DYY v Registrar, Births, Deaths and Marriages

[2019] NSWCATAD 154

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DYY v Registrar, Births, Deaths and Marriages [2019] NSWCATAD 154
Hearing dates:	20 June 2019
Date of orders:	05 August 2019
Decision date:	05 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Naida Isenberg, Senior Member
Decision:	The decision of the Registrar, Births, Deaths and Marriages is affirmed.
Catchwords:	Birth certificate – same-sex relationship - amendment request that ‘mother’ –– irrebuttable presumption that ‘parent’ - Court Orders that ‘parent’
Legislation Cited:	Births, Deaths and Marriages Registration Act 1995 Births, Deaths and Marriages Registration Regulation 2017 Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008 Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 Status of Children Act 1974 (Vic) Status of Children Act 1996 (NSW)
Cases Cited:	Arc-Dekker v Registrar Births Deaths and Marriages [2016] VCAT 1529
Category:	Principal judgment
Parties:	DYY (Applicant) Registrar, Births, Deaths and Marriages (Respondent) DYZ (Joined Party)
Representation:	DYY (Applicant self-represented) Office of General Counsel, Department of Justice (Respondent)
File Number(s):	2018/223942
Publication restriction:	An order pursuant to s 64 (1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication of the names of any parties.

REASONS FOR DECISION

Background

1. From 1996 the Applicant, DYY was in a same sex relationship with DYZ. They agreed that DYZ would become pregnant using donor sperm and two children were born in 2003 and 2010, respectively.

2. At the time of the birth of the first child, there was no means for DYZ to provide any information about DYY on the birth certificates as the Birth Registration Statement did not include a section that would accommodate same sex couples. DYY contended that such a form had been introduced by the time of the birth of the second child in 2010, but it was not submitted to the Respondent.

3. Unfortunately, DYY and DYZ’s relationship broke down in early 2015, although they continued to reside together, with the children, until approximately October 2016.

4. On 31 August 2017, DYY and DYZ entered into Consent Orders made under the Family Law Act 1975 (the Consent Orders). Relevantly, Items 1 and 2 of the Consent Orders state:

The court declares that DYY (sic) is a parent of the children, [name] born [date] 2003 and [name] born [date] 2010 ('the children’).

That within 14 days of the day of these orders, the parties do all such things and sign all such documents necessary for the birth certificates to be issued for the children, [name] born [date] 2003 and [name] born [date] 2010 listing DYY as a Parent, at DYY’s cost.

5. On 1 May 2018, DYY applied to the Respondent to amend the children’s birth certificates by submitting to the Respondent an 'adding a parent's details to a birth registration' form. DYY provided her details on the form and ticked 'mother' in response to 'indicate how the parent will be recorded on the certificate'.

6. On 23 May 2018, the Respondent informed DYY of its decision that the children's birth certificates would be amended pursuant to s 18(e) of the Births, Deaths and Marriages Registration Act 1995 (the Act) to include DYY as the 'parent' of the children in accordance with the wording of the Consent Orders. That decision was affirmed on internal review on 19 June 2018. On 19 July 2018, DYY applied to the Tribunal for a review of that decision. On 24 April 2019 DYZ was joined as a party to these proceedings.

The legislative scheme

7. Section 6 of the Act sets out the Respondent's general functions:

6 Registrar's general functions

The Registrar’s general functions are:

(a) to establish and maintain the registers necessary for the purposes of this Act

(a1) to maintain the integrity of the Register and to seek to prevent identity fraud associated with the Register and the information extracted from the Register, and

... and...

(c) to ensure that this Act is administered in the way best calculated to achieve its objects.

8. Section 18 of the Act sets out the registration of parentage details:

18 Registration of parentage details

The Registrar must not include registrable information about the identity of a child's parent in the Register unless:

(a) both parents of the child make a joint application for the inclusion of the information, or

…

(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

....

9. 'Register' is defined in s 43 of the Act, which provides:

43 The Register

(1) The Registrar must maintain a register or registers of registrable events.

(2) The Register:

(a) must contain the particulars of each registrable event required under this Act, or another law, to be included in the Register, and

(b) may contain such further information as the Registrar considers appropriate for inclusion

....

10. Section 45 provides:

45 Correction of Register

(1) The Registrar may correct the Register:

(a) to reflect a finding made on inquiry under Division 2, 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 ...

11. A 'registrable event' is defined at s 4 of the Act as meaning, relevantly, a birth.

12. Regulation 5 of the Births, Deaths and Marriages Registration Regulation 2017 outlines:

Registration of birth

(1) For the purposes of sections 14 and 17 (1) of the Act, the following particulars are required:

…

(d) the full name (including, if applicable, the original surname), date of birth (or age), place of birth, occupation and usual place of residence (at the time of delivery) of each parent of the child

…

(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.

Consideration

13. DYY said that as her relationship with DYZ deteriorated, she felt she had no legal status with respect to the children e.g. she was unable to have them on her Medicare card, enrol them in activities or even obtain a ‘family’ pass at the local pool. She said she continually asked DYZ to sign ‘the forms’, but she refused to do so, although DYZ denied this. Matters came to a head when DYZ was apparently charged with some fraudulent conduct with respect to Centrelink benefits. DYY said she was worried that if DYZ were convicted and a custodial sentence imposed, DYZ might nominate some other person to be carer of the children during her incarceration. As DYY’s status with respect to the children was undocumented, she did not know if she was in a position to challenge that decision, and sought legal advice. As a consequence, she brought the Family Law proceedings, with the main aim, she said in her evidence, of clarifying her status with respect to the children. She said that, once there, DYZ’s lawyer had made it clear that the proceedings were going to be used to formalize the arrangements with respect to access to the children and that DYZ in fact would seek sole custody. She said that negotiations occurred between the lawyers and she was relieved that she obtained the degree of access she sought. However, she said, she had no idea of the implications of agreeing to the description of her in the Consent Orders as “parent”.

14. DYY referred to the enactment of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008. Subsequent to “changes to NSW legislation”, the Registry developed an alternative form for the registration of births to same sex couples. DYY contended that at the time of the birth of the second child she and DYZ had gone together to register the birth (which could have included a notation with respect to her), but no relevant forms were available. She said that DYZ arranged the registration independently.

15. DYY said she asked DYZ on many occasions - verbally, by text, via email, in person and during formal and informal mediation - to consent to having her recorded on the birth certificates but DYZ had refused, or ignored her request. She contended that DYZ’s refusal was malicious.

16. DYZ’s evidence was that it was not until 2-3 years after the birth of the second child that DYY sought to be included on the birth certificate, and they did not go the Registry together seeking the relevant form as DYY claimed. She said she had raised DYY’s inclusion on the birth certificates several times, but it was DYY who said she was happy just to have the children have her surname. DYZ said she also was happy for the children to have DYY’s surname as she had been very close to DYY’s father.

17. DYY had been the main wage earner and DYZ was mostly stay-at-home mum who did some part-time work. DYZ said that DYY had not parented a lot, presumably because DYY was the main bread winner, and on separation they agreed they would start shared care slowly and see how the children managed. It therefore came as a surprise to her, she said, that DYY commenced proceedings in the Family Court. At the hearing in those proceedings, she said, there was a lot of discussion about the “parent/mother” issue and little debate about the shared care arrangements, which was her main concern. She contended that her solicitor told her she had to agree to everything because she was unable to afford further representation, although this appeared to be at odds with her assertion that there was significant debate about the “parent/mother” issue, and that the other Orders provided a very detailed description of the shared care arrangements.

18. DYY said that since the children’s conception DYZ has represented DYY to the world at large as their other mother, and she said, she is viewed jointly as one of the children's mothers by their schools, sporting clubs, friends, friend's parents and others. Most importantly, the children know her as their mother and call her 'Mum' (or a variation), and she is a very active participant in their lives.

19. DYY and DYZ provided conflicting accounts of circumstances where one or other of them had experienced bureaucratic hurdles because they had been omitted as a contact for the children. DYY, in particular, felt disadvantaged because of her lack of legal status with respect to the children.

20. DYZ said she objects to the description of DYY a ‘mother’, and contended that the description of ‘parent’ gives DYY all the legal rights she needs. She was asked to indicate what was the basis for her concern and, in that context, said that ‘mother’ is a sacred term. DYY, on the other hand, contended that ‘parent’ is a lesser term than mother.

21. DYZ made some observations about the views of the elder child but I have not taken these into account, particularly as DYY contended the child, who is still a minor, is impressionable and likely to agree with anything that is suggested; she had not raised the matter with the child herself as she did not think it appropriate.

22. It was clear that from their contradictory evidence that the relationship between DYY and DYZ remains acrimonious. However, DYZ acknowledged that DYY loves the children and that is reciprocated.

23. DYY noted that the Family Law Act 1975 is silent as to the definition of 'mother' and 'parent'. DYY contended that it is therefore unreasonable for the Respondent (and hence the Tribunal) to rely on the “Federal process” as the basis for its distinction. She queried why the judge who made the Orders had therefore made a distinction. In this regard I observe that the Orders were made by consent, and for whatever reason, this was the turn of phrase that was agreed to by, or on behalf of, the parties.

24. In the absence of a legal distinction between 'mother' and 'parent', DYY asked that I apply the ordinary meanings and noted that the Macquarie Dictionary defines a 'parent' as a 'father or mother'. ‘Mother' is defined, she said, as 'female parent', and, as she is a female parent, therefore, she submitted, she is a mother. She submitted that she and DYZ are both mothers and parents. She said that 'parent' is not a term generally used within the community in the common sense but is an umbrella term used to describe mothers and fathers.

25. DYY submitted that the ongoing distinction in status between the children’s parents is unfair and not in the children's interests.

26. She submitted that 'mother' is registerable information to be contained in the Register pursuant to s 43 (a) and (b) of the Act.

27. DYY contended that this case is about equality before the law and the reasonable treatment of same-sex couples. She contended that, if, instead of being a lesbian non-birth mother, she was a heterosexual birth mother, the request to amend the birth certificates as she seeks would not have been required.

28. DYY submitted that the birth certificates utilising the terms mother/parent sets the children apart from the social norm. All their peers' certificates, she said, describe mother/mother; father/mother or parent/parent. DYY acknowledged that this depended upon how the registering person recorded the family’s information; in the circumstances of this family, however, the information available to the Respondent as to the description of DYY was as ‘parent’ pursuant to a Court Order.

29. The Respondent submitted that the Family Court makes many orders with respect to parenting – declaring persons to be not only a “parent”, but also makes orders that a person is a “mother” or “father”. While no information was available as to the circumstances in which such orders are made, it appears that it may have been open to the Family Court to make an order that DYY is the children’s mother, but that was not the Order to which the parties agreed. The Respondent said it is not open to it, or the Tribunal on review, to make a change to the children’s birth certificates other than in accordance with the Orders, and this has already occurred.

30. The Respondent referred me to Arc-Dekker v Registrar Births Deaths and Marriages [2016] VCAT 1529, a matter almost the same as the present matter, albeit in relation to the Victorian Births Deaths and Marriages Registration Act 1996, which is in similar terms to the Act. Importantly, that matter turned upon the application of the Victorian Status of Children Act 1974, which, that Tribunal found, established an irrebuttable legal presumption that a woman who becomes pregnant as a result of an assisted reproductive treatment is presumed for all purposes to be ‘the mother’ of the child and the female partner of that woman is presumed to be ‘a legal parent’.

31. An amendment to the New South Wales Status of Children Act 1996 by virtue of the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008 provides relevantly:

Presumptions of parentage arising out of use of fertilisation procedures

14 Presumptions of Parentage Arising Out of Use of Fertilisation Procedures

(1) ...

(1A) When a woman who is married to or who is the de facto partner of another woman has undergone a fertilisation procedure as a result of which she becomes pregnant:

(a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure, and

(b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.

…

(4) Any presumption arising under subsections (1)-(3) are irrebuttable.

32. In this matter DYY was the de facto partner of DYZ when DYZ underwent fertilisation procedures as a result of which she twice became pregnant: s 14(1A). DYY consented to the procedure and therefore is presumed to be a parent of each child: s 14(1A)(a). DYZ, having given birth to the children is presumed to be their mother: s 14(1A)(b). Those presumptions are irrebuttable.

33. The Respondent submitted that, applying the above, DYY’s status with respect to the children can only be recorded as their ‘parent’. I do not consider that in the context of section 14, the term ‘mother’ is properly read as, effectively, a subset of parent, such that it would remain an option for the Respondent to record DYY as ‘mother’, rather than ‘parent’. The section makes it clear as who is appropriately described as ‘mother’.

34. The Respondent submitted, and I agree, that, in any event, it was bound by the Family Court’s Orders. The Respondent submitted that s 43 of the Act should be read in the context of s 6 of the Act so as to achieve the Act’s objectives, noting in particular its obligation to ensure the integrity of the Register, and as such, it, and the Tribunal on review, should not go behind those Orders. I agree with this submission.

DECISION

35. The decision of the Registrar, Births, Deaths and Marriages is affirmed.

**********

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

Amendments

23 August 2019 - Anonymisation of parties

Decision last updated: 23 August 2019