Attorney General in and for the State of New South Wales; ex parte Thomas Hollins

By summons filed on 19 October 1995, the Attorney-General for the State of New South Wales (the plaintiff) seeks orders including the following:

The purpose of the samples the subject of the order is to ascertain whether Mr Hollins is the father of a girl who is presently three years old and living in the Czech Republic.

Mr Hollins, in respect of whom the order was sought, was present in Court at the hearing of the application. He confirmed that he opposed the order; that he did not wish to seek legal advice; and that he would not provide the samples voluntarily.

Mr Hill, who appeared on behalf of the plaintiff, read the affidavits of Emily Howes affirmed on 28 August 2013 and of Nicole Hailstone-Bradley affirmed on 19 October 2015 in support of the application and tendered a transcript of an examination of Mr Hollins on 26 November 2015.

The child was born in Prague in September 2012. Her mother commenced a paternity suit against Mr Hollins in the District Court in Prague for the purpose, at least in part, of obtaining maintenance payments for her daughter. The District Court in Prague made a request for judicial assistance pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. The plaintiff consented to the request and instructed the Crown Solicitor to give effect to it.

On the plaintiff’s application under a previous summons (in proceedings 126179 of 2013) Beech-Jones J made an order pursuant to s 33 of the Evidence on Commission Act 1995 (NSW) (the Act) for the oral examination of Mr Hollins. Mr Hollins was examined by Mr Hill (who appeared on behalf of the plaintiff at the hearing before me on 11 May 2016) before Deputy Registrar Matulewicz on 29 October 2013.

In the course of this examination, Mr Hollins made the following admissions. He met the woman who became the child’s mother (who lived in the Czech Republic) in Cambodia on about 15 December 2011 while he was travelling over the Christmas break. Their sexual relationship commenced on the day they met. They spent a week together in the course of which they had unprotected sex on at least two occasions. They went their separate ways. At the beginning of January 2012 the woman contacted Mr Hollins and informed him that she was pregnant. As a result of this news, they spent another week together in January in the course of which they had unprotected sex.

Mr Hollins admitted that it was possible that he was the father of the child and that he was not aware of any reason which would rule him out as being her father.

When asked whether he was willing to undergo DNA testing to ascertain whether he was the child’s father he said that he would not be willing absent a court order.

On 22 October 2014 further request was made by the Prague District Court for the “appointment of an expert to collect primary samples for DNA analysis”. This led to the filing of a further summons, in the present proceedings, on 19 October 2015, in which an order was sought for the oral examination of Mr Hollins (this order and associated orders were sought in prayers 1-8 of the summons). On 30 October 2015 Campbell J made the orders sought in prayers 1-8 of the summons which included an order for a further oral examination of Mr Hollins.

Mr Moore, who appeared on behalf of the plaintiff, conducted an examination of Mr Hollins before Deputy Registrar Lee on 26 November 2015. Since the previous examination, Mr Hollins had completed his Science Degree, specialising in biology. Mr Hollins said, in substance, that he was unwilling to pay any amount to support the child, unless ordered by a court to do so. He explained his position in the examination as follows:

At the conclusion of the examination, Mr Hollins told the Deputy Registrar that he was travelling overseas to India on 30 November 2015 for the summer vacation and would be returning on 11 February 2016. For this reason the plaintiff’s application for the orders presently sought was deferred.

Part 4 of the Act makes provision for the taking of evidence for foreign courts. Section 32 relevantly provides:

Section 33 relevantly provides:

I am satisfied, on the basis of the affidavit of Ms Howe, that a request has been made by the Prague District Court.

I am satisfied that the power conferred by s 33(1) and (2) is sufficient to enable me to order that a buccal swab be taken. Although it is not specifically referred to in s 33(3), it would probably fall within s 33(3)(e), as a medical examination. In any event, I am satisfied that it falls within s 33(1) and (2).

I am also satisfied that the condition in s 33(4) is met. The Status of Children Act 1996 (NSW) provides for such testing in New South Wales. Section 3 relevantly defines “parentage testing order” as meaning an order under s 26 and “parentage testing procedure” as meaning a medical procedure prescribed, or included in a class of medical procedures prescribed by the regulations for the purposes of the definition. The Status of Children Regulation 2013 (NSW) provides, by cl 5, that, for the purposes of the definition of “parentage testing procedure” in s 3(1), DNA typing is a prescribed medical procedure.

Mr Hollins has refused to contribute to the maintenance of the child on the ground that he does not accept that he is her father. He has also refused to undergo a paternity test without a court order. It follows that, unless I make the orders sought by the plaintiff, the question whether Mr Hollins is the child’s father is unlikely to be determined definitively, although I note that there is strong circumstantial evidence (based on his own admissions) that he is the father. Further, inferences could be drawn from his refusal to volunteer for such a test: see G v H (1994) 181 CLR 387, at 402 per Deane, Dawson and Gaudron JJ.

I consider it to be overwhelmingly in the interests of a child to know who his or her father is: see also E v H (1986) 7 NSWLR 212 at 220D per Hodgson J. DNA testing will provide evidence which is likely to be determinative, one way or the other. There is a strong public policy that fathers ought contribute to the maintenance of their children. Moreover there are 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.

Mr Hollins was unable to articulate any reason why the child ought not know whether he is her father. Moreover, he was prepared to have unprotected sex with the child’s mother and can be taken to have known that her pregnancy was a natural and foreseeable consequence.

In my view, all relevant factors weigh in favour of making the orders sought, which appear to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made.

For the reasons set out above I make the following orders: