The applicant in this case, Raymond O'Keefe, wants the Registrar to alter the official register of births to correct what he says is a mistaken record of his date of birth.
Mr O'Keefe is now 81 years of age. He has always celebrated his birthday on 28 July - because that is the date his parents told him was his birthday.
For his 21st birthday his parents gave him a large, specially made metal 'coming of age' key, which he still has, and which is engraved with the words:
Many Happy Returns RAYMOND from Mum & Dad - 28.7.60
When he was apprenticed in 1956 to a panel beating business his father wrote his date of birth on the Indenture Certificate as 28 July.
He has held a driver's licence since the 1950s. The date of birth as shown on his licence is 28 July.
Centrelink and Medicare both have his date of birth recorded as 28 July.
And yet the Register says he was born not on 28 July but on the 27th.
The question for the Tribunal is whether there is an error in the Register that needs to be corrected.
[2]
Legislation
The relevant legislation is the Births, Deaths and Marriages Registration Act 1995 (NSW) (the BDMR Act).
One of the objects of the BDMR Act is to provide for the registration of births (s 3). For this purpose the Registrar is to establish and maintain a register of births, and maintain the integrity of the Register (s 6).
Section 45 of the BDMR Act deals with the correction of the Register. It 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.
Section 56 provides for the administrative review, by the Tribunal, of decisions of the Registrar. It provides relevantly as follows:
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) …
In this case, the Registrar has declined to correct the Register in accordance with Mr O'Keefe's request. That decision was affirmed by an internal review. Mr O'Keefe has applied to have the matter reviewed by the Tribunal.
Section 63 of the Administrative Decisions Review Act 1997 (NSW), under which the administrative review of the Registrar's decision is to be undertaken, provides that:
1. in determining Mr O'Keefe's application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it (subsection (1)); and
2. for the purpose of conducting the review, the Tribunal may exercise all of the functions that are conferred or imposed by the relevant legislation on the Registrar (subsection (2)).
The Tribunal is not bound by the rules of evidence; it '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 Civil and Administrative Tribunal Act 2013 (NSW).
[3]
The information held by the Registrar in relation to Mr O'Keefe's birth
At the time of Mr O'Keefe's birth it seems to have been the practice of Registry officers to record birth details by hand. The details as recorded were then used as the basis for the information that would be included in a person's birth certificate, whenever one might be requested.
At page 4 of the bundle of documents provided to the Tribunal by the Registrar (the section 58 documents) is a photocopy of a double-page spread from a volume entitled 'BIRTHS Registered in the Districts of Leichhardt and Balmain South at Rozelle in the State of New South Wales, by James Wrentmore Cooke District Registrar'. It is described in the index to the section 58 documents as 'Image of Mr O'Keefe's birth registration … received from Government Records Repository'. I take it this is one of the 'registers' maintained by the Registrar for the purposes of the BDMR Act, and which are collectively called the 'Register': s 43 of the BDMR Act.
The page of the Register containing Mr O'Keefe's birth details has room for five births to be recorded; Mr O'Keefe's entry is the fourth on the page.
There are 11 pre-printed columns on the page, with blank spaces to be completed as each birth is recorded. Column 1 is for the registration number of the birth. Columns 2 to 4 are for various items of information about the child. Columns 5 to 7 are for information about the parents. Column 8 is headed 'Informant', Column 9 'Witnesses' and Column 10 'Registrar'. Column 11, left blank in each of the five entries on the page, is headed 'Name, if added after Registration of Birth'.
As far as relevant, the information relating to Mr O'Keefe's birth is recorded as follows (handwritten entries are shown here in bold italics):
1. Column 2 ('When and where born') -
1939 - 27th July - 22 Gordon Street, and then 'Balmain Municipality', apparently added by stamp.
1. Column 4 ('Father - (1) When and where Married, (2) Previous Issue, living (names and ages) and deceased (sexes)') -
(1) 3rd June 1933 - Rozelle Sydney N.S.Wales
(2) Kevin R. - 5 (years) Frederick A. - 4 Barry C. - 2 - Living - None deceased.
1. Column 8 ('Signature, Description, and Residence of Informant') -
F. O'Keefe - Father - 22 Gordon Street, and then 'Balmain', apparently added by stamp.
1. Column 9 ('(1) Accoucheur, (2) Nurse, or (3) Names of Witnesses') -
(1) Dr. Woolcock
(2) Nurse Walker
(3) -
1. Column 10 ('Signature of District Registrar, Date and where Registered') -
James W Cooke - 28th July 1939 and then 'Rozelle', either stamped or pre-printed.
[4]
Analysis of the record of Mr O'Keefe's birth
Apart from what he says is an incorrect date of birth, Mr O'Keefe has identified two obvious errors in the recorded information.
Those errors concern the names of two of his older brothers. The names are recorded as 'Kevin R.' and 'Frederick A.' but Mr O'Keefe says, and the Registrar does not dispute, that their names are actually 'Kevin A.' and 'Frederick R.'. Of course, it does not follow that the recorded date of birth is also wrong, but it does show that errors are sometimes made.
Other notable aspects of the record are the entries in Columns 8 and 9.
The major heading to Column 8 is 'Informant', the minor heading 'Signature, Description, and Residence of Informant'.
It is my distinct impression, despite the use of the word 'Signature' in the heading, that the words 'F. O'Keefe' are not the signature of Mr O'Keefe Senior but were handwritten by the same person who completed the rest of Mr O'Keefe's birth entry, and who also completed every detail of the other births recorded on this page (with the exception of the Deputy Registrar's signature 'James W Cooke' appearing on each record in Column 10). That person is very likely a public official who worked in the District Registrar's office. In other words, I find that Mr O'Keefe's father did not sign the entry in the Register. (Again, that in itself does not impugn the integrity of the information in the entry. But it does mean that Mr O'Keefe Senior did not, at the time of registration, acknowledge by his signature the accuracy of the information that was being recorded.)
As far as Column 9 is concerned, I infer from what has been recorded that Dr Woolcock and Nurse Walker were in attendance and probably witnessed the birth, but it is clear that neither individual signed this entry either - these are not their signatures, but simply handwritten records of their names.
Nevertheless, I find on the balance of probabilities that Mr O'Keefe Senior provided information to the Registry, either orally or by completing a form, indicating that his son was born on 27 July 1939 and that Dr Woolcock and Nurse Walker were in attendance at the time of or shortly after the birth.
[5]
Mr O'Keefe's evidence and submissions
Mr O'Keefe maintains that he was born in the front bedroom of his parents' house at 22 Gordon Street, Rozelle, in the early hours of the morning of 28 July 1939. It can be assumed that this is what his parents told him - probably from the time when he was very young - and he would have accepted what they said without question.
He and his family have always celebrated his birthday on 28 July.
He was apprenticed to a panel beating business in 1956 and his father provided his date of birth for the Indenture Certificate as 28 July 1939.
Mr O'Keefe obtained his learner's permit, and subsequently his driver's licence, in the 1950s at the earliest age possible as he had to drive cars as part of his apprenticeship. Apparently he did not have to provide his birth certificate to the motor registry at the time. He said his date of birth was 28 July 1939 and the licence was issued with that date as his date of birth.
Mr O'Keefe's 21st birthday was celebrated with what he described as a 'huge' birthday party at Balmain Town Hall. His parents presented him with a large, solid brass 21st birthday key, engraved as described at [3] of these reasons, with the date shown as 28.7.60. Mr O'Keefe has provided a good-quality photo of the key.
Mr O'Keefe was married in 1961. He was 22 at the time and his wife was 19, but for some reason their marriage certificate showed their ages as 21 and 18 respectively. In 2011 they applied for and were given a replacement certificate showing their correct ages.
In his statutory declaration dated 3 April 2020 Mr O'Keefe stated he had to obtain a copy of his birth certificate before his marriage in 1961, and that was when he discovered his date of birth was recorded as 27 July. His mother's reaction, he says, was a rebuke of her husband, in words to the following effect:
Fred, you put the bloody wrong date down when you filled the form in!
That version (of discovering in 1961 that his date of birth was recorded as 27 July) differs from the explanation Mr O'Keefe provided to the Registrar's office earlier this year, which was:
I never realised my birth certificate was wrong until 1970 when I needed one when I start a new job to join a superfund.
The difference between the two versions only concerns when Mr O'Keefe discovered the 'error' in his date of birth. Both versions have his mother rejecting 27 July as the date of birth, and getting cranky with her husband for getting the wrong information recorded.
Mr O'Keefe has used his driver's licence, since obtaining it over 60 years ago, to prove his identity, and as the primary document to create other government and non-government records with his date of birth as 28 July, including records held by Medicare, Centrelink and his bank.
The only time his driver's licence was not accepted was when he applied for a passport in 2011. The Passport Office took his date of birth from his birth certificate, and as a result he now holds a passport with his date of birth shown as 27 July.
Mr O'Keefe's evidence is uncontroversial (with the obvious exception of that relating to his date of birth). I generally accept what he says and find the facts accordingly - including his mother's reaction of surprise and annoyance upon discovering his birth certificate stated his date of birth was 27 July.
It is not necessary for me to make a finding as to precisely when Mr O'Keefe discovered his date of birth had been recorded as 27 July. It is sufficient to find, as I do, that he did not discover it until he was a grown man, and no earlier than 1961, since up to that time (and possibly until later) there was no need for him to produce a birth certificate to prove his date of birth.
Mr O'Keefe submits that I should order the correction of the Register so as to have his date of birth recorded as 28 July 1939.
[6]
The Registrar's submissions
The Registrar submits the most reliable information available concerning Mr O'Keefe's date of birth is the image of the registration of his birth, referred to at [17]-[20] above.
The Registrar does acknowledge it is 'not inconceivable that in circumstances where [Mr O'Keefe] was born at home and possibly in the evening of the 27 July 1939 or the early hours of 28 July 1939 that his father made a mistake with the exact date'. Nevertheless, the Registrar notes there is no contemporaneous record that such an error took place. Therefore, it is submitted, the actual birth registration details 'must be read as an accurate representation of what information was registered and by extension what in fact actually occurred'.
[7]
Consideration
I infer from what Mr O'Keefe has told me that his mother always identified her son's date of birth as 28 July. That very likely originates in her clear understanding that he was born in the early hours of the 28th, not on the night of the 27th. That likelihood is borne out by her immediate and apparently sincere reaction when she first discovered her son's birthday was recorded in the Register as the 27th.
Of course, it is also possible that what I have described as her 'clear understanding' was wrong. And if it was wrong, then Mr O'Keefe Senior's nomination of the 27th as the date of birth will have been accurate.
But if Mr O'Keefe Senior's nomination of the 27th was correct, why would he have spent the rest of his life, willingly and without any apparent doubt, celebrating his son's birthday on the 28th?
The fact is that, although he told the Registry his son was born on the 27th, Mr O'Keefe Senior very soon retreated from that position - admittedly not by correcting things with the Registry, but by telling (or at least allowing his wife to tell) his son that he had been born on the 28th. There seems to have been no doubt in his mind, when his son was apprenticed in 1956, that the 28th was his son's date of birth. That was equally the case when his son turned 21, as the celebratory birthday key confirms.
Ordinarily one would expect the information recorded in the Register to be accurate. But the evidence here is that the 'informant' - Mr O'Keefe's father - did not adhere for any identifiable period of time to the position he had reported to the Registrar.
While I accept the Registrar's submission that the entry in the Register is an accurate representation of what information was registered, I do not accept that it follows that what was recorded is necessarily 'what in fact actually occurred'. Indeed, the fact that it is in the Register does not in itself make it correct - as s 45 of the BDMR Act acknowledges.
[8]
Conclusion
I consider it far more likely that Mr O'Keefe's father was mistaken once - when he attended the District Registrar's office in 1939 - about the correct date of birth than that both father and mother were mistaken on an ongoing basis throughout the rest of their lives. Their continued treatment of 28 July as Mr O'Keefe's date of birth is a more reliable indicator of what his mother experienced that night than the entry her husband caused to be included in the Register. It is the most reliable information available about when Mr O'Keefe was born. That information satisfies me, on the balance of probabilities, that Mr O'Keefe was born in the early hours of 28 July 1939.
This case is readily distinguishable from the recent case of Myers v Registrar, Births, Deaths and Marriages [2020] NSWCATAD 131. In that case the only evidence before the Tribunal comprised documents created on the basis of information the applicant herself had provided, and tentative statements from her older sister that she 'understood' the applicant's birthday was 16 June, not the 17th as registered, and that her birthday had been celebrated on the 16th. Mr O'Keefe's evidence is much more compelling. It comprises, in effect, public statements by his parents - embodied in contemporaneous documents - that he was born on 28 July, and a specific, immediate and forceful statement from his mother, rejecting the 27th as his date of birth.
[9]
Decision
I set aside the decision under review and order the Registrar to alter the particulars in the Register so as to record Mr O'Keefe's date of birth as 28 July 1939.
[10]
Orders
1. Set aside the decision under review.
2. Order the Registrar to alter the particulars in the register of births so as to record the Applicant's date of birth as 28 July 1939.
[11]
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: 22 September 2020