LU v Registrar of Births Deaths and Marriages

Proceedings 9The female parent has commenced these proceedings against the Registrar and the father to have the father's name removed from the child's birth certificate and to have her name inserted on the child's birth certificate. It is possible for these changes to be made by the Registrar without court proceedings but only with the consent of the father. The father did not provide his consent to the Registrar. 10The application relies on provisions of the Status of Children Act 1996 ("the Status Act") and the Births, Deaths and Marriages Registration Act 1995 ("the Registration Act"). It is convenient if the relevant provisions are set out in full. The Status Act provides: "11 Presumptions of parentage arising from registration of birth (1) A person is presumed to be a child's parent if the person's name is entered as the child's parent in the Births, Deaths and Marriages Register or a register of births or parentage information kept under a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction. ... 12 Presumption of parentage arising from findings of courts (1) A person is presumed to be a child's parent if: (a) while the person is alive, a prescribed court has: (i) found expressly that the person is the child's parent, or (ii) made a finding that it could not have made unless the person was the child's parent, and (b) the finding has not been altered, set aside or reversed. (2) A presumption arising under subsection (1) is irrebuttable. (3) A person is presumed to be a child's parent if: (a) after the person dies, a prescribed court has: (i) found expressly that the person was the child's parent, or (ii) made a finding that it could not have made unless the person was the child's parent, and (b) the finding has not been altered, set aside or reversed. (4) In this section, a reference to a finding of a prescribed court includes: (a) a reference to a declaration of parentage, and (b) a reference to a finding whether made before or after the commencement of this section. ... 13 Presumption of parentage arising from acknowledgments (1) A man is presumed to be a child's father if: (a) under this Act or other law of the State or a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction, the man executes a formal paternity acknowledgment or any other instrument acknowledging that he is the child's father, and (b) the instrument has not been annulled or otherwise set aside. (2) This section extends to instruments executed before the commencement of this section. 14 Presumptions of parentage arising out of use of fertilisation procedures (1) When a married woman 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 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. Note. "De facto partner" is defined in section 21C of the Interpretation Act 1987. (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. (5) In any proceedings in which the operation of subsection (1) is relevant, a husband's consent to the carrying out of the fertilisation procedure is presumed. (5A) In any proceedings in which the operation of subsection (1A) is relevant, the consent of a woman to the carrying out of a fertilisation procedure that results in the pregnancy of her de facto partner is presumed. (6) In this section: (a) a reference to a married woman includes a reference to a woman who is the de facto partner of a man, and (b) a reference (however expressed) to the husband or wife of a person: (i) is, in a case where the person is the de facto partner of a person of the opposite sex, a reference to that other person, and (ii) does not, in that case, include a reference to the spouse (if any) to whom the person is actually married. (7) (Repealed) 15 Rebuttal of parentage presumptions (1) A presumption arising under this Division, or a parentage presumption arising under any other Act or rule of law, that is rebuttable, is rebuttable by proof on the balance of probabilities. (2) Every presumption arising under this Division (except for a presumption arising under section 12 (1) or 14 (1)-(3)) is a rebuttable presumption. 16 Conflicting rebuttable parentage presumptions If two or more rebuttable presumptions referred to in section 15 conflict with each other and are not rebutted in any proceedings, the presumption that appears to the court to be more or most likely to be correct prevails. 17 Conflicts involving irrebuttable parentage presumptions (1) If two or more irrebuttable presumptions arising under this Division conflict with each other, the presumption that appears to the court to be more or most likely to be correct prevails. (2) If an irrebuttable presumption arising under this Division conflicts with a rebuttable presumption arising under this Division that is not rebutted in any proceedings, the irrebuttable presumption prevails over the rebuttable presumption." 18 Parentage presumptions cannot be relied on by prosecutors Despite any other provision of this Act, a prosecutor cannot rely in any criminal proceedings on a presumption arising under this Act to prove the parentage of a child. 19 Execution of instrument of acknowledgment (1) A man has executed an instrument acknowledging paternity of a child under this Division if: (a) he executes an instrument in or to the effect of a form prescribed by the regulations and the instrument is countersigned by the mother of the child, and (b) he executes the instrument in the presence of a person belonging to a class of persons prescribed by the regulations for the purposes of this paragraph, and (c) the instrument has not been annulled under this Division. (2) A person in whose presence a formal paternity acknowledgment is executed in New South Wales must: (a) take possession of the acknowledgment once it is executed, and (b) cause the acknowledgment to be transmitted to the Registrar not later than 14 days after the date of its execution to be dealt with under the Births, Deaths and Marriages Registration Act 1995. Maximum penalty: 2 penalty units. 20 Annulment of paternity acknowledgments (1) A formal paternity acknowledgment can be annulled only by order of the Supreme Court. (2) The Court may annul a formal paternity acknowledgment on the application of, or on behalf of, any of the following persons: (a) the person who executed the acknowledgment, (b) the mother of the child to whom the acknowledgment relates, (c) the child to whom the acknowledgment relates, (d) the Registrar, (e) any other person who may be affected by the result of the application. (3) If the Court makes an annulment order, the Registrar of the Division of the Court in which the order was made must immediately cause a copy of the order to be transmitted to the Registrar of Births, Deaths and Marriages to be dealt with under the Births, Deaths and Marriages Registration Act 1995. Division 3 Declarations of parentage 21 Applications for declarations in the Supreme Court (1) Any of the following persons may make an application to the Supreme Court for a declaration of parentage under this section: (a) a person who alleges that the relationship of parent and child exists between the person's child and any named person, or (b) a person who alleges that the relationship of parent and child exists between the person and another named or identified person, or (c) the Registrar when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or (d) the Director-General when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or (e) a person prescribed by the regulations who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person, or (f) a person who may be affected by the result who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person. (2) On any such application, the Supreme Court may make a declaration that a named or identified person is a child's parent. (3) A declaration of parentage may be made: (a) whether or not the parent or the child (or both) are alive, or (b) whether or not the child has been born. (4) If a declaration of parentage is made, the Registrar of the Division of the Court in which the order was made must immediately cause a copy of the declaration to be transmitted to the Registrar of Births, Deaths and Marriages to be dealt with under the Births, Deaths and Marriages Registration Act 1995. 22 Annulment of declaration of parentage (1) The Supreme Court may make an order annulling a declaration of parentage on the application of any person who applied or could have applied for the making of the declaration if it appears to the Court: (a) that new facts or circumstances have arisen that have not previously been disclosed to the Court, and (b) those facts could not, by the exercise of reasonable diligence, have previously been disclosed to the Court. (2) On the making of such an order, the declaration ceases to have effect from that time. Accordingly, the annulment does not affect anything done in reliance on the declaration before the making of the order. (3) If the Court makes such an order, it may, if it thinks that it would be just and equitable to do so, make such ancillary orders (including orders varying property rights) as may be necessary to place any person affected by the annulment of the declaration, as far as practicable, in the same position as the person would have been in if the declaration had not been made. (4) If a declaration is annulled under this section, the Registrar of the Division of the Court in which the order was made must immediately cause a copy of the order of annulment to be transmitted to the Registrar of Births, Deaths and Marriages to be dealt with under the Births, Deaths and Marriages Registration Act 1995." "34 Court orders for separate representation of child (1) This section applies to proceedings under this Division concerning a child. (2) If it appears to the Supreme Court that the child ought to be separately represented, the Court may order that the child is to be separately represented, and may also make such orders as it considers necessary to secure that representation. (3) The Supreme Court may make an order for separate representation: (a) on the application of any person, or (b) of its own motion." Clause 7 of Sch 2 of the Status Act provides: "Part 3 Provision consequent on enactment of Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 7 Parentage presumption to apply in relation to fertilisation procedures occurring before commencement (1) The presumptions arising under section 14 (1A) in relation to a child born as the result of a fertilisation procedure, as inserted by the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008, extend to a procedure undertaken, and a consent given, before the commencement of that subsection. This subclause applies even though at the time the consent was given the presumptions did not apply. (2) However, those presumptions do not apply so as to affect: (a) the previous operation of this or any other Act or law, or (b) any will executed before the commencement of section 14 (1A), or (c) the vesting in possession or in interest of any property before the commencement of section 14 (1A). (3) In this clause: will includes a codicil and any other testamentary disposition". Other relevant provisions are contained in the Registration Act: "18 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". "19 Orders for registration of birth or inclusion of registrable information (1) The District Court may, on application by an interested person or on its own initiative, order: (a) the registration of a birth, or (b) the inclusion of registrable information about a birth or a child's parents (including details of the marriage of a child's parents) in the Register. (1A) Such an order may only be made in respect of a birth: (a) in the case of an order under subsection (1) (a), if the birth occurred in the State, in an aircraft during a flight to an airport in the State or on a ship during a voyage to a port in the State, and (b) in the case of an order under subsection (1) (b), if the birth has been registered under this Act. (2) If any court (including any court of another State or the Commonwealth) makes a finding about a birth or a child's parents, the court may order registration of the birth or inclusion of registrable information about the birth or the parents in the Register". "20 Alteration of details after birth registration (1) An application to the Registrar for the addition of registrable information in a person's birth registration: (a) must be made in writing, and (b) must include the information required by the Registrar, and (c) must, if the Registrar requires verification of the information contained in the application, be accompanied by a statutory declaration verifying the information contained in the application and any other evidence that the Registrar may require. (2) This section is subject to section 18. (3) In this section, registrable information does not include information relating to a person's change of sex." Clause 17 of Sch 3 Pt 4 of the Registration Act provides: "Part 4 Provision consequent on enactment of Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 17 Application to alter register as consequence of amendment of Status of Children Act 1996 (1) In this clause: relevant provisions means section 14 (1A) (a) of, and clause 7 of Schedule 2 to, the Status of Children Act 1996, as inserted by the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008. (2) An application may be made to the Registrar for the addition of registrable information, about the identity of a woman who is presumed to be a parent of the child under the relevant provisions, in the birth registration of a child born before the commencement of those provisions. (3) The Registrar is to determine the application by making the addition or refusing to make the addition. (4) The Registrar must not add registrable information in the child's birth registration about the identity of the woman as a parent of the child unless: (a) the application is made jointly by that woman and the birth mother, and (b) if the child's birth registration already includes registrable information that purports to identify a person as the father of the child: (i) that person has given his consent to the removal of the particulars from the birth registration that identify him as the father of the child (or a court or the regulations authorise their removal because the person is not the father by operation of law or otherwise), and (ii) the Registrar removes those particulars from the birth registration, and (c) if the Registrar requires verification of the information contained in the application-the application is accompanied by a statutory declaration verifying the information contained in the application and any other evidence that the Registrar may require. (5) An application made under this clause must be in a form approved by the Registrar. (6) This clause has effect despite sections 18 and 20 of this Act and clause 7 (2) of Schedule 2 to the Status of Children Act 1996". 11Although the father did not provide his consent to the Registrar changing the register, these proceedings were uncontested. The Registrar submits to any orders of the Court. The father does likewise, perhaps more. He has sworn an affidavit stating: "I request that the Court make the orders sought by the plaintiff... on the basis that [the Registrar] has filed a submitting appearance and further that I neither consent to nor oppose the orders sought". 12The father provided an explanation as to why he has not given consent: "Based on legal advice I have received in relation to this matter I do not propose to oppose the orders sought by the plaintiff. However, given my close relationship with [the child] and my desire that the relationship continue and develop in the future, I do not believe that I am able to consent to the orders sought by the plaintiff as I am of the view that doing so will ultimately undermine and adversely affect that relationship". 13Accordingly, there is no person opposing the application; there is no "proper contradictor" to put any alternative argument. In other matters this might be of no significance other than to diminish any precedential value of this decision to other similar disputes, but in this case, another person formally unrepresented has an interest in the outcome, namely, the child. 14No parties sought to have any representation appointed for the child. In any event, this seems to be a power exercisable only by the Supreme Court and in a dispute different from the present (see s 34 of the Status of Children Act 1996). Further, the statutory provisions indicate that the child's wishes or even best interests may be irrelevant to the outcome of what should be registered on the birth certificate. However, I was informed from the bar table (and no party demurred) that an independent child representative has been appointed in the Family Court proceedings. 15In my earlier judgment, for reasons there given, I made orders notifying the child's representative of these proceedings. No submissions were received from the child's representative. Accordingly, I propose to determine the matter on the material before me.

The removal of the registrable information about the father 16The plaintiff seeks an order that the father's name be removed form the Birth register pursuant to cl 17(4) of Sch 3 of the Registration Act. That provision is set out above. It precludes the Registrar from adding the name of the female parent in the child's birth registration unless: (a) the application to the Registrar is made jointly by the mother and the female parent (cl 17(4)(a)) in a form approved by the Registrar (cl 17(5)) and with information verified as the Registrar required (cl 17(4)(c)), and (b) where the child's birth registration includes (as here) registrable information identifying the father, then either: (i) the father has given his consent to the removal of his particulars from the child's birth registration (cl 17(4)(b)(i)), or (ii) a court authorises the removal of the registrable information about the father (cl 17(4)(b)(i)), and (c) the Registrar removes those particulars about the father from the child's birth registration (cl 17(4)(b)(ii)). 17Accordingly, it appears that cl 17(4) does not empower the Court to order the removal of the father's name from the child's birth registration, but only to authorize the Registrar to remove it. 18A similar case was determined by Judge Walmsley SC of this court in AA v Registrar of Births, Deaths and Marriages and BB [2011] NSWDC 100. In that case it appears that the plaintiff (in the position of the female parent) sought (see [19]) and obtained (see [41]) an order that the name of the defendant (in the position of the father) be removed from the child's birth registration, although the form of the orders and the summons in the reported decision perhaps leaves a residual doubt about the issue. The judgment records a submission that counsel for the plaintiff: "conceded that there is no express provision in the [Births, Deaths and Marriages Registration Act] giving power to remove [the father's] details as father, but submitted that that power was implicit from cl 17 (4) (b) (i) which refers to a court's authorising removal of registrable information purporting to identify a person as father where the person is not the father by operation of law or otherwise." (See [31]). 19Judge Walmsley SC appeared to accept this argument, stating at [36]: "...I consider that I must accept [the plaintiff's counsel's] submission that...[the father's] and his other particulars which are on the Register should be removed from it." His Honour made no further reference to the possible absence of power. 20The question of whether I am bound by a decision of another judge of the Supreme Court (and by analogy, this Court) was considered and rejected by Judge Rein SC (as his Honour then was) in Keramaniakis v Wagstaff (2005) 3 DCLR (NSW) 1. I have adopted the approach that if I am in doubt I should follow the earlier decision. 21With the greatest respect to the learned judge, I do not propose to follow AA on this point, for two reasons. First, the question of power, although raised in submissions does not appear from the judgment to be directly addressed. Secondly, in my view the concern raised by counsel in that case about the absence of an express power is not overcome by some implicit power. The power of the court to authorize the Registrar to remove certain information does not create any necessity for the court to have a power to order the Registrar to do so, and in my view tends against such an implication. 22Accordingly, I am of the view that this court is empowered to authorize the Registrar to remove the father's name from the child's birth registration, but not to order the Registrar to do so. 23The question whether the Court should authorize the Registrar to remove the father's particulars depends on whether he is "not the father by operation of law or otherwise". 24Because the father became the biological father of the child by means of fertilization procedure, and he was not the husband or de facto partner of the mother at the time, the father is presumed not to be the father of the child according to s 14(2) of the Status Act. Subsection 14(4) provides that that presumption is irrebuttable. 25Thus, in the absence of any other presumption, the father is not "the father by operation of law" and it would be appropriate for the Court to authorize the removal of his particulars from the child's birth registration. 26But there are other presumptions. By the registration of the father or the birth certificate he is "entered as the child's parent" under s 11(1) of the Status Act: see AA at [26]. Similarly, the father's acknowledgement on the birth certificate form creates a presumption that he is the child's parent under s 13 of the Status Act: see again AA at [26]. 27These presumptions are both rebuttable, under s 15(2) of the Status Act. As irrebuttable presumptions prevail over rebuttable presumptions by s 17(2), these presumptions give way to s 14(2) and (4) by which the father is irrebuttably presumed "not to be the father" of the child. 28Section 12 also creates an irrebuttable presumption by operation of s 12(2) and s 15(2) where there is a relevant court finding. I previously determined in my earlier decision, on the uncontested evidence of the parties, that the father was the biological father of the child. Is that a finding that the father "is the child's parent" so as to enliven the presumption in s 12(1) of the Status Act? 29Sections 11 and 13 of the Status Act implicitly recognize that a father is, perhaps unsurprisingly, a parent. Entry on the register, I infer, would commonly be as a "mother" or a "father" not as a "parent". Thus, the presumption arising by s 11 would appear to operate when a person is registered as a "father" (or "mother"). Furthermore, s 13 creates a presumption that a person is a "father". These provisions indicate that so far as a male person is concerned, no distinctions should be drawn between a presumption that the male person is a father, and a presumption that the male person is a parent. 30Some of the requirements of s 12 of the Status Act are present. The father is alive, the District Court is a "prescribed court" because (see s 3 of the Status Act) it is "a court of [a] State", and the finding that the father is the biological father of the child has not been altered, set aside or reversed. 31However, I do not think that a finding that the father is the biological father of the child is relevantly a finding that the father "is the child's parent". An adopted child has, at law, parents that commonly would not include the biological father, for example. I note that the Status Act has no effect on adoptions, see ss 4(2), 8(4), 11(2) and 12(5), but that is not to say that the known fact of adoptions is irrelevant to the construction of the Act. 32In my view, the creation of an operative presumption in s 12 of the Status Act requires a judicial determination that a person is the legal father, or the legal parent, not merely the biological parent (cf PJ v Director General Department of Community Services [1999] NSWSC 340 at [13] and see also s 19(2) of the Registration Act). 33In the result, s 12 has no application to the present case, and I am relieved of deciding the thorny question of which of two irrebuttable presumptions is the one "more or most likely to be correct" (see s 17(1)). 34Accordingly, s 14(2) irrebuttably presumes the father "not to be the father" of the child. In those circumstances, it is appropriate that I make an order authorizing the removal of the father's particulars from the child's birth registration, pursuant to s 17(4)(a)(i) of the Registration Act.

Inclusion of the female parent's particulars on the child's birth registration 35The female parent also seeks an order that her name be added to the child's birth registration under s 19(1)(b) and cl 17(2) of the Registration Act. Section 19(1)(b) contains an express power for such an order. Clause 17(2) does not provide an additional power to the Court to so order, but empowers an application to be made to the Registrar for the addition of registrable information about the female parent. Given that cl 17(4) precludes the Registrar from adding registrable information unless certain preconditions are satisfied, it seems appropriate that my order should be conditional upon the fulfilment of those conditions. Were this not so, my order may compel the Registrar to do something which cl 17(4) in mandatory terms directs the Registrar not to do. 36The preconditions which must be satisfied before the Registrar adds registrable information are: (a) the mother and the female parent apply jointly to the Registrar in a form approved by the Registrar (and with such information verified by statutory declaration as is required by the Registrar) to add the female parent's particulars to the child's birth registration (cl 17(4)(a)(c) and cl 17(5)); and (b) the Registrar has removed the name and particulars of the father from the child's birth registration (cl 17(4)(b)) pursuant to the authority I propose to grant. 37The need for these conditions appears to me to be reinforced by cl 17(6) of Sch 3 of the Registration Act (cf ss 18-20, especially s 18(d) and cl 17(4)). The evidence indicates that the Registrar may already have received material fulfilling the first of these conditions, but in any event I propose to grant liberty to the parties for further orders in respect of these conditions should any issues arise.

Costs 38The female parent also seeks an order for costs. The usual rule is that a submitting party who takes no part in proceedings will not be ordered to pay costs: see Highland v Labraga (No 3) [2006] NSWSC 871. In my view, this rule applies. Further, a large component of the costs sought by the plaintiff are for counsel's fees. The submissions of counsel for the plaintiff have been of assistance. But in circumstances where for about six weeks the father has expressly not opposed, and indeed joined in seeking, the orders sought by the plaintiff, I cannot see that counsel was required, or at least that the father should pay the costs of counsel. I note that an order for costs was neither sought nor made in AA (at [20], [41]). 39Accordingly, the orders of the Court are:

1. The Registrar is authorised to remove from the child's birth registration any particular that identifies the father as the father of the child, pursuant to cl 17(4)(b)(i) of Sch 3 of the Births, Deaths and Marriages Registration Act 1995.
2. Upon the removal of the particulars identified in order 1, on an application made jointly by the female parent and the birth mother in a form approved by the Registrar, accompanied by, to the extent required by the Registrar, a statutory declaration verifying the information in the application and other evidence, the Registrar is ordered to include registrable information about the female parent on the child's birth registration.
3. Order that there be no order as to costs, to the intent that each party bear their own costs.
4. Liberty to the parties to apply within 28 days in respect of any of the conditions in order 2 above.

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: 02 August 2013