Smith v Brown

• Jurisdiction: New Zealand
• Judge: Mallon J
• Judgment Date: 27 September 2013
• Neutral Citation: [2013] NZHC 2536
• Docket Number: CIV 2013-485-303
• Court: High Court
• Date: 27 September 2013

In the Matter of

The Family Proceedings Act 1980

Appellant

Between

Smith

Appellant

and

Smith

First Respondent

Brown

Second Respondent

[2013] NZHC 2536

CIV 2013-485-303

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Counsel:

Appellant in person

C Nicholls for the First Respondent

No appearance for the Second Respondent

P Cobcroft for the Child

JUDGMENT OF Mallon J

Table of contents

Introduction	[1]
Background	[4]
Parentage tests	[18]
Effect of a recommendation	[20]
Jurisdiction	[28]
Right to be heard	[45]
Result	[49]

Introduction

1 This appeal concerns a recommendation made by a Family Court judge that parentage tests be carried out on a child (“Sarah”) and a man who claims to be her father (“Mr Brown”). 1 The recommendation was made by the Judge in response to Mr Brown's application made without notice, to dispense with service of Mr Brown's application for a paternity declaration on Sarah's mother (“Mrs Smith”). The recommendation was made without hearing from any party. The appellant

(“Mr Smith”), who was married to Sarah's mother (“Mrs Smith”) at the time of Sarah's birth and is named as the father on Sarah's birth certificate, objects to the recommendation. He seeks to appeal the recommendation.

2 The issues are:

• (a) whether a recommendation that a parentage test be carried out is appealable; and

• (b) whether Mr Smith was entitled to be heard before the recommendation was made.

3 The child's name and identifying particulars are subject to statutory suppression. 2 The names used in this judgment are therefore fictitious.

Background

4 Sarah is now six years old. She does not live with her biological parents. She has a “Home for life” placement with caregivers with whom she has lived for most of her life to date. That situation arose because at the time of her birth Mr and Mrs Smith were both in prison. Mr Smith has remained in prison over the ensuing years.

5 In September 2007, a few months after Sarah's birth, Mr Smith was told by Sarah's Ministry of Social Development (MSD) social worker that Mr Brown

claimed to be Sarah's father. Mr Smith says that at this time he asked Mrs Smith about Mr Brown's claim and she said it was “rubbish”. He also made enquiries of a friend who told him that Mr Brown was a “druggie”, was untrustworthy and could be making claims to try and attain some sort of status amongst fellow prisoners. As a result of these enquiries, Mr Smith told MSD that anything Mr Brown said should be treated with the utmost caution.

6 The claim made through the social worker was followed by a paternity application made by Mr Brown in October 2007. Mr Brown was a prisoner at this time. A note made by Sarah's social worker in November 2007 recorded the following discussion with Mr Brown:

[Mr Brown] phoned from Rimutaka Prison to inform me the following: He wants to Flag the DNA test.

He wants to wipe his hands of it.

He is saying he is not the father of [Sarah].

He has spoken to his Lawyer to instruct him to retract the affidavit.

…

He stated he did not have sexual relations with [Mrs Smith] so could not possibly be the father of [Sarah].

He said he has not spoken to [Mrs Smith]for a long time

…

I repeated to [Mr Brown] what he had just told me, and [Mr Brown] confirmed that he is saying he is not the father of [Sarah] and does not want to be tested for DNA to establish paternity.

7 Mr Brown took no steps to pursue the application he had lodged. In early 2008 Mr Smith was told by MSD that Mr Brown had withdrawn his paternity claim.

8 On 3 August 2012 Mr Brown filed a second paternity application in respect of Sarah. This was served on Mr Smith on 12 September 2012. On 13 September 2012 Mr Smith filed a Notice of Defence and Intention to Appear. In that document Mr Smith asserted (amongst other things) that:

• (a) Mr Brown was not the biological father of Sarah;

• (b) Mr Brown had previously alleged to be the father of Sarah but then admitted to Sarah's social worker that he was not the father and had not been in a sexual relationship with Mrs Smith.

• (c) Mrs Smith had not told Mr Brown nor Sarah's social worker that Mr Brown was the father.

9 On 25 September 2012 Mr Smith served a Notice to Admit Facts on Mr Brown. Mr Brown responded to that notice by affidavit dated 31 October 2012. In that affidavit Mr Brown denied telling an MSD social worker that he was not the father of Sarah and was not in a sexual relationship with Mrs Smith when Sarah was conceived. He also said that Mrs Smith had told him that he was Sarah's father, and that Sarah's social worker told him that Mrs Smith had told MSD that he was Sarah's father.

10 The affidavit was filed in the Family Court on 8 November 2012. In a covering letter to the Registrar, which was copied to Mr Smith, Mr Brown's counsel sought a two month adjournment. The letter advised that this was because Mr Brown had not been able to locate Mrs Smith in order to serve her and that the “reality is that this matter cannot be advanced until she can be found and served.”

The letter also said the lawyer for the child was going to speak to the social worker to try and locate Mrs Smith but he had not heard anything. 3

11 On 16 November 2012 Mr Brown applied without notice to dispense with service of the paternity application on Mrs Smith. The application set out the attempts to locate Mrs Smith. It referred to Mr Brown having heard that Mrs Smith “was back using methamphetamine”. It asserted that all reasonable efforts had been made to locate Mrs Smith and that it was likely that Mr Smith had brought the proceedings to Mrs Smith's attention. It said:

Counsel has made enquiries with DNA Diagnostics and understands that it is possible to determine the child's paternity without the mother by testing the child and possible father. Given that the Ministry of Social Development have custody of the child, the Ministry could potentially facilitate the child undergoing DNA tests and Mr [Brown] will also undergo DNA tests.

From my discussions with Mr [Smith] it would seem very unlikely that he will consent to undergo DNA testing, but testing of him may not be required for sufficient DNA evidence to be obtained for the court to decide the application.

Mr [Smith] had already served a notice on Mr [Brown] to admit facts and Mr [Brown] has answered that by affidavit and Mr [Brown]'s affidavit is on the court file.

12 The without notice application concluded with requesting an order that service of the proceedings on Mrs Smith be dispensed with. It said that the application dispensing with service was made without notice to Mr Smith because “whether or not [Mrs Smith] is served or not has no effect on him or his role in the proceedings and to require service on [Mr Smith] would unnecessarily complicate and delay progress in these proceedings.” It also said that the interests of the child require identification of her biological father as quickly as possible.

13 On 23 November 2012 lawyer for the child sent an email to the MSD, copied to counsel for Mr Brown, asking if the MSD would consent to a guardianship order for the specific purpose of DNA testing Sarah. The MSD replied by email the same day saying that it “would accept being an agent for the purpose of consenting to the DNA test.” The MSD said that the question was who should make the application. It said that it was not, and should not be, a party to the paternity issue and that its only role was to act as an agent of the Crown. It said that, as neither parent was likely to consent to DNA being taken, either Mr Brown or lawyer for the child might ask for the order. It further said that “[g]uardianship for the specific purpose [of] consenting to taking DNA under [the Children, Young Persons, and Their Families] Act does not sit well. [Mr Smith] will oppose any such application and it requires a defended hearing.”

14 On 8 February 2013 a minute was issued by Judge Johnston in the Upper Hutt Family Court. The minute appears to have been in response to the without notice application to dispense with service on Mrs Smith. The minute said: 4

I consider it preferable that I recommend parentage tests be carried out on the child and the applicant and that a report of the results be compiled by a properly qualified person and submitted to the Court pursuant to s.54 Family Proceedings Act 1980.

The proceedings should be adjourned to a Registrars list in 6 weeks to monitor receipt of report and for issues of service to be considered further.

15 Mr Smith received this minute from the Court under cover of a letter dated 14 February 2013. This was the first he had heard from counsel for Mr Brown or the Court since receiving the letter dated 8 November 2012.

16 In response to this minute, Mr Brown filed an application dated 25 February 2013 for Sarah to be placed under the guardianship of the Court for the purpose of enabling the recommended parentage testing to be carried out.

17 Mr Smith then filed this appeal. The Court appointed Ms Cobcroft as lawyer for the child. She is lawyer for the child in other Family Court proceedings relating to Sarah. Mr Smith filed an appeal to the Court of Appeal in respect of that appointment and sought a stay. The stay was declined. 5

Parentage tests

18 Section 54(1) of the Family Proceedings Act 1980 (the FPA) provides:

54 Parentage tests

• (1) In any civil proceedings (whether under this Act or not) in which the parentage of a child is in issue —

  • (a) the Court may, of its own motion or on the application of a party to the proceedings, recommend...