Santa's affidavit is a copy of the deceased's affidavit deposed on 30 September 2011. That affidavit was made in a claim for a family provision order that he sought out of his mother's estate: Kohari v Snow [2013] NSWSC 452. In that affidavit, the deceased deposed that whilst he was married to his first wife (Ms Clark), she gave birth to a male who was known as Robert Kohari, and who was then about 32 years of age. He stated that he had always been of the belief that Robert Kohari was not his son. 5. In the affidavit of Administrator dated 1 July 2015, Annexure C is the Questionnaire for the Will of the Deceased of 15 December 2011. In the Questionnaire, the section under the heading "Children", the question asked is "Do you or Julia Santa have any children? This includes children by another marriage, children legally adopted or children now Deceased who themselves left issue". The deceased has (incorrectly) recorded his answer as "No". (It is incorrect because there is no dispute that Joseph was his child.) At page 14 of the Questionnaire, under the heading "Family Provision", it was stated that there was nobody in the "above list" who would not be adequately provided for in the Will. 6. In none of the deceased's Wills, is there any reference to, or provision made for, the Plaintiff. In the Instruction Sheet for the preparation of the deceased's prior will of 3 October 1989, only Joseph is recorded as the deceased's son in the section dealing with Next of Kin. 7. In the section of the Instruction Sheet dealing with the Family Provision Act 1982, it records "Name of possible claimant: Robert Kohari"; Address: "lives with his mother". However, next to "Relationship to Testator" the words and numbers "Son - 11 years" appears. The reason for the exclusion or inadequate provision being made for that person: "(1) Divorced in 1983. Provision was made on 17 July 1989 for the welfare and maintenance of Robert (2) Divorced, 1983, No Children."

Consideration

1. There was no dispute that the Defendant, which is a party to the substantive proceedings and the executor to whom Probate of the deceased's Will has been granted, has a legitimate interest in the result of an application for the determination of the Plaintiff's paternity where the result of such an application may affect the distribution of the estate: Keevers v Chapman [2015] QSC 161, per Martin J, at [17].
2. There was also no dispute that an order determining the parentage of a child may be made whether the supposed parent is alive or deceased. The possibility of the determination that a person who has died is a parent of a particular child is expressly recognised by the Act: s 21.
3. In addition, what the Defendant seeks in the notice of motion falls within the term "parentage testing procedure" as defined by s 3(1): "parentage testing procedure means a medical procedure prescribed, or included in a class of medical procedures prescribed, by the regulations for the purposes of this definition."
4. (While a number of medical procedures were the subject of evidence, counsel for the Defendant acknowledged that the only relevant test was what is described as the "Family Reconstruction Test", which I shall describe hereunder: T26.3).
5. Having established that the substantive proceeding is one where the parentage of a child is in issue, the Court must consider whether to make an order requiring a parentage testing procedure to be carried out on any of the persons named by the Defendant, for the purpose of obtaining information to assist in determining the parentage of the child.
6. Even if the basis for making a parentage testing order is established, the authority to make a parentage testing order will depend upon the exercise of discretion. As stated, s 26(1) gives the Court a discretion - "may make" - to make orders requiring a named person, who falls within s 26(1)(a), (b) or (c), to submit himself, or herself, to the carrying out of a parentage testing procedure. The discretion is unfettered but it is to be exercised judicially and in accordance with the specific facts arising in each case.
7. In my opinion, the parentage testing procedure that the Defendant seeks would, if carried out, assist in determining the paternity of the Plaintiff. This is apparent from the affidavit of 1 June 2016, of Georgina Miller, the Director of DNA Bioservices, in which she deposes, at [15], that: "[a] first degree relative is a parent, child or sibling of an individual. Second-degree relatives are grandparents, grandchildren, aunts, uncles, nieces, or nephews. In the case where an individual's brother, mother and paternal aunt can be tested, the Family Reconstruction [will provide information to assist in determining the parentage of the child]."
8. In Annexure E to Ms Miller's affidavit, a letter by Dr Debra Davis (the Laboratory Director of DNA Diagnostics Centre), the DNA testing process is further explained: "Cases that involve indirect relationship testing including avuncular, single grand-parentage and half sibling tests will only provide a statistical likelihood that gives evidence to support the tested relationship. These are second degree relationships and a test of this nature also will not directly exclude the relationship. The test merely gives the odds of the purported relationship based on the purported relationship and the systems tested. However, if a sufficient number of second-degree relatives are tested (3 or more) the alleged father's profile can be reconstructed and the test can be just as informative as a direct paternity test. This test is called a Family Reconstruction case."
9. It follows that if the three people sought to be tested - the Plaintiff's mother, an admitted biological son of the Plaintiff's mother and the deceased, and the sister of the deceased - are tested, with the Plaintiff, then this will assist in determining the paternity of the Plaintiff.
10. In relation to the matters raised by Ms Clark, scientific advances in the area of parentage testing are such that blood tests, which could be invasive, have now been replaced by the provision of genetic material by, for example, cheek swabs. This means that there is virtually no substantial physical bodily interference. As Bryant CJ wrote in Brianna v Brianna (2010) 43 Fam LR 309; [2010] FamCAFC 97, at [28]: "The increasing availability of parentage testing and the ease with which it is now possible to obtain tests is notorious. The advances in science from blood tests to the DNA testing now available already indicate the scientific advances which have been made and which continue to be made. The blood tests which themselves could be invasive have now been replaced by the provision of genetic material such as mouth-swabs and hair analysis. This means that there is virtually no physical invasion at all."
11. Whilst in Furesh v Schor [2013] WASCA 231, at [67], an application for an interlocutory order for DNA testing was dismissed on appeal by the Western Australia Court of Appeal, in part because it was a "direct interference with personal autonomy", this was done because the Court found that it had no inherent jurisdiction to make such an invasive order. This is not a limitation in New South Wales, however, where the power to make such an order is explicitly created by s 26 of the Status of Children Act.
12. In Piggott v Harrex [2000] TASSC 72, Slicer J, dealing with similar provisions in the Status of Children Act 1974 (Tas) wrote, at [10]: "Exercise of Discretion No principles governing the exercise of discretion are stated in the legislation. The ordinary rules are to be applied (House v The King [1936] HCA 40; (1936) 55 CLR 499) in the context that any order might determine substantive rights (Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170). The application of those principles requires, as a precondition, that a party must have an honest and reasonable belief that there is a doubt as to paternity and that that test is rarely to be an objective one (Duroux v Martin [1993] FamCA 125; (1993) 17 Fam LR 130). The relevant principles are those of competing interests (certainty as against privacy) but remain ones of evidence. The question of paternity is medical rather than legal (G v H [1993] FamCA 39; (1993) 16 Fam LR 525). The rationale for legislative provisions enabling scientific testing is, ordinarily, to promote the welfare of children in family law proceedings (G v H (supra)) whilst retaining the right of privacy. As Lord Reid stated in S (an infant) v S [1972] AC 24 at 43: "I must now examine the present legal position with regard to blood tests. There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will. In my view, the reason is not that he ought not be required to furnish evidence which may tell against him. By discovery of documents and in other ways the law often does this. The real reason is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty.""
13. I have borne in mind all of the matters raised by the Plaintiff. Whilst it is true that the Defendant has delayed in bringing the claim for relief sought in the notice of motion, it is to be remembered that it was only in February 2016, shortly before the hearing, that Ms Clark, the Plaintiff's mother, swore an affidavit upon which the Plaintiff sought to rely.
14. In G v H [1993] FamCA 39; (1993) 16 FamLR 525, at 534, Fogarty, J wrote: "Paternity is now a medical and not a legal issue. Society is entitled, through the legislature and the Courts, to an inexpensive, prompt and virtually certain procedure to decide this question. Paternity is no mere inter-parties issue. The child and society have a vested interest in the correct outcome. The reasons for that are many, including heredity, the sense of identity and the private and public obligations of financial support directly relevant in this case and so emphasised by the legislature over the past decade."
15. Furthermore, important legal rights depend upon the determination of the issue of paternity. In this case, an entitlement to seek and, perhaps, obtain an order for provision out of the deceased's estate and notional estate is one such right. In Attorney General in and for the State of New South Wales; ex parte Thomas Hollins [2016] NSWSC 622, Adamson J, at [19], referred to "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". Another may be to know family medical history.
16. Then, there can be little doubt that "[t]he interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth": S v McC; W v W [1972] AC 24 at 57. In this case, the result of the testing could be of significant probative value.
17. In E v H (1986) 7 NSWLR 212 at 220, Hodgson J wrote: "In my view also in most cases it is in the interests of the child and of justice that questions such as this be decided on the best available evidence. In my view to overcome that consideration would require quite specific and powerful evidence that the interests of the child would be harmed by the making of blood tests."
18. In In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 106, Ward LJ wrote, in relation to paternity: "every child has a right to know the truth unless his welfare clearly justifies the cover-up."
19. This echoed the words of Lord Sumner in Russell v Russell [1924] AC 687 at 748: ". . . my own view is that in the administration of justice nothing is of higher importance than that all relevant evidence should be admissible and should be heard by the tribunal that is charged with deciding according to the truth… It is best that truth should out and that truth should prevail."
20. A similar view was expressed by Young J in Govers v Luff, (Supreme Crt, 5 November 1997, unrep) at 4 as follows: "The cases under the Act suggest that where there is power to make an order for blood tests in order to determine the question before the Court, then unless there is something to the contrary, the tests should be ordered because the Court needs to know the truth."
21. His Honour reaffirmed that view, more recently, in D v Munday [2005] NSWSC 207, at [15].
22. Finally, in my consideration, I have remembered s 29. As Barrett J noted in AW v CW, at [18] - [19]: "Where a parentage testing order has been made, there is no legal compulsion for it to be obeyed. If a person of or over the age of eighteen becomes the subject of an order and chooses to disobey it or simply fails to comply, there is no penalty, although the court may draw from the non-compliance such inferences as appear just in the circumstances. This is the effect of s.29. … The legislation thus works on the basis that evidence derived from the testing of a person's bodily sample cannot be available for use in proceedings under the Status of Children Act if that person (or, in the case of a minor, the parent or guardian) wishes to avoid that use and prefers to face the possibility that adverse inferences will be drawn from failure or refusal to co-operate. The decision to face that possibility will no doubt often be a deliberate one. Individuals may have many different reasons for giving or withholding their co-operation. The reasons will generally concern aspects of their private lives on which they are entitled to make judgments in their own interests and the interests of family members and others to whom they bear affection or owe moral duties. Such value judgments simply cannot be made in relation to the personal life of a dead person, whether by a legal personal representative or by anyone else."
23. As was written by the majority in G v H (1994) 181 CLR 387; [1994] HCA 48, at [17]: "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 as involving a grave or serious allegation."
24. I note that none of the persons who are identified for testing has stated expressly that, if so ordered, he, or she, would not comply with the Court's order. (This is relevant because of the submission that to make the order will be futile.) Therefore, I cannot speculate about how s 29 may operate in the future. (I should mention that in the past, the Plaintiff has refused to provide a DNA sample.)
25. Having considered the evidence, including the objections of Ms Clark, and of the Plaintiff made in the submissions, at the end of the hearing I was satisfied that the Court should exercise its discretion and make an order for parentage testing.
26. I then made the following orders, as agreed by the Plaintiff and the Defendant: "Pursuant to section 26 of the Status of Children Act 1996 (NSW) (Act), a parentage testing procedure be carried out by DNA Bioservices Pty Ltd, an accredited laboratory within the meaning of Regulation 3 of the Status of Children Regulation 2013 (Regulation), on the following persons, for the purpose of assisting in determining the parentage of Robert Kohari, the plaintiff, with respect to the deceased, the late Paul Kohari: Robert Kohari; Joseph Kohari; Julie Clark; and Susanna Ugranics. Within 7 days of the date of this order, the person in Order 1 above is to attend their nearest DNA collection point to be specified by DNA Bioservices Pty Ltd. Each person in Order 1 above to provide a bodily sample by way of mouth swab of saliva taken from the cheek cells, for the purpose of carrying out the parentage testing procedure, namely, a NATA Legal Paternity Test, being a prescribed medical procedure for the purposes of section 3(1) of the Act and Regulation 5 of the Regulation. The bodily sample in Order 3 above is to be taken by an authorised representative of DNA Bioservices Pty Ltd (the authorised representative). In accordance with Regulation 7 of the Regulation, each person in Order 1 above, is to complete an affidavit in accordance with Form 1 of Schedule 1 of the Regulation, immediately before the authorised representative takes the bodily sample. In conducting the parentage testing procedure DNA Bioservices Pty Ltd is to comply with Regulations 8, 9, 11 and 12 of the Regulation. In accordance with Regulation 10 of the Regulation, the authorised representative is to complete a statement in accordance with Form 2 of Schedule 1 of the Regulation. DNA Bioservices Pty Ltd is to provide a report relating to the information obtained as a result of carrying out the parentage testing procedure in accordance with Regulation 13 of the Regulation, and provide a copy of the report to each person in Order 1 above, the defendant and the Registrar of the Court. The defendant to pay the costs of the parentage testing procedure and the reasonable costs of the plaintiff, Julie Clark, Joseph Kohari and Susanna Ugranics attending for the purposes of testing as set out in Order 2."
27. The Defendant should be aware of the matters in UCPR Schedule 10 so far as it relates to service of the report.
28. The matter is next in the Family Provision List on Friday 11 November 2016.

Amendments 04 October 2016 - [28] formatting amendment to (d), (e), (f), (g) deleting duplicate letter points. 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: 04 October 2016