Pope v Registrar of Births, Deaths and Marriages

NCAT Administrative and Equal Opportunity|2020-08-10

Reasons for Decision

The applicant Anna Pope on 28 May 2020 applied to this tribunal for review of a decision by the Registrar of Births, Deaths and Marriages (BDM) dated 1 April 2020 affirming a decision dated 3 February 2022 to cancel the change of name registration for her late mother Mrs Stavroula Kyriacopoulos, who had wished to revert to her maiden name of Dritsa. She was separated from her husband at the time and had commenced divorce proceedings or 21 December 2017.
Mrs (her preferred title) Pope had lodged an application to register a change of name to give effect to her mother's wishes, using an enduring power of attorney, on 21 February 2018. Her daughter Amanda Pope (granddaughter of the deceased) had attended at the registry on that day, had been interviewed at 10:40 and had paid a fee to have the application expedited, as the deceased's state of health was deteriorating. The application was approved that morning, and the change of name certificate was issued on the following day, bearing the date 22 February 2018.

Applicable legislation

The Births, Deaths and Marriages Registration Act 1995 (BDM Act) provides in s 26 that "A person's name may be changed by registration of the change under this Part".
Section 27 outlines the application process: 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.
An applicant may be required to provide evidence of certain matters: 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.
Once the application is approved, an entry is made in the register pursuant to s 31(1): "The Registrar registers a change of name in the Register including the particulars required by the regulations". The particulars required by cl 9 of the Births, Deaths and Marriages Registration Regulation 2017 are: 9 Registration of change of name (1) For the purposes of section 31 (1) of the Act, the following particulars are required - (a) the sex and date and place of birth of the person whose change of name is being registered, (b) the full name of the person immediately before the change of name, (c) the full name first given to the person after birth and any other name shown on the person's birth registration, (d) any other former names of the person, (e) the new full name of the person, (f) the full names of the parents of the person (as at the date of the person's birth or registration of the person's birth). (2) In this clause, former name of a person includes - (a) a name acquired by the person informally by repute or usage, or (b) any other name used by the person.
The process for correcting the register is described in s 45: 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.
The respondent does not suggest that the applicant has sought the name change for any fraudulent or improper purpose (s 30(1)(b)), or that she lacked authority to make the application. Indeed, in its written and oral submissions, the respondent is sympathetic to the applicant's predicament. Its position is rather that there is no power to certify a name change for a deceased person. The issue in this application is thus whether the BDM Act authorizes the registration of a name change for a person who is deceased at the time of registration.

The evidence

The respondent did not adduce any oral evidence but relied on the s 58 documents (exhibit R1).
In oral evidence at the AVL hearing, the applicant adopted two written statements, the first dated 28 April 2020 (exhibit R1, p 5) in which she explained that she had attended the BDM Camperdown registry earlier in the year to discuss her mother's death certificate, not the change of name that was lodged before her passing. Her name change application had been lodged on the morning of 21 February 2018.
A compliance officer, Natasha Wright, informed her that because she had attended at the BDM Registry, it had come to their attention that a name change was done on the day of her mother's death. The applicant had explained that it was lodged before her death and it was her last wish. Ms Wright had said that if the applicant had not come in about the death certificate, they would not have reverted the name change, but because she went in, they changed it back to Kyriacopoulos, and if she was not happy with that outcome she would need to write to the registry.
Mrs Pope said she could not believe what was happening. She pointed out that the name change was expedited before her mother's death and that she had even passed that information on to her mother, saying that her wish had been granted and her name has been changed to Dritsa and the certificate would be mailed out. It had been lodged in the morning and was expedited before her death, payment was made to BDM and the certificate of the name change had been made out.
Mrs Pope had asked why they were discussing the name change and why it had been reverted after all that time, as if she had not come in to discuss the death certificate, her name change would have remained. Natasha said yes. The applicant did let Natasha know that she was not happy and did not understand, but Natasha said she would have to write in. The death certificate that Natasha took from her had not been returned, nor had her original inquiry been addressed.
Her mother's funeral notification, together with her photograph and her name Stavroula Dritsas had been published in the Greek Herald newspaper and the funeral service was in that name. Her monument is in the name Dritsa. The name change certificate was photocopied, laminated and placed in her casket. Her mother had been separated from her husband since 2015 as she had been in a domestic violence relationship with her husband. All of that had been reported to the doctors and legal practitioners, and that was why she left her husband.
The problem had been brought to Mrs Pope's attention this year (2020), as when she carried out a search in the Rookwood Cemetery database, she could not retrieve any record of her mother's grave. The cemetery management said they required something in writing so they could update their database to Dritsa. That was important as it was the only way family friends and great-great grandchildren could find her mother's grave.
The second written statement was filed on 4 August 2020. It reiterated the points made in the earlier statement and pointed out that the power of attorney was valid at the time of lodgment of the name change application. Alana O'Loughlin and Simon Winter of BDM had recommended the change of name, as they stated that Mrs Pope had provided sufficient evidence to satisfy them that the change of name was not sought for a fraudulent or improper purpose, and it was approved. Natasha Wright had abruptly cancelled the change of name in 2020 when Mrs Pope had visited BDM to discuss an unrelated issue.
Her mother had expressed her wish to have a name change to Dritsa to all her close friends, family and those who worked closely with her, including her lawyers, doctors and psychologists. That led to her relatives sending her mail addressed in the name of Ms Stavroula Dritsa. Her mother had been in a long-standing domestically violent relationship from the time of her marriage at the age of 15.
At the time of separation, because of the lack of cooperation and delaying tactics from her estranged husband and son, she was not given any documentation that could support her name change earlier. With the support of the police, at a much later date, she had been able to obtain her expired passport and citizenship certificate from her prior residency. Both of those documents had inaccurate details - her passport had an incorrect date of birth, and her citizenship certificate had her surname spelt incorrectly.
It had been an extremely lengthy process for her mother to rectify these discrepancies by contacting her relatives in Greece to retrieve her birth certificate and marriage certificate, which then had to be translated into English. Her Australian citizenship certificate was then issued with corrections. She was then able to apply for a new Australian passport and ID. Without such documents she would not have been able to apply for a change of name.
Stavroula had filed for divorce from her estranged husband, but the proceedings were delayed on many occasions by her estranged husband and son. The name change application was prepared on 20 February with the assistance of Hannah Gore, Stavroula's lawyer. On the morning of 21 February 2018, Mrs Pope's daughter Amanda Pope went to BDM to lodge Stavroula's name change. That was conducted over a scheduled interview, and Amanda was required to provide all the supporting documents. The request for expedited processing was made and payment was made, including a priority fee of $227, at 12:21 pm. Amanda was advised that the name change had been approved and the certificate would be available for collection the following day.
Amanda telephoned the applicant and the family to say she had been told by BDM that the name change to Stavroula Dritsa had been expedited and approved. They relayed that information to Stavroula.
Sadly, Mrs Pope's mother passed away at 12:22 on 21 February 2018. Unfortunately, her granddaughter Amanda Pope was not present at the time of her death, as she was returning to the hospital from the BDM office. After they were given that information and received the change of name certificate dated 22 February 2018, her mother's funeral and all the supporting documents were developed under the name Dritsa, as they had been provided with the name change certificate. A copy of the certificate was also placed in her casket to represent that her wishes had been met.
In oral evidence in chief at the hearing, the applicant said her mother's post office box was in the name of Dritsa. She had seen Natasha Wright at the BDM office twice. Ms Wright had taken her death certificate and had not returned it. She had also said she would call the applicant back, but had not done so. She had said the application was fraudulent, but the applicant had pointed out that all necessary steps had been taken before her mother's death. Ms Wright had suggested that she obtain evidence about the time of death.
Her application to the correct the register related only to her mother's death certificate (exhibit R1, p 9), and not to the change of name certificate. She had wanted the death certificate to be in her mother's changed name. All had been done correctly and prior to her mother's death. It had been necessary for her mother to have her passport corrected. The process took a long time, otherwise she would have applied to change her name earlier. Her mother's Australian citizenship certificate also had to be amended, as it had spelt her married name as Kiriacopoulos, not Kyriacopoulos.
Her mother's witness statement to Marrickville police dated 27 January 2016 bore witness to a series of violent or threatening events that showed that she was in a seriously abusive environment in her marriage (exhibit R1, pp 66-67). Her mother's solicitor in her divorce proceedings, Hannah Gore, was aware that the applicant wished to apply for a change of name for Stavroula. That was clear from her email of 20 February 2018 (exhibit A1, p 25). The BDM staff recommendation that the change of name be registered was signed on 21 February 2018 (exhibit R1, pp 35 - 36).
In cross-examination Ms Perini on behalf of the respondent asked the applicant whether the death certificate dated 21 May 2020 (exhibit R1, p 79) (which carries the endorsement, "The maiden name of the registered person was Stavroula DRITSA. Registrar 21 May 2020") was sufficient to enable Rookwood Cemetery to amend their database so that information about the grave could be found by searching the name Dritsa. The applicant replied that she had not looked into it, but pointed out that when she had received the name change certificate, she had placed copy of it in her mother's casket at the time of her funeral on 26 February 2018.

Applicant's submissions

In written submissions the applicant's reiterated those points and contended that the application for a name change had complied with all relevant laws under the BDM Act. The application was valid and had been lodged prior to the death of Stavroula.
The respondent had stated that they had "acted quickly to fix the error upon receiving the new information", despite no enquiries having been made about the change of name two years later during the appointment. Her mother's records were also amended on 5 March 2018, and no alterations to the change of name had been made.
In oral submissions at the hearing, the applicant said it had been her mother's wish to change her name for some time, but the divorce proceedings had delayed matters. Her death on 21 February had been unexpected. Initially the respondent had said the enduring power of attorney was not valid, but the applicant had provided them with the recorded time of death. Payment had been made before her death. The registry had said the change of name certificate had been cancelled because it had been applied for on the day of her death.

Consideration

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. 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.
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]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and 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].

Chronology

The facts of this matter are set out above and are not in significant dispute. It may be helpful to set out a brief chronology:

On 15 February 2018, the late Stavroula Kyriacopoulos executed an enduring power of attorney appointing her daughters, including the applicant, as attorneys to act on her behalf.
In the exercise of that power of attorney, the applicant on 21 February 2018 submitted with BDM an application to register a change of name for her mother. The application was lodged on her behalf by her daughter, Amanda Pope.
At 12:22 on 21 February 2018, Stavroula Kyriacopoulos died of cancer. On the same day, Alana O'Loughlin, Compliance Officer Amendments, signed a recommendation that the change of name be approved (exhibit R1, p 36).
On 22 February 2018, the change of name application was approved by the Manager, Amendments, Mr Simon Winter (exhibit R1, p 36). Shortly afterwards, on the same day, a copy of the change of name certificate was collected by a member of the deceased's family.
In mid-January 2020, the applicant attended BDM and lodged an application to change the family name recorded on the deceased's death certificate to Dritsa, in accordance with the change of name. At that point the registry officer noted that the change of name had been registered the day after the death of the deceased.
On or about 5 February 2020, BDM cancelled the deceased's change of family name from Kyriacopoulos to her maiden name Dritsa and notified the applicant of its decision. On 25 February 2020, the applicant requested an internal review of the decision to cancel the change of registration of the name change.
On 1 April 2020, following an internal review, the respondent registrar affirmed the original decision to cancel the change of name registration. The registrar informed the applicant that in its place, on the death certificate, an endorsement would be included detailing her late mother's maiden name.
Also on 1 April 2020, the registry wrote to the applicant informing her of its decision and pointing out that she had a right to external review by this tribunal. On 28 May 2020 the applicant lodged the present review application.

Application of the law

The legislation recognizes that a person's name may be changed "informally by repute or usage": cl 9(2)(a). A formal name change, however, is effected by registration under part 5 of the BDM Act: s 26. That process may entail the registrar's requiring the applicant to produce certain kinds of evidence: s 30. The actual name change comes about through registration: "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": s 31(1).
An applicant may ask the registrar to arrange for the change of name to be noted in the particulars of the person's birth: s 31(2). There is no similar provision in relation to particulars of death.
The power to correct the register gives the registrar, or by derivation 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 changes in conformity with the most reliable information about the registrable event".
It is not disputed that the applicant had the authority to make the name change application and the application to correct the death certificate. It is common ground that she had taken all the steps she could take in order to register her mother's name change and that she did so before her mother's death. The remaining stages of the process were beyond her control.
The applicant submits that the name change application had been approved on 21 February before her mother's death. Certainly, the signature of the compliance officer, Ms O'Loughlin, on the recommendation is dated 21 February. But that of the amendments manager, Mr Winter, is dated 22 February. The application had thus not been approved before the death of the deceased.
But in any event, neither the date of the application nor the date of the recommendation and approval is relevant. Under s 31(1) and s 26, the registration of a person's name change takes place upon the registrar's making an entry in the register. That is the date of the event that is recorded in the register, and the date from which a formal name change takes place. Thus the registration of a name change cannot apply retrospectively, as it is fixed to the date of registration, in this case, 22 February 2018.
Correction of the register under s 45 is for the purpose of "bring[ing] an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event". In this case, on discovering that the applicant's registration of the name change occurred after the death of the deceased, the respondent proceeded to cancel the registration of the applicant's late mother's change of name.
By so doing, the registrar brought the entry relating to the death of the deceased into conformity with the most reliable information available in relation to the registrable event, namely that at the time of her death her name had not been changed to Dritsa. In those circumstances the review application cannot succeed and the decision under review must be affirmed.

Endorsements

As the respondent points out, the factual scenario in this matter is unusual and understandably sensitive from the applicant's point of view. The fact that the error on the register was corrected two years after the name change application, and in circumstances where the applicant attended at BDM for a different purpose, reinforced the stress that the applicant must have felt about the situation.
The respondent submits that the applicant's late mother's wishes have been accommodated by including an endorsement on the death certificate that her maiden name was Dritsa. The evidence does not show whether that endorsement constitutes sufficient evidence to enable the cemetery management to amend its database to enable the grave of the deceased to be found by searching under the maiden name, as the applicant has not looked into that question.
As the matter of suitable endorsements was not canvassed at the hearing, it would not be appropriate to make any orders about it. But it might be helpful if the parties could discuss the possibility of amending the endorsement by adding a reference to the fact that a change of name application had been lodged before the death of the deceased but the approval process had not been completed before her death.

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: 18 August 2020

Births,Deaths and Marriages Registration Regulation 2017(NSW)

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