Parker v Registry of Births, Deaths and Marriages

[2011] WASC 244

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PARKER -v- REGISTRY OF BIRTHS, DEATHS & MARRIAGES [2011] WASC 244

CORAM:   MASTER SANDERSON

HEARD:   5 JULY 2011

DELIVERED          :   13 SEPTEMBER 2011

FILE NO/S:   CIV 2727 of 2010

BETWEEN:   BRIAN JOSEPH PARKER

Applicant

AND

REGISTRY OF BIRTHS, DEATHS & MARRIAGES
First Respondent

NORMA JUNE TANNER
Second Respondent

GEOFFREY TANNER
Third Respondent

JOSEPH RONALD SWEENEY
Fourth Respondent

Catchwords:

Application to amend registration of birth - Turns on own facts

Legislation:

Births, Deaths and Marriage Registration Act 1998 (WA), s 4, s 20, s 21, s 49

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     In Person

First Respondent           :     Ms F B Seaward

Second Respondent       :     In Person

Third Respondent         :     In Person

Fourth Respondent        :     In Person

Solicitors:

Applicant:     In person

First Respondent           :     State Solicitor for Western Australia

Second Respondent       :     In person

Third Respondent         :     In person

Fourth Respondent        :     In person

Case(s) referred to in judgment(s):

Nil

1. MASTER SANDERSON:  The applicant applies by notice of originating motion dated 29 October 2010 for orders pursuant to s 20(b) of the Births, Deaths and Marriage Registration Act 1998 (WA) (the Act).  The first defendant appeared and made submissions as to the legal principles applicable to determinations under the Act.  No submissions were made by the second defendant on the facts.  The second, third and fourth respondents all oppose the orders sought by the plaintiff.

2. There are two sections of the Act under which the Supreme Court can order the correction or amendment of the register.  These are s 20 and s 21. They are in the following terms:

   (20)Powers of State courts

   A State court may, on application by an interested person or on its own initiative, order the Registrar to ‑

   (a)register a birth; or

   (b)include or correct registrable information about a birth or a child’s parents in the Register.

   (21)Registration of birth etc. after court findings

   (1)If a State court finds that ‑

   (a)the birth of a person is not registered as required under this Act or a corresponding law;

   (b)the registrable information contained in an entry about a birth in the Register under this Act or a corresponding law is incomplete or incorrect; or

   (c)information about the identity of a child’s parents should be included in the Register under this Act or a corresponding law,

   the State court may order the registration of the birth or order the inclusion or correction of registrable information in the Register or make a determination for the purposes of the corresponding law (as is applicable to the case).

   (2)The Registrar may register a birth or amend the Register in accordance with the determination of a court of another State or of the Commonwealth which has made a finding of a kind referred to in subsection (1) if the Registrar considers it is appropriate to do so.

3. The following definitions contained in s 4 of the Act are also relevant:

   registrable information means the particulars and the further information referred to in section 49(2) that must or may be included in the register.

   registrable event means a birth, death, marriage, change of name or an adoption or discharge of an adoption or the making or discharge of a parentage order as defined in the Surrogacy Act 2008 section 14.

   Register means the Register referred to in section 49(1) of the Act. 

4. Sections 49(1) and (2) of the Act provide as follows:

5. Insert

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

   (2)The Register ‑

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

   (b)may contain further information if its inclusion is considered appropriate by the Registrar.

6. There are three relevant legal questions applicable to the present application.  First, what standard of proof is applicable to the application, second, what matters must the court be satisfied of prior to exercising the discretion contained in s 20 and s 21 and, third, what evidence can the court consider in determining this matter.

7. It was submitted by counsel for the first defendant that the ordinary civil standard of proof - that is proof on the balance of probabilities - was the applicable standard.  Counsel in her written submissions referred to a number of cases which although of assistance were not directly on the point.  As there was no contradictor in this matter I am reluctant to express a concluded view on the applicable standard.  Given nothing turns in this case on what might be the appropriate standard I have simply proceeded on the basis that it is proper to determine the matter on the balance of probabilities.

8. In this case the plaintiff does not rely upon any DNA evidence in support of his application.  The question therefore is what evidence the court can have regard to in considering the application and the questions of fact required for the purposes of s 20 and s 21 of the Act.  The plaintiff relies on two affidavits in support of this application.  The first was sworn 27 October 2010 and the second was sworn on 22 July 2011.  Both affidavits contain hearsay material.  But taken at their highest neither affidavit could in any way establish the record should be amended as the applicant seeks.  Quite simply there is nothing in the affidavit material to support his case.

9. That being so the application must be dismissed.  Each of the second, third and fourth respondents are entitled to their expenses of defending the application.