Plaintiff v First Defendant

1 Patricia Farnell makes application for a declaration of paternity under s 10(1) of the Status of Children Act 1974 (Vic) in respect of her daughter, Cindie Sassons. She alleges the late Malcolm Henry Chipperton is Ms Sassons' father.

2 As was held by Brennan and McHugh JJ in G v H,[1] paternity is a serious issue:[2]

It is a serious issue 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.

3 Section 10(1)(a) allows a declaration of paternity to be issued if a female applicant proves to the satisfaction of the court that a named male is the father of her child, whether or not he is living or dead. The test in s 10(1) is expressed in terms of whether "the relationship" is proved to exist, by which is meant the biological relationship of father and child.

4 Serious though the issue of paternity is, an application for a declaration of paternity is a civil application, and the standard of proof applicable in such a proceeding is the ordinary civil standard, namely the balance of probabilities.[3] As the High Court held in G v H in reference to the essentially protective and beneficial nature of the paternity provisions of the Family Law Act 1975 (Cth), it was not necessary, in applications under those provisions, to prove paternity according to the higher civil standard that applies when the question involves a grave allegation.[4] I think the paternity provisions of the Status of Children Act are analogous in this respect. Therefore, in an application for a declaration of paternity, it is sufficient to prove the facts according to the ordinary civil standard. The applicant does not have to achieve the higher civil standard discussed in Briginshaw v Briginshaw.[5] The decision in G v H has overtaken the authority of earlier decisions that the higher standard was applicable.[6] It follows that, in the present case, Ms Farnell must establish Mr Chipperton is the biological father of Ms Sassons according to the ordinary civil standard - the balance of probabilities.

5 As to the onus of proof, that is on Ms Farnell, not because she is the mother of the child but because she is the applicant.[7] However, the presumption in s 5 and the prima facie position in s 8 of the Status of Children Act must be borne in mind.

6 Ms Sassons was born on 19 April 1979. At that time, Ms Farnell was living with the late Raymond James Farnell, to whom she had been married since 25 July 1959. Under s 5, a child born to a woman during her marriage shall, in the absence of evidence to the contrary, be presumed to be the child of the mother and her husband. Thus, in the absence of evidence to the contrary, Mr Farnell must be presumed to be Ms Sassons' father.

7 The operation of s 5 was, with respect, accurately explained by Smith J in Moszko v Warshall:[8]

[I]t seems to me that the presumption is one that simply operates in the absence of evidence to the contrary. Its effect is, therefore, to shift the evidentiary burden of proof. If in response to that shifting of the evidentiary burden, evidence is adduced which, if accepted, would contradict the presumption, the presumption will no longer operate and the issue in question must then be determined on the basis of all the evidence.

8 Under s 8(1), the entry of the name of a father of a child in the register of births maintained under the Births, Deaths and Marriages Registration Act 1996 (Vic) is prima facie evidence that the person so named is the father of the child.[9] Ms Sassons' birth certificate specifies that Mr Farnell is entered on the register as her father. This is prima facie evidence of that fact. As with the presumption in s 5, the prima facie position can be displaced by contrary evidence.

9 In summary, by reason of the presumption specified in s 5 and the prima facie position specified in s 8 of the Status of Children Act, I must approach Ms Farnell's application on the basis that Mr Farnell is presumed to be, and prima facie in fact is, the father of her child, Ms Sassons. But if I were to be satisfied, on the evidence, that Mr Chipperton was Ms Sassons' biological father, there would be evidence contrary to the presumption specified in s 5, and evidence displacing the prima facie position specified in s 8, such that I could, under s 10(1), issue the declaration of paternity sought by Ms Farnell. The case turns, therefore, on whether Ms Farnell has, on the evidence, proved to my satisfaction, and on the balance of probabilities, that Mr Chipperton is Ms Sassons' father.

10 Ms Farnell contends the evidence in this case proves Mr Chipperton is the father of her child. She asks me to issue a declaration of paternity to that effect. Mr Chipperton's estate is represented by his executor, Francis Penhalluriack. He contends the evidence falls far short of establishing Mr Chipperton's paternity, particularly taking the DNA evidence into account. He asks me to dismiss Ms Farnell's application.

11 I will begin my examination of the evidence with the relationship between Ms Farnell and Mr Chipperton.

12 Ms Farnell is 66 years of age and was born in England. She and her late husband married in 1959 and immigrated to Australia in 1964. They had no children and, on Ms Farnell's evidence, stopped having sexual intercourse altogether in the early 1970s.

13 Ms Farnell said the couple were childless because Mr Farnell was infertile, probably due to his heavy smoking. She based that view on the fact that the couple had no children and on what they were told following specialist medical checks in 1971. There is no admissible evidence of these checks, and no admissible evidence of Mr Farnell's infertility, which is a medical issue that I cannot treat as established. I do not infer he was infertile from the fact that the marriage was childless. I am unable to make a finding as to whether Mr Farnell was also impotent, as Ms Farnell's evidence left me with some doubts in this regard.

14 A relationship between Ms Farnell and Mr Chipperton began in 1974. At first it was a business relationship. Then it developed into a sexual one. In about 1976, Ms Farnell and Mr Chipperton stopped seeing each other for some time.

15 The relationship resumed a little later. Mr and Ms Farnell had a shared interest in the Humane Society, which is dedicated to the prevention of cruelty to animals. Mr Farnell was a founding member of the society, in which Ms Farnell was also very involved. Ms Farnell and Mr Chipperton came into contact again when she sought his assistance in relation to the registration of the society. The sexual relationship resumed, although Ms Farnell used birth control. She did not want to have children with Mr Chipperton, their relationship not being stable at that time, although she was overjoyed at actually becoming pregnant with Ms Sassons.

16 Ms Farnell deposed that she became pregnant to Mr Chipperton with Ms Sassons in mid-1978. Taking Ms Sassons' birth on 19 April 1979 at full term into account, that was about the time she would have been conceived. This is Ms Farnell's description of that occasion of sexual intercourse with Mr Chipperton:

1. In mid 1978, after another fairly long absence, he turned up very unexpectedly in the late afternoon at Aspendale where I lived and where the Humane Society operated from at that time. He was very distraught. I had just got out of the shower and I was very tired after a stressful day. I did not want to invite him in. However, he would not go away and became increasingly upset demanding to come in. He said he was just on his way back from an unsuccessful meeting in Frankston. I felt very sorry for him. I let him in hoping I could calm him down.
2. I made it clear I was not using any birth control and that I did not want to have sex but I acknowledge I was not assertive enough. The phone rang and while I was answering it he came up behind me, undid the only fastening - a tie belt, on my bathrobe, and carried me into the bedroom, and we had sexual relations.
3. I am able to recall the exact circumstances of when I became pregnant not only because Chipperton was the only person I was on intimate terms with but also because of the rarity of such encounters and the fact that, unlike on previous occasions I was not using any birth control. I had no reason to. I hadn't seen him for a while and had not expected to see him again. I was not involved with anyone else.

Ms Farnell elaborated on that encounter in evidence.

17 Except for the alleged fatherhood of Ms Sassons by Mr Chipperton, there is no evidence of this sexual encounter beside that of Ms Farnell. That is the very nature of encounters of this kind. Ms Farnell was cross-examined strongly on her evidence in this regard. I found her account to be credible and consistent with the relationship she then had with Mr Chipperton. I do not accept Mr Penhalluriack's submission that Ms Farnell's evidence in this regard was a fantasy. I find the encounter occurred and was an occasion of unprotected sexual intercourse between Ms Farnell and Mr Chipperton at about the time of Ms Sassons' likely conception. Mr Chipperton could therefore have been Ms Sassons' father.

18 Ms Farnell deposed that, at the time she had that sexual encounter with Mr Chipperton, she was not having sexual relations with anybody else, and certainly not with Mr Farnell, with whom she had not had sexual relations for many years. Indeed, she deposed she did not have sexual relations at all from that occasion in 1978 until her relationship with Mr Chipperton recommenced some 18 years later in 1995, just as she had not had sexual relations with anybody else except Mr Chipperton from the early 1970s. I accept her explanation that she had mistakenly specified that later period as two years up to 1978 in an earlier affidavit.

19 When Ms Farnell realised she was pregnant in about July 1978, she told Mr Chipperton. He did not contact her again.

20 Ms Farnell also told her husband. His reaction was one of concern for the welfare of the child and a desire to protect the good name of the society from any scandal that might arise. Mr Farnell suggested the child's name be entered in the birth certificate with him as the father, which was done.

21 The couple's relationship was enriched by their mutual concern for Ms Sassons' upbringing. Ms Sassons spent her early years growing up in the family household thinking Mr Farnell was her father.

22 When the relationship between Mr and Ms Farnell broke down in 1985, the mother and daughter moved out of the family home, and Ms Farnell told Ms Sassons, who was then about six years of age, that Mr Farnell was not her father. Ms Farnell later told her Mr Chipperton was her father. Mr Farnell and Ms Farnell eventually divorced. Mr Farnell died on 31 August 1996.

23 A little later, on 14 November 1996, Cindie Farnell changed her family name to Cindie Sassons. She was 17 years of age. Because she was under 18 years of age, by reason of ss 34(1) and 35(1) of the Registration of Births, Deaths and Marriages Act 1959, Mr Farnell's consent would have been required if he had then been alive. Ms Sassons' explanation for changing her name at that time was to avoid being stalked and harassed by a particular individual who was causing her considerable difficulties at that time. I accept that explanation, which is consistent with her choice of family name.

24 In about 1995, the relationship between Ms Farnell and Mr Chipperton recommenced. A great deal of evidence was given by and on behalf of Ms Farnell in this regard. The purpose of this evidence was to establish that Mr Chipperton acknowledged Ms Sassons to be his daughter.

25 In paternity proceedings of this kind, evidence of a father's acknowledgment of paternity is in the nature of an admission against interest and is admissible as such. Such an acknowledgment may be express or implied, by words, conduct or behaviour. In the present case, I admitted a body of evidence on this basis, along with evidence of the relationship between Mr Chipperton, Ms Farnell and Ms Sasson. Such evidence is not, like DNA evidence, direct evidence of the existence of a biological relationship. However, taken with other evidence, such as evidence of sexual contact or opportunity for sexual contact, it is evidence from which the existence of that kind of relationship might be inferred.

26 The evidence shows the relationship between Ms Farnell and Mr Chipperton continued from 1995 until 1998. According to Ms Farnell's evidence, which I accept in this regard, the couple lived in a de facto relationship as husband and wife from October 1996 until January 1998. Mr Chipperton gave Ms Sassons and Ms Farnell financial assistance on several occasions, including a deposit for a house. He paid for Ms Sassons' schoolbooks and driving lessons. There were several occasions on which Ms Farnell and Ms Sassons introduced Mr Chipperton as Ms Sassons' father, which he did not deny. His failure to make denials represented implied admissions against interest, to which I attach some weight. He met a finance broker at Mr Chipperton's house in Ripponlea in which he told the broker he needed to arrange finance for "my daughter". This represents an express admission against interest, to which I attach more weight. There was a housewarming party at Ms Sassons' new flat where Ms Farnell introduced Mr Chipperton to guests as Ms Sassons' father, which again he did not deny. Mr Chipperton did not deny being Ms Sassons' father when shopping with her for a bed. The entire body of evidence on the subject points unequivocally to Mr Chipperton's state of belief at this time.

27 This evidence was given mainly by Ms Farnell and Ms Sassons. Again, I would generally accept Ms Farnell's evidence in this regard, which was well tested by a searching cross-examination. Ms Sassons was a patently credible witness, and I accept her evidence. For example, I accept that, at about the time Mr Chipperton's wife died, Mr Chipperton told Ms Sassons something along the lines "I am sorry I haven't been around" and "it's a shame we haven't gotten to know each other sooner". That was a very explicit admission against interest to which I attach considerable weight.

28 My conclusion is that the acknowledgement evidence establishes that, in the period between 1996 and early 1998, Mr Chipperton acknowledged Ms Sassons to be his daughter.

29 However, it is also clear that, by about March 1998, for whatever reason, Mr Chipperton doubted that to be the case, and he eventually came to believe it was not the case. This emerges most clearly from his termination of his relationship with Ms Farnell and Ms Sassons at about that time, his termination of financial assistance to Ms Sassons, and his opposition to the proceedings in the Family Court of Australia initiated against him soon afterwards by Ms Farnell and Ms Sassons. I will turn to those proceedings after dealing with the likeness evidence.

30 Evidence of physical likeness may be given in paternity proceedings,[10] although it has been said "that such evidence of resemblance is often fanciful and must be treated with great caution."[11] I think that caution is even more called for when the father or the child is deceased and the court cannot make the comparison for itself. I would also note that some children do not look much or at all like their biological father.

31 Evidence of the physical likeness between the late Mr Chipperton and Ms Sassons was given by Ms Farnell, Peggy Belzios and Barbara Woodward. It was denied in the evidence of Mr Penhalluriack. There was some evidence that Ms Sassons bore little or no resemblance to Mr Farnell. There is a photograph of Mr Chipperton in evidence, and I was able to compare it with Ms Sassons' physical appearance when she gave evidence. Of course this is a very unsatisfactory way to make such a comparison. On the evidence I would accept there is some physical likeness between the two, but it is certainly not strong or remarkable. Viewing this evidence with the caution required, I can say no more than that the physical likeness between Mr Chipperton and Ms Sassons is some evidence confirming my earlier finding that he could have been her father. The evidence is not sufficient for me to make a finding about the alleged lack of likeness between Ms Sassons and Mr Farnell.

32 Turning now to the proceedings in the Family Court of Australia, not long after Mr Chipperton broke off the relationship with Ms Farnell and withdrew any financial assistance for Ms Sassons, Ms Sassons issued an application for child maintenance against him. It was issued on 27 April 1998. The court ordered that parentage testing be carried out pursuant to s 69W of the Family Law Act 1975 (Cth).

33 Mr Chipperton obtained a DNA test from Simons GeneType Diagnostics Pty Ltd, which involved the examination of blood supplied by Mr Chipperton, Ms Farnell and Ms Sassons. The results of the test were provided by Dr Malcolm Simons in a report dated 30 July 1998, which stated Mr Chipperton was excluded from identification as the father of Ms Sassons.

34 Ms Sassons' application was dealt with on 12 August 1998, on which day she and Mr Chipperton signed minutes of consent orders in which she acknowledged and accepted that the DNA test results proved Mr Chipperton was not her father. The court ordered by consent that her application be dismissed.

35 Ms Farnell has criticised Dr Simons' report, as she has the other DNA reports which have been presented in evidence in this case. I will deal with those criticisms separately.

36 Ms Farnell did not accept the results of Dr Simons' DNA test. On 16 September 1998 she issued her own application for child maintenance against Mr Chipperton, naming him as Ms Sassons' father.

37 Ms Farnell's application was heard on 15 October 1998, on which day she made a further request for parentage testing. The court dismissed her application as an abuse of process and also dismissed her application for parentage testing. The court noted the tissue samples used in the first DNA test could possibly have been mixed up with other samples, although it was unlikely.

38 Ms Sassons made a second application for child maintenance against Mr Chipperton. It was dismissed by the court on 2 December 1998 and she was restrained from making further applications (with one exception) without the leave of the court. However, the parties subsequently agreed there would be a second DNA test, for which orders by consent were made on 15 January 1999.

39 That second DNA test was carried out with blood provided to the Australian Red Cross Blood Unit. The results were supplied in a report dated 27 January 1999 from Dr Albert Haddad, the senior scientist of parentage testing. The results were that Mr Chipperton was again excluded from identification as Ms Sassons' father.

40 Ms Farnell did not accept the results of this second DNA test. On 28 July 1999 she filed an application for leave to appeal out of time against the orders made on 15 January 1999 which, in light of the negative test, prevented her from taking the matter further in the court. The application for leave to appeal was dismissed on 30 August 1999. The court also restrained Ms Farnell and Ms Sassons from issuing further paternity or maintenance applications against Mr Chipperton, which is where matters presently stand.

41 At no time in the various proceedings in the Family Court of Australia did Mr Chipperton acknowledge he was Ms Sassons' father. He participated in two court-ordered DNA tests which excluded him as Ms Sassons' father. He relied on those tests in the proceedings in the court by resisting the various applications made by Ms Farnell and Ms Sassons and by seeking orders preventing them from taking the matter further in that court. His conduct in the proceedings shows that, at least by the time the second DNA test was carried out, he did not believe he was Ms Sassons' father.

42 In consequence, despite Mr Chipperton's earlier acknowledgment of being Ms Sissons' father, the later and presently relevant fact is that, on the basis of the DNA tests, he came to deny it.

43 After failing to obtain an order from the Family Court of Australia recognising Mr Chipperton's paternity of Ms Sassons, Ms Farnell has, in this application for a declaration of paternity, brought the controversy to this Court. Mr Penhalluriack's application to have her application dismissed or stayed was refused by Bongiorno J.[12] As his Honour held, "at no time has a judicial determination of Cindie Sassons' parentage been made."[13] That is the determination I am now considering, and its fate will be determined by the following consideration of the DNA evidence.

44 The science of biology has reached the stage that DNA testing provides evidence of paternity on which the courts can usually safely act, and they regularly do so. As Deane, Dawson and Gaudron JJ said in G v H,[14] "paternity can now be determined easily and, for practical purposes, conclusively." However, DNA evidence stands in no different category to other evidence of a scientific nature. Unless it is received into evidence without objection, DNA evidence must be properly proved by admissible evidence. Such evidence must come from an appropriately qualified expert. Thus I refused in this case to allow the DNA evidence to be proved informally, and granted an adjournment and made other necessary orders to allow it to be proved formally. Once a DNA test has been admitted into evidence without objection or properly proved, it will be presumed to have been regularly conducted unless the contrary is shown. To that end, such evidence is liable to be tested by the usual forensic means, such as cross-examination and the giving of contrary evidence. If, for example, defects are exposed in the testing procedure or in the taking and examination of the tissue samples, this may undermine the reliability of the test results. Like other kinds of scientific evidence, the reliability of DNA evidence can be undermined by various kinds of potential contamination and laboratory error.[15] Having regard to the consequences of a finding of paternity, and to the possibility of error in the DNA testing procedure, it is important that the parties are allowed reasonable scope to test the evidence for such defects. In this proceeding, I allowed Ms Farnell that scope, and made various procedural orders and rulings accordingly. But, in the final analysis, the courts will act on properly proved DNA evidence not shown to be unreliable. A finding of paternity, or the lack of it, will follow that evidence virtually as night follows day. So it must be in the present case.

45 The DNA evidence here was of three tests. All of them excluded Mr Chipperton as Ms Sassons' father.

46 The first was sought by Mr Chipperton in the context of Ms Sassons' first application for child maintenance in the Family Court of Australia. As I have said, it was carried out by Simons GeneType Diagnostic. The report of Dr Simons dated 30 July 1998 was that Mr Chipperton was excluded from identification as Ms Sassons' father.

47 At the time Ms Farnell made a number of complaints about that test. Dr Simons responded by retesting the same tissue samples, but with the same result. Ms Farnell repeated her complaints in her evidence before me. None of the complaints were shown to be substantiated. There is no evidence suggesting the original test carried out by Dr Simons was defective. It was professionally and competently conducted. It stands as reliable evidence excluding Mr Chipperton as Ms Sassons' father.

48 As we also saw, the second DNA test was conducted by Dr Albert Haddad on behalf of the Australian Red Cross Blood Unit. The report dated 27 January 1999 excluded Mr Chipperton from identification as Ms Sassons' father. Again, Ms Farnell gave evidence of various complaints about the testing procedures that were adopted. None of the complaints are substantiated. The second DNA test has not been shown to be defective and it too stands as reliable evidence that Mr Chipperton was not Ms Sassons' father.

49 The third DNA test was carried out by the Victoria Police Forensic Service Centre in mid-1999. For the third time Mr Chipperton was excluded from identification as Ms Sassons' father. The results of the test were described in evidence given before me by Dr Henry Roberts, who managed the DNA science branch of the centre at the time this test was carried out. It was conducted on the basis of a mouth swab taken from Ms Farnell and Ms Sassons and tissue samples obtained from two of Mr Chipperton's socks supplied by Ms Farnell. The results were set out in a report issued on 28 June 1999. Evidence about this test was also given by John Scheffer, who was an assistant director at the centre.

50 Dr Roberts was extensively cross-examined. He defended the reliability of the centre's test and I accept his evidence in this regard. Dr Roberts made a number of sensible concessions about what can possibly go wrong when conducting DNA testing. As he frankly admitted, a number of mistakes can and sometimes do happen, of which he gave various examples. But, as he deposed, competent laboratories have procedures in place to reduce the risk of mistakes. For example, there were strict procedures in place at his laboratory to avoid the possibility of cross-contamination.

51 The thorough testing of the evidence given by Dr Roberts did not reveal any reason to doubt the reliability of the third DNA test. The evidence shows it was professionally carried out according to proper scientific procedures. It too supplies evidence excluding Mr Chipperton from identification as Ms Sassons' father.

52 There is also evidence that Ms Farnell obtained another DNA test from a laboratory called DNA Solutions operated by Vernon Muir. She provided no adequate explanation for why Mr Muir was not called to give evidence on her behalf. I infer his evidence would not have assisted her case.[16]

53 Ms Farnell submitted I should draw an adverse inference from the fact that Meredith Chipperton refused to undertake DNA testing for the purpose of this proceeding. This submission must be rejected. Having regard to the three DNA tests carried out during Mr Chipperton's lifetime, the results of which were to exclude him from identification as Ms Sassons' father, Ms Chipperton's decision to refuse to do so is entirely reasonable.

54 In summary, three reliable DNA tests have excluded Mr Chipperton from identification as Ms Sassons' father. There is no evidence of a DNA test identifying him as her father. Ms Farnell did not present evidence of a fourth DNA test that she obtained, which I infer would not have assisted her case.

55 On the basis of the DNA evidence presented in this case, which has been properly examined and tested in the proceeding, I conclude it has not been proved to my satisfaction that the relationship of biological father and daughter exists between Mr Chipperton and Ms Sassons. I therefore reject Ms Farnell's application for a declaration that the late Mr Chipperton is Ms Sassons' father.

56 There is no basis for disturbing the presumption specified in s 5 of the Status of Children Act that the late Mr Farnell is Ms Sassons' father. Nor is there any basis for departing from the prima facie evidence specified in s 8(1) of that Act that Mr Farnell is Ms Sassons' father.

[1] [1994] HCA 48; (1994) 181 CLR 387.

[2] Ibid 391 per Brennan and McHugh JJ; see also at 399 per Deane, Dawson and Gaudron JJ.

[3] In Re Y (1984) 36 SASR 584, 589; Re Pelliteri [1991] 1 Qd R 154, 158-9.

[4] [1994] HCA 48; (1994) 181 CLR 387, 403, distinguishing Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[5] [1938] HCA 34; (1938) 60 CLR 336.

[6] See In Re Y (1984) 36 SASR 584, 589; Re Pelliteri [1991] 1 Qd R 154, 158; Moszko v Warshall (Unreported, Supreme Court of Victoria, Smith J, 20 February 1995) 13.

[7] Re Pelliteri [1991] 1 Qd R 154, 158; In Re Y (1984) 36 SASR 584, 589.

[8] Unreported, Supreme Court of Victoria, Smith J, 20 February 1995, 14.

[9] See also s 69R of the Family Law Act 1975 (Cth).

[10] R v Jenkins; Ex parte Morrison (No 2) [1949] VicLawRp 51; [1949] VLR 277, 292.

[11] Ibid 292 per Barry J, citing Slingsby v Attorney-General [1916] 33 TLR 120, 122 and Herrick v Tanner [1912] NZLR 282.

[12] Farnell v Penhalluriack [2006] VSC 240.

[14] [1994] HCA 48; (1994) 181 CLR 387, 399.

[15] See Kristen Edwards, "Ten things about DNA contamination that lawyers should know" (2005) 29 Criminal Law Journal 71.

[16] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.