Ciavarella v Registrar of Births, Deaths and Marriages Victoria
[2025] VSC 543
•4 September 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2024 05429
BETWEEN:
| ANTONIA CIAVARELLA | Plaintiff |
| v | |
| REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES VICTORIA | Defendant |
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JUDGE: | Goulden AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 May 2025 |
DATE OF JUDGMENT: | 4 September 2025 |
CASE MAY BE CITED AS: | Ciavarella v Registrar of Births, Deaths and Marriages Victoria |
MEDIUM NEUTRAL CITATION: | [2025] VSC 543 |
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ADMINISTRATION AND PROBATE – Application for declaration of relationship between a person and a child and to direct the correction of a birth record – Status of Children Act 1974 (Vic), s 10 – Births, Deaths and Marriages Registration Act 1996 (Vic), s 43 – Standard of proof – Reliance on circumstantial evidence to establish relationship – Release from implied undertaking to rely on affidavit adduced in another proceeding – Reliance on hearsay evidence – Absence of DNA evidence.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Moloney | Dignity Legal |
| No appearance for the Defendant |
TABLE OF CONTENTS
Introduction
Factual Background
Legislative Framework
SOC Act
BDM Act
The Plaintiff’s Case
The standard of proof
Admissibility of evidence
Release from implied undertaking
Hearsay evidence
The absence of DNA evidence
The circumstantial evidence
Disposition
HER HONOUR:
Introduction
By originating motion filed on 11 October 2024, the plaintiff seeks, amongst other orders:
(a)a declaration, pursuant to s 10 of the Status of Children Act 1974 (Vic) (‘SOC Act’) or the Court’s inherent jurisdiction, that the relationship of father and child existed between the plaintiff and Carmelo Giaquinta (now deceased); and
(b)an order, pursuant to s 43 of the Births, Deaths and Marriages Registration Act 1996 (Vic) (‘BDM Act’) or the Court’s inherent jurisdiction, directing the Registrar of Births, Deaths and Marriages to correct the information in the Register to delete particulars that identify Salvatore Tesoriero (now deceased) as the named father of the plaintiff, and to add particulars that identify Carmelo Giaquinta as the named father of the plaintiff.
The originating motion is supported by the following affidavits:
(a)the Affidavit of Ms Antonia Ciavarella, the plaintiff, affirmed on 11 October 2024 (‘First Ciavarella Affidavit’);
(b)the further Affidavit of the plaintiff affirmed on 20 December 2024;
(c)the second further Affidavit of the plaintiff affirmed on 14 March 2025;
(d)the Affidavit of Mr Giovanni Di Benedetto affirmed on 4 December 2024 (‘Di Benedetto Affidavit’); and
(e)the Affidavit of Ms Antonietta Starvaggi affirmed on 20 December 2024 (‘Starvaggi Affidavit’).
The defendant has indicated their intention, by letter dated 10 December 2024, to not take an active part in this proceeding and to abide by the decision of the Court. The defendant has sought to be heard only if a costs order is contemplated against them. For this reason, the defendant did not appear at the trial. Given the position of the defendant, the Court requested that the plaintiff file submissions addressing whether there are persons who should be given notice of this proceeding and whether a contradictor needs to be appointed by the Court.[1] The plaintiff filed her submissions on 13 December 2024. The Court accepts that the putative biological cousins and aunt of the plaintiff have been made aware of the proceeding and are kept updated about its progress. None of them sought to participate. Given the nature of the relief sought in the proceeding, in which the plaintiff alone has an interest, in circumstances where the other directly affected persons are deceased, the plaintiff bears the onus in accordance with the civil standard, and potentially interested persons have been informed of the proceeding but have chosen not to participate, I am satisfied that no further contradictor is required.
[1]Order of Lorenz JR in Ciavarella v Registrar of Births, Deaths and Marriages Victoria (Supreme Court of Victoria, S ECI 2024 05429, 28 November 2024) .
I heard the trial of this proceeding on referral from Gray J pursuant to the orders made on 28 May 2025. For the reasons that follow in this judgment, I will make the declaration and orders sought by the plaintiff.
Without intending any disrespect, I have from time to time used first names in this judgment in order to distinguish between persons with the same family names.
Factual Background
The plaintiff’s mother, Rosaria Giaquinta (‘Rosaria’), was born in Italy in 1929. She migrated to Melbourne in the 1950s. Shortly after her arrival in Australia, she entered an arranged marriage with Mr Salvatore Tesoriero (‘Mr Tesoriero’), who was about 18 years her senior.
The plaintiff’s older sister, Maria, was born in 1956. Also in 1956, Rosaria leased a room in the family’s home to Carmelo Giaquinta (‘Carmelo’), who was also an Italian migrant. Rosaria and Carmelo became close. In 1957, Carmelo suggested that he and Rosaria start a business together, a fruit shop, which they bought and operated. Mr Tesoriero was initially named as a partner in the business until 1963.
At some stage, Carmelo and Rosaria developed an intimate relationship.
In 1959, the plaintiff was born. Her paternity is the subject of this proceeding. Her birth certificate names Mr Tesoriero as her father.
Around 1960, Carmelo’s brother, Salvatore Giaquinta (‘Uncle Sam’), arrived in Australia and moved in with the family.
By 1963, Rosaria’s marriage to Mr Tesoriero had broken down. He was also experiencing ill health and by deed dated 1 May 1963, he assigned his partnership interest in the fruit shop business to Rosaria.
The marriage between Rosaria and Mr Tesoriero formally ended in 1972. Mr Tesoriero had already moved out of the family home. The plaintiff did not see him again and heard years later that he had passed away.
In 1974, Carmelo and Rosaria married.
In 1976, the plaintiff’s surname was changed by deed poll to ‘Giaquinta’, being Carmelo’s surname.
In 1990, Carmelo passed away leaving his estate to Rosaria. Rosaria passed away in 2017.
In 2023, Carmelo’s other brother, Giuseppe Giaquinta (‘Giuseppe’), who resided in Italy, passed away leaving his estate under Italian law to be distributed to his surviving relatives. The plaintiff claims to be his niece.
The plaintiff brings this proceeding for two reasons:
(a)firstly, she seeks to correct the public record to accurately identify her biological father, and to have a birth certificate extract that clearly establishes that fact; and
(b)secondly, to use the Court’s declaration and a corrected birth certificate to confirm her entitlement to her share in Giuseppe’s estate.
The plaintiff submits that, on advice of an attorney in Italy, she will be in a position to establish her potential entitlement to Giuseppe’s estate under Italian law if she obtains the orders sought in the originating motion.
Legislative Framework
SOC Act
The plaintiff first seeks a declaration under s 10 of the SOC Act that the relationship of parent and child existed between her and Carmelo. That section provides as follows:
Application to Supreme Court for declaration of parentage
(1) Any person (the first person) who—
(a)claims that any named person is a parent of the first person's child; or
(b)claims that a relationship of parent and child exists between the first person and any other named person; or
(c)has a proper interest in the result who wishes to have a determination whether the relationship of parent and child exists between two named persons—
may apply to the Supreme Court for a declaration of parentage and if it is proved to the satisfaction of the Court that the relationship exists the Court may make a declaration of parentage whether or not the parent or the child or both of them are living or dead.
The section gives exclusive jurisdiction to make parentage declarations to this Court and establishes the burden and onus of proof for any application to obtain the declaratory relief, namely, proof by the applicant for the order in admissible form that ‘satisfies’ the Court that the relationship of parent and child exists.
Relevant to the consideration of s 10 are the following sections of the SOC Act.
(a)Section 3(1), which provides that the parental relationship shall be determined irrespective of whether the mother and father are or have been married to each other.
(b)Section 5, which contains a rebuttable presumption that:
A child born to a woman during her marriage…in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband…
This section must be read to refer to the husband at the time of the child’s birth.
(c)Section 8(1), which provides that the birth certificate is prima facie evidence of the identity of the child’s parents. This prima facie evidence can be rebutted by contrary evidence.
These provisions of the SOC Act have application to the plaintiff’s proceeding because:
(a)although Carmelo was not married to Rosaria at the time of the plaintiff’s birth, s 3(1) makes clear this is irrelevant;
(b)the plaintiff was born when Mr Tesoriero was married to Rosaria and, therefore, the presumption under s 5 is that he is her father unless rebutted by contrary evidence; and
(c)Mr Tesoriero is named as the plaintiff’s father on her birth certificate, which provides prima facie evidence, under s 8(1), that he is her father unless the record is corrected.
BDM Act
If an order is made under s 10 of the SOC Act as sought, there is the consequential issue of correcting the Register. The objects of the BDM Act include the maintenance of registers for recording and preserving information about births, among other things.
At the time of the plaintiff’s birth in 1959, the then current version of the BDM Act required a parent (mother or father), at the time of registering a birth, to provide information including the mother’s details and the father’s name, surname, age, birthplace and occupation.[2] Mr Tesoriero, Rosaria’s husband at the time, was named as the plaintiff’s father on her birth certificate.
[2]Registration of Births Deaths and Marriages Act 1958 (Vic) s 10, sch 2.
Section 43 of the BDM Act allows for the correction and amendment of the Register. Relevantly for present purposes, s 43(1) provides:
The Registrar may correct the Register –
(a) to reflect a finding made on inquiry under [s 42]; or
(b)to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.
Section 43(2) requires the Registrar to correct the Register ‘if required by a court’. Correction includes adding, altering or deleting particulars contained in an entry. It is important to note that the reference to a court in s 43(2) is a lowercase ‘court’ and not the defined term ‘Court’ which means the County Court. Accordingly, this Court may direct the defendant to correct the particulars of the plaintiff’s father on the Register.
The Plaintiff’s Case
The plaintiff applies under s 10(1)(b) of the SOC Act, being a person who claims that a relationship of parent and child exists between her and another person. The plaintiff claims that she is the biological daughter of Carmelo. To succeed on her application, the plaintiff must adduce evidence to satisfy the Court that the relationship exists.
The standard of proof
The standard of proof that applies is the ordinary civil standard, being proof on the balance of probabilities. Historically, there was a debate over whether, given the serious nature and consequences of a paternity declaration, a higher standard, such as proof beyond reasonable doubt, or a state of satisfaction consistent with Briginshaw v Briginshaw[3] ought apply. In Farnell v Penhalluriack (No 2),[4] Bell J confirmed that the ordinary civil standard applies. That authority has been followed in subsequent decisions of this Court.[5]
[3]Briginshaw v Briginshaw (1938) 60 CLR 336.
[4][2008] VSC 214, [4].
[5]Re the Estate of Ronald Della Vedova [2012] VSC 341, [20]; State Trustees Limited v Valentin Jeklar & Ors: IMO the estate of Franc Jeklar, deceased [2019] VSC 267, [61]–[62] (‘Jeklar’); Re the Estate of Leslie Norman John Sholl [2024] VSC 536, [36].
Admissibility of evidence
There are two issues that arise in this proceeding concerning the admissibility of the plaintiff’s evidence as set out below.
Release from implied undertaking
The plaintiff exhibited to the First Ciavarella Affidavit, as Exhibit AC-2,[6] an affidavit sworn by her sister Maria de Vito on 24 May 2018 (‘de Vito Affidavit’) and filed in a separate proceeding.[7] By paragraph 3 of her originating motion, the plaintiff sought leave to rely on that affidavit in this proceeding. During the hearing, I refused that application for leave, indicating that I would briefly set out my reasons for so doing in my judgment.
[6]Exhibit AC-2, labelled as such in the substantive part of the First Ciavarella Affidavit is incorrectly labelled as CV-2 on the exhibit sheet. All the exhibit sheets to the First Ciavarella Affidavit contain a similar error.
[7]The proceeding numbered S CI 2018 00347 between Antonia Ciavarella and Maria De Vito (in her capacity as Executor of the estate of Rosaria Giaquinta).
The plaintiff conceded through her Counsel at the hearing that she has not sought a release from the implied undertaking in the other proceeding[8] so as to permit her to use the de Vito Affidavit in this proceeding. There was no evidence adduced, nor any submission made, based upon which the Court might conclude that the de Vito Affidavit had been produced voluntarily, or that the affidavit had been read or relied upon in the other proceeding so that no release was required. In the absence of Court orders granting her release from the implied undertaking in the other proceeding, the plaintiff cannot rely on the de Vito Affidavit in this proceeding. Accordingly, Exhibit AC-2 to the First Ciavarella Affidavit is inadmissible, and has not formed part of the evidence to which I have had regard in this proceeding.
[8]A party seeking to use documents relied upon in the first proceeding, for the purposes of the second proceeding, must seek a release from the implied undertaking by making an application for release in the first proceeding: Crest Homes Plc v Marks [1987] 1 AC 829; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576, 577; Ashby v Slipper (No 2) (2016) 343 ALR 351, 353 [9].
Hearsay evidence
The plaintiff acknowledges in her submissions that the affidavit material filed in the proceeding contains evidence of previous representations made by other persons which the plaintiff seeks to use to prove the existence of facts asserted by those representations. In other words, the plaintiff seeks to rely on hearsay evidence. Such evidence would ordinarily be excluded under s 59 of the Evidence Act 2008 (Vic) (‘Evidence Act’). Examples of the hearsay evidence the plaintiff seeks to adduce include:
(a)in the First Ciavarella Affidavit, the plaintiff deposes that her mother said to her:
”[b]y the way, do you know he is your dad?” while gesturing toward Carmelo.[9]
[9]First Ciavarella Affidavit [12].
(b)
in the First Ciavarella Affidavit, the plaintiff deposes to the submission of
Mr Tesoriero’s solicitor that is recorded in the transcript of proceedings brought by Mr Tesoriero against Carmelo and Rosaria for unpaid wages in the Industrial Appeals Court of Melbourne dated 8 November 1971 (‘IAC Transcript’) that:
shortly after Mr. Tesoriero executed the purported assignment of his share of the business, he was ordered out of the matrimonial bedroom and his place was taken over by Carmelo.[10]
(c)in the Di Benedetto Affidavit, Mr Di Benedetto deposes that Carmelo said to him:
Giovanni, Rosaria is pregnant with my child.[11]
(d)in the Starvaggi Affidavit, Ms Starvaggi deposes that during her visit to her father in hospital in August 2024, her father said words to the effect that:
Rosaria and Carmelo confided in him that Antonia was Carmelo’s daughter. He said this was a social scandal at the time; it was an admission of adultery which was frowned on in those days.[12]
[10]First Ciavarella Affidavit [11], Exhibit AC-4.
[11]Affidavit of Giovanni Di Benedetto affirmed on 4 December 2024, [12] (‘Di Benedetto Affidavit’).
[12]Affidavit of Antonietta Starvaggi affirmed on 20 December 2024, [17] (‘Starvaggi Affidavit’) .
There are certain relevant exceptions to the rule against hearsay upon which the plaintiff relies, namely that:
(a)the hearsay rule does not apply where the evidence is relied upon for a non-hearsay purpose;[13] and
(b)in civil proceedings, the hearsay rule does not apply to exclude hearsay evidence that is ‘first-hand hearsay’ where the maker of the representation is unavailable and notice has been given (or dispensed with).[14]
[13]Evidence Act 2008 (Vic) s 60 (‘Evidence Act’).
[14]Evidence Act ss 63, 67.
The plaintiff does not shy away from her failure to give notice under s 67 of the Evidence Act in respect of any of the hearsay evidence she seeks to rely upon. However, she submits that the Court should dispense with the requirement to give notice as it is empowered to do under s 67(4) of the Evidence Act. She submits that there is no party to whom notice should have been given because the first defendant does not seek to participate in the proceeding. I accept that in such circumstances, there is no prejudice caused to the other party by the failure to give notice,[15] and accordingly, the exception in s 63 may be applied despite its non-provision.
[15]Quintano v BW Rose Pty Ltd [2008] NSWSC 1012, [6].
Clause 4 of Part 2 of the Dictionary section contained within the Evidence Act defines ‘not available’ for the purposes of s 63 as including where the maker of a representation is dead, or the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability. The plaintiff, in her affidavits, relies for a hearsay purpose on representations made to her by Rosaria, who is now deceased and unavailable for the purposes of s 63 of the Evidence Act. The plaintiff also relies on the affidavit of Mr Di Benedetto, who gives evidence of statements made to him by Carmelo (who is also deceased) and Rosaria, for a hearsay purpose. Given both Rosaria and Carmelo are deceased, the evidence of their representations is admissible.
Furthermore, the plaintiff seeks to rely for a hearsay purpose on Ms Starvaggi’s evidence of representations made to her by her father when she visited him in hospital in August 2024. Ms Starvaggi deposes that her father has Parkinson’s disease which affects his speech and mobility. The plaintiff submits that Ms Starvaggi’s father is therefore not available to give evidence because he is mentally or physically unable to give evidence. Ms Starvaggi deposes that she sought a letter from her father’s doctor to confirm her father was unable to give evidence, however, the doctor told Ms Starvaggi that a geriatrician would be required to make that assessment. In my view, in the absence of a medical assessment confirming his mental or physical inability to give evidence, the Court cannot be satisfied that Ms Starvaggi’s father is not available for the purposes of s 63 of the Evidence Act. Accordingly, the evidence given by Ms Starvaggi about the representations her father made to her is inadmissible hearsay and I have, therefore, not relied upon that evidence in this proceeding.
The plaintiff’s reliance on the IAC Transcript in order to prove the truth of the facts asserted by the representations of each maker that it records is also problematic. The IAC Transcript is second-hand hearsay, as it is a document that records in writing the representations made orally by the various witnesses in the Industrial Appeals Court proceedings. At the hearing, the plaintiff submitted that the IAC Transcript, obtained from the Public Records Office, is admissible as a ‘public document’, without addressing the Court as to why it is a ‘public document’ in accordance with the definition of that term contained in the Dictionary to the Evidence Act. Regardless, even if it is a public document, that does not provide an exception to the rule against hearsay. None of the exceptions to the hearsay rule appear to apply and the plaintiff did not make any submission to the contrary. Section 156 of the Evidence Act facilitates proof of the contents of a public document by the production of certified extracts, however, it does not provide an exception to the hearsay rule. Therefore, in so far as the IAC Transcript is relied upon to prove the truth of the representations of each witness recorded therein, for example, the statements of Mr Tesoriero that he had been banished by Rosaria and Carmelo from the matrimonial bedroom to prove that he was banished from the matrimonial bedroom, it is inadmissible.
The absence of DNA evidence
In modern times, these applications are often supported by DNA evidence. The plaintiff does not adduce DNA evidence. She has explained the reasons why she cannot easily or reliably do so in the First Ciavarella Affidavit. Put simply:
(a)all of the relevant people who could have provided samples are long deceased;
(b)in the case of Carmelo and Uncle Sam, they each died over 20 years ago, so the viability of DNA samples that might be able to be obtained from their remains is uncertain; and
(c)obtaining samples from either of their remains would be an expensive and time consuming process, involving exhumation and testing, with a low likelihood of obtaining viable samples and receiving conclusive results from those samples.
The absence of DNA evidence is not fatal to an application for a declaration of paternity. In Jeklar, Daly AsJ observed that s 10 of the SOC Act has existed for far longer than the development and use of reliable DNA testing and evidence.[16] Consistently with Jeklar, the absence of such evidence does not preclude a declaration as to paternity where other circumstantial evidence exists that is sufficient to satisfy a Court to make the declaration.
[16]Jeklar [104].
The circumstantial evidence
The circumstantial evidence upon which the plaintiff relies concerning the existence of a biological relationship between the plaintiff and Carmelo is the admissible evidence contained in her three affidavits, and in the affidavits of Ms Starvaggi, the plaintiff’s cousin, and Mr Di Benedetto, who was a friend of Carmelo.
The plaintiff’s birth certificate names Mr Tesoriero as her father, which is prima facie evidence of that fact. Related to this is the rebuttable presumption as to his paternity arising from the fact that Mr Tesoriero was married to Rosaria at the time of the plaintiff’s birth. However, the plaintiff deposes that her mother told her that she had felt societal pressure to hide the fact that Carmelo was actually the plaintiff’s father, and that is why she listed Mr Tesoriero as her father on the plaintiff’s birth certificate. The birth certificate is only signed by Rosaria as the informant, and not by Mr Tesoriero. I accept that Rosaria would have faced significant societal pressure, at the time of the plaintiff’s birth in 1959, to hide that she was the child of a person who was not her husband. That conflict with the social mores of the time is laid bare in the IAC Transcript.[17] The IAC Transcript records the comments of the President in respect of an objection taken to the evidence then being given by Carmelo as follows:
MR STRATHMORE: Then [Mr Tesoriero] took ill? --- Yes
In 1963 he assigned his share in the business to his wife? --- Yes
You became a partner to his wife? --- Yes
A partner in business? --- Yes
And also sleeping partner? --- No.
MR GURVICH: I object, Your Honour. I do not see what relevance this material has.
THE PRESIDENT: It affects my mind as to his credit, I assure you.[18]
This comment[19] shows the potential adverse impact of the alleged infidelity on Carmelo’s credit as a witness in the unpaid wages proceeding in 1971. I doubt that alone would be a reason for impugning anyone’s credit in proceedings in any Court conducted in 2025.
[17]First Ciavarella Affidavit, Exhibit AC-4.
[18]First Ciavarella Affidavit, Exhibit AC-4, 71.
[19]Reference to the making of the comment is not a hearsay use of the contents of the IAC Transcript.
There is sufficient other evidence that demonstrates there was an intimate relationship between Carmelo and Rosaria that they felt pressure to hide until after Rosaria’s divorce in 1972 and their marriage in 1974. The plaintiff deposes to the existence of the intimate relationship, which is principally based on matters conveyed to her by her mother. Those matters, which follow, are largely corroborated in the evidence given by Mr Di Benedetto and Ms Starvaggi.
(a)The relationship between Rosaria and Mr Tesoriero was an unhappy one, with Mr Tesoriero frequently absent from the family home and business (sometimes for weeks).
(b)Carmelo first came into Rosaria’s life in 1956 when he rented a room in the house Rosaria lived in with Mr Tesoriero.
(c)Carmelo rapidly became a central figure in Rosaria’s life, providing emotional and household support, especially given Mr Tesoriero’s long absences.
(d)About two years before the plaintiff’s birth in 1959, Rosaria and Carmelo started the fruit shop business, and spent increasing amounts of time together.
(e)By 1963, Mr Tesoriero had moved into a separate bedroom from Rosaria’s. At around the same time, he assigned his interest in the fruit shop business partnership to her.
(f)Rosaria confided in her family and friends about her relationship with Carmelo, including that the plaintiff was his child.
(g)Rosaria believed the plaintiff’s likeness to Carmelo would make it obvious ‘what I have done’.[20]
(h)After 1972, the plaintiff did not see Mr Tesoriero again.
[20]First Ciavarella Affidavit [13].
In his affidavit, Mr Di Benedetto deposes to his friendship with Carmelo, which developed after Mr Di Benedetto’s arrival in Australia. Mr Di Benedetto would frequently visit the fruit shop, which was a popular meeting place for Italian migrants to gather. Mr Di Benedetto deposes that Carmelo had informed him that he and Rosaria lived together in the fruit shop, and that she had left her husband. He further deposes that in around 1958, Carmelo said to him:
Giovanni, Rosaria is pregnant with my child.[21]
He deposes that Rosaria likewise told him at around the same time that she was pregnant with Carmelo’s child. Mr Di Benedetto says that he observed a strong physical likeness between the plaintiff and Carmelo. He deposes that it was common knowledge in the Italian community that the plaintiff was Carmelo’s daughter.
[21]Di Benedetto Affidavit [12].
The plaintiff deposes that when she was about six years old, her mother told her that Carmelo was her biological father in his presence, to which she replied, unhesitatingly, ‘yes I know’.[22] The plaintiff deposes that given the resemblance between her and Carmelo, Rosaria became unable to hide that he was her father and it ‘became known that I was Carmelo’s daughter’,[23] with Carmelo’s family and friends openly acknowledging it. The plaintiff exhibits the deed poll executed by her mother on 26 May 1976 to change the plaintiff’s surname to ‘Giaquinta’. The plaintiff also deposes that her mother attempted to fix her birth certificate in 1976 so that Carmelo’s paternity was correctly acknowledged, however, for reasons not exposed on the evidence, this did not in fact occur.
[22]First Ciavarella Affidavit [12].
[23]First Ciavarella Affidavit [13].
The plaintiff deposes that Carmelo was a constant, loving presence in her life from her earliest memories. She deposes to feeling favoured over her sister by Carmelo and his family. It is apparent that he acted like a father to the plaintiff, for example, when she moved into her own home, he visited weekly and brought her things and provided financial support, including by paying her bills occasionally. The plaintiff felt a close connection with Carmelo that she did not feel with Mr Tesoriero. Given their close relationship, she cared for him right up until he passed away from cancer in 1990.
Ms Starvaggi also gives evidence of the closeness of the relationship between the plaintiff and Carmelo, which she observed as a regular visitor to the plaintiff’s family home during her childhood. She deposes that from her observations she always believed and understood that Carmelo was the plaintiff’s father. Although she recalls Rosaria, Mr Tesoriero and Carmelo all living together, when she was about seven or eight years old, it became apparent to her that Mr Tesoriero had left the home. Ms Starvaggi gives evidence that she frequently heard Rosaria say things to the plaintiff like ‘go ask your father’ or ‘get your father’s wine’[24] and that she understood Rosaria to be referring to Carmelo. She also deposes that the plaintiff would speak to Carmelo, calling him ‘papa’.[25]
[24]Starvaggi Affidavit [10], [12].
[25]Starvaggi Affidavit [10].
The plaintiff also deposes to her close relationship with Uncle Sam, Carmelo’s brother. She deposes that she was introduced to him as Carmelo’s daughter and called him Uncle. When Uncle Sam passed away in 2005, he bequeathed to the plaintiff a life interest in his properties with the remaining interests to pass to her children. The plaintiff says that her mother told her that Uncle Sam had left his estate to the plaintiff because she, and not Maria, was his ‘blood relative’.[26]
[26]First Ciavarella Affidavit [21].
I am satisfied that the above evidence establishes, on the balance of probabilities, that Carmelo, and not Mr Tesoriero, was the plaintiff’s father. Mr Tesoriero’s inclusion in the birth certificate as the plaintiff’s father is explained by the significant societal pressure that would have been felt by Rosaria to hide her infidelity at the time of the plaintiff’s birth. Accordingly, the presumption that Mr Tesoriero is the plaintiff’s father, because he was married to Rosaria at the time of her birth, is rebutted by the circumstantial evidence relied upon which establishes the plaintiff’s biological relationship with Carmelo, especially the evidence of Mr Di Benedetto as to the statements made to him by both Carmelo and Rosaria about the plaintiff being their child. Ms Starvaggi’s evidence also corroborates the evidence given by the plaintiff. Each of Mr Di Benedetto and Ms Starvaggi are disinterested in the outcome of the proceeding. The evidence of all three witnesses is unchallenged, with the plaintiff’s putative Italian relatives having been given notice of the proceeding.
Disposition
For the reasons set out above, I am satisfied that the evidence adduced by the plaintiff proves, on the balance of probabilities, that Carmelo is her father. I will accordingly declare that Carmelo is the plaintiff’s father pursuant to s 10 of the SOC Act. I will also make an order directing the Registrar, under s 43 of the BDM Act, to correct the information on the Register by deleting particulars that identify Mr Tesoriero as the plaintiff’s father, and by adding particulars that identify Carmelo as the father of the plaintiff.
The plaintiff will bear the costs of the proceeding.
The plaintiff is requested to provide a draft form of order to give effect to this judgment.
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