Cressy, Re; Re Cressy, Wilson & Cressy [1993] QSC 216

n IN THE SUPREME COURT OF QUEENSLAND o.s. No. 510 of 1993 Brisbane Before Justice White [Re: Daniel Trevor CRESSY] IN THE MATTER of the Rules of the Supreme Court in Order 61 Rule 5 for the consolidation of O.S. Nos. 415, 416, of 1993 and 80 of 1992 - and - IN THE MATTER of the Status of Children Act 19Y8 .(as amended) - and - IN THE MATTER of an application by DANIEL TREVOR CRESSY (an infant) pursuant to the Status of Children Act 1978 aforesaid - and - IN THE MATTER of an application by DANIEL TREVOR CRESSY (an infant) pursuant to Section 41 of the Succession Act - and IN THE MATTER of an application by CHENAE ELIZA JOAN WILSON (an infant) pursuant to Section 41 of the Succession Act - and - IN THE MATTER of an application by LEIGH ALLISON CRESSY pursuant to Section 41 of the Succession Act REASONS FOR JUDGMENT - WHITE J. Judgment delivered Reasons given Counsel Solicitors Hearing Date(s) 2 August 1993 4 August 1993 Mr R. Clutterbuck for all applicants Mr. I.D.C. Kelly for the Public Trustee Bruce S. Dulley as town agent for Andersons Official Solicitor to the Public Trustee 2 August 1993 -- 1 of 9 -- 0 0 0 (\ ~ IN THE SUPREME COURT OF QUEENSLAND o.s. No. 510 of 1993 Before Justice White [Re: Daniel Trevor CRESSY] IN THE MATTER of the Rules of the Supreme Court in Order 61 Rule 5 for the consolidation of o.s. Nos. 415, 416, of 1993 and 80 of 1992 - and - IN THE MATTER of the Status of Children Act 1978 (as amended) - and - IN THE MATTER of an application by DANIEL TREVOR CRESSY (an infant) pursuant to the Status of Children Act 1978 aforesaid - and - IN THE MATTER of an application by DANIEL TREVOR CRESSY (an infant) pursuant to Section 41 of the Succession Act - and IN THE MATTER of an application by CHENAE ELI ZA JOAN WILSON (an infant) pursuant to Section 41 of the Succession Act - and - IN THE MATTER of . an application by LEIGH ALLISON CRESSY pursuant to Section 41 of the Succession Act REASONS FOR JUDGMENT -WHITE J. Judgment delivered Reasons given 2 August 1993 4 August 1993 There are a number of applications before the Court, namely that certain originating summonses be consolidated and determined together, that the consolidated summonses be remitted to the -- 2 of 9 -- 2 District Court at Brisbane for hearing and that the infant, Daniel Trevor Cressy be declared the child of Trevor Harold Wilson (deceased) pursuant ·to s. 10 ( 1) (a) of the Status of Children Act 1978 (as amended). Directions with respect to the applicant pursuant to the Succession Act 1981 have already been given by order of Moynihan, J. on the 29 April 1993. The Public Trustee was represented by Mr Kelly who consented to the summonses being consolidated and remitted to the District Court and having no further interest in the proceedings was given leave to withdraw. Before me then the only matter to be dealt with was the application for declaration with respect to paternity. I made the declaration sought with reasons to be given in due course, which I now do. Leigh Allison Cressy is the mother of the infant born the 30 May 1992. She is also an applicant for provision out of the alleged father's estate. The infant brings the application by his next friend Jeffrey Athol Cressy. The alleged father ("the deceased") of the infant died on 0 0 0 the 26 October, 1991 by taking his own life. The deceased and (_) Leigh Allison Cressy commenced their relationship whilst they were still at school. She is now 28 years. They co-habited, either at her parents' home or at the deceased's parents' home from 1982 to 1987. On the 21 April 1986, the deceased went to Mt. Newman to work for a period of 9 months in the mines. During this time Miss Cressy remained living with the deceased's parents. When he returned they continued to live together in his parents' home until March 1987. Thereafter, for about nine ----··~··---· -- 3 of 9 -- 0 0 3 months they drove around Australia together arriving back in Brisbane in December 1987. They spent Christmas with their families and then returned to Perth in January 1988 and went to Mt. Newman where the deceased again worked in the mines. They lived together in premises at Mt. Newman for about nine months and in September 1988 returned to Brisbane where they again resided with .the deceased's parents for about six months. From. about March 1989 to August 1989 they.lived together in rented accommodation and in August 1989 they terminated their relationship and lived apart until February 1990 although they maintained social contact. During this period of separation the applicant had sexual relations with one James Boyle over a per~od of about one month as a consequence of which her daughter Chenae Eliza Joan Wilson was conceived. She told the deceased of the circumstances of the conception of that child and he asked that his name be placed upon her birth certificate as the child's 0 father and he signed the notification of her birth for that purpose. This occurred after they were reconciled in February 1990. It should be mentioned that that child is an applicant u under the Succession Act for provision out of the deceased's estate. The birth certificate shows the deceased as father and as informant. In about the middle of March 1991, the deceased and Miss Cressy commenced building a house at Tingalpa and moved into it in July of that year. In August 1991, the applicant infant was conceived. Miss Cressy swears that at that time she had no other relationship either sexual or social with any other person apart from the deceased. She says that she has had no other -- 4 of 9 -- 4 relationship apart from the brief affair with James Boyle, to which I have referred, since she was 16 years old apart from the relationship which she had with the deceased. It is her belief that the infant applicant was conceived on the 24 August 1991. She says that she is able to work this date out because she knows that the baby was a full term baby and she became aware that about that time she had ceased her menstrual cycle. She says that neither she nor the deceased were using contraceptives at the time and which the deceased customarily did. When the deceased died on the 26 October 1991, Miss Cressy says that she was some two months' pregnant. The deceased's father, Ronald Bertram Wilson, has sworn an affidavit in support of the application for declaration of paternity. In para. 5 he swears that in September 1991 the deceased told him of the pregnancy of Miss C+essy. He says that his son was elated at the prospect of the birth of his child. .. 0 0 The law with respect to declarations of paternity is set out in () s.10 (1) which provides: 11 A person who - (a) alleges that any named person is the f~ther of her child; (b) alleges that the relationship of father and child exists between him and another named person; or (c) having a proper interest in the result, wishes to have determined the question whether the relationship of father and child exists between two named persons, may apply by way of originating summons to the Supreme Court · or a Judge thereof for a declaration of paternity and that Court or Judge may, if it is proved to its or his satisfaction that the relationship 0 ---------------~~------- ~--------------~---------------~ -- 5 of 9 -- 0 0 5 exists, .make such declaration whether the father or the child or both of them is or are living or dead." In Re Pellitteri [1991] 1 Qd.R. 154 Thomas J. in considering an application seeking a declaration that an applicant was the natural father of a child and seeking amendment of the birth certificate of the child, which showed another man who was married to the mother of the child as the father, considered the degree of proof necessary to displace the conclusiveness of the entry on the Register of Births. His Honour said that having regard to the nature of the issues he would not be prepared to make the essential finding on a mere balance of probability or a satisfaction that the scales tilt slightly more in one direction than the other. His Honour said at p. 158: "I do not wish to lay down any particular level of necessary satisfaction, but, for myself, would not be prepared to make the necessary finding that the applicant is in fact the father of this child unless I held what is sometimes referred to as a 'comfortable' satisfaction that this is indeed true." 0 In that case of course the consequences of making the declaration sought would have been to make the infant no longer a child of a marriage. In my view, there is nothing to suggest that the burden of proof with respect to s. 1 0. 1 when it refers to "proved to its or his satisfaction" requires any further .Proof than that which was described to by his Honour in Re Pellitteri, supra. Accordingly, I am satisfied on the evidence placed before me that the deceased, Trevor Harold Wilson was the father of the infant Daniel Trevor Cressy and so declare. I should not conclude these brief reasons without reference to the question of representation of the infant. Mr Clutterbuck has appeared before me on behalf of all applicants in all -- 6 of 9 -- 6 applications. In the application for declaration of paternity he appeared only for the infant applicant. He concedes that should the declaration sought be made then the infant Daniel Trevor Cressy becomes entitled to take the whole of the deceased's estate under the intestacy provtsions of the Succession Act. In the absence of that declaration he would have no entitlement under the Act even as a dependent not having been born at the date of the deceased's death. Miss Cressy and her daughter Chenae Eliza Joan Wilson bring their application as 0 dependants pursuant to that Act. Accordingly, it might be thought that it is in their interests that the declaration be not made. Mr Clutterbuck informed me that Miss Cressy wholeheartedly supports this application. The quantum of the estate held by the Public Trustee at the present time is some $42,991.07 after the realisation of assets and the payment of liabilities. There is a further $25,000 which will be paid to the Public Trustee on 0 behalf of the infant Daniel Trevor Cressy if the declaration as Q to paternity is made. The applicant infant has brought this application by his next friend who is his maternal grandfather. It is the interests of Chenae that I must be concerned to see are appropriately protected. Section 10 (4) of the Status of Children Act provides: " ( 4) The Court or Judge shall not make or revoke a declaration under this section unless it or he issatisfied that, so far as is reasonably practicable, all persons whose interests are or may be affected by the declaration or revocation are represented before or have been given the opportunity of making representations to the Court or Judge upon the subjectmatter of the proceedings." The parties are legally aided and it is a modest estate. 0 -- 7 of 9 -- 7 I note that Thomas J. made reference to such a problem in Re Pellitteri, supra, at p. 159, referring to the decision of McPherson J. (as his Honour then was) in Re An Infant [1983] 2 Qd. R. 722 where his Honour was of the view that if the separate interest of a child might be affected by the order sought the Court was inhibited from making the order unless that interest was represented. Having considered the material which has been placed before Q the Court on behalf of the application for declaration of paternity and considering that all the applications are publicly 0 funded I cannot see that any interest which Chenae might have in seeking to resist the declaration would be served by separate representation. The evidence is all one way and it is probably the only evidence which will ever be available on the subject. There are other considerations, namely that the children have the same biological mother who supports the application for (~, declaration and that the three of them constitute a family. The \.____) public interest requires that the matter be dealt with in a sensible fashion, and I am satisfied that Chenae's interests have \ \._) not been neglected in this application. As I indicated at the hearing the declaration is made and is order as per draft. Before concluding these reasons I should also mention that the large number of originating summonses which have been filed namely 0. S. No. 452 of 1993, application by Chenae for provision out of the estate of the deceased; O.S. No. 451 of 1993, application of Leigh Allison Cressy for provis'ion out of the estate; O.S. No. 80 of 1983, application for declaration of paternity; O.S. No. 510 of 1993, application to consolidate all -- 8 of 9 -- 8 the originating summonses and for directions in relation to the Succession Act application, are a matter of great concern when the public purse is bearing the cost. It was necessary only to file one originating summons in relation to all applications under the Succession Act and one summons for declaration of paternity. The orders of the Court are, as indicated on 2 August 1993: 1. In o.s. No. 80 of 1993 I declare that the relationship of father and child exists between Daniel Trevor Cressy (an O infant) born 30 May 1992 and Trevor Harold Wilson (deceased) . 0 2. In O.S. No. 451 of 1993, No. 452 of 1993, No. 510 of 1993 that the summonses for provision out of the estate of Trevor Harold Wilson be consolidated and directions be those in No. 51 0 of 19 9 3 and that those summonses be remitted to the District Court at Brisbane. 0 0 -- 9 of 9 --