CLS v Queensland Registry of Births Deaths and Marriages [2013] QCAT 141

CITATION: CLS v Queensland Registry of Births Deaths and Marriages [2013] QCAT 141 PARTIES: CLS (Applicant) v Queensland Registry of Births Deaths and Marriages (Respondent) APPLICATION NUMBER: GAR160-12 MATTER TYPE: General administrative review matters HEARING DATE: 27 February 2013 HEARD AT: Brisbane DECISION OF: S. Gardiner, Member DELIVERED ON: 28 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. IL also known as II be registered as the biological father of CLS in all the records concerning the birth of CLS held by the Registrar of Births Death and Marriages Queensland CATCHWORDS: ADMINISTRATIVE REVIEW – Where a father died before the birth of his son – Where the parents were not married – Where the father did not sign the application to register the birth – Where the father was not registered on the birth certificate – Where a discretion exists to register the father in certain circumstances – Where the discretion exercised Births, Deaths and Marriages Registration Act 2003 ss10, 43 Births, Deaths and Marriages Registration Regulation 2003: s5 Status of Children Act 1978: ss 26,28 -- 1 of 6 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: CLS appeared by telephone RESPONDENT: Mr Grahame Scholfield Acting Deputy Registrar appeared for the Department REASONS FOR DECISION [1] IL mined the earth for opal in Queensland. It was the late 1970s. IL was living in in South Australia with his defacto wife. They had been living together for about a year and CD was pregnant with their first child. [2] IL’s mother and sister were also living close and the whole family was looking forward to the birth of the child. [3] However, fate intervened. IL died in South Australia in April 1978 after a mining accident. [4] CD gave birth to CLS in Queensland later in 1978. CD filled out the document called “Certificate of Birth” on that year listing IL(deceased) as the baby’s father. [5] IL’s mother and sister had no doubt that they had a new grandson and nephew respectively. CLS was christened in the Greek Orthodox Church in April 1979. His community (as recorded in his baptism certificate) accepted him as the son of IL and CD. [6] Although the document CD filled out at CLS’s birth was called a Certificate of Birth, it actually wasn’t. In fact, it was an application to register a birth only. Back then, defacto relationships were not legally recognised and there was no presumption that CLS was IL’s child because they were not married1. [7] CLS's birth certificate did not register IL as CLS’s father. [8] This has been emotionally an issue for CLS for many years. Finally, in April 2012 he decided to do something about it. He wrote to the Registrar of Births Deaths and Marriages asking for IL to be registered as his father. [9] The Registrar wrote back saying that CLS would have to provide a court order issued by the Supreme Court of Queensland for the Registrar to be satisfied to amend the record. 1 The Status of Children Act 1978 came into force on 1 January 1979 but contained no presumption of paternity concerning defacto relationships. This presumption was not inserted into the Act until 2001. -- 2 of 6 -- 3 [10] CLS countered with the documentation (subsequently before this Tribunal) including the various statutory declarations of his mother, grandmother and aunt, his father’s death certificate and copies of his certificates of birth and baptism. [11] The Registrar felt constrained by the legislation. As explained to this Tribunal at the hearing, the accuracy of the records of births is vital to many issues and the Registrar must be sure of any changes made. [12] CLS reviewed this decision to QCAT. [13] The recording and then registration of a father at a person’s birth is governed by section 10(2)(a) of the Births, Deaths and Marriages Registration Act 2003. This section requires the father to sign the birth registration application as the parent of a child and for the Registrar to be satisfied either that the person is a parent of the child to register a parent or, that the Registrar is entitled under the Status of Children Act 1978, section 26 to presume the person is a parent of the child2. [14] IL didn’t sign the register but there is little doubt that if he had, the Registrar could have been satisfied that he is a parent of CLS. There is direct evidence from CLS’s mother, his paternal grandmother and paternal aunt and the acceptance from his community, all of whom have no doubt that IL is CLS’s biological father. There is no evidence to the contrary. [15] What does the Status of Children Act say? Section 26 says a Court can find a person to be a child’s parent after the person dies. There would not seem to be any need here to seek such a decision, as there is ample first hand evidence (unchallenged) to show that IL is CLS’s biological father. [16] Where a father has died before a birth, s10 (3) of the Births, Deaths and Marriages Registration Act 2003 allows that the Registrar may include information about the identity of a parent who did not sign the birth registration application because the parent is dead, if the registrar is satisfied the other parent does not dispute the correctness of the information. [17] The Registrar says that this is a further step to the requirements of section 10(2). This sub-section assumes that a person has been identified as a parent under subsection 10(2). The Registrar says subsection 10(3) is the mechanism for including the identified person if they did not sign because they had died. [18] CLS disagrees. He says that the use of the word “However” to begin subsection 10(3) imports a discretion so that the Registrar could register IL on his birth certificate. 2 Births, Deaths and Marriages Registration Act 2003: s 10(2)(b) -- 3 of 6 -- 4 [19] Where a plain reading of legislation causes some ambiguity to arise, this Tribunal is entitled to seek guidance of Parliament’s intention from the Explanatory Memorandum to the Births, Deaths and Marriages Registration Bill 2003. This memorandum says the following about the then clause 10: Clause 10 provides for when the registrar may include parentage details on the birth register. These provisions apply when a person applies to register the birth, or after registration of the birth. Clause 10(2) provides that the registrar must not include information in the births register about the parentage of a child unless the person signed a birth registration application and the registrar is satisfied that the person is the parent of the child, or the registrar is entitled under section 18C of the Status of Children Act 1978 to presume that the person is the parent of the child. Clause 10(3) allows the registrar to include information about the identity of a parent who did not sign the birth registration application in certain circumstances. [20] Although brief, the explanation of clause 10(3) appears straightforward. It allows the identity of a parent to be included in certain circumstances. One of those circumstances is when the parent is dead and cannot sign the registration application. [21] Returning to a plain reading of the legislation, the check and balance written into this exception is that the Registrar must be reasonably satisfied that where the living parent is applying, there is no dispute the correctness of the information. [22] The Registrar can also rely on the parenting presumptions in State or Commonwealth law (for example, perhaps in circumstances where no parent is alive at the time of registration). [23] Finally subsection 10(4) gives the Registrar the right to require a formal finding of parentage in circumstances prescribed under a regulation where there is some ambiguity or uncertainty or conflict about biological parentage. Section 5 of the Births, Deaths and Marriages Registration Regulation 2003 says: For section 10(4) of the Act, a circumstance is if the registrar, after an inquiry conducted under section 43 of the Act, is not satisfied that the person is a parent of the child. [24] The example given by this regulation is where the registrar receives birth application forms for the same child from two males, each respectively stating that he is the child’s father. The registrar issues a notice to the child’s mother requiring her to provide information about the father’s identity and the mother replies she does not know who the father is. Section 43 of the Act allows the Registrar to conduct an inquiry into such matters. -- 4 of 6 -- 5 [25] There is no need for such an inquiry in this matter as there is no contest on the facts concerning CLS’s parentage. [26] I am not persuaded by the submission of the Registrar that the use of different words in subsections 10(2) and (3) implies that the Parliament meant there to be a complicated stepped process in some unusual circumstances around the registration of the birth of a child. [27] Armed with the explanation of the Bill’s Explanatory Memorandum, and on a plain reading of the sections of the Act, I am satisfied that subsection 10(3) gives the Register a discretion to include the identity of a parent in certain circumstances. One of these listed circumstances is met by the facts of this case. [28] IL tragically died before CLS was born. CD does not dispute the correctness of the information about CLS’s parentage. There are no circumstances indicating any dispute about this information requiring the Registrar to conduct an inquiry or requiring a court order as proof of parentage3. Status of Children Act [29] Additionally, section 28 of the Status of Children Act now legislates a presumption arising from cohabitation. It says a child born to a woman is presumed to be a man’s child if, during the period starting 44 weeks and ending 20 weeks before the birth, the man and the woman cohabitate but are not married. [30] CLS was born in November 1978. 44 weeks prior to CLS’s birth is January 1978. 20 weeks prior to CLS’s birth is July 1978. [31] CD’s evidence is that she and IL were co-habiting for a year prior to his death beginning around April 1977. So, until IL’s and certainly during the period required by s 28 of the Status of Children Act, IL and CD fulfilled the requirements of cohabitation allowing the presumption of paternity to arise in relation to CLS. [32] Although this presumption is rebuttable, there is no evidence to the contrary. All of the evidence supports IL being CLS’s father. [33] I am satisfied on the evidence that IL also known as Il is the biological father of CLS. [34] I am satisfied the requirements of s s10 (3) of the Births, Deaths and Marriages Registration Act 2003 are met and that IL also known as Il should be recorded on the register of births as CLS’s father 3 Births, Deaths and Marriages Registration Regulation 2003: s5 -- 5 of 6 -- 6 [35] I order that IL also known as Il be registered as the biological father of CLS in all the records concerning the birth of CLS held by the Registrar of Births Death and Marriages Queensland. -- 6 of 6 --