The Applicant, Gloria Jean Myers, seeks review of the decision of the Registrar, Births, Deaths and Marriages that refused her request to alter her birth details so as to change her date of birth from 17 June 1953 to 16 June 1953. That decision was affirmed on internal review and the Applicant now seeks review by this Tribunal.
It appears that the anomaly between the Applicant's claimed date of birth and that on her birth certificate has raised issues with Centrelink, which may explain why it is only now that the Applicant, aged 66, seeks to have the record corrected.
[2]
Legislative Scheme
Section 6 of the Births, Deaths and Marriages Registration Act 1995 (the Act) sets out the Respondent's general functions:
6 Registrar's general functions
The Registrar's general functions are:
(a) to establish and maintain the registers necessary for the purposes of this Act
(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
... and...
(c) to ensure that this Act is administered in the way best calculated to achieve its objects.
Section 17 of the Act 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) …
Regulation 5 of the Births, Deaths and Marriages Registration Regulation 2017 outlines:
Registration of birth
(1) For the purposes of sections 14 and 17 (1) of the Act, the following particulars are required:
…
(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
…
Section 20 of the Act 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) …
(3) …
'Register' is defined in s 43 of the Act, which provides:
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 provides:
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 ...
A 'registrable event' is defined at s 4 of the Act as meaning, relevantly, a birth.
[3]
Evidence before the Tribunal
Notwithstanding Orders that were made by the Tribunal on 24 March 2020 setting a timetable for the parties to file evidence and submissions, nothing further was filed by either party other than the s 58 documents, a copy of which was provided to the Applicant. The Respondent did not file "submissions and a summary of legal arguments", as directed. Irrespective of whether the Applicant had failed to file any material, for the Respondent to ignore a Tribunal direction (which was not contingent upon filings by the Applicant), is not the conduct one would expect of a model litigant.
Therefore, the only material I had available to me was the application and the s 58 documents, which included material provided by the Applicant to the Respondent for the purposes of the primary decision and the internal review. The Respondent provided submissions which were received by me after the decision had been made, and did not alter my views.
[4]
Consideration
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 of probabilities. 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].
Section 45 of the Act permits the Registrar, and hence the Tribunal on review, to correct the Register to bring an entry about a particular registrable event, such as a birth, into conformity with the most reliable available information about the registrable event.
The Applicant's birth certificate records her date of birth as 17 June 1953. Although difficult to read, the hand-written version also records that date. Usually, I understand, the information which gives rise to the birth certificate is provided by a parent, and the document records that the information was in fact provided by the Applicant's father.
In support of her application the Applicant provided a statement to the effect that she is now aged 66, both her parents are dead, and her sister told her she was born on 16, not 17 June 1953. Her sister, Margaret, who is 1-2 years older than the Applicant, provided a statement to the effect that she understood 16 June to be the date her sister was born and that her birthday had always been celebrated on that date. There was no-one else in the family who could verify the date. While I accept that Margaret may be able to say her sister's birthday was celebrated on 16th, she cannot, from her personal knowledge know that that is her sister's date of birth, given that she was aged one when the Applicant was born.
The Applicant also relied on a proof of age card and an old student ID card which record her date of birth as 16 June 1953. Both these cards can only be regarded as secondary documents and are most likely to have been generated following information provided by the Applicant herself.
Similarly, the Applicant also provided a copy of her application for dissolution of marriage which records her date of birth as 16 June 1953, but this too was likely completed by her or on information provided by her. Interestingly, one suspects that the Applicant would have had to provide her birth certificate in order to be married in the first place; however, there was no evidence before me about her marriage certificate.
The birth was recorded as having occurred at "Mayfair" Private Hospital (Mayfair), Dubbo. Enquiries were made by the Respondent at Dubbo Base Hospital, as Mayfair has apparently closed down. The Applicant had also made enquiries, without success, being informed, she said, that records are retained for only 8 years.
The Applicant also provided a document which had a list of names with a notation as to dates of birth; it records the Applicant's date of birth as 16 June 1953. The Applicant described the document in her letter of 28 November 2019 as "copy of prove (sic) from Eugowra Primary School". The provenance of the document is also unknown - it is undated, unheaded and unsigned. If part of the school records, I estimate that the document would likely to have been prepared sometime between 1958 and 1965 when the Applicant, as a student at the school, was aged 5 to 12. It is extraordinary that such a record would be retained by the school for 55 years, especially given that the local hospital only retains records for 8 years.
Even accepting the document is part of the school's records, it is unclear from the face of the document as to what it relates. Neither is it clear as to the source of the information recorded. For example, it may be that the Applicant herself provided her date of birth, without supporting material; it is evident that her birth certificate was not produced, otherwise her birthdate would have been differently recorded, that is, as 17 June 1953. Given my concerns as to reliability of the document, it does not persuade me, to a view, other than, at best, that at some time during those years the Applicant was said to have been born on 16, rather than 17 June 1953.
In all, I accept that the Applicant genuinely believes she was born on 16 June 1953, and that she and her sister have always celebrated that date as her birthday. I do not consider, however, that there is sufficient reliable available information to warrant the amendment of the Register.
[5]
Decision
1. The decision under review is affirmed.
[6]
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
[7]
Amendments
13 May 2020 - Typographical errors corrected.
25 May 2020 - Paragraph 10 and 11 regarding filing of submissions
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Decision last updated: 25 May 2020