Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 42
Bull v Attorney-General, New South Wales) (1913) 17 CLR 370
Dillon v R [1982] AC 484
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Source
Original judgment source is linked above.
Catchwords
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 42Bull v Attorney-General, New South Wales) (1913) 17 CLR 370Dillon v R [1982] AC 484Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Jack v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10Nilant v Macchia [2000] FCA 1528, (2000) 104 FCR 238R v Gordon (1789) 1 East PC 315R v Port of Londonex parte Kynoch[1919] 1 KB 176Re Gray and ASIC (2004) 86 ALD 230
Re The Adoption of "Z" [2020] NSWSC 1725
Secretary, Department of Social Security v Alvaro (1984) 34 ALD 72
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Judgment (5 paragraphs)
[1]
The application
Section 18 regulates the addition of information about such matters as paternity in the register. The relevant provision is s 18(b), which states:
The Registrar must not include registrable information about the identity of a child's parent in the Register unless: …. (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….
In this case two applications to add a father's details to the pre-adoptive birth certificate were received on 2 July 2021, one from the applicant and one from his mother, Ruth. The applicant's form was dated 19 July 2021 (Id., 45), while Ruth's was dated 9 July 2017 (id., 33). The documentary evidence does not account for the four-year gap between the date on the form and the date of lodgment. The applicant's evidence was that the form when initially lodged was not accepted, for reasons that are not clear, but it was re-submitted, and accepted, in July 2021.
It was not disputed that Ruth's application was never determined and that the reviewable decision before the tribunal is the applicant's application, nor was it submitted that the application did not meet the threshold requirements of s18(b). At the hearing the respondent stated that his application had been treated as superseding his mother's, but the documents in evidence do not show the procedure followed in order to achieve that result. The applicant himself said he had made repeated enquiries of the registry but had been unable to obtain an answer on that point.
In the absence of documentary evidence on that question, the tribunal can draw support from the legal presumption of regularity, omnia praesumuntur esse rite acta. That is taken to mean that where it is proved that an official act has been performed, it will be presumed, until the contrary is proved, that all necessary formalities have been complied with and that the person who performed the act was duly appointed: R v Gordon (1789) 1 East PC 315; Dillon v R [1982] AC 484. As Ruth did in fact make an application which was accepted by the registry, the tribunal is entitled to proceed on the basis that the reviewable decision qualifies under s 18(b) and can be considered on the merits, and I so find. Further, it is settled that a merits review tribunal has the power to review an administrative decision even if the decision was not validly made: Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72, 78.
[2]
The DNA evidence
The applicant relies on his interpretation of the search results applied by Ancestry DNA, which supplies a service of that nature to the public for the purposes of ancestry tracing and related matters. The respondent objects that relying on the Ancestry DNA results would be contrary to the objects of the Act, specifically s 6(a1), namely, to maintain the integrity of the register. To include a parent's details on a birth certificate, the respondent requires documentary evidence such as a DNA paternity testing report complying with the Family Law Act 1975 and Family Law Regulations 1984, or a court order.
Sections 69V and 69W of the Family Law Act provide that where the parentage of a child is a question in issue in proceedings under that Act, a court may make a parentage testing order requiring a parentage testing procedure to be carried out for the purpose of obtaining information to assist in determining the parentage of a child. Clause 21D of the regulation requires the parentage testing procedure to be carried out in accordance with Division 2 at a laboratory that is accredited by the National Association of Testing Authorities, Australia (NATA) and in accordance with standards of practice that entitled the laboratory to be so accredited, as well as supplemented by a report under Division 3.
It was acknowledged at the hearing that the requirements under the federal Family Law Act and Regulation have no statutory force in this context and that they are applied purely as a matter of registry policy.
That policy therefore requires that a DNA test must be conducted at a NATA-accredited laboratory and complies with the Family Law Regulations, including:
The procedure is conducted by a person who is a registered medical practitioner or employed by a hospital, pathology practice or registered to take bodily samples,
Samples to be taken by a syringe or swab that has been sterilized, is disposable and has not been used for any purpose,
The sample is taken in a container immediately after it is taken and in the presence of the donor, and sealed.
The respondent also submits that the AncestryDNA results were not generated for the purposes of serving as a DNA parentage of report. Section 1. 4. 2 of Ancestry's terms and conditions states that:
In addition to the requirements in Section 1.3 above, you also agree… Not to use the information obtained from the DNA Services (including any downloaded DNA Data (defined in the Privacy Statement) in whole, in part, and/or in combination with any other database, for any medical, diagnostic or paternity testing purpose, in any judicial proceeding or for any discriminatory purpose or illegal activity" (part exhibit A2).
[3]
The other evidence
The applicant also relied on three statutory declarations by his mother Ruth Thomson (exhibit R1, pp 131 - 133). The first two are dated 18 October 2017 and 20 January 2019 respectively and are in similar terms. They state, relevantly -
That I met Pasquale Capomolla whilst working for E C Harris at Manuka, Canberra ACT 1956 - 1957. I knew Pasquale for approx. 12 months, we were amongst a group of friends who attended local dances together.
I knew Pasquale to be the half owner of a hairdressing business in the CBD of Canberra.
I know him, Pasquale, to be the father of my son Peter John Moore (Peter James McMillan).
Pasquale was aware of my pregnancy. I had to leave ACT to attend to my dying father in Pilliga NSW. I was unable to return to ACT.
The third statutory declaration gives significant additional detail. In it Ruth states:
I have read the document attached, sourced from the Salvation Army records. I further declare that the attached document which purports to be a record of a description of the putative father of the child I was forced to relinquish by my mother and subsequently by the Salvation Army staff at Bethesda Maternity Hospital is not a true representative of any words that I said in 1958. I believe the attached document is a fabrication to deceive any prospective adoptive parents into believing my son, Peter James McMillan (adopted as Peter John Moore) was a white Australian child acceptable in those times for adoption.
I did give the staff the name and nationality of my son's father, Pasquale Capomolla, an Italian immigrant living at Canberra at the time.
I was told that my son's father's name would not be recorded as if it were, he would be deemed to be a mixed race child and deemed not adoptable and therefore destined for an orphanage.
I declare that prior to seeing this document for the first time on 6th May 2022 I have never seen the description of the putative father this document from the Salvation Army describes [sic - scil. "archives"]. I can only surmise that this is a generic description commonly used by the Salvation Army and in no way a representation of the truth or a factual document to be relied on.
I declare that my son is of Italian and my own Aboriginal and Scottish blood.
As Ruth died in October 2022, it was not possible to test her evidence by cross-examination. Her declarations do, however, explain the apparent discrepancies between the Salvation Army records and the applicant's version of events. She maintains that she did inform the Bethesda Hospital staff of the name and nationality of her son's father, Pasquale Capomolla, an Italian immigrant living in Canberra, but was told his name could not be recorded as he would be deemed not adoptable and therefore destined for an orphanage.
[4]
Orders
1. Decision under review set aside.
2. An entry is to be made to the register by adding to the applicant's pre-adoption birth certificate the details of Pasquale Capomolla as the applicant's father.
[5]
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: 30 June 2023
The applicant also relied on a report dated 25 October 2022 by Mr Peter O'Brien (exhibit R1, pp 99 - 102), who over a period of some two years had taught himself the techniques for the use of autosomal DNA for family history research, in order to discover the identity of his own father. Since identifying his father, he had been using the skills he acquired in that process to assist other adoptees and persons with unknown biological families, to make connections with their birth families, using DNA.
He has been a member of the advisory board of the Special Search Service conducted by International Social Services Australia and currently provides voluntary assistance in DNA search and research to the Post Adoption Resource Centre. He has made presentations on DNA research to the Society of Australian Genealogists' DNA Research Group, the Campbelltown District Family History Society, the Benevolent Society (New South Wales) and various adoptee groups.
In 2019 - 2020 he undertook DNA research on behalf of "Z," who was referred to him by the Post Adoption Resource Centre. In the course of that research he identified the person he believed to be the birth father of' Z and was asked to provide Z with a statement as to how he had reached that conclusion. In the New South Wales Supreme Court case Re The Adoption of "Z" [2020] NSWSC 1725, his research was accepted and the court made the requested order to add the name of her birth father as identified by him to her original birth certificate.
He had been asked to examine the AncestryDNA results of the applicant and to give an opinion on the identity of his biological father. His mother, Ruth McMillan, had done an AncestryDNA test and the results of that test were consistent with the expected parent-child relationship. He was therefore able to start from a position where close paternal relatives could be easily identified. Close matches to Peter that are not matches to his mother Ruth must be matches on the paternal lines of his family tree.
After performing a process with a number of rather complex steps and excluding all other possible hypotheses, all of which is detailed in his report, Mr O'Brien concluded that "I believe Maria Teresa Capomolla and Vincenza Capomolla are Peter's paternal aunts, i.e. his father's sisters. On the basis of Peter's very close relationship with [a person anonymized as] MC, and his relationship with Maria and Teresa, I conclude there's an extremely high probability that Peter's biological father is Pasquale Capomolla". Mr O'Brien was not required for cross-examination.
Consideration
This tribunal has jurisdiction to hear and determine this application by reason of s 56(1) of the BDM Act and s 9(1) of the Administrative Decisions Review Act 1997 (ADR Act). Under s 63 of the ADR Act, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondent's decision is the correct and preferable one.
The tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. The tribunal is to make its own decision and there is no presumption that the registrar's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
These are not adversarial proceedings. There is accordingly no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. Nevertheless, the civil standard of proof on the balance (preponderance) of probabilities as set out in s 140 is considered to be an acceptable guide to fact-finding.
Chronology
In such cases it is useful to set out a brief chronology of the relevant events:
31 March 1958: the applicant is born at Bethesda Hospital, Marrickville.
8 August 1958: the applicant's birth is registered and a pre-adoptive birth certificate is issued. His mother Ruth Thomson (née McMillan) is the only parent and informant recorded on the pre-adoptive birth certificate (exhibit R1, p 16).
Between February and May 1958, arrangements are made by the Salvation Army for the applicant's adoption by Mr and Mrs Moore. On 5 May 1958, the adoption is finalized and on 8 July 1958 a new birth certificate is issued for the applicant showing Mr and Mrs Moore as his parents (id., 15).
7 May 2017: the applicant applies for a copy of his pre-adoptive birth certificate, which is subsequently issued to him on 5 July 2017.
14 July 2017: following enquiries by the applicant, the respondent informs him of the options available to add his birth father details to his pre-adoptive birth certificate. The options stated were either both biological parents completing an application, one parent making an application supported by a DNA test report in accordance with the Family Law Act or providing a court order making a finding about the father's identity or directing the respondent to add the father's details, or both.
2 July 2021: two application forms are received in relation to adding a father's details to the pre-adoptive birth certificate. The first is submitted by Ms Thomson and the second by the applicant. In support of his application, the applicant provides a copy of his AncestryDNA match results and untranslated copies of documents apparently being Mr Capomolla's Italian birth and death certificates.
2 July 2021: the respondent emails the Adoption Information Unit of the Department of Communities and Justice requesting information on the applicant's adoption records. On 16 August 2021, the AIU provides a response (id., 58).
18 August 2021: the respondent seeks information from the Salvation Army with regards to its pre-adoptive details held by the Salvation Army in relation to the applicant's biological parents. A response is received on 19 August 2021 (id., 64). The records received include a contemporaneous document giving Ruth as the mother and an unnamed Australian carpenter aged 31 as the applicant's father (id., 62) or, in another document, a builder described as having a dark complexion (id., 3).
28 September 2021: the respondent informs the applicant that his application to add a parent to his pre-adoptive birth certificate is declined (id., 65 - 66). Following a request from the applicant, the respondent on 15 November 2021 details reasons for the refusal of his application and informs him that the registry would follow any orders or findings made by a court concerning parentage (id., 67 - 68).
The applicant, on the other hand, relied on Mr O'Brien's statement giving his opinion of the AncestryDNA results, reaching the conclusion that "there's an extremely high probability that Peter's biological father is Pasquale Capomolla" (exhibit R1, p 102). Mr O'Brien also pointed out that in Re: The Adoption of Z the Supreme Court of New South Wales accepted his research and made the orders requested. But while Sackar J did find that the evidence supported Mr O'Brien's methodology, it appeared to be the methodology of his analysis that was approved, not the procedures followed in collecting, handling and storing the sample. The applicant herself had supplied the sample and there was no evidence about those matters.
Similarly, in the present case it was the applicant who collected, stored and supplied the samples, and while no impropriety or negligence on the applicant's part was suggested, the respondent's practice of insisting on a DNA test performed by a NATA-approved laboratory following the established procedures is justified as a means of guarding against shortcomings in such matters as collection, handling and storage. Although not a statutory requirement, it is a reasonable and rational means of serving the registry's statutory objectives, which include maintaining the integrity of the register and preventing identity fraud associated with it and the information extracted from it.
Consequently I do not think that the DNA evidence supplied by the applicant is sufficient to "bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar": s45(1)(b). The fact that the applicant's DNA evidence does not meet the registry's declared standards does not, however, mean that it lacks all evidentiary value. It should be considered in conjunction with the other relevant evidence.
It was not denied that such things did happen at that time. The Commonwealth's Response to the Senate Community Affairs References Committee Report (part exhibit A2) stated that:
Forced adoption policies and practices were widespread throughout Australia particularly during the period from the 1950s to the early 1970s. An estimated 140,000 to 150,000 adoptions occurred in Australia between 1951 and 1975. Many of the babies were born to unwed mothers…. The wealth of evidence submitted to the Committee can leave no doubt that many were treated appallingly. Mothers were not informed of their rights, did not provide informed consent, were given false assurances, denied care and support and endured pressure, mistreatment and coercion.
Ruth attested that although she had wanted to keep her child, she had come under pressure to give him up for adoption, not only by the hospital staff, but also by her mother. That is perhaps quite credible, given that her mother and father were both invalid pensioners, her father was terminally sick and Ruth already had one ex-nuptial child, a boy aged five. At that time there was no single mothers' pension and people may have considered that adoption was in the best interests of both mother and child. Similar rationalizations could well have led to questionable record-keeping at the maternity hospital.
It is not disputed that both Ruth and Pasquale were living in Canberra at the time of the applicant's putative conception, a fact that has some corroborative weight. Also tending to corroborate the applicant's position are the AncestryDNA findings and Mr O'Brien's interpretation of them. Although not qualifying for the near-decisive weight of a finding made by a NATA-approved laboratory, that evidence does support Ruth Thomson's statutory declarations and the applicant's evidence of conversations with her.
There is also the statutory declaration of Fabian Carnovale dated 24 May 2023 (part exhibit A2) in which the deponent states that he has accepted the applicant as his cousin and a member of his family. He understands that Peter is the biological son of his uncle, Pasquale Capomolla and attests to the genuineness of a number of photographs showing the applicant with members of his family in Italy. He understands that the applicant travelled to Italy to Pasquale's birthplace, where he met with members of their extended family and visited Pasquale's grave. While that evidence supports the genuineness of the applicant's belief in his position, it does not in itself strengthen the evidence of a paternal link.
That does not diminish the strength of the applicant's position, however, given the other evidence. Further, although the BDM Act serves broad social and administrative purposes as set out in s 3, sections 18(b) and 45(1)(b) could in part be viewed as beneficial legislation that adopts provisions advantageous to an individual or the public, and therefore to be construed so as to give the fullest relief which the fair meaning of its language will allow (Bull v Attorney General for New South Wales (1913) 17 CLR 370, 384 per Isaacs J dissenting). In this case the relief referred to would be the opportunity for members of the public to correct an entry about a family member that was inaccurate when made.
As Weinberg J explained in Nilant v Macchia [2000] FCA 1528, (2000) 104 FCR 238, while the Bankruptcy Act (in that case) could not be described as beneficial legislation, one provision was so characterized and was therefore to be interpreted "beneficially, and as generously as the language of the section allows. It should certainly not be construed in a narrow or pedantic manner" (at [42]).
The respondent's requirements for DNA evidence of paternity are not prescribed by legislation but form part of a non-statutory registry policy. While a merits tribunal is to have regard to government policy, including non-statutory policy, it cannot apply non-statutory policy without having regard to the individual circumstances of the particular case before it: R v Port of London Authority; ex parte Kynoch: [1919] 1 KB 176; Drake at 640; MLC Investments Ltd v FCT (2003] 205 ALR 207, 214 - 5. The tribunal cannot surrender its decision-making role to the policy: Re Gray and ASIC (2004) 86 ALD 230, 240.
In light of all the evidence, therefore, I find that correcting the applicant's pre-adoption birth certificate by adding the details of Pasquale Capomolla as the applicant's father would bring the entry about that registrable event "into conformity with the most reliable information available to the Registrar of the registrable event", within the meaning of s 45(1)(b). The decision under review should be set aside and the order made as asked.
25 November 2022: the respondent informs the applicant of the outcome of the internal review decision, affirming the original decision not to amend the applicant's pre-adoptive birth certificate (id., 163 - 165).
The power to correct the register gives the registrar, or on review this tribunal, a discretion "to bring an entry about a particular registrable event into conformity with the most reliable information available….": s 45(1)(b). As the tribunal explained in Ward v New South Wales Registrar of Births, Deaths and Marriages [2015] NSWCATAD 86, [10], "The power to correct the register is discretionary. It is predicated on the decision maker being satisfied the proposed change is in conformity with the most reliable information about the registrable event": Jack v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200, [113].