Charlwood v New South Wales Registrar of Births, Deaths and Marriages

NCAT Administrative and Equal Opportunity|2019-04-08

reasons for decision

The applicants Mr Samuel Charlwood and Mrs Clare Charlwood applied to this tribunal on 16 November 2018 for review of a decision made by the respondent on 17 October 2018 declining their request to change their original surnames shown on their son's birth certificate from their names at birth to the family names recorded on their birth certificates, as a result of changes of name of both applicants registered before their son's birth (exhibit R1, p 18). That decision was affirmed following an internal review on 17 January 2019.
The applicants were married in 2015 and their son B*** J*** Charlwood was born on 4 August 2017 (as he is a minor, I will refer to him for privacy reasons only by his initials, BJ). His birth certificate, under the heading "Family Name at Birth", recorded the surnames Hall and Fairall for his father and mother respectively as their surnames at birth.
On 21 March 2018, the applicants wrote to the respondent about the birth certificate, saying that "it has come to our attention that there are two errors in the certificate, which we would now like to rectify", namely their family names at birth. "For sensitivity/personal reasons, we kindly ask that both names (Fairall and Hall) be amended to 'Wallder' and 'Charlwood' on [BJ]'s birth certificate please. We respect any need for previous family names to be potentially used, but both Fairall and Hall are the subject of a lot of personal grief and pain in the past. We would prefer not to have the memory of either name on our son's birth certificate if at all possible" (exhibit R1, p 27).
That request was declined 17 October 2018 (exhibit R1, p18) and the decision was affirmed by an internal review on 17 January 2019 (exhibit R1, pp 7-8), following a tribunal directions hearing.

The evidence

The applicants tendered a bundle of documents (exhibit A1) which included statements by Mr and Mrs Charlwood respectively. Mr Samuel Charlwood stated that he was born on 27 September 1987 and on 17 March 2015 he applied to change his surname from Hall to Charlwood. Their son, BJ, was born on 4 August 2017 and his birth registration statement was submitted to Service NSW on 14 August 2017.
On 22 March 2018, the applicants made a formal application to amend the details on BJ's birth certificate, which erroneously, in their view, listed Samuel's original surname as Hall. On 31 July 2018, he outlined the personal reasons behind his desire to have his "original" surname on BJ's birth certificate listed as Charlwood instead of Hall. After several months of deliberations, the registry formally declined their application, on 18 October 2018. The applicant applied to this tribunal for review of that decision on 14 November 2018. Mr Charlwood believed that the reasoning offered by the registry for declining the application to amend was insufficient.
The matter first came before this tribunal on 18 December 2018. Orders were made for the respondent to undertake an official review of its original decision. On 17 January 2019, the internal review declined to amend the details of BJ's birth certificate.
Mrs Clare Charlwood's statement related that she was born on 12 December 1988 and that on 5 March 2003 she formally applied to change her surname from Fairall to Wallder. Their son BJ was born on 4 August 2017, and on 22 March 2018 the applicants formally applied to amend the details on his birth certificate, which erroneously, in their view, listed her original surname as Fairall. She outlined the personal reasons behind her desire to have her original surname on BJ's birth certificate listed as Wallder instead of Fairall on 31 July 2018. The statement then proceeds to outline the stages through which the matter then passed in terms similar to those in Mr Charlwood's statement. Neither applicant was required for cross-examination.
Exhibit A1 also contains copies of correspondence between the parties, to which some reference will be made below. The respondent did not call any oral evidence but relied on the s 58 documents (exhibit R1).

Applicants' submissions

The applicants filed written submissions dated 19 March 2019 in which, after setting out the background to the application and summarizing the respondent's submissions, they contended that as they had changed their names pursuant to s 27 of the BDM Act, their legal names were now those listed on the birth certificates. New birth certificates were issued to both applicants and they now use those documents as the legal identification of their names. The surnames listed on their birth certificates are their legal names, and for all intents and purposes those surnames are taken to be the birth names of the applicants.
The applicants' position was that the change of name on their birth certificates has the effect that their new names are taken to be their birth names, as altered. The registration of a name change under the Act would otherwise be considered futile.
The reference to the "original surname" in cl 5(1)(d) of the regulation is the surname that both applicants adopted and had registered pursuant to s 30 of the Act. Clause 5 did not state that a birth certificate must include the "Family Name at Birth" - that requirement is incorporated in the registry's application only and has no basis in the regulation. The requirement for the "Family Name at Birth" is therefore inconsistent with the regulation.
The words "including, if applicable, the original surname" do not specifically require that the original name required is to be included as per the party's registered name at birth. If that were the case, the regulation would specify that the "original surname" must be as per the original birth certificate. It would also state that the "original surname" should be the "Family Name at Birth". The regulation did not require that.
It could not be the Legislature's intention to require that a parent making an application to register a child's birth is required to use a name that is not their legal name. The intention of the words "including, if applicable, the original surname" in cl 5(1)(d) of the regulation was for circumstances such as where a party has taken on a new name since marriage. The applicants' original surnames do not exist on the register, other than by the endorsement on the birth certificate of both applicants. Their son should not have a name noted as the "Family Name at Birth" on his birth certificate that no longer exists as a legal name. That would create an irregularity. The "original surname" of both applicants is as stated in their current birth certificates, which cite Samuel Edward Charlwood and Claire Elizabeth Fairall [sic]. For the reasons given, the applicants seek that the birth certificate of their son [BJ] be amended to reflect the current birth certificates of the applicants.
In oral submissions at the hearing, Mr Charlwood reiterated those points, and referred to his email dated 25 June 2018 to compliance officer Alana O'Loughlin, which stated that "The change to display a father's name at birth (if different from current family name) was a permanent change after one father complained about NOT having that information displayed. If this father does not want to have his family name at birth displayed a request must be made to LSG for us to reprint the certificate after hours as we have to edit the certificate template before printing. There must be a valid application for us to print against".
Ms O'Loughlin replied the same day, "Thanks for the information Tom, we were not aware this was a permanent change….." (exhibit R1, p 12). The form had only recently been amended.
The respondent had submitted that s 3(d) gives as one of the BDM Act's objects to provide for "the keeping of registers for recording and preserving information about births, … changes of name [etc.]". From that the respondent argued that construing the requirement in cl 5(1)(d) of the regulation as requiring parents to provide the surnames that they had at birth promotes that object, and that information regarding changes of name is preserved and later accessible by the children of parents who had their lawful surnames changed. The applicants rejected that contention, as the endorsement at the foot of their current birth certificates lists their previous surnames (exhibit R1, pp 5-6). Consequently there was no need to record those previous surnames on their son's birth certificate.
Mr Charlwood concluded by saying that it had been a 13-month process and that the applicants had been patient.

Consideration

This tribunal has jurisdiction to hear and determine this application by reason of s 56(1) of the BDM Act and s 9(1) of the Administrative Decisions Review Act 1997 (ADR Act). Under s 63 of the ADR Act, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. The tribunal is to make its own decision and there is no presumption that the registrar's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12].

Chronology

In this case the facts are not in dispute. It may be helpful, therefore, to reiterate the main points in the chronology of the matter:

27 September 1987 - Samuel is born in New South Wales, his surname at birth being Hall.
16 April 2015 - Samuel changes his name to Charlwood.
12 December 1988 - Clare is born in New South Wales. Her surname at birth is Fairall.
14 February 2003 - Clare changes her surname to Wallder.
21 November 2015 - the applicants marry, and Clare changes her surname to Charlwood (exhibit R1, p 65).
4 August 2017 - their son BJ is born in New South Wales. His birth certificate gives his parents' family names at their births as Hall and Fairall respectively (exhibit R1, p 4).
17 October 2018 - the respondent refuses the applicants' request to amend BJ's birth certificate to substitute the names Charlwood and Wallder.
16 November 2018 - the applicants seek a review in the tribunal.
18 December 2018 - the tribunal notes that no internal review has taken place and directs that one be conducted.
17 January 2019 - the internal review affirms the decision to reject the application.

Applicants' view of the issue

There is no doubt that the applicants feel strongly about the proposed change to BJ's birth certificate. In an email to Ms O'Loughlin dated 31 July 2018 (exhibit R1, p14), Mr Charlwood explained his position: My previous surname, "Hall", is the subject of a lot of personal anxiety and pain for me. It is the name used by my blood -related father, whom I have not shared a roof with since I was 12 years old and have not had contact with since I was 19 years old. I cannot begin to explain the sort of anguish his actions have put upon me and my immediate siblings, affecting my own confidence, my family's financial security and my outlook on the world at such an impressionable age. More than that, I specifically went and changed my name at the age of 25, along with all my identification - a significant undertaking - to reflect my mother's married name of Charlwood. The Charlwood name is who I am and who I represent. I do not want my son to be associated in any way with [the] previous surname, at least not involuntarily. And while I do not wish to change anything about my upbringing - it is who I am - I am making this request because I have already been through the proper channels to have this sorted out…. I changed my name to distance myself from a negative and traumatic period in my life, and having any form of association with it would bring me untold grief. I would be extremely disheartened and disappointed if my application were declined….
Mrs Clare Charlwood voiced similar sentiments about having her surname at birth recorded on her son's birth certificate: My birth father has not been a part of my life since I was two years old. My mother re-married the man I consider my true father when I was four years old, and he has undoubtedly made me the person I am today. This is why, in 2003, at the age of 15, I chose to formally change my name. It would be an insult to me and my father if my son were to have any association with the name Fairall. This name has caused me a lot of grief throughout my life and I do not wish for my family to have any link to it…. It would be extremely disappointing to have our application declined. And it goes without saying that I would be personally devastated if the department couldn't understand my reasoning, [and] personal circumstances. I have strived my entire life to get away from my birth name, it would be truly unfair for things to come unstuck now (part exhibit A1). The resolution of this matter turns on a point of statutory construction. As there do not appear to be any decided authorities on the provisions in question, it would appear that the point is a matter of first impression.

Registration of births

The legislative scheme for the registration of births includes the following principal elements and steps: 1. The registrar is required to maintain a register or registers of registrable events: s 43(1). "Registrable events" include births: s 4(1). 2. When a child is born in New South Wales, the birth must be registered under the BDM Act: s 13(1). 3. Persons register a birth by giving notice of the birth to the registrar (the "birth registration statement") in a form and manner required by the registrar, specifying the particulars required by the regulations: s 14. 4. The parents (or other responsible person) must have the birth registered within 60 days after birth: s 16(1). 5. The particulars required by the regulations that are referred to in s 14 are set out in cl 5(1) of the regulation and include "the full name (including, if applicable, the original surname)" of each parent. 6. The registrar registers a birth "by making an entry about the birth in the Register including the particulars required by the regulations": s 17(1). Those particulars therefore include "the full name (including, if applicable, the original surname)" of each parent. 7. Subsequently, the registrar may correct the register "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). That is the power the applicants seek to invoke in these proceedings, on the basis that they made an error when they supplied the names Fairall and Hall rather than Wallder and Charlwood.
In this case, the printed registration statement form completed by the applicants and dated 14 August 2017 required the mother to supply "Parent One's family name at her own birth (original surname)". Mrs Charlwood gave the name Fairall: exhibit R1, p 23. Similarly, Mr Charlwood was required to supply "Parent Two's family name at his/her own birth (original surname)", and he gave the name Hall. Those particulars were reproduced on BJ's birth certificate (exhibit R1, p 61), and they are the particulars that the applicants now seek to have changed.
Therefore, regardless of whether "original surname" and "family name at birth" have the same meaning, the applicants were required by the notification form and, more importantly, by cl 5(1), to supply their "original surname[s]". The question then becomes what is meant by that phrase.

The literal approach

"Original surname" is not defined in the BDM Act and there are no decided cases elucidating its meaning. Authorities that define the meaning of "original" in other areas of law, for example intellectual property (where the originality of a work may be in issue) or civil procedure (where the phrase "original jurisdiction" is often used) are of little assistance. In such cases, resort may be had to definitions in standard dictionaries. "The law reports contain thousands of examples of cases in which courts have referred to dictionaries for guidance": D Pearce, R Geddes, Statutory Interpretation in Australia, 8th edn., Lexis Nexis Butterworth 2014, 119. Indeed, as the Court of Appeal noted in Manly Council v Malouf [2004] NSWCA 299, (2004) 61 NSWLR 394, [8], quoting from F A R Bennion, Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court.
In R v Peters (1886) 16 QBD 636, 641, Lord Coleridge said: I am quite aware that dictionaries are not to be taken as authoritative exponents of the meanings of words used in Acts of Parliament, but it is a well-known rule of courts of law that words should be taken to be used in their ordinary sense, and we are therefore sent for instruction to these books.
That passage was quoted with approval in a Court of Appeal case dealing with registration of a sex change under the BDM Act, Norrie v New South Wales Registrar of Births, Deaths and Marriages [2013] NSWCA 145, [84].
It is therefore appropriate to note the definition of "original" in the Oxford English Dictionary as "Belonging to the beginning or earliest stage of something; existing out or from the first; earliest, first in time". That definition suggests that a person's original surname is the one that existed at the "earliest stage" of its use in connexion with a particular person, that is to say, the person's surname at his or her birth.
That approach accords with the most fundamental principle of common law legal interpretation, known as the literal rule (see Pearce, Geddes, op. cit. supra pp 35-36). That rule or approach was defined and explained by Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 161 - 162 as follows: The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean, and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.
While that principle is complemented by the purposive approach (outlined below), "The natural and ordinary meaning of what is actually said in the Act must be the starting point": Reid v Reid [1979] 1 NZLR 572, 594 per Cooke J. Indeed, s 34(3) of the Interpretation Act 1987 states that when considering the weight to be given to any material, consideration should be given to "the desirability of persons being able to rely on the ordinary meaning" of statutory language and "the need to avoid prolonging legal or other proceedings".
On a literal construction, therefore, the item "original surname" requires an individual's family name at birth, regardless of any subsequent changes to the person's legal surname. The applicants submitted that if the regulation had been intended to refer to surname at birth, it would have said so explicitly, in those words. But there is often more than one way of expressing an idea, and the choice of one form of words rather than another is of no consequence if the meaning is clear.

The purposive approach - Objects of Act and legislative history of registration

The applicants submitted that it could not have been the Legislature's intention to require parents applying to register a child's birth to use a name that is not (now) their legal name. An accepted guide to legislative intention is the principle of purposive construction laid down in s 33 of the Interpretation Act, which provides that regard is to be had to the purposes or objects of an Act, and that a construction promoting those purposes or objects is to be preferred to one that would not. A purposive analysis can provide a context that may qualify or reinforce an interpretation based on the ordinary meaning test.
The respondent points out that among the objects of the Act as set out in s 3 is "(d) the keeping of registers for recording and preserving information about births, adoptions, deaths, marriages, registered relationships, changes of name and changes of sex in perpetuity". Requiring parents to provide the surnames they had at birth promotes that object by ensuring that information concerning changes of name is preserved and is later accessible by the children of parents who have had their legal surnames changed.
That interpretation also advances the object proclaimed in s 3(e), "access to information in the registers in appropriate cases by government or private agencies and members of the public…." Such information could assist identification inquiries undertaken by government agencies and others, whereas the construction advocated by the applicants would result in limiting the information available in such cases, even though, as the applicants point out, their former surnames appear in a note at the foot of their current birth certificates (exhibit R1, pp 5, 6). By purporting to change a person's surname ab initio, the applicants' proposed interpretation would give the change of name provisions an element of retrospective operation that could complicate identity tracing in, for example, cases involving entitlement to benefits conditioned on aboriginal descent.
The applicants' position was that the change of name on their birth certificates had the effect that their new names were taken to be their birth names, as altered. The registration of a name change under the Act would otherwise be futile, it was argued. Yet the point of officially registering a name change is to provide an authoritative record of the person's new name, as well as maintaining a record of the person's names before the change. For the reasons given above, that is not a futile exercise.
The applicants also contended that it could not be the Legislature's intention to require a parent registering a child's birth to use a name that was not their legal name. The intention of the words "including, if applicable, the original surname" in cl 5(1)(d) of the regulation was for circumstances such as where a party had taken a new name since marriage. The parent is not, however, required to "use" the former name for an operative purpose, only to record it, consistently with the Act's objectives. There is no basis in the BDM Act for confining the meaning of "original surname" to cases such as name changes on marriage. Indeed, in applying a statute that contains detailed provisions of general application for all name changes, whatever their purpose, such a construction is untenable.
The purposive view of the Act's objects also finds support in the historical context of BDM registration. As is well known, Lord Hardwicke's Marriage Act 1753 requiring standardized recording and other formalities was designed to end the traffic in clandestine marriages (many of them based on documents concocted in Fleet Prison) which could be asserted so as to nullify long-standing, apparently lawful, unions, thus depriving a family of its inheritance. The case that led to that Act involved a clandestine marriage set up in Scotland after a man's death which had never been heard of in his lifetime. A later union was set aside by reliance on evidence of the secret pre-contract.
Again, the poor registration of births and deaths under the common law had undermined property rights, making it difficult to establish lines of descent. Under Henry VIII, Thomas Cromwell introduced parish registration in 1538 for Church of England births, deaths and marriages, but the rise of nonconformist churches that were not bound by that measure undermined its effect. A parliamentary report recognized the need for better registration for succession, voting, planning, taxation and defence purposes, and the result was the Births and Deaths Registration Act 1836. Similar concerns led to the enactment of eight Acts of the New South Wales Legislature between 1825 and 1855.
The historical factors that led to legislation for BDM registration show that a need for an accessible and accurate historical record of major life events was a crucial consideration. That need favours a literal interpretation that requires a chronological recording of event particulars as they have occurred, not only as altered by later changes. Nothing in the legislative history of BDM registration law suggests any reason for not adopting the ordinary meaning of the phrase "original surname". On the contrary, that history tends "to confirm that the meaning of the provision is the ordinary meaning" (s 34(1)(a)) and recognizes "the desirability of persons being able to rely on the ordinary meaning" of words (s 34(3)(a)).

Other legal effects of name change

The applicants advanced a number of other contentions about the effects of their name changes. They submitted that changing their legal names pursuant to s 27 of the Act means that their birth names became the legally changed names for all purposes. Section 31(1), however, provides that registering a change of name requires an entry in the register that includes the particulars required by the regulations. Those particulars include (in cl 9 of the regulation) the person's full name immediately before the change, the full name first given to the person after birth and any other name shown on the person's birth registration, as well as any other former names and the new full name. A complete history of the person's name is thus preserved for all time, and not erased by the change.
A birth certificate issued following a name change must show the changed name (s 31(3) because a birth certificate is an important piece of identification recording the individual's current legal name, among other identifying information. It does not, however, affect what a person's legal name was as at any time before the change. Nothing in the Act supports the submission that a change to a legal name alters the individual's name as it was at the time he or she was born. Such an impact would conflict with the statutory object in s 3(d).

Conclusion

The applicants seek to invoke s 45 of the BDM Act under which the registrar "may correct the Register" in order, relevantly, "to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event". The registrable event is BJ's birth and the correction sought is to substitute the applicants' surnames after their respective name changes for their names at birth as their "original surname[s]". The registrar already has "the most reliable information" about the registrable event, and the registration form was correct as submitted. The controversy, then, is about how certain items of that information should be characterized.
The applicants advanced a substantial number of well-argued points in support of their position. Nevertheless, the strongest argument in relation to the meaning of "original surname" is that if one applies the literal approach to interpretation, that phrase could scarcely mean anything other than the person's surname when he or she was born, and there is no cogent reason for not applying the literal approach. That view is reinforced if one takes a purposive and contextual approach to interpretation pursuant to ss 33 and 34 of the Interpretation Act. The result is that s 45 cannot be applied in the applicants' favour and the decision under review must be affirmed.
There is no doubt that the applicants have serious and bona fide reasons for wishing to have BJ's birth certificate altered. The respondent has sought to accommodate their wishes to the extent possible by offering to have the line on the birth certificate recording previous surnames deleted, but that offer was declined. Presumably that offer is still open.

Order 1. Decision under review affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2019

(UK) Births, Deaths and Marriages Registration Act 1995(NSW)

Births, Deaths and Marriages Registration Regulation 2017(NSW)

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