Taranellos v Registrar of Births, Deaths and Marriages

NCAT Administrative and Equal Opportunity|2023-10-17

Legal, Corporate Services, Department of Customer Service (Respondent). File Number(s): 2023/00188610

reasons for decision

The applicant Mr George Taranellos applied to this tribunal on 13 June 2023 for review of a decision by the respondent registrar on 16 May 2023 (exhibit R1, p 16) to refuse an application to make a correction to the death record of his father, the late Anastasios Taranellos, in the Register of Births, Deaths and Marriages.

Applicable legislation

Section 3 of the Births, Deaths and Marriages Act 1995 (BDM Act ) sets out the objects of the legislation: 3 Objects of Act 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.
The general functions of the registrar are set out in s 6: 6 Registrar's general functions The Registrar's general functions are - (a) to establish and maintain the registers1 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 - 1The registers are collectively referred to as the "Register". See section 43.
Section 42 regulates the registration of deaths: 42 Registration (1) The Registrar registers a death by making an entry about the death in the Register including the particulars required by the regulations. (2) However, if the particulars available to the Registrar are incomplete the Registrar may register a death on the basis of incomplete particulars.
The respondent's role in preserving the integrity of the register is explained in s 43: 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. (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.
Section 45 of the Act relates to the circumstances in which the respondent may correct the register: 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 issue in this case is thus whether the correct and preferable decision is that removing the names of Pantelis and Panagiotis as children of Anastasios Taranellos from his death record would bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event. The registrable event in this case is the death of Anastasios Taranellos.

The evidence

The respondent called no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1) and on cross-examination of the applicant.
In oral evidence at the hearing the applicant adopted his affidavit dated 1 September 2023 (exhibit A1) in which he stated that his mother Evdoxia had explained to him that she had previously married a Mr Kiriakidou in Greece in the 1950s and that she had two children, Pantelis and Panagiotis, with Mr Kiriakidou, always referring to them as his half-brothers.
She had divorced Mr Kiriakidou and later met the applicant's father, Anastasios Taranellos, emigrating to Australia with him. She emigrated leaving her children Pantelis, then aged 15, and Panagiotis (then aged 11) in the care of family. The children never emigrated to Australia.
Evdoxia later married Anastasios at Newtown, New South Wales, on 9 May 1967, and the applicant held a copy of the marriage certificate issued by the church (part exhibit A1). He believed the details provided by Anastasios on the birth certificates for himself and his sister Maria and used as evidence by the respondent were incorrect in relation to the previous children of the relationship. Anastasios had listed Panagiotis and Pantelis, not understanding the phrase "of relationship".
He believed that the date of Evdoxia's first marriage in Greece was 25 November 1951, but his parents' correct marriage date was as shown in the marriage certificate and was 9 May 1967, and the marriage was performed at Newtown, not at Thessaloniki, Greece, as stated in his birth certificate (exhibit R1, p 18).
He believed the mistakes made by Anastasios on the applications for birth certificates resulted from a lack of understanding as his father had an immature grasp of the English language when he emigrated to Australia in 1966.
In relation to his application for a death certificate for his father Anastasios, he had asked the funeral director to copy any details they needed from his mother's death certificate application request. He had not been in the right frame of mind when he signed the application form and did not have another family member with him at the time to check the details presented in the form. He was not asked at the time he was signing the form if all the children listed on the application form were his father's children. He was not made aware of his mistake until his wife Christine saw the death certificate and brought the error to his attention.
The names of his half-brothers listed in the death information form matched the name of his mother's surname from her first marriage. The name Kyriakidou was listed in the marriage record as the bride's family name, and that matched the name of Mr Kyriakidou from her first marriage and the surnames of his half-brothers.
He had been unable to obtain birth certificates for his half-brothers. His sister, Mrs Maria Campbell-Davis made enquiries with a solicitor in Australia who contacted an affiliate member in Greece with a request to obtain the birth certificate records for his half-brothers through other channels, but was unable to do so. A record search from the National Archives of Australia stated that Anastasios had entered Australia as "Never Married".
The applicant also adopted his document headed "Response to Respondent Submission Dated 28 September 2023" (part exhibit A3) in which he stated that he had initially reached out to Olsen Funerals Pty Ltd to advise them of the mistake that had been made in the death information form and was told that they were unable to make changes and that he should engage with Service New South Wales. The respondent had made enquiries with Olsen Funerals, who said they could not make any adjustments to the already submitted document because no error had been made on their part. At no time, however, had Olsen asked him if Panagiotis or Pantelis were his father's children, given that they had a different surname.
The information relied on by the respondent was provided to them at a time when he was of unsound mind and not in a state of mind to sign the form. Furthermore, he did not have anyone to substantiate the information at the time of signing. Thus he had not noticed the incorrect spelling of his own name on the form under the heading "Children of Deceased" (exhibit R1, p 14). He also relied on the double entry for Marriage 4545/1967 that stated his mother's maiden name as Ambatzoglu and previous married name as Kyriakidou.
With his father's limited English, he would not have comprehended the meaning of "Previous Issue" and he would have interpreted that to include his wife's children. Throughout his teenage years and in adulthood, he had helped his father to understand official forms and documents. The error his father made on the applicant's birth certificate was repeated for Maria, as he did not realize a mistake had been made the first time around. The applicant firmly believed that the information provided was incorrect at the time. He affirms that he had made a mistake on the form. His sister Maria could substantiate that.
His father had not sought to correct the error on both birth certificates because he was unaware of the mistake he had made with regard to "Full siblings". Further, the mistake had not been realized by either the applicant or Maria throughout their lives because their birth certificates state "Previous Issue", not "Full Siblings". They had no reason to question the information because they shared a mother. The decision to correct his father's death certificate was the first time that they realized that the information presented under "Previous Issue living and deceased" in the birth certificate was incorrect.
Cross-examined by Ms Youkhanis on behalf of the respondent, the applicant said he had supplied the details for the death form for his father three or four days after his death, and the form had been completed by Olsen Funerals. He had read it and signed it but failed to pay much attention as he was greatly distressed and was not in the correct frame of mind. He had asked Olsen to copy the details from his mother's death certificate information form. At the time the family members were isolated because of the COVID - 19 restrictions and it had been his wife Christine who had pointed out the error.
When it was pointed out to him that his own birth certificate (id., 18, also part exhibit A3) showed Pantelis and Panagiotis as his siblings, he said he had not realized that it meant full siblings. He had not obtained his mother's marriage certificate from Greece, but her first marriage could have been at Thessaloniki. He did not know the date, only that his mother was aged 18 at the time. He had tried to obtain his siblings' birth certificates but had been unable to obtain the necessary consent from them as they were estranged. He also did not have any official documents about his mother's divorce.

Respondent's submissions

Ms Youkhanis relied on the respondent's written submissions, which after setting out the background of the case and the applicable law pointed out that the respondent relied on the death information form signed on 14 June 2022 by the applicant to register the death of the deceased and consequently issued the death certificate based on that information. Following the issuing of the death certificate, the applicant submitted that he had made an error in signing that form and Pantelis and Panagiotis were not the deceased's children but were the children of the applicant's mother from a past marriage.
In support of his application, the applicant relied on the marriage certificate of the deceased and Evdoxia dated 9 May 1967, the deceased's 1967 incoming passenger card where he is listed as unmarried (part exhibit A1), and Evdoxia's 1967 incoming passenger card (exhibit A2) in which she is listed as divorced.
The respondent pointed out that the form of information of birth for the applicant's sister Maria completed by the deceased gave details of the marriage between himself and the applicant's mother. The deceased states that they were married in Thessaloniki, Greece on 25 November 1951. In response to the section asking for the names of all the previous children of the marriage, the deceased provided Pantelis, Panagiotis and George (the applicant). The applicant submitted that 25 November 1951 is the date of his mother's first marriage and not of her marriage to the deceased. The applicant submits that his mother married the deceased on 9 May 1967 in Newtown, New South Wales.
On the birth certificates of both the applicant and Maria, Pantelis and Panagiotis are listed as siblings, that is, children from the marriage of the deceased and Evdoxia. The deceased confirmed that Pantelis and Panagiotis were children of his marriage to the applicant on two separate occasions, the births of the applicant and Maria, which was reflected in their birth certificates. At the time of their births, birth certificates were issued based on the information completed in a form of information of birth or still-birth. Because of the passage of time, the respondent does not currently hold the applicant's form of information of birth or still-birth.
The registry records, the respondent submitted, are historic documents and can ordinarily only be amended to reflect information that was correct at the time of the event. The respondent accepts, and provides for, a degree of flexibility to correct an entry when it is evident that an error was made. The decision to correct an entry will be based on the evidence provided to prove there was a material error when filling out a form. The respondent will also consider when the error was detected and the age of the applicant. The respondent noted that the applicant had pointed out that there was an element of a language barrier.
The respondent contended that in the present matter the material provided does not demonstrate on the balance of probabilities why the respondent should consider that the deceased did not intend to name Pantelis and Panagiotis as his children on two separate occasions. It was evident that Pantelis and Panagiotis had been listed as the applicant and Maria's full siblings on their birth certificates since birth and there had been no evidence to suggest why that issue had not been identified earlier in those significant documents. The respondent had not received sufficient evidence to confirm that Pantelis and Panagiotis were not children of the deceased.

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.
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 s 140 of 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]. Nevertheless, the civil standard of proof on the balance (preponderance) of probabilities as set out in s 140 is considered to be an acceptable guide to fact-finding.
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 change is in conformity with the most reliable information about the registrable event": Jack v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200, [113].
Section 42 of the BDM Act provides that a death is registered by the registrar's making an entry about the death in the register including the particulars required by the regulations. Clause 16(1) of the Births, Deaths and Marriages Registration Regulation 2017 provides that the particulars required include the following: (i) if the deceased had married, the date of marriage (or the age of the deceased at the date of marriage), the place of marriage and the full name (including, if applicable, the original surname) of his or her spouse (and the same particulars in relation to each marriage of the deceased if the deceased had married more than once)….

Respondent's case

The starting point for the consideration of the evidence is the death certificate for Anastasios Taranellos (exhibit R1, p 5) noting his date of death as 11 June 2022 and listing under the heading "Children":

Pantelis 69 Years
Panagiotis 66 Years
George 51 years
Maria 50 years.

Thus Pantelis and Panagiotis are listed in the death certificate as children of Anastasios and siblings of the applicant and Maria.
Next, the death information form signed by the applicant on 14 June 2022 (id., 14) under the heading "Children of Deceased" lists the names as follows: First Name Age Date of birth Pantelis Kiriakidou 69 7. 08. 1952 Panagiotis Kiriakidou 66 28. 08. 1955 George Taranaellos [sic] 61 4. 07. 1970 Maria Campbell-Davis 60 18. 10. 1971
Perhaps anomalously, there is a heading for "First Name" but none for the surname. The surnames are in fact given, though it may be noted that the name Kyriakidou is here spelt Kiriakidou. The two spellings appear to be used interchangeably.
Evdoxia's death certificate (exhibit R1, p 20) under the heading "Children" lists: "Pantelis 65 Years Panagiotis 62 Years George 48 Years Maria 46 Years".
Next, the birth information form for Maria (id., 17) has a heading "Previous issue" followed by another heading "Christian names (in full) of other children of marriage". The names and ages are listed as follows: PANTELIS 19 PANAGIOTIS 16 GEORGE 16 months.
This form was signed by Anastasios as father on 23 October 1971.
The birth information form for George, the applicant, no longer exists, but his birth certificate (id., 18) lists under the heading "Previous children of relationship" "Pantelis 18 years, Panagiotis 15".
Similarly, Maria's birth certificate (id., 19) under the heading "Previous children of relationship" lists: "Pantelis 19 years Panagiotis 16 George 1".
The internal review reasons (id., 16) point out that "Pantelis and Panagiotis are both listed as siblings on your birth record 66722/1970, and on your sister Maria's birth record 118502/1971. If you can provide copies of the birth certificates for Pantelis and Panagiotis confirming that Anastasios was not the father we can remove their names from the death registration". The applicant's efforts to obtain those birth certificates through a Greek law firm were unsuccessful (exhibit A1, annexure D).
There are thus six documents created under the BDM Act listing Pantelis and Panagiotis as children of Anastasios Taranellos. That must effectively raise a prima facie case or inference that his death certificate is in that respect correct as it stands.

Applicant's case

The evidence advanced in support of the application is partly documentary and partly oral. Anastasios's 1967 Commonwealth entry card (exhibit A1, annexure E) under the heading "Conjugal Condition" has the box marked "Never Married" ticked and all the other options crossed out.
Relevantly different is Evdoxia's 1967 entry card (exhibit A2 which) under the heading "Conjugal Condition" has the box marked "Divorced" ticked and the word "YES" added, the "Now Married" option being crossed out.
Next, the applicant tendered a document (exhibit A1, annexure B) headed "Marriages Search Results" for marriage 4546/1967 produced by the BDM website "familyhistory.bdm.nsw.gov.au/familyhistory/searchresult?19". Under the heading "Bride's Family Name(s)" the printout lists the following: "AMBATZOGLOU KYRIAKIDOU".
Thus the search results list Evdoxia's maiden name and what the applicant maintains was her married name before she divorced Mr Kyriakidou. There is in evidence no documentary material from Greece attesting to either her marriage to, or her divorce from, Mr Kyriakidou.
At the hearing the applicant said in evidence that his mother had told him that she had married a Mr Kyriakidou in Greece in the 1950s and there were two children, Pantelis and Panagiotis, to whom she always referred as his "half-brothers". After her divorce she emigrated to Australia with Anastasios, leaving the two boys in the care of family (possibly their father). He contended that Anastasios had erroneously listed Pantelis and Panagiotis as previous children in the applicant's and Maria's birth certificate forms as he did not understand the meaning of the phrases "Previous issue" or "of relationship". His father had mediocre English language skills and the applicant had often needed to translate official forms for him.
The applicant said the death certificate for Anastasios was incorrect because he had asked Olsen Funerals to copy any details they needed from his mother Evdoxia's death certificate, which correctly showed Pantelis and Panagiotis as her children, along with George and Maria (exhibit R1, p 20). At the time he had been very distressed and had not supplied the necessary information himself. Further, he had no family member with him to point out errors as he was isolated because of the COVID lockdowns.
The death information form he had signed on 14 June 2022 gave the surnames of Pantelis and Panagiotis as Kiriakidou, which was her surname in her first marriage, which was consistent with the Marriages Search Results document generated by the respondent. His efforts to obtain copies of the birth certificates of Pantelis and Panagiotis had not succeeded.

Evaluation

As was stated above, the respondent's evidence gives rise to a prima facie inference that the death certificate in issue is correct. It includes six official BDM records, including the death information form signed by the applicant on 14 June 2022, Evdoxia's death certificate and the birth certificates of the applicant and Maria.
On the other hand, there are significant gaps in the applicant's evidence. There are no copies of birth certificates for Pantelis and Panagiotis, but their absence has been adequately explained. There is no documentary evidence of Evdoxia's marriage to, and divorce from, Mr Kiriakidou in Greece. No explanation for the absence of that evidence was offered and it is hard to see any likely obstacle to obtaining it.
There is no official BDM marriage certificate for Anastasios and Evdoxia. The 1967 church marriage certificate may be presumed to be accurate, but it includes less information than the statutory record form. The applicant's evidence about his mother's account of her marriage to Mr Kyriakidos in Greece in the 1950s, her divorce and the birth of Pantelis and Panagiotis, who she called his "half-brothers", is hearsay. Though admissible, in the absence of any corroboration or material support its probative value is somewhat reduced.
The applicant does, however, adduce some significant pieces of evidence. First are the two 1967 Commonwealth entry cards showing Anastasios as never married and Evdoxia as divorced. These are official records of a significant event and have been produced from proper custody in the National Archives.
Then there are the Marriages Search Results for their marriage in 1967 showing the "Bride's Family Name(s)" as Ambatzoglou (her maiden name) and Kyriakidou. This is a record from official BDM sources and partly compensates for the absence of the full marriage certificate. The information it contains corresponds exactly with the applicant's narrative.
The applicant offered an explanation for the inclusion of the names of Pantelis and Panagiotis in the death information form for his father, showing the two as his children. As he was in a distressed state and had no family member present to assist him, he had asked Olsen Funerals simply to copy any details they needed from his mother Evdoxia's death certificate. That certificate correctly showed Pantelis and Panagiotis as her children.
The applicant tendered a Greek bank statement from Eurobank setting out the balances in a joint account in the names of Anastasios, Evdoxia, George and Maria (exhibit A4). The applicant pointed out that the names of Pantelis and Panagiotis were not included and submitted that it showed they were not regarded as children of that marriage. Although the statement seems to be of relatively recent vintage, it does not appear to be dated, but it is at least consistent with the applicant's case.
The applicant also noted the circumstance that when Evdoxia migrated to Australia in 1967, she left Pantelis and Panagiotis in Greece, probably in the custody of their father. It was submitted that she would be unlikely to have done that if they were offspring of her marriage to Anastasios. Further, the gap of 15 years between the births of Pantelis and Panagiotis on the one hand and George and Maria on the other suggested that they were effectively members of two successive families.
The applicant attributed his father's inclusion of the names of Pantelis and Panagiotis in the birth certificates of himself and Maria to language difficulties, notably in relation to the meaning of "Previous issue" and "of relationship". While that is plausible, there is another possible explanation that was not mentioned by the parties. In the "Form of Information of Birth or of Still-birth" for Maria (exhibit R1, p 17) completed by Anastasios on 23 October 1971, the section on details of the mother sets out her maiden surname (Abatzoglou), which was correct. Just under that, however, is a space marked "Previous married surname(s)" which is blank but has a hand-drawn line through it, making it appear as though she had no previous married surname.
While it is conceivable that Anastasios could have been confused by a possible ambiguity in terms such as "Previous issue" and "of relationship", it is much less likely that he would have misunderstood what was meant by his wife's "Previous married surname(s)". Possibly he may have had a personal motive for downplaying the fact of his wife's previous marriage and her divorce, but at all events he does appear to have been at best careless in his completion of official BDM forms. That could help to account for his putative errors in the applicant's and Maria's birth certificates, not least because those errors also tend to efface Evdoxia's first marriage.
Consideration of all the evidence leads to the conclusion that on the preponderance of probabilities the recording of Pantelis and Panagiotis as Anastasios's children in his death certificate was incorrect at the time it was done. Consequently the register should be corrected by deleting the names of Pantelis and Panagiotis as children from the death registration of Anastasios Taranellos, who died on 11 June 2022. The decision under review must be set aside. As Ms Youkhanis pointed out, this decision will necessarily entail in due course correcting the birth certificates of the applicant and Maria as well. Mrs Maria Campbell-Davis is not a party to these proceedings, but she was present at the hearing and indicated her support for the application.

Orders 1. Decision under review set aside. 2. The names Pantelis and Panagiotis are to be removed from the death registration of Anastasios Taranellos.

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

Amendments 25 October 2023 - Fathers name spelt incorrectly Orders (2) end of decision. Amendment made to Anastasios 25 October 2023 - Coversheet amended Atanasios to Anastasios 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: 25 October 2023

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