The Adoption of Emily (a pseudonym) [2024] NSWSC 87 (12 February 2024)

Last Updated: 12 February 2024

Supreme Court New South Wales

Case Name:	The Adoption of Emily (a pseudonym)
Medium Neutral Citation:	[2024] NSWSC 87
Hearing Date(s):	On the papers
Date of Orders:	9 February 2024
Decision Date:	12 February 2024
Jurisdiction:	Equity - Adoptions List
Before:	Stevenson J
Decision:	Order pursuant to the Court’s inherent jurisdiction the person recorded on the child’s birth certificate as the child’s father is not the child’s father; order the Registrar of Births, Deaths and Marriages correct the Register
Catchwords:	CHILD WELFARE – parentage – declaration of non-parentage
Legislation Cited:	Adoption Act 2000 (NSW) 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 Estate of Aspasia Kandros [2019] NSWSC 757 G v H (1994) 181 CLR 387; [1994] HCA 48 GWM v DOCS [2000] NSWSC 1245 Johnson v Johnson [2022] NSWSC 44 The Estate of Alan Bruce Beeby [2020] NSWSC 1512
Category:	Procedural rulings
Parties:	Secretary, New South Wales Department of Communities and Justice (Plaintiff)
Representation:	Solicitors: Crown Solicitor’s Office (Plaintiff)
File Number(s):	2023/454762
Publication Restriction:	This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

1. These proceedings relate to the proposed adoption of a child who I will call “Emily” (not her real name) by a couple to whom I will refer as the “Proposed Adoptive Parents”.
2. By Notice of Motion filed 14 December 2023, the Secretary of the New South Department of Communities and Justice seeks orders that:

(1) Pursuant to the Court’s inherent jurisdiction, the Court declare that the person, who I will call “Bill” (not his real name), recorded on Emily’s birth certificate as her father, is not her father; and

(2) Pursuant to s 45(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW), the Registrar of Births, Deaths and Marriages correct the Register maintained pursuant to s 43 of the Births, Deaths and Marriages Registration Act by deleting Bill’s name from the Register.

3. I was grateful to receive comprehensive submissions from the Crown Solicitor in support of the motion. Much of what follows is drawn from those submissions.

Factual Background

4. On 20 May 2021, the Children’s Court of New South Wales made final orders providing for Emily to be placed under the parental responsibility of the Minister for Families, Communities and Disability Services (now the Minister for Families and Communities) until she attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW). These orders remain in effect.
5. Emily’s mother is recorded on her birth certificate.
6. Emily’s birth certificate records her father to be Bill. However, the evidence establishes that it is very unlikely that Bill is Emily’s father.
7. Officers of the Department sought, unsuccessfully, to have Bill engage in DNA testing.
8. However, Bill’s mother, who I will call “Louise” (not her real name) agreed to do so.
9. A report provided by Ms Emma Solly from the Genetics Department of DNALabs on 21 June 2021 records that the Grandparent - Grandchild Relationship Index between Louise and Emily is 0.02. Accordingly, Ms Solly concluded that it is “unlikely” that Louise and Emily share a Grandparent - Grandchild relationship, where “unlikely” is the lowest grade and encompasses relationship indices that are less than 1.
10. On 9 September 2022, Ms Solly, responding to a letter from the Secretary in relation to interpreting the DNA results, provided a letter noting that the results are “a statistically calculated likelihood” and that the result is an “informative answer”. Ms Solly stated, “it is important to consider that an index of 0.02 is very low and therefore very unlikely for that relationship [between Louise and Emily] to exist but cannot be 100% ruled out.”
11. I find that it is unlikely, almost to the point of certainty, that Bill is Emily’s father.
12. On 1 February 2024, Emily’s mother informed the Secretary that she agreed with the removal of Bill’s name from Emily’s birth certificate, as she believes he is not Emily’s father.
13. On 5 February 2024, the Secretary served the Notice of Motion, together with Ms Solly’s report, on Bill. A representative of the Secretary spoke to Bill by telephone, during which Bill said that he:

(1) had received the Notice of Motion and related documents;

(2) is not the father of Emily; and

(3) agreed to have his name removed from her birth certificate.

14. Accordingly, the Secretary seeks a declaration that, pursuant to the Court’s inherent jurisdiction, Bill is not Emily’s father.

Court’s inherent jurisdiction

15. Section 21(1) of the Status of Children Act 1996 (NSW) authorises the Secretary to bring an application for the Court to make a declaration that a named or identified person is a child’s parent. The Court may also annul a declaration of parentage on application.^[1]
16. However, the Status of Children Act does not provide the power to declare that a relationship of parentage does not exist. That power arises from the Court’s inherent jurisdiction.^[2]
17. The Court has previously given declaratory relief where the Status of Children Act does not provide a statutory mechanism for the relief sought.^[3]
18. My attention was directed to the decision of Ward CJ in Eq (as her Honour then was) in Crawford v Davidson-Crawford.^[4]
19. In that case, the plaintiff was named on the first defendant’s birth certificate as his father. However, a paternity DNA test showed that the plaintiff was not the first defendant’s biological father. The plaintiff brought proceedings against the first defendant and the Registrar of Births, Deaths and Marriages (named as the second defendant), seeking declaratory relief and an order pursuant to s 45(2) of the Births, Deaths and Marriages Registration Act for correction of the Register of Births, Deaths and Marriages.
20. Citing the decision of the High Court in Ainsworth v Criminal Justice Commission,^[5] her Honour set out the requirements a party must satisfy to obtain such declaratory relief, namely that:

(1) there be a controversy between the parties for determination and not merely an abstract or hypothetical question;

(2) the person seeking relief must have a “real interest” in the question; and

(3) relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court's declaration will produce no foreseeable consequences for the parties”.^[6]

21. Again, citing Ainsworth v Criminal Justice Commission,^[7] her Honour stated that:

“[W]here a person's rights or liabilities will or might be affected by the exercise or non-exercise of a statutory power following upon an inquiry, that person is prima facie entitled to be accorded natural justice in the conduct of the inquiry.”^[8]

22. Her Honour stated:

“[T]he controversy between the parties is clearly whether the plaintiff is the biological father of the first defendant and whether he is entitled to have the Register maintained pursuant to s 43 of the Registration Act corrected. The Court is not being asked to give an advisory opinion nor to answer a question which is purely hypothetical; rather, the resolution of the proceedings will affect the contents of a statutory register. Second, the proceedings concern the ‘real interest’ of the parties to know, and have determined, their legal relationship. ... I accept that, insofar as a child (as does society more generally) has a vested interest to determine paternity it must follow that the father also has a ‘vested interest’ to know and have determined the identity of his offspring.

Third, there can be no issue as to standing as the proceedings concern the correction of the public record (as constituted by the Register) insofar as it concerns the plaintiff.”^[9]

23. Accordingly, her Honour made the orders sought in the plaintiff’s summons, finding that the relevant prerequisites for making a declaration were satisfied and that, on the balance of probabilities, the plaintiff was not the first defendant’s father.
24. The requirements stipulated by her Honour in Crawford v Davidson-Crawford have since been cited with approval.^[10]

Application to present matter

25. Here, there is a real issue for determination as to whether Bill is Emily’s father, the resolution of which will affect the contents of a statutory and public register.
26. I also accept that there is a “real interest” in determining Emily’s paternity.
27. Emily has an obvious real interest in her paternity. In Crawford v Davidson-Crawford, her Honour accepted that a child, a child's father, and society more generally, have a vested interest in a child’s paternity.^[11] Her Honour considered that this interest extended to a lack of a biological relationship as much as to the existence of one.
28. Her Honour referred to the observations of the High Court in G v H:^[12]

“The attribution of paternity may be seen by a child’s mother to be no more than the means of procuring a maintenance order during the child's infancy, but a finding that a particular man is the child’s father might well be of the greatest significance to the child in establishing his or her lifetime identity.”

29. If Emily has a real interest in her paternity, it follows that the Secretary, as the party seeking relief, also has a real interest in her paternity.
30. Emily is under the parental responsibility of the Minister until she attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act. The overriding principle of, and obligation of the Secretary under that Act is that the safety, welfare and wellbeing of the child must be paramount in all decisions concerning a child.^[13] The Secretary is similarly obligated in this adoption proceeding, where the paramount consideration in adoption law and practice is the best interest of the child concerned.^[14] If it is in Emily’s best interests that this issue be determined, then it follows that it is in the Secretary’s interests for the issue to be determined.
31. Further, the Secretary has a real interest in Emily’s paternity because determination of the issue will affect the contents of the Secretary’s obligations under the Adoption Act 2000 (NSW) in these proceedings. Pursuant to s 11 of the Status of Children Act, 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. The Secretary is obligated in adoption proceedings to do various things in relation to a child's birth father, including, for example, to notify him if an order is sought to dispense with his consent.^[15] The Secretary does not owe Bill these obligations under the Adoption Act if he is declared not to be the father.
32. Emily’s paternity would also have a bearing on the application of other sections of the Adoption Act, for example, the need for the decision maker to have regard to the views of the child’s father.^[16]
33. Further, the making of such a declaration will produce foreseeable consequences for the parties including an amendment to the statutory register. It is also foreseeable that it will have ramifications for Emily’s identity and understanding of her life story.
34. Accordingly, the relevant prerequisites for making a declaration are satisfied.

Conclusion

35. I was satisfied that there are good reasons to make the orders sought by the Secretary. I made those orders on 9 February 2024.

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^[1] Status of Children Act, s 22(1).
^[2] See Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 (Mason CJ, Dawson, Toohey and Gaudron JJ).
^[3] See, for example, GWM v DOCS [2000] NSWSC 1245 at [1].
^[4] [2019] NSWSC 728.
^[5] Supra at 581-582.
^[6] Crawford v Davidson-Crawford (supra) at [32].
^[7] Supra at 583.
^[8] Crawford v Davidson-Crawford (supra) at [32].
^[9] Ibid at [33].
^[10] See, for example, Estate of Aspasia Kandros [2019] NSWSC 757 at [34] (Hallen J); The Estate of Alan Bruce Beeby [2020] NSWSC 1512 at [58] (Hallen J); and Johnson v Johnson [2022] NSWSC 44 at [41] (Ward CJ in Eq, as her Honour then was).
^[11] Supra at [33].
^[12] [1994] HCA 48; (1994) 181 CLR 387 at 391; [1994] HCA 48.
^[13] Children and Young Persons (Care and Protection) Act, s 9.
^[14] Adoption Act 2000 (NSW), s 7(a).
^[15] Adoption Act, s 71(1).
^[16] Adoption Act, s 8(2).