DZM v Registrar of Births Deaths and Marriages

NCAT Administrative and Equal Opportunity|2019-08-28

The Applicant's position

In summary, the Applicant claims, that in accordance with paragraphs 29C(2)(a) and (b), her reasons for the proposed change of name warrant the registration of the proposed change, and the change is required for her protection. The Applicant also submitted that there was no evidence that she had a criminal history. The latter was not disputed by the Registrar.

The Registrar's position

The Registrar's position has changed over time. 1. By letter dated 9 March 2019 the Registrar stated she declined the 23 November 2018 application for change of name under s 29B(b) as she was "not satisfied that the reason given … warrants the registration, as [the applicant had] previously registered six changes of name". 2. The Registrar's subsequent internal review decision affirmed the original decision stating "the Registrar [had] a duty to maintain the integrity of the Register and to seek to prevent identity fraud, therefore [the Applicant's] seventh application" to change her name was declined. 3. The Registrar submitted: 16… the Respondent could not be satisfied that the Applicant was not seeking a change of name for an improper purpose (ss 30(1)(b)) … 22 … the only relevant exception … in relation to the Respondent registering a seventh change of name for the applicant, is whether the Registrar should have been satisfied that 'the reason for the proposed change of name warrants the registration of the change of name'. 23 … at section 30(1)(b) … before registering a change of name, the Registrar may: `...require the applicant to provide evidence to establish to the Registrar's satisfaction: (b) that the change of name is not sought for a fraudulent or other improper purpose....'

Previous tribunal cases

I observe that both the Tribunal and its predecessor, have considered change of name applications under the Act.
In Ezekeil v Registrar of Births Deaths and Marriages [2011] NSWADT 137 (Ezekeil) Judicial Member Molony held that an applicant who has reached the statutory cap on the number of name changes set by s 29B must point to some good reason or ground warranting a further change to the register before the Registrar can exercise the discretion to allow a further change and that personal preference, likes or dislikes, is insufficient to enliven the discretion. There must be some ground or circumstance over and above personal preference justifying a change for it to be warranted. To hold otherwise, would make the restrictions imposed by s 29B nugatory.
In Turkman v Registrar, NSW Registry of Births Deaths & Marriages [2011] NSWADT 258, an application to register a fourth change of name, Montgomery JM agreed with the approach of Molony JM in Ezekeil and held that the material before him was not sufficient to warrant a further change to the register.
In Mellini, another application to register a fourth change of name Montgomery JM again agreed with Molony JM's reasons in Ezekeil and considered there must be some ground or circumstance over and above personal preference justifying a change for it to be warranted. In that matter the applicant's reason for seeking a further change of name was his desire to return to his birth name and it was important to him because of the desire to be able to pass on to his children a connection to his heritage through his original name. Montgomery JM found that this desire alone would not be sufficient to warrant the change. However, he also considered the circumstances in which the earlier changes were made to be relevant considerations. The applicant's previous name changes were sought because of threats to his personal safety and security; he formed the belief that some protection would be afforded by the change of name. While Montgomery JM found that that belief may have been misguided, he accepted that it was honestly held. The application was to permit him to return to his birth name now that the threat to his safety no longer existed. Montgomery JM found no reason to believe that to register the applicant's original name posed a risk of fraud or abuse of the change of name system, and the Registrar's decision was set aside.
In Terzic v Registrar of Births, Deaths and Marriages [2013] NSWADT 82, an application to register a fourth change of name, Deputy President Hennessy observed that the Registrar refused the applicant's application to register a change of her name because he regarded the reason for the change to be mere personal preference. DP Hennessy observed that the Tribunal had determined several applications for review where the Registrar had refused to register a fourth change of name in which the Tribunal had consistently said that "personal preference, likes or dislikes" are insufficient to enliven the discretion. DP Hennessy considered that while the Registrar must be satisfied that the reason for the application warrants registration of the name change, the exercise of the discretion should not be fettered by applying an inflexible rule. She considered that refusing to register a fourth or subsequent name change because the reason for the application is "personal preference likes or dislikes" puts a gloss on s 29C(2)(a) that is not consistent with the terms of the provision. Ultimately, each application must be determined on its merits. DP Hennessy considered that, further evidence provided by the applicant as to the reasons for the application to change her name warranted the exercise of the discretion.
Senior Member Scahill considered an application for another fourth registration of a name change in Wells. Scahill SM's consideration included reference to the reasoning in each of Ezekeil, Mellini, Terzic and Turkman. Scahill SM held that once the statutory cap of s 29B is reached the applicant must point to some good reason or ground warranting a further change to the register, before the Registrar can exercise the discretion to allow a further change. Scahill SM observed that in previous matters the Tribunal had found that personal preference, likes or dislikes, is insufficient to enliven the discretion. There must be some ground or circumstance over and above personal preference justifying a change for it to be warranted and that to hold otherwise, would make the restrictions imposed by s 29B nugatory. Scahill SM found that the reasons advanced by Mr Wells for again wishing to change his name were substantially focussed on matters associated with his personal preference. As a result, the Tribunal found that Mr Wells had not advanced a sufficient reason to warrant changing the register. Scahill SM was also not satisfied that Mr Wells had been honest about his reasons for informing the respondent that his birthdate was now different to the date referred to in all previous dealings. In the absence of a reasonable explanation for this the Tribunal was not satisfied in terms of s 30 that the change sought was not for a fraudulent purpose.

Reasoning and findings

During the hearing the Applicant and Registrar agreed that the reasons for the Applicant's proposed change of name were: 1. To have a legal male name for her [proposed] online business; 2. To remove one of her names as it is a constant reminder of sexual abuse from which she suffered for many years; and 3. To be re-linked to what she regards as her ethnic heritage.
The Applicant claimed that the above three reasons warrant the registration of her proposed change of name in accordance with the requirements of s 29C(2)(a) and the Registrar should have been so satisfied as should the Tribunal.
During the hearing the Applicant added two additional reasons for her Application. They were that s 29C(2)(b) is also satisfied because the proposed name change is sought for her own protection and the change would make her stronger.
The Applicant's submission is that the above reasons should, in accordance with s 30(1)(b), satisfy the Tribunal that the name change is not sought for a fraudulent or improper purpose and require the Tribunal to exercise its discretion under s 29C

The Applicant's proposal to change her name to include a "legal" male first name

The Applicant submitted at AS [1] and [2] that she no longer has the confidence to follow the occupation of her dreams nor can she earn sufficient money in employed work.
The Applicant stated she wishes to set up her own business in a specified industry when she has sufficient training. The Applicant submitted that an Australian Government agency stated that, as at 2016 the industry was 62.4% male. The Applicant submitted: With a male first name in my online … business, I will be perceived as fitting into this industry. As it will be online, most of my clients will never see or talk to me; and they'll still think I'm male when it comes to paying as my bank account will be in my male first name ... … … Self-employment, through my own online … business, is my only hope of ongoing paid work which I can do into old age … … … I may be Caucasian, but as an unemployed (now seemingly unemployable middle-aged woman) I need to be elevated to business (wo)man in the … field …
The Registrar submitted at [33], and the Applicant conceded that in a submission dated May 2019, she (the Applicant) had stated: … I am asking to have my surname as my first name to give me a strong online male appearance in developing … business to help lessen financial suffering me when it comes to retire [sic]
The Registrar's main submission in relation to the proposed use of a legal male first name by the Applicant is that "the Respondent could not be satisfied that the Applicant was not seeking a change of name for an improper purpose (ss 30(1)b) of the Act)."
The Applicant responded that she had an unblemished police record, which the Registrar did not dispute. The Applicant also submitted the Registrar had "no proof that I will, or have ever, changed my name for 'improper purpose'. They have no proof because there is no proof; I have only ever changed my name as a coping mechanism to the years of sexual abuse I received. And this abuse is part of why I am asking to alter my name now. To say that I am doing this for an 'improper purpose' is slanderous."
The Registrar accepted that the Applicant had suffered abuse for many years. That is not in dispute.
However, the Applicant has disregarded, or was not aware, that amendments to s 30 in 2009 stated that before registering a change of name under Part 5 the Registrar may require the Applicant "to provide evidence to establish to the Registrar's satisfaction that the change of name is not sought for an improper purpose." The Registrar is not obliged to exercise her discretion in favour of the Applicant unless the Applicant can prove there is no improper purpose in the proposed name change. In these proceedings, the Tribunal is not obliged to accede to the Application unless the Tribunal proves there is an improper purpose. The reverse applies. The obligation is on the Applicant to prove her case by providing compelling evidence, on the balance of probability, that the name change is not sought for an improper purpose.
There is no dispute that the Applicant stated on numerous occasions that an important part of her reasons for seeking a name change is to create a fiction in the mind of her future clients that she is male not female, and therefore fits better into her chosen industry. The Applicant's expressed purpose is that this subterfuge will cause her to earn more money and increase the amount of her superannuation benefits. I find this would be a misrepresentation by the Applicant. Accordingly, I am not satisfied that a substantial purpose of the proposed name change is not improper.

Protection of the Applicant from herself - s 29C(2)(b)

Section 29C(2) provides that, notwithstanding the restrictions imposed by s29B, the Registrar may register a change of name if any of the paragraphs of s 29C(2) applied. During the hearing I asked the Applicant if each of those paragraphs applied. The Applicant informed me that paragraphs (c) and (d) (which respectively relate to change of name because of a marriage or because of an order of the District Court) did not apply. However, she said that paragraph 29C(2)(b) applied because she was in need of protection from herself.
The Applicant said she had tried to commit suicide twice before, once at the age of 14 and then again in her late twenties. She did not state, but implied, that if the change of name was not approved she may attempt self-harm. The Applicant showed the Tribunal rubber bands she wore on one of her wrists which she said she snapped in lieu of self-harm.
I asked the Applicant whether she was receiving medical assistance of any type at this time. She said she was not consulting any medical professional because she had no fixed address and she had no recent medical certificates. However, she said there were relevant certificates in the s 58 documents in evidence. The Applicant referred to two certificates, one at page 15 of 33 in Tab 6.10 in the s 58 documents, the other at page 14 of 33. The first certificate dated 30 January 2008 referred amongst other matters to the Applicant's "suicidal ideation" following abuse to which she had been subject and the second certificate, dated 28 June 2012, from a psychologist stated that during a series of counselling appointments the Applicant reported she had experienced sexual abuse.
The Applicant said she had received some support from Lifeline and made donations to Lifeline.
The factual statements by the Applicant in the above three paragraphs may well be correct. However, I find that the Applicant produced no recent documentary evidence or other corroborative evidence to support her claim that her proposed name change would provide her with protection from herself.
I am concerned for the Applicant's welfare. However: 1. the reason of protection from self-harm was not one of the reasons given by the Applicant for the change of name until the issue was raised with her during the hearing; 2. the most recent certificate provided by the Applicant was more than seven years old; 3. the Applicant has chosen in recent times not to seek medical assistance; 4. there is no evidence, even on the Applicant's account, that there has been any attempt by her at self-harm for some decades; and 5. there was no suggestion nor evidence of self-harm after the May 2018 application was rejected on 19 June 2018, more than 12 months before the hearing in these proceedings.
On balance, I am not satisfied for the purpose of s 29C(2)(b) that the Applicant has provided compelling evidence that registration of the current proposed change of name would provide her with protection from herself.

Dual nationality - possible registration of name change overseas

The Applicant informed the Tribunal that she held dual nationality, being both an Australian citizen and a citizen of the country of her ethnic background.
The Applicant submitted that she could go to that other country and change her name if not allowed to do so in New South Wale.
I observed that I had no expertise regarding, nor evidence before me in relation to, the law concerning changes of name in any foreign country. I also observed that the Tribunal has no jurisdiction in relation to a name change in a foreign country of which an Australian citizen claims dual nationality.
This unsupported submission did not assist the Applicant's claim and merely indicated a possible personal preference to change her name in New South Wales rather than in another country of which she was a citizen.

Chronology of the Applicant's changes of name

There is no dispute that: 1. An endorsement on a birth certificate of the Applicant indicates that a change of her name was registered in 1984. 2. During 1991 and 1992 three changes of name were registered with the New South Wales Land Titles Office at the request of the Applicant. 3. Between 1997 and 2012 a further six changes of name were registered under the Act at the request of the Applicant.
The s 58 documents include an internal memo dated 20 August 2012 from a "Compliance Officer Amendments" within the Registry of Births Deaths and Marriages (the Registry) to the "Manager Amendments" in relation to the Applicant's sixth application under the Act (the 2012 memo). The memo includes references to the first five applications as follows: A change of name … was registered [in] 1997. The applicant gave no reason for this change of name, as the Registry did not require it at the time. A second change of name … was registered [in] … May 2000. The applicant gave no reason for this change of name, as the Registry did not require it at the time. A third change of name …was registered [in] … November 2000. The reason given for the change of name was "To go back to the last name I had - habit", [A note on the application states "Confirmed with applicant that any future changes unlikely. Agreed." ] A fourth change of name … was registered [in] … February 2002. The reason given for the change of name was "Finally found a name that I want." A note on the application [apparently] made by the interviewing officer [states] *N.B. Note change of name d/base - NO FURTHER CHANGES OF NAME *Applicant advised no changes of name possible". A fifth change of name … was registered [in] … March 2004. The reason given for the change of name was "I have had to change name in the past due to family troubles & abuse. This has now been dealt with in the courts. As a result of the abuse, I have suffered many years of depression. I am now 'back on my feet' and beginning a". Noted on the change of name registration is "Spoke to applicant and advised of this being the last change of name. (tab 7)"
I have confirmed the accuracy of the extracted contents of the 2012 memo set out in the immediately preceding paragraph other than the last sentence in respect of the fifth change of name which I did not locate.
A sixth change of name was registered under the Act in 2012. The 2012 memo indicates that the relevant application was supported by multiple documents including several statutory declarations and letters, some from the Applicant, others from family members and third parties including a psychologist. The Applicant's reasons for the 2012 name change included sexual abuse by several relatives and concerns that a relative may take out a life insurance policy on her life without her consent.
The s 58 documents also refer to: 1. A first attempt in May 2018 for a seventh proposed change of name under the Act. The reasons given for the change were firstly to improve the Applicant's financial situation by having a male first name to give her a better chance to have a job interview and she will be starting an online business in an industry which is mostly male. The Applicant's second reason was to relink herself with her ethnic heritage. The application was not successful. 2. A further attempt in November 2018 to register a name change. The new proposed name differs from the name in the May 2018 application. On 21 January 2019 the Applicant informed the Registry she wished to cancel the November 2018 application which had not then been assessed. 3. The s 58 documents include a partial chronology including notes that: 1. On 1 February 2019 the Applicant informed the Registry by email she wished to proceed with the November 2018 application. 2. On 4 February 2019 the Applicant requested that the proposed new name be changed from her original application and confirmed that request on 7 February. 3. On 11 February 2019 the Registry received a statutory declaration and written request from the Applicant changing the most recent proposed new name. 4. On 26 February 2019 the Applicant requested a different proposed new name for her application.
I observe that the proposed new name the subject of the Application to the Tribunal is the name submitted on 26 February 2019 to the Registry.

Whether a return to a previous name is a change of name

The Applicant submitted that a change of a few letters in a person's name or changing to a previous name should not be regarded by the Tribunal as a change of name for the purpose of the Application. The Applicant provided no legislative or case law authority in support of this submission.
This issue was dealt with at [34] in Mellini where Montgomery JM agreed with the Registrar's contention that the application before the Tribunal constituted a "name change even though the Applicant [in that matter] sought a return to his birth name". The arguments of the Registrar in Mellini, including references to sections of the Act and case law authority are set out at [13] to [15] in the Judicial Member's reasons and there is no need to repeat them here other than to note that s 4 provides that "change of name includes an addition, omission or substitution" and s 26 provides "A person's name may be changed by registration of the change under" Part 5 of the Act. I am aware of no legislative or case-law authority which supports the Applicant's submission.
Having regard to the wording of the Act and there being no contrary authority I respectfully adopt Montgomery JM's reasoning on this point. Accordingly, I reject the Applicant's submission.

Section 29C(2)(a) - whether the reason for the proposed change of name warrants the registration of the change of name

Having regard to the restrictions Parliament imposed by s 29B on a change of name and the limited discretionary power conferred on the Registrar in s 29C(2)(a) I opine that the discretion should not be exercised unless the Applicant can at least identify with some certainty the Applicant's proposed new name and that the use of the name exhibit some stability.
In that regard I note: 1. The ten successful and several unsuccessful attempts by the Applicant to change her name to a range of other names over a period of more than 30 years including six successful changes in the 15 year period to 2012; and 2. The multiple names the Applicant proposed to the Registrar as her new name in the 15 months before the hearing.
The s 58 documents include an internal Registry memo dated 26 February 2019 from a "Compliance Officer Amendments" to the "Manager Amendments" (the 2019 memo) stating in part: [The Applicant's] reason for changing her name in her current application is a continuation of the preceding two declined applications. She is still hoping to start an online … business with the "advantage" of using a male name. [The Applicant] is also stating that she wishes to separate herself from the name … & the link it has to the abuse she suffered. [The Applicant's] last approved change of name to [her current name] was approved due to reasons of abuse and depression; therefore I am not convinced that any further name change will assist her in dealing with her abuse. [The Applicant] states in her letter dated the 11 February 2019 that "changing her name is no longer exciting like it was when I was younger." … This indicates to me that changing her name was not about her abuse. Since lodging her current change of name application, the Applicant has requested a further three amendments to the name she wishes to register from the original request of … to … to … to … Based on this I am not convinced that she will not request a further change of name
I also note that in ASR, filed with the Tribunal a mere 11 days before the hearing, the Applicant sought to delegate to the Tribunal the task of choosing her new name by stating she hoped the Tribunal would choose from one of two names she provided.
Having regard to my last observation, the fluidity of the Applicant's name change preferences over a lengthy period and the expressed reasons for same, the number of successful name changes which have been registered at her request, and the number of occasions the Applicant has been informed that no further name changes will be allowed I adopt the above conclusion of the "Compliance Officer Amendments" as I too "am not convinced that [the Applicant] will not request a further change of name".

Decision

Having regard to my above findings on the material before me, the correct and preferable decision is to affirm the decision under review and not to exercise my discretion in favour of the Applicant .

Orders 1. The decision under review is affirmed and the review application is dismissed.

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: 11 September 2019

Births Deaths and Marriages Registration Act 1995(NSW)

Material before the Tribunal

The Registrar relied on documents filed on her behalf under s 58 of the ADR Act; written submissions dated and filed on 30 July 2019 (RS); a bundle of documents handed to the Tribunal during the hearing comprising excerpts from the Act and the decisions in Mellini v Registrar of Births, Deaths and Marriages [2012] NSWADT 215 (Mellini) and Wells v Registrar of Births, Deaths and Marriages [2016] NSWCATAD 191 (Wells); and oral submissions by A Gilroy, solicitor representing the Registrar during the hearing.
All references to paragraph numbers of written submissions by the Registrar are to paragraphs of RS unless stated to the contrary.
The Applicant relied on her Application and the attached grounds in support; her written submissions dated and filed 24 June 2019 (AS), her undated submissions in reply filed 15 August 2019 (ASR), her birth certificate certified by the Registrar on 5 May 2004 containing several endorsements, and her oral submissions during the hearing. The Applicant also relied on some of the documents in the bundle of s 58 documents.

At a glance

Court

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Judgment (13 paragraphs)

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Legislation Cited (4)

Cases Cited (2)

Cited By (1)