Secretary, Department of Communities and Justice v TL

[2025] NSWSC 301

Supreme Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Communities and Justice v TL [2025] NSWSC 301

Hearing dates:

26 February 2025

Date of orders:

26 February 2025

Decision date:

01 April 2025

Jurisdiction:

Equity - Protective List

Before:

Stevenson J

Decision:

Declaration of parentage orders made

Catchwords:

CHILD WELFARE – parentage – declaration of parentage – where child’s father not recorded at birth – where mother subsequently applied to vary birth certificate to record first defendant as father – where mother made various representations as to child’s paternity – where on the evidence there is no doubt that second defendant is child’s father – declaration of non-parentage made – declaration of parentage made

Legislation Cited:

Births, Deaths and Marriages Registration Act 1995 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Status of Children Act 1996 (NSW)

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Crawford v Davidson-Crawford [2019] NSWSC 728

G v H (1994) 181 CLR 387; [1994] HCA 48

GWM v DOCS [2000] NSWSC 1245

Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142

The Adoption of Emily (a pseudonym) [2024] NSWSC 87

Category:

Principal judgment

Parties:

Secretary, New South Wales Department of Communities and Justice (Plaintiff)
TL (First Defendant)
GM (Second Defendant)

Representation:

Counsel:
J Kadar (Second Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
First Defendant (Self-Represented)

File Number(s):

2024/336100

JUDGMENT

1. By Summons filed on 5 September 2024, the Secretary, New South Wales Department of Communities and Justice sought the following orders:

1. Pursuant to the Court’s inherent jurisdiction, declare that TL, the first defendant, is not the father of the child, L.

2. Pursuant to Status of Children Act 1996 (NSW), s 21(2), that GM, the second defendant, is the father of L.

3. Pursuant to Births, Deaths and Marriages Registration Act 1995 (NSW), s 45(2), an order that the Registrar of Births, Deaths and Marriages correct the Register maintained pursuant to s 43 of that Act by deleting the name of TL as the father of L.

4. Pursuant to Births, Deaths and Marriages Registration Act 1995 (NSW), s 19(2), an order for the inclusion of GM as the father of L in the Register of Births, Deaths and Marriages.

2. The proceedings came before me as the Adoptions List Judge for first return on 6 November 2024. Ms Pettit of Legal Aid NSW appeared on that occasion for TL on a duty basis. Mr Kadar, who appeared for GM, indicated that GM had agreed to undertake DNA testing. The proceedings were stood over to allow that DNA testing to take place.

3. On 5 February 2025, the proceedings again came before me for directions as the Adoptions List Judge. TL appeared for himself by audio-visual link from custody. By that time, the DNA test results had been received and indicated that there was a 99.9997% chance of paternity in favour of GM to L. Thus, TL and GM consented to the orders sought by the Secretary in the Summons.

4. The proceedings came before me for final hearing on 26 February 2025. I excused TL from appearing on that occasion, as he did not wish to be heard any further on the application. I made the orders sought and indicated that I would give reasons at a later time. These are my reasons.

The course of events

5. On 19 January 2017, the Children’s Court of New South Wales made orders for L to be placed under the parental responsibility of the Minister for Families, Communities and Disability Services until he attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW). Those orders remain in force.

6. L is in a placement with authorised carers. L is settled and progressing well in this placement.

7. The first defendant, TL, is the person currently recorded on L’s birth certificate as his father. He is currently serving a term of imprisonment and participated in these proceedings via audio-visual link.

8. The second defendant, GM, is the person the Secretary contends to be L’s father.

9. L’s mother, W, resides in Hong Kong. She is not a party to the proceedings. Nevertheless, she was served with notice of these proceedings.

10. W has made various representations to the Department of Communities and Justice in relation to L’s paternity:

1. In October 2014, W presented to a hospital for the birth of L. The Department of Communities and Justice received a Non-Risk of Significant Harm report relating to the care of L once born. W told the reporter that the father was not interested in the baby and had ended their relationship.

2. At L’s birth, W told a caseworker that a man with a similar first name and same surname as GM was L’s father. W said she had been in a relationship with that man up until two months prior to L’s birth.

3. W subsequently registered L’s birth with Births, Deaths and Marriages. L’s father was not recorded, but L was registered with GM’s surname.

4. On 4 June 2015, the Department of Communities and Justice received a Risk of Significant Harm report relating to the care of L. The report named TL as L’s father.

5. On 11 May 2016, W applied to vary L’s birth certificate to register TL as L’s father. W and TL made statutory declarations on 3 April 2016 and 11 March 2016 respectively in support of the application.

6. On 28 June 2016, W told caseworkers that she had “made a mistake with the names” in relation to L’s birth certificate, and she had used the name of the “person who looks after” L.

7. On 8 July 2016, W told caseworkers that L’s father was a man with TL’s first name, and that L was given a different surname because she had “made a mistake”. When asked further about why she had earlier identified a man with a similar name to GM’s name as L’s father, W said, “he never cared for me and my son. So why I care”.

8. On 16 November 2016, W told caseworkers that she believed GM was L’s father, and that TL was a “good friend” and previous boyfriend who “had promised to take care of her and L”. W stated, “[TL] doesn’t care if he isn’t [L]’s father, he cares for both [L] and [me].” W agreed to the removal of TL from L’s case plan.

9. In 2017, W told caseworkers that GM was L’s father, and TL was a “friend” who had wanted to “help” her with L “because [L] didn’t have a [birth certificate] or Medicare”.

10. On 24 January 2022, W told caseworkers that “everyone knows that [TL] is not the father of [L]” but TL is “happy to be [L]’s father”.

11. In 2016, TL told caseworkers that he had been in a relationship with W at about the time L was conceived. TL believed that he was L’s father, and told caseworkers, “I can’t see how [GM would] be the father unless she’s lying to me.” TL declined to participate in DNA testing.

12. In July 2018, a private investigator located GM and served him with a letter requesting he contact the Department of Communities and Justice to discuss DNA testing. GM told the private investigator that he believed that L may be his child, but he declined to engage in DNA testing at that time.

Declaration of non-parentage

13. The power to declare that a relationship of parentage does not exist arises from the Court's inherent jurisdiction. ^[1]

    1. See Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10; GWM v DOCS [2000] NSWSC 1245; Crawford v Davidson-Crawford [2019] NSWSC 728; The Adoption of Emily (a pseudonym) [2024] NSWSC 87.

14. A person seeking to obtain such declaratory relief must show that:

1. there is a controversy between the parties for determination;

2. the person seeking relief has a “real interest” in the question; and

3. the question is not “purely hypothetical”, and a declaration by the Court will produce “foreseeable consequences for the parties”. ^[2]

   2. Crawford v Davidson-Crawford (supra) at [32] (Ward CJ in Eq, as the President then was); citing Ainsworth v Criminal Justice Commission (supra) at 581-2 (Mason CJ, Dawson, Toohey and Gaudron JJ).

15. I accepted that there was a real issue for determination as to whether TL is L’s father. The resolution of this question would affect the contents of a statutory and public register, being the Register of Births, Deaths and Marriages.

16. I also accepted that the Secretary had a “real interest” in determining L’s paternity.

17. L has an obvious real interest in his paternity, since it will have ramifications for his identity and understanding of his life story. ^[3] L’s carers are aware of this application. L is now 10 years old and may have some understanding of the uncertainty surrounding his paternity; indeed, he may even know that this application is before a judge. L had some contact with TL prior to TL’s imprisonment in 2016. L has never had contact with GM. The determination of this application will give L certainty as to his paternity, enable L to have a relationship with his father, if he so chooses, and support his understanding of his identity as he grows up.

    3. G v H (1994) 181 CLR 387 at 391; [1994] HCA 48 at [33] (Brennan and McHugh JJ).

18. L’s paternity will also impact L’s legal rights, including any applications progressed for permanent residency or citizenship on L’s behalf. L is currently the subject of a Child Visa (subclass BT-802). The Department of Home Affairs recently refused a citizenship application for L on the basis that the decision-maker was not satisfied that L was a child of an Australian citizen or permanent resident. The Department indicated that either a DNA test or some other evidence of parentage was required to support a citizenship application for L.

19. It followed that the Secretary has a real interest in L’s paternity. As I have said above, L is under the parental responsibility of the Minister until he attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act. The overriding principle of that Act is that the safety, welfare and wellbeing of the child is paramount in all decisions concerning a child. ^[4] The Secretary is obliged to make decisions in the interests of L’s safety, welfare and wellbeing. It is clearly in L’s interests to resolve any uncertainty surrounding his paternity, and, by extension, any uncertainties surrounding his legal and social identity.

    4. Children and Young Persons (Care and Protection) Act, s 9.

20. Further, a child’s father, and society more generally, also have a vested interest in a child’s paternity; whether the determination relates to the existence of a biological relationship or the lack of one. ^[5]

    5. Crawford v Davidson-Crawford (supra) at [33] (Ward CJ in Eq, as the President then was).

21. Third, the making of such a declaration will produce foreseeable consequences for the parties. It will have ramifications for L’s identity, as I have said. It will also result in an amendment to a statutory and public register.

Is TL the father?

22. A person is presumed to be a child’s parent if the person’s name is entered in the Register of Births, Deaths and Marriages, ^[6] but that presumption is rebuttable by proof on the balance of probabilities. ^[7]

    6. Status of Children Act, s 11.

    7. Status of Children Act, s 15(1).

23. On this application, the Secretary relied on a careful and comprehensive report prepared by a family history researcher employed by the Crown Solicitor’s Office, Mr Maxwell Turner. Mr Turner has examined, with great care, the results of an Ancestry.com DNA test for L and other records to investigate the likelihood that either TL or GM is the father of L.

24. Mr Turner said:

“I consider [L’s] ethnicity estimate and DNA match list as having provided no evidence of [TL] being [L’s] father. However, … I believe the DNA results cannot be taken as conclusive proof of a negative. Rather, I believe the most compelling way to exclude [TL] as being [L’s] father is to analyse the DNA match list and find evidence that another man is, in fact, [L’s] father.”

25. Thus, I first considered whether GM is L’s father as the Secretary contends.

Is GM the father?

26. The Secretary sought an order that GM be declared as L’s father, and orders to correct the Register of Births, Deaths and Marriages to that effect. As I have said above, L's birth certificate does not name GM as L’s father.

27. The Secretary is a nominated person authorised to bring an application for a declaration of parentage. ^[8] On any such application, the Court may make a declaration that a named or identified person is a child’s parent. ^[9]

    8. Status of Children Act, s 21(1)(d); see Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142 at [11] (Sackar J).

    9. Status of Children Act, s 21(2).

28. In his report, which was completed before GM engaged in DNA testing, Mr Turner concluded that L’s DNA match list demonstrated a genetic relationship to relatives of GM. Mr Turner could not find any other alternative hypotheses to explain how L would be genetically related to these relatives of GM if GM were not his father. He concluded that GM must be the father of L.

29. GM ultimately participated in DNA testing in late 2024. The results of that testing indicated that GM has a probability of paternity of 99.9997% to L.

30. I concluded that, on the evidence before me, there could be no doubt that GM is the father of L.

Conclusion

31. I was satisfied, on the evidence before me, that L’s paternity in favour of GM is proven on the balance of probabilities. Thus, I was satisfied that there was sufficient evidence to rebut the presumption of parentage in favour of TL.

32. I was also satisfied that it is in L’s best interests that a declaration of parentage be made that GM is his father. The inclusion of GM’s name on his birth certificate will support his ongoing relationship with his birth father and support his understanding of his identity as he grows up.

33. Thus, I made the declarations sought, and made the orders sought pursuant to ss 45(2) and 19(2) of the Births, Deaths and Marriages Registration Act.

The Secretary’s position

34. The Secretary raised one further matter before me in the course of these proceedings. It had come to the Secretary’s attention that TL and W may have made knowingly false and misleading statements in their statutory declarations in support of the application to Births, Deaths and Marriages to vary L’s birth certificate in 2016.

35. The Secretary very properly brought these matters to my attention and sought to have the relevant material read in open court at a final hearing to preserve his right to make referrals at a departmental level for the investigation of any commission of an offence.

36. TL was put on notice of the Secretary’s intention to read that material on 5 February 2025. TL and I had this exchange:

“HIS HONOUR: I want to know if there is anything you want to say about the procedure. Ms Hailstone [who appeared for the Secretary] is saying that maybe an offence has occurred. I don’t think she is asking me to do anything about it in particular, but she is telling me that she thinks the [S]ecretary needs to bring the matter to the Court’s attention in a formal way. What I’m asking is do you have any objection to that happening? I don’t think you should say anything to me about what you say happened at the time.

[TL]: Okay. I’m not sure what I can say, except that the DNA evidence that has now been presented to me, I have a copy of that here, seems to be conclusive, whereas prior to that it wasn’t conclusive.

HIS HONOUR: Things weren’t so clear.

[TL]: Very, very unclear, only in my heart what I believed at the time is all I can go on.”

37. TL did not wish to be present or seek to be heard any further beyond that. As I have said, I did not require TL to appear before me at the final hearing on 26 February 2025.

38. W was not put on notice of the Secretary’s intention to read the material. It would not be appropriate for me to make any findings about this matter without notice to W, since she is a person who would be affected by the matter.

39. In any event, I was not asked to make any findings in relation to this matter. It is for Secretary to decide whether any further steps are appropriate.

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Endnotes

Decision last updated: 01 April 2025