GWM v DOCS [2000] NSWSC 1245

Reported Decision : [2000] 27 Fam LR 411

New South Wales Supreme Court

CITATION : GWM v DOCS [2000] NSWSC 1245 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3013/99 HEARING DATE(S) : 16 December 1999, 15 March and 11 December 2000 JUDGMENT DATE : 11 December 2000

PARTIES : GWM (P) Director-General Department of Community Services (D) JUDGMENT OF : Hamilton J

COUNSEL : Plaintiff in person D Smith, Solicitor (D) SOLICITORS : Plaintiff in person R Best, Director of Legal Services (D) CATCHWORDS : FAMILY LAW AND CHILD WELFARE [138] - Child welfare other than under Family Law Act 1975 - Adoption - Other matters - Application by birth father of adopted child for declaration that he is birth father - Application for alteration of surname of child on original birth certificate - Whether orders should be made where birth parents' common intention at time of birth was that child should bear birth father's surname. Adoption Information Act 1990 Part 2 LEGISLATION CITED : Births, Deaths and Marriages Registration Act 1995 ss 19(2), 22(3) Status of Children Act 1996 s 21 CASES CITED : GWM v DOCS [2000] NSWSC 217 DECISION : Declaration and order made as sought.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 11 DECEMBER 2000

3013/99 GWM v DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES

1 HIS HONOUR: In these proceedings GWM has claimed to be the birth father of a child, a proposition which was at one time controverted or certainly not admitted by the defendant. Indeed, that was the situation at the time of the commencement of these proceedings. That means that at the commencement of the proceedings there was a dispute, which it is appropriate that this Court resolve by declaratory relief, albeit the dispute has been resolved in the sense that the defendant now concedes that GWM is the birth father of that child. It seems to me that the appropriate relief is the making of a declaratory order in the exercise of the Court's general jurisdiction to make declaratory orders rather than in the exercise of statutory jurisdiction under the Status of Children Act 1996 s 21, the terms of which may not apply to the present facts. 2 The Director General, by his solicitor, has sensibly made the concession mentioned above in the face of overwhelming evidence which the plaintiff has caused to be brought forward, including, most importantly, the acknowledgment of the natural mother of the child that GWM is indeed the father of this child. Furthermore, it has been clearly demonstrated by evidence in the proceedings that the intention of both parents, who were still together at the time of the birth of the child, was that the child should have her birth recorded under GWM's surname, M. The evidence includes evidence that the mother was admitted to hospital under that name and that that name was displayed in the hospital as the surname of mother and child. 3 The child was subsequently adopted and now goes under the surname of her adoptive parents. What she has been told of these proceedings and her attitude towards them I shall recount in a moment, but it seems to me that it is demonstrated on the evidence that it is appropriate that the plaintiff have the declaratory relief he seeks and I have further come to the view that the child's name on the original birth certificate should be recorded as M, which was the intention of both birth parents at the time, subsequently changed unilaterally by the mother before the registration was effected. 4 I delivered an earlier judgment in these proceedings: GWM v DOCS [2000] NSWSC 217. At that time I was provisionally of the clear view that the declaration should be granted, although I was less certain on the subject matter of the surname. However, I was of the view that it would be quite inappropriate for an order to be made which could have effects upon the child and the adoptive parents without their being informed of and invited to participate in the proceedings. One of the effects which the declaration will have is that GWM, as the undoubted birth father, will have greater rights to access to information concerning the child (for instance under the Adoption Information Act 1990 Part 2) and opportunities to be in contact with her in due course, if she so desires, than he would have if his natural paternity of her were not formally declared. That is one of the reasons, and an important reason, why I am prepared to grant the declaratory relief that he seeks. 5 So far as the question of recording the birth father's name and the child's surname on the original birth certificate is concerned, it seems to me that, whilst this is more peripheral, it in fact corrects the original public record and brings it in accord with the real facts, namely, that at the time of the birth, both parents intended the child to be born under and to be registered by the surname M. Power to make such an order is conferred by the Births, Deaths and Marriages Registration Act 1995 s 19(2) or s 22(3). 6 The defendant has fully and meticulously carried out the requirements I made of the giving of notice. Not only have the adoptive parents and the child herself been fully informed of the nature of the proceedings, the likely and possible effects of the orders proposed to be made and their rights in relation to them, but they have had conveyed to them in a sealed envelope the originating process and affidavits in these proceedings filed before today. They contain a great deal of information as to what occurred at the time. They also include the surname and precise identities of the birth mother and birth father, at present unknown to them (they know the Christian names, but not the surnames, of the birth parents). They were offered the choice of opening the envelope and receiving this information or of sending the envelope back unopened if they did not wish to be privy to it. They have taken what seems to be a sensible middle course, that is, they have retained the sealed envelope, keeping it for the present time sealed, but so that it is in their possession and the child may have access to it, if and when she chooses to do so. 7 The child has been interviewed by Ms Ames of DOCS, who seems to have conducted a sympathetic and sensible interview with her in which the issues were discussed. Ms Ames' recent affidavit contained a statement which at first I found a little puzzling, namely, that the child informed Ms Ames "that she had no objections to her original surname being changed to that of her birth father". However, as Ms Ames explained in the witness box, the child was fully cognisant of what would be effected by the orders, namely, that the change of surname would occur only in the original birth certificate, not in the birth certificate upon adoption, where her surname is and will continue for the present to be recorded as that of her adoptive parents in accordance with the child's present usage in life. Her attitude was one of some little apprehension, I think, at coming face-to-face with the facts relating to her birth parents, but certainly very far from a disinterest in facing up to that issue and the matters it raises when she is a little older, as is amply witnessed by the retention of the sealed envelope. 8 In those circumstances and for the reasons given, I have decided that I should indeed make the orders both declaring the plaintiff to be the birth father of the child and directing the Registrar of Births Deaths and Marriages to correct the Register by adding to the original birth certificate the relevant details of GWM as her birth father and amending on the original birth certificate the child's birth surname. …oOo…