Reported Decision : 54 NSWLR 445 (2002) FLC 93-118 New South Wales Supreme Court CITATION : AW v CW [2002] NSWSC 301 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2018/02 HEARING DATE(S) : 12/04/02 JUDGMENT DATE : 17 April 2002 "AW" - Plaintiff PARTIES : "CW" - First Defendant "EC" - Second Defendant New South Wales Coroner - Third Defendant JUDGMENT OF : Barrett J COUNSEL : Ms J. Needham - Plaintiff Ms K. Rees - First Defendant SOLICITORS : Pike Pike & Fenwick - Plaintiff Helliars City Solicitors - First Defendant CATCHWORDS : FAMILY LAW - parentage testing order - whether parentage testing procedure may be ordered on genetic material taken from corpse - whether such procedure may be ordered on child aged 25 without notice to that child Status of Children Act 1996 LEGISLATION CITED : Status of Children Regulation 1998 Family Law Act 1975 (Cth) Human Tissue Act 1983 Director General, Department of Community Services v A [2000] NSWSC 1179 Doodeward v Spence (1908) 6 CLR 406 G v H (1994) 181 CLR 387 CASES CITED : Re Gray [2001] 2 QdR 35 McK v K [2001] FLC 93-089 Piggott v Harrex [2000] TASSC 72 Roche v Douglas [2000] WAR 331 DECISION : Parentage testing orders refused - 14 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J WEDNESDAY, 17 APRIL 2002 2018/02 – "AW" v "CW" & ORS JUDGMENT 1 By summons filed on 25 March 2002, the plaintiff seeks, by way of substantive relief, a declaration under s.21(2) of the Status of Children Act 1996 that a particular person now dead was the father of a child born to the plaintiff in 1976 and an order that the declaration be forwarded to the Registrar of Births Deaths and Marriages for recording on the birth certificate of the child. The current defendants are the mother of the deceased person who is presumably his next of kin (first defendant), the undertakers who had possession of the deceased's body when the proceedings were commenced (second defendants) and the Coroner of New South Wales (third defendant). 2 Pursuant to orders made by Austin J by consent of the plaintiff, the first defendant and the executors named in the deceased's will (to whom there has been no grant of probate), a number of hairs were removed from the deceased's eyebrows shortly after his death in March 2002. 3 On 12 April, I was asked to make, by consent of the same persons, orders that the named executors be added as defendants and that the existing second and third defendants cease to be parties. I was also asked to make, by like consent, an order pursuant to s.26(1) of the Status of Children Act that a parentage testing procedure be carried out on the plaintiff, her child and genetic material taken from the parts of the deceased's body which were removed pursuant to the orders made by Austin J. 4 Upon reviewing the matter briefly, I indicated to counsel that I wished to take time to consider the question whether the court has power under s.26(1) to make such an order in relation to human remains. That section is in the following terms: "26. Orders for carrying out of parentage testing procedures (1) In proceedings where the parentage of a child is in issue, the Supreme Court may make an order requiring a parentage testing procedure to be carried out on any of the following persons for the purpose of obtaining information to assist in determining the parentage of the child: (a) the child, or (b) a person known to be a parent of the child, or any other person, if the Court is of the opinion that the information that could be obtained if the parentage testing procedure were to be carried out in relation to the person might assist in determining the parentage of the child." 5 As I informed counsel, my reservation arose from the use of the words "on any of the following persons" (plus the words "any other person" in para (b)) and a perception that, generally speaking, "persons", as applied to individuals as distinct from juristic persons, refers to those who are living and does not extend to the body of someone who has died. 6 Both Ms Needham, who appeared for the plaintiff, and Ms Rees, who appeared for the first defendant, submitted that s.26(1) should be regarded as applicable to a corpse. They supported that submission by reference to s.27(2)(c) which, it was suggested, may be regarded as showing an intention to extend the relevant processes to bodily samples generally, including samples taken from corpses. Counsel also referred to the decision in Piggott v Harrex [2000] TASSC 72 as being of possible assistance and emphasised the need for an expansive approach to the legislation, given the social importance of resolution of questions of parentage as recognised by members of the High Court in G v H (1994) 181 CLR 387. 7 I shall return to these submissions. First, it is necessary to examine the legislation. The legislation 8 The court's power to make an order requiring a parentage testing procedure to be carried out on a person is an aspect of or adjunct to its jurisdiction under Division 3 of Part 3 of the Status of Children Act to make a declaration of parentage, that is, a declaration under s.21(2) "that a named or identified person is a child's parent". It is made clear by s.21(3) that a declaration of parentage may be made whether or not the supposed parent is alive. The possibility of a declaration that a person who has died is a parent of a particular child is thus expressly recognised. Such a declaration in respect of a person already dead will, by virtue of ss.12(3) and (4), give rise to a statutory presumption that the deceased was the child's parent. The presumption is rebuttable: s.15. It is also clear that "child" carries no age connotation and refers to the relationship of a person to a parent, regardless of the person's age. 9 The term "parentage testing procedure" is defined by s.3(1): " parentage testing procedure means a medical procedure prescribed, or included in a class of medical procedures prescribed, by the regulations for the purposes of this definition." 10 Division 2 of the Status of Children Regulation 1998 applies to "a parentage testing procedure that is required to be carried out on a person under a parentage testing order". That division lays down rules in relation to a "donor", a "sampler" and a "bodily sample". The first two of these terms are defined by the regulation. The third is defined by the Act. The definitions are as follows: " donor means the person required to provide a bodily sample for the purposes of a parentage testing procedure." "sampler means a person who takes (or proposes to take) a bodily sample from a donor for the purposes of a parentage testing procedure." "bodily sample includes any one or more of the following: (a) a blood sample, (b) a tissue sample, (c) a sperm sample, (d) any other sample of material obtained from a human body." 11 Clause 6 of the Regulation gives content to the Act's definition of "parentage testing procedure": "For the purposes of the definition of parentage testing procedure in section 3(1) of the Act, the following medical procedures are prescribed: (a) a red cell antigen blood grouping, (b) a red cell enzyme blood grouping, (c) HLA tissue typing, (d) testing for serum markers, (e) DNA typing." 12 Clause 7 then lays down conditions that must be satisfied if a parentage testing procedure is to be taken to be carried out in accordance with the regulation. Among these are the conditions in clause 11(1): "A sampler must not take a bodily sample from a donor unless the donor has: (a) completed an affidavit in accordance with Form 1, and (b) either: (i) provided to the sampler a recent photograph of the donor, measuring approximately 45 millimetres by 35 millimetres, that shows a full face view of the donor's head and the donor's shoulders against a plain background, or (ii) made a written arrangement with the sampler for a photograph of that kind to be taken." 13 Sections 28 and 29 of the Act are concerned with the general issue of compliance with parentage testing orders. They should be set out in full: " 28. Orders made against children under 18 years of age (1) This section applies if a parentage testing order or an order under section 27 requires a medical procedure or other act to be carried out in relation to a child who is under 18 years of age. (2) The procedure or act must not be carried out in relation to the child under the order unless a parent or guardian of the child consents to the medical procedure or act being carried out. (3) However, the Court may draw such inferences from a failure or refusal to consent as appear just in the circumstances. 29. Effect of non-compliance by adult with an order made under this Part (1) If a person who is 18 years or more of age contravenes a parentage testing order or an order under section 27, the person is not liable to any penalty in relation to the contravention. (2) However, the Court may draw such inferences as appear just in the circumstances." Interpretation 14 The Status of Children Act and the Status of Children Regulation seem to me to proceed on an implicit but clear assumption that a "parentage testing procedure" will only be performed in relation to a sample of material obtained from the body of a living human being. If the legislative scheme had been intended to extend to material taken from a dead body, some provision alternative to that in clause 11 of the Regulation would have been made. Also, it is most unlikely that the procedure would, in such a case, be described as "a medical procedure". A brief examination of the Human Tissue Act 1983 shows a sharp distinction drawn by the legislature between removal of genetic material from living persons and removal of such material from dead bodies. Had the Status of Children Act been intended to deal with the latter subject, it would have done so in a similarly clear way. 15 This is not the occasion for a close examination of the legal status of a dead body. It is sufficient to say that, immediately after death, a body is not the property of anyone, although certain persons have limited duties and rights in respect of it and it may be the subject of rightful and lawful possession. Proprietary interests may result from subsequent events. These general propositions emerging from the judgments of Griffith CJ and Barton J in Doodeward v Spence (1908) 6 CLR 406 proceed on the basis that a corpse is an object or a thing, albeit one in relation to which the law and human decency require particular standards of conduct. They are inconsistent with the notion that the corpse has any continuing existence as a person. 16 In Roche v Douglas [2000] WAR 331, Master Sanderson held that the particular human tissue there in issue was property but found it unnecessary to decide its ownership. His decision appears to proceed on the basis that the extraction of tissue after death for the purpose of testing is an event of such a quality as to displace the rule which the majority in Doodeward v Spence regarded as applying at death, subject to the possibility of future displacement. In the course of his judgment, the learned Master quoted from the chapter "Proprietary Rights in Human Tissue" in "Interests in Goods", edited by Palmer and McKendrick (1998). In the context of the thesis that the "no property" rule is inappropriate to donated tissue, the authors made the following comment which I consider to be apposite to the present situation: "Torts against the person provide no protection for the maltreatment of removed tissue, or for the use of tissue for unauthorised purposes. The tort of battery, for example, is inappropriate, since nothing which is done to removed tissue can constitute interference with the 'person' of the donor." 17 A deceased person's legal personal representatives have responsibilities and rights in relation to the dead body but these are generally described as limited to burial or other proper disposition. The executors or administrators have no right to remove parts of the body and Chesterman J held, in Re Gray [2001] 2 QdR 35, that the Supreme Court of Queensland had no power, whether as part of its parens patriae jurisdiction or otherwise, to order the removal of genetic material from the body of a man who had died intestate, even with the consent and at the request of his widow who would almost certainly have been entitled to a grant of letters of administration. On this footing, there is no clearly recognised right or power enabling legal personal representatives to decide what is to be done with or in relation to the deceased's remains, apart from burial or other proper disposition. 18 This brings me to what I consider to be the most compelling consideration of all. Where a parentage testing order has been made, there is no legal compulsion for it to be obeyed. If a person of or over the age of eighteen becomes the subject of an order and chooses to disobey it or simply fails to comply, there is no penalty, although the court may draw from the non-compliance such inferences as appear just in the circumstances. This is the effect of s.29. In the case of an order in relation to a person under the age of eighteen, the specified medical procedure must not be carried out without the consent of a parent or guardian and, if the consent is not given, the court may draw such inferences as appear just in the circumstances: see s.28. 19 The legislation thus works on the basis that evidence derived from the testing of a person's bodily sample cannot be available for use in proceedings under the Status of Children Act if that person (or, in the case of a minor, the parent or guardian) wishes to avoid that use and prefers to face the possibility that adverse inferences will be drawn from failure or refusal to co-operate. The decision to face that possibility will no doubt often be a deliberate one. Individuals may have many different reasons for giving or withholding their co-operation. The reasons will generally concern aspects of their private lives on which they are entitled to make judgments in their own interests and the interests of family members and others to whom they bear affection or owe moral duties. Such value judgments simply cannot be made in relation to the personal life of a dead person, whether by a legal personal representative or by anyone else. 20 All these factors consolidate very clearly in my mind the conclusion that the Status of Children Act does not contemplate the carrying out of parentage testing procedures on material taken from a dead body and that the court is not empowered by s.26 to make a parentage testing order in relation to such material. The corresponding Family Law Act position 21 The Family Law Act 1975 (Cth) and regulations thereunder make provision for parentage testing procedures and parentage testing orders in terms very similar to those found in the Status of Children Act and the Status of Children Regulation. In fact, as the Attorney-General's second reading speech in the Legislative Council on 29 May 1996 makes clear, the New South Wales Act was enacted in order to achieve a degree of consistency between the legislation of New South Wales and that of the Commonwealth regarding presumptions of parentage. This reflected the opinion of the Standing Committee of Attorneys-General that parentage presumption legislation throughout Australia should adopt a set of model provisions. 22 The question whether human remains may be made the subject of a parentage testing order under the Family Law Act was adverted to by Mullane J of the Family Court of Australia in McK v K [2001] FLC 93-089. His Honour took the view that such an order may not be made in those circumstances. The following passage from the judgment explains the reasoning: "22. The second reason parentage testing could not have been ordered is that the provisions of the Act and the Regulations relate to procedures and testing of bodily samples from live persons, not human remains. Subsection 69W(3) provides for the order to be made in relation to: a child a person known to be the mother of the child or any other person. 23. The power to make a parentage testing order set out in subsection 69W(1) is to: 'make an order (a parentage testing order) requiring a parentage testing procedure to be carried out on a person mentioned in subsection 3 …'. 24. Similarly the regulations provide for bodily samples (eg reg 21F) to be taken from persons who are referred to with the expression, 'donor', (eg reg 21F), who are required to complete declarations (reg 21F(3)) and the regulations also provide for a bodily sample to be placed in a container in the presence of the donor and the label to be signed by the donor (reg 21I(1)). There is no provision in the regulations for the use of samples of human remains." 23 The Family Court has thus adopted in relation to the Commonwealth Act the approach that I consider to be correct in relation to the New South Wales legislation. Submissions of counsel 24 It remains to consider the submissions of counsel to which I have referred. 25 As to the submission based on s.27(2)(c), I note that, as is made clear by s.27(1), that provision describes one example of orders ancillary to a parentage testing order that the court may make. The particular example is: "an order requiring a person to surrender a bodily sample previously obtained from that person or from another person (regardless of whether that other person is still living) that has been stored or otherwise preserved." 26 I must say that I do not regard s.27(2)(c) as manifesting any legislative intention that orders may be made under ss.26 and 27 in relation to human remains. Indeed, the words of the provision seem to me to indicate the opposite. The phrase "regardless of whether that other person is still living" refers back to the words "another person", being a "person" from whom a bodily sample has been "previously obtained". The word "still" in that phrase indicates, as I read it, that the reference to "another person" is a reference to a person who was living when the bodily sample was taken and that intervening death (that is, death since the taking of the sample) is no bar to the making of an order requiring the surrender of the sample. This cannot be regarded as any indication that s.26 allows a parentage testing order to be made in relation to material taken from a corpse. 27 Turning to Piggott v Harrex (above), it is seen immediately that the judgment of Slicer J refers to the use of tissue samples from a person now dead in the context of the possibility of an application for a parentage testing order under equivalent Tasmanian legislation. But it is clear from the judgment that the material had been extracted before death, with the result that the approach reflected in s.27(2)(c) of the New South Wales Act would have permitted the court to order its use. Because the material had been removed before death, the comments of Slicer J have no bearing on the present case. 28 The submission advanced by reference to the decision of the High Court in H v G (above) is, in essence, that, in light of the important social function the Act is intended to perform, it should be construed expansively to allow parentage testing procedures in this kind of case. As Brennan and McHugh JJ observed: "… 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." 29 The same approach comes through in the judgment of Hodgson CJ in Eq in Director General, Department of Community Services v A [2000] NSWSC 1179. His Honour said: "On the other hand, the Births Deaths and Marriages Registration Act and the Status of Children Act disclose a clear policy in the law that the parentage of children be established and known, at least to those who need to know. Important legal rights depend upon this. Ultimately, the child has a right to know its parentage." 30 One may readily accept these statements as indicative of a general philosophy behind the legislation and a reflection of legislative purpose. But no such indication or reflection can allow the statutory words to be ignored; nor can it cause to be implemented in the case of a person who has died a regime in which an individual's free will decision to co-operate or not in relation to the individual's own bodily sample plays a pivotal part. The child 31 I have said little to this point about the position of the child who, despite that description, is an adult aged 25. The child is not a party to the proceedings and there is nothing in the evidence before me to show that the child has had notice of the proceedings. Yet the parentage testing order the court is asked to make extends not only to testing of the plaintiff (mother) and the material taken from the remains of the deceased, but also to testing of the child. The court is thus asked to make an order that a person aged 25 submit to medical procedures in connection with a move by that person's mother to establish the person's own paternity in circumstances where the person has had no opportunity to be heard on the question whether the court should require the person to submit to testing. 32 This is not only unsound in principle but also inconsistent with Part 77 rule 39 of the Supreme Court Rules: "Where a party moves under section 26 of the subject Act for an order requiring a parentage testing procedure to be carried out on a person who is not a party to the proceedings, notice of the motion shall, unless the Court otherwise orders, be served personally on the person." (The "subject Act" is the Status of Children Act .) 33 No application has been made for an order dispensing with service of the present application on the child. An application for an order for testing of the child cannot sensibly be entertained unless and until there has been either compliance with Part 77 rule 39 or an order dispensing with service. The child, being of age, must be afforded full opportunity to be part of proceedings that concern such an important and intimate aspect of the child's life. Implicit in the comment of Hodgson CJ in Eq in DOCS v A (above) that "the child has a right to know its parentage" is recognition of the reality 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. 34 I also note the provisions of s.24(2) of the Act which make it clear that the court may decline to proceed with an application for a declaration of parentage in order to give to a person whose interests would be affected by the declaration an opportunity to be present or to be represented at the hearing. Section 24(2) will become relevant at a later stage if the proceedings continue and the position in relation to notification of the child, as it currently appears, remains unchanged. Conclusion and orders 35 It should be ordered that the second and third defendants cease to be parties. They no longer have any role to play in the proceedings. I am also prepared to order that the executors named in the will of the deceased be added as defendants. They are willing for that order to be made but, in making the order, I should not be taken to acknowledge or suggest that legal personal representatives have any rights or powers in relation to a deceased's remains or material taken from them beyond those relevant to burial or other proper disposition; or that they could perform any functions the Act and Regulation contemplate being performed by a "person" in respect of whom a parentage testing order is made. These are questions that may need to be canvassed in due course. 36 The order sought under s.26(1) of the Act will not be made. That order is, as I have said, an order that parentage testing procedures be carried out on the plaintiff, the child and the material removed from the deceased's body after death. For the reasons stated, I do not consider that the court has jurisdiction to make that order in relation to the human remains and, in the absence of compliance with Part 77 rule 39 of the Supreme Court Rules or, alternatively, an order dispensing with service, it is inappropriate that a s.26(1) order be made in respect of the child. 37 I note the matters in paragraphs 1 and 2 of the short minutes of order which were handed up on 12 April and which I have today initialled and dated and placed with the court file. 38 By consent of the plaintiff, the first defendant and the named executors, I make the orders in paragraphs 3 and 4 of the short minutes. These are the orders concerning parties to the proceedings. I also make by consent the order in paragraph 5 as to costs. 39 I decline to make the orders in paragraphs 6, 7 and 8 of the short minutes, being a parentage testing order in respect of the plaintiff, her child and the material taken from the deceased, and ancillary orders. 40 Given this outcome, I see no point in making the order in paragraph 9 appointing a time for further directions. The preferable course is that each party have liberty to apply to the Duty Judge in the Equity Division on two days' notice. I so direct. 41 I direct that my reasons for judgment may be published with the plaintiff identified as "AW", the first defendant as "CW" and the second defendants as "EC". ********** Last Modified: 04/17/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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