Lu v Registrar of Births Deaths and Marriages
[2013] NSWDC 121
•29 April 2013
District Court
New South Wales
Medium Neutral Citation: LU v Registrar of Births Deaths and Marriages [2013] NSWDC 121 Hearing dates: 29 April 2013 Decision date: 29 April 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: 1. Direct the second defendant to notify the independent child representative of these orders by 5pm on 6 May 2013 by providing the independent child representative with a copy of these orders, the summons, the affidavits that have been read, the email address of my associate and the address for service (in these proceedings) of the parties. The second defendant is to provide a copy of this correspondence, excluding the summons and affidavits, to the other parties and the child's mother.
2. Grant liberty to the independent child representative by 5pm on 20 May 2013 to:
(a) provide written submissions to be sent to my associate; and
(b) notify my associate of a desire to make an oral submission,
with a copy of any written submission or notification to be provided to the child's mother and the parties.
3. In the event that the independent child representative provides no notification or submission by 5pm on 20 May 2013 or notifies my associate that the independent child representative does not wish to be heard, judgment will be reserved to a date to be advised. If any submission or notification is received, the matter will be listed for directions on a date to be advised.
4. The order made on 11 February 2013, restricting publication of anything that would identify the child, continues until any further contrary order.
Catchwords: FAMILY LAW - de facto relationships - cohabiting and same sex couples - registration as parent - birth certificate - application to replace name of biological father with name of former partner of birth mother Legislation Cited: Births, Deaths and Marriages Registration Act 1995, s 18, s 19, cl 17 of Sch 3
Civil Procedure Act 2005, s 56, s 66
Status of Children Act 1996, s 9, s10, s 11, s 12, s 13, s14, s 15, s 16, s 17, s 18, s 19, s 34, cl 7 of Sch 2Category: Interlocutory applications Parties: LU (plaintiff)
Registrar of Births, Deaths and Marriages (first defendant)
LS (second defendant)Representation: Ms C Gleeson (plaintiff)
Corrs Chambers Westgarth Lawyers (plaintiff)
Crown Solicitor's Office (first defendant)
Stacks/Family Law (second defendant)
File Number(s): 2012/396246 Publication restriction: Publication restriction of anything that would identify the child the subject of the proceedings.
Ex TEMPORE Judgment
On 11 February 2013, by consent, this Court ordered until further order that there would be a restriction on publication of anything that would identify the child the subject of the proceedings. No party has sought that I amend this order. Accordingly, in this judgment I propose to refer to persons by titles, hence the various characters shall be termed as follows:
- the birth mother as "the mother";
- the birth mother's female de facto partner at the time of the conception and birth of the child, who is the plaintiff in these proceedings, I will call the "female parent";
- the second defendant recorded on the birth certificate as the father shall be termed "the father"; and
- references to "the child" and the first defendant as "the Registrar" are self-explanatory.
I use these titles recognising that, as with any titles, they may not reflect or fully reflect the role played by that person.
Facts
The following summary of the facts is derived from the uncontested affidavits of the mother, the female parent and the father, which were read in the proceedings. There was no cross-examination.
From about 1993 until early 2003 the mother and the female parent lived together as de facto partners. In about 1998 the mother made it known to the female parent that she "wanted to have a child with her". The female parent agreed. Initially the mother tried to conceive using sperm from an unknown donor but these attempts were unsuccessful. The mother and the female parent then agreed to try again using a known sperm donor. In about 1999 the father, the mother and the female parent agreed for the father to be the known sperm donor. The mother told the father that he would be known to the child, that he would be kept informed, kept "in the loop" and be involved in the child's life but that the mother and the female parent would be the child's parents, would be financially responsible for the child and would make the significant decisions in the child's life. The father agreed.
Artificial insemination at home with the father's sperm did not result in a pregnancy for the mother. Ultimately, the father deposited some sperm at Concord Hospital and via a fertilization procedure at Royal Prince Alfred Hospital fertility program the mother became pregnant. The child was born to the mother in August of 2002. Both the female parent and the father were present. The father is the biological father of the child.
The forms for the child's birth certificate were provided to the mother shortly after the birth and subsequently completed. The father signed the birth certificate forms to the knowledge of the mother. As a result, the mother and the father became registered on the birth certificate as respectively mother and father. The birth certificate records the mother and the father as "informants".
Within about five months of the birth of the child, the relationship between the mother and the female parent broke down and they separated. There was said to be a separation agreement between the mother and the female parent regulating financial assistance for the child although a copy was not in evidence. In any event, the female parent provided financial assistance for the child. The father contributed financial assistance for a medical operation on the child but otherwise was not asked for and did not provide any significant financial assistance. The female parent sees the child several times a week and is consulted on major decisions regarding the child. The father has been involved in the child's care, has had regular contact with her, has formed a strong bond with her, regards her as his daughter and is referred to by the child as "dad". The child is involved with the family of the female parent and the extended family and friends of the father.
I was informed that there are presently Family Court proceedings involving the mother, the female parent and the father, relating to the child although I was not informed about the detail of those proceedings and received no evidence about them.
Proceedings
The female parent has commenced these proceedings against the Registrar and the father to have the father's name removed from the child's birth certificate and to have her name inserted on the child's birth certificate. It is possible for these changes to be made by the Registrar without court proceedings but only with the consent of the father. The father did not provide his consent to the Registrar.
The application relies on provisions of the Status of Children Act 1996 and the Births, Deaths and Marriages Registration Act 1995. It is convenient if the relevant provisions are set out in full.
The Status of Children Act 1996 provides:
"...
Division 1 Parentage presumptions
9 Presumptions of parentage arising from marriage
(1) A child born to a woman during a marriage to which she is a party is presumed to be a child of the woman and her husband.
(2) If a child is born to a woman within 44 weeks after her husband dies, the child is presumed to be the child of the woman and her deceased husband.
(3) If a child is born to the woman within 44 weeks after a purported marriage to which the woman is a party is annulled, the child is presumed to be a child of the woman and her purported husband.
(4) If:
(a) the parties to a marriage separated at any time, and
(b) after the separation, resumed cohabitation on one occasion, and
(c) within 3 months after the resumption of cohabitation, they separated again and lived separately and apart, and
(d) a child is born to the woman within 44 weeks after the end of the cohabitation, but after the dissolution of the marriage,
the child is presumed to be the child of the woman and her former husband.
(5) For the purposes of this section, a marriage is dissolved by a decree of dissolution or annulled by a decree of nullity on the making of the decree nisi.
10 Presumption of paternity arising from cohabitation
A child born to a woman is presumed to be a man's child if, at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the man and the woman cohabit but are not married.
11 Presumptions of parentage arising from registration of birth
(1) A person is presumed to be a child's parent if the person's name is entered as the child's parent in the Births, Deaths and Marriages Register or a register of births or parentage information kept under a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction.
(2) Nothing in this section affects the operation of Chapter 5 (Recognition of adoptions) of the Adoption Act 2000.
12 Presumption of parentage arising from findings of courts
(1) A person is presumed to be a child's parent if:
(a) while the person is alive, a prescribed court has:
(i) found expressly that the person is the child's parent, or
(ii) made a finding that it could not have made unless the person was the child's parent, and
(b) the finding has not been altered, set aside or reversed.
(2) A presumption arising under subsection (1) is irrebuttable.
(3) A person is presumed to be a child's parent if:
(a) after the person dies, a prescribed court has:
(i) found expressly that the person was the child's parent, or
(ii) made a finding that it could not have made unless the person was the child's parent, and
(b) the finding has not been altered, set aside or reversed.
(4) In this section, a reference to a finding of a prescribed court includes:
(a) a reference to a declaration of parentage, and
(b) a reference to a finding whether made before or after the commencement of this section.
(5) Nothing in this section affects the operation of Chapter 5 (Recognition of adoptions) of the Adoption Act 2000.
13 Presumption of parentage arising from acknowledgments
(1) A man is presumed to be a child's father if:
(a) under this Act or other law of the State or a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction, the man executes a formal paternity acknowledgment or any other instrument acknowledging that he is the child's father, and
(b) the instrument has not been annulled or otherwise set aside.
(2) This section extends to instruments executed before the commencement of this section.
14 Presumptions of parentage arising out of use of fertilisation procedures
(1) When a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure, and
(b) the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.
(1A) When a woman who is the de facto partner of another woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure, and
(b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.
Note. "De facto partner" is defined in section 21C of the Interpretation Act 1987.
(2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.
(3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy. This subsection does not affect the presumption arising under subsection (1A) (a).
(4) Any presumption arising under subsections (1)-(3) is irrebuttable.
(5) In any proceedings in which the operation of subsection (1) is relevant, a husband's consent to the carrying out of the fertilisation procedure is presumed.
(5A) In any proceedings in which the operation of subsection (1A) is relevant, the consent of a woman to the carrying out of a fertilisation procedure that results in the pregnancy of her de facto partner is presumed.
(6) In this section:
(a) a reference to a married woman includes a reference to a woman who is the de facto partner of a man, and
(b) a reference (however expressed) to the husband or wife of a person:
(i) is, in a case where the person is the de facto partner of a person of the opposite sex, a reference to that other person, and
(ii) does not, in that case, include a reference to the spouse (if any) to whom the person is actually married.
(7) (Repealed)
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.
16 Conflicting rebuttable parentage presumptions
If two or more rebuttable presumptions referred to in section 15 conflict with each other and are not rebutted in any proceedings, the presumption that appears to the court to be more or most likely to be correct prevails.
17 Conflicts involving irrebuttable parentage presumptions
(1) If two or more irrebuttable presumptions arising under this Division conflict with each other, the presumption that appears to the court to be more or most likely to be correct prevails.
(2) If an irrebuttable presumption arising under this Division conflicts with a rebuttable presumption arising under this Division that is not rebutted in any proceedings, the irrebuttable presumption prevails over the rebuttable presumption.
18 Parentage presumptions cannot be relied on by prosecutors
Despite any other provision of this Act, a prosecutor cannot rely in any criminal proceedings on a presumption arising under this Act to prove the parentage of a child.
19 Execution of instrument of acknowledgment
(1) A man has executed an instrument acknowledging paternity of a child under this Division if:
(a) he executes an instrument in or to the effect of a form prescribed by the regulations and the instrument is countersigned by the mother of the child, and
(b) he executes the instrument in the presence of a person belonging to a class of persons prescribed by the regulations for the purposes of this paragraph, and
(c) the instrument has not been annulled under this Division.
(2) A person in whose presence a formal paternity acknowledgment is executed in New South Wales must:
(a) take possession of the acknowledgment once it is executed, and
(b) cause the acknowledgment to be transmitted to the Registrar not later than 14 days after the date of its execution to be dealt with under the Births, Deaths and Marriages Registration Act 1995.
Maximum penalty: 2 penalty units."
Clause 7 of Sch 2 provides:
"Part 3 Provision consequent on enactment of Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008
7 Parentage presumption to apply in relation to fertilisation procedures occurring before commencement
(1) The presumptions arising under section 14 (1A) in relation to a child born as the result of a fertilisation procedure, as inserted by the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008, extend to a procedure undertaken, and a consent given, before the commencement of that subsection. This subclause applies even though at the time the consent was given the presumptions did not apply.
(2) However, those presumptions do not apply so as to affect:
(a) the previous operation of this or any other Act or law, or
(b) any will executed before the commencement of section 14 (1A), or
(c) the vesting in possession or in interest of any property before the commencement of section 14 (1A).
(3) In this clause:
will includes a codicil and any other testamentary disposition".
The Births, Deaths and Marriages Registration Act 1995 provides:
"18 Registration of parentage details
The Registrar must not include registrable information about the identity of a child's parent in the Register unless:
(a) both parents of the child make a joint application for the inclusion of the information, or
(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.
19 Orders for registration of birth or inclusion of registrable information
(1) The District Court may, on application by an interested person or on its own initiative, order:
(a) the registration of a birth, or
(b) the inclusion of registrable information about a birth or a child's parents (including details of the marriage of a child's parents) in the Register.
(1A) Such an order may only be made in respect of a birth:
(a) in the case of an order under subsection (1) (a), if the birth occurred in the State, in an aircraft during a flight to an airport in the State or on a ship during a voyage to a port in the State, and
(b) in the case of an order under subsection (1) (b), if the birth has been registered under this Act.
(2) If any court (including any court of another State or the Commonwealth) makes a finding about a birth or a child's parents, the court may order registration of the birth or inclusion of registrable information about the birth or the parents in the Register".
Clause 17 of Sch 3:
"Part 4 Provision consequent on enactment of Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008
17 Application to alter register as consequence of amendment of Status of Children Act 1996
(1) In this clause:
relevant provisions means section 14 (1A) (a) of, and clause 7 of Schedule 2 to, the Status of Children Act 1996, as inserted by the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008.
(2) An application may be made to the Registrar for the addition of registrable information, about the identity of a woman who is presumed to be a parent of the child under the relevant provisions, in the birth registration of a child born before the commencement of those provisions.
(3) The Registrar is to determine the application by making the addition or refusing to make the addition.
(4) The Registrar must not add registrable information in the child's birth registration about the identity of the woman as a parent of the child unless:
(a) the application is made jointly by that woman and the birth mother, and
(b) if the child's birth registration already includes registrable information that purports to identify a person as the father of the child:
(i) that person has given his consent to the removal of the particulars from the birth registration that identify him as the father of the child (or a court or the regulations authorise their removal because the person is not the father by operation of law or otherwise), and
(ii) the Registrar removes those particulars from the birth registration, and
(c) if the Registrar requires verification of the information contained in the application-the application is accompanied by a statutory declaration verifying the information contained in the application and any other evidence that the Registrar may require.
(5) An application made under this clause must be in a form approved by the Registrar.
(6) This clause has effect despite sections 18 and 20 of this Act and clause 7 (2) of Schedule 2 to the Status of Children Act 1996".
Although the father did not provide his consent to the Registrar changing the register, these proceedings were uncontested. The Registrar submits to any orders of the Court. The father does likewise, perhaps more. He has sworn an affidavit stating:
"I request that the Court make the orders sought by the plaintiff... on the basis that [the Registrar] has filed a submitting appearance and further that I neither consent to nor oppose the orders sought".
The father provided an explanation as to why he has not given consent:
"Based on legal advice I have received in relation to this matter I do not propose to oppose the orders sought by the plaintiff. However, given my close relationship with [the child] and my desire that the relationship continue and develop in the future, I do not believe that I am able to consent to the orders sought by the plaintiff as I am of the view that doing so will ultimately undermine and adversely affect that relationship".
Accordingly, there is no person opposing the application; there is no "proper contradictor" to put any alternative argument. In other matters this might be of no significance other than to diminish any precedential value of this decision to other similar disputes, but in this case, another person formally unrepresented has an interest in the outcome, namely, the child.
No parties sought to have any representation appointed for the child. In any event, this seems to be a power exercisable only by the Supreme Court and in a dispute different from the present (see s 34 of the Status of Children Act 1996). Further, the statutory provisions indicate that the child's wishes or even best interests may be irrelevant to the outcome of what should be registered on the birth certificate. However, I was informed from the bar table (and no party demurred) that an independent child representative has been appointed in the Family Court proceedings.
Can it be contested that the child has an interest in what is recorded on her birth certificate? Of course when the original birth certificate is created the child cannot and does not play any role in what is recorded on the register. This is not definitive of whether the child has an interest. Further, it has little relevance to the application now being made, where the child presumably (because of the child's age) has some capacity to understand the proceedings and also has a representative appointed in related proceedings. I think the child has an interest in what is recorded on the child's birth certificate.
In the circumstances, were I to proceed to make orders affecting the child's birth certificate and thus a matter in which the child has an interest, without the child being given an opportunity to be heard, this Court could be criticised for not adhering to the rules of natural justice. It seems to me that before I make an order affecting the child I should give the child's independent representative an entitlement to be heard, whether in writing or orally. I note that none of the evidence before me purports to convey any attitude of the child or the child's representative to the orders sought in the proceedings.
I have the power under s 66 of the Civil Procedure Act 2005 to adjourn the proceedings. None of the parties have asked for that order. But in conformity with my obligation under s 56(2) of the Civil Procedure Act 2005 I must give effect to the overriding purpose in s 56(1) of the Act which includes the obligation to make directions to ensure a just resolution of the proceedings. In these circumstances, I propose to adjourn the proceedings today and make the following directions:
1. Direct the second defendant to notify the independent child representative of these orders by 5pm on 6 May 2013 by providing the independent child representative with a copy of these orders, the summons, the affidavits that have been read, the email address of my associate and the address for service (in these proceedings) of the parties. The second defendant is to provide a copy of this correspondence, excluding the summons and affidavits, to the other parties and the child's mother.
2. Grant liberty to the independent child representative by 5pm on 20 May 2013 to:
(a) provide written submissions to be sent to my associate; and
(b) notify my associate of a desire to make an oral submission,
with a copy of any written submission or notification to be provided to the child's mother and the parties.
3. In the event that the independent child representative provides no notification or submission by 5pm on 20 May 2013 or notifies my associate that the independent child representative does not wish to be heard, judgment will be reserved to a date to be advised. If any submission or notification is received, the matter will be listed for directions on a date to be advised.
4. The order made on 11 February 2013, restricting publication of anything that would identify the child, continues until any further contrary order.
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Decision last updated: 01 August 2013
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