Avery v Registrar, Births Deaths and Marriages [2010] NSWCA 72 | Case summary

Background 1This application involves a complex history dealing with matters associated with the applicant's identity. She identifies herself as Stephanie Tatiana Patricia Avery. 2In order to avoid putting on the record numerous facts dealing with Ms Avery's identity I will adopt the device used in previous proceedings relating to Ms Avery of referring to her former names using synonyms. As a consequence, for the purpose of these reasons, I will refer to her name at birth as being Tatiana Isabella Yurovich and her name, when she married, as Tatiana Isabella Orlov. 3This is not the first time the Tribunal has heard proceeding involving the same parties with respect to Ms Avery's names. There is a long history of events relating to issues she has had with the Registrar of Births, Deaths and Marriages (the Registrar), which I will briefly outline. 4In 1997, the applicant applied to register a change of name from her married name to Stephanie Tatiana Patricia Avery. The Registrar registered that change of name. Ms Avery subsequently obtained her Australian Citizenship in that name. 5In 2007, Ms Avery applied to register a change of name from Stephanie Tatiana Patricia Avery to her birth name, Tatiana Isabella Yurovich. The Registrar approved this change of name and issued a change of name certificate recording the registration of that change of name. In that certificate the Registrar identified that Ms Avery had had four former names: the first was her name at birth; the second was Stephanie Tatiana Avery; the third was her married name; and the fourth - which was included in the endorsement field rather than the former names field -Stephanie Tatiana Patricia Avery. 6Since then Ms Avery's name has been recorded on the register as Tatiana Isabella Yurovich. 7Ms Avery was extremely upset at the form of the certificate and has consistently argued that it prevents her from being able to satisfactorily prove her chain of identity by (a) including a name she says she has never had, i.e. Stephanie Tatiana Avery; and (b) not recording which of her former names was the most recent. 8Ms Avery unsuccessfully applied to this Tribunal to review the decision of the Registrar to register her change of name in accordance with her 2007 application. She unsuccessfully appealed that decision to an Appeal Panel of this Tribunal in Avery v Registry of Births, Deaths and Marriages [2008] NSWADTAP 68. From there she appealed to the NSW Court of Appeal, but was again unsuccessful: see Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72. Ms Avery did not succeed in obtaining special leave to appeal the Court of Appeal's decision to the High Court: see Avery v Registrar, Births Deaths and Marriages [2010] HCASL 212. 9It is clear that despite her many unsuccessful appeals Ms Avery does not accept the decisions that have been made. In her affidavit in support of her present application she said - 6. I do not accept the allocated identity details proposed to the change of name entry [in 2007] and will not accept arbitrated for me identity history record made in the BDM in the change of name entry ... 7. I do not accept and will not accept the change of name certificate with the current presentation from NSW BDM Registry which does not identify me and does not provide evidence of a registrable event on that date. 10There has been a large and continuing volume of correspondent between Ms Avery, the Registrar and others in the course of which, in January 2013, Ms Avery requested that the Registrar cancel the 2007 registration of her change of name to her birth name, Tatiana Isabella Yurovich. Ms Avery says that since 2007 she has never used the name Tatiana Isabella Yurovich and that she has withdrawn her statutory declaration dated 24 December 2012. In that declaration she declared that she was changing her name to Tatiana Isabella Yurovich, and that the name Stephanie Tatiana Patricia Avery would not be used. 11Ms Avery has also applied for the issue of an official document registering her 1997 change of name from her married name, Tatiana Isabella Orlov to Stephanie Tatiana Patricia Avery. 12The Registrar agrees that those requests are deemed to have been refused. As a consequence Ms Avery sought review in this Tribunal. 13The matter came before me for hearing on 17 July 2013. The Registrar's position at hearing was to refuse to cancel the 2007 change of name entry in the Register, arguing that there is no power to do so. The Registrar was prepared to issue a certificate which certifies that Tatiana Isabella Orlov and Stephanie Tatiana Patricia Avery are registered as former names of Ms Avery. Indeed such a certificate was the subject of the proceedings considered by the Court of Appeal The Registrar argues that the Register contains no other details relating to the 1997 change of name and that any certificate issued certifying the contents of the Register, ipso facto, can contain no more the Register does.

Consideration 28In reliance on s 45(3) Ms Avery submits that the Registrar has a general power to correct an entry in the Register by cancelling it. This she says is what the Registrar should do with respect to her 2007 change of name form Stephanie Tatiana Patricia Avery to Tatiana Isabella Yurovich. The Registrar counters that he does not have the power to do so. 29I am satisfied that the Registrar does not have a general and unrestrained power to cancel an entry in the Register as and when he sees fit. To the contrary, the circumstances in which the Registrar may use the powers are set out in s 45. The Registrar's powers may only be used in the circumstances set out in s 45(1) and (2). There are:

To reflect a finding made by an inquiry under s 44 (s 45(1)(a) - there has been no such inquiry.
To bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event ( s 45(1)(b)) - this is discussed below.
When required to do so by a Court (s 45(2)). It appears the Registrar did so, on an interim basis, with respect to the 2007 certificate when the Tribunal made a conditional stay order under s 60 of the ADTA in Ms Avery's initial proceedings. That order has since lapsed and the original entry reinstated. 30When one considers the evidence with respect to Ms Avery's 2007 change of name from Stephanie Tatiana Patricia Avery to Tatiana Isabella Yurovich, it is apparent that her dissatisfaction with the form of certificate issued by the Registrar with respect to that event, (and the difficulties she says are attendant on it) have caused her resile for her stated intention to take up the name Tatiana Isabella Yurovich and not use the name Stephanie Tatiana Patricia Avery. That intention was verified by her on statutory declaration without any express conditions or qualifications. The Registrar accepted that unqualified declaration as evidence of Ms Avery's intention to change her name and registered the change accordingly. 31Ms Avery's subsequent attempts to renounce her statutory declaration and disavow her stated intention, do not change the fact of what occurred i.e. that she provided evidence of her intention to change her name and acting on that intention the Registrar recorded a change of her name to Tatiana Isabella Yurovich. The most reliable information available as to what occurred demonstrates that Ms Avery changed her name to Tatiana Isabella Yurovich. 32It is not a change that the Registrar has power to cancel. 33With respect to Ms Avery's request that the Registrar now issue her with a change of name certificate with respect to her 1997 change of name from Tatiana Isabella Orlov to Stephanie Tatiana Patricia Avery, it is important to understand that this is an historical change of name, that has been supplanted by her registered change of name from Stephanie Tatiana Patricia Avery to Tatiana Isabella Yurovich in 2007. 34I accept that the entry that now appears in the Register shows that Ms Avery's present registered name is Tatiana Isabella Yurovich and that her former names are -
Tatiana Isabella Yurovich, her birth name;
Tatiana Isabella Orlov;
Stephanie Tatiana Avery ; and
Stephanie Tatiana Patricia Avery. The Register does not contain, and clause 8 of the Regulation does not require it to contain, information as to what names were changed in 1997, before the most recent name change. Therefore, any search of the Register conducted by the Registrar since the 2007 change of name will not discover the information Ms Avery wants the Registrar to include in a certificate. 35I follows that the Registrar correctly refused to issue Ms Avery with a certificate relating to the1997 change of name in the form she seeks. 36It should also be noted that:
The Registrar has offered to provide Ms Avery with a letter outlining her change of name history.
Ms Avery is in possession of a change of name certificate dated 6 December 2007 with respect to her 2007 change of name to Stephanie Tatiana Patricia Avery. It shows her former names as Tatiana Isabella Yurovich and Tatiana Isabella Orlov. 37It follows from all of the above that I consider that the correct and preferable decisions in this case are to: (1) Affirm the Registrar's decision not to cancel the 2007 entry in the Register with respect to Ms Avery's change of name; and (2) Affirm the decision to refuse to issue a certificate relating to Ms Avery's 1997 change of name in the form she requests. Amendments : 13 August 2014 (1) Paragraph 10 should be amended to read: There has been a large and continuing volume of correspondence between Ms Avery, the Registrar and others in the course of which, in January 2013, Ms Avery requested that the Registrar cancel the 2007 registration of her change of name to her married name Tatiana Isabella Orlov. Ms Avery says that since 2007 she has never used the name Tatiana Isabella Orlov and that she has withdrawn her statutory declaration dated 10 December 2007. In that declaration she declared that she was changing her name to Tatiana Isabella Orlov, and that the name Stephanie Tatiana Patricia Avery would not be used. (2) Where the name Tatiana Isabella Yurovich appears in [31] of the Tribunal's decision, it should be replaced with the name Tatiana Isabella Orlov. (3) Where the name Stephanie Tatiana Patricia Avery appears at [36], it should be replaced with the name Tatiana Isabella Orlov. I hereby certify that this is a true and accurate record of the amendments to the reasons for decision of the Civil and Administrative Decisions Tribunal. Registrar

Avery v Registrar, Births Deaths and Marriages

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