G v H [1994] HCA 48 | 19 October 1994

G v H [1994] HCA 48; (1994) 181 CLR 387; (1994) 124 ALR 353 (19 October 1994).

http://www.austlii.edu.au/au/cases/cth/high_ct/181clr387.html

A child’s paternity had been inferred by the Full Court of the Federal Court of Australia by reason of matters including the father’s refusal to undergo a paternity test.

On appeal to the High Court, it was argued that the adverse inference was not just in the light of the evidentiary rule set out in Briginshaw v Briginshaw (that for issues of importance and gravity arising in a civil case, serious consideration be given as to whether the necessary degree of reasonable satisfaction or persuasion that the alleged facts are more likely than not to exist).

The High Court held that whilst paternity is a serious matter, it was just to draw the adverse inference against the putative father because the paternity test was capable of conclusively determining the child’s paternity and that the child’s right to maintenance and support should not depend on establishing paternity in accordance with the Briginshaw test.

Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided … Paternity is a serious matter, both for father and for child. However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v Briginshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father. After all, paternity can be determined easily and, for practical purposes, conclusively. And now that that is so, it is difficult to see why, if a person who could be the father declines to participate in procedures which will provide proof one way or the other, the child’s rights to maintenance and support should nonetheless depend on the biological fact of paternity being established on the basis that, so far as the putative father is concerned, the biological fact involves an allegation in much the same category as an allegation of moral or criminal wrongdoing. …

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