Moore v Registrar of Births, Deaths and Marriages

[2023] NSWCATAD 171

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Moore v Registrar of Births, Deaths and Marriages [2023] NSWCATAD 171

Hearing dates:

21 June 2023

Date of orders:

30 June 2023

Decision date:

30 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

(1) Decision under review set aside.

(2) An entry is to be made in the Register by adding to the applicant’s pre-adoption birth certificate the details of Pasquale Capomolla as the applicant’s father.

Catchwords:

BIRTHS, DEATHS AND MARRIAGES – pre-adoptive birth certificate – addition of father’s name – DNA evidence – statutory declarations by mother – presumption of regularity – non-statutory policy – beneficial legislation.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Births, Deaths and Marriages Registration Act 1995 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Family Law Act 1975 (Cth)

Family Law Regulations 1984 (Cth)

Status of Children Act 1996 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 316;

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 42;

Bull v Attorney-General, New South Wales) (1913) 17 CLR 370;

Dillon v R [1982] AC 484;

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;

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

McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354;

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

Nilant v Macchia [2000] FCA 1528, (2000) 104 FCR 238;

R v Gordon (1789) 1 East PC 315;

R v Port of London; ex parte Kynoch; [1919] 1 KB 176;

Re Gray and ASIC (2004) 86 ALD 230;

Re The Adoption of “Z” [2020] NSWSC 1725;

Secretary, Department of Social Security v Alvaro (1984) 34 ALD 72;

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10;

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Peter J Moore (Applicant)
Registrar of Births, Deaths and Marriages (Respondent)

Representation:

Applicant (Self-Represented)
Department of Customer Service (Respondent)

File Number(s):

2022/00381909

Publication restriction:

Nil

reasons for decision

1. The applicant Mr Peter John Moore applied to this tribunal on 17 December 2022 for review of a decision by the respondent registrar on or about 28 September 2021 (exhibit R1, pp 65 – 66) to refuse his application to amend his pre-adoptive birth certificate to record Pasquale Capomolla’s details as his birth father. At present the pre-adoptive birth certificate does not record any name as the father (exhibit R1, p 16).

2. The applicant was born at Bethesda Hospital, Marrickville, on 31 March 1958. On 8 August 1958, his birth was registered and the pre-adoptive birth certificate issued. His mother, Ruth Thomson (née McMillan) was the only parent and informant recorded on the certificate.

3. Between February and May 1958, arrangements were made by the Salvation Army for his adoption by Mr and Mrs Moore (id., 2 – 14). On 5 May 1958 the adoption was finalized and on 8 July 1958 a new birth certificate was issued for the applicant showing Mr and Mrs Moore as his parents and the registration informants (id., 15).

4. On 7 May 2017, the applicant requested a copy of his pre-adoptive birth certificate, which was duly issued to him on 5 July 2017. Following enquiries by the applicant, the respondent on 14 July 2017 explained to him the options available for adding a birth father to his pre-adoptive birth certificate. The options were either both biological parents completing an application, one parent making an application supported by a DNA test report in accordance with the Family Law Act 1975 (Cth) or obtaining a court order that makes a finding about the father’s identity and directs the respondent to add the father’s details (id., 18).

5. Two application forms seeking to add a father’s details to the applicant’s pre-adoptive birth certificate and adoption notification were lodged on 2 July 2021, one from Ms Thomson dated 9 July 2017 (id., 31 – 33) and the other from the applicant, dated 19 July 2021 (id., 43 – 45). The applicant also provided a copy of his AncestryDNA match results (id., 50 – 55) and untranslated copies of what appear to be Italian birth and death certificates for Pasquale Capomolla, recording his death in Italy on 16 June 1982 (id., 56 – 57).

6. On 18 August 2021, the respondent sought information from the Salvation Army in relation to the pre-adoptive details held by the Salvation Army in relation to the applicant’s biological parents, receiving a reply on 19 August 2021 (id., 62 – 64). On or about 28 September 2021, the respondent informed the applicant of the decision to decline his application to add a parent to his pre-adoptive birth certificate (id., 65 – 66). At the applicant’s request, the respondent provided further information about the basis of the refusal and reiterated that it would follow any orders or findings made by the New South Wales court concerning parentage. (Id., 67 – 68). The applicant provided a further set of AncestryDNA match results on 18 October 2022 (id., 74 – 98).

7. Following an internal review, the respondent on 25 November 2022 affirmed the original decision not to amend the applicant’s pre-adoptive birth certificate to include Mr Capomolla’s details as the birth father (id., 165). The applicant applied to this tribunal for review on 17 December 2022 and the matter came on for hearing by AVL on 21 June 2023.

Applicable legislation

8. Section 3 of the Births, Deaths and Marriages Registration Act 1995 (NSW) (BDM Act) sets out the objects of the legislation:

3   Objects of Act

The objects of this Act are to provide for—

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

(b)  the registration of adoption information, and

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

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

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

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

(g)  the collection and dissemination of statistical information.

9. The general functions of the registrar are set out in s 6:

Registrar’s general functions

6 The Registrar’s general functions are—

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

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

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

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

Note—

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

10. Sections 14 and 17 outline the process for registering the birth of a child:

14   How to have the birth of a child registered

A person has the birth of a child registered under this Act by giving notice of the birth to the Registrar (the birth registration statement) in a form and manner required by the Registrar, specifying the particulars required by the regulations.

17   Registration

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

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

11. The regulation dealing with birth registration is cl 5, which relevantly provides:

5   Registration of birth

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

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

(b)  the weight of the child at birth,

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

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

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

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

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

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

Note—

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

(2)  For avoidance of doubt, the Registrar is authorised to include in the Register the registrable information about the identity of the child’s parents that is required to be provided under this clause.

12. The respondent’s role in preserving the integrity of the register is explained in s 43:

43   The Register

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

(2)  The Register—

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

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

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

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

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

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

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

45   Correction of Register

(1)  The Registrar may correct the Register—

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

(b)  to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.

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

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

14. Section 49(1)(a) of the BDM Act provides that the respondent, on completing a search of the register, may issue a birth certificate certifying particulars contained in any entry.

15. Section 18 contains specific provisions relating to the registration of parental details:

18   Registration of parentage details

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

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

(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.

16. The issue in this case is thus whether the correct and preferable decision is to direct the insertion of the details of Pasquale Capomolla in the applicant’s pre-adoption birth certificate as the applicant’s father.

The evidence

17. The respondent did not call oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1) and on cross-examination of the applicant.

Mr Peter Moore (applicant)

18. The applicant did not file a witness statement as directed by Gatland SM on 31 January 2023 but instead lodged a large quantity of material consisting mainly of submissions and background material. After some discussion he opted to treat as his witness statement his notes of a visit with Francesco Callabria and Anne Callabria on 5 September 2017 (exhibit A1, also exhibit R1, p 162). As those notes deal only with one aspect of the case, it seems fairer and more helpful to summarize some parts of his email to Adoptee Rights Australia dated 16 June 2021, which set out his version of the relevant events (id., 25 – 26).

19. In that document he states that his story is brief, and that he discovered his adoption via AncestryDNA only 4 years ago at the age of 59. It was a great shock to him and very traumatizing. He suffered and continues to suffer from identity loss, his whole life and identity as he knew it being a horrible lie. He was deceived into believing that his post-adoptive birth certificate was real and that he was the biological child of his adoptive parents.

20. He found that the DNA matched with a paternal sister, and once he realized who she was he was reasonably sure who his father was, but he needed to hear that from his biological mother to confirm it. Using DNA he worked out from his pattern of DNA matches what his ancestral surname might be. He settled on the ancestral name as being Trindall and built a family tree based on his perceived ancestor. Subsequently, on receiving his adoption certificate with his mother’s maiden name, Ruth McMillan, on it, he located his eldest brother and saw that among his siblings there was a fatherless child. He realized that was him and he knew he existed. He was speaking to his brother and mother for the first time less than 24 hours later.

21. His mother’s first words to him were “I was forced, I didn’t want to give you up”. Eventually he asked his mother who his father was, to which she said Pasquale Capomolla. That was the name of his paternal sister’s father, who died in 1982. He has travelled to Italy to visit his father’s grave and reunite with relatives, being as warmly welcomed to the family as he was in Sydney. While in Italy he also obtained his father’s birth and death certificates. He also obtained a DNA saliva sample from one of his father’s two surviving sisters, Vincenza Capomolla, who married a Carnovale, it being traditional that the woman retains her original family name.

22. On returning to Australia he also obtained a DNA saliva sample from his father’s other surviving sister, Teresa Capomolla, who also married a Carnovale (it being a small Calabrian village, everyone is related). As predicted, the DNA results were positive and indicated that they were his two aunts. His close DNA matches are now numerous on both sides of the family from siblings and cousins, leaving no doubt whatsoever of his father’s identity.

23. He has completed the requisite form and supplied the required documents. He is a recipient of New South Wales State and Federal Apologies for illegal forced adoption. He is a vulnerable person who has been traumatized by government legislation and policy. Rejection is such a primary fear of many adoptees, he believes that is why he has procrastinated so long on this matter. He was rejected and although he believed he argued a good case to Alana [a delegate at the registry], when it came to resubmitting his form 8, again, he froze with fear.

24. In oral evidence by AVL at the hearing, he stated that he had accepted the apology from the New South Wales government on 20 September 2012, but wants restitution and the placing of his father’s name on his birth certificate. He had been subjected to a forced adoption and his mother had been denied the opportunity to put his father’s name on the certificate. He was 59 when he discovered he was adopted, having previously presented as Peter Moore, related to an Irish convict who was not one of his relatives. He had given his adoptive parents DNA kits but they revealed no connexion with names that he recognized.

25. He had been born at Bethesda Hospital at Marrickville. The AncestryDNA results about his sister were correct. He had learned to understand DNA and was able to locate his mother, as he had found his brother, who gave him her telephone number. He spoke to her then for the first time and she said his father was Capomolla. She had been told not to give his father’s name because that would make him unadoptable and he would go to an orphanage as nobody would want an Italian.

26. Cross-examined by Mr Lee, he said that DNA evidence was now more accurate. A family tree is created by the user on the basis of his or her own knowledge, which was how he had found his mother. He describes himself as a genealogist and said he had built his family tree, using shared DNA as measured by the applicable unit, centiMorgans. There are no official charts and ranges for use in interpreting results, and age and probability help to show relationships, such as whether a woman is a sister or an aunt. DNA is randomized, and not precise, except in the case of twins.

27. He said that the lack of a verification process for identity in AncestryDNA did not matter, it was the DNA that mattered, not the name. It would not be possible to falsify the results he had obtained. There was no verification process for names, as the process relies on the user, but DNA is the basis.

28. There was no tertiary course to qualify people for the interpretation of DNA results, which were like fingerprints, which were not 100 percent precise. It is a matter for experts to interpret and there is no feedback to inform artificial intelligence systems. It was not necessary to have a degree, it was intuitive, like using a smart phone. Experience was the qualification. Mr O’Brien’s report was similar to the way in which he had built up his family tree. He had collected the samples. He based his findings on a table from DNA Detectives, which was similar to the one that AncestryDNA used. There is a range of variance, and how they interpreted their findings would be in their algorithms.

29. Both his parents had been living in Canberra at the time of his conception, but not at his date of birth. His mother said she had regretted not telling Mr Capomolla about his birth or the adoption, though she had told him she was pregnant. He had left Canberra a few years later and travelled to Italy to learn women’s hairdressing. In that context he referred to the notes of his conversation with Francesco and Anne Callabria on 5 September 2017 (exhibit A1, exhibit R1, p 162).

30. In those notes he recalled that Francesco’s first words to him were “Pasquale was a very nice man”. From 1953 to 1956, their father Pasquale Capomolla was a barber to the politicians working inside federal Parliament House. In 1956 he had started a business with Francesco in Bailey Arcade in Canberra. He said that he was a people person and had accumulated a wide circle of friends, which helped them with customers, who were lined up before they opened the doors. Francesco said their father was a very good hairdresser and a very hard worker, always sending money home to his mother to buy property. Francesco said “Pasquale never settled, he always wanted to go back to Italy. I said why”. Pasquale always complained about his stomach, which the applicant found interesting as he had always had stomach problems. Their father was the best man at Francesco and Anne’s wedding in March 1958.

18. Eventually they ended their business partnership and Francesco never heard from their father again, which he believes upset him, as they were very fond of their father. Anne had met a woman she thought was Pasquale’s daughter, but who the applicant believes was his niece, at a hairdressing expo, and she told him of their father’s cancer and death. Francesco remembered his mother but she had never mentioned the pregnancy and Francesco had no knowledge about the relationship between Pasquale and his mother. His mother had died in October 2022.

19. The applicant also referred to a statutory declaration by Fabian Carnovale dated 24 May 2023 (part exhibit A2) which states that Fabian had accepted the applicant as his cousin and a member of his family, and understands that he is the biological son of Fabian’s uncle, Pasquale Capomolla, who was his mother’s brother.

20. He said his application had been made in 2021, and his mother’s in 2017, but he had been unable to obtain answers to his enquiries and believed that they had not taken account of s 18(b), while all the statutory declarations had been made in relation to that section. He had still not received an answer about his mother’s application.

Mr Peter O’Brien

34. The applicant also relied on a report dated 25 October 2022 by Mr Peter O’Brien (exhibit R1, pp 99 – 102), who over a period of some two years had taught himself the techniques for the use of autosomal DNA for family history research, in order to discover the identity of his own father. Since identifying his father, he had been using the skills he acquired in that process to assist other adoptees and persons with unknown biological families, to make connections with their birth families, using DNA.

35. He has been a member of the advisory board of the Special Search Service conducted by International Social Services Australia and currently provides voluntary assistance in DNA search and research to the Post Adoption Resource Centre. He has made presentations on DNA research to the Society of Australian Genealogists’ DNA Research Group, the Campbelltown District Family History Society, the Benevolent Society (New South Wales) and various adoptee groups.

36. In 2019 – 2020 he undertook DNA research on behalf of “Z,” who was referred to him by the Post Adoption Resource Centre. In the course of that research he identified the person he believed to be the birth father of’ Z and was asked to provide Z with a statement as to how he had reached that conclusion. In the New South Wales Supreme Court case Re The Adoption of “Z” [2020] NSWSC 1725, his research was accepted and the court made the requested order to add the name of her birth father as identified by him to her original birth certificate.

37. He had been asked to examine the AncestryDNA results of the applicant and to give an opinion on the identity of his biological father. His mother, Ruth McMillan, had done an AncestryDNA test and the results of that test were consistent with the expected parent-child relationship. He was therefore able to start from a position where close paternal relatives could be easily identified. Close matches to Peter that are not matches to his mother Ruth must be matches on the paternal lines of his family tree.

38. After performing a process with a number of rather complex steps and excluding all other possible hypotheses, all of which is detailed in his report, Mr O’Brien concluded that “I believe Maria Teresa Capomolla and Vincenza Capomolla are Peter’s paternal aunts, i.e. his father’s sisters. On the basis of Peter’s very close relationship with [a person anonymized as] MC, and his relationship with Maria and Teresa, I conclude there’s an extremely high probability that Peter’s biological father is Pasquale Capomolla”. Mr O’Brien was not required for cross-examination.

Respondent’s submissions

39. The respondent tendered written submissions (exhibit R2) which, after setting out the factual background and the applicable law, contended that the use of AncestryDNA results was contrary to the objects of the BDM Act, s 6(a1), that is, to maintain the integrity of the register. To include a parent’s details on a birth certificate, the respondent requires documentary evidence such as a paternity testing report (DNA) that is compliant with the Family Law Act and Family Law Regulations, or a court order. That means that a DNA test must be conducted at a laboratory that is accredited by the National Association of Testing Authorities, Australia (NATA) and complies with statutory requirements, such as:

• The procedure is conducted by a person who is a registered medical practitioner or employed by the hospital, pathology practice or registered to take bodily samples

• Samples to be taken by a syringe or swab that has been sterilized, is disposable and has not been used for any purpose

• The sample is taken in a container, immediately after it is taken and in the presence of the donor, and sealed.

40. It was submitted that the AncestryDNA results provided by the applicant were not a compliant DNA test report conducted in a NATA-approved laboratory, nor were they carried out following the procedures required by legislation. The results were obtained by the applicant himself by way of a “simple saliva test you can do in the comfort of your own home”, as stated on Ancestry’s website.

41. The respondent specifically requires a compliant DNA test report, as set out on its website, which states:

“You can apply to add a parent to the birth registration if the birth was registered in NSW…. An authorised laboratory is required to conduct DNA parentage testing when using DNA result evidence as part of your application”.

42. Furthermore, the AncestryDNA results were not generated for the purposes of serving as a DNA parentage report. Section 1. 4. 2 of Ancestry’s terms and conditions specifically states:

“In addition to the requirements in section 1.3 above, you also agree…. Not to use the information obtained from the DNA Services (including any downloaded DNA data, defined in the Privacy Statement) in whole, in part, and/or in combination with any other database for any medical, diagnostic, or paternity testing purpose, in any judicial proceeding, or for any discriminatory purpose or illegal activity”.

43. The AncestryDNA results appear to show the applicant’s “shared DNA” results with relatives on both his paternal and maternal sides of the family. It does not establish or provide a finding on a paternal link between the applicant and Mr Capomolla. Therefore a NATA-accredited DNA parentage report is to be distinguished from the AncestryDNA results which cannot be relied on for the purposes of correcting the register.

44. Mr O’Brien had stated that his interpretation of Ancestry DNA results was accepted in the Supreme Court case of Re The Adoption of “Z”, but while a court has the power to take into consideration his opinion, it [the registry] does not, and accordingly does not have the power to amend the applicant’s pre-adoptive birth certificate in the absence of a court order or finding.

45. All information that was available from the time in question was obtained to make a decision pursuant to s 45(b), including the statutory declarations of 11 October 2017 and 20 January 2019, the information obtained from the Adoption Information Unit and the Salvation Army to determine whether a presumption of paternity exists as categorized in Division 1 of the Status of Children Act 1996 (SOC Act). The respondent submitted that the information did not support the proposition is set out in Ms Thomson’s initial statutory declarations with respect to the identity of the birth father and a presumption of paternity could not be established.

46. The third statutory declaration completed by Ms Thomson dated 8 May 2022 and the applicant’s evidence relating to the Senate Community Affairs Reference Committee report on former forced adoptions lack any application to the specific circumstances surrounding the applicant’s adoption. The photographs taken with Mr Capomolla’s family and screenshots of the applicant’s Facebook “Friends” list (part exhibit R1) are not relevant in the absence of a statutory declaration supporting a familial link between the applicant and Mr Capomolla. The decision not to include Mr Capomolla’s details as the birth father in the pre-adoptive birth certificate reflected the most reliable information available to the registrar of the registrable event.

47. The registrar’s general functions include maintaining the integrity of the register and seeking to prevent identity fraud associated with the register. In accordance with that function in the objects of the Act, namely s 3(d), to provide for the keeping of registers for recording and preserving information about births, there are requirements that need to be met such as a compliant parentage testing report or a court order.

Consideration

48. This tribunal has jurisdiction to hear and determine this application by reason of s 56(1) of the BDM Act and s 9(1) of the Administrative Decisions Review Act 1997 (ADR Act). Under s 63 of the ADR Act, the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondent’s decision is the correct and preferable one.

49. The tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. The tribunal is to make its own decision and there is no presumption that the registrar’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

50. These are not adversarial proceedings. There is accordingly no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. Nevertheless, the civil standard of proof on the balance (preponderance) of probabilities as set out in s 140 is considered to be an acceptable guide to fact-finding.

Chronology

51. In such cases it is useful to set out a brief chronology of the relevant events:

• 31 March 1958: the applicant is born at Bethesda Hospital, Marrickville.

• 8 August 1958: the applicant’s birth is registered and a pre-adoptive birth certificate is issued. His mother Ruth Thomson (née McMillan) is the only parent and informant recorded on the pre-adoptive birth certificate (exhibit R1, p 16).

• Between February and May 1958, arrangements are made by the Salvation Army for the applicant’s adoption by Mr and Mrs Moore. On 5 May 1958, the adoption is finalized and on 8 July 1958 a new birth certificate is issued for the applicant showing Mr and Mrs Moore as his parents (id., 15).

• 7 May 2017: the applicant applies for a copy of his pre-adoptive birth certificate, which is subsequently issued to him on 5 July 2017.

• 14 July 2017: following enquiries by the applicant, the respondent informs him of the options available to add his birth father details to his pre-adoptive birth certificate. The options stated were either both biological parents completing an application, one parent making an application supported by a DNA test report in accordance with the Family Law Act or providing a court order making a finding about the father’s identity or directing the respondent to add the father’s details, or both.

• 2 July 2021: two application forms are received in relation to adding a father’s details to the pre-adoptive birth certificate. The first is submitted by Ms Thomson and the second by the applicant. In support of his application, the applicant provides a copy of his AncestryDNA match results and untranslated copies of documents apparently being Mr Capomolla’s Italian birth and death certificates.

• 2 July 2021: the respondent emails the Adoption Information Unit of the Department of Communities and Justice requesting information on the applicant’s adoption records. On 16 August 2021, the AIU provides a response (id., 58).

• 18 August 2021: the respondent seeks information from the Salvation Army with regards to its pre-adoptive details held by the Salvation Army in relation to the applicant’s biological parents. A response is received on 19 August 2021 (id., 64). The records received include a contemporaneous document giving Ruth as the mother and an unnamed Australian carpenter aged 31 as the applicant’s father (id., 62) or, in another document, a builder described as having a dark complexion (id., 3).

• 28 September 2021: the respondent informs the applicant that his application to add a parent to his pre-adoptive birth certificate is declined (id., 65 – 66). Following a request from the applicant, the respondent on 15 November 2021 details reasons for the refusal of his application and informs him that the registry would follow any orders or findings made by a court concerning parentage (id., 67 – 68).

• 25 November 2022: the respondent informs the applicant of the outcome of the internal review decision, affirming the original decision not to amend the applicant’s pre-adoptive birth certificate (id., 163 – 165).

52. The power to correct the register gives the registrar, or on review this tribunal, a discretion “to bring an entry about a particular registrable event into conformity with the most reliable information available….”: s 45(1)(b). As the tribunal explained in Ward v New South Wales Registrar of Births, Deaths and Marriages [2015] NSWCATAD 86, [10], “The power to correct the register is discretionary. It is predicated on the decision maker being satisfied the proposed change is in conformity with the most reliable information about the registrable event”: Jack v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200, [113].

The application

53. Section 18 regulates the addition of information about such matters as paternity in the register. The relevant provision is s 18(b), which states:

The Registrar must not include registrable information about the identity of a child’s parent in the Register unless: …. (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….

54. In this case two applications to add a father’s details to the pre-adoptive birth certificate were received on 2 July 2021, one from the applicant and one from his mother, Ruth. The applicant’s form was dated 19 July 2021 (Id., 45), while Ruth’s was dated 9 July 2017 (id., 33). The documentary evidence does not account for the four-year gap between the date on the form and the date of lodgment. The applicant’s evidence was that the form when initially lodged was not accepted, for reasons that are not clear, but it was re-submitted, and accepted, in July 2021.

55. It was not disputed that Ruth’s application was never determined and that the reviewable decision before the tribunal is the applicant’s application, nor was it submitted that the application did not meet the threshold requirements of s18(b). At the hearing the respondent stated that his application had been treated as superseding his mother’s, but the documents in evidence do not show the procedure followed in order to achieve that result. The applicant himself said he had made repeated enquiries of the registry but had been unable to obtain an answer on that point.

56. In the absence of documentary evidence on that question, the tribunal can draw support from the legal presumption of regularity, omnia praesumuntur esse rite acta. That is taken to mean that where it is proved that an official act has been performed, it will be presumed, until the contrary is proved, that all necessary formalities have been complied with and that the person who performed the act was duly appointed: R v Gordon (1789) 1 East PC 315; Dillon v R [1982] AC 484. As Ruth did in fact make an application which was accepted by the registry, the tribunal is entitled to proceed on the basis that the reviewable decision qualifies under s 18(b) and can be considered on the merits, and I so find. Further, it is settled that a merits review tribunal has the power to review an administrative decision even if the decision was not validly made: Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72, 78.

The DNA evidence

57. The applicant relies on his interpretation of the search results applied by Ancestry DNA, which supplies a service of that nature to the public for the purposes of ancestry tracing and related matters. The respondent objects that relying on the Ancestry DNA results would be contrary to the objects of the Act, specifically s 6(a1), namely, to maintain the integrity of the register. To include a parent’s details on a birth certificate, the respondent requires documentary evidence such as a DNA paternity testing report complying with the Family Law Act 1975 and Family Law Regulations 1984, or a court order.

58. Sections 69V and 69W of the Family Law Act provide that where the parentage of a child is a question in issue in proceedings under that Act, a court may make a parentage testing order requiring a parentage testing procedure to be carried out for the purpose of obtaining information to assist in determining the parentage of a child. Clause 21D of the regulation requires the parentage testing procedure to be carried out in accordance with Division 2 at a laboratory that is accredited by the National Association of Testing Authorities, Australia (NATA) and in accordance with standards of practice that entitled the laboratory to be so accredited, as well as supplemented by a report under Division 3.

59. It was acknowledged at the hearing that the requirements under the federal Family Law Act and Regulation have no statutory force in this context and that they are applied purely as a matter of registry policy.

60. That policy therefore requires that a DNA test must be conducted at a NATA-accredited laboratory and complies with the Family Law Regulations, including:

• The procedure is conducted by a person who is a registered medical practitioner or employed by a hospital, pathology practice or registered to take bodily samples,

• Samples to be taken by a syringe or swab that has been sterilized, is disposable and has not been used for any purpose,

• The sample is taken in a container immediately after it is taken and in the presence of the donor, and sealed.

61. The respondent also submits that the AncestryDNA results were not generated for the purposes of serving as a DNA parentage of report. Section 1. 4. 2 of Ancestry’s terms and conditions states that:

In addition to the requirements in Section 1.3 above, you also agree… Not to use the information obtained from the DNA Services (including any downloaded DNA Data (defined in the Privacy Statement) in whole, in part, and/or in combination with any other database, for any medical, diagnostic or paternity testing purpose, in any judicial proceeding or for any discriminatory purpose or illegal activity” (part exhibit A2).

62. The applicant, on the other hand, relied on Mr O’Brien’s statement giving his opinion of the AncestryDNA results, reaching the conclusion that “there’s an extremely high probability that Peter’s biological father is Pasquale Capomolla” (exhibit R1, p 102). Mr O’Brien also pointed out that in Re: The Adoption of Z the Supreme Court of New South Wales accepted his research and made the orders requested. But while Sackar J did find that the evidence supported Mr O’Brien’s methodology, it appeared to be the methodology of his analysis that was approved, not the procedures followed in collecting, handling and storing the sample. The applicant herself had supplied the sample and there was no evidence about those matters.

62. Similarly, in the present case it was the applicant who collected, stored and supplied the samples, and while no impropriety or negligence on the applicant’s part was suggested, the respondent’s practice of insisting on a DNA test performed by a NATA-approved laboratory following the established procedures is justified as a means of guarding against shortcomings in such matters as collection, handling and storage. Although not a statutory requirement, it is a reasonable and rational means of serving the registry’s statutory objectives, which include maintaining the integrity of the register and preventing identity fraud associated with it and the information extracted from it.

63. Consequently I do not think that the DNA evidence supplied by the applicant is sufficient to “bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar”: s45(1)(b). The fact that the applicant’s DNA evidence does not meet the registry’s declared standards does not, however, mean that it lacks all evidentiary value. It should be considered in conjunction with the other relevant evidence.

The other evidence

65. The applicant also relied on three statutory declarations by his mother Ruth Thomson (exhibit R1, pp 131 – 133). The first two are dated 18 October 2017 and 20 January 2019 respectively and are in similar terms. They state, relevantly –

That I met Pasquale Capomolla whilst working for E C Harris at Manuka, Canberra ACT 1956 – 1957. I knew Pasquale for approx. 12 months, we were amongst a group of friends who attended local dances together.

I knew Pasquale to be the half owner of a hairdressing business in the CBD of Canberra.

I know him, Pasquale, to be the father of my son Peter John Moore (Peter James McMillan).

Pasquale was aware of my pregnancy. I had to leave ACT to attend to my dying father in Pilliga NSW. I was unable to return to ACT.

66. The third statutory declaration gives significant additional detail. In it Ruth states:

I have read the document attached, sourced from the Salvation Army records. I further declare that the attached document which purports to be a record of a description of the putative father of the child I was forced to relinquish by my mother and subsequently by the Salvation Army staff at Bethesda Maternity Hospital is not a true representative of any words that I said in 1958. I believe the attached document is a fabrication to deceive any prospective adoptive parents into believing my son, Peter James McMillan (adopted as Peter John Moore) was a white Australian child acceptable in those times for adoption.

I did give the staff the name and nationality of my son’s father, Pasquale Capomolla, an Italian immigrant living at Canberra at the time.

I was told that my son’s father’s name would not be recorded as if it were, he would be deemed to be a mixed race child and deemed not adoptable and therefore destined for an orphanage.

I declare that prior to seeing this document for the first time on 6^th May 2022 I have never seen the description of the putative father this document from the Salvation Army describes [sic – scil. “archives”]. I can only surmise that this is a generic description commonly used by the Salvation Army and in no way a representation of the truth or a factual document to be relied on.

I declare that my son is of Italian and my own Aboriginal and Scottish blood.

67. As Ruth died in October 2022, it was not possible to test her evidence by cross-examination. Her declarations do, however, explain the apparent discrepancies between the Salvation Army records and the applicant’s version of events. She maintains that she did inform the Bethesda Hospital staff of the name and nationality of her son’s father, Pasquale Capomolla, an Italian immigrant living in Canberra, but was told his name could not be recorded as he would be deemed not adoptable and therefore destined for an orphanage.

68. It was not denied that such things did happen at that time. The Commonwealth’s Response to the Senate Community Affairs References Committee Report (part exhibit A2) stated that:

Forced adoption policies and practices were widespread throughout Australia particularly during the period from the 1950s to the early 1970s. An estimated 140,000 to 150,000 adoptions occurred in Australia between 1951 and 1975. Many of the babies were born to unwed mothers…. The wealth of evidence submitted to the Committee can leave no doubt that many were treated appallingly. Mothers were not informed of their rights, did not provide informed consent, were given false assurances, denied care and support and endured pressure, mistreatment and coercion.

69. Ruth attested that although she had wanted to keep her child, she had come under pressure to give him up for adoption, not only by the hospital staff, but also by her mother. That is perhaps quite credible, given that her mother and father were both invalid pensioners, her father was terminally sick and Ruth already had one ex-nuptial child, a boy aged five. At that time there was no single mothers’ pension and people may have considered that adoption was in the best interests of both mother and child. Similar rationalizations could well have led to questionable record-keeping at the maternity hospital.

70. It is not disputed that both Ruth and Pasquale were living in Canberra at the time of the applicant’s putative conception, a fact that has some corroborative weight. Also tending to corroborate the applicant’s position are the AncestryDNA findings and Mr O’Brien’s interpretation of them. Although not qualifying for the near-decisive weight of a finding made by a NATA-approved laboratory, that evidence does support Ruth Thomson’s statutory declarations and the applicant’s evidence of conversations with her.

71. There is also the statutory declaration of Fabian Carnovale dated 24 May 2023 (part exhibit A2) in which the deponent states that he has accepted the applicant as his cousin and a member of his family. He understands that Peter is the biological son of his uncle, Pasquale Capomolla and attests to the genuineness of a number of photographs showing the applicant with members of his family in Italy. He understands that the applicant travelled to Italy to Pasquale’s birthplace, where he met with members of their extended family and visited Pasquale’s grave. While that evidence supports the genuineness of the applicant’s belief in his position, it does not in itself strengthen the evidence of a paternal link.

72. That does not diminish the strength of the applicant’s position, however, given the other evidence. Further, although the BDM Act serves broad social and administrative purposes as set out in s 3, sections 18(b) and 45(1)(b) could in part be viewed as beneficial legislation that adopts provisions advantageous to an individual or the public, and therefore to be construed so as to give the fullest relief which the fair meaning of its language will allow (Bull v Attorney General for New South Wales (1913) 17 CLR 370, 384 per Isaacs J dissenting). In this case the relief referred to would be the opportunity for members of the public to correct an entry about a family member that was inaccurate when made.

73. As Weinberg J explained in Nilant v Macchia [2000] FCA 1528, (2000) 104 FCR 238, while the Bankruptcy Act (in that case) could not be described as beneficial legislation, one provision was so characterized and was therefore to be interpreted “beneficially, and as generously as the language of the section allows. It should certainly not be construed in a narrow or pedantic manner” (at [42]).

74. The respondent’s requirements for DNA evidence of paternity are not prescribed by legislation but form part of a non-statutory registry policy. While a merits tribunal is to have regard to government policy, including non-statutory policy, it cannot apply non-statutory policy without having regard to the individual circumstances of the particular case before it: R v Port of London Authority; ex parte Kynoch: [1919] 1 KB 176; Drake at 640; MLC Investments Ltd v FCT (2003] 205 ALR 207, 214 – 5. The tribunal cannot surrender its decision-making role to the policy: Re Gray and ASIC (2004) 86 ALD 230, 240.

75. In light of all the evidence, therefore, I find that correcting the applicant’s pre-adoption birth certificate by adding the details of Pasquale Capomolla as the applicant’s father would bring the entry about that registrable event “into conformity with the most reliable information available to the Registrar of the registrable event”, within the meaning of s 45(1)(b). The decision under review should be set aside and the order made as asked.

Orders

1. Decision under review set aside.

2. An entry is to be made to the register by adding to the applicant’s pre-adoption birth certificate the details of Pasquale Capomolla as the applicant’s father.

**********

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: 30 June 2023