AFE v Registrar of Births, Deaths and Marriages
[2011] NSWADT 201
•24 August 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AFE v Registrar of Births, Deaths and Marriages [2011] NSWADT 201 Hearing dates: 24 January and 2 May 2011 Decision date: 24 August 2011 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The decision of the respondent is affirmed.
Catchwords: Alteration of details after birth registration - application to include identity of biological father of the applicant on the Register of his birth - whether applicant had standing to make application for alteration - presumptions of parentage Legislation Cited: Administrative Decisions Tribunal Act 1997
Births, Deaths and Marriages Registration Act 1995
Births, Deaths and Marriages Registration Regulations 2006
Registration of Births, Deaths and Marriages Act 1973 (repealed)
Status of Children Act 1996Category: Principal judgment Parties: AFE (Applicant)
Registrar of Births, Deaths and Marriages (Respondent)Representation: AFE (Applicant in person)
J Lucy, Crown Solicitors Office (Respondent)
File Number(s): 103276 Publication restriction: Pursuant to an order of the Tribunal under section 75(2) of the Administrative Decisions Tribunal Act 1997, the disclosure, publication or broadcasting of the names, address or any other material that identifies the applicant or the biological parents of the applicant is prohibited.
REasons for decision
Introduction
The applicant, AFE, seeks review of a decision by the respondent, the Registrar of Births, Deaths and Marriages, to add the name of his biological father to his original birth certificate. The applicant was born in 1980, in Sydney. His biological mother, a New Zealand citizen, was young and unmarried at the time of the applicant's birth. Shortly after his birth the applicant's biological mother signed a certificate of information for the purpose of registering the applicant's birth and a request that arrangements be made for his adoption. The applicant was subsequently adopted and the respondent issued a new birth certificate for the applicant, which named his adoptive parents as his mother and father. The applicant has in recent years re-established a relationship with his biological mother and her family. He has also made contact, by email, with a person who said in a reply email that he is the applicant's biological father. That person resides in the United Kingdom and is not aware of the applicant's application to have his name added to his original birth certificate. The applicant said he did not wish to raise this with this person, as he did not wish to jeopardise this newly established relationship.
The applicant's original birth certificate only identifies his biological mother and contains no information about his biological father. The applicant seeks the inclusion of the name of his biological father on his original birth certificate as, for him, it forms an important part of his own identity. The Catholic Care Adoption Services, through whom the applicant's adoption was facilitated, supports the applicant's application.
However, the respondent determined that the applicant's application to include the name of his biological father in the Register and on his original birth certificate fails to meet the requirements of the Births, Deaths and Marriages Registration Act 1995 .
The role of the Tribunal is to determine whether the decision of the respondent is the correct and preferred decision having regard to the applicable law and the relevant facts (see section 63 of the Administrative Decisions Tribunal Act 1997). For the reasons set out below I agree with this determination.
Relevant legislation
Part 3 of the Births, Deaths and Marriages Registration Act 1995 (the BDMR Act) makes provision for the notification of births and the registration of births. Section 12 provides that when a child is born in New South Wales, the 'responsible person' is required to give notice of the birth to the respondent (i.e. the Registrar of Births, Deaths and Marriages). That notice is to be given within a specified period of time and the 'responsible person' includes the hospital where the child is born.
Section 13 requires the registration of the birth of every child that is born within New South Wales. Section 14 provides that the birth of a child is registered by giving notice to the respondent in a form and manner required by the respondent. The section goes on to say that the form is to include a request for information on the particulars required by the regulations. Section 15 of the BDMR Act sets out who is responsible for having the birth of a child registered. That section relevantly provides as follows:
15.Responsibility to have birth registered
(1)the parents of a child are jointly responsible for having the child's birth registered under this Act (and must both sign the birth registration statement) but the Registrar may accept the birth registration statement from one of the parents if satisfied that is not practicable to obtain the signature of both parents on the birth registration statement.
(2)...
Section 16 of the BDMR Act sets out the period of time (I.e. 60 days) within which the birth of a child is to be registered.
Section 17(1) of the BDMR Act requires the respondent to register a birth by making an entry about the birth in the Register of Births, Deaths and Marriages, including the particulars required under the regulations. These particulars and the particulars for the purpose of section 14 are set out in clause 5 of the Births, Deaths and Marriages Registration Regulation 2006 (the Regulations). This information includes the full name, date of birth (or age), place of birth, occupation and usual place of residence of each parent of the child: see clause 5(1). Clause 5(2) and (3) of the Regulations provide as follows:
5 Registration of birth
(1)For the purposes of sections 14 (How to have the birth of a child registered) and 17 (Registration) of the Act, the following particulars are required:
(a) ...
(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 subclause (1).
(3) If the particulars supplied to the Registrar under section 14 of the Act specify that:
(a) a parent who is the father of the child wishes to be identified in the register as the father, or
(b) a parent who is the birth mother of the child wishes to be identified in the Register as the mother,
or both, the particulars entered in the Register under section 17 of the Act must identify the parent as the father or mother, as the case requires. This subclause does not limit the particulars which may be included in the Register.
Section 17(2) of the BDMR Act provides that if the particulars available to the respondent in regard to the registration of a birth are incomplete, then the respondent is to register the birth on the basis of incomplete particulars.
Section 18 of the BDMR Act makes provision for the inclusion of registrable information about the identity of a child's parent. That section provides as follows:
18Registration 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 the parent of the child, or
(f)the Registrar is entitled under the law (including the 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 19 makes provision for the inclusion of registrable information on the Register pursuant to court orders. That section relevantly provides as follows:
19Orders for registration of biological or inclusion of registrable information
(1)the District Court may, on application by an interested person or on its own initiative, order:
(a)..., 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)... , 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.
Section 20 makes provision for alterations of details after the birth of a child has been registered. That section provides as follows:
20Alteration 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.
At the time the applicant was born and his biological mother registered his birth the applicable law was the Registration of Births, Deaths and Marriages Act 1973. That Act has been repealed (the repealed Act). However, the relevant provisions of the repealed Act that applied at the time of the applicant's birth are discussed below.
The evidence
At my request, the respondent provided the tribunal with a copy of the document, from which the applicant's birth was registered. This document is described as a 'certificate of information'. The certificate, dated four days after the applicant's birth, is signed by the applicant's biological mother and is witnessed by a Justice of the Peace. The certificate contains details of the applicant (i.e. surname, christian name and other name, sex, date of birth, weight at birth and place of birth) and his biological mother. The initials 'N/A' appear against the particulars of the father and the marriage of the mother and the father. The certificate also included a pro-forma declaration and request for the father's name to be shown in the registration of the birth of the child where the parents are not married. That declaration and request required the signature of both parents. In the certificate signed by the applicant's biological mother no details were provided in this part of the certificate.
The certificate signed by the applicant's biological mother accords with sections 12 and 14 of the repealed Act. Under section 12 the applicant's biological mother was required to register his birth. Section 14 of the repealed Act had the effect of her being unable to request that the applicant's biological father's name be included in the Register. That section, which does not appear in the BDMR Act today, provided that no person, as father of an illegitimate child, was obliged to furnish particulars under that Act in regard to the birth of a child. The section also provided that no record was to be made in the Register of the particulars of a person as the father of an illegitimate child except as provided in that section. The exceptions were: (a) where a joint request to include the name of the father was made by the mother and the person who acknowledges himself to be the father; (b) at the sole request of the person who acknowledges himself to be the father and (c) where 'a court of competent jurisdiction has, under the law in force in New South Wales, made or given an order or judgment the making of which is dependent on the court being satisfied that that person is, or which adjudges or declares that person to be, the father of the child'. The exceptions had no application to the circumstances surrounding the applicant's birth and the registration of his birth.
Included in the documents provided by the respondent was a copy of the request, signed by the applicant's biological mother, to make arrangements for the adoption of the applicant. That request was dated the same day as the certificate of information for the purpose of registering the applicant's birth. The details in the certificate of information and the request for adoption appear to have been completed by a person other than the applicant's biological mother. There does not appear to be any dispute as to the correctness of these details. The witness to the signature of the applicant's biological mother on the request to make arrangements for adoption is the same justice of peace that is on the certificate of information. The address given by the justice of peace was that of the Catholic Adoption Agency through whom the applicant's biological mother had made her request for the applicant's adoption.
The documents provided by the respondent also contain a number of handwritten notes prepared by the applicant's biological mother for the purpose of the applicant's adoption. This included a natural parent history form. Under the heading 'FAMILY PUTATIVE FATHER' a line has been struck through the word 'PUTATIVE' and above it the word 'Definite' has been handwritten. Under this heading, details of the name, religion, age, date of birth, place of birth, racial background, marital status, and usual address of the father were provided. In response to the question about whether he knew of the pregnancy and whether he acknowledged the pregnancy the words 'yes' were entered. In response to the question as to whether he kept in touch and whether he was contributing towards the biological mother's expenses the words 'no' were entered. Details of the applicant's biological father's work history, hobbies and interest, education and the name and address of his parents were also included.
There is also a typed document headed 'BACKGROUND INFORMATION' of the applicant's biological mother and biological father. While the document does not name the biological mother or biological father, it appears to be a document prepared from the information on the natural parents' history form and used as part of the adoption papers for the applicant.
The applicant relied on correspondence he had received from his biological mother. In that regard he provided, in part, a response he had received from her in September 2010. In that response the applicant's biological mother explained that due to her health she was not comfortable with signing 'yet another form'. She believed she had provided all the necessary information at the time of the applicant's birth as to the name and identity of applicant's biological father. The applicant also provided a further letter his biological mother had written on 22 October 2010. In that letter she said the following:
I wish to further support [the applicant's] application to have his biological father added to his original birth certificate. The following is a true and correct account of the facts surrounding the biological parentage of [the applicant].
My name is ... my relationship with [the applicant's] father, ... covered the period of three years, during the latter part of the 1970's. During this time, a child was conceived in ... 1979. I approached his father regarding the situation and he verbally acknowledged his part in the conception of the child. While he appeared initially supportive, he withdrew his support during the pregnancy. At the time, I was supported by my family and continued the latter part of the pregnancy in Sydney, Australia.
Our son was born ... because of the lack of support from the father and society's lack of support towards, unwedded mothers, I chose what I deemed to be in the best interest of my child, and signed an adoption order in [month] 1980. The Catholic Adoption Agency, requested I also fill in a Strictly Confidential form and in it, I named myself, [name], as being the child's mother and [name] as being the father of the child, .... His adopting parents [name] adopted my child and his name was then changed to [name of applicant].
Over the preceding years, I had kept in contact with the Catholic Adoption Agency, in NSW and they with me. While being in contact with [the applicant], over a period of approximately ten years, I discovered that the original birth certificate did not have [the applicant's] biological father, [name] name on it.
[The applicant] has asked that I support his desire now to have [the name of his biological father] added to this. I consider it the right of every child to have an identity of their parentage, on his original birth certificate, and support therefore is the desire to have [the name of the applicant's biological father] added to this certificate. ...
The applicant also relies on a chain of emails between himself and a person with the name of his biological father, as identified by his biological mother in the 1980 adoption papers. The first email is dated 2 July 2010. The email was sent to the applicant from the person with the same name as the applicant's identified biological father. It stated that he had received notification from a specified funeral home that the applicant was making enquiries about the family background of a person that the applicant believed was his paternal grandfather. The email went on to say:
I understand you were adopted in Australia - can you advise who your mother (by birth) is, where you were adopted - and some detail about her side to enable me to help you in your research?
The applicant responded to this email later that evening. In his response he gave details of his age, where he was born, the date of his birth, the name of his biological mother, that he was adopted from New Zealand into Australia. He also said he played lots of sport, had fair hair and blue eyes.
Three-quarters of an hour after having sent his email, the applicant received a response from the person with the same name as his identified biological father. In that response the person said the following:
Hi [name of applicant]
OK ... I am your father .... Well your adopted parents are really the parents (mother & father you should know) that brought you up - they're special to you.
What's special to me is that [name of biological mother] and I had an amazing time together and that spanned several years - you are the product [in my eyes] of a very special relationship between two very special people that were seriously in love - ...
The email referred to a number of matters personal to the applicant and the person sending the email, which are not relevant to determining this application. It is my understanding that the applicant has had limited, if any, further contact with this person since the exchange of these emails. In any event, as I have already mentioned, the applicant has not informed this person of his application to have his original birth certificate amended.
Finally, the applicant provided a copy of the birth certificate of the person named by his biological mother in his adoption papers and the current profile of a person with the same name from the LinkedIn website. The details of date of birth, name of parents and where the parents were born in the birth certificate match those given by the applicant's biological mother about the applicant's biological father in the naturals parent history form she completed in 1980.
Consideration
There is no dispute that the relevant provision in determining this application is section 18 of the BDMR Act. That is, the respondent's power to alter the Register by including the name of the applicant's biological father is governed by the 7 circumstances prescribed in paragraphs (a) to (g) in that section. Only one of these prescribed circumstances need to be satisfied in order for the respondent to make the amendment requested by the applicant.
It is the respondent's contention that on the information before the tribunal, none of the prescribed circumstances are satisfied. On the other hand, the applicant contends that on the material before the tribunal the prescribed circumstances in paragraph (b), (c) and (f) of section 18 of the BDMR Act are satisfied. The applicant also asserted that by adding the name of his biological father to his original birth certificate would have no practical or legal effect on his biological father as his original birth certificate was nullified upon his adoption and the issue of a new birth certificate.
I fully understand the applicant's desire to have the name of his biological father added to the Register and his original birth certificate. There appears to be little doubt about the identity of his biological father. The applicant's biological mother provided this information at the time of his birth when she prepared the handwritten documentation for his adoption. However, these documents were not prepared for, or provided to the respondent for the purpose of registering the applicant's birth. In any event, as I have already mentioned, at the time of the applicant's birth, the relevant legislation (the repealed Act) provided that the name of the father of a child born to an unmarried couple could not be recorded in the Register unless the father made a declaration consenting to this or there was a judgement or order of a court that declared the person to be the father of the child. As neither of these occurred at the time of the applicant's birth, no record was made on the Register of his biological father.
Although the law has changed since that time, as pointed out above, even today, when a child is born in New South Wales, and the birth is registered, the inclusion of the name of the parents of the child in the Register is not automatic. The respondent's power to include information of this kind in the Register is set out in section 18 of the BDMR Act. The same section applies to applications made subsequent to the registration of the birth of a child for the inclusion of the name of the father, or the mother. An application that is made subsequent to the registration of a child's birth must also be considered as at the time the application is made.
There is no dispute that under paragraph 18(a) of the BDMR Act, a joint application by the biological parents of the applicant requesting that the name of the applicant's biological father be added to the Register would result in this information being added where the relevant evidence, as specified by the respondent, as to identity is provided. The form of such evidence I note is outlined on the respondent's website.
Paragraphs 18(b) and (c) of the BDMR Act are predicated on one of the parents of a child making an application to the respondent. It is accepted by the respondent that an application made by one of the parents of a child can request the inclusion of the identity of the other parent in the Register of the birth of the child to which the application relates. However, as the applicant's application to the respondent was made in his capacity as the child the subject of the application and not as a parent, these paragraphs have no application to his request. I note the respondent informed him of this in his initial response to the applicant's application.
On 13 April 2011, the legal representative of the respondent wrote to the tribunal advising that it had received a 'form entitled "Adding a Father's Details to a Birth Registration"' signed by the applicant's biological mother. The respondent requested that the matter be relisted for further directions. Accordingly, this application was listed for directions/a further short hearing on 2 May 2011. At this short hearing the applicant advised that he was aware that his biological mother had forwarded such an application to the respondent, but indicated he had no interest in receiving a copy of the 'form' his biological mother had provided as he believed he had already provided sufficient information for the respondent to include the name of his biological father on the Register.
The respondent informed the tribunal that the information in the 'form' received from the applicant's biological mother was insufficient to meet the additional requirement of paragraph 18(b) or (c) of the BDMR Act.
In this application, the tribunal's jurisdiction is limited to the decision the respondent made in regard to the applicant's application for the inclusion of the identity of his biological father in the Register: see section 38 of the Administrative Decisions Tribunal Act 1997 and section 56 of the BDMR Act. It does not extend to reviewing the decision the respondent has or has not made in regard to the application he received from the applicant's biological mother.
For completeness I wish to make some observations about the additional requirements contained in paragraphs 18(b) and (c) of the BDMR Act.
As I have mentioned, paragraph 18(b) has the additional requirement that the other parent (i.e. not the parent making the application) of the child cannot be joined because they are dead, cannot be found or 'for some other reason'. In my view 'some other reason' must be of a nature where it is not possible for the other parent to make a joint application. This would arguably include matters such as mental incapacity of that person. On the information before the tribunal, the person whom the applicant contends is his biological father is not dead. Nor are his whereabouts unknown and it cannot be said that it is not possible for him to make a joint application together with the applicant's biological mother. The fact that the applicant does not wish to raise this issue with the person he says is his biological father as he fears he might jeopardise the relationship he has developed with him, in my view, is not a 'reason' that would fall within paragraph 18(b) of the BDMR Act. In making this finding I do not in any way question the applicant's views. They are clearly genuinely held and I fully understand his position. However, the tribunal (as is the respondent) is required to apply the law as set out in section 18 of the BDMR Act.
The additional requirement in paragraph 18(c) is for the Registrar to be satisfied that the other parent does not dispute the correctness of the information that is sought to be included. This I note is not a requirement that the other parent consents to the inclusion of their name as a parent. What it requires is a finding that the parent in question does not dispute the correctness of the information that is sought to be included in the Register. While as a matter of practice this may require evidence amounting to the consent of the parent concerned, this is not the test. But in order for this to be satisfied there must be some communication with the person concerned whose information is to be included in the Register and an acknowledgement that he or she does not dispute that which is proposed to be included.
This leaves paragraph 18(h) of the BDMR Act, which refers to presumptions the Registrar is entitled to make under the law of New South Wales, another State or the Commonwealth as to the identity of a child's parents.
The applicant has pointed to a number of provisions in legislation of other States relating to the registration of births in those States. In my view none of these provisions are of any relevance to paragraph 18(h) of the BDMR Act.
Although not raised by the parties, I note that Part 3 of the Status of Children Act 1996 contains a mechanism for the establishment of the parentage of a child. That mechanism is set out in Division 2 of Part 3 of that Act (see sections 21 and 22). It includes making an application to the Supreme Court for a declaration of parentage. Persons entitled to make an application to the Supreme Court for a declaration of parentage is set out in section 21(1) of that Act.
Division 1 of Part 3 of that Act contains a number of rebuttable presumptions that can be relied upon for the purpose of proceedings for a declaration in the Supreme Court under sections 21 and 22. These presumptions include a presumption of parentage arising from marriage (section 9), a presumption of paternity arising from cohabitation (section 10), a presumption of paternity arising from registration of birth (section 11), a presumption of paternity arising from findings of a court (section 12) and a presumption of paternity arising from specified forms of acknowledgements (section 13). A person wishing to rely on a particular presumption would be required to provide evidence that establishes, on the balance of probabilities, each and every aspect of that presumption. As I mentioned, these presumptions are rebuttable (see section 15 of the Status of Children Act 1996). It is noted that section 24 of that Act provides that hearings for a declaration of parentage is to be in closed court and that the Supreme Court may adjourn the hearing of an application for a declaration so as to give any person whose interests would be affected by the declaration an opportunity to be heard.
There is nothing in the Status of Children Act 1996 to suggest that the presumptions are only applicable to proceedings before the Supreme Court. However, only the Supreme Court has the power to make a declaration in regard to parentage or paternity. Accordingly, it is difficult to see how the presumptions in the Status of Children Act 1996 could be construed as being ones that the Registrar is entitled to make as to the identity of a child's parents. It is unnecessary for me to determine this issue, as even if the presumptions were to be construed as being ones the Registrar is entitled to make or apply, they are rebuttable and the persons affected by such presumptions should, in fairness, be given an opportunity to be heard. In this application, the applicant is seeking that the name of the person whom he seeks to have added to the Register as his biological father is not given that opportunity. I also do not accept the applicant's contention that the inclusion of the identity of his biological father would have no affect on his rights or that of others, including his biological father. For example, section 8 of the Status of Children Act 1996 would suggest otherwise.
Once again I am not critical of the applicant. However, as I have already said the tribunal's power in regard to the applicant's application is no greater than that which applies to the respondent and for the reasons set out above, I find that the decision of the respondent is the correct and preferred decision. This does not mean that there are no avenues available to the applicant to have the identity of his biological father included in the Register of his birth. It is a matter for him as to whether he wishes to pursue these further.
Accordingly, the appropriate order is to affirm the decision of the respondent.
Decision last updated: 24 August 2011
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