AW v CW [2002] NSWSC 301

AW v CW [2002] NSWSC 301

The court lacks jurisdiction to order parentage testing on genetic material from a deceased person under s.26 of the Status of Children Act 1996, as the Act presumes the subject is living, and procedural requirements for testing cannot be satisfied post-mortem; in addition, it is inappropriate to order testing of an adult child without notice or an order dispensing with notice.

Parties
Plaintiff: AW; First Defendant: CW; Second Defendant: EC; Third Defendant: New South Wales Coroner
Jurisdiction
Australia
Judgment Date
17 April 2002
Procedural Posture
Application for Declaration of Parentage and Parentage Testing Order / Judgment on Application for Parentage Testing Orders
Outcome
Application for parentage testing orders refused; orders as to parties and costs made by consent.
Legal Topics
Parentage Testing, Declaration of Parentage, Interpretation of Status of Children Act 1996, Testing on Deceased Persons, Notice Requirements in Parentage Proceedings
Family Law Equity Parentage Testing Declaration of Parentage Interpretation of Status of Children Act 1996 Testing on Deceased Persons Notice Requirements in Parentage Proceedings

Case Brief

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Parties

AW

Plaintiff

CW

First Defendant

EC

Second Defendant

New South Wales Coroner

Third Defendant

Procedural Posture

Application for Declaration of Parentage and Parentage Testing Order / Judgment on Application for Parentage Testing Orders

Legal Issues

  1. 1 Whether the court has power to order parentage testing on genetic material taken from a deceased person under s.26 of the Status of Children Act 1996
  2. 2 Whether an order for parentage testing may be made in respect of a child aged 25 without notice to that child

Ratio Decidendi

The court lacks jurisdiction to order parentage testing on genetic material from a deceased person under s.26 of the Status of Children Act 1996, as the Act presumes the subject is living, and procedural requirements for testing cannot be satisfied post-mortem; in addition, it is inappropriate to order testing of an adult child without notice or an order dispensing with notice.

Court Disposition

Application for parentage testing orders refused; orders as to parties and costs made by consent.

Orders

  • Second and third defendants cease to be parties.
  • Executors named in the deceased's will added as defendants by consent (without acknowledgment of power over biological samples).