Groth v Registrar of Births, Deaths and Marriages

Case •

[2021] NSWCATAD 271

•

17 September 2021

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Groth v Registrar of Births, Deaths and Marriages [2021] NSWCATAD 271
Hearing dates: 15 March 2021, 13 July 2021
Date of orders: 17 September 2021
Decision date: 17 September 2021
Jurisdiction:Administrative and Equal Opportunity Division
Before: S E Frost, Senior Member
Decision:

(1)   Set aside the decision under review.

(2)   Order the Respondent to make an addition to the particulars contained in the entry relating to the birth of the Applicant, so as to record the Applicant’s father as Dennis John Finlay.

Catchwords:

ADMINISTRATIVE LAW – births, deaths and marriages – birth record for the Applicant does not state name of the father – Applicant and her mother claim an identified person was her father – claim disputed by offspring of the identified person

Legislation Cited:

Births, Deaths and Marriages Registration Act 1995 (NSW)

Administrative Decisions Review Act 1997 (NSW)

Status of Children Act 1996 (NSW)

Cases Cited:

None cited

Texts Cited:

None cited

Category:Principal judgment
Parties: Kristy Groth (Applicant)
Registrar of Births, Deaths and Marriages (First Respondent)
Leah Finlay (Second Respondent)
Representation: Solicitors:
Applicant (Self-represented) (assisted by her husband David Groth as agent (by leave)
Department of Customer Service (First Respondent)
Second Respondent (Self-represented)
File Number(s): 2020/00273903
Publication restriction: No restriction

reasons for decision

Introduction

  1. Kristy Groth was born Kristy Weaver in 1978. Shortly after her birth her mother, Debbie Weaver, registered the birth with the Registrar. The section of the registration form labelled ‘Father’ was left blank. As a result Ms Groth’s birth certificate shows no-one’s name in the place where the father’s name would normally be shown.

  2. Ms Groth says her father was the late Dennis Finlay, who died in July 2018. That is what her mother has told her over the years. Ms Groth has asked the Registrar to amend her birth record to show Mr Finlay as her father. The Registrar, not satisfied that Ms Groth’s claim is reliable, has refused to amend the record.

  3. Ms Groth has applied to the Tribunal for review of the Registrar’s decision to refuse to amend the record.

  4. One of Dennis Finlay’s children, Leah Finlay, disputes Ms Groth’s claim and has been joined as the second respondent in these proceedings.

  5. I accept Ms Groth’s claim that Dennis Finlay was her father and order the Registrar to correct the record accordingly. My reasons follow.

  6. Throughout the rest of these reasons I will refer to Ms Groth as ‘Kristy’, Ms Weaver as ‘Debbie’, Ms Finlay as ‘Leah’, Mr Dennis Finlay as ‘Dennis’ and Leah’s brother David Finlay as ‘David’. I do so not out of a lack of respect but to make the reasons for decision easier to follow.

The issues for determination

  1. The issues for the Tribunal to determine are, first, whether the information before the Tribunal relating to the claim that Dennis was Kristy’s father is the most reliable information about that question; and second, if the answer to that question is yes, then whether the Register should be corrected accordingly.

The Tribunal’s jurisdiction

  1. The application for administrative review of the Registrar’s decision is brought under s 56 of the Births, Deaths and Marriages Registration Act 1995 (NSW) (the BDMR Act). The administrative review of the Registrar’s decision is to be conducted under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act): BDMR Act, s 56(1).

  2. Section 63 of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it (subsection (1)); and for the purpose of conducting the review, the Tribunal may exercise all of the functions that are conferred or imposed by the relevant legislation on the Registrar (subsection (2)).

Relevant legislation

  1. One of the objects of the BDMR Act is to provide for the registration of births (s 3). For this purpose the Registrar is to establish and maintain a register of births, and maintain the integrity of the Register (s 6).

  2. The Register holds ‘registrable information’ – which, in relation to a birth, includes the full name, 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 (s 4(1), and clause 5(1)(d) of the Births, Deaths and Marriages Registration Regulation 2017 (NSW) (the Regulations)).

  3. Section 18 of the BDMR Act restricts the circumstances in which the Registrar is permitted to include ‘registrable information’ about the identity of a child’s parent. Only two of the listed circumstances may possibly apply here.

  4. One of those circumstances is where one parent makes the application and the other parent cannot join in the application because he or she is dead. (That circumstance only applies if, in fact, Dennis was the ‘other parent’.)

  5. The other circumstance is where 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’.

  6. The final provision relevant to the Tribunal’s review is s 45 of the BDMR Act, under which the Registrar may correct the Register ‘to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event’.

The Registrar’s response to Kristy’s application

  1. The Registrar wrote to Kristy on 18 September 2018 to inform her there were 3 options for having her application granted:

  • Provide DNA testing report to confirm Dennis was her biological father;

  • Provide a court order that either makes a clear finding about the identity of the father, or directs the Registry to add a person as the father; or

  • Provide 2 statutory declarations from Dennis’ immediate family (e.g. his parents or siblings).

  1. It was explained, in relation to the third option, that an application to add a parent is usually made, where parents agree to the paternity, by having them both sign the form. But where one party is deceased the Registry may accept statements on behalf of the deceased. In that event each declarant should confirm:

  • Their name and relationship to the deceased and child.

  • If they agree that Dennis was the biological father.

  • How did they obtain this knowledge – for example, did Dennis tell them directly that he was the father?

  • Any other relevant information.

  1. Kristy was ultimately able to provide only one statutory declaration satisfying the Registrar’s requirements, this being from Dennis’ brother Jim (see [24] below). The application to have Dennis’ name added to Kristy’s birth record was refused, on the ground of insufficient evidence. That decision was affirmed on internal review, the review officer noting that ‘the aspect of paternity was not addressed in the deed of release’.

  2. The deed of release referred to by the review officer is a document dated 4 October 2019 that gave effect to the settlement of a Supreme Court proceeding commenced by Kristy earlier that year and seeking, among other things, a share of Dennis’ estate, a declaration that she was a child of Dennis, and interlocutory orders seeking DNA testing to establish parentage. I will deal with the circumstances leading to the commencement of that proceeding in more detail later in these reasons. First I will deal with the evidence filed in support of, and against, Kristy’s application to the Tribunal.

The relationship between Dennis and Debbie

  1. The logical starting point for the Tribunal’s review is the relationship between Dennis and Debbie. It is not disputed that there was such a relationship, and Debbie says the relationship spanned almost four years, from the middle of 1976 until April 1980. I find that to have been the case.

  2. Debbie has provided a statutory declaration dated 30 November 2018 in which she makes the following claim:

During the time we lived together we had discussions about having a baby and I subsequently fell pregnant with Kristy. In the twelve months preceding Kristy’s birth on [date omitted by the Tribunal for privacy reasons] I did not have sexual intercourse with any other person. There is no possibility that anyone other than Dennis John Finlay is Kristy’s father.

  1. Debbie made the same claim in an affidavit sworn for the purposes of the Supreme Court proceeding commenced by Kristy and referred to above.

  2. There are people who knew Dennis and Debbie around the time of Kristy’s birth, and who have provided statements supporting a claim that Dennis was Kristy’s father.

  3. One is James Earnest (Jim) Finlay, one of Dennis’ brothers. His statutory declaration dated 14 October 2020 includes the following:

Kristy Groth is the daughter of my brother Dennis Finlay. I know this because while Debbie was pregnant Dennis said they were going to have a baby. Dennis was at the birth. I visited the hospital and Dennis introduced Kristy as his daughter. They were living together as a family until around 1980 when Kristy was around 2 yrs old. About 10 yrs later we went camping to Mount Seaview. Kristy met Diahna and Troy my children. While in Philopines (sic) with Dennis he spoke of his involv[e]ment with Kristy his daughter. At his funeral there were several mentions of Kristy Dennis’s daughter. I have no doubt Kristy is Dennis’s daughter.

  1. Another is Kevin Dale Weaver, Debbie’s brother, who made a statutory declaration on 3 September 2019 which includes the following:

I have no doubt what so ever that Dennis Finlay is the biological father of Kristy Groth ‘Weaver’. I knew Dennis very well and had a close brother in law type relationship with him during the period he was my sister Debbie Weaver’s partner.

I clearly remember the very first time I met Kristy, she was about 2 weeks old, Debbie & Dennis lived at Anna bay NSW. I had travelled from my home in Sydney to meet Kristy. On arrival at [their] house I clearly recall being greeted by Dennis and Debbie, Dennis had Kristy in his arms and tears in his eyes as he passed her to me to have a hold, Dennis expressed how ex[c]ited he was to be a father for the first time and how he loved his little girl.

… Over the next 12 months or so … Dennis often spoke about how he loved being a father and how much he loved his little girl, Kristy.

Dennis and Debbie eventually split up as a couple, … I didn’t see Dennis again for about 12 months when I ran into him in Hunter St Newcastle … Dennis expressed his sadness about not being around to watch his little girl, Kristy, growing up. The next time I saw Dennis was when he and his new wife and his new born baby Leah visited my house in Warners bay NSW, Debbie and Kristy were living with my partner and myself. ‘A planned visit.’ The whole and only purpose of this visit was for Kristy to meet her new baby sister Leah, again I recall Dennis making a fuss about his two little girls …

  1. Then there is David Craig Etheridge, who states he knew Dennis and Debbie before and during the time they were together as a couple. His statutory declaration dated 16 September 2019 includes this:

I remember we were in the surf when Dennis told me he and Debbie were expecting with Kristy. I asked if he would prefer a boy or girl, he smiled and said it doesn’t matter as long as both Debbie and baby were healthy. I was with Dennis the night Kristy was born at the hospital and I can honestly say up to the day he passed, I have never seen more pride and love on his face when he first laid eyes on Kristy. I think he said she was the most beautiful baby he had seen. We spoke of Kristy a fair bit even after he and Deb split up, and with all this drama going on which I cannot understand why, because Kristy is Dennis daughter through and through. I truly think he would be turning in his grave. He was so proud of how Kristy had grown into a beautiful lady and loving mother.

  1. Others – who, it must be emphasised, did not know Dennis and Debbie around the time of their relationship – speak somewhat differently.

  2. For example, Dennis’ ex-wife, Robyn Jones-Finlay (Robyn), who started a relationship with Dennis in October 1980, some six months after he split up with Debbie, says in her statutory declaration – which, although bearing the date 8 January 2018, was clearly made after Dennis’ death, and therefore, most likely, one year later, on 8 January 2019:

I commenced a relationship with Dennis John Finlay in October, 1980 and we subsequently married in October, 1981.

In February, 1981 Dennis told me he was in a previous relationship for a short period of time with Debbie Weaver and that she had had a little girl Kristy Weaver.

When I asked Dennis if the child (Kristy) was his child he became anxious and said to me ‘I really don’t know’. I said ‘what do you mean?’ as Kristy had never been spoken about prior. He said to me ‘When Kristy was born, Debbie refused to have me listed on the birth certificate as Kristy’s father’.

He told me Debbie went home to live at her parent’s home after the birth.

Dennis told me that on an occasion Debbie’s father chased him from their home wielding an axe. As a result he never returned and Debbie cut off all contact with him. I understood this to happen at some point within the following 3-4 months after Kristy was born. Consequently, he had no relationship with Kristy.

  1. Leah and her younger brother David report their father’s rejection of the claim that he was Kristy’s father.

  2. Leah’s statutory declaration dated 24 February 2021 includes this:

On 19/6/2018 Dave and I went down to Sydney together to see dad as per his request. Upon arrival he was coughing quite badly and clearly needing assistance so, I called an ambulance and we again went with him to Emergency in the ambulance. … After the hospital conducted tests, they moved him to his ward for observation, it was during our time with dad on this visit that he explained to us that he had been wanting us to come down together so that we could discuss his final wishes. It was in this conversation that Kristy was mentioned. Dad said to me ‘I need to talk to you about Kristy, Leah, Dave already knows, Kristy is not my daughter’. Dad said to us ‘I don’t have long to go, so I need you to know this as her and Debbie (Kristy’s mum) will come after money’. ‘Debbie refused to let me in the hospital when Kristy was born, I know she was sleeping around and I am not on Kristy’s birth certificate, Debbie and I had no contact from when Kristy was a baby then when she found out I had the property at Mt View when Kristy was 17, she came back on the scene and told me Kristy needed help’.

Dad said to me ‘I tried to stop any contact you had with her’. This made sense to me as when Kristy was introduced to dad, Dave & I at the age of 17 (approx. 1995), we attended her 18th birthday and then never heard anything from her or Debbie until she got married in 2002. She went to my dad’s property on no more than two occasions in 1995 with her friends and never again since. Dad went onto say ‘she is nothing like us, she looks nothing like me, she has not one personality or mannerism of mine, she visited the property twice when she was 17 and has never come to visit me in more than 20 years even when I was in hospital getting chemo’. He said, ‘When they (Debbie and Kristy) found out I had money they tried to get me on the birth certificate, I told Debbie to go to hell’. He kept repeating ‘when I’m gone her, and Debbie (Kristy’s mum) will come after the farm, but I have put measures in place with your mum to protect it from them (Kristy & Debbie)’. He went on to tell me this was in reference to the fact my parents had completed a property settlement in approx. 1991, the only property they owned jointly was ‘the farm’ and whilst the property settlement was completed my dad kept my mum’s name on the title deeds as an owner. … He told us he had listed Dave and I as Executors on his Will and said, ‘no parent of 3 children would only list 2 of their children’. …

He told us to offer Kristy a small amount out of the estate in his words ‘to get rid of her’. He told me ‘I don’t think they’ll (referring to Kristy and Debbie) go easily, if they don’t and they cause any trouble for you tell her to provide her birth certificate as proof that she’s a child because I know I’m not on it’.

  1. David’s statutory declaration dated 23 February 2021 includes this:

I met Kristy 2-3 times when I was approx. 10 years old. During this time dad made several derogatory remarks about Kristy’s mum ‘Debbie’ including she was only after money and a that (sic) she was a ‘town bike’. Following these 2-3 occasions I had no further contact with Kristy until our family was invited to her wedding in approximately 2002. I was around 17 years old. I spoke to dad on a number of occasions leading up to the wedding and he made it clear he was not comfortable attending and that he felt like he was only filling a ‘figure position’ as many a decent man would if asked by a young lady on a wedding day.

…

On 19/6/2018 on a visit to dads with my sister Leah, Dad specifically said that Kristy was not his child, he clearly felt the need to clear the air and advise Leah and I of his final wishes. Kristy was not mentioned in his Will, yet Leah and I are Executors. He made it clear in his discussions with Leah and I that he did this specifically as no parent would exclude a single child, especially an eldest from something as important as this role. He did not feel the need to specifically list his children by name as beneficiaries as he knew he was not listed on Kristy’s birth certificate. He told us if she turned into a ‘green eyed monster’ to demand proof of parentage. That is what we did after she made her priorities clear following his death. I have known over the years by discussions with dad that Debbie and Kristy have attempted in the past to have him added to Kristy’s birth certificate all of which he refused.

  1. Debbie, Leah, David and Robyn Jones-Finlay were questioned during the hearing and all of them maintained what they said in their statements was true. None of the other people who made written statements – Jim Finlay, Kevin Weaver and David Etheridge – were required for cross-examination.

The registration of Kristy’s birth

  1. Debbie is the person who provided Kristy’s birth information to the Registrar. Her statutory declaration explains why she didn’t include Dennis’ name as the father:

There were times during my relationship with Dennis when he became violent. Even during my pregnancy he pushed me around. On many occasions he said to me words to the effect, ‘If you leave me I am gunna take the baby away from you.’.

I was scared of Dennis and believed that he might carry through with his threat. When Kristy was born I didn’t list Dennis on the Registration of Kristy’s birth. I believed that this would prevent him from taking Kristy from me.

At no time after Kristy’s birth did I tell Dennis that he was not on Kristy’s Birth Certificate.

In early April 1980, Dennis punched me so hard in the head he knocked me out. When I came to, I grabbed Kristy and left. We never returned.

  1. In her oral evidence she repeated the allegation about Dennis’ violent behaviour and used the word ‘fled’ to describe how she left him.

Kristy’s relationship with Dennis

  1. Dennis and Debbie were living together when Kristy was born and, as I have found, they continued to do so with Kristy until April 1980. By that time Kristy would have been about 21 months old. That does not fit with Robyn’s timeframe (see [28] above) which had Debbie leaving Dennis no later than about November or December 2018, but Robyn had no direct knowledge of the relationship and I accept Debbie’s version.

  2. Debbie said that after she left with Kristy she applied for a single parent’s pension and she listed Dennis on the application as Kristy’s father. She also said Dennis paid what she describes as child maintenance (most likely child support), but only from time to time. At some stage, according to Debbie, Dennis applied to reduce his payment to her from $15 to $5 per week, and she didn’t oppose that. She thinks he paid her over a period of only about 5 months, and then seemingly only intermittently, with the payments going straight into her bank account. She said she was pretty sure her pension was adjusted when he paid her.

  1. In any event, according to Debbie, Dennis came to visit her and Kristy the day after Kristy’s second birthday – only a matter of months after they split up in April 1980. He told Debbie he wanted to see Kristy and had some presents for her. He spent some hours with Debbie and Kristy, and asked if he could visit from time to time. Debbie said he could. He visited ‘occasionally’ until he and Debbie lost contact around the end of 1981 or early 1982 (which, the Tribunal notes, is after Dennis had married Robyn). They then had no contact for about 8 years. Obviously Kristy would have had no contact with Dennis during that 8-year period.

  2. Debbie and Dennis reconnected, apparently quite by accident, when Dennis happened to sit down next to a friend of Debbie’s, ‘Rob’, in a park in Newcastle. Dennis started talking to Rob about ‘Debbie’ and ‘Kristy’, Rob made the connection and Dennis gave him his phone number. Debbie subsequently called Dennis and then Debbie and her partner took Kristy out to Dennis’ farm for a visit.

  3. If Debbie’s version is correct then this next contact between Kristy and Dennis would have been when Kristy was about 11 or 12 years old.

  4. Kristy’s version is a little different, although the timing is roughly the same. In response to questions asked by Ms Kington, representing the Registrar, Kristy said that around the end of her primary school years Dennis came to the house where she and Debbie were living; presumably he had been invited. He introduced himself to Kristy as her dad, and Leah and David as her sister and brother. Before this, she said, she had been told a lot about him, and she had photos of him, but she didn’t remember him.

  5. Leah does not acknowledge this meeting. She says the first contact she and her brother had with Kristy was 4 or 5 years later, when she, Leah, was about 12. By that stage Kristy would have been 16 or perhaps 17 years old. As Leah described it in the eulogy she delivered at Dennis’ funeral:

Around the age of 12 he sat us down and told Dave and I we had a sister. We didn’t know whether to believe him as he was always playing jokes on us but we were soon introduced to our sister Kristy who was around the age of 16 at the time and above all else she was the greatest gift dad ever gave us.

  1. Dennis attended Kristy’s 18th birthday party in 1996 and he walked her down the aisle when she married David Groth in 2002. Dennis gave a speech at the wedding reception, as the father of the bride, and, according to Kristy, referred to her ‘on many occasions’ as ‘my daughter’. He is recorded as Kristy’s father on the marriage certificate – but that in itself is of no significance. Kristy has provided photos of Dennis with Kristy and the rest of the bridal party, before the ceremony, as they were getting ready; Dennis and Kristy (and Debbie) in the car on the way to the church; Dennis entering the church with Kristy on his arm; Dennis sitting next to Debbie in the church; Dennis with the bride after the ceremony; Dennis and Debbie with the newly married couple; Dennis giving the speech at the reception; and Dennis dancing with Debbie at the reception.

  2. Robyn claims she was the one who wrote Dennis’ ‘father of the bride’ speech, in the car as they were on the 6-hour drive to the wedding in Maclean. She was an English teacher and Dennis told her ‘you know how to write speeches’, so she did, and Dennis read the speech in its entirety.

  3. That Dennis agreed to deliver the ‘father of the bride’ speech at Kristy’s wedding invites the inference that he accepted he was Kristy’s father. But Robyn disagrees: in her view he ‘displayed the obligatory politeness and courtesy in his words and actions that you would expect at any wedding, to avoid creating conflict’. David Finlay says something similar: see [31] above: Dennis ‘made it clear he was not comfortable attending and that he felt like he was only filling a “figure position” as many a decent man would if asked by a young lady on a wedding day’.

  4. Leah, who was maid of honour at Kristy’s wedding, also seems to have thought Dennis was doing Kristy a favour by allowing himself to be held out as the father of the bride. She said in her statutory declaration:

When I was asked by Kristy to participate in her wedding this came as a huge shock as we had no contact in over 5 years. Kristy told me she was getting married in a very strict Catholic Church and had to undergo ‘classes’ to be allowed to get married there. I presumed it would have been embarrassing for her not to list someone as a father. My recollection of her Wedding Day I signed a commemorative Wedding Certificate and there were no father’s details listed on it. I do not believe my father signed anything to be added to her marriage certificate I believe Kristy was the person who added his details on the certificate without his knowledge.

I remember my father being extremely nervous about attending Kristy’s wedding. He told myself and my brother that he could not attend. My parents had been divorced for 14 years at this time. The only way we could be certain he would attend was for my mother to drive him 6 hours to the wedding. I recall during the wedding he stayed very close to my mum, my brother and myself and it was clear he did not feel comfortable being there.

  1. If this version is accurate, then Dennis’ initial reaction seems to have been a preference to decline the invitation – he told Leah and David he could not attend – but he was forced to go, against his will. If that is the case then it seems to have been well hidden from Kristy.

  2. Apart from the 18th birthday party in 1996 and the wedding in 2002, Kristy says Dennis also visited her when she gave birth to each of her children – the first in 2005 and the second in 2007. The language Kristy used is ‘Dennis came up to see me’ – and it seems he was living in Sydney on both occasions, quite a distance away from her.

  3. But Leah disputes Kristy’s version. In her statutory declaration she said:

In the photos of Bella (Kristy’s daughter) with my dad I am present in these photos and the reason I am in those photos is because dad and I were on our way to one of our regular fossicking trips to Glen Innes. The only reason we called into Kristy’s house was because I was driving and insisted on calling in. The next lot of pictures are at my house at Charlestown and while Kristy has stated Bella is 2 years old, this is inaccurate and clear by the pictures of Bella, she was approx. 9 months old and the only reason my dad was there was because it was around the time of my birthday and he called in to see me for this reason. Bella was 13 years old when my dad passed away. My dad never met Kristy’s son Josh, he was aged 11.

  1. Kristy said it was only in about 2002 that she first became aware Dennis wasn’t named as the father on her birth record. Prior to this, such as when she had got her driver’s licence, she had relied on an ‘extract’ of the record, which doesn’t list the parents’ names. But she needed a full certificate to support her application for a passport in 2002.

  2. She said she was surprised to discover his name wasn’t recorded. She asked her mother why his name wasn’t there but she didn’t raise the issue with Dennis. When asked why, she said she was ‘just a little bit embarrassed’ that his name wasn’t on the record. She said she ‘had planned to get it all fixed’ but Ms Kington, noting that 16 years had passed before she took action to have the record amended, asked her about the apparent lack of urgency. She replied:

I had planned to bring it up with him and take the paperwork down to him. I didn’t feel like there would be any problem or any issue with him signing it. […] There’s never been any question about him being my father or not being my father and I didn’t see the urgency. I knew it was something I had to fix up. I knew I had to organise it and get it fixed up. I got the application back in 2016 and I gave it to my mum to fill out her section and she gave it back to me, and I just had it sitting there and I realised she hadn’t actually given me any of the identification documents that were required to go with it. And I just didn’t see, I just didn’t expect that he was going to pass away, and I just didn’t see the urgency in it. I can now see the urgency in it and the importance of it – but I wouldn’t have thought that both Leah and David would turn around and dispute this either.

  1. Kristy has provided a lot of material to the Tribunal in an attempt to show the extent of her relationship with Dennis. The material includes:

  1. photos – apart from the wedding photos (some with Leah, David and Robyn), there are others depicting Dennis holding Kristy in his arms shortly after she was born; Dennis and Debbie together with the baby; Dennis with his grandmother and Kristy; Kristy visiting Leah at her house in Charlestown, some showing Leah and Dennis (separately) with Kristy’s daughter; photos of Kristy, Leah, David and Jim Finlay (and others) at Dennis’ wake;

  2. an engagement card which Kristy says is from Dennis and David: ‘To Dear Kristy and David – Congratulations and wishing you much happiness in the future together, lots of love and best wishes, Dave xxx and Dad xxx’;

  3. a wedding card which Kristy says is from Dennis: ‘To Kristy and David – Wishing you both all the best for now and the future, Your loving farther and farther in law (sic)’;

  4. a card received on the birth of Kristy’s daughter, which Kristy says is from Dennis: ‘Dear Kristy, Dave – Congratulations on your beautiful baby girl Bella, Love Dad and grandad’.

  1. Leah does not accept that the cards in (b), (c) and (d) were written by Dennis.

Kristy’s relationship with Leah and David

  1. Also in the material Kristy provided to the Tribunal are:

  1. photos depicting Leah and David (but not Dennis) at Kristy’s engagement party; Leah at her own wedding (with Kristy, her matron of honour); Leah and David (but not Dennis) at Kristy’s 30th birthday party in Port Macquarie; Leah and her children visiting Kristy and her family in Grafton, and also in Yamba; Leah and her children on holiday in Coffs Harbour with Kristy and her children;

  2. several birthday and Christmas cards from Leah and her family over the years, most of them to Kristy but some to her children;

  3. a print-out of text messages between Kristy and Leah, and between Kristy and David, and also Instagram Messenger messages between Kristy and David, some of them dating back to 2012.

  1. Many of the birthday and Christmas cards are not dated but they seem to go back several years. They include the following handwritten wishes:

Dearest Kristy – Happy Birthday Sis! We wish you all the happiness + love in the world! Have a great Birthday. Miss you + Love you heaps and heaps, (heart shape) Leah & Ben xxxxxx

Dear Kristy, Happy Birthday to you! I am so grateful + happy to have you as my sister, may all your dreams come true for today and everyday to follow! Miss you heaps, Love Always Leah, Ben + little one! Xxx

Dear Aunty Kristy – Happy ‘30th’ Birthday! You are the best sister and aunty anyone could ask for, and on this day we wish you all the love + happiness. May all your dreams come true! We miss you and Love You HEAPS, (heart shape) Always Leah, Ben + Lily xxx

Dear Aunty Kristy, To our gorgeous sister + aunty! We hope you have a beautiful day! Miss you! All our Love, Leah, Ben + Lily xxx

  1. The text messages disclose unremarkable communications such as plans to visit each other, how the children are going, what to get them for their birthday and things of that nature. Even as late as April 2018 there are messages between Kristy and Leah trying to arrange a catch-up in Surfers Paradise, with Leah texting ‘can’t wait to see u’ on 17 April.

  2. Kristy said in her oral evidence that she felt like she was in a very close relationship with Leah until Dennis died. That would soon unravel.

What happened after Dennis died

  1. After the text message dated 17 April 2018 ([55] above) the next text message provided by Kristy in her material is dated 17 July, with Leah texting Kristy:

Hey, sorry to be the bearer of bad news but dad passed away this morning. Xxx

  1. Three days later Kristy texted:

Hi Leah, I hope you’re ok. Can you please call me when you get a chance. Thanks xxx

  1. Later that day, 20 July, Kristy texted Leah to ask ‘Was Dad 62 or 63?’ Leah replied ‘63’ and added some comments about the photos for the funeral service, and telling Leah what time the funeral would be.

  2. Kristy seems to have been given the task of making arrangements for the post-service refreshments: there are several messages where she kept Leah updated on the information she was getting from the ‘Seabreeze’, presumably the Seabreeze Hotel in Nelson Bay, where the wake was held.

  3. On 29 July, two days after the funeral, Kristy texted Leah:

Hi Leah, I’m really hoping to get a copy of the photo slideshow from the funeral, would I be able to copy it or get a copy of the photos? I hope you got to have a relaxing weekend after a very stressful couple of weeks. You did a beautiful eulogy. Dad would have been very proud of you xxxx

  1. Leah replied:

Hey, thanks. How was the trip home? Yep I’ve got to get one done for Dave as well. As soon as I get a chance I’ll get it done and send u up a copy xxxx

  1. On 5 August Leah texted Kristy to ask if she could call her later, and Kristy replied ‘Ok’. That call presumably took place, since the next text message is dated 16 August, from Kristy to Leah at 8:14 am:

Hi Leah, you mentioned Dad’s Will was a mess and worded badly. Can you please send me a copy? Is there anything you need me to do? I’m here to help xx

  1. Leah replied at 9:57 am:

Hi, the Will is worded clearly it just only lists Dave and I. I’m dealing with the probate application now and have listed u on there so u are going to get some money out of the estate. Can u send through a copy of your birth certificate to my email as the court requires them from us for the orders. I’m trying to get the probate sent off over the weekend so if u could send it through tonight that would be great. Once the probates finalized in a few months I will look at distribution of assets and let you know what you will be getting x

  1. Kristy then texted:

What do you mean, am I not listed as his child?

  1. Kristy asked for a copy of the will, and Leah texted her an image of it. Leah followed up with another text:

Here it is, if u could send me your birth certificate to my email please that would be great x if you have any questions give me a buzz tonight as I’m at work x

And then shortly after, another text from Leah to Kristy:

Are u okay? I just wanted to make sure your okay after reading that? I was hoping I didn’t have to send it to u as I didn’t want to upset you.

  1. The next afternoon, 17 August, Kristy texted Leah:

I’ve applied for a birth certificate. I’ll send it through when it arrives. I’m okay thanks. I didn’t think I was executor

  1. A week later, 24 August, Leah texted:

Hi, any idea on when the birth certificate will arrive? I need to send the paperwork off

  1. Kristy replied ‘Usually takes a few weeks, sorry’.

  2. While these exchanges were taking place, Kristy had applied to the Registrar, not for a birth certificate as she had indicated to Leah, but for an amendment to her birth record to include Dennis as her father. The covering letter to the application is dated 19 July 2018 but it is stamped as received in the Registry on 27 July 2018.

  3. Then on 28 August 2018 Leah applied to the Registrar for an amendment to Dennis’ death certificate – which had originally shown Kristy as one of his children – to remove Kristy’s name. The application includes the statement, evidently made by Leah, that ‘Only biological children are Leah 36 years and David John 33 years. Error was made by funeral home. Kristy is not listed as a biological child.’ That application was approved, and Kristy’s name was removed from Dennis’ death certificate.

  4. The Supreme Court made a grant of probate on 16 October 2018. That left Leah free to distribute Dennis’ estate in accordance with his will – ‘equally among those of my children who survive me’. By this time there was a clear divergence of opinion between Leah and David, on the one hand, and Kristy on the other, as to who answered the relevant description. Kristy was evidently becoming concerned that Leah would not be including her in the distribution.

  5. On 21 October Kristy sent a message to David:

Hi Dave, I really would like to know what your opinion is on the way Leah is handling Dad’s will. The minute I got notified by Births Deaths and Marriages that Leah had applied to have me removed from Dad’s Death Certificate was the moment that I realised what her intentions were. Whether you are completely aware of what’s going on, I have no idea. I find it really hard to believe that you would be going along with this. Do you honestly believe that Dad is not my Dad?? This has been the most horrible and hurtful thing that anyone has ever done to me. To think that all theses (sic) years meant nothing to Leah and she is happy enough to throw her relationship with me, Dave and the kids away. Please call me.

  1. David did not reply to Kristy because, according to his statutory declaration, ‘she is not my sister. Everything she has done following dads death infuriated me then and still to this day sickens me and surprises me in what lengths some people will go to for financial gain.’

  2. The next text message available to the Tribunal is dated 6 November 2018, from Leah to Kristy:

Dave and I are just trying to follow our dad’s wishes. Dad instructed his solicitor to not list you to look after his will for the same reason he refused to sign a birth certificate. There were several conversations between dad’s solicitor Dave and I leading up to his death where his wishes were made explicitly clear to all. Dave and I were both sickened to be told only days following his death that you applied to have him added to your birth certificate after 40 years and after he could no longer contest it, your motives purely for financial gain from his death were clear. You then lied and deceived us by implying he was on your birth certificate when you know full well he wasn’t and never intended to be. Your actions following his death were hurtful to all involved and dad would be absolutely livid if he was here to see the lengths you have gone to to deceive people. If you have any other correspondence for Dave or myself your solicitor already had dad’s solicitors details.

  1. Kristy replied ‘You are such a liar and he never refused to sign it.’ That is the end of the thread provided to the Tribunal.

DNA testing?

  1. By that time, November 2018, the Registrar had given Kristy the 3 options that were available to her to convince the Registrar to amend her birth record (see [16] above), one of which was to provide a DNA testing report confirming that Dennis was her biological father.

  2. In that regard Kristy’s solicitor, David Nelmes, had written to Nepean Blue Mountains Health District on 31 October 2018 (Nelmes statutory declaration dated 10 March 2021, Annexure C – for convenience, Nelmes ‘C’) asking if any blood or other tissue samples had been taken from the deceased which might be made available for DNA testing. The response dated 5 November 2018 indicated that ‘[i]n order to release any specimens we require a subpoena or the consent of the deceased’s Next of Kin or authorized legal representative.’ That response did not explicitly state there were specimens available, and nor did the email dated 7 November 2018 from NSW Health Pathology on the same topic.

  3. Mr Nelmes then wrote on 9 November 2018 (Nelmes ‘F’) to Leah’s solicitors, Peter Dawson & Associates (PDA), to say he had ‘been advised by the Operations Manager of NSW Health Pathology-Nepean that they may be able to provide specimens taken from the deceased during his lifetime to assist in DNA Testing if required’. He therefore asked PDA to have Leah sign an ‘Authority’, which he had drafted, for the release of any such specimens to Kristy, or alternatively to him as her solicitor.

  1. On 12 November 2018 PDA replied as follows (Nelmes ‘G’):

Our client has been advised by NSW Hea[l]th Pathology-Nepean that they do not have any viable specimens taken from the deceased during his lifetime that can be used for such testing. Therefore, if there are viable specimens, please provide us with a letter from the Operations Manager of NSW Hea[l]th Pathology-Nepean confirming that they are able to provide specimens to assist in DNA Testing.

  1. That led to further correspondence between the legal representatives, with Mr Nelmes asking on 12 December 2018 (Nelmes ‘I’) whether PDA had anything in writing from NSW Health to confirm there were no viable specimens, and asking again for a signed Authority in case it might be needed. (This letter included other content which I will return to later – see [86] below.)

  2. On 5 February 2019, PDA on Leah’s behalf made an offer to Kristy as a means of settling her claim on Dennis’ estate. At this stage there were still communications between the solicitors about the possibility of DNA testing but nothing had been resolved on that score.

  3. On 4 March 2019 (Nelmes ‘L’) PDA indicated that NSW Health ‘advised they are in possession of a serum specimen from the deceased’ but because Dennis had been diagnosed with tuberculosis, only a specially accredited laboratory could do a DNA test of the specimen and in any event the specimen may not be sufficient for testing purposes. Furthermore PDA held the belief that NSW Health would only release the specimen under court order – and that belief would not be shaken unless NSW Health indicated otherwise. The letter also indicated that if Kristy wished to proceed with having the specimen DNA tested, then the offer conveyed in the letter of 5 February 2019 would be withdrawn.

  4. (Annexure ‘O’ to Leah’s statutory declaration dated 24 February 2021 – for convenience, Leah’s Annexure ‘O’ – is a letter on PDA letterhead addressed to Mr Nelmes, and dated 13 February 2019. Some of the content is identical to Nelmes ‘L’ but some of it is different. There was a dispute during the hearing as to whether Leah’s Annexure ‘O’ ever issued to Mr Nelmes. Since Nelmes ‘L’ definitely did issue to Mr Nelmes, and it is unlikely that both it and Leah’s Annexure ‘O’ would have been sent by PDA, I find that Leah’s Annexure ‘O’ was an early draft of Nelmes ‘L’ and it was never sent in that form. I make that finding only for completeness; ultimately I think it has little bearing on the fundamental dispute here.)

  5. It seems the Supreme Court proceedings were commenced in or around April 2019. They were formally settled in October 2019. No DNA testing was ever carried out and the deed of release is silent on the question of paternity. If there were any samples available for DNA testing they were destroyed in around July 2019, one year after Dennis died. Leah’s solicitor says both she and Mr Nelmes knew it was standard practice in NSW to destroy samples 12 months after death; Mr Nelmes says he was unaware of this. Leah suggests there was no resistance on her part to the release of any samples that may have been available, but blames the failure to get the DNA testing done on Mr Nelmes’ inaction. Kristy blames it on Leah’s refusal to provide the signed ‘Authority’ Mr Nelmes had asked for.

The other content of Nelmes ‘I’

  1. Mr Nelmes’ letter dated 12 December 2018 to PDA, referred to above as Nelmes ‘I’, also included the following (emphasis in the original):

I confirm that my client is proceeding with the claim that the late Dennis John Finlay is her Father.

As you can appreciate, it is obviously in everyone’s best interest if this matter can be resolved in the most cost-effective manner possible. To that end, I enclose a Statutory Declaration made by my client’s Mother. As you can no doubt appreciate, pursuant to Section 10 of the Status of Children Act, the claims deposed to by my client’s Mother in her Statutory Declaration give rise to a presumption that my client is in fact, the child of the late Dennis John Finlay.

It is conceded that such a presumption is rebuttable. Once again, with a view to ensuring that this matter is resolved in the most cost-effective manner, I would appreciate it if you could advise as to whether your client has any evidence which she would assert goes toward rebutting that presumption. If that is the case, please advise as to the nature of that evidence.

  1. The document enclosed with that letter is the statutory declaration of Debbie Weaver, dated 30 November 2018, and referred to earlier in these reasons, at [21].

  2. PDA’s response to Nelmes ‘I’, dated 5 February 2019 and incorporating the settlement offer, includes the following:

Please find enclosed the Statutory Declaration of Robyn Jones-Finlay dated 8 January 2019, going towards rebutting the assumption that Dennis John Finlay is the father of your client.

  1. Earlier in these reasons I have quoted parts of this statutory declaration (see [28]) but I now set it out in full:

[1]   I commenced a relationship with Dennis John Finlay in October, 1980 and we subsequently married in October, 1981.

[2]   In February, 1981 Dennis told me he was in a previous relationship for a short period of time with Debbie Weaver and that she had had a little girl Kristy Weaver.

[3]   When I asked Dennis if the child (Kristy) was his child he became anxious and said to me ‘I really don’t know’. I said ‘what do you mean?’ as Kristy had never been spoken about prior. He said to me ‘When Kristy was born, Debbie refused to have me listed on the birth certificate as Kristy’s father’.

[4]   He told me Debbie went home to live at her parent’s home after the birth.

[5]   Dennis told me that on an occasion Debbie’s father chased him from their home wielding an axe. As a result he never returned and Debbie cut off all contact with him. I understood this to happen at some point within the following 3-4 months after Kristy was born. Consequently, he had no relationship with Kristy.

[6]   I asked Dennis if he ever paid maintenance or child support for Kristy as this would be a cost we would need to budget for if it was the case. He said to me ‘No, I am not providing any fucking money ever until she (Debbie) shows proof that I am the father’. He stated at this point he was suspicious with regard to Debbie’s inaction in stating he was the father and that he felt this was because he wasn’t the father and at this point referred to Debbie as ‘a party animal’ around the Bay (Nelson Bay).

[7]   During my marriage to Dennis, Debbie did not initiate any visits for Kristy to see Dennis. It was clear to me as Dennis’s wife that Debbie did not encourage or want Kristy to have anything to do with Dennis.

[8]   I found it concerning that Dennis could not recall Kristy’s birthday during our marriage.

[9]   To my knowledge Dennis has never bought Kristy any birthday or Christmas presents.

[10]   I do recall Kristy visiting the Mount View property on one occasion when she was around 17 years old.

[11]   Dennis maintained his contact with our children, Leah and David, following our separation in 1987 and Leah and David always looked forward to the opportunity to with him (sic) at our Mount View property.

[12]   Dennis and I travelled to Kristy’s wedding together. Dennis displayed the obligatory politeness and courtesy in his words and actions that you would expect at any wedding, to avoid creating conflict.

[13]   In our drive up to the wedding (6 hours) I wrote Dennis a speech. He said to me ‘you’re an English teacher, you know how to write speeches’ and that is what I did and Dennis read it in its entirety.

[14]   Our daughter Leah drove Dennis up to Glenn Innes (sic) on one of their fossicking trips and on this trip called in to visit Kristy’s new baby. This is the only time Dennis ever saw her, she is now (13 years old). Kristy’s son Josh (11 years old) has never met Dennis.

[15]   Both Leah and David have advised me that Dennis contacted them in the months prior to his passing and requested Leah and David come down to Sydney as he wanted to give them his sentimental belongings, he had designated items for each of them, again Kristy was never mentioned. Both Leah and David spent a significant amount of time with Dennis in Sydney; they needed to take several days off work to care for him. They purchased him groceries, cleaned up after him including toileting him, paid his bills, organised home care for him, took him to his medical appointments and were both at his bedside on his hospital visit prior to his passing. They were in contact with him daily during the last few months of his life. To my knowledge there was no contact with Kristy as she advised Leah of this after he passed away. To my knowledge the last time he saw Kristy was the visit with Leah which was more than 12 years ago.

[16]   When Dennis was diagnosed with terminal cancer in 2017 and was hospitalised for the treatment of the cancer, Kristy was notified only by Leah. It is my understanding even following this she never visited Dennis.

[17]   Dennis’s hospital records only had Leah and David listed as his next of kin.

[18]   Dennis’s will lists Leah and David as his executors there is no mention of Kristy.

[19]   Our children Leah and David buried their father on Friday 27th July, 2018. Our daughter Leah is Dennis’s executor and advised me that she was notified that Kristy (40 years old) made an application to have Dennis added to her birth certificate on 31st July 2018 only 4 days after he was buried. This has undoubtedly been a very upsetting time for our family.

[20]   I knew Dennis John Finlay as his wife and mother to his children for 38 years and I truly believe I knew him well enough to say that he would be extremely upset and horrified to know the steps that Kristy has taken following his death.

  1. Robyn’s central assertion, contained in [3] of her statutory declaration, is that Dennis said, in February 1981, he was unsure whether he was Kristy’s father.

  2. It is surprising that this is what PDA chose to rely on, in February 2019, to try to rebut the presumption that Dennis was the father when, according to Leah, Dennis had been much more forceful on the issue, much more recently. Leah claims Dennis told her in June 2018 that Kristy was not his daughter – not that he was unsure, but that she definitely was not his daughter. Perhaps it was thought that Dennis’ apparent justification for taking that position – ‘she is nothing like us, she looks nothing like me, she has not one personality or mannerism of mine, she visited the property twice when she was 17 and has never come to visit me in more than 20 years even when I was in hospital getting chemo’ – doesn’t really address the question whether he was the one who impregnated Kristy’s mother.

  3. I also note the statement at [8] of Robyn’s statutory declaration that Dennis couldn’t remember Kristy’s birthday. But there is some doubt as to whether he remembered Leah’s or David’s birthday either. Neither date of birth as shown in Dennis’ will agrees with the Medicare records at Leah’s Annexure ‘Y’ – David’s is out by exactly one year, and Leah’s is out by one year and one month.

  4. It seems the Medicare records are correct, as they are consistent with Leah’s and David’s ages as at the date of Dennis’ death, according to his death certificate. Indeed, for Leah’s date of birth as shown in the will to be correct, she would have to have been conceived some months prior to October 1980 – in other words, before Dennis and Robyn even started their relationship. It seems clear, on that basis, that Dennis gave the wrong dates to the solicitor for the drafting of the will. Perhaps his difficulty in remembering birthdays was more widespread than Robyn thought.

Consideration

  1. By now it will be clear that there is very little common ground between Kristy and Leah on questions of fact. Even Debbie’s claim that no-one other than Dennis could possibly be Kristy’s biological father is disputed – not directly by Leah, but by her report of what she says Dennis thought and said. Whether Dennis’ reported uncertainty, or rejection of Debbie’s claim is well founded is something that cannot be tested now that he is dead.

  2. But even if Dennis were still alive, what could he say about Debbie’s claim?

  3. The reality is, a man cannot always know he is the father of his partner’s child unless he has had her under surveillance 24 hours a day. Instead he may have to rely on the love and trust that have developed between them, and his confidence that his partner would not (or at least did not) betray him. It is often this – rather than absolute knowledge of an objective fact – that allows a man to state to the Registrar, without doubting it for a moment, that he is the father of the child.

  4. Now, in Dennis’ case, he did not make such a statement to the Registrar – because the birth was registered by Debbie alone. And it would be a pointless exercise in speculation to wonder how he may have reacted if Debbie had asked him to co-sponsor the birth notification to the Registrar.

  5. Nevertheless, the early indications are that he either thought, or assumed, or accepted, he was Kristy’s father. That is the unchallenged evidence of his brother Jim, Debbie’s brother Kevin, and Dennis’ friend David Etheridge. They were on the scene at the time – and, to the extent anything can be gleaned from photographic images, their statements appear consistent with images of Dennis with Kristy, Dennis with Debbie, and Dennis with Kristy and Debbie, taken when Kristy was a baby.

  6. By February 1981, when Kristy was about two and a half years old, Dennis was – according to Robyn – expressing some uncertainty. This is after Dennis and Robyn had been in a relationship for three or four months.

  7. Robyn claims Dennis ‘had no relationship with Kristy’ from when she was about 3-4 months old, and then Kristy visited the farm, seemingly out of the blue, when she was 17 years old. This visit seems to be the one described by Leah in the eulogy as the occasion when Dennis introduced Kristy to Leah and David as their sister.

  8. Kristy’s version is different. She says there was an intervening occasion, when she was 11 or 12 years old, on which Dennis visited Debbie’s house and introduced himself to Kristy as her dad, and Leah and David as her sister and brother. Whether or not Kristy’s version is correct, it is clear that Dennis and Kristy were virtual strangers to each other for many years.

  9. When Kristy was getting married in 2002 she invited not only Dennis, but also his by then ex-wife Robyn and their two children Leah and David. It must have been made plain to Dennis that he was invited as the father of the bride because he asked Robyn to write a speech for him. He walked Kristy down the aisle and then delivered the speech Robyn had written for him. It must be assumed that the people in attendance were given to understand Dennis was Kristy’s father since neither Robyn, Leah nor David has asserted that Dennis was presented as a ‘father substitute’, a family friend, or a fond uncle standing in to perform this traditional role.

  10. Robyn, Leah and David all downplay the significance of this performance. But I remain unmoved by the claims that Dennis was just doing the ‘decent’ thing, or acting out of ‘courtesy’. I accept that he may have been doing it unwillingly, not wanting to be thrust into the spotlight, but I find it implausible that he would have allowed such a public display if he had thought Kristy was just a random young woman he could comfortably continue having nothing to do with.

  11. I now move on to the engagement card, the wedding card, and the card given to Kristy and her husband when their first child was born: see [51] (b), (c) and (d) above.

  12. Leah claims the cards were not written by Dennis, but she does not claim they were fabricated – whether by Kristy herself or by someone on Kristy’s behalf. If not written by Dennis, then by whom?

  13. The handwriting on the cards in (c) and (d) appears identical but it is different from that on card (b). It is possible that card (b) was written by David Finlay but that question was not put to him during the hearing, and so I decline to make a finding to that effect.

  14. As for the remaining cards, one notable feature of card (c) is the spelling of the word ‘father’ as ‘farther’. I do not wish to speculate on whether Dennis would have spelt the word that way.

  15. In light of Leah’s claim, I cannot comfortably find that any of these cards were written by Dennis. But the likelihood is that they were written by someone Dennis knew, who was sending messages of congratulations and kindness to Kristy on Dennis’ behalf. I find that to have been the case.

  16. That brings me to the photos referred to in [53](a) above. They show Kristy’s and Leah’s families interacting, visiting and holidaying, apparently happily, over a span of several years. Leah’s statement in her statutory declaration, that ‘My father, myself and Dave had never spent a Christmas with Kristy or a family holiday or any of our birthdays’ is, strictly speaking, probably entirely accurate. But the photos show without doubt that on at least two occasions – once in Coffs Harbour and once on the Gold Coast – Kristy’s and Leah’s families went on holidays together, albeit not with Dennis or David.

  17. Leah also stated in her statutory declaration:

My relationship with Kristy was not that of a sibling. I could provide thousands of photos messages, call logs, posts between myself and my brother and other members of my family. In 20 years Kristy was lucky to visit me at my house on more than 3 occasions and when we did see her she was just ‘calling past’ on her way to Sydney or way home from Sydney. I have at least 3 girlfriends whom I have always had a much closer relationship with, their children refer to me as Aunty, my children call them ‘cousins’ and I call them my ‘sisters’ yet I have absolutely no blood relation to them whatsoever.

  1. Bearing in mind that Kristy and Leah did not grow up in the same household, I do not find it surprising that Leah has a number of friends who are closer to her than Kristy is (or was). Nor is it surprising that the relationship between Leah and David is stronger than the relationship between either of them and Kristy, as both of them were keen to emphasise. Equally, both Leah and David had a stronger relationship with Dennis, and spent more time with him, than Kristy did. But it is difficult to see how those points bear on the question whether Dennis was Kristy’s biological father.

  2. Finally I will deal with what is said to be the evolution in Dennis’ perception as to whether Kristy was his daughter.

  3. First, it will be recalled that Debbie said she never told Dennis he wasn’t named as Kristy’s father. If that is true (Robyn, Leah and David all say it is not), then that provides ample reason why Dennis would have been so proud and happy at becoming a father for the first time. If it is not true, and he knew all along that Debbie had refused to record him as the father, then it is hard to understand why he appears happy and proud in the early photos. Perhaps Debbie did tell him, but not right at the beginning.

  4. By February 1981, on Robyn’s version, Dennis said he ‘really [didn’t] know’ if he was the father. According to Robyn, he made allegations about Debbie being a ‘party animal’ and so, presumably, not monogamous. This version has Dennis saying Debbie ‘refused’ to name him as the father. It is impossible to know whether Dennis thought Debbie’s ‘refusal’ came as a relief, or caused him resentment.

  5. But then, years later, we have Dennis introducing Kristy to Leah and David as their sister. It doesn’t matter whether this happened when Kristy was 11 or 12 (as Kristy says) or when she was 16 or 17 (as Leah says). There is no indication that there was some external force requiring him to introduce her that way. She could have been introduced as ‘the daughter of a woman I used to know’. But to introduce her as their sister is a statement of acceptance of that fact.

  1. It stands to reason that Dennis was still accepting that fact when he attended Kristy’s wedding: see the discussion at [102]-[103] above.

  2. Now we move to the final weeks of Dennis’ life. Leah and David both say Dennis was now adamant that Kristy was not his daughter. He was no longer unsure (as he is supposed to have been 37 years earlier); he no longer accepted it (as he did 16 years earlier); she was now definitely not his daughter. Leah said his words were:

She is nothing like us, she looks nothing like me, she has not one personality or mannerism of mine, she visited the property twice when she was 17 and has never come to visit me in more than 20 years even when I was in hospital getting chemo.

  1. If these were Dennis’ words then they demonstrate how he had conflated the concept of ‘being a good daughter’ (in his eyes) with ‘being a daughter’. Leah and David were like Dennis; Kristy was not. She hadn’t spent time with him over the years, as they had. She hadn’t been there when he was sick, as they had. It followed, apparently, that he was not her biological father. And that reasoning would provide sufficient justification for his claimed refusal, over the years, to allow his name to be added to Kristy’s birth record.

  2. Only weeks after Dennis is said to have made these comments, Leah was giving the eulogy at Dennis’ funeral. Even against that background, and in light of that searing criticism of Kristy, Leah was describing Kristy as ‘the greatest gift dad ever gave us’. Leah claims she used that language because she was ‘trying to keep the peace’. No doubt she was under a lot of stress at the time.

  3. At the funeral service a slideshow of photos from Dennis’ life was displayed. Kristy supplied a copy of the slideshow to the Tribunal, and also to the other parties, on a USB stick.

  4. I have viewed the slideshow, which includes a total of 100 photos from many phases of Dennis’ life. Four of the photos show Dennis and Debbie with Kristy as a baby. A further seven show Dennis, but not Debbie, with Kristy as a baby or an infant. Nine photos are of Kristy’s wedding and two show Dennis nursing Kristy’s daughter Bella. In summary, 22 of the 100 photos in the slideshow either have Kristy in them or are closely associated with Kristy.

  5. As a final point I mention Dennis’ will. It was signed on 6 February 2017. In it Dennis appointed David as his executor ‘unless unable or unwilling to act or continue to act’, in which event he appointed Leah. David withdrew and Leah acted as executor.

  6. Leah’s statement in her text to Kristy on 16 August 2018 that the will ‘just only lists Dave and I’, and David’s statement in his statutory declaration that ‘Kristy was not mentioned in his Will’ are correct as they pertain to the appointment of the executors but it is less clear that Kristy was entirely left out of the will. As already referred to in these reasons ([72] above), the bulk of Dennis’ estate was to be divided ‘equally among those of my children who survive me’. For a man who is supposed to have convinced himself that Kristy was not his daughter, one can only wonder why this critical provision was left so unclear, rather than spelling out Leah and David by name.

Conclusion

  1. On one view, this dispute could have been resolved immediately upon a finding that Debbie had not had sex with anyone other than Dennis during the 12 months prior to Kristy’s birth. I accept Debbie’s evidence in that regard and find accordingly.

  2. But that finding by itself was never going to satisfy either Kristy or Leah because from their perspective the issue was about the lifetime of interactions rather than the act of conception.

  3. I must say it is profoundly regrettable that no DNA testing was able to be done while one of Dennis’ specimens remained available, and that subsequent requests for Leah and her family to submit to DNA testing were refused, as she acknowledged in her statutory declaration.

  4. It is also regrettable that Kristy waited so long – 16 years from the time she discovered Dennis was not named as her father, and then only after he died – to lodge the application with the Registrar.

  5. Nevertheless, it is hard to see how Dennis’ availability to give evidence could have cast any serious doubt on my critical finding in [124] above. It was Debbie who could speak most reliably about her life at the time; Dennis would have needed to provide specific names and dates rather than general claims of ‘town bike’ and ‘party animal’.

  6. Kristy is presumed by s 10 of the Status of Children Act 1996 (NSW) to be Dennis’ child because Dennis and Debbie cohabited ‘at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth’. None of the evidence before the Tribunal in this case is sufficient to rebut that presumption.

  7. As a result of these findings, the Registrar is permitted by s 18(b) and (f) of the BDMR Act to enter ‘registrable information’ about the identity of Kristy’s father in the register.

  8. I consider the ‘most reliable’ information about the ‘registrable event’ – Kristy’s birth – is that Dennis was her father.

  9. For the purpose of maintaining the integrity of the register, it is desirable that the register reflect the most reliable information available about the registrable event.

  10. Accordingly, the correct and preferable decision is that the register should be corrected so that Dennis’ name is added as Kristy’s father.

Decision

  1. Set aside the decision under review.

  2. Order the Respondent to make an addition to the particulars contained in the entry relating to the birth of the Applicant, so as to record the Applicant’s father as Dennis John Finlay.

**********

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: 17 September 2021

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