The applicant was born in 1970. In 1985 the applicant required evidence of her birth and she obtained an "Extract Certificate" of her birth from a court registry as was permitted at that time without provision for consultation between the court and the respondent. The certificate certified as follows:
"I hereby certify that a recording in a register kept by me gives the following particulars of the birth of Dee-Ann Michele Ireland"
It then gives the date and place of birth.
The applicant says that "Dee-Ann Michele" is the name she has always used. For example, it is the name on her driver's licence. In April 2019 she applied for a copy of her birth certificate but the certificate issued recorded her names as "Dee-Anne" and the name "Michele" was absent.
In May 2019 she applied for the entry of her name in the Register to be corrected. The request was declined on 14 June 2019. On internal review, that decision was affirmed but she was informed that she could apply for registration of a change of her name. The respondent stated this would be done at no cost. The applicant seeks a review of this decision.
[2]
Relevant legislation
Section 56 of the Births, Deaths and Marriages Registration Act 1995 provides:
"56 Administrative review by the Civil and Administrative Tribunal
(1) A person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(2) This section does not give a right of administrative review of a decision of the Registrar to refuse to register a change of name that was made only because the Commissioner of Corrective Services or the Commissioner of Police refused to give approval under section 31F."
Section 63 of the Administrative Decisions Review Act 1997 provides:
"63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."
Section 17 provides:
"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."
Section 20 provides:
"20 Alteration of details after birth registration
(1) An application to the Registrar for the addition of registrable information in a person's birth registration -
(a) must be made in writing, and
(b) must include the information required by the Registrar, and
(c) must, if the Registrar requires verification of the information contained in the application, be accompanied by a statutory declaration verifying the information contained in the application and any other evidence that the Registrar may require.
(2) This section is subject to section 18.
(3) In this section, registrable information does not include information relating to a person's change of sex."
Section 26 provides:
"26 Change of name by registration
A person's name may be changed by registration of the change under this Part."
Section 27 provides:
"27 Application to register change of adult's name
An adult person may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the person's name if -
(a) the person's birth is registered in the State, or
(b) the person was born outside Australia, the person's birth is not registered in Australia and the person has been resident in the State for at least 3 consecutive years immediately preceding the date of the application."
Sections 30 to 31 provide:
"30 Registration of change of name
(1) Before registering a change of name under this Part, the Registrar may require the applicant to provide evidence to establish to the Registrar's satisfaction -
(a) the identity and age of the person whose name is to be changed, and
(b) that the change of name is not sought for a fraudulent or other improper purpose, and
(c) if the person whose name is to be changed is a child - that the child consents to the change of name or is unable to understand the meaning and implications of the change of name, and
(d) the reasons for making the application for registration of the change of name if the registration of the change would require the Registrar to exercise his or her discretion under section 29C.
(2) If the Registrar is satisfied that the name of a person whose birth is registered in the State has been changed under another law (including a law of another State or the Commonwealth) or by order of a court (including any court of another State or the Commonwealth) the change of name may be registered under this Act.
(3) The Registrar may refuse to register a change of name if, as a result of the change, the name would become a prohibited name.
31 Entries to be made in the Register
(1) The Registrar registers a change of name by making an entry about the change of name in the Register including the particulars required by the regulations.
(2) If the applicant for registration of the change of name asks the Registrar to arrange for noting the change of name in the particulars of the person's birth, and the person's birth is registered under this Act or a corresponding law, the Registrar must -
(a) if the birth is registered under this Act - note the change of name in the entry relating to the birth, or
(b) if the birth is registered under a corresponding law - give notice to the relevant registering authority of the change of name.
(3) If the change of name is noted in the Register under subsection (2), a birth certificate issued by the Registrar for the person must show the person's name as changed under this Part."
Section 31G provides:
"31G Registrar may correct Register
(1) The Registrar may correct the Register under section 45 if a change of name of a person has been registered in contravention of this Division.
(2) This section does not limit the power of the Registrar under section 45 to correct the Register."
Section 45 provides:
"45 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."
[3]
Issue for determination
The issue is whether the Registrar, in refusing to amend the Register, made the correct and preferable decision. 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]). In reviewing the decision I may affirm, vary or set aside the decision.
[4]
Evidence
At the applicant's birth a Form of Information of Birth or of Still-birth was registered recording the applicant's given names as "Dee-Ane Michele." I infer from the form that her birth was registered by her mother. The form is completed by hand. In 1976 her parents married and an "Information with respect to Legitimation" form was registered in which her name was given as "Dee-Anne". Both of the applicant's parents' signatures appear on the form. This was a form under the Marriage Act 1961(Cth). At the same time or shortly afterwards, a form was registered under the Births Deaths and Marriages Registration Act registering the particulars of the birth of the applicant with both parents listed. The purpose of this form appears to have been to have the father's particulars listed in the Register.
There was no other evidence of any amendment to the Register. There was no evidence available about how the Extract Certificate came to be issued by a court containing a differently spelled name to what was recorded in 1976. The respondent postulated that the certificate would not have been verified by it at the time, and the spelling could have been that provided by the applicant to the court.
The applicant stated that she used the spelling "Dee-Ann Michele" on all her official documents including Medicare card, drivers' licence, marriage certificate and bank accounts.
The applicant submits that the respondent has made an error and the name has been misspelled on its documents.
[5]
Consideration
The respondent submits that the Extract Certificate did not effect any change of the applicant's given name and that her given name as registered in 1976 was the given name which should appear on her birth certificate. It submits that its powers to correct the Register under s 31G of the Act are limited, taking into account that the most reliable information available to the Registrar of the applicant's birth is that recorded on the forms registered in 1976. For that reason it submits that a Change of Name Application pursuant to s 27(a) is necessary.
The power to correct the Register is contained in s 45 and is limited to the circumstances set out in s 45(1), being :
1. to reflect a finding made on inquiry under Division 2, or
2. to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.
Only the second circumstance applies as there has been no inquiry conducted. Therefore it is necessary to determine what is the most reliable information available to the Registrar of the "registrable event"; that is, a birth or change of name.
I am not satisfied that the 1985 Extract Certificate is the most reliable information available of the applicant's birth or name, as it was created fifteen years after her birth and there is no evidence that the court consulted the Register. While the applicant has used the name on that Certificate for many years, that is not evidence of what was registered. There is evidence of the name which the applicant uses in her daily life and in other official records, but that does not constitute evidence of a "registrable event". The most reliable information is likely to be the name that was registered in 1976 as it was the most recent. However neither this nor the other registered name is spelled as the applicant wishes.
Therefore I find that the respondent's decision to decline to correct the register so that her name was spelled as it appeared on the Extract Certificate was the correct and preferable decision.
The applicant may apply for a change of her name according to the Act.
[6]
Order
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: 14 February 2020