Eric Leonard Blackburn v Trudy Ann Campbell [1993] ACTSC 27 (1 April 1993)

SUPREME COURT OF THE ACT

ERIC LEONARD BLACKBURN v. TRUDY ANN CAMPBELL
No. SC751 of 1992
Number of pages - 6
Application for annullment of acknowledgement of paternity

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles CJ(1)

CATCHWORDS

Application for annullment of acknowledgement of paternity - statutory presumption of paternity - displacement of presumption.

Birth (Equality of Status) Act 1988, sub-s.10(4)

Registration of Births, Deaths and Marriages Act 1963, sub-s.55(1)

HEARING

CANBERRA, 1 April 1993
1:4:1993

ORDER

The Court orders that:
1. The acknowledgement of paternity made by the applicant on 1 May

1991 be annulled.

DECISION

MILES CJ By originating summons dated 28 January 1993, the applicant sought an order pursuant to sub-s.10(4) of the Birth (Equality of Status) Act 1988 (the Act) annulling an acknowledgement of paternity made by him on 1 May 1991. I made the order yesterday and I said that I would give reasons today as the matter seemed to me to raise issues of some importance and because there did not seem to be any precedent.

2. Sub-section 10(1) of the Act provides as follows:

"A man may acknowledge that he is the father of an ex-nuptial child by
executing an approved form in the presence of specified persons,
including a Commissioner for Declarations within the meaning of the
Statutory Declarations Act 1959 of the Commonwealth."

3. Sub-section 10(2) provides, in summary, that if the instrument is signed by the mother of the child, and so long as there is no annulment, then the man shall, for all purposes be deemed to be the father of the child.

4. It is also relevant to refer to para. 7(4)(a) of the Act which provides in part as follows:

"If -
(a) a child is borne by a woman who is, at the time of the child's
birth, cohabiting with a man with whom she has cohabited throughout a
period of 6 months before the child's birth;
.....
the man shall, for all purposes, be presumed to be the father of the
child."

5. Lastly, at this stage, I refer to the Registration of Births, Deaths and Marriages Act 1963, sub-s.55(1), which provides that the Register of Births and the Register of Parentage Information, both established under that Act, are evidence of the facts recorded in such registers.

6. A certificate, being a true copy of an entry in the Register of Births, shows that the child in question was born in Canberra in a named hospital on 6 April 1991, that the father of the child is the applicant named in the originating summons, and the mother of the child is the respondent. The certificate also suggests that the mother was unmarried at the date of the child's birth and that the child therefore is an ex-nuptial child.

7. There is also in evidence a further certificate being a true copy of an entry in the Register of Parentage Information, which is a copy of both the acknowledgement of parentage made by the applicant and the respondent on 1 May 1991 and a request that the Registrar include in the Register the names of and other particulars relating to both parents of the child.

8. Initially, the applicant relied solely on his own affidavit, but that was supplemented by some short evidence on his part. He was aged 21 years at the time of the child's birth. In September 1990 he commenced what he called a de facto relationship with the child's mother. She told him that she was pregnant at that time. The couple lived together in that relationship until the birth of the child and for about eleven months afterwards. Sexual intercourse occurred during that period, the first occasion being at the beginning of the period.

9. The applicant said in his affidavit that, at the time of making the acknowledgement of paternity, he knew that he was not the child's father but was deeply in love with the mother and expected that the relationship would be "both permanent and long-lasting". He said that he has since come to realise that his action in signing the acknowledgement of paternity was "wrong and stupid".

10. He said that he had notified the mother of his intention to apply for an annulment and, whilst she did not propose to attend the hearing, she did not oppose the making of the order. In his affidavit, the applicant also said that he had not been asked to pay maintenance for the child. However, as he said in his evidence, the Child Support Agency of the Australian Taxation Office wrote to him on 11 November 1992 informing him that the mother had named him as the father in her application for child support assessment and that the Agency therefore "will also be collecting the payments from you". The mother then wrote to the Agency a letter drafted by the applicant withdrawing her application for child support "until a ruling on the matter of paternity has been made by the courts".

11. On this evidentiary material I concluded that the child was an ex-nuptial child. The presumption both under para.7(4)(a) and sub-s.10(2) of the Act was raised that the applicant was, for all purposes, the father of the child. The only evidence to the contrary was the hearsay statement of the mother that she was already pregnant at the time of the commencement of their relationship, together with the biological unlikelihood that the applicant was the father, bearing in mind that the first act of sexual intercourse occurred between six and seven months before the birth.

12. Taking the provisional view that the evidence was unsatisfactory, I adjourned the hearing in order to enable the mother to be subpoenaed to give oral evidence, or at least to furnish an affidavit. At the adjourned hearing the mother attended and gave evidence that before her first act of sexual intercourse with the applicant, she was already pregnant to another man. Whilst she was aware of the identity of the other man, she was not asked to name him. Whether she wished to continue with her application for child support, which might require her to name the true father, was not a matter that needed to be pursued in the present application.

13. In the light of the mother's evidence, which I accepted, the presumption that the applicant is the father of the child was displaced and I found that the applicant is not the father of the child. However, there was still a discretion in relation to the making of the order of annulment. There may be circumstances where, for instance, a man who has falsely and knowingly held himself out for many years to be the father of a child is shown not to be the father and where an annulment is neither in the public interest nor the interest of the child. However, that sort of situation did not exist in the present case.

14. The consequences of an annulment need to be considered. Once an order for annulment is made, the Registrar of this Court is obliged by s.21 of the Act to forward a sealed copy to the Registrar of Births, Deaths and Marriages. The Registrar of Births, deaths and Marriages is obliged to register the order in the Register of Parentage Information and to make such alterations to the page of the register containing the entry of the child's birth as are consistent with the order: see sub-s.46(a)(1) and sub-s.46(c)(2) of the Registration of Births, Deaths and Marriages Act 1963. In cases such as the present, the initial result following the making of the order of annulment will be that particulars in the Register of Births relating to the father of the child will be struck out and left blank. In this situation, it seemed to me that I should consider the effect of the annulment on the surname of the child, which at the present time is shown in the Register of Births as that of the applicant.

15. I enquired of the mother when she gave evidence as to what she expected or proposed in relation to the surname of the child. The mother seemed to be under the impression that the surname of the child would be changed to correspond with her own surname. In this respect I have since concluded that she was correct. Paragraph 18(1)(b) of the Registration of Births, Deaths and Marriages Act provides that where the name of only one parent is, or is to be, registered as the name of a parent of the child, the name to be entered in the Register of Births as the surname of the child is the maiden name or other surname of that parent.

16. Hence, once the name of the applicant is removed from the Register of Births as that of the father, there remains the name of only the mother shown on the Register of Births and the child's surname is to be that of the mother as shown. The Registrar of Births, Deaths and Marriages will be required under sub-s.46C(2), or at least empowered under sub-s.52(1) of the Registration of Births, Deaths and Marriages Act, to correct the Register of Births accordingly so that the surname of the child corresponds with that of the mother.

17. An application for an order annulling an acknowledgement of paternity made under the Act is a serious matter. It seeks to relieve a man of the responsibilities which the law casts upon a father and it stands to deprive the child accordingly. The order is to be made only after admissible and convincing evidence. Ordinarily, I would think that the presumption that the man is the father would not be removed by the evidence of the man alone. However, in the present case it was supported by the evidence of the mother and overall the evidence was sufficient for the making of the order. In the circumstances, once satisfied as to the facts, I saw no reason why the order should not be made.

18. The seriousness of the matter has another aspect. The acknowledgement of paternity was made in a document which, on the face of it, purports to be made pursuant to the Statutory Declarations Act 1959. Accordingly, I directed the Registrar of this Court to refer the papers to the Commonwealth Director of Public Prosecutions for such action as is considered appropriate. I made no recommendation as to what action should be taken. That is entirely a matter for the Director.