Registrar of Births, Deaths and Marriages v Andary No. Scciv-03-111

REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES v ANDARY
[2003] SASC 132
Magistrates Appeal

BESANKO J: This is an appeal by the Registrar of Births, Deaths and Marriages from a decision of a Magistrate pursuant to s 40 of the Magistrates Court Act 1991. The Registrar was the defendant in the action before the Magistrate. The plaintiff (respondent before me) was Ms Chantel Elise Andary.
The decision of the Magistrate was made on 15 January 2003, and was to the following effect:
“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.”
In making the order, the Magistrate exercised the power contained in s 19 of the Births, Deaths and Marriages Registration Act 1996. That section provides as follows:
“19.The Court may, on application by an interested person or on its own initiative, order –
(a) The registration under this Act of a birth that has occurred in the State; or
(b) The inclusion or correction of registrable information about a birth or a child’s parents in the Register.”
The Proceedings in the Magistrates Court
The respondent was born on 23 November 1977 at Rose Park in the State of South Australia. Her mother is Ms Pamela Wendy Whitehouse. On 30 December 2002 the respondent changed her name from Chantel Elise Whitehouse to Chantel Elise Andary. The respondent’s birth certificate as at 30 December 2002 shows Ms Pamela Wendy Whitehouse as her mother and Mr Michael Whitehouse as her father.
On 30 December 2002 the respondent made an application to the Magistrates Court under s 19 of the Births, Deaths and Marriages Registration Act 1996 to correct registrable information about the name of her father in the Register. She sought correction of her father’s name from Mr Michael Whitehouse to Mr Kamal Andary.
The Court file suggests that a notice of hearing was sent to the respondent and to the Registrar by the Court advising the parties that the action would come on for hearing on 10 January 2003. The Registrar did not appear on that occasion. An affirmation of the Registrar has been placed before me. In that affirmation, the Registrar states that she did not receive notice of the hearing in the Magistrates Court on 10 January 2003, or of the adjourned hearing date of 15 January 2003 until after the hearing on that day had been completed. I accept that evidence.
On 10 January 2003 the respondent appeared in person. She called Mr Kamal Andary as a witness, and Mr Andary was examined by the Magistrate. He gave evidence to the effect that he was the respondent’s birth father (ie. natural father). After hearing that evidence, the Magistrate indicated that she wished to hear evidence from the respondent’s mother. The respondent’s mother was not present on 10 January 2003, and the matter was adjourned to 15 January 2003. As I have said, the Registrar did not appear on 15 January 2003, and she did not receive notice of the hearing on that day until after the hearing. On 15 January 2003 the respondent’s mother was called as the witness, and she was examined by the Magistrate. The respondent’s mother gave evidence to the effect that Mr Kamal Andary was the respondent’s father. She also gave evidence that the respondent was adopted by Mr Michael Whitehouse during the course of Ms Whitehouse’s relationship with him. Ms Pamela Whitehouse said that the adoption took place when the respondent was about seven or eight years of age. That would suggest that the adoption order was made in about 1984 or 1985.
After hearing Ms Whitehouse’s evidence, the Magistrate made the order referred to above. She delivered the following brief reasons:
“Based on the evidence of Mrs Whitehouse and also the information that Chantel has provided for me, I grant the application. The name on your birth certificate will be altered to reflect that your father is Kamal Andary, that his details that he gave me on the last occasion will be forwarded to the Registrar.”
The Magistrate was not referred to the Adoption of Children Act 1966-1967 or the Adoption Act 1988.
The Arguments on Appeal
The Registrar put two arguments on the hearing of the appeal. First, she submitted that the Magistrate had no power to make the order because of the provisions of the Adoption of Children Act 1966-1967. Secondly, she submitted that the Magistrate ought not to have made the order without requiring further evidence of paternity, for example, a DNA test. In view of my conclusion in relation to the first argument, it is unnecessary for me to consider the second argument.
At the time of the adoption order, the relevant legislation was the Adoption of Children Act 1966-1967. That Act was replaced by the Adoption Act 1988 but the Adoption Act 1988 did not come into operation until August 1989. In 1984 s 30 of the Adoption of Children Act provided (relevantly) as follows:
“30(1)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;
(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.”
There are no other provisions in s 30 or the Act which would qualify the operation of the above provisions in the circumstances of this case. A Court making an adoption order was required to send notice of the order to the Principal Registrar of Births, Deaths and Marriages who is required to,
“if it relates to a child whose birth is registered in the register of births kept by him, make such alterations to or entries in the appropriate registers as are prescribed.”
(s 56 of the Adoption of Children Act).
There is an equivalent provision to s 30 in the Adoption Act 1988. Section 9 of that Act provides:
“9(1) Subject to this section, where an adoption order is made, the adopted child becomes in contemplation of law the child of the adoptive parents and ceases to be the child of any previous birth or adoptive parents.”
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 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.
The respondent, who appeared in person before me, referred to s 14(1) of the Adoption Act 1988 which provides as follows:
“(1)The Court may discharge an adoption order if it appears that the order was obtained by fraud, duress or other improper means.”
She put forward various reasons why the adoption order should be discharged. It is not open to me on an appeal from a decision of a Magistrate on a particular application to consider these matters. Furthermore, the Court for the purposes of s 14 is the Youth Court of South Australia (s 4), and therefore this Court would not have jurisdiction to discharge an adoption order under s 14(1).
Conclusion
The appeal must be allowed and the order of the Magistrate set aside.

[2003] SASC 132

6 May 2003