LU v Registrar of Births Deaths and Marriages (No 2) [2013] NSWDC 123

LU v Registrar of Births Deaths and Marriages (No 2) [2013] NSWDC 123

Because the child was conceived by a fertilisation procedure using sperm from a man who was not the mother's husband or de facto partner, s 14(2) and s 14(4) of the Status of Children Act 1996 irrebuttably presumed that man not to be the father. The competing presumptions arising from registration and acknowledgment were rebuttable and yielded to that irrebuttable presumption, and the Court's earlier finding of biological fatherhood did not amount to a finding of legal parentage under s 12. The father was therefore not the father by operation of law, so the Court could authorise the Registrar to remove his particulars, and could order inclusion of the female parent's registrable...

Jurisdiction
Australia
Judgment Date
31 July 2013
Procedural Posture
Civil Application for Alteration of a Child's Birth Registration / Principal Judgment After Uncontested Hearing
Outcome
Application granted in part by authorising removal of the father's particulars and conditionally ordering inclusion of the female parent's registrable information; no order as to costs.
Legal Topics
['de Facto Relationships' 'same Sex Couples' 'registration as Parent' 'birth Certificate' 'fertilisation Procedure' 'parentage Presumptions' "removal of Biological Father's Particulars" 'costs']
['family Law' 'births, Deaths and Marriages Registration' 'parentage'] ['de Facto Relationships' 'same Sex Couples' 'registration as Parent' 'birth Certificate' 'fertilisation Procedure' 'parentage Presumptions' "removal of Biological Father's Particulars" 'costs']

Case Brief

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Procedural Posture

Civil Application for Alteration of a Child's Birth Registration / Principal Judgment After Uncontested Hearing

Legal Issues

  1. 1 ["Whether the District Court could order or authorise removal of the father's particulars from the child's birth registration under cl 17(4)(b)(i) of Sch 3 of the Births, Deaths and Marriages Registration Act 1995." 'Whether the father was not the father by operation of law or otherwise, given the irrebuttable presumption in s 14(2) and s 14(4) of the Status of Children Act 1996 and the rebuttable presumptions arising from registration and acknowledgment.' 'Whether a previous finding that the father was the biological father enlivened the irrebuttable presumption in s 12 of the Status of Children Act 1996.' "Whether registrable information about the female parent should be included on the child's birth registration under s 19(1)(b) and cl 17 of Sch 3 of the Births, Deaths and Marriages Registration Act 1995." 'Whether costs should be ordered against a submitting party.']

Ratio Decidendi

Because the child was conceived by a fertilisation procedure using sperm from a man who was not the mother's husband or de facto partner, s 14(2) and s 14(4) of the Status of Children Act 1996 irrebuttably presumed that man not to be the father. The competing presumptions arising from registration and acknowledgment were rebuttable and yielded to that irrebuttable presumption, and the Court's earlier finding of biological fatherhood did not amount to a finding of legal parentage under s 12. The father was therefore not the father by operation of law, so the Court could authorise the Registrar to remove his particulars, and could order inclusion of the female parent's registrable...

Court Disposition

Application granted in part by authorising removal of the father's particulars and conditionally ordering inclusion of the female parent's registrable information; no order as to costs.

Orders

  • ["The Registrar is authorised to remove from the child's birth registration any particular that identifies the father as the father of the child, pursuant to cl 17(4)(b)(i) of Sch 3 of the Births, Deaths and Marriages Registration Act 1995." "Upon the removal of the particulars identified in order 1, on an...