New South Wales Supreme Court CITATION : In the application of her Majesty's Attorney General in and for the State of New South Wales under ss 32 and 33 of the Evidence on Commission Act 1995 [2007] NSWSC 1501 HEARING DATE(S) : 22 October 2007 JUDGMENT DATE : 9 November 2007 JUDGMENT OF : Harrison J DECISION : Order made pursuant to s 33(1)(2) and (3)(f) of the Evidence on Commission Act 1995 for the taking and testing of blood and buccal samples in relation to the establishment of paternity CATCHWORDS : EVIDENCE - Evidence on Commission Act 1995 – request from Swedish court for the taking of evidence abroad, namely blood and buccal samples from putative father of child for the purposes of establishing paternity Australian Citizenship Act 1948 LEGISLATION CITED : Evidence on Commission Act 1995 Status of Children Act 1996 British American Tobacco Australia Services Ltd v Eubanks (2004) 60 NSWLR 483 CASES CITED : E v H (1986) 7 NSWLR 212 G v H (1994) 181 CLR 387 Piggott and Anor v Harrex and Anor [2000] TASSC 72 PARTIES : Attorney General in and for the State of New South Wales (Plaintiff) FILE NUMBER(S) : SC 13239 of 2007 COUNSEL : Mr Greg Moore (Plaintiff) SOLICITORS : I V Knight, Crown Solicitor for New South Wales (Plaintiff) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HARRISON J 9 November 2007 13239 of 2007 In the application of her Majesty's Attorney General in and for the State of New South Wales under ss 32 and 33 of the Evidence on Commission Act 1995 JUDGMENT 1 HARRISON J: By his summons filed 28 June 2007 the plaintiff seeks an order pursuant to s 33 of the Evidence on Commission Act 1995 for the taking and testing of blood and buccal samples from a putative father, Mr G. Further orders are sought providing a regime to give effect to that order if granted. BACKGROUND 2 Mr G was born in January 1969. Ms R ("the mother") was born in August 1974. In March 2005 the mother gave birth to J ("the child"). 3 In November 2005 the child by her mother petitioned the Halmstad District Court in Sweden for a declaration that Mr G was the child's father. In May 2006 that Court made the following orders. 3.1 To establish the paternity of [the child], the District Court orders that a blood test be taken under s 1 of the Blood Tests (Paternity Cases) Act 1958 . The test should relate to: 3.1.1. [the child] 3.1.2. [the mother] 3.1.3. [Mr] G. 3.2 [The mother] is directed within four weeks of service of this notice to submit to the District Court a certificate showing a blood sample has been taken from herself and [the child]. If this is not done [the mother] may be ordered to pay a penalty of SEK one thousand (1000) to the State. Sampling may, instead of a blood sample, take the form of a buccal smear. 3.3 Samples from the mother and the child will be taken at a convenient health centre in Halmstad. This record of proceedings should be taken to the sample taking. The costs of the health centre for taking the sample will be met from public funds … 3.4 The District Court decides to apply for the taking of evidence by an official body abroad for the purpose of obtaining a genetic sample from [Mr] G. The Application will be made to the Central Government of Australia under the Hague Convention of 18 March 1970 on the taking of evidence abroad in civil and commercial matters. The request for taking of evidence relates to the obtaining of a genetic sample from [Mr] G by means of a blood sample or a buccal smear. 4 On 2 June 2006 the Commonwealth Attorney-General's Department received the request from the Hamlstad District Court in Sweden for the taking of evidence abroad. On 28 June 2007 the plaintiff commenced the present proceedings under ss 32 and 33 of the Evidence on Commission Act 1995. On 23 July 2007 the matter came before McClellan CJ at CL who adjourned the matter for a period in order to permit Mr G to obtain legal advice. The matter came before me on 10 September 2007 in the Common Law Duty Judge list. Mr Greg Moore of counsel appeared for the plaintiff. Mr G again appeared unrepresented. 5 Following the reading of evidence upon which the plaintiff relied and submissions from both the plaintiff and Mr G, I formed the view that it was appropriate once again to enquire of Mr G whether or not his interests would not best be served if he were to be legally represented before me. Although he was not named as a party to the proceedings, there was a potential for him to be affected adversely by the making of an order in the terms sought by the plaintiff. Moreover, I formed the view that I may be assisted by an opportunity to consider detailed submissions on his behalf by experienced counsel. In the events that occurred, Mr G decided to seek legal advice. Accordingly, I adjourned the matter for mention before me on Monday 24 September 2007. 6 A number of further adjournments and appearances intervened. Mr G ultimately decided not to retain a legal representative to appear for him in the proceedings. On 22 October 2007, after further submissions, I reserved judgment. The Statutory Regime 7 Part 4 of the Evidence on Commission Act 1995 (NSW) deals with the taking of evidence for foreign and Australian Courts. Some of the provisions of that Act are as follows: Part 4 Taking of evidence for foreign and Australian Courts 31 Definitions In this Part: Australian court means a person or body authorised to exercise an adjudicative function: (a) whether on behalf of a court or otherwise, and (b) whether or not the person or body is empowered to require the answering of questions or the production of documents. proceedings means: (a) proceedings in any civil or commercial matter, or (b) proceedings in or before a court in relation to the commission of an offence or an alleged offence. request includes any commission, order or other process issued by or on behalf of a requesting court. requesting court means a court or tribunal by or on whose behalf a request is issued, as referred to in section 32. 32 Application to the Supreme Court for assistance in obtaining evidence for proceedings in other court (1) The following provisions of this Part apply if an application is made to the Supreme Court for an order for evidence to be obtained in the State and the Court is satisfied: (a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside the State, and (b) that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated. (2) . . . 33 Power of the Supreme Court to give effect to application for assistance (1) The Supreme Court has power, if an application is made under section 32, by order to make such provision for obtaining evidence in the State as may appear to the Court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made. (2) … (3) Without limiting the generality of subsections (1) and (2), an order under this section may, in particular, make provision as follows: . . . (e) for the medical examination of any person, (f) without limiting paragraph (e), for the taking and testing of samples of blood from any person. (4) An order under this section is not to require any particular steps to be taken unless they are steps that can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates). 8 Division 6 of the Status of Children Act 1996 (NSW) deals with parentage evidence. Sections 26 to 30 inclusive of that Act are as follows: 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 (c) 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. (2) A parentage testing order may be made by the Court: (a) on the application of a party to the proceedings, or (b) on the application of the Director-General, or (c) on the application of a person representing the child under an order made under section 34, or (d) of its own motion. (3) A parentage testing order may be made subject to terms and conditions. (4) In deciding whether to make a parentage testing order, the Court must: (a) consider and determine any objection made by a party to the proceedings on account of medical, religious or other grounds, and (b) if it determines that an objection is valid, take the objection into account in deciding whether to make the order. 27 Orders associated with parentage testing orders (1) If the Supreme Court makes a parentage testing order, the Court may make such other orders as it considers necessary or desirable: (a) to enable the parentage testing procedure to be carried out, or (b) to make the parentage testing procedure more effective or reliable. (2) Some examples of the kinds of order that the Court can make under subsection (1) are as follows: (a) an order requiring a person to submit to a medical procedure, (b) an order requiring a person to provide a bodily sample, (c) 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, (d) an order requiring a person to furnish information relevant to the person's medical or family history. (3) The Court may also make such costs orders as it considers just in relation to costs incurred in relation to: (a) the carrying out of the parentage testing procedure or other orders made by the Court in relation to the parentage testing procedure, or (b) the preparation of reports in relation to the information obtained as a result of the carrying out of the parentage testing procedure. (4) In deciding whether to make an order under this section, the Court must: (a) consider and determine any objection made by a party to the proceedings on account of medical, religious or other grounds, and (b) if it determines that an objection is valid, take the objection into account in deciding whether to make the order. 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. The Evidence 9 The plaintiff relied upon two affidavits of Maureen Harakos sworn 27 June 2007 and 10 September 2007. Annexure "B" to Ms Harakos' first affidavit is a translation of a letter dated 2 June 2006 from the Halmstad District Court to the Commonwealth Attorney-General's Department. That letter is relevantly in the following terms: "Legal proceedings are in progress in Halmstad District Court concerning determination of paternity …The alleged father is an Australian citizen and resident there. The District Court has decided the taking of evidence ought to take place in Australia. ***** The child … has applied for a summons and asked the District Court to declare [Mr G] her father. ***** [Mr G] has been served with the application for a summons at the above-mentioned address in Australia but has failed to submit a reply. [Mr G] has been given the opportunity to comment on the matter of a blood sample in the case but nothing has been heard from him. Halmstad District Court has found it necessary to have a forensic genetic test carried out in order to enable paternity to be determined and has decided that a forensic genetic test, blood sample or buccal smear should be taken by the mother, the child and the alleged father . . . The District Court has also decided to request the taking of evidence abroad in order to permit the obtaining of a sample from [Mr G] . . . Under Swedish law the Court may subpoena the party who is to be examined by means of a genetic test to produce within a certain period of time a certificate stating that such a test has been carried out on him or her. The test must have been taken by a qualified expert. If such a subpoena is disregarded the court may instead of issuing a new subpoena prescribe the assistance of a police authority in order to enable the test to be taken. . . The District Court herewith requests assistance in the taking of evidence with relation to the taking of a sample from [Mr G], a blood sample or a buccal smear. The request is made under the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters. Should [Mr G] not voluntarily allow the taking of a sample it is requested that compulsory measures be taken in order to obtain a sample in accordance with Australian law. 10 There was evidence before the Swedish court that the time of conception, said to have been calculated with "very high reliability", was during the period between 2 and 29 June 2004. The mother gave evidence that during that period she had unprotected sexual intercourse with Mr G and with no one else. 11 Ms Harakos' second affidavit annexed a facsimile received by her on 31 August 2007 from Mr G. The transmission included a translation of an advertisement that appeared in the Swedish newspaper "Hallands Posfen". It is in the form or a birth notice. It includes the name of a Mr K who is named in records of the Halmstad Hospital, searched and copied by Mr G from the internet, as one of the parents (sic) of the child. 12 On 8 October 2007 Mr G filed in court a document described as a Statement of Knowledge. It is in the handwriting of Mr G and includes the following material: "When living in Sweden in 2004 with partner of 15 years … and our two children, a breakdown in the relationship occurred. A sexual relationship was entered into by myself with [the mother] for a period of approximately 13 weeks. Consensual method of contraception was discussed and agreed at natural method. ***** [The mother] was at the time in a relationship with [Mr K] and they had been trying to conceive a baby together. ***** Outside of [my wife], our greater family's (sic) are unaware of this matter as we hold in high regard the sensitive interests of our daughters . . . [aged 10 and 8] ***** It is my understanding of limited size, that Australian law, in such internal cases does not compel me to give such evidence to which could have a significant impact on our lives. The request from Sweden is that the belief my Australian rights afforded me here are to be removed on the basis the potential positive impact for [the child] outweighs the negative impact incurred upon us. ***** The negative impact that will occur to our family will be an ongoing emotional and financial burden of great importance. Whilst it is understood that my own actions have brought about this predicament and a certain amount of responsibility and acceptance is required if actions proceed. I feel due process of elimination of doubt has not been removed to allow my life to be burdened. At this I seek further understanding personally and have faith in Australian process." Consideration 13 In Piggott and Anor v Harrex and Anor [2000] TASSC 72, Slicer J, dealing with cognate provisions in the Status of Children Act 1974 (Tas) said that following: " Exercise of Discretion [10] No principles governing the exercise of discretion are stated in the legislation. The ordinary rules are to be applied ( House v The King (1936) 55 CLR 499) in the context that any order might determine substantive rights ( Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170). The application of those principles requires, as a precondition, that a party must have an honest and reasonable belief that there is a doubt as to paternity and that that test is rarely to be an objective one ( Duroux v Martin (1993) 17 Fam LR 130). The relevant principles are those of competing interests (certainty as against privacy) but remain ones of evidence. The question of paternity is medical rather than legal ( G v H (1993) 16 Fam LR 525). The rationale for legislative provisions enabling scientific testing is, ordinarily, to promote the welfare of children in family law proceedings ( G v H (supra)) whilst retaining the right of privacy. As Lord Reid stated in S (an infant) v S [1972] AC 24 at 43: 'I must now examine the present legal position with regard to blood tests. There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will. In my view, the reason is not that he ought not be required to furnish evidence which may tell against him. By discovery of documents and in other ways the law often does this. The real reason is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty.'" 14 In G v H (1994) 181 CLR 387 the High Court of Australia dealt, among other things, with the inference to be drawn, in circumstances such as in the present case, from what was described in that case as "an unreasonable failure to comply with a parentage testing order made under s 66W of the Family Law Act 1975". On that topic, Deane, Dawson and Gaudron JJ had this to say at pars [19] to [22]: " The inference to be drawn in the present case [19] The inference with which s 66W(5) is concerned is that to be drawn from the contravention of an order requiring a parentage testing procedure to be carried out. It is not an inference to be drawn from the reasonableness or otherwise of the refusal to submit to testing or the explanation, if any, proffered for that refusal. It may sometimes be necessary to consider those reasons or explanations for the purpose of determining whether they preclude or negate an inference that might otherwise be drawn. And in that process it may be relevant to determine whether or not they are reasonable. But even so, the inference with which s 66W(5) is concerned is that to be drawn from contravention of an order under s 66W(1). For present purposes and in terms of s 66W(2)(c) it is contravention of an order by a person in relation to whom "(a) parentage testing procedure ... might assist in determining the parentage of the child". [20] The inference, if any, to be drawn pursuant to s 66W(5) of the Act will depend on the circumstances of the particular case. And, of course, it must be consistent with the evidence and the findings. As a general rule, there will be an inference as to the state of mind of the person who has contravened the order made under s 66W(1) and another as to the question whether he or she is the parent of the child concerned. [21] So far as G's state of mind is concerned, it may be inferred that he has chosen to take the risk of being held to be the father of H's child and liable for his maintenance and support rather than submit to a test which will effectively disclose whether or not he is in fact the father. That is not an inference that is in any way inconsistent with the evidence, the findings or the reasons proffered by him for refusing the test. And if, as here, the evidence establishes that a particular person is the most likely person to be the father and that person has chosen to risk a finding that he is the father rather than submit to a parentage test, there is no injustice involved if such a finding is ultimately made. [22] More important, so far as G's paternity is concerned, there is an inference of a different kind. Leaving aside special considerations which arise in criminal cases as a result of the right to silence ((22) See Petty v. The Queen [1991] HCA 34; (1991) 173 CLR 95 at 99-101, 106-107, 118-122, 125-130. See also Weissensteiner v. The Queen [1993] HCA 65; (1993) 178 CLR 217 at 224-229, 231-236, 240-246; and the cases there referred to.), it is well settled that, in the course of the ordinary processes of legal reasoning, an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so. Thus, for example, there may sometimes be an inference in civil cases that the evidence, if called, would not assist that party's case ((23) Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298.). And there may sometimes be an inference in criminal cases of "guilty knowledge", in the sense of knowledge that the evidence cannot be explained in a way that is consistent with innocence ((24) See, for example, Weissensteiner v. The Queen (1993) 178 CLR at 243-245 and the cases there cited.). They are inferences that are to be drawn, if at all, in accordance with strict legal reasoning. In other cases, the failure to give evidence may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence. The inferences which s 66W(5) allows are "such inferences as appear just in the circumstances". They are not confined to inferences that can or should be drawn as a matter of strict legal reasoning and they certainly extend beyond those inferences that may be drawn from the other available evidence. That is not to say that s 66W(5) permits of surmise: as earlier indicated, the inferences must be consistent with the other evidence. In all the circumstances of the present case, the "just" inference to be drawn was that it was more probable than not that the outcome of the court-ordered test would be unfavourable to G. And given the accuracy of the test, that must lead to the finding that, on the probabilities, he was the father of the child." 15 I was also referred to the decision of Hodgson J (as he then was) in E v H (1986) 7 NSWLR 212 at 220D. In that case his Honour said: "In my view also in most cases it is in the interests of the child and of justice that questions such as this be decided on the best available evidence. In my view to overcome that consideration would require quite specific and powerful evidence that the interests of the child would be harmed by the making of blood tests." 16 I was also referred to the decision of the New South Wales Court of Appeal in British American Tobacco Australia Services Ltd v Eubanks (2004) 60 NSWLR 483, particularly at par [42]. That case held, among other things, that proceedings for an order to be made against a person under section 33 of the Evidence on Commission Act 1995 raise an issue of substance affecting that person's civil rights and do not involve merely a matter of practice and procedure. Such proceedings are not therefore to be characterised as interlocutory. The evidence permitted to be obtained under that Act in compliance with a request by a foreign court or tribunal is restricted to evidence for use in a trial, thereby excluding the obtaining of evidence that might lead to the procurement of evidence. However, such evidence is not restricted to testimony that is both admissible (other than by way of general relevance) and actually to be admitted in the foreign proceedings. 17 The plaintiff submitted that the evidence established that a court outside New South Wales had made a request and the proceedings had been instituted in Sweden. Section 33 of the Evidence on Commission Act 1995 and s 26 of the Status of Children Act 1996 in combination, conferred a power on this Court to order that Mr G provide a bodily sample to determine paternity. It was submitted that the results of any testing of that sample would assist the Swedish court to determine the identity of the child's father. The evidence so far available from Sweden prime facie suggested that Mr G was the child's father. It was submitted that it was in the child's best interests, as well as in the public interest, to know his true identity. For example, if Mr G were the father of the child then, pursuant to s 10B of the Australian Citizenship Act 1948, she would be entitled to Australian citizenship. Decision 18 In my opinion, the parentage testing procedure that the plaintiff seeks would, if carried out, assist in determining the parentage of the child: s 26(1). In deciding whether or not to make that order I have taken into account Mr G's objection, which in general terms, is that it would be inimical to the interests of his family, particularly his daughters, if such an order were made. This submission is made upon the basis that, presumably, a positive identification of him as the father of the child may have financial and emotional ramifications adverse to the interests of his family and his daughters. In the circumstances of the present case, I consider that these objections are valid. I have also had regard to the fact that contravention of a parentage testing order under s 27 would not render Mr G liable to any penalty in relation to the contravention: s 29(1). The Court may draw such inferences as appear just in the circumstances: s 29(2). 19 I have also taken into account what was said in G v H (supra) at par [21], that if the evidence establishes that a particular person is the most likely person to be the father and he has chosen to risk a finding that he is the father rather than submit to a parentage test, there is no injustice involved if such a finding is ultimately made. The evidence available from the Swedish court, in my opinion, presently establishes that Mr G is the most likely person to be the child's father. Orders 20 Although the summons proposes a detailed regime to give effect to an order for the taking and testing of appropriate samples, it was obviously formulated without the assistance of Mr G and without the benefit of any understanding of whether or not he would be prepared to cooperate in any way. While Mr G's attitude to the making of an order may fairly be inferred from his opposition to it, it does not follow that his attitude will not have changed once he has been given an opportunity to consider these reasons, or that he should be excluded from an opportunity to contribute to a discussion upon the form of any orders that might be made. 21 Accordingly, whilst I am prepared to make an order in accordance with paragraph 1 of the summons, I would invite the plaintiff, and Mr G if so minded, to bring in short minutes of the orders upon which they are able to agree or, in the absence of agreement, for which they respectively contend. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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