Williams v Smith as executrix for the estate of the late Frederick Ian Hall Barker [2006] ACTSC 65 (28 June 2006)

Last Updated: 12 February 2007

JANE MARY WILLIAMS v MARGARET ANNE SMITH AS EXECUTRIX FOR THE ESTATE OF THE LATE FREDERICK IAN HALL BARKER

[2006] ACTSC 65 (28 June 2006)

PATERNITY - parentage of child in issue - DNA test on deceased and child will not determine parent relationship - presumptions of Parentage Act - discretionary considerations.

Family Provision Act 1969

Parentage Act 2004, ss 7, 9, 12, 14, 19, 34

Piggott v Harrex [2000] TASSC 72

AW v CW [2002] NSWSC 301

Magill v Magill [2005] VSCA 51

Director General, Department of Community Services v A [2000] NSWSC 1179

No SC of 637 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 28 June 2006

IN THE SUPREME COURT OF THE )

) No SC 637 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JANE MARY WILLIAMS

Plaintiff

AND: MARGARET ANNE SMITH AS EXECUTRIX FOR THE ESTATE OF THE LATE FREDERICK IAN HALL BARKER

Defendant

ORDER

Judge: Connolly J

Date: 28 June 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

1. These proceedings arise as an interlocutory application in a Family Provision Act 1969 (the Family Provision Act) claim. By originating application brought in September 2004 the plaintiff claims provision out of the estate of the deceased. The plaintiff's claim is that she is the only child of the deceased, being born in October 1966 during the marriage of the deceased and her mother. Her parents separated when she was 10 years old, and their divorce was finalised in 1978. In her affidavit the plaintiff sets out ongoing contact between herself and the deceased.

2. By a defence filed in May 2005, the applicant/defendant denies that the plaintiff is a child of the deceased. In an affidavit filed in October 2005, the executrix deposes that in a telephone conversation some time in early 1979 the "ex wife", being the plaintiff's mother, told the deceased that the plaintiff "is not yours". The plaintiff's mother by affidavit asserts that the deceased was the father. Annexed to her affidavit is a copy of the birth certificate in which the deceased is identified as the father, and a letter of May 1979 written by the deceased to the plaintiff as "dad".

3. This is an application by way of notice of motion for orders that the plaintiff submit herself to medical procedures to extract DNA in order to undergo comparison with DNA said to have been extracted from the deceased.

4. There is provision in the Parentage Act 2004 (the Parentage Act) for a court to order a medical test "if the parentage of a child is in issue in a civil proceeding in a court". The plaintiff, being born while the deceased was married to her mother, and with the deceased appearing on her birth certificate as her father, is clearly presumed to be the child of the deceased but, as the executrix is challenging this, it seems to me that her parentage is "in issue" in these proceedings. Section 34 confers on the court a discretion in the following terms:

(1) The court may make an order (a parentage testing order) requiring stated medical tests that are relevant to establishing the parentage of the child to be carried out on a stated person within a stated time and in accordance with any stated conditions.

5. The plaintiff does not consent to such an order, and argues that it should not be made on two grounds. The first ground is that such an order would not have any bearing on the outcome of the family provision claim, and the second goes to the lack of evidential certainty in any examination conducted from what is said to be extracted DNA from the deceased.

6. A DNA test involves a significant interference with any person's privacy and right to bodily integrity. It is certainly the case that the legislature has made provisions, in the context of the criminal justice system, for mandatory court ordered DNA tests to be performed, and the potential benefits to community safety seem to me to amply justify such a legislative provision. The legislature has also made provision for a court to order a person to undertake a test for determining parentage. It seems to me that, in the normal case, this would again be justifiable, where the purpose of the test is to establish that a stated person is the parent of a child. Such an order would normally be brought by the child or the mother of the child and there would be a strong argument that the child's best interests would be served by requiring the "stated person" to undertake the test. What is sought here, however, is a test on the legal child of the deceased, in order to question that paternity to exclude that child from a Family Provision Act claim.

Would the order make a difference to the substantive proceedings

7. The plaintiff is entitled to be regarded as the child of the deceased, being born while the deceased was married to her mother and the deceased being identified as her father on the birth certificate. She is presumed to be the child of the deceased pursuant to ss 7 and 9 of the Parentage Act, although, by s 12, these presumptions are rebuttable. By s 14, it is not open for any child to have more than two parents, even where there are conflicting presumptions.

8. I am not satisfied that if an order was made for this intrusive medical procedure, and the outcome was that there was no genetic match, it would make any difference in relation to the plaintiff's status under the Family Provision Act. Such a finding would not be sufficient to make a "Parentage Declaration" pursuant to the Parentage Act, because it would not be able to be said that any other identified person is the parent. A presumption of parentage can be rebutted by the making of a parentage declaration, but a parentage declaration must be a declaration that "a particular person is a parent of a particular child" (s 19). It seems to me that the Court only has the option of making such an order, or declining to make such an order. If there was no genetic match between the plaintiff and the deceased, the Court would have to decline to make a parentage order, but there is no form of order in the legislation to declare that a child is not the child of the father, and so the presumption would not be rebutted, and the plaintiff would remain at law a child entitled to claim under the family provisions legislation. Much distress would be caused to the plaintiff and her mother for no purpose in the substantive litigation. Both have sworn that they have always believed the deceased to be the father. I note that in an unreported decision on the equivalent provision in the Tasmanian legislation, Slicer J said in Piggott v Harrex [2000] TASSC 72 at [4] of a claimant under a will who believed herself to be the daughter of a deceased:

A scientific test which shows her belief to be illusory would have a devastating effect on her being. History ought not to be re-written because of technological advance and reasonable believe ought be respected. Her position, under the terms of the will, are neither enhanced nor lessened by the results of scientific analysis.

On this basis, the application for the medical test should be refused.

9. It seems to me that this Court should be mindful of the potentially traumatic consequences of ordering DNA analysis against a child (albeit now an adult child) which could have the effect of undermining longstanding beliefs of parentage. The Victorian Court of Appeal in Magill v Magill [2005] VSCA 51 upheld an appeal against a decision of a County Court judge who awarded damages for the tort of deceit in relation to child support payments that had been made by a former husband in respect of children born within the marriage but later determined by DNA testing not to have been fathered by the husband.

The Nature of the Discretion

10. The parentage does not by its terms guide the exercise of the present discretion. It seems to me that Slicer J well set out the appropriate approach when he stated in Piggott v Harrex at [10]:

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.

11. His Honour later noted, of the interests of the adult child against whom the order was sought, that she at [14]:

... has a real interest in protecting her belief of identity and memory of relationship which ought to be undisturbed by scientific enquiry. Distress occasioned to a child might outweigh the benefits of having the procedure conducted ... This consequence was recognised by Brennan and McHugh JJ in their joint reasons in G v H [1994] HCA 48; (1993-4) 181 CLR 387 when they stated at 391:

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.

12. I note that in AW v CW [2002] NSWSC 301, Barrett J at [33] referred to a decision of Hodgson CJ in Equ in Director General, Department of Community Services v A [2000] NSWSC 1179 in support of the view that:

where the child is of full capacity, his or her wishes on whether the parentage question should be pursued and whether he or she should undergo testing will be afforded significant weight.

13. It seems to me that I ought also to be mindful, in the exercise of this discretion, that the application is brought, not by the party disputing the deceased's acknowledged paternity, but by the executrix, relying only upon a hearsay statement. There is no evidence that, during his life, the deceased ever brought into question his paternity of the plaintiff, and indeed the evidence is that he always held himself out to her as her father.

Is there sufficient evidential certainty to order the procedure?

14. It seems to me that, in most cases, this question would not arise, where it was proposed to conduct a test between two living persons. In the present case, however, what is sought to be done is to conduct an analysis between the plaintiff and certain material said to be taken from the deceased before his death. This issue has been considered in the context of the New South Wales legislation, where Barrett J in AW v CW held that the test could only be ordered to be taken by a person, and that this did not extend to an order that the test be performed on remains.

15. In the present case, the applicant testatrix has produced a letter from Professor Julia Potter, Executive Director of ACT Pathology which sets out the nature of the material that is sought to be tested and compared with material sought to be taken from the plaintiff. The letter states:

Your question: What exactly is being held by ACT Pathology? Is it a complete DNA sample or other material? If so what material?

Answer: ACT Pathology is holding 90 microlitres of extracted DNA in a tube of total volume 1.5 ml. This is material that was extracted from a genetics test (requested on a blood sample) which had been requested on the late Fredrick Ian Hall Barker.

Your question: Can the material that is held by ACT Pathology be compared to genetic material from the alleged daughter of the deceased to provide a sound basis for a paternity test?

Answer: The material constitutes a DNA extract from the late Frederick Ian Hall Barker. It can as such be used to compare genetic material from any other person. However, I would note that the material has been stored now for many months at minus 20° Centigrade. The integrity of the material should be intact but cannot be guaranteed. Further information has been previously supplied to you through the ACT Government Solicitor that we take all reasonable precautions to identify origin of samples. This does not equate to chain of custody process.

16. It seems to me that this raises a difficulty for the present applicant, as doubt is expressed as to the integrity of the sample, which has been stored at extremely low temperature, and that the normal chain of custody issues that would flow from a sample taken from a living person cannot be guaranteed. Both these factors, it seems to me, go against the exercise of the discretion to order the test.

17. The application is refused. I will hear the parties as to costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 28 June 2006

Counsel for the applicant: Mr C Erskine

Solicitor for the applicant: Nicholl & Co

Counsel for the respondent: Mr S Whybrow

Solicitor for the respondent: Bradley Allen

Date of hearing: 9 June 2006

Date of judgment: 28 June 2006