Rodrigues v Registrar of Births, Deaths and Marriages

Material before the Tribunal

1. In considering this matter I have had regard to the following material provided by the parties: 1. Application for an Administrative Review file 17 July 2020 with attachments. 2. Submissions filed on behalf of the Registrar on 2 September 2020. 3. Section 58 documents filed on 2 September 2020. 4. Applicant's submissions received 10 September 2020 with attachments.

Jurisdiction

1. This Tribunal has jurisdiction to hear and determine this application by reason of s 56(1) of the Births, Deaths and Marriages Registration Act 1995 (the BDMR Act) and s 9(1) of the Administrative Decisions Review Act 1997 (the ADR Act). Under s 63 of the ADR Act, the Tribunal's role is to determine whether, having regard to the facts of 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, and may 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.

Should the application be determined without a hearing?

1. Section 50 (2) to (4) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
2. In this case both parties have indicated their agreement to the application being determined on the papers. Having reviewed all the materials, I am satisfied that this is matter than can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing.

Applicable legislation

1. The BDMR Act makes provision for the recording, collection and registration of information relating to important life events: birth, adoptions or discharges of adoption, marriage, change of name, change of sex, and death. These are called registrable events: see s.3. It stipulates requirements relating to each of those important life events and requires the Registrar to maintain registers of them. Those registers are collectively known as the register (see section 43 below).
2. The objects of the BDMR Act are set out in section 3: 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.
3. The functions of the Registrar are set out in section 6: The Registrar's general functions are - (a) to establish and maintain the registers necessary for the purposes of this Act and the Relationships Register Act 2010, and (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 (b) to administer the registration system established by this Act and ensure that the system operates efficiently, effectively and economically, and (c) to ensure that this Act is administered in the way best calculated to achieve its objects. Note - 1 The registers are collectively referred to as the "Register". See section 43
4. Section 43 says: (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. (3) The Register may be wholly or partly in the form of a computer data base, in documentary form, or in another form the Registrar considers appropriate. (4) The Registrar must maintain the indexes to the Register that are necessary to make the information contained in the Register reasonably accessible. (5) A reference in this Act to the Register is a reference to all the registers kept under subsection (1). (6) The Register may be referred to as the Births, Deaths and Marriages Register and a reference in any Act or any instrument made under any Act to the Births, Deaths and Marriages Register is taken to be a reference to the Register.
5. A registrable event means a birth, adoption, discharge of adoption, change of name, change of sex, marriage, or death : see s 4.
6. Part 5 of the BDMR Act is concerned with changes of name. Section 26 provides: A person's name may be changed by registration of the change under this Part.
7. Section 27 says that an adult person may apply for registration of a change of 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.
8. Section 31 is concerned with how a change of name is to be recorded. It provides: (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.
9. Clause 9 of the Births, Deaths and Marriages Registration Regulation 2017 (the BDMR Regulation) sets out the details to be recorded: (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.
10. Part 6 of the BDMR Act concerns the registration of marriages. Relevantly, it provides: 33 Cases in which registration of marriage is required If a marriage is solemnised in the State in accordance with law, the marriage must be registered under this Act. 34 How to have marriage registered A person has a marriage registered by lodging with the Registrar a certificate of the marriage under the Marriage Act 1961 of the Commonwealth or, if the marriage was solemnised before the commencement of that Act, the evidence of the marriage required by the Registrar.1 Note - 1Under section 50 (4) of the Marriage Act 1961 of the Commonwealth the authorised celebrant (within the meaning of that Act) is responsible for lodging the certificate of marriage with the Registrar. 35 Registration of marriage A marriage may be registered by - (a) including the marriage certificate as part of the Register, or (b) including particulars of the marriage in the Register.
11. Section 45 of the BDMR Act is concerned with 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.
12. Marriages are regulated by Commonwealth law: the Marriage Act 1961 (C'th) and the Marriage Regulation 2017 (C'th). Section 80 of the Marriage Act relevantly provides: Marriage certificate and registration of marriages (1) Where an authorised celebrant solemnises a marriage under this Part, the authorised celebrant shall: (a) prepare a certificate of the marriage, in accordance with the prescribed form, for the purpose of issue to the parties to the marriage; and (b) prepare 2 official certificates of the marriage. (2) Immediately after the solemnisation of the marriage: (a) the authorised celebrant; and (b) each of the parties to the marriage; and (c) 2 witnesses of the marriage who are, or is appear to the authorised celebrant to be, over the age of 18 years; shall sign each of the certificates so prepared. (3) … (4) The authorised celebrant shall: (a) hand the certificate referred to in paragraph (1)(a) to one of the parties to the marriage on behalf of the parties; (b) forward the official certificate referred to in subsection (3), together with any statutory declarations, consents or dispensations with consents relating to the marriage that are in his or her possession, to the Registrar; and (c) retain the other copy of the certificate in his or her possession for the prescribed period and, upon the expiration of that period, deal with the copy in accordance with the regulations. (5) … (6) … (7) Upon the receipt by the Registrar of the official certificate required to be forwarded to the Registrar in respect of a marriage, the Registrar shall register the marriage. (8) …
13. The form of a marriage certificate is prescribed by Schedule 1 of the Marriage Regulation 2017. It has two spaces in which the names of the persons who are being married can be written. There are no stated requirements with respect to those names in the regulation.

Outline of the party's submissions

1. Mr Rodriguez's submissions did not address issues of law. Rather, he relied on his personal circumstances to explain why his marriage certificate should be corrected to show his new name, not his name at the time he was married (his birth name). He said that his wife wants to use his new name following their marriage and that they wish their unborn child to have his new name. Mr Rodriguez claimed they each had a 'right' to his legal name.
2. Elsewhere in the materials he explained that his original name includes his mother's birth name (Marchant), which by tradition is not changed on marriage in his mother's country of birth. He said that he and his wife wished to follow the "Australian tradition" by having her adopt his current name.
3. The Registrar submitted that Mr Rodriguez's change of name occurred when it was registered on 7 April 2020. Before then, his name was Eric Jason Rodriguez Marchant. A change of name does not have a retrospective operation.
4. At the time he was married, and when his marriage certificate was completed, his name was Eric Jason Rodriguez Marchant. The Register reflects the marriage certificate by using that name. It contains the most reliable information with respect to Mr Rodriguez's name at the time of his marriage. There is no provision in the Marriage Act or Regulation which makes provision for a change such as that requested by Mr Rodriguez.

Consideration

1. In Crawford v Davidson-Crawford [2019] NSWSC 72, Ward CJ in Eq explained with respect to applications to correct the register that: 24 The Registration Act does not impose any express conditions or requirements on the exercise of the power to require the Registrar to correct the Register. The discretion to exercise that power is subject to the usual requirements and limitations applicable to discretionary powers. Thus, the ambit of the discretion is determined by the subject matter and the purpose of the statutory provisions conferring the discretion (see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [19] per Gleeson CJ, Gaudron and Hayne JJ; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; [1947] HCA 21 per Dixon J); and the discretion must be exercised "judicially" (see House v R (1936) 55 CLR 499; [1936] HCA 40 per Starke J), i.e., according to rules of reason and justice and not arbitrarily or capriciously or according to private opinion.
2. In considering applications to correct the Register it is important to bear in mind the objects of the BDMR Act. As well as the registration of registrable events, a central objective of the Act is to preserve the information the Registers contain in perpetuity, so that they provide a reliable source of information into the future.
3. In Charlwood v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 69, Senior Member Walker considered an application to amend a child's birth certificate by correcting the surname of its parents. They had changed their names prior to the birth, but the birth certificate of their child recorded their old names. The regulations required that the register include "the full name (including, if applicable, the original surname) of each parent." In dismissing the parent's application, the Tribunal said: 40 The applicants' position was that the change of name on their birth certificates had the effect that their new names were taken to be their birth names, as altered. The registration of a name change under the Act would otherwise be futile, it was argued. Yet the point of officially registering a name change is to provide an authoritative record of the person's new name, as well as maintaining a record of the person's names before the change. … that is not a futile exercise. 41 The applicants also contended that it could not be the Legislature's intention to require a parent registering a child's birth to use a name that was not their legal name. The intention of the words "including, if applicable, the original surname" in cl 5(1)(d) of the regulation was for circumstances such as where a party had taken a new name since marriage. The parent is not, however, required to "use" the former name for an operative purpose, only to record it, consistently with the Act's objectives. There is no basis in the BDM Act for confining the meaning of "original surname" to cases such as name changes on marriage. Indeed, in applying a statute that contains detailed provisions of general application for all name changes, whatever their purpose, such a construction is untenable. 42 The purposive view of the Act's objects also finds support in the historical context of BDM registration. As is well known, Lord Hardwicke's Marriage Act 1753 requiring standardized recording and other formalities was designed to end the traffic in clandestine marriages (many of them based on documents concocted in Fleet Prison) which could be asserted so as to nullify long-standing, apparently lawful, unions, thus depriving a family of its inheritance. The case that led to that Act involved a clandestine marriage set up in Scotland after a man's death which had never been heard of in his lifetime. A later union was set aside by reliance on evidence of the secret pre-contract. 43 Again, the poor registration of births and deaths under the common law had undermined property rights, making it difficult to establish lines of descent. Under Henry VIII, Thomas Cromwell introduced parish registration in 1538 for Church of England births, deaths and marriages, but the rise of nonconformist churches that were not bound by that measure undermined its effect. A parliamentary report recognized the need for better registration for succession, voting, planning, taxation and defence purposes, and the result was the Births and Deaths Registration Act 1836. Similar concerns led to the enactment of eight Acts of the New South Wales Legislature between 1825 and 1855. 44 The historical factors that led to legislation for BDM registration show that a need for an accessible and accurate historical record of major life events was a crucial consideration. …
4. In my view it is clear from reading Part 5 of the BDMR Act, in the context of the Act as a whole, that the registration of a change of name is brought about by registration of that change, and that registration does not retrospectively affect earlier registrable events relating to the individual whose name has been changed. A person's name at the time of birth, or other registrable event, remains on the record. This preserves the authenticity and integrity of the information recorded in the various Registers. While section 31(2) does allow for a change of name to be noted in the Register of Births, it - as is evident from Mr Rodriguez's new birth certificate - records the change of name name of the person and the original name.
5. With respect to the registration of marriages, registration is achieved by including the Marriage Certificate in the Register or recording the particulars of marriage in the Marriage Register: see s 35. The particulars of the marriage include the date and place of the marriage and the full name of each party to the marriage: see section 80(8) of the Marriage Act 1961 (C'th). The full name of each party to a marriage is matter of historical record. There is nothing in the Marriage Act or the Marriage Regulation 2017 (Cth) which allows a person's name at the time of their marriage to be retrospectively changed by the subsequent registration of a change of name.
6. It follows that I agree with the Registrar that Mr Rodriguez's application to correct his marriage certificate by replacing his name, as it was at the time of his marriage, with the name he subsequently changed it to, must fail. All the available information shows that his name at the time of the marriage was Eric Jason Rodriguez Marchant. That is not in dispute. His subsequent change of name to Eric Jason Rodriguez does not alter the fact that at the time of his marriage he was Eric Jason Rodriguez Marchant.
7. Registration of a change of a person's name does not result in a retrospective change of their name in registrable events recorded before that change.

Orders

1. The Tribunal makes the following orders: 1. The Tribunal dispenses with a hearing in this matter in accordance with section 50(3) of the Civil and Administrative Tribunal Act 2013. 2. The decision of the Registrar to refuse to correct the applicant's name in his marriage certificate is affirmed.

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: 30 October 2020