Goodliffe v Registrar of Births, Deaths and Marriages

Applicable legislation

1. Section 3 of the Births, Deaths and Marriages Registration Act 1995 (BDMR Act) sets out the objects of the legislation: 3 Objects of Act The objects of this Act are to provide for - (a) the registration of births, deaths and marriages in New South Wales, and (b) the registration of adoption information, and (c) the registration of changes of name and the recording of changes of sex, and (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, and (e) access to the information in the registers in appropriate cases by government or private agencies and members of the public, from within and outside the State, and (f) the issue of certified information from the registers, and (g) the collection and dissemination of statistical information.
2. The general functions of the registrar are set out in s 6: Registrar's general functions 6 The Registrar's general functions are - (a) to establish and maintain the registers1 necessary for the purposes of this Act and the Relationships Register Act 2010, and (a1) to maintain the integrity of the Register and to seek to prevent identity fraud associated with the Register and the information extracted from the Register, and (b) to administer the registration system established by this Act and ensure that the system operates efficiently, effectively and economically, and (c) to ensure that this Act is administered in the way best calculated to achieve its objects. Note - 1The registers are collectively referred to as the "Register". See section 43.
3. Sections 14 and 17 outline the process for registering the birth of a child: 14 How to have the birth of a child registered A person has the birth of a child registered under this Act 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. 17 Registration (1) The Registrar registers a birth by making an entry about the birth in the Register including the particulars required by the regulations. (2) However, if the particulars available to the Registrar are incomplete the Registrar may register a birth on the basis of incomplete particulars.
4. The regulation dealing with birth registration is cl 5, which relevantly provides: 5 Registration of birth (1) For the purposes of sections 14 and 17 (1) of the Act, the following particulars are required - (a) the sex and date, time and place of birth of the child, (b) the weight of the child at birth, (c) whether or not the birth was a multiple birth, (d) the full name (including, if applicable, the original surname), date of birth (or age), place of birth, occupation and usual place of residence (at the time of delivery) of each parent of the child, (e) the date and place of marriage of the parents of the child (if applicable), (f) the full name, sex and date of birth of any other children (including any deceased children) of either of the parents of the child, (g) whether or not either of the parents of the child is of Aboriginal or Torres Strait Islander origin, (h) if either parent of the child was born outside Australia, the period of residence in Australia of that parent. Note - A birth registration statement given to the Registrar under section 14 of the Act must also state the name of the child (see section 21 of the Act). (2) For avoidance of doubt, the Registrar is authorised to include in the Register the registrable information about the identity of the child's parents that is required to be provided under this clause.
5. The respondent's role in preserving the integrity of the register is explained in s 43: 3 The Register (1) The Registrar must maintain a register or registers of registrable events. (2) The Register - (a) must contain the particulars of each registrable event required under this Act, or another law, to be included in the Register, and (b) may contain such further information as the Registrar considers appropriate for inclusion. (3) The Register may be wholly or partly in the form of a computer data base, in documentary form, or in another form the Registrar considers appropriate. (4) The Registrar must maintain the indexes to the Register that are necessary to make the information contained in the Register reasonably accessible. (5) A reference in this Act to the Register is a reference to all the registers kept under subsection (1). (6) The Register may be referred to as the Births, Deaths and Marriages Register and a reference in any Act or any instrument made under any Act to the Births, Deaths and Marriages Register is taken to be a reference to the Register.
6. Section 45 of the Act relates to the circumstances in which the respondent may correct the register: 5 Correction of Register (1) The Registrar may correct the Register - (a) to reflect a finding made on inquiry under Division 2, or (b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event. (2) The Registrar must, if required by a court, correct the Register. (3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry.
7. Section 49(1)(a) of the BDMR Act provides that the respondent, on completing a search of the register, may issue a birth certificate certifying particulars contained in any entry.
8. The issue in this case is thus whether the correct and preferable decision is to amend the Births, Deaths and Marriages (BDM) register by changing the applicant's mother's name at his birth from Piper to Camfield.

The evidence

1. The respondent registrar called no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1).
2. The applicant had not complied with a direction by Little SM on 4 April 2023 to file statements, documents and submissions on or before 25 April 2023, explaining that he had not had access to a printer at that time. The respondent objected to his giving sworn evidence without supplying the respondent with a statement as directed. Instead the applicant made an unsworn statement.
3. The applicant stated that his mother's birth registration had been incorrect and had now been changed, as her birth name had not been Piper as originally shown on his birth certificate and by amendment she had been registered under the name Camfield. It had been her mother (his grandmother) who had caused her to be known by the name Piper as she had remarried a Mr Piper.
4. The applicant's mother had never married either a Mr Piper or Mr Goodliffe. At school he had been initially known under the name Piper but that was later changed in Education Department records to Goodliffe. As matters stand he could not show that he was legally related to his relatives, and the Commonwealth passport office could not issue him with an Australian passport as they could not identify his mother as an Australian citizen, probably because she was not registered anywhere under the name Piper. He does not know his father and is estranged from his mother. Altering her name at his birth on his birth registration would solve his problems.

Submissions

1. The applicant did not make any separate submissions other than in reply but instead relied on the matters advanced in his unsworn statement.
2. In written submissions (exhibit R2) the respondent explained that when registering a birth, the birth registration statement asks for the parents' family name at their birth (original surname) and the current family name (surname). Those questions are asked in accordance with cl 5(1)(d) of the BDMR Regulation 2017. Clause 5(2) confirms that the respondent is authorized to include those details as provided in the register.
3. As was noted in the documents relied on by the respondent, at the time of the applicant's birth the applicant's mother provided information on his birth registration statement that her original surname and surname at the time of the applicant's birth was Piper. Consequently, in accordance with cl 5(2) all, the applicant's mother's original surname and surname at the time of his birth were listed as Piper on his birth certificate.
4. Recently, the applicant sought to have his mother's original surname and her surname at the time of his birth changed to Camfield on his birth certificate. Following research of the records, her surname at her birth was changed to Camfield. In this case, however, the applicant was seeking to have his mother's surname at the time of his birth also changed to Camfield on his birth certificate.
5. Section 43 of the BDMR Act requires the respondent to maintain the register of "registrable events" and the register must contain the particulars of each registrable event required under the Act or Regulation. The registrable event in this case is the applicant's birth. The most reliable information provided in relation to his mother's name is the name is given on the birth registration statement. Her surname at birth was changed to Camfield after research. There was, however, no evidence that she had been using the name Camfield at the time of his birth, rather than Piper.
6. The registry records can only be amended to reflect the information that was correct at the time of the registrable event. On the basis of the evidence available to the respondent, there is no scope under the BDMR Act to allow the requested change.
7. In oral submissions by AVL at the hearing Mr Daoura on behalf of the respondent reiterated those points and queried whether changing her birth name to Camfield would solve the applicant's problems. There was no legislative scope to change a name without proof of error. Under s 45 in such cases the register could be corrected to bring an entry into conformity with the most reliable information available to the registrar of the registrable event. It might be possible to make the change requested the subject of an endorsement, but the registrar would need to have evidence that the applicant's mother was using the name Camfield.
8. By way of reply the applicant argued that Piper was not legally registered name for his mother. Correcting it would help to organize family history. When a person changes his or her name, there would still be a record of the former name as the person would have two registrations., but in this case the name Piper was not recorded for his mother at all. The change of his mother's maiden name on the certificate had solidified family relationships, as otherwise it would not appear that they were related.

Consideration

1. 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.
2. 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.
3. 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 s 140 of 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]. Nevertheless, the civil standard of proof on the balance (preponderance) of probabilities as set out in s 140 is considered to be an acceptable guide to fact-finding.
4. In such cases it is useful to set out a brief chronology of the relevant events:

• On 18 April 1969, the applicant's mother Joanne Lydia Camfield is born in Sydney.
• On 15 May 1998, the applicant is born at Richmond, New South Wales.
• On 25 May 1998, the applicant's parents completed a birth registration form for the applicant (exhibit R1, p 5).
• On 24 June 1998, the applicant's birth is registered in accordance with the details provided by his mother on his birth registration statement. His mother's name was listed as Joanne Lydia Piper and gave her family name at birth as Piper.
• On 12 October 2022, the applicant applied to amend his mother's details on his birth certificate from Joanne Lydia Piper to Joanne Lydia Camfield.
• On 15 October 2022 in response to that application, the respondent amended the applicant's birth certificate by changing the applicant's mother's family name at her birth (her maiden name) to Camfield. The respondent could not, however, amend her name at the time of his birth from Piper to Camfield, as the birth registration form showed that she was using the name Piper at the applicant's date of birth. The respondent informed the applicant that this further amendment could not be made.
• On 16 December 2022 the applicant requested an internal review of the decision. On 23 January 2023, the respondent informed the applicant by letter that an internal review of that decision had been undertaken and it had affirmed the original decision not to amend the applicant's birth certificate by changing his mother's name at the time of his birth from Piper to Camfield. The respondent noted that his birth was registered in accordance with the information provided by his mother or 25 May 1998, and while his mother's family name at her birth had been corrected, there was no scope under the BDMR Act to amend her family name at the time of his birth.
• On 27 February 2023, this tribunal received the applicant's application for an external review of the respondent's decision of 23 January 2023. The matter came on for hearing by AVL on 19 May 2023.

1. The power to correct the register gives the registrar, or on review this tribunal, a discretion "to bring an entry about a particular registrable event into conformity with the most reliable information available….": s 45(1)(b). As the tribunal explained in Ward v New South Wales Registrar of Births, Deaths and Marriages [2015] NSWCATAD 86, [10], "The power to correct the register is discretionary. It is predicated on the decision maker being satisfied the proposed change is in conformity with the most reliable information about the registrable event": Jack v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200, [113].
2. Section 14(1) of the BDMR Act explains how a birth is registered: "The Registrar registers a birth by making an entry about the birth in the Register including the particulars required by the regulations". The particulars required by cl 5(1) of the regulation include "(d) the full name (including, if applicable, the original surname), date of birth (or age), place of birth, occupation and usual place of residence (at the time of delivery) of each parent of the child".
3. At the time of the applicant's birth, his mother provided information on the birth registration statement that her original surname, and surname at the time of his birth, was Piper (exhibit R1, p 5). Consequently, pursuant to cl 5(2) of the Regulation, the applicant's mother's original surname, and surname at the time of his birth, were listed as Piper in section 2 of his birth certificate (id., 3).
4. On receiving his application to have his mother's original surname, and surname at the time of his birth, changed to Camfield, the respondent searched the records it held and ascertained that her surname at her birth was Camfield. On the basis of that information, the applicant's mother's original surname at her birth was changed to Camfield on the applicant's birth certificate.
5. In addition, however, the applicant seeks to have his mother's surname at the time of his birth also changed to Camfield on his birth certificate.
6. Under s 6 of the Act, the respondent has a duty to maintain the integrity of the register and to seek to prevent identity fraud. Section 43 provides that the respondent must maintain the register of "registrable events", and the register must contain the particulars of each registrable event required under the Act or the Regulation. By s 45 of the Act, the registrar is given the power to correct the register to bring an entry "into conformity with the most reliable information available to the Registrar of the registrable event". In this case the registrable event is the applicant's birth.
7. The "most reliable information" about his mother's name on his birth certificate is the name is provided on the birth registration statement. Having received the application to correct the register, however, the respondent searched its records and, in accordance with s 45 changed the entry giving her surname at her birth to Camfield, on the basis of the most reliable information in the registrar's possession.

Orders 1. The decision under review is varied as follows: an endorsement to the effect that the mother's name at her birth on the applicant's birth certificate was corrected from Piper to Camfield on [the relevant date] is to be added. 2. In all other respects the decision under review is 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 May 2023