District Court New South Wales

• Medium Neutral Citation: AA v Registrar of Births Deaths and Marriages and BB [2011] NSWDC 100
• Hearing dates: 2 August 2011
• Decision date: 17 August 2011
• Jurisdiction: Civil
• Before: Judge Walmsley SC

Decision

Orders 1 and 2 in Amended Summons

• Catchwords: Birth certificate-application to replace name of biological father with name of former partner of birth mother
• Legislation Cited: Exemption of Apothecaries Act 1694 6 & 7 William & Mary c 6 (UK); Artificial Conception Act 1984 (NSW); Births, Deaths and Marriages Registration Act 1995 (NSW); Family Law Act 1975 (Cth); Interpretation Act 1987 (NSW); Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW); Status of Children Act 1996 (NSW)
• Cases Cited: A.A. v. B.B. (2007) 83 OR (3d) 561; PJ v DOCS [1999] NSWSC 340; Re A and B [2000] NSWSC 640; W v G (1996) 20 Fam LR 49
• Texts Cited: The Laws of Australia (Law Book Co)
• Category: Principal judgment
• Parties: AA (Plaintiff); Registrar of Births Deaths and Marriages (First Defendant); BB (Second Defendant)
• Representation: Ms R Graycar with Ms J Millbank (Plaintiff); BB (In person); Mari Vagg, Women’s Legal Service NSW (Plaintiff)
• File Number(s): 2010/52492
• Publication restriction: Publication restriction on anything that would identify the child the subject of the proceedings

Judgment

The Issues

1 The issue to be resolved is whether the plaintiff, AA, should be registered under the Births Deaths and Marriages Registration Act 1995, (NSW) (BDMA) as a parent of a child I shall call AB. The case concerns a child born to a lesbian couple, of whom AA was once one, resulting from artificial insemination of the birth mother, AC, using sperm donated for that purpose by the second defendant, BB. BB has been registered under the BDMA as the child's father, for many years. If AA's application is successful, his name will have to be removed from the birth register (the Register). Only two people may be named as parents on the Register at any one time. (To preserve the anonymity of AB I am using pseudonyms).

2 The first defendant (the Registrar), who has an obligation to keep a register (the Register) of birth details, filed a submitting appearance. BB opposed the orders sought. He has had a close and loving relationship with AB all of her life. So have his mother and his sister. Currently there are consent orders in force in the Family Court giving him contact rights to her. Over the years he has contributed tens of thousands of dollars to AB's upkeep and has performed acts of great generosity to AC. He sees his position as one of father to AB in all relevant ways.

The Background

3 From about September 1994 until April 2000 AA was in a lesbian relationship with AB's birth mother, AC. The couple decided to have a child using donated sperm. They placed an advertisement in the Sydney Star Observer in June 2000. The advertisement said inter alia:

"Lesbian couple seeks donor, view to being "uncle" figure to child. No financial obligation. If interested and would like to talk more about details, contact us..."

4 At about the same time, BB placed an advertisement in a publication called "Lesbians on the Loose" (LOTL). The text of his advertisement said:

"Sperm Donour (sic) Professional male mid 40's would like to meet lesbian lady to view of producing a child. Full health details available involvement and financial assistance offered."

5 AA and AC responded to BB's advertisement. Meetings later occurred between the three of them. There was some discussion about the role each would play in the baby's life. This was not the subject of exploration at the hearing, but it was not disputed by AA and AC that BB told them he wanted some involvement, and especially wanted his mother to know he had a child.

6 From time to time over the next few months BB went to the home of AA and AC and donated sperm. The sperm was inserted into AC by syringe. After three or four attempts, AC became pregnant. All three adults had an amicable relationship at that time. After AC became pregnant, BB was invited by AA and AC to their home so he could listen to the baby's heartbeat. He was informed of her birth as soon as she was born and he visited her the next day and brought his extended family to see her over the following week. He was invited to visit whenever he chose.

7 BB contributed substantial sums for midwifery consultations, including for birth costs. He paid for AC to have naturopathic and chiropractic consultations, and shiatsu massages. According to the unchallenged figures in evidence, by a time shortly after the baby's birth he had contributed close to $10,000 for such expenses. After AB's birth he paid $150 per week for her maintenance for some years.

8 AB's birth was registered in August 2001. Her birth mother, AC, was registered as the mother. Although there was a position on the registration form for the name of the father to appear, that section was left blank. At that time there was no legislative provision in New South Wales permitting registration of more than one female as a child's parent. Explaining in these proceedings what had happened at that time AC said in paragraph 24 of her affidavit of 27 January 2011: "I left the spot for 'father' blank. It was not possible to list a second female parent in NSW at that time. If it had been possible, I would have listed [AA] as [AB's] other parent."

9 Within months of the birth, BB's relationship with AA and AC had ceased to be amicable. In 2002 BB applied to the Family Court for contact orders. On 14 April 2003 consent orders were made in the Family Court permitting BB to see AB for two hours every second weekend, and each year on Father's Day. The precise basis on which the Family Court had jurisdiction to hear the application was not explored before me. But Ms Graycar drew my attention to s 65C(c) Family Law Act 1975 which permits "any ...person concerned with the care, welfare or development of the child" to apply for a parenting order. I infer the consent order was such an order. The Family Law Act goes to some pains to deal with the status of a sperm donor. Section 60H(1)(d) of the Family Law Act 1975 provides that where a child is born as a result of what it calls an "artificial conception procedure" and the mother is in a de facto relationship with another person (called there "the other intended parent") who consents to the procedure, and where the donor of sperm also consents to the procedure, a child born of the procedure does not thereby become the "child" of the sperm donor. (In that context the legislation calls the sperm "genetic material".) Thus although it is relied on by BB, I do not consider the fact that the order was made assists to promote his cause in the context of this case.

10 The consent orders made no reference to the issue of whose names should appear as parents on the Register. However in paragraph 27 of AC's affidavit she said this:

"In 2002 I agreed to [BB's] request to go on [AB's] birth certificate because I was advised by our solicitor at the time that it was the best course of action to settle the Family Court proceedings for contact that [BB] had initiated."

11 In fact, BB's name was placed on the Register as AB's father late in 2002. Both AC and BB signed a statutory declaration at that time giving BB's name, address, occupation, and date of birth in a section called "Father's Particulars". In her affidavit of 1 February 2011 AA said in paragraph 33:

"As [BB] was the sperm donor and AB was conceived through assisted conception, my understanding at the time that [AC] and [BB] arranged to include [BB's] name on the birth certificate was that it was intended as a purely symbolic gesture without any legal effect."

12 AA and AC lived, and raised AB, together, until April 2006, when their relationship broke down. Thereafter they shared custody of her on a week on and week off basis.

13 In 2007 there were further proceedings in the Family Court. Again matters were resolved by consent orders. This time the orders reflected arrangements made between AA and AC to share parental responsibility for AB. They also allowed an increase in the time AB was to spend with BB.

14 In 2008 the law of New South Wales was amended to permit two women who had had a child when in a relationship together to have both of their names placed on the Register as the parents of the child. The legislation was retrospective. Thus although her relationship with AC had broken down over two years before, AA became eligible to have her name listed as a second parent on the Register. So that her name could be placed on the Register, she made an application to the Registrar. The Registrar took the view that only two people could appear as parents on the Register at the one time. Thus he considered that for AC to have her name placed on the Register, BB's name would have to be removed. For that to occur she needed his consent or a court order.

15 By a letter of 25 February 2010 the plaintiff wrote to BB inter alia as follows:

"Due to the changes in the laws regarding the legal status of the non--biological mother last July in New South Wales, I am now able to insert my name onto [AB's] birth certificate as her legal parent in addition to [AC's]. To do this you would need to agree to your name being removed. The birth certificate is a document that explains parentage . It is not a certificate outlining genetic inheritance . By asking you to remove your name... I am not wishing for your relationship with [AB] to change in any way. You always will be her biological donor, and you will still maintain your relationship and spend time with her as you do currently. All it means is that my rights as... parent will be correctly represented on her certificate.

...

I reiterate, this is not a reflection in any way on your relationship with [AB], but is merely putting in place what should have been written when she was born. [AB] will still continue to foster her relationship with you in a way that she currently does."

(The emphases were inserted by AA)

16 By letter of 2 March 2010 BB replied inter alia as follows:

"I do sympathise with your position something that I feel I have never received from you on my position however I am not going to go into that now.

In relation to me being [AB's] biological donor, I take offence of this description as far as I'm concerned I am and always will be [her] father ...

...

When I agreed to have a child with [AC] and you as her then partner we did not have in writing an agreement on any of these matters and it was a wait and see approach, if you can remember back then it was all about fulfilling the dream of the 3 of us not just you.

I am aware that you were looking for a uncle figure to your child as per your advertisement in the Star Observer however you always appear to overlook what I was looking for in my advertisement in Lotal, I was not looking to be an uncle figure but to have a child with a lesbian or a straight lady, there was not going to be any written contract with lawyers on what involvement I would or would not have it was going to be a matter of Trust.

In short I am not going to have my name removed from [AB's] birth certificate and I think you have a bloody hide to ask me seeing the lengthy and very expensive legal action I took to have it put on there eight years ago...

I do acknowledge that you and [AC] are doing a wonderful job on parenting [AB] but I am sure I can do just as good a job if this matter is taken to court.

As a sign of good faith I am prepared to acknowledge your position and if it is possible to have three names put on [AB's] birth certificate I will agree to this but I will never agree to have my name removed. [AB] is my daughter just as much as she is yours and [AC's]..."

17 In an affidavit of 20 May 2011 prepared for these proceedings BB said that he was aware someone who had been in a lesbian relationship with the birth mother when a child was born could have her name placed on the Register but he understood that to be the position only where the donor was anonymous. He conceded the question of whether his name should be on the Register had not been discussed before the birth. He went on to say that he would leave it to the court to decide whether "my daughter is entitled to have me on her birth certificate". He said he is proud of his name and heritage and wants "my daughter to have the same respect for her biological heritage that I do."

18 On 18 March 2010 the plaintiff made an application to the Registrar to have her name added as a parent on the Register. By letter of 24 March 2010 to her solicitor, the Registrar pointed out that under Part 4, Clause 17, of the BDMA he could not add registrable information to a child's birth registration about the identity of a woman as a parent without the consent of the person identified on the Register as the father for the removal of his particulars from the Register or unless the court ordered the removal of his name. He also told AA's solicitor that he had received correspondence from BB saying he did not consent to having his details removed from the Register.

19 On 29 March 2011 the plaintiff commenced these proceedings by way of summons seeking the following orders:

"(a) under Schedule 3 clause 17(4) of the [ BDMA ] that the name of [BB] be removed from the birth register; and

under S 19 and Schedule 3 clause 17 (2) that the name of [AA] be added to the birth register of [AB]"

20 When the proceedings were commenced, BB was not made a party. On 29 March 2011 he was joined as a second defendant. The Registrar, who had been the only defendant until that point, then filed a submitting appearance pursuant to UCPR 6.11. Thereafter the plaintiff filed an amended summons naming BB as second defendant. Initially there were some concerns on the part of the Registrar that the plaintiff might seek costs against him. So solicitors on his behalf filed submissions concerning costs. When the matter proceeded before me on 2 August, Ms Graycar, who with Professor Millbank appeared for the plaintiff, informed me she had instructions not to seek any costs orders against either defendant, regardless of the outcome.

21 When the matter proceeded on 2 August 2011, only AA and BB took an active part.

The Legislative framework

22 Changes permitting registration of the type sought by AA were introduced to the Status of Children Act 1996 by the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008. In the second reading speech, the then Attorney General and Minister for Justice, the Honourable John Hatzistergos, said this:

"The bill makes amendments to a number of Acts, which will have far reaching implications for same-sex lesbian couples who are raising children in our community. Specifically, the bill amends the law concerning parenting presumptions in the Status of Children Act 1996 that arise as the result of a fertilisation procedure. The amendments will mean that where a woman who is in a de facto relationship within the meaning of the Property (Relationships) Act 1984 with another woman and has undergone a fertilisation procedure as a result of which she becomes pregnant, the woman who becomes pregnant is presumed to be the mother of any child born as a result of the pregnancy, even if she did not provide the ovum used in the procedure, and the other woman is presumed to be a parent of any child born as a result of the pregnancy, including where she provided the ovum used in the fertilisation procedure, provided she consented to the procedure.

This presumption is generally retrospective, so that the new presumption extends to a fertilisation procedure undertaken, and the consent given before the commencement of the amendments.

...

I note that these reforms to the parenting presumptions in the Status of Children Act reflect the commitment of the government to ensuring that the law treats children in same-sex relationships as having the same rights and entitlements as children of other relationships.

...

A key motivation for the government in enacting these new parenting presumptions is to ensure that lesbian same-sex parents can take parental responsibility for their children with respect to their health, education and general well-being in the same way as we expect all other parents to. Accordingly, the bill makes consequential amendments to the Births, Deaths and Marriages Registration Act 1995 to ensure that both parents can be noted on the child's birth certificate. This is an important measure, as it will enable both parents of a child conceived as a result of a fertilisation procedure provided to those in the lesbian same-sex de facto relationship to hold themselves out as the child's parents in circumstances where evidence of the parent-child relationship is demanded by our state's public institutions, such as hospitals and schools. It will also enable same-sex parents to engage with other authorities, such as sporting registration bodies, so often encountered by parents in the course of bringing up children.

The amendment to the Births, Deaths and Marriages Registration Act provides that an application can be made to the Registrar of Births, Deaths and Marriages for the addition of registrable information about the identity of a woman who is presumed to be a parent under the new parenting presumptions in the Status of Children Act, even if the child was born before the commencement of the new provisions. In order to reflect the government's policy that a child should only have two legal parents, the amendments to the Births, Deaths and Marriages Registration Act include transitional provisions addressing the addition of information about a second parent in circumstances where the child's birth certificate already details existence of two parents, the birth mother and a person who was represented to the registrar as being the father of the child . In such circumstances the registrar will only be able to add the registrable information arising out of the new parenting presumptions in the Status of Children Act if the already registered father consents to the removal of his details from the birth certificate, if the court authorises the removal, or in certain other circumstances provided for by regulation.

The government emphasises here that these provisions, regarding the removal of the male's name from the birth certificate, only apply where the child was conceived through artificial fertilisation and the man is not entitled to be recognised as the parent. In some circumstances a man's name may have been put on the birth certificate as the father without him [ sic ] having parentage entitlements to justify this-for instance, if the man was a sperm donor and had no relationship with the birth mother, or the man was merely a friend of the birth mother who did not father the child but was named on the birth certificate for symbolic purposes. In these circumstances the provisions allowing his name to be removed can apply. They cannot apply where the sperm donor was also the de facto partner or husband of the woman in the period around the birth, because there is a presumption... that he would be the father."(My emphases).

23 The Status of Children Act 1996 (NSW) contains provisions concerning presumptions of parentage. Relevant provisions are:

"11 Presumptions of parentage arising from registration of birth

(1) A person is presumed to be a child's parent if the person's name is entered as the child's parent in the Births, Deaths and Marriages Register or a register of births or parentage information kept under a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction.

(2) ....

13 Presumption of parentage arising from acknowledgments

(1) A man is presumed to be a child's father if:

(a) Under this Act or other law of the State or a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction, the man executes a formal paternity acknowledgment or any other instrument acknowledging that he is the child's father, and

(b) The instrument has not been annulled or otherwise set aside.

(2) This section extends to instruments executed before the commencement of this section.

14 Presumptions of parentage arising out of use of fertilisation procedures

...

(1A) When a woman who is the de facto partner of another woman has undergone a fertilisation procedure as a result of which she becomes pregnant:

(a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure, and

(b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.

(2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.

...

(4) Any presumption arising under subsections (1)-(3) is irrebuttable.

...

15 Rebuttal of parentage presumptions

(1) A presumption arising under this Division, or a parentage presumption arising under any other Act or rule of law, that is rebuttable, is rebuttable by proof on the balance of probabilities.

(2) Every presumption arising under this Division (except for a presumption arising under section 12 (1) or 14 (1)-(3)) is a rebuttable presumption.

...

17 Conflicts involving irrebuttable parentage presumptions

(1) If two or more irrebuttable presumptions arising under this Division conflict with each other, the presumption that appears to the court to be more or most likely to be correct prevails.

(2) If an irrebuttable presumption arising under this Division conflicts with a rebuttable presumption arising under this Division that is not rebutted in any proceedings, the irrebuttable presumption prevails over the rebuttable presumption."

24 Section 21C of the Interpretation Act 1987 contains a definition of "de facto relationship" as follows:

" 21C References to de facto partners and de facto relationships

...

(2) Meaning of "de facto relationship"

For the purposes of any Act or instrument, a person is in a de facto relationship with another person if:

(a) they have a relationship as a couple living together, and

(b) they are not married to one another or related by family.

..."

25 In section 3 of the Status of Children Act the expression "fertilisation procedure" is defined inter-alia as "(a) the artificial insemination of a woman". It does not elaborate further. In W v G (1996) 20 Fam LR 49 at 62 Hodgson J (as he then was) considered that expression where it appeared in Section 6 (1) (a) Artificial Conception Act 1984 (an Act repealed by the Status of Children Act ). His Honour, noting the legislation did not define "artificial insemination" in a similar context to that I am now considering, said of a procedure there where pregnancy had been brought about by insertion of sperm by syringe, "there seems no doubt ... the procedure...does amount to artificial insemination."

AA's Arguments

26 On behalf of the plaintiff, Ms Graycar argued that on the uncontested facts, AC had undergone a "fertilisation procedure" at a time when she was in a de facto relationship with AA; further, although later registered as the father, BB ought not be regarded as the presumed father. She conceded that by virtue of section 11 of the Status of Children Act he is presumed to be AB's parent. She also conceded the statutory declaration lodged with the Registrar by BB in 2002 was an "instrument acknowledging that he is [AB's] father" and that by section 13 he is also thereby presumed to be AB's father. But she argued that section 11 and section 13 presumptions are rebuttable. As AC had become pregnant by means of a "fertilisation procedure" using his sperm, and he was not her husband, section 14 (2) makes it plain that he is presumed not to be AB's father. There are thus competing presumptions. Since, by reason of section 14 (4), any presumption under subsection 2 is irrebuttable, the presumption in section 14(2) that he is not the father, must prevail over the presumptions in sections 11 and 13 that he is: section 17(2).

27 Ms Graycar argued that once AA is presumed to be the parent, she has rights under the BDMA .

28 By section 6 of the BDMA the Registrar is to establish and maintain the Register. Section 13 requires a birth in the State to be registered under the Act. Section 14 describes how notice of the birth is to be given - by the provision of a birth registration statement. Section 15 places responsibility for registering the birth, among others, on the parents. The birth becomes registered when the Registrar makes an entry about the birth in the Register (s 17).

29 Sections 18 and 19 provide:

18 Registration of parentage details

The Registrar must not include registrable information about the identity of a child's parent in the Register unless:

(a) both parents of the child make a joint application for the inclusion of the information, or

(b) one parent of the child makes an application for the inclusion of the information and the other parent cannot join in the application because he or she is dead or cannot be found, or for some other reason, or

(c) one parent of the child makes an application for the inclusion of the information and the Registrar is satisfied that the other parent does not dispute the correctness of that information, or

(d) a court orders the inclusion of the information in the Register, or

(e) a court makes a finding that a particular person is a parent of the child, or

(f) the Registrar is entitled under any law (including a law of another State or the Commonwealth) to make a presumption as to the identity of the child's parent, or

(g) the regulations authorise the Registrar to include the information.

Division 3 Court Powers

19 Orders for registration of birth or inclusion of registrable information

(1) The District Court may, on application by an interested person or on its own initiative, order:

(a) the registration of a birth, or

(b) the inclusion of registrable information about a birth or a child's parents (including details of the marriage of a child's parents) in the Register.

(1A) Such an order may only be made in respect of a birth:

(a) in the case of an order under subsection (1) (a), if the birth occurred in the State, in an aircraft during a flight to an airport in the State or on a ship during a voyage to a port in the State, and

(b) in the case of an order under subsection (1) (b), if the birth has been registered under this Act.

(2) 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.

30 Clause 17 of Part Four of Schedule 3 to the BDMA provides relevantly:

17 Application to alter register as consequence of amendment of Status of Children Act 1996

...

(2) An application may be made to the Registrar for the addition of registrable information, about the identity of a woman who is presumed to be a parent of the child under the relevant provisions, in the birth registration of a child born before the commencement of those provisions.

(3) The Registrar is to determine the application by making the addition or refusing to make the addition.

(4) The Registrar must not add registrable information in the child's birth registration about the identity of the woman as a parent of the child unless:

(a) the application is made jointly by that woman and the birth mother, and

(b) if the child's birth registration already includes registrable information that purports to identify a person as the father of the child:

(i) that person has given his consent to the removal of the particulars from the birth registration that identify him as the father of the child (or a court or the regulations authorise their removal because the person is not the father by operation of law or otherwise), and

(ii) the Registrar removes those particulars from the birth registration, and

(c) if the Registrar requires verification of the information contained in the application-the application is accompanied by a statutory declaration verifying the information contained in the application and any other evidence that the Registrar may require.

(5) An application made under this clause must be in a form approved by the Registrar.

(6) This clause has effect despite sections 18 and 20 of this Act and clause 7 (2) of Schedule 2 to the Status of Children Act 1996.

31 Ms Graycar submitted that because AA is irrebuttably presumed to be a parent of AB on the undisputed facts, I must make the orders sought. BB, she argued, has no right to have his particulars on the Register. AA has a right to have hers there. It follows from Clause 17 (4) (i) that only two people can appear in the Register as parents. So BB's particulars must, in essence, give way to those of AA: PJ v DOCS [1999] NSWSC 340 at [12] (per Windeyer J); Re A and B [2000] NSWSC 640 at [39] to [40] (per Bryson J). She conceded that there is no express provision in the BDMA giving power to remove BB's details as father, but submitted that that power was implicit from Clause 17 (4) (b) (i) which refers to a court's authorising removal of registrable information purporting to identify a person as father where the person is not the father by operation of law or otherwise.

BB's Arguments

32 BB represented himself on the hearing. He read two affidavits. They had a great deal of material in and annexed to them which was not relevant to this hearing. But Ms Graycar took no objection to them, given that he was representing himself. That, I consider, was a sensible approach.

33 BB's major affidavit annexed a large number of documents concerning inter alia his dealings over the years with AA and AC concerning the child, and the very considerable financial contributions he had made to her upkeep and that of AC. He drew my attention to a number of cases decided in other jurisdictions concerning legal issues he submitted had arisen from similar factual backgrounds. In his affidavits and before me orally, BB expressed considerable concern for the welfare of AB and the effect which these proceedings and their outcome (if unfavourable to him) might have on her. He emphasised especially that a child should know her origin; in particular, he emphasised that she should know who her father is. Although he had no written agreement with AA and AC as to parenting and registration of birth details, he submitted in effect that I ought not make orders which would be contrary to the spirit of arrangements the three of them had originally made. He emphasised that he had performed his side of arrangements in every respect, and had never missed seeing AB even for one day over the years of her life when he was permitted to see her. He pointed out that he had not recently had access to her and had no idea of her current whereabouts: the consent orders of the Family Court have, he said, not been complied with, and he has not had the resources to take enforcement proceedings for contempt. He said he had had other opportunities to father a child but had chosen to have one with AA and her former partner and he is now too old to have another child. In emphasising I should only exercise the jurisdiction I have if it is in the best interests of the child, he also referred me to the United Nations Convention on the Rights of the Child, especially article 7, which contains the right to know the identity of one's parents.

Consideration

34 I have considerable sympathy for BB. He has done what he considers has been his very best for the child. He has made financial commitments to AC and AB. He and AB obviously have a strong emotional attachment. He is now 58 years old. There is, I think, justification for his view that it is too late for him to start again. I do not find it surprising that he sees it as unjust, that almost ten years after his name was placed on the Register as the father, his name may be removed and replaced with the name of AC's former partner. Nor is it surprising that he feels aggrieved through not being permitted to see AB for months, that he does not know her whereabouts, and that the Family Court's orders have not been complied with. (These matters were not the subject of evidence from AA or AC so I have had only BB's untested evidence on this issue.)

35 According to Wikipedia, the documentation of births has a lengthy heritage, whose original purpose was to help raise taxes and determine available military manpower. In volume 20.10, titled Births and Deaths, of The Laws of Australia (Law Book Co) the authors note that registration records were originally kept in England to enable revenue collectors to collect duties on births. Pursuant to the Exemption of Apothecaries Act 1694 6 & 7 William & Mary c 6 (UK), duties were levied over a period of five years from the birth of a child on a graduated scale according to the status of the parents. Originally the clergy kept the records. In 1695 it became the obligation of the parents of a child born in England to notify the local clergy within 5 days of a birth. "Much later, the purpose of such registrations altered to fulfil the needs of real property and succession and in establishing title. The movement for social reform in England in the mid-nineteenth century required statistics to be kept and an actual registry was seen as a means to fulfil this task. Today, the Register of births, and the particulars contained in it, are important for evidential and statistical purposes." ( The Laws of Australia , volume 20.10 at [8]).

36 Despite BB's submissions I consider that I must accept Ms Graycar's submission that AA's name should be placed on the Register as a parent of AB and that BB's name and his other particulars which are on the Register should be removed from it. That is because, under the provisions of the Status of Children Act to which I earlier referred, the rebuttable presumptions in BB's favour that he is a parent, are displaced by the irrebuttable presumption that because AB was conceived through a fertilisation procedure, he is presumed not to be her parent, whereas AA is presumed to be one of her parents. The plain words of the BDMA show that only two people may be shown on the Register as a child's parents. No doubt a provision for registration of a third parent for a situation such as this one might be a neat answer to the problem this case presents. But there might be unexpected consequences, and it is not appropriate that I speculate about them: the issue was not explored before me. Nor could it have been, given the current requirement that only two people may be registered as parents. On this issue, BB referred me to and relied on a Canadian decision, A.A. v. B.B. (2007) 83 OR (3d) 561, which concerned an application for a declaration of parentage based on the parens patriae jurisdiction of a superior court. There the sperm donor father succeeded in obtaining a declaration that the child had three parents: the birth mother and her female partner and the donor. But the jurisdiction I am exercising is not the parens patriae jurisdiction.

37 Although it may seem to BB to be wrong that the BDMA makes no reference to a child's interests on an application such as this, that no doubt is because the Family Law Act provides comprehensive provisions for children, whereas the BDMA is merely legislation to provide for the proper recording of population details for statistical and related purposes. There is a clear public interest in having a register of accurate information about births.

38 I am not persuaded there is any contractual right which can affect this application. As BB concedes, there was no agreement before AB's birth that he would be on the Register when he agreed to donate his sperm.

39 As to the argument concerning the UNCRC, I am not persuaded that making the orders sought would deprive AB of her rights under article 7. She has, as BB told me, been brought up to know exactly who her parents are, including him. His not having his name on the Register will not hinder her right to know the identity of her parents.

40 I make the following factual findings:

(a) At the time AB was born, AA was in a de facto relationship with AC

(b) AC conceived AB by a process of a fertilisation procedure;

(c) BB was the donor of sperm used by AC and AA to arrange for AC to become pregnant with AB.

41 By reason of those findings and my reasoning in [36], it follows that the plaintiff is entitled to the orders sought. I make orders 1 and 2 in the amended summons. There will be no order as to costs.

**********

Decision last updated: 19 August 2011