WHITLEY & INGHAM
[2013] FCCA 869
•22 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITLEY & INGHAM | [2013] FCCA 869 |
| Catchwords: FAMILY LAW – Parentage – application by the mother for an order that a deceased man to be added to a child’s birth certificate as the child’s father and that his death certificate be amended to add the child’s details. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), s.100 Births Deaths and Marriages Act 1995 (NSW), s.19 Status of Children Act 1996 (NSW), s.21 |
| Cases cited: McK & K v O (2001) FLC93-089 W v J & S [1998] FamCA 44 |
| Applicant: | MS WHITLEY |
| Respondent: | MR INGHAM (DECEASED) |
| File Number: | NCC 312 of 2013 |
| Judgment of: | Judge Terry |
| Hearing date: | 13 June 2013 |
| Date of Last Submission: | 13 June 2013 |
| Delivered at: | Newcastle |
| Delivered on: | 22 July 2013 |
REPRESENTATION
| The Applicant: | In person |
ORDERS
That the application filed on 14 February 2013 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Whitley & Ingham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 312 of 2013
| MS WHITLEY |
Applicant
And
| MR INGHAM (DECEASED) |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Whitley (“the mother”) has filed an application in which she seeks the following:
To have the late Mr Ingham’s name added to his daughter’s, [X], birth certificate
[X] to be added to her fathers, Mr Ingham’s, death certificate.
Background Facts
The mother commenced a relationship with Mr Ingham in the latter part of 2009. The relationship ended in August 2010 after Mr Ingham struck the mother resulting in her requiring treatment at a hospital.
On [date omitted] 2010 the mother gave birth to [X]. She was certain that Mr Ingham was [X]’s father but without his consent she could not put his name on [X]’s birth certificate.
The mother said that she intended at an opportune time to seek
Mr Ingham’s consent to his name being included on the birth certificate but before she could do so Mr Ingham committed suicide.
Mr Ingham died on [omitted] 2011 and following his death the mother took steps to try to establish that he was [X]’s father.
The mother obtained access to blood samples through the Coroners Court but they proved too degraded to allow for successful testing.
The mother then arranged for a sibling test to be done with another child believed to be Mr Ingham’s child but the test revealed that this child and [X] did not have the same father.
The mother believed beyond doubt that Mr Ingham was [X]’s father and she next arranged for a grandparent test. The results of this test, dated 29 November 2011, indicated that Mr I, Mr Ingham’s father, was [X]’s grandfather to a probability of 99.75%.
On the basis of this Mr Ingham’s superannuation fund, [M] Super, accepted a claim that [X] was Mr Ingham’s child and paid part of
Mr Ingham’s entitlements to the mother for [X]’s benefit.
The mother was dissatisfied with the decision of [M] Super to pay part of the benefit to the mother of the child who it had been established was not Mr Ingham’s biological child and she filed an application in the Superannuation Complaints Tribunal. This application is yet to be determined.
The mother filed her application in this court on 14 February 2013. She said that the reason she had made the application was that she considered it important for [X]’s sake that her father’s name be included on her birth certificate and that [X] also be noted as Mr Ingham’s child on his death certificate.
The powers of this court
This court can order the inclusion of registrable information about a child’s parents in the Register of Births kept by the Registrar of Births Deaths and Marriage in NSW provided that it makes a finding about the parentage of the child. S.19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) provides that:
If any court (including any court of another State or the Commonwealth) makes a finding about a birth or a child’s parents, the court may order registration of the birth or inclusion of registrable information about the birth or the parents in the Register.
The power of this court to inquire into and make a declaration about the parentage of a child is found in Division 12 of Part V11 of the Family Law Act 1975 and the first two sections of Division 12 provide as follows:
s.69V
Evidence of parentage
If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order requiring any person to give such evidence as is material to the question.
s.69VA
Declarations of parentage
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
The wording of these sections make it clear however that this court’s power to inquire into and make findings about parentage is not a stand-alone power; it is a power which can be called in aid to assist the court if the parentage of a child is an issue in an application brought under the Family Law Act 1975 (or the Child Support (Assessment) Act 1989 by virtue of s.100 of that Act) for other orders.
Mullane J sitting in the Family Court in Newcastle took this view in a case he dealt with twelve years ago. In that case a mother and maternal grandmother sought a declaration that a deceased person was the father of a child. No other orders were sought.[1]
[1] McK & K v O (2001) FLC 93-089
Counsel for the mother and maternal grandmother submitted that s.69VA of the Family Law Act 1975 gave Mullane J the power to make the declaration they sought but Mullane J disagreed. He said as follows:
That power is not a free standing power. It is clearly expressed to be dependent upon there being proceedings before the court in which the parentage of the child is already an issue.
Mullane J’s view is consistent with the view expressed by Fogarty and Baker JJ in W v J & S[2] that paternity testing cannot be ordered pursuant to s.69W of the Family Law Act 1975 if the parentage of the child is not an issue in proceedings under the Act.
[2] W v J & S [1998] FamCA 44
I respectfully agree with Mullane J and am of the view that even if I could be satisfied on the evidence provided by the mother that Mr Ingham was [X]’s father I would have no power to make an s.69VA declaration because [X]’s parentage is not an issue in proceedings for any other orders under the Family Law Act 1975.
It follows that I have no power to make an order that Mr Ingham’s name be added to [X]’s birth certificate, and I do not have any power to order an amendment to the death certificate. That is a matter for either the Registrar of Births Deaths and Marriages or the State courts of NSW.
The other alternatives open to the mother
The appropriate course for the mother, insofar as she seeks to have
Mr Ingham’s name added to [X]’s birth certificate, is to make an application to the Supreme Court of NSW pursuant to s.21 (1) of the Status of Children Act 1996 (NSW). This application can be made regardless of the fact that Mr Ingham is deceased, and s.21 (4) provides that if a declaration is made that Mr Ingham is [X]’s father the Registrar of the Supreme Court must forward a copy of the declaration to the Registrar of Births Deaths and Marriages to be dealt with under the Births, Deaths and Marriages Act 1995.
Pursuant to s.45 of the Births Deaths and Marriages Act 1995 the Registrar can be requested to amend the particulars in the register concerning Mr Ingham’s death and in the event that the Registrar declines to amend those particulars an application can be made to the District Court of NSW for an order that he be required to do so.
The only order I can make is one dismissing the mother’s application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 22 July 2013
Key Legal Topics
Areas of Law
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Civil Procedure
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