Re: "M" [2002] NSWSC 158

New South Wales Supreme Court

CITATION : Re: "M" [2002] NSWSC 158 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC Not disclosed HEARING DATE(S) : 12 February 2002; and 21 February 2002 JUDGMENT DATE : 21 February 2002

PARTIES : Not disclosed JUDGMENT OF : Campbell J

COUNSEL : M W Anderson (plaintiff) SOLICITORS : Crown Solicitor's Office (plaintiff) CATCHWORDS : FAMILY LAW AND CHILD WELFARE - CHILD WELFARE other than under Family Law Act 1975 and related Acts - paternity - prerequisites for proof of paternity by tender of report of DNA testing - proof of paternity based on DNA testing other than by tender of report LEGISLATION CITED : Status of Children Act 1996 Status of Children Regulation 1998 DECISION : Paternity declaration made

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

THURSDAY 21 FEBRUARY 2002

RE: 'M' JUDGMENT – (Ex Tempore) 1 HIS HONOUR: This matter was before me on 12 February 2002. On that occasion I was not satisfied that the evidence before me justified the making of a declaration of paternity. 2 Today, the matter is back before me. On this occasion the plaintiff does not rely solely upon the tender of a report to establish paternity. Some, but not all, of the evidentiary gaps which I identified on the last occasion have been filled. For example, I am now satisfied that the person who took the sample from the child is a qualified person. Most importantly, on this occasion the plaintiff reads an affidavit from the Manager of the relevant testing laboratory. The Manager has appropriate scientific qualifications, and has reviewed the entire testing procedure which was conducted in the present case, and then expressed an opinion about the paternity of the child. 3 That testing procedure contained some departures from the procedure laid down under the Status of Children Act 1996. The most serious departure is that the Court Registrar sent a notice to the testing laboratory, naming the sampler as being a particular person; in fact, someone else took the sample. 4 When reg 9(2)(b) has a mandatory requirement that a Registrar's notice must contain, amongst other things, "the name ... of the sampler", and reg 10 goes on to state what the person in charge of the laboratory must inform the "sampler" of, it seems to me that the person who takes the sample must be the person who was named in the Registrar's notice, if the procedure under the regulations is to be complied with. 5 In my earlier judgment I quoted reg 7, which says that a parentage testing procedure is taken to be carried out in accordance with the regulation "only if" it is carried out in compliance with Divisions 2 and 3 of the regulation. 6 There could be some ways in which it could be said that a testing procedure had been "carried out in compliance with Divisions 2 and 3", if there were some slight departures from what was there set out. To take an easy example, a few typographical errors in reproducing the prescribed forms, which did not create any real doubt about what was being said, would not prevent the procedure being "carried out in compliance with Divisions 2 and 3". However I have difficulty in seeing how a testing procedure which failed to comply with something which a provision of Divisions 2 or 3 says "must" be done, could count as a procedure "carried out in compliance with Divisions 2 and 3". 7 However, if there is a departure from the strict requirements of the regulation, but there is other evidence which satisfies me that a declaration can be made, I am free to act on that other evidence. In the present case, the affidavit of the Manager of the testing laboratory so satisfies me. The legal representative of the child supports the making of the order. 8 I make a declaration in accordance with the draft order provided to me which I have signed and dated today's date. 9 I note that s 25 of the Status of Children Act 1996 prohibits a person from publishing the name or particulars relating to the identity of any person by or in relation to whom an application for a declaration of parentage is brought. That provision will apply to the order which I have made. For greater certainty, however, I also order that the name of the child, and the name of the father, referred to in my order, not be disclosed, save to the parties of these proceedings, and to the Registrar of Births Deaths and Marriages and the Children's Court and legal representatives appearing in proceedings relating to the child in the Children's Court. 8 March 2002 10 In accordance with the requirements of the Status of Children Act 1996 this matter was heard, and judgment delivered, in closed court. I am satisfied that publication of my reasons for judgment in this case will not result in contravention of s 25 of the Act. I authorise the publication of the reasons for judgment, but of no other document relating to the proceedings. ********** IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST