Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ward v NSW Registry of Births Deaths and Marriages [2015] NSWCATAD 86 Hearing dates: 25 February 2015 Decision date: 29 April 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: P Molony, Senior Member Decision: The Tribunal affirms the decision of the Registrar not to amend the register Catchwords: Administrative Review - Deaths Registration –- application to amend the register – power to amend – Tribunal not satisfied that proposed change is in conformity with the most reliable information about the registerable event – decision of Registrar affirmed Legislation Cited: Administrative Decisions Review Act 1997 Births, Deaths and Marriages Registration Act 1995 Births, Deaths and Marriages Registration Regulation 2011 Interpretation Act 1987 Cases Cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Category: Principal judgment Parties: Beverley Anne Ward (Applicant) NSW Registry of Births Deaths and Marriages (Respondent) Representation: Solicitors: B Ward (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1410660 REASONS FOR DECISION Introduction 1. 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. 2. 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. 3. 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. 4. The Registrar was not persuaded on the available evidence that Bridget's death certificate contained errors. As a consequence she refused to amend it. 5. Mrs Ward then exercised her right to seek administrative review of that decision by the Tribunal. The legislation 1. The Register is required to maintain a register or registers of registrable events. Section 43 of the Births, Deaths and Marriages Registration Act 1995 provides: "(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. A "Registrable event" is. defined by s. 4 to mean: "a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage." 1. A "Registrable event" is. defined by s. 4 to mean: "a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage." 2. The Registrar registers a death under s 42 by "making an entry about the death in the Register including the particulars required by the regulations." Clause 15 of the Births, Deaths and Marriages Registration Regulation 2011 provides – "For the purposes of section 42 of the Act, the following particulars are required: (a) the date and place of death of the deceased, (b) the sex, date of birth (or age at death) and place of birth of the deceased, (c) the usual occupation of the deceased before death and whether or not the deceased was a pensioner or was retired immediately before death, (d) the date of disposal of the remains of the deceased, (e) the full name and business address of the funeral director or other person who arranged for the disposal of the remains, (f) if the deceased was born outside Australia, the period of residence in Australia of the deceased before death, (g) whether or not the deceased was of Aboriginal or Torres Strait Islander origin, (h) whether, immediately before death, the deceased was married, divorced, widowed or in a de facto relationship or had never married, (i) if the deceased had married, the date of marriage (or 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 such particulars in relation to each marriage of the deceased if the deceased had married more than once), (j) the full name (including, if applicable, the original surname) of any de facto partner of the deceased, (k) the full names, sex and date of birth (or age) of the children (if any) of the deceased (including deceased children), (l) the full name (including, if applicable, the original surname) and occupation of each parent of the deceased." 1. "De facto relationship" is defined in s 21C(2) of the Interpretation Act 1987 – For the purposes of any Act or instrument, a person is in a de facto relationship with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. 1. The Registrar's power to correct the Register is contained in s 45 of the Act – "(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 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 registerable event. 1. Section 56 provides that persons dissatisfied with a decision of the Registrar may apply for administrative review under the Administrative Decisions Review Act 1997. Section 63 of that Act says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Mrs Ward's case 1. 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." 1. 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 1. 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 1. Any change to a registerable event must be in conformity with the most reliable information available to the Registrar. 2. 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 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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 1. 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