Friday, 22 August 2008

Federal Magistrates Court: adverse inference due to no DNA test

In the 1994 High Court case of G v. H, the court was able to find that the male respondent to the court proceedings was the father because he failed to undertake DNA testing. It was common ground that the respondent was a man who had a personal and sexual relationship with the mother of the child, that she had been a prostitute, that she had ensured that she had only safe sex with clients, and that on at least some occasions she had had unprotected sex with the respondent.

The respondent failed to undertake a DNA test. Justices Deane, Dawson and Gaudron held:

(P)aternity 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.


The majority then went to hold that an adverse inference ought to be made against the respondent as to his failure to undertake DNA testing- ie he was the father.

In the recent Federal Magistrates Court case of Clutterbuck v Tryon there was, surprisingly, no reference to G v H at all. This was all the more surprising given the facts, and the result.

It was common ground that the mother, Mrs Tryon, had given birth to two children, and that at the time of conception for each, she had been in a sexual relationship with a man who said he was the father, Mr Clutterbuck. Mrs Tryon had not separated from her husband, and Mr Tryon was registered as the father of both children. Mr Clutterbuck has been present at the birth of one of the children, paid $4000 to Mrs Tryon during one of the pregnancies, and Mrs Tryon told Mr Clutterbuck on both occasions that she was pregnant with his child.

Mr Clutterbuck sought under section 69VA of the Family Law Act that he be declared to be the father of both children. The court made an order for DNA testing. Neither Mr or Mrs Tryon or the children had attended for DNA testing.

Federal Magistrate Henderson noted the issues:

The applicant believes he is the father of the children because:
He was conducting an ongoing and long term sexual relationship with the mother at the relevant conception time for both children;
The mother told him he was the father of the children. The mother has filed no evidence to controvert, deny or assist me to other than accept what the applicant says. Her husband’s evidence cannot assist me in this regard;
The mother ,the husband and the maternal family knew he was the father of the children;
He maintained an ongoing relationship with the family;
He has conducted himself as if he was the father of the girls.
Thus I am left with the following:
The failure of the respondents to undergo DNA testing a test which will almost in every case, with certainty, tell who is or who is not a parent of a child;
The words spoken by the mother to the applicant when she knew she was pregnant with the children; and
The conduct of the applicant and respondents prior to and since the birth of the children.


Her Honour held:

On the evidence I have difficulty in accepting that the husband was unaware his wife was conducting a sexual relationship with the applicant at a time both girls were conceived.
His wife and the girls went on at least two holidays with the applicant, without him, and slept in the same bedroom. The applicant was present at the birth of the girls, he gave the wife $4,000 at [S]’s birth, attended [S]’s day-care, and was present on her first day of school. He visited the home every morning and almost each afternoon when the husband was at work. The mother and the children visited him daily at his place of work on building sites, went shopping with him when he owned the restaurant, the wife worked for him on the weekends for a number of years when he owned the restaurant. The mother and girls visited his apartment on many occasions and had meals with him. The applicant was frequently at his home and he and the mother were in constant contact with each other.
The applicant believes these children are his because of his ongoing sexual relationship with the mother at the relevant time and importantly because that is what the mother told him. The husband cannot help me assess this evidence. Only the mother can assist me and I do not have the benefit of her evidence.
I do not have the benefit of a scientific test as to paternity because the respondents have not and will not comply with the order I made for DNA testing. DNA testing would have resolved the issue of paternity once and for all.
There has been no testing of the applicant’s evidence in crucial respects such as a sexual relationship at the relevant time and words spoken between the mother and the applicant when she knew she was pregnant. As such I accept what the applicant says on those issues.
That finding combined with the lack of scientific evidence due to the respondents’ choice and the conduct of the mother towards the applicant leaves me in no doubt that the applicant is telling the truth as to his ongoing sexual relationship with the mother at the relevant time and that the mother told him he was the father of the girls. I also accept his evidence that the mother knows he is the father of the girls.
The applicant is clearly attached to and has had a strong and ongoing relationship with the girls. The photographic compilation he produced to the Court showing the girls from their birth, pre-school, first day of school, holidays and the like until he ceased to see them in May 2006 is extensive and demonstrates a relationship over a long period of time.
The photographic compilation depicts him, the mother and children as a family enjoying significant events: holidays; first days of school; births; birthdays; Christmas; cooking food; eating meals together; cleaning up and enjoying time together.
The applicant’s assertion that he is the biological father of the girls is supported by his conduct from their birth to the present....

The combination of this evidence supports a finding of a clear and strong inference that the respondents have failed to carry out the DNA testing because the results of that testing would show that the applicant, and not the husband, is the biological father of the girls. This inference is all the more available to me when one has regard to the fact that DNA parentage testing provides a simple, cheap, non-invasive and almost 100% accurate result.
I am also entitled under the rule in Jones v Dunkel to draw an adverse inference from the failure of a party to present evidence to a court which would assist the court in making a finding on a contested issue.
The issue in contest is the paternity of the girls. The carrying out of a DNA test is clearly the most reliable and cogent evidence I could have available to me to make a finding of paternity. The respondents have conducted themselves in such a way that this evidence is not available to me. In those circumstances I am entitled to draw an adverse inference from this conduct being that the provision of the evidence of DNA testing would not have assisted the respondents’ case that the husband is the girls’ biological father.
On all the evidence I an entitled to draw an adverse inference from the respondents’ conduct which inference leads me to a finding that the applicant is the biological father of the girls.
The mother has left it to the applicant to prove his case and I find that he has proven his case. He has discharged his onus to a much higher level than on the balance of probability. I have not only been able to draw an adverse inference from the respondents’ failure to undergo DNA testing but also on the rule in Jones v Dunkel as all the evidence being conduct and behaviour support this finding.

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