DNA testing order

Attorney General in and for the State of New South Wales; ex parte Thomas Hollins [2016] NSWSC 622 saw the court consider a request for DNA testing to determine the paternity of a child. The District Court in Prague had made a request for judicial assistance pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.

Mr Hollins, in respect of whom the order was sought, was present in Court at the hearing of the application. He confirmed that he opposed the order; that he did not wish to seek legal advice; and that he would not provide the samples voluntarily.

As to power, the court said at [16], referring to the Evidence on Commission Act 1995 (NSW):

I am satisfied that the power conferred by s 33(1) and (2) is sufficient to enable me to order that a buccal swab be taken. Although it is not specifically referred to in s 33(3), it would probably fall within s 33(3)(e), as a medical examination. In any event, I am satisfied that it falls within s 33(1) and (2).

The court made the orders, noting the following factors:

  1. Mr Hollins has refused to contribute to the maintenance of the child on the ground that he does not accept that he is her father. He has also refused to undergo a paternity test without a court order. It follows that, unless I make the orders sought by the plaintiff, the question whether Mr Hollins is the child’s father is unlikely to be determined definitively, although I note that there is strong circumstantial evidence (based on his own admissions) that he is the father. Further, inferences could be drawn from his refusal to volunteer for such a test: see G v H (1994) 181 CLR 387, at 402 per Deane, Dawson and Gaudron JJ.
  2. I consider it to be overwhelmingly in the interests of a child to know who his or her father is: see also E v H (1986) 7 NSWLR 212 at 220D per Hodgson J. DNA testing will provide evidence which is likely to be determinative, one way or the other. There is a strong public policy that fathers ought contribute to the maintenance of their children. Moreover there are other considerations, such as citizenship, which may, in some cases, result from paternity and confer significant rights on children who are able to identify their fathers.
  3. Mr Hollins was unable to articulate any reason why the child ought not know whether he is her father. Moreover, he was prepared to have unprotected sex with the child’s mother and can be taken to have known that her pregnancy was a natural and foreseeable consequence.
  4. In my view, all relevant factors weigh in favour of making the orders sought, which appear to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made.


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