Robyn Winifred Smith (the Applicant) was born at the Inglemere Private Hospital in Strathfield, New South Wales, in August 1943. The date in August 1943 on which she was born is the subject of controversy in these proceedings.
On 14 February 2020 the Applicant lodged an Application to Correct an Entry with the Registry of Births, Deaths and Marriages ('the Registry') to amend her recorded birth date from 18 August 1943 to 13 August 1943 and her recorded name at birth from Robyn Winfred Hall to Robyn Winifred Hall. On 14 April 2020 the Registry refused her application to amend her birth record with respect to her name. There was no reference to her request to amend the recorded birth date. On 20 April 2020 the Applicant sought internal review of the Registry's decision. On 3 June 2020 the Registrar wrote to the Applicant, varying the original decision to allow for a change of name in the register on the basis of s 23 of the Registration of Births, Deaths and Marriages Act 1899 ('the 1899 Act'), but declining to amend the Applicant's birth date on the register. The Applicant sought review in this Tribunal on 15 June 2020 and the parties agreed that the matter was suitable to be determined on the papers.
[2]
Legislation
One of the objects of the Births, Deaths and Marriages Registration Act 1995 ('the BMDR 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.
An "inquiry under Division 2" refers to s44 of the BMDR Act, which allows:
44(1) The Registrar may conduct an inquiry to find out--
(a) whether a registrable event has happened, or
(b) particulars of a registrable event, or
(c) whether particulars of a specific registrable event have been correctly recorded in the Register.
The Registrar relied on section 23 of the 1899 Act to amend the Applicant's name on the register. Section 23 of the 1899 Act states:
23. (1) Where a name is duly given to a child at any time after the registration of its birth the parent shall within seven days after the giving of such name procure and deliver to the district registrar in whose custody the register of the birth of such child then happens to be a certificate according to the form in the Third Schedule hereto signed by the minister or other person who gave such name.
(2) Such minister or other person shall deliver the said certificate whenever demanded on payment of the fee of one shilling.
(3) The district registrar upon receipt of such certificate shall without any erasure of the original entry forthwith make an additional entry in the register that such name was by baptism or otherwise duly given to the child.
(4) The district registrar shall thereupon certify on the said certificate the additional entry so made.
Section 23(1) of the 1899 Act assumes that the child's birth has already been registered, and allows for the child's name to be entered on a date after the birth was registered.
Section 56 of the BDMR Act provides for the administrative review, by the Tribunal, of decisions of the Registrar. Section 63 of the Administrative Decisions Review Act 1997 ('the ADR Act'), under which the administrative review of the Registrar's decision is to be undertaken, provides that the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it and 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.
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.
The issue is whether the Registrar, in declining the Applicant's request 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].
[3]
The Applicant's evidence and submissions
The Applicant provided the following evidence in support of her application:
1. Her drivers licence, first obtained in 1961, was registered with her birth date as 13 August 1943. She provided a copy of her current drivers licence with her date of birth as 13 August 1943.
2. She first became aware that her birth had been registered as 18 August 1943 when she applied for a passport in 1964, at the age of 20. She was required to provide a copy of her birth certificate to obtain the passport and discovered at that time that her birth date had been registered erroneously. Her passport thereby also records her birth date as 18 August 1943.
3. She has always written 13 August 1943 as her birthdate when requested.
4. Her parents always celebrated 13 August 1943 as her birthdate.
5. Her mother was registered as the "informant" of her birth on 16 September 1943. She believed that the Registrar misread her mother's handwriting so that the number 13 was replaced with 18.
6. Her older sister, Barbara Patricia Burke, provided a statutory declaration confirming that the Applicant's birth date was always celebrated as 13 August, and that she was certain of that fact because her own birth date was on 6 August and was always celebrated exactly a week before the Applicant's. Ms Burke recalled being informed via a note at boarding school a day or two after her sister's birth that she had a new sister.
7. Her accountant, David Wyatt of Chapman Wyatt and Associates, provided a letter advising that he and his firm had acted for the applicant for over twenty years, and that her birth date in all of her returns, official documentation and transactions with the Australian Taxation Office and other governmental agencies had always been recorded as 13 August 1943.
8. A doctor from the West Pennant Hills Medical Centre provided a letter confirming their records had the Applicant's birth date as 13 August 1943, with the earliest such record being 18 March 2002. The letter attached referral letters from 2002 with those details in support.
9. The Applicant's older brother, Geoffrey Hall, provided a letter confirming that he and the rest of their family always celebrated the Applicant's birthday on 13 August. He stated that their eldest sister Patty's husband, John, had the same birth date and as adults they had often celebrated both birthdays together as family occasions.
10. The Applicant's younger sister Jill Graham also provided a letter confirming that the family had always celebrated the Applicant's birth day on 13 August as "that was the day our parents told her and the family she was born", and that all her life she had understood her sister's birth date to be 13 August, not 18 August.
11. The Applicant obtained and provided a copy of documents from the St Martha's Catholic Parish church in Strathfield, where she was baptised on 19 September 1943. The entries are handwritten in the following columns: Baptizati, Natus (divided into dio, mense, anno domini), Nomen Patris, Nomen Matris, Domicilium, Rite Fuit (divided into dio, mense, anno domini), Baptizatus. The Applicant's entry is the seventh on the page and records the following:
Baptizati: Hall
Natus: 13th Aug. 1943
Nomen Patris: John Francis Hall
Nomen Matris: Winifred Josephine Mauton
Domicilium: Oxford Rd, Strathfield
Rite Fuit: 19th Sept. 1943
Baptizatus: In ecclesiae Stae. Marthae
The Applicant submitted that her actual birth date (in addition to the spelling of her middle name) had been erroneously recorded on 16 September 1943 in the Register by the person making the entry misreading her mother's handwriting. She submitted that she did "not want to leave this error of my birth date uncorrected". The Applicant submitted that the issue of establishing her correct birth date in the records was very important and she had spent a great deal of time, research and mental energy obtaining the supporting evidence for her application.
In response to the Respondent's submissions which are detailed below, the Applicant pointed out that the Respondent had not been able to obtain any records from the time the Applicant was born. She submitted that the copy of baptismal records from St Martha's Catholic Church Strathfield which were created based on information provided by her parents to the priest clearly showed her birth date as 13th August 1943 and these were the most contemporaneous document available other than her birth certificate. She submitted that the parish records in combination with her own evidence and that of her family members should comfortably allow the Tribunal to find that her birth date was, in fact, 13 August 1943 on the balance of probabilities.
[4]
The respondent's evidence and submissions
The respondent provided written submissions attaching a number of supporting documents in evidence.
The respondent submitted that the Applicant was born on 18 August 1943 at Inglemere Private Hospital in Strathfield. As evidence the Respondent provided a typed copy of the Register issued 9 March 1988 which contained the following details:
No.: 799
Date and place of birth of child: 1943, 18th August, Inglemere Private Hospital Homebush Road Strathfield Municipality of Strathfield
Name and whether present or not: ROBYN WINFRED Not present
Sex: Female
Father's name, occupation, age and birthplace: 1) John Francis Hall 2) Accountant 3) 37 years 4) Rozelle N.S.W.
Date and place of marriage - previous issue: 1) 1st October 1932 Strathfield N.S.W. 2) Barbara P. 10 Elizabeth T. 9 Janice J. 7 John G. 4 living None deceased
Mother's name and maiden surname, age and birthplace: 1) Winifred Josephine Manton 2) 36 years 3) Ashfield N.S.W. Usual residence Municipality of Strathfield
Informant: W.J. Hall, Mother, 13 Oxford Road, Strathfield
Witnesses: 1) Dr. J. O'Brien 2) Matron Neil
Particulars of registration: 16th September 1943 Burwood
The respondent submitted that an amendments officer conducted searches on 14 April 2020 of newspaper notices via the National Library of Australia (https://trove.nla.gov.au/) and https://strathfieldheritage.org/streetnames/abbotsford-road-homebush/inglemere-homebush/ however was "unable to find anything". The respondent also submitted:
That same day, on 14 April 2020, the Respondent contacted Strathfield District Historical Society and Strathfield Council and was informed that neither holds any records of the administration of Inglemere Private Hospital, such as admittances.
The respondent submitted that the Applicant must provide evidence to establish she was born on 13 August 1943, and not on 18 August 1943. It considered the documents provided by the Applicant "provide no evidence" on the following bases:
1. Baptism information is entered by the priest and the Applicant's parents would not have been required to produce any evidence of the Applicant's date of birth to be baptised;
2. The Applicant's current documents including her drivers licence, PAYG payment summary and YHA membership card her accountant's letter and the letters from her treating medical practitioners identifying her birth date as 13 August 1943 were created well after her birth based on information provided by the Applicant;
3. The Applicant's submissions do not provide independent evidence that establishes that she was born on 13 August 1943;
4. The statutory declarations and letters from the Applicant's siblings do not provide first-hand evidence of the Applicant's birth.
The Respondent submitted that the Applicant was therefore, on the current information available, born on 18 August 1943 and its decision should be affirmed.
It was unclear as to why the Respondent had relied on the 1899 Act to alter the Applicant's middle name in the Register, rather than section 45 of the BMDR Act.
[5]
Consideration
The earliest primary record of the Applicant's birth provided by either party to these proceedings was the baptism record from St Martha's Catholic Parish church in Strathfield, dated 19 September 1943 ("the baptism record"). The Register entry in relation to the Applicant's birth was made on 16 September 1943 but the version relied on by the Respondent is a copy dated 9 March 1988 made of the original entry, so it is a secondary source.
As a result, the factual circumstances regarding the making of Register entry on 16 September 1943 are largely unknown. The Applicant submits that her mother provided a handwritten registration form, but there is unfortunately no copy of that handwritten registration form before the Tribunal. The Applicant submits that the registrar must have misread her mother's handwriting, or otherwise made an error in entering the details from that form in the Register, and that the Register should therefore be corrected. It is the Tribunal's role to determine whether, on the balance of probabilities, the evidence supports that submission.
Similar to circumstances in O'Keefe v Registrar of Births Deaths and Marriages [2020] NSWCATAD 233, the Register entry for the Applicant's birth contained other inconsistencies additional to her date of birth. The baptism record differed from the Respondent's 9 March 1988 copy of the Register in the following respects:
1. The Applicant's date of birth is recorded as 13th Aug 1943 instead of 18th Aug 1943;
2. The Applicant's mother's name is recorded as Winifred Josephine Mauton, instead of Winifred Josephine Manton.
The baptism record before the Tribunal does not contain the Applicant's first and middle names, but as referred to above at [2], the spelling of the Applicant's middle name in the Register was inconsistent with the Applicant's mother's name, after whom she was named. This is despite the Applicant's mother being the informant for the Applicant's entry in the Register. The obvious conclusion is that a data entry mistake occurred between the informant's registration form, and completion of the Register entry.
The Tribunal can infer from these matters that data entry mistakes in the Register are generally possible, and in the case of the Applicant's entry, were likely on the balance of probabilities.
I do not accept the Respondent's submissions that the documents provided by the Applicant "provide no evidence". The effect of the Respondent's submission is that the only record which would amount to evidence would be that of a witness to the Applicant's birth, or perhaps the records of Inglemere Hospital at which she was born. Neither was available despite the Respondent's inquiries pursuant to s44(1) of the BMDR Act, as referred to at [16] above.
While the statements and records provided by the Applicant may not be primary sources of information regarding the Applicant's birth, they are still of relevance and do amount to evidence in support of the Application, relevant to s45(1)(b) of the BMDR Act. It is a matter for the Tribunal to determine what weight to afford that evidence. Section 45(1)(b) allows for the correction of the Register based on the "the most reliable information available to the Registrar of the registrable event". Considering all of the evidence discussed above and giving reasonable weight to the statements provided by the Applicant and each of her siblings of the date on which the Applicant's birth was always celebrated, I consider the baptism record to be the most reliable information available of the Applicant's date of birth. It is contemporaneous with the Applicant's mother's registration of her birth but is more reliable that the copy of the Register from 1988 on which the Respondent relies, and its provision distinguishes the circumstances of this case from those in Myers v Registrar, Births, Deaths and Marriages [2020] NSWCATAD 131.
I am satisfied on the balance of probabilities that the Applicant was born on 13 August 1943, not on 18 August 1943.
The Register entry for the Applicant's birth should be corrected and the correct and preferable decision is therefore to set aside the Respondent's decision and substitute the Tribunal's own.
[6]
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 13 August 1943.
[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: 04 December 2020