Ward v NSW Registry of Births Deaths and Marriages [2015] NSWCATAD 86 | Case summary

NCAT Administrative and Equal Opportunity|2015-02-25

Introduction

Mrs Ward has applied for a review of a decision made on internal review by the Registrar of Birth Death and Marriages to refuse to amend the death certificate of Bridget Ellen Brown (Bridget) who died on 18 October 1909. Bridget's birth surname was Dwyer.
That death certificate records that Bridget was married twice, to John Dwyer and to John Brown. The places of those marriages, her age at the time of each marriage, and their respective lengths are recorded as unknown. The death certificate records that she had one son, Michael, Dwyer, who was aged 53 at the time of her death. He was the informant of her death.
Mrs Ward sought to amend that death certificate by removing the reference to a marriage to John Dwyer, and inserting a record of a de facto relationship between Bridget and John Mylacharaine. She believes that this was the true situation, and that the record of Bridget being married to John Dwyer is a convenient ruse, adopted to spare Michael Dwyer the difficulties associated with having been born out of wedlock, and at the same time consistent with his surname being his mother's maiden name.
The Registrar was not persuaded on the available evidence that Bridget's death certificate contained errors. As a consequence she refused to amend it.
Mrs Ward then exercised her right to seek administrative review of that decision by the Tribunal.

Mrs Ward's case

Mrs Ward points to a number of factors which inform her conclusion that Bridget was never married to John Dwyer, and that Michael Dwyer is the person whose birth was recorded under the name Michael Mylacharaine. They are that: 1. Mrs Ward has been unable to locate a record of a marriage between Bridget and John Dwyer. 2. In her will Bridget appointed her son Michael Dwyer as her executor. 3. In an affidavit filed in the Supreme Court when obtaining probate of Bridget's estate Michael Dwyer swore an affidavit in which he said he was born on 9 December 1854. 4. There is a record of a catholic baptism of a boy called Michael Mylacharaine, who was born on 9 December 1854 (the same birthdate as that given by Michael Dwyer), which took place in the Parish of Hartley on 27 January 1855. The father and mother of that child are recorded as John Mylacharaine and Bridget Dwyer. 5. The record of the marriage between Bridget and John Brown which took place on 3 November 1858, shows that she was "a spinster" at that time, from which Mrs Ward infers that she had not been previously married. 6. Mrs Ward has been unable to locate any record of a marriage between John Mylacharaine and Bridget. 7. Michael Dwyer died on 15 My 1930. His son Claude, then aged 32 was the informant of his death. The death certificate records that Michael's father was John Dwyer, but shows his grandmother as "unknown."
Mrs Ward's theory is also informed by her understanding that John Mylacharaine came from a well to do Presbyterian family, while Bridget came from a poor Catholic background. The tensions between persons of those faiths at the time and the societal disapproval of relationships, and of children born, outside wedlock also informs her thinking. She argues that the documentary records demonstrate that John Mylacharaine and Bridget had a child born on 9 December 1854, named Michael Mylacharaine. She proposes that the same Bridget subsequently married John Brown in December 1858, when her son was aged nearly 4. She suggests that the child was known by her surname Dwyer (Bridget's maiden name), and that the suggestion that Bridget had previously been married to John Dwyer was a means of sparing her son from the taint of being born out of wedlock. This explains why on Bridget's death Michael gave information to the effect that she had been married to John Dwyer as well as to John Brown, and that John Dwyer was his father.

The Registrar's case

The Registrar acknowledges that Mrs Ward's research has exposed real questions as to the reliability of the records and raised legitimate questions as to the accuracy of statements in Bridget Brown's death certificate. The reasons for the Registrar's refusal to amend the death certificate by removing the notation of the marriage between Bridget Brown and John Dwyer include: 1. That the records, despite their imperfections, are the best available evidence of what occurred; 2. That "in practical terms, the applicant bears the onus of proving the records wrong". 3. That the conclusions regarding Bridget giving birth to Michael Dwyer out of wedlock should not be drawn lightly. 4. Both Michael Dwyer (in his mother's death certificate) and Claude Dwyer (in Michael's death certificate) provided information that John Dwyer was Michael's father. The evidentiary threshold to conclude they were mistaken should be high. 5. Bridget's death certificate shows Michael's age as then being 52. This would mean he was born between 19 October 1855 and 18 October 1856. As a result he is unlikely to be the same person as Michael Mylacharaine who was born on 9 December 1854. In making this submission the Registrar acknowledged that Michael's age, as shown on his death certificate, is consistent with him being born on 9 December 1854. 6. Because Bridget signed her certificate of marriage with John Brown with an "X" little weight should be placed on her description in that document as a spinster.

Consideration

Any change to a registerable event must be in conformity with the most reliable information available to the Registrar.
In the present case Mrs Ward relies on a valid chain of reasoning to request two changes to Bridget Brown's death certificate. They are - 1. The removal of the reference to a marriage between Bridget and John Dwyer; 2. Inserting a record of a de facto relationship between Bridget and John Mylacharaine
Central to Mrs Ward's reasoning is the record of the baptism of Michael Mylacharaine, which records that he was born 9 December 1854, and that his parents were John Mylacharaine and Bridget Dwyer. Mrs Ward points to the fact that in his affidavit as executor of Bridget's estate Michael Dwyer gave his date of birth as 9 December 1854. This she argues demonstrates that Michael Mylacharaine and Michael Dwyer are one in the same person.
Based on acceptance of this proposition, she then says that as a consequence Bridget could not have been married to John Dwyer. In aid of this she relies on the fact that she has been unable to find any record of a marriage between John Dwyer and Bridget, nor a birth certificate for Michael Dwyer. Mrs Ward's reasoning offers an explanation that covers all the gaps in the official records and provides a neat explanation of what occurred.
The central difficulty I have with Mrs Ward's reasoning is that it involves elements of conjecture and speculation that are inconsistent with the information about Bridget given by Michael Dwyer himself. It is also unclear to me whether the baptismal record that shows John Mylacharaine as Michael Mylacharaine's father, was made with or without John Mylacharaine's consent. As a consequence I have concerns as to whether that document can be viewed as an admission of paternity by John Mylacharaine. This effects the weight to be given to that document.
Also central to Mrs Ward's thesis is an assumption that the Bridget Dwyer referred to in Michael Mylacharaine's baptism record is the same person as the Bridget who married John Brown and who died on 18 October 1909. There is no information before me which verifies that fact.
I agree with the Registrar that Michael Dwyer, as Bridget's only son, is to be viewed as the most reliable source of information with respect to his mother's life, including the fact that she was married to John Dwyer. Mrs Ward's counter to this is that Michael may have deliberately lied about his mother being married to John Dwyer in order to protect both of their reputations, or that he may have been led to wrongly believe that John Dwyer was his father. Mrs Ward may or may not be correct in this. Because the events are so long in the past we will never, in the absence of the discovery of new documentary evidence, know.
Mrs Ward has raised real and legitimate questions as to the accuracy of Bridget's death certificate. Her theory may or may not be correct. In my opinion, however, the most reliable source of information about Bridget remains the information provided by her son Michael in her death certificate. The Registrar's obligation is to ensure that the information in the register is in conformity with the most reliable information available. This is presently the case.
One further point needs to be made. Mrs Ward asked that a de facto relationship between Bridget Brown and Michael Mylacharaine be noted on her death certificate. If I accepted that the information in Bridget's death certificate provided by Michael was not the most reliable source, and instead looked elsewhere: then there is no information to suggest that Bridget Brown and Michael Mylacharaine ever had a relationship as a couple living together. They did not live in a demonstrable error facto relationship.

Conclusion

It follows that I am satisfied that the correct and preferable decision in this case is to affirm the decision of the Registrar to decline to amend the register. 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: 29 April 2015

Ward v NSW Registry of Births Deaths and Marriages

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