Kohari v NSW Trustee & Guardian

1. [1]

   HIS HONOUR: I had before me, on 21 September 2016, for hearing, a notice of motion filed on 13 May 2016, by the NSW Trustee and Guardian, which is the Defendant in substantive proceedings commenced by the Plaintiff, Robert Kohari, in which he seeks a family provision order under the Succession Act 2006 (NSW). (I shall refer to the parties as each appears in the substantive proceedings, rather than as “the applicant” and “the respondent” in the notice of motion.)

2. [2]

   An issue in the substantive proceedings is whether the Plaintiff is a child of Paul Kohari (“the deceased”), the principal basis of eligibility being s 57(1)(c) of the Succession Act. (This is not the only ground of eligibility upon which he relies, but if it is established, the Plaintiff will not have to establish factors warranting the making of the application.)

3. [3]

   When the substantive proceedings were listed for hearing, in March 2016, McDougall J described it as “a fundamental issue” and wrote that the opportunity to test the Plaintiff’s mother’s evidence (which had been served late and which had prompted an application to vacate the hearing by the Defendant) as “no token opportunity”.

4. [4]

   Even the Plaintiff’s counsel, who appeared before me in the notice of motion, at that time, had referred to “a contest between the parties as to the blood relationship between the Plaintiff and the deceased”, whilst counsel for the Defendant, who also appeared in the notice of motion, had referred to it as “an issue over parentage”: T 1.21 – T1.38.

5. [5]

   The order sought in the Defendant’s notice of motion is one pursuant to s 26 of the Status of Children Act 1996 (NSW) to which I shall return.

6. [6]

   As I had reached a clear decision after reading the evidence, the detailed written submissions, and hearing each counsel speak to his written submissions, I informed the parties of my decision at the conclusion of the hearing of the notice of motion and made orders in accordance with Short Minutes of Order that had been agreed upon (in the event that I determined the order sought should be made).

7. [7]

   Although neither party required additional reasons, I considered that the Court should provide written reasons as the question is an important one. These are my reasons for making the orders.

The Legislation

1. [8]

   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:

Orders sought

1. [9]

   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. [10]

   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. [11]

   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. [12]

   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. [13]

   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. [14]

   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. [15]

   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. [16]

   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. [17]

   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. [18]

   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. [19]

   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. [20]

   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. [21]

   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. [22]

   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. [23]

   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. [24]

   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. [25]

   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. [26]

   The deceased and Ms Clark separated some time towards the end of 1979 or early 1980, but they were not divorced until 1988.

10. [27]

    It is acknowledged that the Defendant does not have any DNA sample of the deceased, his late parents, or his sister, Ms Urganics.

11. [28]

    The issue of paternity is raised by the Defendant having regard to the following evidence:

Consideration

1. [29]

   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. [30]

   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. [31]

   In addition, what the Defendant seeks in the notice of motion falls within the term “parentage testing procedure” as defined by s 3(1):

4. [32]

   (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. [33]

   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. [34]

   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. [35]

   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:

8. [36]

   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:

9. [37]

   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. [38]

    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]:

11. [39]

    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. [40]

    In Piggott v Harrex [2000] TASSC 72, Slicer J, dealing with similar provisions in the Status of Children Act 1974 (Tas) wrote, at [10]:

13. [41]

    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. [42]

    In G v H [1993] FamCA 39; (1993) 16 FamLR 525, at 534, Fogarty, J wrote:

15. [43]

    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. [44]

    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. [45]

    In E v H (1986) 7 NSWLR 212 at 220, Hodgson J wrote:

18. [46]

    In In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 106, Ward LJ wrote, in relation to paternity:

19. [47]

    This echoed the words of Lord Sumner in Russell v Russell [1924] AC 687 at 748:

20. [48]

    A similar view was expressed by Young J in Govers v Luff, (Supreme Crt, 5 November 1997, unrep) at 4 as follows:

21. [49]

    His Honour reaffirmed that view, more recently, in D v Munday [2005] NSWSC 207, at [15].

22. [50]

    Finally, in my consideration, I have remembered s 29. As Barrett J noted in AW v CW, at [18] – [19]:

23. [51]

    As was written by the majority in G v H (1994) 181 CLR 387; [1994] HCA 48, at [17]:

24. [52]

    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. [53]

    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. [54]

    I then made the following orders, as agreed by the Plaintiff and the Defendant:

27. [55]

    The Defendant should be aware of the matters in UCPR Schedule 10 so far as it relates to service of the report.

28. [56]

    The matter is next in the Family Provision List on Friday 11 November 2016.