AI and JN
[2006] FMCAfam 566
•26 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AI & JN | [2006] FMCAfam 566 |
| FAMILY LAW – Children – paternity – application to include father’s details on birth certificate – presumptions of paternity – cohabitation and acknowledgement by instrument – meaning of instrument. |
| Family Law Act 1975, ss.69Q, 69T, 69VA, 69ZT Births, Deaths and Marriages Registration Act 1995 (NSW), ss.14, 17, 18, 19(2) Births, Deaths and Marriages Registration Regulations 2006 (NSW), reg.5(1)(g) and (h) |
| S & M [2002] FMCAfam 217 Bernasconi & Toma [2006] FamCA 534 Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 Australian Capital Equity Pty Ltd v Beale (1993) 41 FCR 242 J&S Holdings v NRMA Insurance (1981) 57 FLR 385 |
| Applicant: | AI |
| Respondent: | JN |
| File Number: | SYM 6579 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 13 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2006 |
REPRESENTATION
| Applicant: | Mr AI appeared on his own behalf |
| Respondent: | No appearance |
DECLARATION AND ORDERS
The Court:
Declares under section 69VA of the Family Law Act, 1975 (Cth) that the Applicant is the father of the child:
(a)known and named in these proceedings as BN;
(b)whose mother is JAN (known as JN);
(c)who was born on or about 20 or 22 January 2004; and
(d)who died on or about 22 or 24 January 2004.
Orders under section 19(2) of the Births, Deaths and Marriages Act, 1995 (NSW) that the registrable information of the Applicant, as father, be registered by the New South Wales Registry of Births Deaths and Marriages against the birth of the child known and named in these proceedings as BN.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 6579 of 2006
| AI |
Applicant
And
| JN |
Respondent
REASONS FOR JUDGMENT
The application
This is an application arising in sad circumstances. AI (“the Applicant”) seeks orders that the New South Wales Registry of Births, Deaths and Marriages (“the NSW BDM Registry”):
a)add the Applicant’s name to the Birth Certificate of BN (“BN’s Birth Certificate”); and
b)issue the Applicant with a certified copy of the Birth Certificate (“the Application”).
No appearance by the respondent
The Respondent, JN, did not appear before the Court. In a letter to the Court dated 18 September 2006 (JN’s Letter) she wrote:
I am in receipt of an Application for Final Orders, which relates to a child born of myself and the Applicant. I advise that my child “BN” was born on 20/1/04 and died on 22/1/04. She was cremated … on 2/2/04 and her ashes were scattered in the sea.
I find it is too stressful and upsetting to appear before the Court to answer this application. There is a lengthy history of harassment and some domestic violence issues involving the Applicant and I do not wish to have any further contact with him in any circumstances.
I have never had any problem acknowledging that the Applicant is the father of “BN” and should the Court find it appropriate to make Orders declaring this to be the case I do not object to these Orders being made.
Please understand the particular circumstances of this matter and excuse me from attendance before the Court.
I am able to accept JN’s Letter into evidence: s.69ZT, Family Law Act, 1975 (Cth) (“Family Law Act”). I note that there is no objection to the orders sought by the Applicant.
BN
The issue in question relates to a child, seemingly known, and certainly named in these proceedings, as BN. BN was born on or about 20 or 22 January 2004. She passed away two days later on or about 22 or 24 January 2004 (See Applicant’s Affidavit of 31 August 2006 (“Applicant’s Affidavit”) para.1 and JN’s Letter). I say “on or about” because I note that there is a discrepancy between the dates in the Applicant’s Affidavit, and the dates in JN’s Letter.
Applicant seeks death certificate
The Applicant has sought to obtain confirmation of BN’s death and any funeral arrangements by applying to the NSW BDM Registry for a Death Certificate. His request was denied on the basis that he is not registered as father on BN’s Birth Certificate.
Acknowledgment of paternity
The Applicant’s Affidavit, states:
That the mother of BN (JN) has refused to acknowledge me as BN’s father and has declined to confirm her death or any funeral details.
By reason of JN’s Letter that refusal to acknowledge no longer appears to be the case.
The registration of births in NSW
The NSW BDM Registry is subject to the Births, Deaths and Marriages Registration Act 1995 (NSW) (“the NSW BDM Act”) under which the birth of a child in NSW must be registered. Under ss.14 and 17 of the NSW BDM Act registration must contain the registrable information set out in reg. 5(1)(g) and (h) of the Births, Deaths and Marriages Registration Regulations 2006 (NSW) which is as follows:
(g)the full name, occupation and (at the time of delivery) usual place of residence of the father of the child,
(h) the date of birth (or age) and place of birth of the father of the child.
Under s.18 of the NSW BDM Act:
The Registrar must not include registrable information about the identity of a child’s parent in the Register unless:
(a)the father and mother 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.
Further, under s.19(2) of the NSW BDM Act:
19(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.
Presumptions of paternity
Certain presumptions of paternity are created by Part VII, Division 12, Subdivision D of the Family Law Act. The relevant provisions and their effect are detailed below.
Cohabitation
The Application states that the parties commenced living together on 31 December 2001 and separated on 24 December 2003. Section 69Q of the Family Law Act provides for a presumption of paternity arising from cohabitation as follows:
If:
(a) a child is born to a woman; and
(b)at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabitated with a man to whom she was not married;
the child is presumed to be a child of the man.
The Application itself is not admissible evidence, and there is no other admissible evidence of cohabitation. I find that the information provided to the Court does not give rise to the presumption under s.69Q.
Acknowledgment
Section 69T of the Family Law Act provides for a presumption of paternity arising from acknowledgment as follows:
If:
(a)under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, a man has executed an instrument acknowledging that he is the father of a specified child; and
(b)the instrument has not been annulled or otherwise set aside; the man is presumed to be the father of the child.
Applicant’s affidavit
The Applicant’s Affidavit states in para. 1:
That I am the father of BN…
Is an affidavit an executed instrument?
The “instrument” referred to in s.69T of the Family Law Act is not a legislative or quasi-legislative instrument of the type discussed in Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at pp.299-300 per French J, or Australian Capital Equity Pty Ltd v Beale (1993) 41 FCR 242. That much is clear from the terms of s.69T which talk of a “man”, and not a legislature, governmental or public authority, executing the instrument. The “man” referred to is obviously the person claiming to be the father, in this case, the Applicant.
If an affidavit is an “instrument” (as to which, see below), then the instrument has been executed by the Applicant signing the affidavit.
An affidavit, properly sworn, is a complete document lacking nothing, and therefore executed: J & S Holdings v NRMA Insurance (1981) 57 FLR 385 at p.401.
In S & M [2002] FMCAfam 217 Brown FM at para.16 appears to infer the presumption under s.69T from an affidavit of the Applicant where paternity was not contested:
As I have already indicated, Mr S has signed an affidavit on 22 May 1997 indicating that he does not contest the paternity of the child…
In Bernasconi & Toma [2006] FamCA 534 at paras. 48-50 Le Poer Trench J considered whether an affidavit might be an instrument for the purposes of s.69T, and states at para. 50:
If instrument for the purposes of s.69T is given a wide definition it may encompass executed documents such as an affidavit.
However, His Honour did not make a finding on this issue due to the circumstances of the case.
The answer to whether an affidavit is an instrument lies in the plain meaning of the word “instrument”. The Oxford English Dictionary, 2nd Edn. (Oxford: Clarendon Press, 1989), Vol VII, p.1051 relevantly defines “instrument” as:
Law. A formal legal document whereby a right is created or confirmed, or a fact recorded. (emphasis added)
An affidavit is clearly a formal legal document.
In this case, the Applicant’s Affidavit evidence is that the Applicant is the father of the child known and named in these proceedings as BN. The Applicant’s Affidavit evidence is unchallenged in these proceedings. It thus stands as a record of the fact that he is the father of BN. An affidavit, in this case the Applicant’s Affidavit, is therefore an “instrument” for the purposes of s.69T of the Family Law Act.
In the circumstances of this case it is my view that there is a s.69T presumption arising from the statement made in the Applicant’s Affidavit set out in para.14 above.
Evidence rebutting the presumption
The presumption under s.69T of the Family Law Act is rebuttable. The only other evidence in the case is also the Applicant’s Affidavit, where, in para.2, the Applicant says:
That the mother of BN (JN) has refused to acknowledge me as BN’s father.
That is evidence of a refusal to acknowledge, not a denial, and is insufficient to rebut the presumption arising under s.69T of the Family Law Act in this case. In any event, having regard to JN’s Letter, there is no longer a refusal to acknowledge the Applicant as father of the child BN.
Having regard to the presumption of paternity arising under s.69T of the Family Law Act, I am persuaded that the Applicant is the father of the child BN, and so find.
Declaration and order
In furtherance of the above finding, I feel that this is an appropriate case to make a declaration of paternity pursuant to s.69VA of the Family Law Act, and I therefore declare that the Applicant is the father of the child:
a)known and named in these proceedings as BN;
b)whose mother is JAN (known as JN);
c)who was born on or about 20 or 22 January 2004; and
d)who died on or about 22 or 24 January 2004.
I make an order under s.19(2) of the NSW BDM Act that the registrable information of the Applicant be registered by the NSW BDM Registry against the birth of the child known and named in these proceedings as BN.
It does not appear to me that I have the power to order the NSW BDM Registry to provide the Applicant with a certified copy of BN’s Birth Certificate, but it follows from this order that once the registrable information is registered the Applicant should be able to be issued a certified copy of BN’s Birth Certificate upon application to the NSW BDM Registry.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date:
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