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Keevers v Chapman

 

[2015] QSC 161

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Keevers v Chapman [2015] QSC 161

PARTIES:

KEVIN KEEVERS

(applicant)

v

ADRIAN RAYMOND CHAPMAN

(respondent)

FILE NO/S:

2592 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2015

JUDGE:

Martin J

ORDER:

The applicant is to bring in minutes of order

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION – CHILDREN – PARENTAGE: PRESUMPTION, PROOF AND EVIDENCE – GENERALLY – where the applicant was granted limited letters of administration – where the respondent claims to be the only child of the deceased – where the applicant seeks an order that the respondent undertake a parentage procedure – whether a parentage testing order under s 11 of the Status of Children Act 1978 should be made

Matrimonial Causes Act 1959 (Cth), s 6, s 71

Status of Children Act 1978, s 8, s 10, s 11, s 24, s 25, s 26

Duroux v Martin (1993) 17 Fam LR 130

In the Marriage of F & R (1992) 15 Fam LR 533

Re Riley [1996] 1 Qd R 209

COUNSEL:

S Blaxland for the applicant

P MacMillan for the respondent

SOLICITORS:

Simpson Quinn Lawyers for the applicant

Peel Legal for the respondent

  1. Morris Archibald Keevers was married to Lynette Keevers from December 1965 until May 1973. Lynette Keevers gave birth to Adrian Raymond Keevers on 25 November 1968. Lynette later remarried and changed both her and Adrian’s surname to Chapman. Those names were used by the parties in the proceeding and I will use them here.
  2. In June 2013 Morris Keevers died without leaving a will and his brother Kevin was granted limited letters of administration. One of the terms of the letters of administration was that Kevin Keevers was to “make such enquiries and undertake such advertising and investigations as may be reasonable to ascertain the existence and whereabouts of any closer next of kin of the deceased than the administrator and his siblings”. Those enquiries were made and led Kevin Keevers to Adrian Chapman. Mr Chapman says that Morris Keevers was his father. If that is so, then he will inherit the whole of Morris Keevers’ estate.

The application

  1. The applicant seeks a number of orders under the Status of Children Act 1978 (‘the Act’), but, at this hearing he sought only an order under s 11 of the Act. In other words, he is seeking an order that Mr Chapman undertake a parentage testing procedure.
  2. So far as is relevant, the Act provides:

“8 Recognition of paternity

(1) The relationship of father and child and any other relationship traced in any degree through that relationship shall, for any purpose related to succession to property or to the construction of a will or other testamentary disposition or of a document creating a trust or for the purpose of an application under Part 4 of the Succession Act 1981, be recognised only if—

(a)the father and mother of the child were married to each other, or in a registered relationship, at the time of its conception or at some subsequent time; or

(b) paternity has been admitted (expressly or by implication) by or established against the father in his lifetime and, if that purpose is for the benefit of the father, paternity has been so admitted or established while the child was living; or

(c) a declaration of parentage has been made under section 10 after the death of the father of the child.

(2) In a case where by reason of the provisions of subsection (1) the relationship of father and child is not recognised at the time the child is born, the occurrence of any act, event or conduct that enables that relationship and any other relationship traced in any degree through it to be recognised shall not affect any estate, right or interest in real or personal property to which any person has become absolutely entitled, whether beneficially or otherwise, before the act, event or conduct occurred.

(3) Where the event that enables a relationship to be recognised under subsection (1) is a declaration of parentage made under section 10 after the death of the father, the declaration shall, for the purposes of subsection (2), be taken to have been made immediately before the death of the father if the declaration is made in consequence of an application therefor made before the death of the father or within 6 months (or such further time as the Supreme Court upon application duly made in that behalf allows) after the death of the father.

10 Declaration of parentage

(1) A person who—

(a) alleges that any named person is the parent of her child; or

(b) alleges that the relationship of parent and child exists between the person and another named person; or

(c)having a proper interest in the result, wishes to have determined the question whether the relationship of parent and child exists between 2 named persons;

may apply to the Supreme Court for a declaration of parentage and the Supreme Court may, if it is proved to its satisfaction that the relationship exists, make the declaration whether the parent or the child or both of them are living or dead.

 

11 Order requiring evidence to be given about paternity or parentage testing procedure to be carried out

(1) This section applies to a proceeding in relation to an application under section 10.

(2) The court may make the following orders—

(b) an order directing a named person to submit himself or herself or a child or adult mentioned in subsection (4)(b) or (c), within the time stated in the order, to the carrying out of a parentage testing procedure on himself or herself or the child or adult (a parentage testing order).

(3) The order may be subject to conditions.

(4) A parentage testing procedure must not be carried out on a person under a parentage testing order unless—

(a) if the person does not have impaired capacity and is an adult or is a child who is 16 or 17 years—the person consents to the carrying out of the procedure; or

(b) if the person is a child who is under 16 years or is a child who is 16 or 17 years with impaired capacity—the child’s parent or guardian or a person exercising parental responsibility in relation to the child consents to the carrying out of the procedure; or

(c) if the person is an adult with impaired capacity—a person who may exercise powers in relation to personal matters for the adult under a power of attorney under the Powers of Attorney Act 1998, or a guardian for the adult under the Guardianship and Administration Act 2000, consents to the carrying out of the procedure.

(5) If a person fails to take any step required of the person for giving effect to a parentage testing order, the court may draw whatever inferences from that fact the court considers appropriate in the circumstances.

(6) For subsection (5), a person is taken to have failed to take a step required of the person for giving effect to a parentage testing order if the person—

(a) is named in the order; and

(b) fails to consent to a parentage testing procedure being carried out on—

(i) himself or herself; or

(ii) a child or adult mentioned in subsection (4)(b) or (c) named in the order.

(7) However, the person is not liable to any penalty in relation to the contravention.

(8) In this section—

impaired capacity means capacity that is impaired capacity under the Guardianship and Administration Act 2000.

personal matter means a matter that is a personal matter under the Powers of Attorney Act 1998.

24 Parentage presumptions arising from marriage

  1. A child born to a woman while she is married is presumed to be the child of the woman and her husband.

(5) A presumption under this section is rebuttable.

 

25 Parentage presumption arising from birth registration

(1) If, under a law of the Commonwealth, a State or a prescribed overseas jurisdiction, a person is named as a child’s parent in a register of births or parentage information, the person is presumed to be the child’s parent.

(2) The presumption in subsection (1) is rebuttable.

 

26 Parentage presumption arising from court finding

(1) A person is presumed to be a child’s parent if, while the person is alive—

(a) a court of the Commonwealth, a State or a prescribed overseas jurisdiction (a prescribed court) expressly finds that the person is the child’s parent; and

(b) the finding is not altered, set aside or reversed.

(2) The presumption in subsection (1) is irrebuttable.

(5) In this section, a reference to a court finding includes the following—

(a) a declaration under section 10 of this Act;

(b)an order under the Maintenance Act 1965, section 14 or 16;

(c) another court declaration or order that a stated person is a stated child’s parent.”

The family history

  1. Morris Keevers and Lynette Keevers cohabited from the date of their marriage – 4 December 1965 – until 23 February 1968. Some three months after the parties separated, Lynette Chapman informed Morris Keevers that she was pregnant. Adrian was born on 25 November 1968. His birth certificate records Morris Keevers as his father.
  2. On 15 December 1970 Lynette Chapman filed a petition in the Supreme Court of New South Wales seeking a decree of dissolution of the marriage on the grounds of desertion.
  3. Morris Keevers filed an answer and cross petition in which he sought a decree of dissolution of marriage on the ground of desertion and “on the ground of adultery with a man whose name is unknown to the respondent”.
  4. In his cross petition Morris Keevers alleged that Lynette Chapman had committed adultery with a person whose name was unknown to him since 1 January 1968. He goes on to say that he is not the father of Adrian, but that he has been unable to ascertain the identity of the person who is the father.
  5. On 17 May 1973 a decree nisi was granted under which the court was satisfied that Morris Keevers had established that the marriage should be dissolved on the ground of desertion, and that the petition by Lynette Chapman should be dismissed. No finding was made on the assertion of adultery. The decree nisi became absolute on 18 August 1973.
  6. In order to understand some of the arguments put forward, it is necessary to refer to sections of the Matrimonial Causes Act 1959 (Cth). So far as they are relevant these sections provided:

“6 Certain children to be deemed to be children of the marriage

6(1)  For the purposes of the application of this Act in relation to a marriage-

(a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;

(b)a child of the husband and wife born before the marriage, whether legitimated by the marriage or not; and

(c)a child of either the husband or wife (including an illegitimate child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife,

shall be deemed to be a child of the marriage, and a child of the husband and wife (including a child born before the marriage, whether legitimated by the marriage or not) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage.

(2) For the purposes of the last preceding sub-section, in relation to any proceedings the relevant time is-

(a) the time immediately preceding the time when the husband and wife ceased to live together or, if they have ceased on more than one occasion to live together, the time immediately preceding the time when they last ceased to live together before the institution of the proceedings; or

(b) if the husband and wife were living together at the time when the proceedings were instituted, the time immediately preceding the institution of the proceedings.

(3) The provisions of the last two preceding sub-sections apply in relation to a purported marriage that is void as if the purported marriage were a marriage.

71 Decree absolute where children under sixteen years

71(l.) A decree nisi of dissolution of marriage or of nullity of a voidable marriage, being a decree made on or after the date of commencement of the Matrimonial Causes Act 1965, does not become absolute unless the court, by order, has declared that it is satisfied-

(a) that there are no children of the marriage in relation to whom this section applies; or

(b) that the only children of the marriage in relation to whom this section applies are the children specified in the order and that-

(i) proper arrangements in all the circumstances have been made for the welfare of those children; or

(ii)there are special circumstances by reason of which the decree nisi should become absolute notwithstanding that the court is not satisfied that such arrangements have been made.

(1A)For the purposes of the last preceding sub-section, the court shall, where the circumstances make it appropriate to do so, treat the welfare of a child as including its advancement and education.

(2) In this section, ‘children of the marriage in relation to whom this section applies’ means-

(a)the children of the marriage who are under the age of sixteen years at the date of the decree nisi; and

(b)any children of the marriage in relation to whom the court has, in pursuance of the next succeeding subsection, ordered that this section shall apply.

(3) The court may, in a particular case, if it is of opinion that there are special circumstances which justify its so doing, order that this section shall apply in relation to a child of the marriage who has attained the age of sixteen years at the date of the decree nisi.

  1. On the argument of the applicant, Adrian Chapman was a “child of the marriage” but only because of the operation of s 6(1)(c) of the Matrimonial Causes Act (Cth).

Orders under s 11 of the Act

  1. Section 11(2) of the Act gives the court a discretion – “may make” – to make orders requiring a named person to submit himself or herself to the carrying out of a parentage testing procedure.
  2. Section 11 was the subject of examination by Williams J (as he then was) in Re Riley[1]. His Honour’s consideration is useful so far as his discussion of the relationship with the common law is concerned. Section 11 was substantially amended by the Surrogacy Act 2010 and so some of his Honour’s reasoning is no longer relevant. His Honour’s discussion of the common law, though, informs the consideration necessary of the test which should be applied to an application such as this. On that issue, Williams J said:

“The common law has always recognised that a person could not be compelled to provide body samples for testing. Lord Reid in S. v. McC. [1972] A.C. 24 at 43 said: ‘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 to be required to furnish evidence which may tell against him ... 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.’ Lord MacDermott concluded at 46 that ‘the High Court has no power to direct that a person who is sui juris is to have a blood test taken against his will’. Those statements as to the position at common law have been cited with approval by Hillyer J. in R. v. Martin [1992] I N.Z.L.R. 313 at 314 and by a single judge of the Family Court in In the Marriage of J and P (1985) 80 F.L.R. 126 at 132-133. In my view that is clearly the position at common law, and such power as the Court now has to direct such testing must be derived from statute. Particularly where an adult is not willing to submit to such testing the court should ensure that the situation is covered by the statutory provision before making such an order; because the liberty of the subject is involved a reasonably strict approach to the construction of the statute should be adopted. According to the researches of counsel for the respondent the Family Law Act 1975 (Cth) has gone much further than any other legislation on the topic in the common law world. Section 66W(2)(c) now provides that an order requiring parentage testing may be made in relation to ‘any other person where 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’. That provision has been subject of judicial consideration in In the Marriage of F and R (1992) 15 Fam.L.R. 533. Clearly that provision is much wider than s. 11 of the Queensland legislation and it is not necessary to consider what might be the situation if the Commonwealth Act applied to the facts of this case.[2]

  1. The provision of the Family Law Act 1975 (Cth) was wider than s 11 of the Act as it stood at the time of Re Riley. The amendments made in 2010 have enlarged the ambit of s 11 so that it is now closer in effect to a provision in the Family Law Act 1975 (Cth). So far as is relevant, s 66w of the Family Law Act 1975 (Cth) provided:

“Without limiting the generality of section 66v, where the parentage of a child is in issue in proceedings under this Act, the court may, on the request of a party to the proceedings, on the request of a person representing the child under an order made under section 65 or of its own motion, make an order requiring a parentage testing procedure to be carried out in relation to a person referred to in subsection (2) for the purpose of obtaining information to assist in determining the parentage of the child.”

  1. In In the Marriage of F and R[3] Butler J considered what an applicant must establish in order that the court might exercise its jurisdiction under s 66w and make an order requiring a parentage testing procedure to be carried out. He said:

“I cannot envisage a situation where the court will order parentage testing merely because it is requested to do so. In my view an applicant must have an honest, bona fide and reasonable belief as to the doubt. An objective test is not to be applied, for the evidence in such applications is seldom (if ever) sufficient to enable the court to come to any objective conclusion, and if it were, parentage testing orders would not be necessary, but the court will objectively assess the circumstances giving rise to the applicant’s belief.”[4]

  1. Those guidelines were the subject of consideration by the Full Court of the Family Court of Australia in Duroux v Martin.[5] In that case, the Court[6] referred to the decision of Butler J and the paragraph which is set out above and said that his Honour had set out the correct approach.
  2. One of the matters which must be taken into account in assessing this situation is the position of the applicant. Under s 10(1)(a) and (b) there is an obvious direct relationship between a person seeking a declaration of parentage and the child. A broader category of possible applicant is recognised in s 10(1)(c), that is, a person who has “a proper interest in the result” and who “wishes to have determined the question whether the relationship of parent and child exists between two named persons”. The executor or administrator of an estate will have a proper interest in the result of an application for a declaration of parentage where the result of the application will affect the distribution of the estate.
  3. Section s 66w of the Family Law Act 1975 (Cth) comes into play “where the parentage of a child is in issue”. There is no relevant difference between that formula and the words used in s 10 of the Act: “the question whether the relationship of parent and child exists”. Each is based upon the existence of a doubt which must be established to the satisfaction of the court.
  4. In my respectful opinion the test proffered by Butler J and approved by the Full Court of the Family Court of Australia is a test which can guide the decision-making process under s 11.

What is the evidence?

  1. The respondent points to rebuttable presumptions which are, he says, in his favour. Section 24 of the Act creates a presumption that the respondent is a child of Lynette Chapman and Morris Keevers because he was born while the marriage was in place. There is a further presumption, under s 25, that Morris Keever, being named in the birth certificate as the parent of Adrian Chapman is presumed to be his parent. These presumptions are rebuttable and s 29 provides that they are rebuttable on the balance of probabilities.
  2. The respondent also relied upon the presumption afforded by s 26. He pointed to the decision of the Supreme Court of New South Wales in the divorce proceedings in which it was declared that the requirements of s 71 of the Matrimonial Causes Act 1959 (Cth) had been complied with in respect of Adrian. Section 71, though, related to the proper provision for a child of the marriage and “child of the marriage” had the wide definition set out in s 6 of that Act and discussed above. That is not a finding which falls within s 26 of the Act.
  3. The applicant relies upon a number of matters which are, strictly speaking, hearsay, but this is an application for an order that a particular test be undertaken and not for final relief in the sense that a declaration is sought. To that end, it is open to the applicant to rely upon evidence consisting of statements by the deceased’s siblings about the relationship with Adrian Chapman. In summary that evidence is:
    1. The deceased expressly said that Adrian was not his son.
    2. The deceased believed that Lynette had been committing adultery during the marriage.
    3. The deceased believed he was sterile or, at least, had a very low sperm count.
    4. The deceased expressed desire that Adrian not benefit from his estate.
    5. The deceased had been married three times but there were no children of those marriages, apart from Adrian.
    6. Adrian’s birth certificate was amended to change his surname from Keevers to Chapman.
    7. In the divorce proceedings, the deceased put into issue the paternity of Adrian and Lynette Chapman did not traverse those allegations.
    8. There was also the curious circumstance in which the maintenance proceedings brought by Lynette Chapman were dismissed when she declined to offer any evidence on that matter.
  4. There is also evidence that, at one stage, Adrian Chapman agreed to undertake a DNA and later recanted.
  5. The case for the respondent does not assert dishonesty or a lack of bona fides, but does, in effect, argue that it would be unreasonable to form a belief as to any doubt about parentage. I do not agree. These circumstances are extremely difficult for the parties, especially when so many years have passed and the lapse of time has had its inevitable effect on the memories of those who are still involved. Nevertheless, the material relied upon by the applicant does support a conclusion that the belief of the applicant about the doubts surrounding the parentage of Adrian Chapman is honest, bona fide and reasonable. It is supported by strong statements made by the deceased which are, in turn, reflected in actions taken which are consistent with Adrian not being the child of the deceased.
  6. The order which I will make does not have to be complied with by Adrian Chapman. Should he decline to undertake the required test, it will only allow a court to draw “whatever inferences from that fact the court considers appropriate in the circumstances”[7]. Thus, if Adrian Chapman does decline to take a step required of him pursuant to the order, he will have a further opportunity to argue these issues should the application proceed.

Orders

  1. I require the applicant to bring in minutes of order.

Footnotes

[1] [1996] 1 Qd R 209

[2] Ibid at 213.

[3] (1992) 15 Fam LR 533.

[4] Ibid at 538.

[5] (1993) 17 Fam LR 130.

[6] Ellis, Finn and Joske JJ.

[7] s 11(5) of the Act.

Close

Editorial Notes

  • Published Case Name:

    Keevers v Chapman

  • Shortened Case Name:

    Keevers v Chapman

  • MNC:

    [2015] QSC 161

  • Court:

    QSC

  • Judge(s):

    Martin J

  • Date:

    17 Jun 2015

Litigation History

Event Citation or File Date Notes
Primary Judgment [2015] QSC 161 17 Jun 2015 -
Notice of Appeal Filed File Number: Appeal 6899/15 15 Jul 2015 -
Appeal Discontinued (QCA) File Number: Appeal 6899/15 30 Sep 2015 -

Appeal Status

{hollow-slash} Appeal Discontinued (QCA)