This case concerns the details of an older sibling should be recorded on a child's birth certificate and registration, in circumstances when the child and the older sibling were both born to the same mother and conceived via in vitro fertilisation (IVF) from eggs of their mother and sperm from the same donor.
The applicant in this case is the mother of two children. She describes herself as a single parent by choice. She wishes to have her children "recognised as the siblings they are and that the appropriate records are amended to reflect this, including the birth certificate." For purposes of the present decision, and to protect the privacy of the mother and children, the applicant will be referred to as "FTH", the "Applicant" or the "Mother". The older child, born in June 2021, will be referred to as the "Daughter". The younger child, born in November 2022, whose birth certificate and registration is the subject of these proceedings, will be referred to as the "Son". Together they may be referred to as the "Children". The clinic where the Applicant had IVF treatment for both Children is referred to as the "Clinic".
The Respondent is the New South Wales Registrar of Births, Deaths and Marriages and is referred to in this decision as the "Respondent" or the "Registrar". The Registrar's functions are set out in the Births, Deaths and Marriages Registration Act 1995 (NSW) ("BDMR Act"). The Registrar is responsible for establishing and maintaining the integrity of registers ("Register") that record and preserve information about births, deaths and marriages in New South Wales for perpetuity. The Registrar's functions include administering the registration system established by the BDMR Act and ensuring that the system operates efficiently, effectively, economically and in a way best calculated to achieve the objects of the BDMR Act.
When the Mother sought to register the birth of her Son online in November 2022, it was not clear how to include her older Daughter's details accurately, despite her efforts to obtain clarification from the Respondent. There was also no accurate option to select for why a second parent was not being registered. After receiving the Son's birth certificate and realising that it contained no reference to the Daughter at all, the Mother was advised by the Respondent to complete a form to "Correct an Entry". She lodged an application form to "Correct an Entry" on 28 November 2022 so that her Daughter's details could be included as a full sibling in the Son's Birth Certificate and registration. The Registrar received the application on 30 November 2022. On 8 December 2022, the Registrar declined the Mother's request. The Registrar advised that the amendment could not be processed because there was no father registered on either the Son or the Daughter's birth certificate and as such there was no "relationship" recognised and therefore no "previous children of the relationship". This decision of 8 December 2022 is referred to as the "Original Decision".
The Mother requested internal review of the Original Decision. On 24 January 2023, the Registrar affirmed the Original Decision not to amend the birth certificate, but offered to include a note (or "endorsement") about the older sibling in the Son's birth registration, but not in his birth certificate. This decision of 24 January 2023 is referred to as the "Internal Review Decision". The Applicant was advised that if she was not happy with the Internal Review Decision, then she could apply to this tribunal, the New South Wales Civil and Administrative Tribunal ("Tribunal").
On 20 February 2023, the Applicant applied to the Tribunal for administrative review of the Internal Review Decision.
Throughout the course of these proceedings, the Registrar has made different offers of how to record the Daughter's details on the Son's birth registration and/or birth certificate, the most recent offer being to include the Daughter's details as a "previous child of the same mother" in both the birth certificate and the birth registration. The fact that the Respondent has changed its position multiple times indicates that the Registrar has no clear practice for dealing with siblings of single parents conceived via IVF using the same donor sperm. However, for the reasons that follow, the Tribunal finds that the BDMR Act and the Births, Deaths and Marriages Regulation 2017 (NSW) ("BDMR Regulations") do make it clear that details of a sibling must appear in both a birth registration entry in the Register and in a birth certificate, regardless of the circumstances of conception. I find that the correct and preferable decision therefore is to set aside the Original Decision and the Internal Review Decision, and for the Registrar to record "the full name, sex and date of birth" of the Daughter in the Son's birth registration and birth certificate. In the birth certificate, the Daughter's details shall appear in section 5, under the heading "PREVIOUS CHILDREN OF PARENT(S)". An equivalent insertion shall be made in the Register. The Tribunal considers this decision to be consistent with the language in clause 5(1)(f) of the BDMR Regulations, and in line with sections 3, 6, 14, 17, 22A, 43, 45(1)(b) and 49 of the BDMR Act.
[2]
Background
The factual background in this case is not in dispute and is set out below.
[3]
The Birth and Registration of the Applicant's Daughter in June 2021
The Applicant gave birth to her Daughter in New South Wales in June 2021. The Daughter was conceived via IVF at a Clinic in Sydney using donated sperm and the Applicant's egg. On the Daughter's birth certificate, the Applicant is recorded as the mother and informant of the birth. The "FATHER" section is left blank (consistent with section 14 of the Status of Children Act 1996 (NSW) ("SoC Act"), which provides that a sperm donor in the circumstances of the present case is not legally to be treated as the father).
When registering the Daughter's birth online, the Applicant noticed that there were limited options for "reasons for not registering second parent" which included only (i) "Location of second parent is unknown"; (ii) "Second parent is unknown"; (iii) "Second parent is unwilling to sign". The Applicant stated that she selected the second option, as the "least unsuitable option" on the basis that "the donor's full identity is not available to me, even though he is identifiable". The Applicant submitted feedback to the Registrar explaining that the available selection of answers did not suit her circumstances. She remains uncomfortable with the choice and would prefer the Registrar to have made a more suitable and accurate option available. The Applicant does acknowledge that it is not within this Tribunal's power to change that situation.
[4]
The Birth and Registration of the Applicant's Son in November 2022
The Applicant gave birth to her second child, the Son, in New South Wales in November 2022. The Son was also conceived via IVF at the same Clinic using donor sperm from the same donor gamete as was used for the Daughter.
It is not in dispute that the Children are therefore full biological siblings. The Clinic has certified this, and the NSW Ministry of Health has also verified that the two Children are listed as having the same donor, in the Central Register under the Assisted Reproductive Technology Act 2007 (NSW).
The Son's birth certificate contains, at section 1 under the heading "CHILD", the Son's name, sex, date and place of birth. In section 2 under the heading "MOTHER", the Applicant's name, occupation, age and place of birth are recorded. Section 3, under the heading "PARENT", is blank. Section 4, under the heading "MARRIAGE OF PARENTS", is also blank. Section 5, headed "PREVIOUS CHILDREN OF RELATIONSHIP" states "not any". Section 6, under the heading "INFORMANT(S)", lists the Applicant's name, address, and the word "Mother". Section 7, headed "REGISTERING AUTHORITY", contains the date of registration and name of the Registrar. Section 8, entitled "ENDORSEMENTS", states "Not any". Section 9 contains administrative "FILE NOTES".
The Applicant explained that when completing the online form to register the birth, she left the father/second parent section blank. Having done so, the only option available within the online birth registration system for listing the Daughter as a sibling was to list "other children who are not from this relationship". Before completing the online registration, the Applicant telephoned the Respondent on 24 November 2022 to clarify the meaning of "children not from this relationship". An officer of the Respondent told the Applicant that it related to half-siblings. Because the Daughter is not a half-sibling, the Applicant did not list her, and "assumed that [the Daughter] would automatically be listed as linked from her registration." However, when the Applicant saw the birth certificate at the end of the process, she noticed that section 5 of the certificate, titled "Previous children of relationship" listed "not any". There was therefore no record of the Daughter on the Son's birth certificate. The Applicant called and emailed the Births, Deaths and Marriages Registry and asked to have her Daughter listed under Section 5. The next day, via email, the Respondent advised the Applicant to complete a "Correct an Entry" form.
[5]
The Application to Correct an Entry and the Original Decision of 8 December 2022
On 28 November 2022, the Applicant completed an application to "Correct an Entry" form, which was received by the Respondent on 30 November 2022. In that form, under the heading "Current information in the Register", the Applicant stated:
No siblings are currently listed - I was informed by the customer service centre to only enter half-siblings. Therefore I left the section that asked about 'siblings from other relationships' blank as [the Son] does not have half siblings.
[The Son] does have a full sibling sister [Daughter's name] whom I would like included/reflected in the birth certificate and registration as a full sibling.
Under the heading "New information / amendment", the Applicant stated "Inclusion of full sibling sister to [Son's] registration and birth certificate" and provided the Daughter's full name.
On 8 December 2022, a delegate of the Registrar advised the Applicant via email that the Birth Certificate would not be amended (the "Original Decision"). The email stated:
There is no second parent registered on [the Son's] birth certificate, therefore there are no children of the same "relationship". Your previous child will not be listed as "previous child of relationship".
The Registrar advised that if the Applicant was unhappy with the outcome, she could seek internal review.
[6]
Internal Review Decision and the Applicant's Requests for Clarification
The Applicant immediately requested an internal review of the Original Decision on the same date, 8 December 2022, and expressed her disappointment and dissatisfaction with the outcome. She explained she had requested an amendment because she had not been given an opportunity to list her Daughter in the initial registration process. She believed this was caused by "unclear and inadequate questioning in the registration process, whereby the questions only asked me to list 'children of other relationships' and there was no question/opportunity to specify full siblings." She explained that her telephone inquiry had also led her to believe there was only space to provide half-sibling information. She was not satisfied with the decision not to amend the registration and certificate and believed it to be "unjust, inequitable and even discriminatory". She maintained that:
My children ARE of the same relationship. My children were both conceived using the same donor sperm and my eggs. I accept that this may not be a 'traditional relationship' to some, however this is nonetheless a relationship with the same and equal 'contributions' and my children are biologically full siblings. I should be recognised as a single parent relationship, just like other relationships, and my children should be recognised as being of this same relationship. My children should not be viewed as being of a different relationship simply because they were conceived using non-traditional methods.
The Applicant also reinforced the same feedback she gave when her Daughter's birth was registered, namely that the options for explaining why a second parent is not listed in the registration process are inadequate to reflect the situation of donor-conceived children and "should be reviewed if the registry wishes to demonstrate equity".
On 24 January 2023 the acting Registrar sent a letter to the Applicant informing her that, after internal review, it was decided to "affirm the original decision not to amend the birth certificate" (the "Internal Review Decision"). This time, the acting Registrar gave as an explanation that "based on the provisions of Section 22A" of the BDMR Act, he was "unable to place an endorsement to note [the Daughter] as an older sibling on [the Son's] birth certificate".
However, the acting Registrar did "offer to amend" the Son's birth registration to include the Daughter as an older sibling. The acting Registrar stated that this information would be recorded in the Register, but would not appear on the Son's birth certificate. The Applicant was advised that if she was not happy with the decision, she could apply to the Tribunal for administrative review.
The Applicant replied to the Registrar on 29 January 2023 and set out some requests for clarification, noting apparent inconsistencies between the Original Decision and the Internal Review Decision. She attached a 5-page document with more detailed requests for clarification. This included:
1. A clarification that her request had been clearly understood to have the Daughter listed as a previous child of the same relationship in section 5 of the birth certificate, and not to have an endorsement in section 8.
2. A request to understand the reasons why the Children should not be treated as being of the same relationship, namely that of a "single mother using the same donated sperm when conceiving both children." She noted the irrelevance of Section 22A of the BDMR Act and confirmed she did not want to have any declaration about the Children's conception on the birth certificate. She also objected to treating the Daughter as being of an "other relationship" to that of her son. The Applicant queried that if there is a deficiency in the system, whether the Registrar has powers to intervene to 'fill the gap' using discretion and common sense.
3. The Applicant pointed to ambiguity in the heading of Section 5 of the birth certificate (i.e., "PREVIOUS CHILD OF RELATIONSHIP"). She noted that it does not specify, same or different relationship. Either way, she suggested her Daughter should be listed there. She also referenced a review conducted by the Registry in 2014 which recommended removal of the field in Section 5 from short-form birth certificates. She also submitted that Section 5 in its current form does not reflect the requirements in the BDMR Regulations, which only requires the "full name, sex and date of birth of any other children (including any deceased children) of either of the parents of the child" be recorded, i.e., irrespective of whether they are full or half siblings. She asked a series of questions to the Registrar to explain the Section 5 heading and its application to her and whether or not it could be removed or changed.
4. The Applicant sought to understand the implications of the offer to amend the Register before accepting that offer, including who can view the Register and how it could be updated, and why the Registry is able to amend the register but not the birth certificate.
5. The Applicant also sought to understand the powers of the Registrar and expressed her opinion that the current birth registration process was not developed with 'single parent by choice' situations in mind, even though progress had been made for adoptive and surrogacy circumstances. She suggested that where the legislation was silent for people in her position, the Registrar could exercise discretion to act in accordance with section 6(c) of the Act and be flexible in the decision-making.
6. The Applicant sought further information about the internal review.
The Applicant also set out her views on law reform in the area of birth registration and her concern that the birth registration process does not reflect her Children as "children of relationship" which would "draw unnecessary attention, raise unnecessary about their parentage, create privacy issues and cause harm or discrimination".
The Respondent sent the Applicant an email on 2 February 2023 advising that it was "unable to add anything further to the internal review outcome dated 24 January 2023" and reminded her of the right to seek review at the Tribunal.
[7]
The Applicant's Application to this Tribunal for Administrative Review
On 20 February 2023, the Applicant applied to this Tribunal for administrative review of the Internal Review Decision on the following grounds:
I was not given a substantial explanation of the reasons supporting the decision so I maintain the decision to record 'not any' siblings of relationship is incorrect as it does not accurately reflect the children's parental lineage which is important for their identity and wellbeing. It also introduces potential discrimination and doubt regarding their parental lineage. It was not explained why a single parent relationship with no second legal parent cannot be recognised as a relationship. Flexibility and discretion were not applied to properly consider atypical circumstances to meet the objects of the BDM Registration Act and accurately record siblings.
The matter was listed for directions on 21 March 2023, on which date the Tribunal ordered that the publication or broadcast of the name of the applicant is prohibited, pursuant to section 64(1)(a) of the Civil Administrative Tribunal Act 2013 (NSW) ("CAT Act").
The Respondent filed materials pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") on 19 April 2023 (received by the Applicant on 26 April 2023).
The Applicant filed a first statement dated 24 April 2023 (received by the Tribunal on 1 May 2023), and a second statement on 27 April 2023 (received by the Tribunal on 27 April 2023).
[8]
The Respondent's Offer to Endorse Birth Certificate in Section 8
In the Respondent's submissions to this Tribunal of 7 June 2023 (summarised further below), the Respondent recalled that it had agreed on internal review to amend the Register to reflect the fact that both the Son and the Daughter are children of the same mother. With respect to the birth certificate, the Respondent recalled that in the Internal Review Decision it had refused to endorse the birth certificate. Upon further reflection, the Respondent accepted that there is a basis to include an endorsement on the birth certificate, without coming into conflict with section 22A(3) of the BDMR Act. Accordingly, the Respondent stated that it is "able to provide an endorsement on the birth certificate that would note that [the Daughter] is a child of the same mother". Such endorsement would appear in section 8 of the birth certificate.
For reasons summarised below, in her reply statement of 12 June 2023 (received by the Tribunal on 15 June 2023), the Applicant did not accept this new offer or the reasoning behind it. She rejected it particularly because it implied the Children were half-siblings when, in reality, they have the same parentage.
[9]
The Respondent's New Offer to Include Daughter in Section 5 of Birth Certificate
By the time of the hearing, which was held on 23 June 2023, the Respondent's representative, Ms Georgia Heffernan of NSW Customer Service, orally conveyed that she had instructions to present a new offer to the Applicant. This offer was to include the Daughter's details in the birth certificate at Section 5 (instead of an endorsement at Section 8), but to change the heading of Section 5 from "Previous children of relationship" to "Previous children of the mother". The same change would be made to the registration record. The Respondent stated this change was permissible under the BDMR Act and in line with the discretion that the Registrar has under the Act, and it would be within the Tribunal's power to substitute a decision in that form.
The Applicant rejected this new offer, which although "a step closer" to reflecting the position of her family, still made her uncomfortable insofar as it could draw unnecessary attention to something being unconventional about the relationship between the two full biological siblings and undermine what she was trying to achieve in bringing up her Children. She confirmed that she was not asking for the donor to be recognised as a parent.
[10]
Material before the Tribunal
In considering this matter I have had regard to the following materials.
The materials filed by the Applicant are comprised of:
1. Application to Tribunal dated 20 February 2023, attaching:
1. a timeline of events prepared by the Applicant;
2. a 24 November 2022 email from the Applicant to the Registry in which she stated her confusion over the registration process and her wish that the official registry documents reflect her daughter as a full sibling to her son;
3. a follow-up email dated 8 December 2022 (i) expressing the Applicant's disappointment and dissatisfaction with the outcome of the assessment, (ii) giving feedback on the available options in the registration process, and (iii) requesting internal review;
4. the 24 January 2023 Internal Review Decision of the Respondent to affirm the original decision not to amend the birth certificate, based on provisions in section 22A of the BDMR Act but offering to amend the birth registration;
5. the Applicant's email of 29 January 2023 seeking clarification on the reasons for refusing to include the older sister on the birth certificate, and attaching (i) a five-page list of issues on which she was seeking clarification, and (ii) a certificate from IVF clinic confirming that the son and daughter were both conceived using the same sperm donor, and that the Applicant's relationship status was declared as "single" at the time; and
6. Email from the Respondent dated 2 February 2023 stating that it was unable to add anything further.
1. The Applicant's application for a confidentiality order pursuant to section 64 of the CAT Act and her request to join hearings via video.
2. The Applicant's Statement filed on 1 May 2023, attaching:
1. Email from the Applicant to the Respondent dated 19 April 2023 seeking copies of the section 58 documents;
2. Copy of the Daughter's Birth Certificate from June 2021;
3. Copy of the Son's Birth Certificate from November 2022;
4. Certificate from the IVF clinic confirming that both Children were conceived using same sperm donor, and that the Applicant's relationship status was declared as "single" at the time;
5. Letter from NSW Ministry of Health listing offspring of the donor (including the Son and the Daughter) in the Central Register;
6. The Applicant's 30 November 2023 application to Correct an Entry.
1. The Applicant's Second Statement of 27 April 2023, attaching, as evidence of single parent recognition in society:
1. CentreLink Family Listing as Single Parent
2. Health Fund Policy for Single Parent Family
3. Screenshot of available answers when explaining why a second parent is not registered in a birth registration.
1. The Applicant's Submission in Reply to Respondent dated 12 June 2023, attaching additional copy of the earlier filed five-page list of issues.
I have also had regard to the following materials from the Respondent:
1. The Respondent's documents filed pursuant to section 58 of the ADR Act, comprising:
1. A copy of the Applicant's Application of 20 February 2023;
2. Copies of orders of this Tribunal dated 21 February 2023 (listing the matter for directions), 5 April 2023 (including the section 64 order and dates for filing of submissions and evidence) and 21 March 2023 (repeating the section 64 order and setting new dates for exchanges of submissions and evidence and hearing);
3. The Respondent's Internal Review file, including timeline, registration history, birth certificates of the Son and the Daughter, the birth certificate and driver's licence of the Applicant, correspondence between the Applicant and the Respondent, the Applicant's application to Correct an Entry.
1. The Respondent's Submissions, filed on 8 June 2023, in which the Respondent submitted that it was unable to make the requested amendment to the birth certificate but agreed that "an endorsement can be placed on the birth certificate to the effect that the Applicant's daughter is a child of the same mother (as her son)."
A hearing was held on 23 June 2023, at which the Applicant made submissions and presented evidence via video-conference and was asked questions by the Tribunal and by Ms Heffernan, of Customer Service NSW, representing the Respondent. As noted above, during the course of the hearing, the Respondent made a further offer to the Applicant, which was to include the Daughter's details in section 5 of the birth certificate under the heading "Previous children of the mother" instead of the heading "Previous children of relationship".
[11]
Non-Publication Order
At the directions hearing in this matter on 21 March 2023, the Tribunal made an order under section 64(1)(a) of the CAT Act prohibiting the publication or broadcast of the name of the Applicant, in light of the privacy concerns about the Applicant's medical procedures and the method of conception of the two Children. A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
At the hearing on 23 June 2023, the Parties agreed to extend the order to include the names of the Children, and the Tribunal has so ordered to confirm that the order under section 64(1)(a) of the CAT Act continues with respect to both the Applicant and the Children. I am satisfied that it is necessary to prohibit the publication or broadcast of the name of the Applicant and any child referred to in these proceedings, in order to protect the identity of the children and the privacy of the Applicant and her Children concerning the procedures surrounding their conception. I have thus refrained from referring to the names of the Applicant, the two Children, and also the Clinic. I have also referred to the Children's birth months rather than birth dates.
[12]
Relevant Legislation
The legislation most relevant to this proceeding is the BDMR Act. The BDMR Regulations made pursuant to the BDMR Act are also relevant. Other legislation referenced in this decision includes the SoC Act (containing the presumption that sperm donors in the circumstances of the present case are not legally considered fathers), the CAT Act and the ADR Act (which both establish the Tribunal's jurisdiction and procedures).
The objects of the BDMR Act, as stated in section 3, include the registration of births, deaths and marriages in New South Wales, the "keeping of registers for recording and preserving information about births, adoptions, deaths, marriages, registered relationships, changes of name and changes of sex in perpetuity" and the issuance of certified information from the registers.
Section 5 of the BDMR Act establishes the position of Registrar, whose general functions are set out in section 6:
(a) to establish and maintain the registers [collectively referred to as the "Register"] necessary for the purposes of this Act and the Relationships Register Act 2010, and
(a1) to maintain the integrity of the Register and to seek to prevent identity fraud associated with the Register and the information extracted from the Register, and
(b) to administer the registration system established by this Act and ensure that the system operates efficiently, effectively, and economically, and
(c) to ensure that this Act is administered in the way best calculated to achieve its objects.
Part 3 of the BDMR Act deals with notification and registration of births. Section 14 sets out "how to have the birth of a child registered" as follows:
A person has the birth of a child registered under this Act by giving notice of the birth to the Registrar (the birth registration statement) in a form and manner required by the Registrar, specifying the particulars required by the regulations.
Section 15 provides that the parents of a child are jointly responsible for having the child's birth registered but the Registrar "may accept a birth registration statement from one of the parents if satisfied that it is not practicable to obtain the signatures of both parents on the birth registration statement."
Section 17 deals with registration of a birth in the Register:
(1) The Registrar registers a birth by making an entry about the birth in the Register including the particulars required by the regulations.
(2) However, if the particulars available to the Registrar are incomplete the Registrar may register a birth on the basis of incomplete particulars.
The "regulations" that are referenced in sections 14 and 17 of the BDMR Act are the BDMR Regulations. Clause 5 of the BDMR Regulations outlines, with respect to Registration of a birth:
(1) For the purposes of sections 14 and 17 (1) of the Act, the following particulars are required -
(a) the sex and date, time and place of birth of the child,
(b) the weight of the child at birth,
(c) whether or not the birth was a multiple birth,
(d) the full name (including, if applicable, the original surname), date of birth (or age), place of birth, occupation and usual place of residence (at the time of delivery) of each parent of the child,
(e) the date and place of marriage of the parents of the child (if applicable),
(f) the full name, sex and date of birth of any other children (including any deceased children) of either of the parents of the child,
(g) whether or not either of the parents of the child is of Aboriginal or Torres Strait Islander origin,
(h) if either parent of the child was born outside Australia, the period of residence in Australia of that parent.
Note. A birth registration statement given to the Registrar under section 14 of the Act must also state the name of the child (see section 21 of the Act).
(2) For avoidance of doubt, the Registrar is authorised to include in the Register the registrable information about the identity of the child's parents that is required to be provided under this clause.
…
Section 18 of the BDMR Act concerns registration of parentage details:
The Registrar must not include registrable information about the identity of a child's parent in the Register unless -
(a) both parents of the child make a joint application for the inclusion of the information, or
(b) one parent of the child makes an application for the inclusion of the information and the other parent cannot join in the application because he or she is dead or cannot be found, or for some other reason, or
(c) one parent of the child makes an application for the inclusion of the information and the Registrar is satisfied that the other parent does not dispute the correctness of that information, or
(d) a court orders the inclusion of the information in the Register, or
(e) a court makes a finding that a particular person is a parent of the child, or
(f) the Registrar is entitled under any law (including a law of another State or the Commonwealth) to make a presumption as to the identity of the child's parent, or
(g) the Regulations authorise the Registrar to include the information.
Section 20 of the BDMR Act provides for applications for the addition of registrable information in a person's birth certificate to be made in writing and accompanied by required information.
Section 21 of the BDMR Act requires that the birth registration statement states the name of the child.
Section 22A of the BDMR Act deals with "Donor conception information". As noted by the Respondent, the provision was inserted in the 2016 amendments to the BDMR Act following release by the NSW Committee on Law and Safety Report 1/55 in October 2012, which contained recommendations about the inclusion of donor details on the Register of births. Section 22A provides:
(1) A birth registration statement for a child may include a declaration that the child was conceived using a donated gamete and in such a case the Registrar must note in the Register that the statement included that declaration.
(2) The Registrar must, when issuing a birth certificate to a person who is 18 years of age or more and to whom a declaration under subsection (1) relates, attach an addendum to the birth certificate noting that declaration and stating that further information may be available from the central register established under the Assisted Reproductive Technology Act 2007.
(3) A birth certificate for a person must not include any information that indicates that the person may be a person who was conceived using a donated gamete.
Part 8 of the BDMR Act concerns the Register. Section 43 provides that the "Registrar must maintain a register or registers of registrable events"; and further that the Register "must contain the particulars of each registrable event required under this Act, or another law, to be included in the Register". Additionally, the Register, may, under section 43(2)(b) "contain such further information as the Registrar considers appropriate for inclusion." (see Attorney General for New South Wales v FJG [2023] NSWCA 34 at [39] ("AG v FJG")).
Section 44 allows the Registrar to conduct an inquiry to find out whether a registrable event has happened, the particulars of a registrable event or "whether particulars of a specific registrable event have been correctly recorded in the Register."
Section 45 of the BDMR Act provides for the circumstances in which the Respondent may correct the Register:
(1) The Registrar may correct the Register -
(a) to reflect a finding made on inquiry under Division 2, or
(b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.
(2) The Registrar must, if required by a court, correct the Register.
(3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry.
Section 49 of BDMR Act provides that after "completing a search of the Register, the Registrar may issue a certificate" certifying particulars contained in an entry. According to the definitions in section 4 of the BDMR Act a "birth certificate" is a certificate issued under section 49 as to the particulars contained in an entry in the Register in relation to a person's birth".
Part 9 of the BDMR Act provides for the general power of review by this Tribunal if a person is dissatisfied with decisions of the Registrar. Section 56(1) provides:
A person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
Section 9(1) of the ADR Act confers jurisdiction on this Tribunal for administrative review over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision made by the administrator. In the present case, the enabling legislation is section 56 of the BDMR Act, the administrator is the Registrar and the decision under review is the Registrar's Internal Review Decision of 24 January 2023 affirming the Original Decision of 8 December 2022 not to amend the Son's birth certificate and registration to include the Daughter's details.
Other relevant provisions of the ADR Act include section 58, which sets out the duty of an administrator to lodge material documents with the Tribunal.
Section 63(1) of the ADR Act provides that in determining an application for an administrative review, the Tribunal is to decide what the "correct and preferable decision is having regard to the material then before it", including factual material and any applicable law. For this purpose, section 63(2) provides that the Tribunal may "exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision". Under section 63(3), in determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
Section 66 of the ADR Act provides that if any decision of the Tribunal varies, or is made in substitution for an administrator's decision, "the decision of the Tribunal is taken to be … the decision of the administrator"… and "to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise."
The other legislation relevant to the present proceedings is the CAT Act. Sections 28 and 30 provide that, as set out in Section 9 of the ADR Act, the Tribunal has administrative review jurisdiction over a decision of an administrator. Section 30(2) states:
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction -
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the [ADR Act] or enabling legislation in connection with the conduct or resolution of such proceedings.
Section 36 of the CAT Act provides that the guiding principle for the CAT Act is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
Under section 38(2) of the CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal has to consider all of the evidence in the exercise of its discretion. The standard of proof that applies is the civil standard, that is, the balance of probabilities. These are not adversarial proceedings and accordingly there is no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2013] NSWCATAP 10 at [28] to [34]).
The Tribunal has already made reference to section 64 of the CAT Act in the context of the non-publication order extended to the Applicant and the Children.
Finally, the other piece of legislation that has been cited in these proceedings, namely the Status of Children Act 1996 (NSW), section 14 of which provides:
14 Presumptions of parentage arising out of use of fertilisation procedures
(1) When a woman who is married to a man has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure, and
(b) the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.
(1A) When a woman who is married to or who is the de facto partner of another woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure, and
(b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.
(2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.
(3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy. This subsection does not affect the presumption arising under subsection (1A) (a).
(4) Any presumption arising under subsections (1)-(3) is irrebuttable.
…
Of the presumptions above, section 14(2) is relevant to the Applicant in the present case. Because of that presumption, the sperm donor who provided the gamete to the Clinic that was used to conceive the Son and the Daughter is not, by law, considered to be the father of the Children, and there was thus no need to include details for a father in the Register or in the birth certificates.
[13]
Issues to be Determined and Consideration by Tribunal
The Son's birth certificate and the entry of his birth in the Register do not currently contain any details about his older sister, the Daughter.
The first issue to be determined is therefore whether the entry for the son's birth in the Register and his birth certificate should be corrected to include the details of the Daughter. If the answer is yes, the second issue to be determined is in what section and under what heading should the Daughter's details be included.
After answering those questions, the Tribunal will then be able to arrive at the correct and preferable decision to take with respect to the Applicant's application to Correct an Entry that was received by the Registry on 30 November 2023 and that was ultimately the subject of the administratively reviewable decision of the Registrar on 23 January 2023.
As I explained to the Parties at the hearing, it is not the role of this Tribunal to determine broader questions, such as the Registry's design of the on-line application forms for birth registration or the most appropriate practices for the Registry to adopt with respect to registration of births in families comprised of single parents by choice and their children conceived via IVF with donor sperm. Both sides acknowledged at the hearing that there is some degree of confusion in the current system with respect to such families, but they appreciated that the Tribunal's function in the present dispute is not to solve systemic deficiencies. Rather, the Tribunal has focused on arriving at the correct and preferable decision of the administratively reviewable decision, based on the undisputed facts of this case and consistent with the existing legal framework.
[14]
Should the Daughter's details be included in the Son's birth certificate and registration?
[15]
Applicant's Position
The Applicant says that sibling information about her Daughter should be recorded in her Son's birth certificate and registration entry. She notes that it is undisputed the two children are fully biological siblings. She points out that under the BDMR Act the Registrar is obliged to record registrable information, which is defined to include "the full name, sex and date of birth of any other children (including any deceased children) of either of the parents of the child". She recalls that when she saw that her Daughter was not recorded as a sibling on her Son's birth certificate, she realised his certificate was incorrect. Having called the Registry and been advised to complete a "Correct an Entry" form to amend the birth certificate, she completed an application to do so. The decision she received on 8 December 2022 refusing to make the amendment was, in her view, incorrect as it did not take into proper consideration the requirements of the law and the Applicant's circumstances. She said "in particular, it failed to consider the reasons why a second parent was not listed, the fact that the donor was identifiable but simply not a legal parent, that the parentage for both children was not in dispute and that the children were full biological siblings, both born to me."
The Applicant maintains that the Internal Review Decision was also incorrect because it mistakenly referred to Section 22A of the BDMR Act as grounds to refuse amendment of the birth certificate. She points out that that Section 22A relates to a declaration that the child was conceived using a donated gamete, a point which is irrelevant to her case because it is not what she is seeking. She said "Instead, I am seeking that the children be recognised as the siblings they are and that the appropriate records are amended to reflect this, including the birth certificate."
[16]
Respondent's Position
The Respondent initially said that neither the Register nor the certificate should be corrected to include the Daughter's details. The justification provided with the Original Decision was that there was no information listed in section 2 of the birth certificate under "Parent" as the second parent, and "therefore there are no children of the same 'relationship' [and the] previous child will not be listed as previous child of relationship."
The Respondent re-considered this approach upon internal review. The acting Registrar offered in the Internal Review Decision to amend the birth registration of the Son to include the Daughter "as an older sibling as her information was not provided as part of [the Son's] birth registration form." However, the acting Registrar stated that "this information will be recorded in the Registration but will not appear on [the Son's] birth certificate".
By the time the Respondent filed submissions in the present proceedings on 8 June 2023, it had conceded that both the Register and the Birth Certificate should reflect the Daughter's details as an older sibling. The Respondent offered to do this by way of an endorsement, which would appear at section 8 of the Birth Certificate.
As noted at paragraphs 32 and 33 above, at the hearing, the Respondent offered to include the Daughter's details at Section 5 of the birth certificate.
[17]
Tribunal's Consideration
The Tribunal finds that the Daughter's details should be included both in the birth registration entry of the Son in the Register and in the Son's birth certificate.
The Registrar is obliged under Section 43 to maintain a register of "registrable events". "Registrable event" is defined in section 4 of the BDMR Act to mean a "birth, adoption or discharge of adoption, change of name, change of sex, death or marriage." The Son's birth is therefore a registrable event.
Subsection 43(2) provides that the Register (a) "must contain the particulars of each registrable event required under this Act, or another law, to be included in the Registrar" and (b) "may contain such further information as the Registrar considers appropriate for inclusion".
Section 17 requires the Registrar to make an entry of a birth in the Register "including the particulars required by the regulations." While the Registrar can register a birth on the basis of incomplete particulars (section 17(2)), section 45 provides for correction of the Register to "bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event."
The "particulars required by the regulations" for purposes of section 17, include clause 5(1)(f) of the BDMR Regulations:
The full name, sex and date of birth of any other children (including any deceased children) of either of the parents of the child.
There is no question that the Daughter is covered by clause 5(1)(f). The Parties agree that she is a daughter of the Applicant, and this is supported by the documentary record (including the Daughter's own birth certificate, the Clinic's certification and the Ministry of Health Central Register entry). It necessarily follows that the Daughter's "full name, sex and date of birth" should be included in the Register of the Son's birth and also in any birth certificate issued for the Son pursuant to section 49 of the BDMR Act.
The disposition of the first issue is therefore straightforward. The entry of the Son's birth in the Register, and the birth certificate of the Son, should both be corrected to include the Daughter's details.
Before dealing with the next issue, the Tribunal observes that the fact the birth certificate contained the words "not any" in the space where sibling details might normally appear, stemmed from the initial confusion that the Applicant experienced due to difficulties caused by the menu of options on the Respondent's website, particularly with respect to reasons for not including father details. The Tribunal acknowledges the frustration and discomfort of the Applicant in that regard. The Tribunal notes that the Respondent at the hearing also recognised that the current registration system is not completely up-to-date or straightforward for those in the Applicant's situation of families with a single parent by choice. While the Respondent might consider those circumstances in future in fulfilling its functions under section 6 of the BDMR Act, and in providing for the "form and manner" of a birth registration statement under section 14, those are not matters presently before this Tribunal. As discussed with the Parties at the hearing, it is not the function of the Tribunal to assess, improve or otherwise change the online application form and procedures for birth registrations. Rather, the Tribunal has to consider the administratively reviewable decision in question in the present proceedings, namely the Registrar's decision of 23 January 2023 affirming the original decision on the Applicant's application to Correct an Entry for her Son's birth. As noted in paragraphs 76 to 81 above, the correct and preferable decision in that regard, is that the Son's entry and certificate should be amended to include the details of the older sister, the Daughter.
The next issue is how precisely the Daughter's details should be recorded.
[18]
If yes, in what section and under what heading should the Daughter's details be included?
The second issue, which remains in dispute between the Parties, is how and where on the birth certificate and Register the Daughter's details should appear.
[19]
Applicant's Position
The Applicant seeks to have the Son's birth documents reflect the fact that the Son has an older sister and to do so in a way that is accurate and that does not draw unnecessary attention to their situation. In her view, an endorsement in section 8 of the birth certificate (as was offered in the Respondent's 8 June 2023 submissions) would draw unnecessary attention to something being unconventional about the relationship between the two siblings or raise unnecessary doubt about their parentage. The Respondent's latest offer, to include the Daughter's details in Section 5 under the heading "Previous children of mother", would according to the Applicant, be a "step closer" but she still did not think it had been "fully thought out".
The Applicant noted that birth certificates, in Section 5, currently have as a heading "Previous children of relationship". She observed that such a formulation does not actually appear in the BDMR Act or BDMR Regulations, is not defined, and not all children fall within the notion of a traditional "relationship". In her view, the concept of "relationship" is broad enough to encompass her own relationship with the children and their relationship with each other as full biological siblings with the same birth mother and no legal father. She stated that single parent relationships are commonly recognised in society and provided as evidence of this her Centrelink and health fund records. While referencing the Macquarie Dictionary definition of "relationship" as including a "connection", including connections by blood, she stated that the "connection between myself and the donor has resulted in a biological connection between the donor and the children whereby the children are full biological siblings, despite the donor not being a legal parent." Accordingly, her preference would simply be for the Daughter's details to be recorded in section 5 under the existing heading "Previous children of relationship". She alternatively submitted that it would be more accurate for families in her situation to state under that heading "not applicable" instead of "not any". Having the words "not any" is incorrect, and implies the children do not have any biological connection.
The Applicant also clarified that she is not seeking to contravene section 22A of the BDMR Act or section 14 of the SoC Act. Indeed she fully supports the operation of section 22A and actually considers that having "not any" in the box next to section 5 raises more questions about the children's conception than if the Daughter's details were simply listed there.
Accordingly, the Applicant submits that in consideration of the object and purpose of the BDMR Act and the individual circumstances of her case, "the correct decision is to remove the words 'not any' previous children of relationship from Section 5 of my son's birth certificate and replace them with my daughter's name."
Finally, the Applicant observed that policy reform in this field has been moving slowly. She referred to a Birth Certificate content review from 2014 which recommended short-form birth certificates would only include items essential to identity. She noted that ultimately this change would address her "key concerns and make the birth certificates more fit-for-purpose, without unfairly penalising unconventional families". At the hearing, the Applicant did acknowledge that the Tribunal in the present matter was unable to bring about that kind of change.
[20]
Respondent's Position
The Tribunal has already recounted the shifting explanations and offers on the part of the Respondent with respect to recording details of the Daughter on the Son's birth registration and certificate. It sets out below the arguments that are still maintained by the Respondent, who now accepts that the Daughter's details should appear on both the Son's birth registration and birth certificate.
The Respondent's latest position is that the Daughter's details could indeed be included in section 5 of the birth certificate, instead of as an endorsement in section 8. The Respondent proposes, however, changing the wording of the heading of section 5 to "other children of the mother" instead of "other children of relationship". The reason why the Respondent objects to retaining the heading "other children of relationship" is that such an approach could be inconsistent with section 14 of the SoC Act. The Respondent points out that the SoC Act states that where a woman becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed under law not to be the father of any child born as a result of the pregnancy. According to the Respondent, "this presumption strictly limits the Respondent's power to record [the Daughter] as a 'previous child of the relationship' and in turn record the children as full siblings on [the Son's] birth certificate."
The Respondent says that its proposed approach of including the Daughter in section 5 of the birth certificate under "previous children of the mother" complies with clause 5(1)(f) of the BDMR Regulations, while at the same time it does not affect the presumption of the SoC, and does not conflict with section 22A(3) of the BDMR Act.
At the hearing, the Respondent reiterated that it had problems with including the Daughter's details in section 5 if the heading "previous children of the relationship" were retained. These problems included that such an approach might reveal "information that indicates that the person may be a person who was conceived using a donated gamete", contrary to section 22A(3) of the BDMR Act. Secondly, referencing other children of the "relationship" would necessarily imply that the donor who gave the sperm is the father and elevate him to the status of "father" with whom the mother is in a relation. This would be contrary to the legal presumption in section 14 of the SoC Act which says legally he is not the father.
In answer to a question from the Tribunal, the Respondent confirmed that there have been no other cases before the Tribunal or courts of New South Wales that have addressed the issues in the present case. The Respondent acknowledged that the Applicant cannot be the first single parent in such a situation and stated that the usual practice has been to record any older sibling in an endorsement in the birth certificate. The Respondent acknowledged that this area of the law was ever-changing and struggling to keep up with developments in society. This case, however, is distinguishable from the case of AG v FJG, which was more complex insofar as it concerned issues of retroactivity and consistency with federal legislation. Those complexities do not affect the present case.
The Respondent also confirmed that the BDMR Act provided the Registrar with sufficiently broad discretion to modify the section headings used in the birth certificate, in line with the offers that the Respondent had made over the course of the present case. It confirmed that the Tribunal would likewise have discretion in the exercise of its power to set aside the administratively reviewable decision and substitute it with a correct and preferable decision pursuant to section 63(3) of the ADR Act.
[21]
Tribunal's Consideration
Having found that the Daughter's details should be included in the Son's birth entry in the Register and in the birth certificate of the Son, the Tribunal now considers where and how those details should be recorded. The starting point is consideration of relevant provisions of the BDMR Act.
The objects of the BDMR Act include registration of births, the keeping of registers for recording and preserving information about births in perpetuity and the issuance of certified information from the registers (section 3). The Registrar's general functions including establishing and maintaining the registers necessary for the purposes of the Act, maintaining the integrity of the Register and administering the registration system to ensure it operates "efficiently, effectively and economically" and in "the way best calculated to achieve its objects" (section 6).
Sections 14 and 17 of the BDMR Act refer to regulations which set out particulars required for registration of a birth. Section 43 requires the Register to contain the particulars of each registrable event required under the Act or another law (section 43(2)(a)) and allows the Registrar to include any such further information the Registrar considers appropriate (section 43(2)(b)). Section 45 provides for the Registrar to correct the Register to "bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event (section 45(1)(b)). Section 45(3) provides that the Register corrects the Register by "adding, altering or deleting particulars contained in an entry." Section 49 provides for the issuance of birth certificates based on information in the Register.
While it is clear in the circumstances of this case and the framework set out above that the Registrar should correct the Register of the Son's birth entry and his birth certificate, there is no specific formula prescribed by the BDMR Act or the BDMR Regulations for precisely where and how to record an older sibling's details. All that is required is that the particulars of the registrable event of the Son's birth include "the full name, sex and date of birth of any other children (including any deceased children) of either of the parents of the child."
It is therefore within the discretion of the Registrar (and the Tribunal in substituting any administratively reviewable decision for that of the Registrar), to decide how and where to list the required information about the older sibling. That the Registrar has some flexibility in this regard is evident not only from the evolving offers made by the Respondent to the Applicant at various points since the son's birth, but also from the evolving ways in which parent, relationship and sibling information has been presented in birth certificates issued by the Registrar in the course of the Applicant's life generally. The Applicant's own birth certificate from the 1970s, for example, includes her parents' details under "Father" and "Mother", then lists details of their marriage, and has details of the Applicant's own older sibling under the heading of "Previous children of marriage." The Daughter's birth certificate from 2021 has fields for "Mother", "Father" and "Previous children of relationship." The Son's 2022 birth certificate has fields for "Mother", "Parent", and "Previous children of relationship".
The Tribunal agrees with the position eventually reached by both Parties in this case that it is appropriate for the Daughter's details to be listed in section 5 of the birth certificate rather than include them in an endorsement in section 8 of the certificate. This more closely tracks the order of details set out under clause 5(1) of the BDMR Regulations.
As for the heading to be used in section 5, the Tribunal considers the most appropriate formulation to be one that tracks most closely the language in the BDMR Regulations, i.e., "any other children (including any deceased children) of either of the parents of the child."
The current birth certificate uses the formulation "Previous children of relationship". That formulation is not included in the BDMR Act or the BDMR Regulations. The fact that the Respondent has offered to change it to "Previous children of mother" reinforces that "previous children of relationship" is not mandatory as a formula to be included in the birth certificate.
The context of section 5 is that it appears on the certificate immediately under the section 4 headed "Marriage of Parents", which in turn appears immediately under sections 2 and 3 for listing of the parents' details. This implies that the "relationship" in the heading "Previous children of relationship" references the relationship between the mother and the father as listed above. However, in the birth certificates of the Children in this case, the father's details are left blank.
Biologically, it is true that the children are "previous children of relationship" insofar as they were born to the same mother, conceived from her eggs and the sperm from the same donated gamete. Socially, it is also true that they share the same "relationship" in that they are both children to the same single mother. The Applicant has rightly pointed out that in other contexts of society, including her health insurance and Centrelink registration, "single parent" is considered a kind of relationship.
The Tribunal can appreciate that there may be confusion and difficulty with retaining the formula "PREVIOUS CHILDREN OF RELATIONSHIP" at section 5 of the birth certificate. That is because contextually, given the placement of section 5 immediately below sections 2, 3 and 4, the words "previous children of relationship" could suggest that there is a second parent, whereas by law there is not. By virtue of section 14(2) of the SoC Act, the person who donated the sperm to the Applicant, is not a parent. While the Tribunal is not convinced that retention of the heading "PREVIOUS CHILDREN OF RELATIONSHIP" would seriously risk breaching section 22A(3) of the BDMR Act by revealing "information that indicates that the person may be a person who was conceived using a donated gamete", it accepts that the heading could, in context, lead to confusion.
On the other hand, the Tribunal does not fully accept that listing the Daughter's details under the heading "PREVIOUS CHILDREN OF MOTHER" in section 5 of the birth certificate is the preferable decision. While it is technically accurate, it is not required by the BDMR Act or the BDMR Regulations. It is thus unnecessary, and may also incorrectly suggest that the Daughter is a half-sibling only, when in reality, she is biologically a full sibling.
The Tribunal considers that the correct and preferable decision in the present case is to list the Daughter's name, sex and date of birth in section 5 of the birth certificate, under the heading "PREVIOUS CHILDREN OF PARENT(S)." This tracks the language of clause 5(1)(f) of the BDMR Regulations most accurately (which provides for inclusion of details of "any other children (including any deceased children) of either of the parents of the child". Its short form for inclusion in the certificate is similar to the short form use of "INFORMANT(S)" in section 6 (which covers situations of having one or both parents inform the Registrar of the birth under section 15 of the BDMR Act). The formulation "previous children of parent(s)" is neutral as to whether the children are half or full siblings. It does not imply any relationship between two parents where legally there is only one parent. It does not reveal any information about the circumstances of the Children's conception. The Tribunal considers that this formulation is consistent with the Registrar's duty under the BDMR Act to maintain the integrity of the birth register and ensure it operates effectively and in a way that achieves the objects of the Act.
[22]
Conclusion
For the reasons set out above, the Tribunal finds that the Registrar's Original Decision and the Internal Review Decision should be set aside and substituted with a decision that corrects the entry of the Son's birth in Register and the Son's birth certificate details of his older sibling in accordance with clause 5(1)(f) of the BDMR Regulations and Section 45 of the BDMR Act. The Son's birth certificate shall contain the Daughter's name, sex and date of birth under section 5, under the heading "PREVIOUS CHILDREN OF PARENT(S)" and an equivalent insertion shall be made in the Register.
The confidentiality order under section 64 of the CAT Act shall continue apply.
[23]
Orders
The Tribunal makes the following orders:
1. The decision under review is set aside.
2. Pursuant to section 45 of the Births, Deaths and Marriages Registration Act 1995 (NSW), and clause 5(1)(f) of the Births, Deaths and Marriages Registration Regulation 2017 (NSW), the entry in the Register for the registrable event of the Son's birth shall be corrected to include the full name, sex and date of birth of the Daughter in the section for listing "any other children of … either of the parents of the child".
3. Pursuant to sections 45 and 49 of the Births, Deaths and Marriages Registration Act 1995 (NSW) and clause 5(1)(f) of the Births, Deaths and Marriages Registration Regulation 2017 (NSW), a correct birth certificate shall be issued for the Son that includes the full name, sex and date of birth of the Daughter in section 5 of the birth certificate, under the heading "PREVIOUS CHILDREN OF PARENT(S)".
4. The publication or broadcast of the names of the Applicant and her two Children is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 August 2023
Parties
Applicant/Plaintiff:
FTH
Respondent/Defendant:
Registrar of Births, Deaths and Marriages
Legislation Cited (8)
Births, Deaths and Marriages Registration Regulation 2017(NSW)