On 11 December 2020 the Applicant, who is known as Annet Grant, applied to the Respondent, the Registrar, Births, Deaths and Marriages to have her birth certificate corrected to record her given name as "Annet", rather than "Annette". Her application was refused. That decision was affirmed on internal review, and the Applicant now seeks review by this Tribunal.
[2]
Relevant legislation
Section 3 of the Births, Deaths and Marriages Registration Act 1995 (Act) lists the Objects of the Act as follows:
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.
Under s 6 of the Act, the Registrar has the duty to ensure the integrity of the Register and to ensure that the system operates efficiently, effectively, and economically.
Grant v Registrar, Births, Deaths and Marriages [2021] NSWCATAD 282 | Case summary | Zoe
Section 43 of the Act provides for how the register is kept. It states:
43 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.
Section 45 of the Act describes the process for correcting the Register, relevantly as follows:
45 CORRECTION OF REGISTER
(1) The Registrar may correct the Register-
(a) …, 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 Registrar.
(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.
A 'registrable event' is defined in s 4 of the Act as meaning, relevantly, a birth.
[3]
Tribunal's jurisdiction and approach
Section 56 of the Act provides for the right to seek a review of a decision of the Registrar by the Tribunal. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] - [34].
[4]
Evidence
The Applicant provided a number of statements and statutory declarations in support of her contention that she had always been known as "Annet":
1. statutory declaration of Fiona Little, an old school friend
2. statement of Frances Crane, her aunt
3. statutory declaration of Craig McNamara, a former partner, who had known her since 1991
4. statutory declaration of Janafer Cox, her sister
5. statutory declaration of Kathy Campbell, who has known her for 38 years
6. statutory declaration of Gaylea Cox, her sister
She also provided a number of documents which record her given name as "Annet":
1. Tribunal receipt
2. Centrelink card
3. Driver's licence
4. Electoral enrolment details
5. Medicare card
6. School records from 1982 and 1983
7. Trade course certificate from 1989
8. Social Security group certificate for 1996
9. Tax assessment 2006/7
10. Letter from Australian Financial Security Authority dated 24 October 2016
The Applicant was born in Gosford District Hospital on 16 July 1967. On 8 August 1967 her mother completed and signed a Form of Information of Birth with respect to the Applicant. The name the Applicant's mother certified as correct was "Annette Shirley Emma Cox".
The Applicant gave evidence that her mother gave her her birth certificate when she was about 16 or 17. She said it recorded her name as "Annet". When she was 18 her wallet, in which she carried her birth certificate, was stolen, and she had to apply for a replacement birth certificate. She thought she arranged it on the phone.
She said that she applied for a birth certificate on at least one other occasion because she had lost her birth certificate, although she was unable to remember when this occurred. On each occasion, she said, the birth certificate was issued with her name as "Annet".
In 2001, when she was getting married, she applied for another birth certificate in order to get married. At first, it was incorrectly issued in the name "Annette", but, on her application, she said, it was subsequently corrected to "Annet".
The Applicant applied for another birth certificate in 2020, using the online facility. The Applicant's evidence was that the spelling of her first name as "Annette" on the birth certificate issued on 1 December 2020 is incorrect and that her first name had never been spelt that way. On 11 December 2020, the Applicant lodged an application to Correct an Entry on her Birth Certificate, specifically to change her first name from "Annette" to "Annet". It is this application which is the subject of the present review.
At my request, the Respondent called evidence from Timothy Maund, an officer in the Registry, who is familiar with the birth registration process and the administration of the Register.
Mr Maund explained that the Registry system changed in 2014. He was now unable to see from the records how many birth certificates had been issued to the Applicant prior to 2014, but the records do show if there were changes made to the original birth certificate. His evidence was that there were no changes to the Applicant's given name since the original registration as "Annette". He could see on the Register no version of the Applicant's name as "Annet". In particular, he could see no change in 2001, as the Applicant claimed. In response, the Applicant said she was "pretty sure" she had sought to have the 2001 version corrected to "Annet".
Mr Maund said that whereas nowadays applications for corrections can be made online, in the past applications for correction or a fresh certificate could be made at Court Houses and some other government locations. At no time was it possible to obtain a replacement birth certificate by merely phoning up.
The Applicant asked Mr Maund in cross-examination how it was possible for her to have obtained a drivers licence and Centrelink benefits in the name "Annet" if her birth certificate had only ever been in the name "Annette". Mr Maund said he did not know what the requirements of other government agencies were as to proof of identity. The Applicant said that, particularly as a young person, her birth certificate was the only form of identity she had. She said if she had not had a birth certificate in the name "Annet" she would not have been able to obtain benefits in that name. She pointed too to her TFN and the electoral roll.
The Respondent did not dispute that the Applicant's marriage certificate recorded her name as "Annet" (although apparently the priest, the Applicant thought, was responsible for erroneously hyphenating her middle names).
The Applicant also said that her most recent application (2020) was made because her birth certificate was necessary for the purpose of refinancing and it was then she discovered that the birth certificate was missing. The bank told her she could use her marriage certificate, but it was then she discovered that that document also contained an error, namely that her middle names had been hyphenated.
[5]
CONSIDERATION
The Respondent submitted that at the time of the Applicant's birth in 1967, the Form of Information of Birth clearly demonstrates the Applicant's mother listed the Applicant's first name as Annette and it was for that reason that the Respondent had registered the Applicant's first name as "Annette". The Respondent declined the Applicant's application to correct the Register on the basis that it had correctly recorded the Applicant's first name in accordance with the Form of Information provided by the Applicant's mother at birth.
The Applicant said she believed the error first occurred in 2001 when she needed to replace her birth certificate when she was getting married. She wrote in her Application to Correct an Entry that the recording of her first name as Annette, as opposed to Annet, was a mistake that occurred at that time. In correspondence with the Respondent the Applicant wrote on 3 March 2021 that "It was bought (sic) to my attention upon receipt of the last issued Certificate that the spelling of my first name had been changed to Annette". There is then some difficulty in explaining how the Applicant's marriage certificate, which presumably should accord with her birth certificate, records her first name as "Annet".
I accept the evidence of Mr Maund as to the state of the Register. The records show no changes to the Applicant's given name since the original registration as "Annette", and, in particular, there is no version of the Applicant's name as "Annet". Further he could see no change in 2001, as the Applicant claimed. I also accept that at no time has it been possible to obtain a replacement birth certificate by merely phoning up, as the Applicant claimed she had done.
The Applicant said that she had been known all her life as "Annet", and pointed to the evidence of her sisters and old friends. The Applicant's evidence, and that of her sister, Gaylea, was that their mother liked unusual names. I observe that another sister is named "Janafer". While "Janafer K" was recorded by the Applicant's mother as a sibling, the Applicant's eldest sister was recorded there by their mother as "Gail P", and not "Gaylea", as she called herself in her statutory declaration. The Form of Information at Birth records other siblings as "Frances M", "Helen D" and "James M", which tends to detract from the evidence of the Applicant and Gaylea about their mother's preference for unusual names.
The Register maintains historic records which and can only be amended to reflect information that was correct at the time of the event. The decision to correct an entry requires evidence to demonstrate that there was a material error in completing the Form of Information.
The Tribunal has considered the correction of the Register in recent times eg: Grosser v Registrar of Births Deaths and Marriages [2020] NSWCATAD 55 (Grosser), Myers v Registrar, Births , Deaths and Marriages [2020] NSWCATAD 131, O'Keefe v Registrar of Births Deaths and Marriages [2020] NSWCATAD 233 (O'Keefe) and Smith v Registrar of Births, Deaths and Marriages [2020] NSWCATAD 295.
In Myers I discussed concerns about the reliability of the evidence in relation to the Applicant's birthdate. It is necessary to determine what is the most reliable information of the "registrable event", that is, in this case, the Applicant's birth. While the Applicant has used the name "Annet", that is not evidence of what was first registered; the statements and records provided by the Applicant are not primary sources of information regarding intention of her mother in recording the Applicant's birth name: see Grosser at [21].
In O'Keefe, in finding in the Applicant's favour, the Tribunal considered there to have been compelling evidence that the Applicant's date of birth had been mis-recorded by the Applicant's father at the time the Applicant's birth was registered. In this matter however there is no compelling evidence of an error by the Applicant's mother in identifying the name she wished to be officially recorded for her daughter.
Section 45(1)(b) allows for the correction of the Register based on the "the most reliable information available to the Registrar of the registrable event". I have given reasonable weight to the statements provided by the Applicant and some of her siblings and friends of the name by which she was known, even as a child. However these differ from the clear information provided by her mother when registering the birth. The evidence clearly demonstrates that, at the time of the "registrable event", namely the Applicant's birth, it was the intention of the Applicant's mother, in filling out the Form of Information, that the Applicant's registered name be recorded as "Annette". I accept that the Applicant has been known as "Annet" all her life, and that the Applicant and her husband are experiencing some frustration.
I find that the Respondent's decision to decline to correct the register was the correct and preferable decision. It is, of course, open to the Applicant to apply for a change of her name under the Act.
[6]
Decision
1. The decision under review is affirmed.
[7]
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: 28 September 2021