Registrar of Births, Death & Marriages v Andary No. Scciv-03-111

REGISTRAR OF BIRTHS, DEATHS & MARRIAGES v ANDARY
[2004] SASC 68
Full Court: Mullighan, Gray and Vanstone JJ

MULLIGHAN J The factual circumstances of the issues in this appeal are set out in the reasons for judgment of Gray J.
The application made by the appellant pursuant to s 19 of the Births, Deaths & Marriages Registration Act 1996 was to correct registrable information about her parents by including the name of her biological father in the Register. Section 19(b) provides that upon an application by interested persons, or on its own initiation, the Court, defined in s 4 of the Act to mean the Magistrates Court, may order the inclusion or correction of registrable information about a birth or a child’s parents in the Register.
Section 6 of the Act provides that it is the function of the Registrar of Births, Deaths and Marriages to establish and maintain the Registers necessary for the purposes of the Act.
Pursuant to s 40, the Registrar must keep a Register or Registers of registrable events. A registrable event is a birth, change of name, death or marriage: s 4. The Register must contain particulars of each registrable event: s 40(2)(a).
When a child is born in this State the birth must be registered under the Act: s 13. Registration is achieved by the following procedure. A person must lodge a statement, known as the “birth registration statement”, in a form approved by the Registrar: s 14. The parents of the child are jointly responsible for having the birth of a child registered under the Act and both of them must sign the birth registration statement. However, the Registrar may accept a birth registration statement from one of the parents if satisfied that it is impossible, or inappropriate, for the other parent to join, or be required to join, in the application whether because of his or her death, disappearance, ill health or unavailability or the need to avoid unwarranted distress or for some other reason: s 15. Section 17 provides that the Registrar registers a birth by making an entry in the Register including the particulars required by regulation. Section 17(2) provides that if the particulars are incomplete, the Registrar may register the birth on the basis of incomplete particulars. Regulation 6 of the Births, Deaths & Marriages Registration Regulations 1996, made under the Act, provides for the information to be contained in the birth registration statement. It includes the names of the mother and father. Regulation 7 provides for the matters which must be included in the Register. They include the names of the mother and father.
It may be seen that the registration of a birth is an act undertaken by the Registrar and is made by the Registrar making the appropriate entry in the Register. It does not occur by the lodging or reception of the birth registration statement.
The appellant’s mother lodged a birth registration statement with the Registrar for the registration of the birth of the appellant on 30 November 1977 and specified her father as Mr Kamal Andary. He did not sign the prescribed certificate at the foot of the birth registration statement indicating that he is the father.
The Registrar entered the birth of the appellant into the Register, specifying her name as Chantel Elise Whittaker, her mother as Pamela Wendy Whittaker and her mother’s maiden name as Pearson. The Register shows that her father was “Not Stated”. I assume Mr Andary’s name was not entered in the Register because he had not signed the declaration on the birth registration statement acknowledging that he is the appellant’s father and, therefore, the Registrar could not enter Mr Andary’s name in the Register. Obviously, the Registrar should not make an entry indicating that a person is the father unless there is an appropriate acknowledgment of paternity as provided in the statement.
The learned Judge applied the provisions of the Adoption of Children Act 1966 which was in operation when the order for adoption was made, and he was correct to do so: see s 16(1), (2) and (3) of the Acts Interpretation Act 1915. The order for adoption of the appellant by Mr Whitehouse was made on 4 June 1986 before the enactment of the Adoption Act 1988. Once that order was made, Mr Whitehouse became the father of the appellant and Mr Andary ceased to be her father. Section 30(1) of the Adoption of Children Act provides:
“30.(1)   For the purposes of the laws of this State, but subject to this Act and to the provisions of any law of this State that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order –
(a)    the adopted child becomes a child of the adopter or adopters, and the adopter becomes a parent, or the adopters become the parents, of the child as if the child had been born to the adopter or adopters in lawful wedlock;
(b)    the adopted child ceases to be a child of any person who was a parent (whether a natural parent or a parent by adoption) of the child before the making of the adoption order, and any such person ceases to be a parent of the child;
(c)    the relationship to one another of all persons (including the adopted child and an adoptive parent or former parent or former adoptive parent of the adopted child) shall be determined on the basis of the foregoing provisions of this subsection, so far as they are relevant;…”
The other provisions of s 30 have no application to the circumstances of this case.
The Registrar was obliged to record the name of Mr Whitehouse as the father of the appellant on the Register: s 56 of the Adoption of Children Act. The Registrar complied with that obligation on 8 July 1986.
As long as the order for adoption stands, there is no information which the Court could order to be corrected about the appellant’s parents in the Register pursuant to s 19 of the Births, Deaths & Marriages Act. In my view, the Learned Judge was correct in his decision. He said:
“Section 19 gives the Court the power to order the “inclusion or correction” of registrable information in the Register. In light of the provisions of s 30 of the Adoption of Children Act, the deletion of Mr Whitehouse’s name and the insertion of Mr Andary’s name as the respondent’s father in the Register would not be a “correction”. In light of those provisions it would be to create an error rather than to correct one. Nor do I think that it can be considered the “inclusion” of registrable information in the Register. For the purposes of the laws of this State, upon the making of the adoption order the respondent ceased to be the child of any person other than Mr Whitehouse. There is no registrable information to be included in the Register.
In my opinion, the Magistrate did not have power to make the order she did in circumstances where an adoption order had been made.”
I agree that, in the circumstances, the learned Magistrate did not have power to make the order which she made, and the appeal must be dismissed.
During the course of argument in this appeal, we were informed that what the appellant now wants to achieve is to have Mr Andary included in the original Register as her natural father. The respondent does not oppose that course, provided that there is no alteration to the current Register, because such an alteration is not permitted. Following the order for adoption Mr Andary is no longer regarded by the law as the appellant’s father.
It is beyond the scope of this appeal to consider whether other action may be taken by the appellant and, in particular, whether the order for adoption may be discharged or if the name of Mr Andary may be included in the original Register. The present law relating to adoption of children is to be found in the Adoption Act 1988. Sections 41(1), (2) and (3) of that Act provides:
“41. (1)Subject to a direction under subsection (2), the Registrar of Births, Deaths and Marriages must, on receipt of notice of the adoption of a child, cancel any entry formerly made in the register of births relating to the child and make a fresh entry containing -
(a)a statement of the date and place of birth of the child; and
(b)the names of the persons who are in contemplation of law the parents of the child following the adoption.
(2) Subject to subsection (3), the Court may, on the application of the adoptive parents or the Chief Executive, direct the Registrar of Births, Deaths and Marriages not to cancel any entry formerly made in the register of births relating to the child but instead to add to that entry a note of the names of the adoptive parents.
(3) Where either or both of the birth parents of the child are alive, the Court must not give a direction under subsection (2) unless satisfied that the information relating to the birth parents of the child contained in the entry is known to the child or that the birth parents approve of the child having access to that information.”
We were informed that both of the birth parents of the appellant support Mr Andary’s name being entered into the Register for the appellant’s birth. The appellant may consider whether she could make an application under s 19 of the Births, Deaths & Marriages Act to have Mr Andary’s name included as the father in the original Register for the appellant’s birth. Also, she may consider whether both of the adoptive parents, Mr and Mrs Whitehouse, wish to make an application under s 41 of the Adoption Act 1988, or whether it is too late to do so. As I say, these are matters which are not the subject of the application considered by the learned Magistrate and the Learned Judge on an appeal, and are outside the scope of this appeal.
I would dismiss the appeal.
GRAY J
Introduction
The Registrar of Births, Deaths and Marriages holds office under the Births, Deaths and Marriages Registration Act 1996 (SA). The Registrar has the responsibility of establishing and maintaining the registers necessary for the purposes of the Act.[1] One register is the birth register.
[1] Section 6:
In December 2002 the appellant, Chantelle Elise Andary, applied to the Magistrates Court to correct registrable information relating to her birth in the births register. The application was made pursuant to section 19 of the Births, Deaths and Marriages Registration Act which relevantly provides:
The Court may, on application by an interested person or on its own initiative, order-
…
the inclusion or correction of registrable information about a birth or a child's parents in the Register.
It appears that Ms Andary sought to have her birth father’s name entered in the birth register to replace the name of her adoptive father, Michael Whitehouse.[2] The evidence before the magistrate disclosed understandable reasons for the requested change.
[2] This was confirmed by letter on 10 July 2003 from Ms Andary’s solicitor to the Registrar of the Supreme Court of South Australia. The letter included:
We have been instructed that the abovenamed made an application to the Supreme Court of South Australia earlier this year seeking to have birth records changed by the removal of the name of her adoptive father Michael Wellesley Whitehouse and the addition of the name of her natural father reinstated on the birth records.
On 15 January 2003 the magistrate ordered:
…having heard the evidence of Kamal Andary and Pamela Wendy Whitehouse in relation to the applicant…being satisfied that the registrable information contained in an entry about the birth was incomplete or incorrect, hereby order the Registrar to include or correct registrable information in the register as follows:
Name on birth certificate altered to reflect that the father of Chantel Elise Andary is Kamal Andary born 13 March 1947 at Al Ebadie, Lebanon, Painter and Decorator.
The Registrar did not attend the hearings before the Magistrate. Documents on the court file suggest that written notice of those hearings was forwarded to the Registrar. Counsel for the Registrar informed this court that the notices had not been received. The Registrar was unaware of the proceedings until a “record of outcome” was received following the Magistrate’s final order.
The Registrar appealed to a judge of this court. It was submitted that the Magistrate had erred in ordering the inclusion or correction of the name of Mr Andary as the father on the birth certificate. It was contended that the Magistrate did not have power to make that order by reason of the provisions of the relevant adoption legislation. The judge allowed the appeal and set aside the order. He reasoned:
Although the Adoption of Children Act was repealed by the Adoption Act the effect of the former Act and, in particular the relevant provisions of s 30, was not varied or changed (see s 16(1)(b) and (c) of the Acts Interpretation Act 1915). It is the provisions of the Adoption of Children Act which I must consider. I think the provisions of that Act when considered in light of the terms of the power given in s 19 of the Births Deaths and Marriages Registration Act 1996 mean that the Magistrate did not have the power to make the order she did in this case.
Section 19 gives the Court the power to order the ‘inclusion or correction’ of registrable information in the Register. In light of the provisions of s 30 of the Adoption of Children Act, the deletion of Mr Whitehouse’s name and the insertion of Mr Andary’s name as the respondent’s father in the Register would not be a ‘correction’. In light of those provisions it would be to create an error rather than to correct one. Nor do I think that it can be considered the ‘inclusion’ of registrable information in the Register. For the purpose of the laws of this State, upon the making of the adoption order the respondent ceased to be the child of any person other than Mr Whitehouse. There is no registrable information to be included in the Register.
In my opinion, the Magistrate did not have power to make the order she did in circumstances where an adoption order had been made.
It is apparent that the appeal to the single judge was argued on the basis that the effect of the Magistrate’s order was to remove the name of Mr Whitehouse from the birth register and to include the name of Mr Andary as the father of Ms Andary.
Ms Andary has appealed to this court seeking to restore the Magistrate’s order.
The Legislative Scheme
The Current Act
The current Births, Deaths and Marriages Registration Act was introduced as part of a national legislative scheme. It repealed and replaced the Births, Deaths and Marriages Registration Act 1966 (SA).[3] Its aim was to provide a simplified administrative approach for the registration of births, deaths and marriages and an accurate and accessible record of information. The relevance of recording such information was noted in the Minister’s second reading speech:
There is no need for the Government to stress the importance of the registration system. It is at the same time an indispensable social record and the source of data which is essential to a wide range of community services and activities.
[3] Schedule 1 to the current Act provides:
…
3. A Register maintained under the repealed Act forms part of the Register under this Act.
The objects of the Births, Deaths and Marriages Registration Act 1996 are contained in section 3 and include:
(a)    the registration of births, deaths and marriages in South Australia; and
(b)    the registration of changes of name; and
(c)    the keeping of registers for recording and preserving information about births, deaths, marriages and changes of name in perpetuity; and
(d)    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
(e)    the issue of certified information from the registers; and
(f)    the collection and dissemination of statistical information.
The Registrar
As earlier observed, the Registrar is responsible for maintaining the registers, including the birth register. Section 6 of the Act confers on the Registrar the functions:
The Registrar's general functions are to--
a.   establish and maintain the registers necessary for the purposes of this Act; and
b.   administer the registration system established by this Act and ensure that it operates efficiently, effectively and economically; and
c.   ensure that this Act is administered in the way best calculated to achieve its objects.
Section 17 provides:
(1) The Registrar registers a birth by making an entry about the birth in the Register including the particulars required by regulation.
(2) However, if the particulars available to the Registrar are incomplete the Registrar may register a birth on the basis of incomplete particulars.
Section 18(2) is also relevant:
The Registrar must include or correct registrable information about a child's parents in the Register after registration of the child's birth if a court (whether of this or any other State or the Commonwealth) directs the inclusion or correction of the information in the Register or the Registrar is advised of a finding by a court that a particular person is a parent of the child.
Section 41(1) provides:
The Registrar may conduct an inquiry to find out--
(a)     whether a registrable event has happened; or
(b)     particulars of a registrable event; or
(c)     whether particulars of a particular registrable event have been correctly
recorded in the Register.
Registrable Information
The current Births, Deaths and Marriages Registration Act and its predecessor Act require that parents register the birth of a child.[4] Section 15 of the current Act provides:
The parents of a child are jointly responsible for having the child's birth registered under this Act (and must both sign the birth registration statement) but the Registrar may accept a birth registration statement from one of the parents if satisfied that it is impossible, impracticable or inappropriate for the other parent to join or be required to join in the application whether because of his or her death, disappearance, ill-health or unavailability or the need to avoid unwarranted distress or for some other reason.
[4] Required by section 15 of the 1966 Act.
The regulations have from time to time prescribed the manner in which registrable information is to be provided. In the present case an ‘Information Statement for Birth Registration’ was required.[5] Schedule 5 to the 1966 Act and regulation 6 of the Births, Deaths and Marriages Registration Regulations (1996) set out the information that must be provided for the purpose of registering a birth. Regulation 6 provides:
[5] Required by section 12 of the 1966 Act.
A birth registration statement … in relation to the birth of a child must include the following information:
(a)whether the child was born alive…;
(b)the date and place of the birth;
(c)the child’s sex;
(d)the child’s weight at birth (in grams);
…
(g)the name of the child’s mother and, if it is different to her current name, the mother’s name at birth (or on adoption);
…
(h)(i) the name of the child’s father and, if it is different to her current name, the mother’s name at birth (or on adoption);
Schedule 5 required the same details.
The ‘Information Statement for Birth Registration’ is a primary source document. Once lodged and accepted, information from this statement is entered into the birth register by the Registrar. The information statement is retained. Although not available to the public, the information statement forms part of the records kept by the Registrar for public purposes.
The importance of retaining the information statement is illustrated by the circumstances of this case. Ms Andary’s mother, Pamela Wendy Pearson, provided particulars of Mr Andary as the father of Ms Andary and certified the correctness of that information. Ms Pearson’s contemporaneous statement and certification of that information at the time of the birth is important historical information.
The Register

The birth register is an ongoing record of births in South Australia. It is a permanent and necessary historical record. There is a public interest in the birth register being accurate and complete. The legislature intended that a birth register would be established and maintained to record and preserve registrable information in perpetuity.
Section 40 of the Act describes the registers as follows: [6]
(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 further information if its inclusion is authorised under the regulations.
(3)The Register may be wholly or partly in the form of a computer database, 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.
Entries previously handwritten or typed into the birth register are now recorded electronically. The birth register may be described as being in two sections, hard copy and electronic. A full search of the birth register requires a search of both sections to ensure complete disclosure.
[6] The register was not defined in the previous legislation.
The question of what documents comprise a register was considered by the court in Re Printing & Co of Agence Havas, App[7]. Lindley LJ observed:
The authorities shew that a book or document intended to be a register may be admitted as a register, although the requirements of the Act of Parliament as to the keeping of the register have not been exactly complied with; but I am not aware of any authority for saying that rough memoranda on sheets of paper not intended as a register at all, but intended as materials from which a register may be prepared, can be a register.
These remarks are apposite.
Interaction with the Adoption Act
[7] 63 L.J. Ch 539
The legal effect of an adoption order is that the adopted child becomes the child of the adopting parent and ceases to be the child of any previous parent.[8] The current legislation only allows for the discharge of an adoption order on the basis that the order was obtained by fraud, duress or other improper means.[9] It is not possible to effect a removal of an adoption order through the administrative processes of changing a name or adding to or correcting details of the birth register.
[8] Section 9 Adoption Act 1988 (SA)
[9] Section 14 Adoption Act 1988 (SA)
The Facts
Ms Pearson married Mr Whittaker at which time she changed her surname to Whittaker. Ms Pearson later left that marriage and met Kamal Andary. She became pregnant and gave birth to Ms Andary on 23 November 1977.
Ms Pearson’s evidence before the magistrate included:
Q.Is it your evidence that based on your life’s experience with Mr Andary and based on the blood test that Chantel is the daughter of Kamal Andary.
A.Yes, [she] is the daughter. She’s the daughter, yes.
Q.There is no way she could be anybody else’s daughter.
A. No.
Evidence was also given by Mr Andary, the man said to be Ms Andary’s father.
Q.      Is it your evidence to me that you are Chantel’s father.
A.    I am.
…[Ms Pearson] contacted me to tell me that I am the father and so on and then I went for a blood test.
Q.For a blood test.
A.    Yes.
Q.Like a DNA test or just a blood test.
A.    Blood test…she carried the same blood group…
Ms Pearson gave evidence concerning the registration of Ms Andary’s birth:
Q.Can you tell me the circumstances that led up to Chantel’s birth in terms of who the father of Chantel is as you understand.
A.Kamal was the father and at that stage I was using my first married name which Kamal at that stage didn’t put on the birth certificate for whatever reason…
Q.Did you have any correspondence or communication with him in the rest of the pregnancy.
A.    No, not in the rest of the pregnancy.
Q.    After the pregnancy.
A. There was a time there that I wanted his name on the birth certificate and he denied that it was his child at that point and I subsequently had a blood test done knowing that it was his child…
Q.Did you have any subsequent discussion with him about either whether he was the father or whether he would be recorded as the father.
A.    No.
Q.    What was the reason for that.
A.    I can’t remember exactly…
Q.    Moving on then, you didn’t have any contact with Mr Andary for some time.
A.No…For a little while he used to come in and bring some lollies – no money but I think that was the idea of not putting his name on the birth certificate at that point…
On 30 November 1977 an application was made to register Ms Andary’s birth. As earlier observed, an ‘Information Statement for Birth Registration’ form was completed by Ms Pearson and lodged with the Registrar. The information included Ms Pearson’s particulars as the mother. It also contained Mr Andary’s particulars as the father. The form was signed and certified by Ms Pearson, however, there was no certification of the correctness of the information by the father. The paternity particulars within the information statement were not entered into the birth register. The birth register recorded ‘Paternity Not Acknowledged’. This accorded with the provisions of the legislation at the time[10].
[10] Section 19(2), (3) and (4) of the 1966 Act (as amended) provided;
Following lodgement the information statement was accepted by the Registrar. Each information statement collected in a set time period is retained in a bundle. That bundle is then bound into a volume entitled ‘Information Statements’ with a reference to the relevant period. The information statement concerning Ms Andary has been preserved in this manner.
Following Ms Andary’s birth, Ms Pearson met Michael Whitehouse. They married on 22 August 1983. Adoption proceedings were instituted and on 4 June 1986, Ms Andary was legally adopted by Mr Whitehouse. The adoption order was forwarded to the Registrar and duly noted in the birth register. The Adoption of Children Regulations 1966 required that the original birth register entry be amended to reflect the adoption.[11] An appropriate annotation was made on the original birth register entry. On 8 July 1986 the birth register was altered to reflect the change of Ms Andary’s surname from Whittaker to Whitehouse.
[11] Adoption of Children Regulations 1966-1978, regulations 55 and 56
Pursuant to the provisions of the Adoption of Children Act 1966 (SA), as from the time of the adoption Ms Andary was, for the purposes of the laws of South Australia, Mr Whitehouse’s child as if she had been born to Mr Whitehouse and Ms Pearson in lawful wedlock.[12] As of the adoption order, for the purposes of the law of South Australia, Ms Andary ceased to be the child of her birth father and her birth father ceased to be her parent.[13]
[12]Adoption of Children Act, 1966-1975 (SA) , s 30(1)(a):
For the purposes of the laws of this State, but subject to this Act … upon the making of an adoptive order –
(a) the adopted child becomes a child of the adopter or adopters, and the adopter becomes a parent, or the adopters become the parents, of the child as if the child had been born to the adopter or adopters in lawful wedlock;
[13] Section 30(1)(b)
On 27 December 2002 Ms Andary applied to the Registrar to have her surname changed from Whitehouse to Andary.[14] A certified extract from the birth register issued by the Registrar on 30 December 2002 records the change to Ms Andary’s surname as made on the register.
Issues Before the Full Court
[14] Births, Deaths and Marriages Registration Act 1996 (SA) section 24;
Locus
Counsel for Ms Andary submitted that the appeal to the single judge was incompetent. Attention was drawn to section 40 of the Magistrate’s Court Act 1982 (SA) which allows a party to appeal from a judgment given by a magistrate.[15] It was submitted that the Registrar was not a party to the Magistrates Court action and therefore had no right of appeal.
[15] Section 40 (1) A party to a civil action (except a minor civil action) may, in accordance with the rules of the Supreme Court, appeal against any judgment given in the action.
Rule 12(4) of the Magistrates Court (Civil) Rules 1992 provides:
Where these Rules do not regulate the practice and procedure of the Court or a Registrar in respect of the whole or part of any action, proceeding, act or thing, the Court or Registrar will adopt (with necessary modification) the appropriate practice and procedure of the Supreme Court.
As the Magistrates Court Rules do not regulate the practice and procedure of the court with respect to parties, regard must be had to Supreme Court Rule 27.05 which provides:
The Court may upon application, or of its own motion, join any person to the proceedings as a party upon such terms and conditions as the Court may prescribe at any time including after the determination of the plaintiff’s entitlement to relief, but before the grant of remedy, if:
Person claiming an interest
(a) that person claims an interest in the subject matter of the proceedings;…
…
Person whose co-operation is required to give effect to any order of the Court
(c) the Court will require that person’s co-operation to implement an effective
decree;…
…
Person necessary for all matters in dispute to be effectually determined
(e) that person ought to be joined as a party, or his presence before the Court is necessary, to ensure all matters in dispute in the proceedings may be effectually determined and adjudicated upon;…
The Registrar had an interest in the subject matter of the proceedings. That interest arose because of the duties and obligations of the Registrar referred to earlier. The Registrar was a person whose co-operation would be required to give effect to any order of the court. Further, the Registrar was a necessary party to ensure that all matters in dispute could be effectively determined.
Had the Registrar been aware of the application in the Magistrates Court, arrangements would have been made for her representative to appear. As documents produced to this court demonstrate, the Registrar had preserved relevant evidentiary material that would have assisted the Magistrate in the determination of issues raised. The Registrar has standing in this matter.
The Court’s Power
Counsel further contended that the judge erred as a matter of law. It was submitted that until the time of Ms Andary’s adoption in 1985, the information sought to be entered in the birth register was registrable information. It was contended that this information had not ceased to be registrable information and that Mr Andary was still considered to be Ms Andary’s birth father within the meaning of section 19 of the Act. It was said that the birth register should contain accurate registrable information.
Consideration of Issues on Appeal
Further Evidence
At the request of this court, counsel for the Registrar supplied further evidence. That material included a copy of the documents said to comprise the birth register in respect of Ms Andary. Counsel also supplied the Information Statement lodged by Ms Pearson at the time of her application to register Ms Andary’s birth.
This further material allows the complete history of the register to be understood. It also demonstrates that the Magistrate and the judge did not have all relevant material before them.
As earlier observed, the ‘Information Statement for Registration of Birth’ included particulars of Mr Andary as Ms Andary’s birth father. However, Mr Andary did not certify the accuracy of that information or acknowledge his paternity at the time. Mr Andary has now acknowledged his paternity.
Information about a child’s birth father is registrable information within the meaning of the Births, Deaths and Marriages Registration Act. The information is a relevant historical fact. It is appropriate that the birth register be amended to include that information.
The Magistrate’s order was inappropriately worded. The court has jurisdiction to order the inclusion or correction of registrable information in the birth register, not to direct an alteration of a name on a birth certificate. The terms of the Magistrate’s order have contributed to confusion throughout the course of this litigation as a result of the interaction of the registration and adoption legislation.
Ms Andary’s intent was to have her adoptive father’s name removed from the birth register and to have it replaced with Mr Andary’s name. However this could not be achieved by Ms Andary’s section 19 application. The inclusion of Mr Andary’s name as registrable information in the birth register does not affect the adoption order or the legal consequences of that order. The judge was correct in his observations in this respect.
Had the Magistrate ordered that registrable information be included in the birth register, being the identity of Mr Andary as the birth parent, an appropriate entry could have been made recording that historical fact. However the adoption order would still take effect. As from the date of adoption Mr Andary ceased to be the parent of Ms Andary for the purpose of the law and she ceased to be his child.
In the circumstances I would allow the appeal for the limited purpose of directing that the Registrar include in the birth register the identity of Mr Andary as the birth father of Ms Andary. This information will then be recorded in the birth register as a historical fact. This order will enable the recording of relevant information in perpetuity in the birth register. It will also enable Ms Andary to obtain an extract from the birth register of that historical information. However, as earlier observed, the adoption order continues to have legal effect.
VANSTONE J:    In my opinion the appeal must be dismissed. I agree with the reasons given by Mullighan J.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1      Section 6:
The Registrar's general functions are to--
(a)     establish and maintain the registers necessary for the purposes of this Act; and …
(b)
2 This was confirmed by letter on 10 July 2003 from Ms Andary’s solicitor to the Registrar of the Supreme Court of South Australia. The letter included:
We have been instructed that the abovenamed made an application to the Supreme Court of South Australia earlier this year seeking to have birth records changed by the removal of the name of her adoptive father Michael Wellesley Whitehouse and the addition of the name of her natural father reinstated on the birth records.
3      Schedule 1 to the current Act provides:
…
3. A Register maintained under the repealed Act forms part of the Register under this Act.
4      Required by section 15 of the 1966 Act.
5      Required by section 12 of the 1966 Act.
6      The register was not defined in the previous legislation.
7 63 L.J. Ch 539
8 Section 9 Adoption Act 1988 (SA)
9 Section 14 Adoption Act 1988 (SA)
(1) The Court may discharge an adoption order if it appears that the order was obtained by fraud, duress or other improper means.
(2) The Court may, on discharging an adoption order, make any consequential orders that may be necessary or desirable in the circumstances of the case.
10 Section 19(2), (3) and (4) of the 1966 Act (as amended) provided;
(2) On registering the birth of a child born out of lawful marriage the principal registrar shall, except in the circumstances mentioned in subsection (4), of this section enter the words “paternity not acknowledged’ in the column of the certificate for the name of the father
(3) Where a child is born out of lawful marriage –
(a)   the mother need not furnish particulars relating to the paternity of the child; but
(b) where, in the form completed by the mother, a person is named as father of the child, and the appropriate certificate contained in the form is not completed by the father, the Registrar shall serve personally or by post upon the person alleged to be the father of the child, a copy of the form as completed by the mother accompanied by a notice in writing address to the alleged father inviting him to acknowledge that he is the father of the child.
(4) subject to this section, the name of a person shall not be entered in a register as father of the child unless –
(a)   he has, in the form furnished by the mother in pursuance of this section, acknowledged that he is the father of the child; or
(b) he has, in response to an invitation addressed to him under subsection (3) of this section, acknowledged within thirty days after the date of the invitation that he is the father of the child.
11     Adoption of Children Regulations 1966-1978, regulations 55 and 56
12Adoption of Children Act, 1966-1975 (SA), s 30(1)(a):
For the purposes of the laws of this State, but subject to this Act … upon the making of an adoptive order –
(a)    the adopted child becomes a child of the adopter or adopters, and the adopter becomes a parent, or the adopters become the parents, of the child as if the child had been born to the adopter or adopters in lawful wedlock;
13Section 30(1)(b)
For the purposes of the laws of this State, but subject to this Act … upon the making of an adoptive order –
…
(b)    the adopted child ceases to be a child of any person who was a parent (whether a natural parent or a parent by adoption) of the child before the making of the adoption order, and any such person ceases to be a parent of the child;
14     Births, Deaths and Marriages Registration Act 1996 (SA) section 24;
An adult person--
(a) who is domiciled or ordinarily resident in the State; or
(b) whose birth is registered in the State;
may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the person's name.
15 Section 40 (1) A party to a civil action (except a minor civil action) may, in accordance with the rules of the Supreme Court, appeal against any judgment given in the action.
* * * * * * * * * *
(2) If the rules of the Supreme Court provide that an appeal from a judgment of a particular class can only be brought by leave of that Court, the right of appeal is limited accordingly, but in any other case an appeal lies as of right.
(3) The appeal lies to the Supreme Court constituted of a single Judge but the Judge may (if he or she thinks fit) refer the appeal for hearing and determination by the Full Court.

The Registrar's general functions are to--
(a) establish and maintain the registers necessary for the purposes of this Act; and …

(1) The Court may discharge an adoption order if it appears that the order was obtained by fraud, duress or other improper means.
(2) The Court may, on discharging an adoption order, make any consequential orders that may be
necessary or desirable in the circumstances of the case.

(2) On registering the birth of a child born out of lawful marriage the principal registrar shall, except in the circumstances mentioned in subsection (4), of this section enter the words “paternity not acknowledged’ in the column of the certificate for the name of the father
(3) Where a child is born out of lawful marriage –

(a) the mother need not furnish particulars relating to the paternity of the child; but

(b) where, in the form completed by the mother, a person is named as father of the child, and the appropriate certificate contained in the form is not completed by the father, the Registrar shall serve personally or by post upon the person alleged to be the father of the child, a copy of the form as completed by the mother accompanied by a notice in writing address to the alleged father inviting him to acknowledge that he is the father of the child.

(4) subject to this section, the name of a person shall not be entered in a register as father of the child unless –

(a) he has, in the form furnished by the mother in pursuance of this section, acknowledged that he is the father of the child; or

(b) he has, in response to an invitation addressed to him under subsection (3) of this section, acknowledged within thirty days after the date of the invitation that he is the father of the child.

(c)

For the purposes of the laws of this State, but subject to this Act … upon the making of an adoptive order –

…
(b) the adopted child ceases to be a child of any person who was a parent (whether a natural parent or a parent by adoption) of the child before the making of the adoption order, and any such person ceases to be a parent of the child;

An adult person--
(a) who is domiciled or ordinarily resident in the State; or
(b) whose birth is registered in the State;
may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the person's name.

* * * * * * * * * *
(2) If the rules of the Supreme Court provide that an appeal from a judgment of a particular class can only be brought by leave of that Court, the right of appeal is limited accordingly, but in any other case an appeal lies as of right.
(3) The appeal lies to the Supreme Court constituted of a single Judge but the Judge may (if he or she thinks fit) refer the appeal for hearing and determination by the Full Court.

[2004] SASC 68

12 March 2004