Reviewing a statutory power of the Family Court to make a recommendation to undergo a paternity test by Eugene Duhovnikoff BA/LLB

The legal position states that a recommendation is not appealable independently of an appeal against a declaration or order of paternity. This position can be illustrated by the recent High Court’s decision in Hill v Fruean.[1]

Factual Background

Ms. Fruean  brought the proceedings in the Family Court seeking a declaration under section 10 of the Status of Children Act 1969 (the SCA) that Mr. Hill is the father of her adult son. The Family Court has made such a recommendation and Mr. Hill has appealed to the High Court to review such a recommendation. Ms. Fruean has challenged this Court’s jurisdiction to hear an appeal from such a recommendation. Ellis J held that[2]:

“Turning now to address more directly the question at hand, I begin by recording my agreement with Mallon J that the making of a recommendation under s 54 is far from being merely a case management step or some other incidental interlocutory decision. The statutory coupling of the recommendatory power with the power to draw determinative inferences from a refusal to comply with a recommendation appear to me to come as close as Parliament can come to authorising the Court to compel a parentage test, without crossing the line that is now drawn by s 11 of the New Zealand Bill of Rights Act 1986.”

Despite drawing on the earlier case law which indicated that in some situations recommendations are clearly reviewable Ellis J held when it comes to a recommendation to undergo paternity test the Family Court’s recommendation is not reviewable. There were several reasons on which Ellis J supporting that position:

  1. The ordinary meaning of the word “order” does not encompass a recommendation, despite the contrary opinions;
  2. The issue of paternity is not determined unless and until an order is made under the relevant statutory background;
  3. A recommendation could not be “enforced” under the current statutory background;
  4. Permitting appeals prior to the final resolution did not sit well with the policy of legislation; The grounds for any appeal against a paternity order made against Mr. Hill would be likely significantly to overlap with the grounds advanced in support of the appeal he presently wishes to bring. But in the event that an appeal brought by him was heard and did not succeed, there could have remained an undesirable possibility of Mr. Hill bringing a subsequent appeal. In other words, he could appeal against both the recommendation and, later, against the adverse inferences and finding of paternity.
  5. Under the existing legislative framework applications for declarations of paternity can be made either to the Family Court or to the High Court. Given that there are only limited appeal rights from a declaration of paternity made by the High Court and the consistency demands that the same limited, appeal rights should apply in relation to a section 10 application which is made to the Family Court.

Therefore the correct approach for Mr. Hill was held to either take a parentage test or decline to take the parentage test, await the Family Court’s paternity order and then challenge the recommendation and the order by way of appeal. Given some comments from cases like Smith v Smith[3] or Zhao v New Zealand Law Society[4] where it was stated that in certain situations a recommendation may qualify as an appealable “order” this case clarifies the law on paternity test recommendations in New Zealand.


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[1] [2014] NZHC 682.

[2] ibid para 29.

[3] [2013] NZHC 2536.

[4] [2012] NZHC 2169.






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