Gal v Registrar of Births, Deaths and Marriages

[2025] NSWCATAD 82

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gal v Registrar of Births, Deaths and Marriages [2025] NSWCATAD 82

Hearing dates:

13 June 2024, 27 June 2024, and 5 July 2024

Date of orders:

8 April 2025

Decision date:

08 April 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Mobbs, Senior Member

Decision:

(1)   The decision under review is affirmed.

(2) Pursuant to s 64(1)(b) of the NCAT Act, the publication or broadcast of any report, including a sound recording or transcript of proceedings in the Tribunal relating to any Confidential Information, including any oral or documentary material is prohibited.

(3) Pursuant to s 64(1)(c) of the NCAT Act, the publication of any Confidential Information in the proceedings, including any oral or documentary material relating to any Confidential Information is prohibited.

(4) Pursuant to s 64(1)(b) and s 64(1)(c) of the NCAT Act, the disclosure of any Confidential Information in the proceedings, including any oral or documentary material relating to any Confidential Information, is restricted to the Applicant, to the Respondent and to the legal representatives of either party.

(5) Except pursuant to order (6) below, all paragraphs marked “[NOT FOR PUBLICATION]” are not to be published pursuant to s 64(1)(c) of the NCAT Act

(6)   A copy of these reasons, without redaction shall be released to the Applicant and to the Respondent.

Catchwords:

BIRTHS DEATHS AND MARRIAGES – application to correct the register – correction of father’s name on birth certificate – correction of death certificates

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Births, Deaths and Marriages Registration Act 1995 (NSW)

Births, Deaths and Marriages Registration Regulation 2017 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Status of Children Act 1996 (NSW)

Cases Cited:

Goodliffe v Registrar of Births, Deaths and Marriages [2023] NSWCATAD 123

Jack v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200

McDonald v Director-General of Social Security (1984) 1 FCR 354

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

Ward v New South Wales Registrar of Births, Deaths and Marriages [2015] NSWCATAD 86

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Caterina Gal (Applicant)
Registrar of Births, Deaths and Marriages (Respondent)

Representation:

Applicant (Self-represented)
Legal, Department of Customer Service (Respondent)

File Number(s):

2024/00010078

Publication restriction:

(1) Pursuant to s 64(1)(b) of the NCAT Act, the publication or broadcast of any report, including a sound recording or transcript of proceedings in the Tribunal relating to any Confidential Information, including any oral or documentary material is prohibited.

(2) Pursuant to s 64(1)(c) of the NCAT Act, the publication of any Confidential Information in the proceedings, including any oral or documentary material relating to any Confidential Information is prohibited.

(3) Pursuant to s 64(1)(b) and s 64(1)(c) of the NCAT Act, the disclosure of any Confidential Information in the proceedings, including any oral or documentary material relating to any Confidential Information, is restricted to the Applicant, to the Respondent and to the legal representatives of either party.

(4) Except pursuant to order (5) below, all paragraphs marked “[NOT FOR PUBLICATION]” are not to be published pursuant to s 64(1)(c) of the NCAT Act

(5) A copy of these reasons, without redaction shall be released to the Applicant and to the Respondent.

REASONS FOR DECISION

Background

1. Ms Caterina Gal (the Applicant) made five linked amendment applications (Amendment Applications) to the Registrar of Births, Deaths and Marriages (the Respondent) between 30 August 2022 and 10 October 2023 seeking an amendment to the registration of her birth to show her father as Jozsef Gal (JG) instead of Joseph Poul Gal (JPG) and to make corresponding amendments to the death certificates of JG and JPG.

2. By way of email sent at 11.38 am on 22 November 2023, an officer of the Respondent advised the Applicant that the Amendments Officer would be emailing her a letter shortly indicating that the Applicant’s Amendment Applications were rejected and that the Applicant could request an internal review.

3. The Applicant responded by email at 1.04 pm on the same date indicating that she wanted to have the Amended Applications escalated and that she would like to take it to the “next level of inquiry”.

4. At 4.27 pm on 22 November 2023, the Amendments Officer sent an email to the Applicant stating that it had been determined that the required supporting evidence for the requested amendments had not been provided and that all Amendment Applications had been cancelled. The Applicant was advised that she could request an internal review of the decision.

5. The Respondent appears to have accepted the Applicant’s email of 22 November 2023 as a request for an internal review. An internal review was subsequently undertaken by the Respondent and by way of letter dated 22 December 2023, the Applicant was advised of the Respondent’s decision (the Decision). The Respondent had reviewed all of the documents provided by the Applicant and affirmed the original decision. The Respondent found that there was insufficient evidence to correct the father on the Applicant’s birth registration, and as a result, she was unable to correct the death registrations of JPG and JG.

6. The Applicant applied to this Tribunal on 9 January 2024 for review of the Decision (application for review) and no issue was raised in relation to the jurisdiction of the Tribunal in relation to this matter.

Jurisdiction

7. Section 56(1) of the Births, Deaths and Marriages Registration Act 1995 (NSW) (the BDMR Act) confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). I am satisfied that the Tribunal has jurisdiction in relation to the matter.

Applicable legislation

8. Section 3 of the BDMR Act sets out the objects of the legislation:

3   Objects of Act

The objects of this Act are to provide for—

(a)  the registration of births, deaths and marriages in New South Wales, and

(b)  the registration of adoption information, and

(c)  the registration of changes of name and the recording of changes of sex, and

(d)  the keeping of registers for recording and preserving information about births, adoptions, deaths, marriages, registered relationships, changes of name and changes of sex in perpetuity, and

(e)  access to the information in the registers in appropriate cases by government or private agencies and members of the public, from within and outside the State, and

(f)  the issue of certified information from the registers, and

(g)  the collection and dissemination of statistical information.

9. Section 4 of the BDMR Act includes the following definitions:

birth certificate means a certificate issued under section 49 as to the particulars contained in an entry in the Register in relation to a person’s birth.

change of name includes an addition, omission or substitution.

registrable event means a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage.

registrable information means information that must or may be included in the Register¹.

…

Note.

¹See section 43 (2)

10. The general functions of the Registrar are set out in s 6:

6 Registrar’s general functions

The Registrar’s general functions are—

(a)  to establish and maintain the registers¹ necessary for the purposes of this Act and the Relationships Register Act 2010, and

(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

(b)  to administer the registration system established by this Act and ensure that the system operates efficiently, effectively and economically, and

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

Note.

¹The registers are collectively referred to as the “Register”. See section 43.

11. Section 14 of the Act provides that the birth of a child is registered by a person a giving notice of the birth to the Registrar (the birth registration statement) in a form and manner required by the Registrar, specifying the particulars required by the regulations.

12. Section 17 regulates the registration of births as follows:

registrable event means a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage.

13. Section 42 regulates the registration of deaths and relevantly includes the following:

42   Registration

(1)  The Registrar registers a death by making an entry about the death in the Register including the particulars required by the regulations.

(2)  However, if the particulars available to the Registrar are incomplete the Registrar may register a death on the basis of incomplete particulars.

…

14. Section 18 of the BDMR Act relates to the registrations of parentage details and provides that the Registrar must not include registrable information about the identify 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 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.

15. The Respondent’s role in preserving the integrity of the register is explained in s 43:

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.

(3)  The Register may be wholly or partly in the form of a computer data base, in documentary form, or in another form the Registrar considers appropriate.

(4)  The Registrar must maintain the indexes to the Register that are necessary to make the information contained in the Register reasonably accessible.

(5)  A reference in this Act to the Register is a reference to all the registers kept under subsection (1).

(6)  The Register may be referred to as the Births, Deaths and Marriages Register and a reference in any Act or any instrument made under any Act to the Births, Deaths and Marriages Register is taken to be a reference to the Register.

16. Section 45 of the BDMR Act relates to the circumstances in which the respondent may correct the register:

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.

(2)  The Registrar must, if required by a court, correct the Register.

(3)  The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry.

17. Clause 5 of the Births, Deaths and Marriages Registration Regulation 2017 (the Regulation) provides as follows:

5   Registration of birth

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

(a)  the sex and date, time and place of birth of the child,

(b)  the weight of the child at birth,

(c)  whether or not the birth was a multiple birth,

(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,

(e)  the date and place of marriage of the parents of the child (if applicable),

(f)  the full name, sex and date of birth of any other children (including any deceased children) of either of the parents of the child,

(g)  whether or not either of the parents of the child is of Aboriginal or Torres Strait Islander origin,

(h)  if either parent of the child was born outside Australia, the period of residence in Australia of that parent.

Note—

A birth registration statement given to the Registrar under section 14 of the Act must also state the name of the child (see section 21 of the Act).

(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 this clause.

(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.

Role of the Tribunal

18. Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34].

19. In an application for review, the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.

Tribunal proceedings

20. This matter was heard before me over three separate days, namely 13 June 2024, 27 June 2024, and 5 July 2024.

21. Prior to the hearing of this matter it was referred to the Legal Assistance Referral Scheme (LARS) with the Applicant’s agreement, for advice and representation. The Tribunal was subsequently advised that the referral did not fall within the guidelines for the Scheme. The Applicant appeared on her own behalf in these proceedings, with an assistance animal also in attendance. The Applicant was informed that she could seek a break at any time and the matter was paused on a number of occasions for this purpose.

22. Various applications had been made prior to the hearing and were considered by me at the commencement of the proceedings on 13 June 2024. This consideration included material produced in response to two summonses issued by, or on behalf of, the Applicant as well as to the Applicant’s Application for miscellaneous matters/joinder application filed on 25 March 2024 (miscellaneous application). The material produced in response to both summonses related to a third party in the proceedings. The Tribunal had regard to written submissions made by the third party about the summonsed material and heard from them by way of telephone. Following consideration of the oral submissions from the Applicant and the Respondent, the two summonses were set aside. Reasons were given to the parties as set out in my Amended Order dated 14 June 2024. That order also sets out the background to the miscellaneous application filed by the Applicant and records that it was dismissed by consent.

23. In addition to naming the Respondent, the application for review also named the Attorney General and the Premier as respondents. In the course of the hearing, the Applicant sought that these parties be required to attend. Mr Bell, the solicitor appearing on behalf of the Respondent, produced email correspondence between him and legal officers from both the Department of Communities and Justice and the Cabinet Office, confirming that neither of these parties wished to be heard in these proceedings. These email trails were handed up and marked for identification (MFI “A” and MFI “B”). The Respondent opposed this application, and it was subsequently withdrawn by the Applicant. The Tribunal noted on a number of occasions in the proceedings that this application for review was limited to a review of the matters raised in the Decision.

24. In these reasons, in order to protect the privacy of certain third persons, I have sought not to use their names where it is not relevant to my determination and where possible, have used initials or referred to that person’s relationship with the Applicant.

25. I have considered all the evidence adduced by the parties in these proceedings. The documentary and oral evidence contains references, some sensitive, to matters relating to the Applicant and to third parties, including family members of the Applicant, which have either been excluded on the basis of the rulings referred to above, or which I have determined are not relevant to my consideration of the application for review before the Tribunal. In order to protect the privacy of the Applicant and these third persons, I have not referred to these matters in my reasons.

26. NOT FOR PUBLICATION

Evidence

27. The Respondent relied on the s 58 documents (exhibit R1) as well as a statement from Ms Alana O’Loughlin dated 20 March 2024 (exhibit R2) and a statement from Ms Nicole Sargent dated 26 March 2024. Both Ms O’Loughlin and Ms Sargent were employed by the NSW Registry of Births, Deaths and Marriages (the Registry) and both gave oral evidence and were cross-examination by the Applicant.

28. The Applicant relied on the material attached to her application for review, which included a statutory declaration dated 8 January 2024 and attachments (January statutory declaration). This material was also contained in the s 58 material. The Applicant also relied on a further statutory declaration dated 29 April 2024 with a number of attachments and a USB which contained a series of photographs of material (April statutory declaration) (exhibit A1). The label attached to the USB indicates it contains 210 photographs.

29. The Applicant also relied on three original photographs (exhibit A2), copies of which had been included as attachments to a Summons filed by her with the Supreme Court on 28 February 2023 (Supreme Court Summons) and which was included in the s 58 documents; a copy of an Application for Registration by Alien Entering Australia dated 20 February 1957 in the name of Josef Gal whose year of birth is stated as 2015 (exhibit A3); a copy of an Application for Registration by Alien Entering Australia dated 20 February 1957 in the name of Josef Gal whose year of birth is stated as 1936 (exhibit A4); a copy of an Application for Issue of New Certificate of Registration in the name of Joseph Gal whose year of birth is stated as 1936 and which was signed by him on 22 September 1958 (exhibit A5): and an original photograph of a female (exhibit A6) and an original photograph of a group at a wedding (exhibit A7), a copy of which was included as an attachment to the Supreme Court Summons (part exhibit R12), with the words “Photograph of …Gal. Mother of [JG]”, written underneath.

27. Mr Bell indicated that he objected to portions of the Applicant’s evidence, particularly in relation to her April statutory declaration and the attachments. He also indicated that he objected to portions of her January statutory declaration. It was noted at that time that the January statutory declaration had already been admitted as part of the Respondent’s s 58 documents.

28. Having regard to the Applicant being self-represented in these proceedings, the objects of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), and the guiding principle set out in s 36(1) to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and in order to progress the matter in a timely way, instead of than dealing with each objection individually, I determined to allow the Applicant’s material into evidence and to consider the weight to be afforded to it, in in my consideration of the application for review.

29. The Applicant gave oral evidence and was cross examined by Mr Bell.

Submissions

33. The Applicant’s material and oral evidence included both evidence and submissions. This is not unusual where an applicant is self-represented and in reaching my determination, I have given appropriate weight to all of the evidence and submissions relied upon by the Applicant.

34. The Respondent relied on a Summary of Argument dated 27 March 2024 (written submissions) and Submissions in Reply dated 24 May 2024 (written submissions in reply). Both parties made oral submissions at the hearing.

Positions of the parties

The Applicant’s position

35. A copy of the Applicant’s birth certificate was in evidence before the Tribunal (part exhibit R1) and indicated that: the Applicant was born in 1964; the Applicant’s mother was E. Gal (EG); that her father was JPG; and that EG and JPG had married in Melbourne, Victoria in 1959. The birth certificate also indicated that at the time of the Applicant’s birth, EG and JPG had a daughter, who was then aged 4 years old. It was not in dispute that this child was now deceased.

36. The Applicant acknowledged that her mother was EG, and that EG had been born in Hungary in 1944 and died in Australia in the early 1970’s. The Applicant also accepted that JPG was born in Hungary in 1936 and died in Australia in the 1980’s. The Applicant contended however that her father was not JPG but was instead JG, who was born in Hungary in 1915 and died in Australia in the 1990’s. She contended that her birth registration details had been fraudulently filled out by JPG, and that her real father was JG, whom she had previously believed to be her grandfather. She also contended that whilst JG and JPG were seen to be father and son, she had been told that JPG was a “foundling”, and that JG and JPG were not in fact related.

37. The Applicant acknowledged that EG and JPG had a child who was four years old at the time of the Applicant’s birth and that whilst EG was the mother of both that child and herself, the Applicant contended that she and the child had different fathers and were in effect half-sisters. The Applicant did not dispute the details in her birth registration relating to her mother EG, the reference to the previous child of EG and JPG, or to the date and place of the Applicant’s birth. The Applicant accepted that a marriage had taken place between EG and JPG in 1959 in Melbourne but contended that this marriage was not a valid marriage.

38. The Applicant was seeking that her birth certificate be corrected to remove the reference to JPG as her father, and to instead record JG as her father. The Applicant also sought that the death certificate of JPG be corrected so that reference to her as his daughter be removed, and that she be added as JG’s daughter in his death certificate.

The Respondent’s position

39. It was submitted that the Respondent was entitled to rely on the Form of Information of Birth (the Form) (part exhibit R1) signed by JPG as the informant, within three weeks after the Applicant’s birth. This Form was witnessed by EG, the mother of the Applicant and the wife of JPG at that time and indicated that they had the same residential address in Bondi (the Bondi address).

40. It was submitted that the recording by the Respondent of JPG as the Applicant’s father was consistent with the information provided in the Form as well as the hospital admittance papers for the Applicant’s mother (part exhibit R1), that it complied with s 18 of the BDMR Act and accordingly, the Respondent was able to rely on the presumption in s 18(f) of the BDMDR Act. Reliance was also placed on the provisions of the Status of Children Act 1996 (NSW) (SOC Act)

41. It was the Respondent’s position that the power to correct the Register under s 45 of the BDMR Act is not enlivened in the current case because the most reliable evidence available for the purposes of s 45(1)(b) continues to be the information contained within the Form. It was submitted that there is no evidence before the Tribunal, which can, on the balance of probabilities, support the requested amendments in the Amendment Applications and that the correct and preferable decision is to affirm the Decision.

42. Consequently, the primary issue for consideration is whether the Tribunal should correct the Register in accordance with s 45 of the BDMR Act.

Consideration

Required by a court to correct the Register

43. Section 45(2) of the BDMR Act requires that the Respondent correct the Register if required by a court to do so. As previously referred to, the s 58 documents include the Supreme Court Summons relied upon by the Applicant. Further documents, including an Amended Supreme Court Summons, were included in the s 58 documents. It appears that the Applicant was seeking the production of medical records for JG and JPG, and if those records were destroyed, for the exhumation of physical remains.

44. A document entitled Associate’s Record of Proceedings prepared by the relevant Judge’s Associate, with the same file number as the Supreme Court Summons, was also included in the s 58 documents and noted that the evidence before the Court did not permit any finding, one way or another, as to the identity in fact of the Applicant’s natural father.

45. Having regard to the evidence before the Tribunal, including the material referred to above, I am not satisfied pursuant to s 18 of the BDMR Act that the Supreme Court of NSW, or any other court, has ordered the inclusion of any information in the Register relating to the Applicant or has made a finding that a particular person is a parent of the Applicant. As a consequence, I am satisfied that the Respondent, and by extension this Tribunal, is not required by a court to correct the Register in this matter pursuant to s 45(2) of the BDMR Act and accordingly I have no further regard to this provision in my consideration of this application for review.

Conformity with the most reliable information available

46. As set out above, s 45(1)(b) of the BDMR Act provides that the Respondent “may” correct the Register to bring an entry about a particular registrable event into conformity with the most reliable information available. As the Tribunal explained in Ward v New South Wales Registrar of Births, Deaths and Marriages [2015] NSWCATAD 86 at [10], “The power to correct the register is discretionary. It is predicated on the decision maker being satisfied the proposed change is in conformity with the most reliable information about the registrable event”: Jack v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200 at [113]; Goodliffe v Registrar of Births, Deaths and Marriages [2023] NSWCATAD 123 at [28].

47. As a consequence, it is not the role of the Tribunal in these proceedings to make a determination as to the parentage of the Applicant but instead to consider the “most reliable information” about the identify of the Applicant’s father and whether or not this information is in conformity with the change proposed to her birth registration by the Applicant. In this application for review, the Tribunal effectively steps into the shoes of the Respondent for the purposes of the BDMR Act.

48. I am satisfied that in the present matter, the Form is a birth registration statement for the purposes of s 14 of the BDMR Act and that it shows the name of the father to the Applicant as “Joseph Poul Poul Gal”, with two lines under the first reference to “Poul”, that he was then aged 28 years old and that he was born in Hungary. It refers to a marriage between the father and EG in 1959 in Melbourne and to another child of the marriage, then aged 4 years old. The Form contains the words “I certify that the above Statement of Particulars is correct for the purpose of being inserted in the Register of Births” and is signed by “Joseph P Gal” as the father of the Applicant and was witnessed by EG. The address shown on the Form for both EG and JPG is the Bondi address. These details are reflected in the Applicant’s birth certificate (part exhibit R1), with the exception of the father of the Applicant being named as JPG and not Joseph Poul Poul Gal.

49. The Applicant did not take issue with the form of JPG’s name as recorded in her birth registration but instead submitted that whilst JPG may have completed the Form, he did not do so truthfully and that he was not her father. It is apparent from the documentary evidence before the Tribunal, including immigration records and Registry documents, that different spellings were used at different times for the first name of JG and for the given names of JPG, and indeed the Applicant herself used various spellings of these names in her documentary material. It is also evident that JPG used various forms of his given names, and did not always use his middle name, and sometimes used initials. The death certificates for JG and JPG each refer to them as “Jozsef” Gal. In my view, nothing turns on the differing spellings of the names of JG and JPG or on the use of JPG’s middle name or initial at various times.

50. I am satisfied that the details contained in the Applicant’s birth registration are consistent with the details provided in the Form. I am further satisfied having regard to the information in the Form, particularly the certification by JPG that the Form was correct, that he was married to EG, that they both resided at the Bondi address and that EG witnessed the certification of the Form by JPG, and accordingly that there is a presumption under s 18 (f) of the BDMR Act that JPG is the father of the Applicant.

51. These findings are reinforced by the hospital documentation for EG relating to the Applicant’s birth (part exhibit R1). The consent for treatment in these records was signed by EG and Joseph Gal as “Husband” and witnessed by a third party. On the page relating to the details of the Applicant, there have been handwritten changes to the form updating EG’s age and her address, to show that she was residing at the Bondi address. A further consent in these records was signed by Joseph Gal as “Husband” and witnessed by a third party.

52. My finding as to the presumption under the BDMR Act is bolstered by the provisions of the SOC Act which apply to the Applicant. Under s 9 of the SOC Act, a child born to a woman during a marriage to which she is a party is presumed to be the child of the woman and her spouse. Under s 13 of the SOC Act, a man is presumed to be a child’s father if under the SOC Act or other law, the man executes a formal paternity acknowledgment of any other instrument acknowledging that he is the child’s father provided it has not been annulled or set aside. The section extends to instruments executed prior to the commencement of the section.

53. I am satisfied that the Form is an instrument for the purpose of s 13 of the SOC Act and in light of my findings in relation to the contents of the Form. I am satisfied that there is a presumption under s 13 of the SOC Act that JPG is the Applicant’s father.

54. Section 15 of the SOC Act provides as follows:

15   Rebuttal of parentage presumptions

(1)  A presumption arising under this Division, or a parentage presumption arising under any other Act or rule of law, that is rebuttable, is rebuttable by proof on the balance of probabilities.

(2)  Every presumption arising under this Division (except for a presumption arising under section 12 (1) or 14 (1)– (3)) is a rebuttable presumption.

Rebuttal of presumption relating to Applicant’s father

Marriage of JPG and EG

55. In her evidence, the Applicant accepted that a marriage had taken place between her mother, EG, then aged 15 years old, and JPG in Melbourne in 1959 and a copy of that Certificate of Marriage (marriage certificate) was included in the material attached to the Applicant’s April statutory declaration (exhibit A1). However, the Applicant contended that EG “appears” to have been the subject of an arranged marriage to JG in Hungary at the time of EG’s birth in 1944. She stated that JG, who was born in 1915 would have been 28 years old at that time, the same age as that of the father listed on the Applicant’s birth certificate. In her statutory declaration, the Applicant acknowledged that she did not know the details of this personal history. The Applicant stated that she was not sure if the marriage between EG and JPG was entered into due to strict immigration laws or whether it was legal due to Australian immigration policy at the time. She stated that it “appears” to have been a “mock marriage” of sorts and that the Applicant’s birth was later “fraudulently” registered by JPG.

56. The marriage certificate lists the parties to the marriage in 1959 as “Jozeph Poul Gal” and “[EK]” (EK) and is certified as a true copy of an entry in a Register of Marriages. Evidence was given by the Applicant that EK was her mother’s maiden name, and I am satisfied that EK and EG are the same person The marriage is recorded as having taken place in Melbourne and that the groom was then aged 22 years old and the bride aged 15. The Certificate of Marriage records the father of the groom as “Jozeph Gal”. The marriage certificate is signed by the two parties to the marriage and their signatures witnessed. The evidence of Ms O’Loughlin was to the effect that she made an enquiry on 1 December 2023 of the Victorian Registry of Births, Deaths and Marriages and was informed that its records recorded the marriage of JPG and EG in Melbourne, Victoria in 1959. I accept that she conceded that she did not make enquiries beyond this.

57. I am satisfied that the evidence before the Tribunal establishes that EG and JPG were married in Melbourne, Victoria in 1959.

58. In her April statutory declaration and in her evidence and submissions to the Tribunal, the Applicant contended that this marriage was “void” due to issues around the immigration status of JPG and EG. The Applicant contended that JPG’s citizenship application was void as was that of EG, due in part to EG being a minor at the time. Reference was also made by the Applicant to EG not having a legal passport and that it appeared that she was the subject of an arranged marriage by “Proxy” in Hungary, prior to the “void” marriage to JPG and that the marriage certificate of JPG and EG “appears” not to have been signed by a Hungarian Consular Official as required. The Applicant stated that in cases of minors without special circumstances marrying, all four parents must provide statutory declarations outlining written reasons for approval, and that in EG’s case, a statutory declaration was also required from the Hungarian Consulate giving written permission and the reasons why, given that neither EG nor JPG were Australian citizens.

59. During the hearing, the Applicant made further submissions on this issue, and she adduced numerous documents relating to her family history, including records relating to JPG, JG and EG entering Australia from Hungary. Such documents are attached to the Applicant’s April statutory declaration, included in the USB, and are also the subject of exhibits A3, A4 and A5.

60. The Respondent’s written submissions in reply helpfully summarise the large volume of material relied upon by the Applicant relating to the April statutory declaration and the material contained in the USB is referred to at [10] of those submissions. In the course of her evidence, the Applicant agreed that the Respondenent’s summary was the “best” possible. I have viewed the material on the USB and accept the Respondent’s summary to be an accurate one and that the USB contains the following categories of documents taken from various National Archives:

1. Department of Immigration records relating to EG;

2. Department of Immigration records and National Archive records relating to JG;

3. Further Citizenship and associated documents relating to JG and the Applicant;

4. National Archive records relating to JG and various third persons;

5. Various medical and related records relating to EG, her family and third persons;

6. Medical and associated records relating to JG;

7. Various photographs of people who are not named; and

8. Information, some in a different language relating to EG, another person, and in part to JG.

61. A number of the documents in this material relate to JPG.

62. The Applicant also relied on a copy of a registered Memorandum of Lease (Lease) which was attached to her January statutory declaration. The Lease was for a period of five years from November 1961 and related to the lease of a shop in Darlinghurst together with the two storeys above (Darlinghurst property). The Lessee was recorded as Jozeph Gal and his “son” Jozeph Paul Gal, “Restaurant Proprietors”, “both” of an address in Kings Cross. The Applicant accepted that the lessee was JG and JPG, and she gave evidence that they ran a restaurant at the premises. The Applicant relied on the Lease as evidence that JPG was not residing with EG at the Bondi address at the time of the Applicant’s birth, but that he was instead residing at the Darlinghurst property.

63. The Applicant’s April statutory declaration attached a copy of the “Divorce Case Papers” of EG and JPG from the State Records Authority of NSW. It is apparent from these documents that on 12 December 1968: EG filed a Petition for Dissolution in the Supreme Court of NSW in the Matrimonial Causes Jurisdiction (the Petition); that EG was legally represented in those proceedings; that she swore and filed an affidavit relating to the Petition and that on 29 January 1969, the Petition was served on JPG. It is clear that the proceedings were commenced some years after the birth of the Applicant.

64. In EG’s affidavit referred to above, she confirmed the truth of a number of statements contained in the Petition, including that: she lawfully married JPG in Melbourne in 1959 according to the provisions of the Marriage Act; that at the time of her marriage to JPG, EG was a spinster and JPG was a bachelor; that JPG and EG were both naturalised and regarded Australia as their permanent homes that whilst JPG and EG had lived separate lives and lived apart for some time, they lived together from August 1963 until sometime in 1964 at the Bondi address and at another address in Sydney from sometime in 1964 until they separated in May 1965; and that there were two children of the marriage, including the Applicant, who was born in 1964. In addition to seeking a decree of dissolution, EG also sought that JPG be ordered to pay maintenance for the support of the two children of the marriage, and this included the Applicant.

65. The Applicant was cross examined in relation to the Petition and did not accept that the material in that document was consistent with other material. She expressed the view that her mother was desperate at the time and that as a result the Petition may include incorrect information and that she was not prepared to make assumptions about it. When asked specifically about the references in the Petition to EG and JPG residing at the Bondi address for the relevant period, the Applicant stated that there was not enough information for her to agree or disagree. The Applicant also relied on the Lease as establishing that JPG resided at the Darlinghurst property.

61. I accept that EG, JPG, JG, and the other child of EG and JPG are now deceased. However, other than the Applicant’s oral evidence, and the documentary evidence previously referred to, the Applicant did not adduce any statements, letters or documents from any other persons, such as other family members, in support of her contentions in this matter, including her suggestion that the marriage between EG and JPG was not valid or that EG and JPG were not residing together at, and around, the time of the Applicant’s birth. No further detail or supporting evidence was adduced by the Applicant in respect to her contention that she had been told by others that JG and not JPG was her father.

62. Whilst the Applicant expressed doubts in these proceedings about the validity of the marriage between EG and JPG, her January statutory declaration asserts only that it “appears” that EG was the subject of an arranged marriage to JG in Hungary in 1944, and that the 1959 marriage “appears” to have been a mock marriage. The Applicant conceded in this statutory declaration that does not know the detail of this personal history and that there appears to “surviving remnants only”. In my view the age of JG at the date of EG’s birth, has no relevance to the details contained in the Applicant’s birth registration details, especially the age of JPG at that time, some 20 years later.

63. The Applicant’s documentary evidence provides no evidence to substantiate her assertions of a “proxy” marriage between EG and JG in 1944, and indeed the material contained in the USB adduced by the Applicant is largely irrelevant to the application for review. The USB does however contain material that is contrary to the Applicant’s assertions and indicates that JG was married to a third person in Hungary in 1956 and the historical records also include various references to the 1959 marriage between EG and JPG.

64. Whilst there is reference in a document relating to EG’s application for naturalisation, which states “not with spouse Joseph”, it is not clear exactly when this notation was made or what it relates to. In any event, there is a subsequent handwritten note in the documents contained in the USB dated 25 February 1964, that EG had advised that she and JPG were residing at the Bondi address at that time, and this is supported by the documents relating to the Divorce case which were affirmed by EG and adduced by the Applicant.

65. I have had regard to the Lease of the Darlinghurst property and whilst I am satisfied from the Applicant’s evidence that JG and JPG jointly rented these premises, it is evident that they did so for the purpose of operating a restaurant. Whist I accept that the Darlinghurst property also contained residential space, I am not satisfied that the Lease of itself, is evidence that JPG resided at those premises throughout the entire term of the Lease, or at any particular time within this period.

66. I give significant weight to the papers relating to EG’s divorce proceedings adduced by the Applicant (part exhibit A1), particularly to the Petition and EG’s affidavit in relation to the Petition. I am satisfied from this material that EG was seeking that the Court order a decree of dissolution in relation to her 1959 marriage to JPG and that JPG be ordered to pay maintenance for the support of the two children of the marriage, including the Applicant. It is evident that EG was legally represented in the divorce proceedings, and whilst there was no evidence before the Tribunal as to the outcome of these proceedings, I am satisfied that the proceedings were instituted on the basis that EG was of the view that the 1959 marriage was lawful and valid.

67. I am further satisfied from this material that whilst there were periods of separation between them, EG and JPG co-habited from about the middle of 1963 (prior to the Applicant’s birth) until May 1965 (after the Applicant’s birth) and that this included living at the Bondi address from about August 1963 until sometime in the year 1964. That EG and JPG were living at the Bondi address at the time of the Applicant’s birth is supported by the details contained in both the Hospital documentation and the Form, which is not inconsistent with the details contained in the Petition. I am also satisfied from this material that EG considered the Applicant to be the child of her marriage to JPG.

68. Accordingly, having regard to the totality of the documentary evidence adduced by the Applicant, I am satisfied that EG and JPG were married in Melbourne, Victoria in 1959, that they remained married at the time of the Applicant’s birth, and that they resided together, both prior to and after the Applicant’s birth. I have previously accepted that the Form represents an acknowledgment by JPG that he was the Applicant’s father and it is clear from the EG’s signature on that Form and from the material relating to the Divorce case, that EG acknowledged JPG as the Applicant’s father, the truth of which she swore to in an affidavit. In the circumstances, it follows that I do not accept that the Applicant has rebutted the presumptions under s 9 and s 13 of the SOC Act.

Other matters relied upon by the Applicant

74. In an email to the Respondent dated 9 January 2024, the Applicant referred to her birth certificate registration number and JG’s death certificate registration number as being “entries in the same book”. In her January statutory declaration, the Applicant stated that this was an “acknowledgment of events that took place at the time, attesting to the biological relationship.”

75. Having regard to the oral evidence of Ms Sargent, I am satisfied that whilst all registrations are recorded by the Respondent in a register and given a number, that separate registers are kept by the Respondent for the recording of births and deaths. The relevance of the Applicant’s submission about these two entries being “entries in the same book” is not clear but in any event, whilst I accept that the registration numbers for these two entries commence with the same numbers, I am satisfied that this is a coincidence, and that the details of the Applicant’s birth and JG’s death are recorded in separate registers.

76. In her email to the Respondent dated 22 November 2023 in which the Applicant sought an internal review, she stated as follows:

“The birth certificate records are not records that are consistent with the colour of my skin, my blood grouping, OR the hospital records registering my birth….All I want is to have the correct father with the correct colour and the correct blood group on my birth certificate…Come on, you can’t be that pigheaded about a simple amendment. When I have proven beyond a shadow of a doubt, that I am the daughter of [JG] and not [JPG].”

77. In a letter to the Respondent dated 1 December 2023, the Applicant stated that JPG’s “offspring and my blood groups do not match. It can be proven that his is not my biological father.”

Photographs

78. During the hearing, the Applicant sought to rely on various photographs to establish that JPG could not be her father and invited the Tribunal to consider the photographs and to make such a finding. As referred to previously, and with the consent of the Respondent, a number of original photographs adduced by the Applicant were admitted into evidence, on the basis that they were clearer than the copies previously relied upon by the Applicant. The Applicant gave short oral evidence to identify each photograph and referred to them in her oral submissions, noting that there were no photographs of her with JPG.

79. Pursuant to s 38 of the NCAT Act, the Tribunal may determine its own procedure in relation to any matter for which the Act or the procedural rules do not otherwise make provision. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such matter as it thinks fit, subject to the rules of natural justice.

80. There is reference in the Applicant’s documentary evidence, including in the material contained in the USB and in the Lease, to JPG being the son of JG. It is evident that JG and JPG were both born in Hungary, that there is a 21-year age gap between them, that they have the same surname and that both of their first names are derivatives of the name Joseph. The Applicant’s evidence is to the effect that as a child, she understood that JG was her grandfather, and that JPG was her father. There is a reference in a letter from the Applicant dated 26 November 2023 to a family member that “By all indications [JPG] was NOT [JG’s] son either. We already knew that though. Joe told us stories of how they met, when we were kids.” No other evidence was provided to the Tribunal to support the claim that JG and JPG were not father and son. On this basis, I am not able to be satisfied that JG and JPG are not biologically related.

81. Whilst I accept that there may be rare circumstances where photographs may assist in an application for review, I am of the view that of themselves, photographs are of no assistance in determining the parentage of a child for the purposes of this application for review. This view is fortified in the particular circumstances of this matter, where the Applicant is seeking to have the identify of her father changed on her birth registration to that of JG, and where there is evidence that JG and JPG are father and son. Accordingly, I give no weight to the photographs relied upon by the Applicant to establish that JG is her biological father.

Blood groups

82. In an email to the Respondent dated 6 July 2023, the Applicant stated that she was a “white woman with blonde hair and blue eyes like my mother”, and that the Applicant’s blood group was AB+. She stated that JPG could not be her biological father as he was O+, and that if he were her biological father her blood group would be A+. No supporting evidence of the Applicant’s blood type or that of JG or JPG was adduced by the Applicant nor was any expert evidence provided in relation to this issue. Whilst the Applicant indicated that she would be assisted by relying on the blood group of known relatives of JPG, it is not clear how this would be of assistance in the absence of evidence of JPG’s blood group. In the circumstances, I am unable to give weight to the Applicant’s assertion that her blood group proves that she is not the daughter of JPG, and that JG is her biological father.

DNA

83. The Decision refers to the requirement of the Respondent when adding or removing a parent a parent from a birth registration, to have specific evidence in accordance with s 18 of the BDMR Act made available to it. Examples were given such as DNA evidence, a court order, or evidence from the parents. Whilst the evidence suggests that the Applicant has sought to obtain DNA evidence from various sources, it appears that such DNA evidence has not been obtained. In any event, no such evidence was adduced by the Applicant in these proceedings.

Conclusion

84. Having regard to all of the evidence in this matter, I am satisfied a presumption is available that JPG is the Applicant’s father, and that this presumption has not been rebutted by the Applicant. Accordingly, I am satisfied that the entry relating to the Applicant’s birth registration is “in conformity with the most reliable information available to the Registrar of the registrable event” in accordance with s 45(1)(b) of the BDMR Act and that the Register does not require correction. I am similarly satisfied in relation to the death registrations of both JG and JPG.

85. It follows the correct and preferable decision in this matter is to affirm the Respondent’s Decision in this matter.

Order

1. The decision under review is affirmed.

2. Pursuant to s 64(1)(b) of the NCAT Act, the publication or broadcast of any report, including a sound recording or transcript of proceedings in the Tribunal relating to any Confidential Information, including any oral or documentary material is prohibited.

3. Pursuant to s 64(1)(c) of the NCAT Act, the publication of any Confidential Information in the proceedings, including any oral or documentary material relating to any Confidential Information is prohibited.

4. Pursuant to s 64(1)(b) and s 64(1)(c) of the NCAT Act, the disclosure of any Confidential Information in the proceedings, including any oral or documentary material relating to any Confidential Information, is restricted to the Applicant, to the Respondent and to the legal representatives of either party.

5. Except pursuant to order (5) below, all paragraphs marked “[NOT FOR PUBLICATION]” are not to be published pursuant to s 64(1)(c) of the NCAT Act

6. A copy of these reasons, without redaction shall be released to the Applicant and to the Respondent

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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

Decision last updated: 08 April 2025