The judgment states that
This is application by the biological mother of two children (whom I shall call A) and her same sex partner (whom I shall call B), for a declaration under s 10 of the Status of Children Act 1978 (Qld) (SoCA) that B is a legal parent of the two children born to the biological mother A during their relationship using sperm from a known donor (whom I shall call C). Consequential relief under the Births, Deaths and Marriages Registration Act 2003 (Qld) (BDMRA) to correct the relevant birth certificates is also sought. The children are currently aged 9 and 7.
The joint application by A and B was filed on 25 March 2014 and served on the respondent biological father, C, on 28 March 2014. The respondent appeared at the hearing of the application on 9 May 2014 and made submissions on his own behalf.
The application follows legislative changes to state legislation in 2010, to retrospectively recognise that the two women - and the children they planned - have the same rights as if they had been born to a heterosexual couple using donated gametes.
It is not disputed that C provided the sperm by which both children were conceived through an artificial insemination procedure which took place at the applicants’ home. C is named on the birth certificate. Both applicants planned the children and, indeed B, the second applicant, performed the artificial insemination procedure on her partner A.
The issues in this application are: (i) whether the facts are sufficient to satisfy the presumption as to status in s 19C of the SoCA with the result that the second applicant is the legal parent of the children, and C is not, and if so; (ii) whether B is entitled to a declaration of parentage, and if so; (iii) whether A and B then entitled to the consequential relief they seek which is for the Registrar to recognise the correct, legal parental status on the children’s’ birth certificates.The Court has made the following orders -
1. A declaration under section 10 of the Status of Children Act 1978 (Qld) that the Second Applicant is a parent of the following children pursuant to s 19C of the Status of Children Act 1978 (Qld): (a) D born on [X] December 2004 to the First Applicant; (b) E born on [X] October 2006 to the First Applicant.
2. An order that the registrar under the Births, Deaths and Marriages Registration Act 2003 (Qld) correct the information in the register of births with respect to each of the Children so as to: (a) remove the particulars that identify C as the father of each of the Children; (b) (subject to the Applicants complying with ss 63(4)(a) and (c) Births, Deaths and Marriages Registration Act 2003 (Qld) to the satisfaction of the registrar under that that Act), to record the second applicant, as a parent of each of the Children; (c) (for the avoidance of doubt), to retain the record of the first applicant as mother of each of the Children, and in the case of the birth entry of E, to also retain the entry of D under the particular 'previous children of relationship' but for that relationship to be taken as the relationship between the Applicants.The orders reflect the conclusion -
I have been unable to find any Queensland decisions in relation to applications of this nature. I have however been referred to a number of decisions of the New South Wales District Court which has jurisdiction under the equivalent NSW legislation. I am grateful for the exploration of the issues and the history in relation to Registers set out in those decisions.
In this regard I note the decision of Walmseley J in the 2011 NSW District Court decision of AA v Registrar of Births Deaths and Marriages and BB3. In that decision it was argued, in relation to similar legislation, that because of the irrebuttable presumption the Court was required to make the order sought and that the father in that case had no right to have his particulars on the register. The father argued that a decision could only be made in the best interests of the child and that the UN Convention on the Rights of the Child contained at Art 7 a right to know the identity of one’s parents. It was held:
“[36] Despite BB’s submissions I consider that I must accept Ms Graycar’s submissions 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 fertilisation procedure, he is presume not to be her parent, whereas AA is presumed to be one of her parents. The plain words of 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 t 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, 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.”
There can be no doubt that it is important to have correct records. In the 1926 decision of Re M (1924) 26 WALR 115, McMillan CJ referred to “a duty on the part of the Registrar to keep for the public benefit a complete and accurate register”. A Register of Births, Deaths and Marriages is, as has been discussed in the NSW decisions, a register of statistical and evidential information mainly for the purposes of succession law. It is not a register of genetic material.
I am satisfied that the appropriate order is for the Court to order the registrar to remove the father’s particulars from the register. The register will now accurately reflect the correct parents for the children and the true nature of the relationship between A and B.
