Avery v Registrar, Births Deaths and Marriages

[2013] NSWADT 298

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Avery v Registrar, Births Deaths and Marriages [2013] NSWADT 298

Hearing dates:

17 July 2013

Decision date:

24 December 2013

Jurisdiction:

General Division

Before:

P H Molony, Judicial Member

Decision:

(1) Affirm the Registrar's decision not to cancel the 2007 entry in the Register with respect to Ms Avery's change of name; and

(2) Affirm the decision to refuse to issue a certificate relating to Ms Avery's 1997 change of name in the form she requests.

Catchwords:

Births, Death and Marriage Registration - change of name - cancellation of - change of name certificate - contents of

Legislation Cited:

Administrative Decision Tribunal Act 1997
Births, Deaths and Marriages Registration Act 1995
Births, Deaths and Marriages Regulation 2011

Cases Cited:

Avery v Registry of Births, Deaths and Marriages [2008] NSWADTAP 68.
Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72
Avery v Registrar, Births Deaths and Marriages [2010] HCASL 212.
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Category:

Principal judgment

Parties:

Stephanie Tatiana Patricia Avery (Applicant)
Registrar, Births Deaths and Marriages (Respondent)

Representation:

S Avery (Applicant in person)
Crown Solicitors Office (Respondent)

File Number(s):

133081

REasons for decision

Background

1. This application involves a complex history dealing with matters associated with the applicant's identity. She identifies herself as Stephanie Tatiana Patricia Avery.

1. In order to avoid putting on the record numerous facts dealing with Ms Avery's identity I will adopt the device used in previous proceedings relating to Ms Avery of referring to her former names using synonyms. As a consequence, for the purpose of these reasons, I will refer to her name at birth as being Tatiana Isabella Yurovich and her name, when she married, as Tatiana Isabella Orlov.

1. This is not the first time the Tribunal has heard proceeding involving the same parties with respect to Ms Avery's names. There is a long history of events relating to issues she has had with the Registrar of Births, Deaths and Marriages (the Registrar), which I will briefly outline.

1. In 1997, the applicant applied to register a change of name from her married name to Stephanie Tatiana Patricia Avery. The Registrar registered that change of name. Ms Avery subsequently obtained her Australian Citizenship in that name.

1. In 2007, Ms Avery applied to register a change of name from Stephanie Tatiana Patricia Avery to her birth name, Tatiana Isabella Yurovich. The Registrar approved this change of name and issued a change of name certificate recording the registration of that change of name. In that certificate the Registrar identified that Ms Avery had had four former names: the first was her name at birth; the second was Stephanie Tatiana Avery; the third was her married name; and the fourth - which was included in the endorsement field rather than the former names field -Stephanie Tatiana Patricia Avery.

1. Since then Ms Avery's name has been recorded on the register as Tatiana Isabella Yurovich.

1. Ms Avery was extremely upset at the form of the certificate and has consistently argued that it prevents her from being able to satisfactorily prove her chain of identity by (a) including a name she says she has never had, i.e. Stephanie Tatiana Avery; and (b) not recording which of her former names was the most recent.

1. Ms Avery unsuccessfully applied to this Tribunal to review the decision of the Registrar to register her change of name in accordance with her 2007 application. She unsuccessfully appealed that decision to an Appeal Panel of this Tribunal in Avery v Registry of Births, Deaths and Marriages [2008] NSWADTAP 68. From there she appealed to the NSW Court of Appeal, but was again unsuccessful: see Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72. Ms Avery did not succeed in obtaining special leave to appeal the Court of Appeal's decision to the High Court: see Avery v Registrar, Births Deaths and Marriages [2010] HCASL 212.

1. It is clear that despite her many unsuccessful appeals Ms Avery does not accept the decisions that have been made. In her affidavit in support of her present application she said -

6. I do not accept the allocated identity details proposed to the change of name entry [in 2007] and will not accept arbitrated for me identity history record made in the BDM in the change of name entry ...

7. I do not accept and will not accept the change of name certificate with the current presentation from NSW BDM Registry which does not identify me and does not provide evidence of a registrable event on that date.

1. There has been a large and continuing volume of correspondent between Ms Avery, the Registrar and others in the course of which, in January 2013, Ms Avery requested that the Registrar cancel the 2007 registration of her change of name to her birth name, Tatiana Isabella Yurovich. Ms Avery says that since 2007 she has never used the name Tatiana Isabella Yurovich and that she has withdrawn her statutory declaration dated 24 December 2012. In that declaration she declared that she was changing her name to Tatiana Isabella Yurovich, and that the name Stephanie Tatiana Patricia Avery would not be used.

1. Ms Avery has also applied for the issue of an official document registering her 1997 change of name from her married name, Tatiana Isabella Orlov to Stephanie Tatiana Patricia Avery.

1. The Registrar agrees that those requests are deemed to have been refused. As a consequence Ms Avery sought review in this Tribunal.

1. The matter came before me for hearing on 17 July 2013. The Registrar's position at hearing was to refuse to cancel the 2007 change of name entry in the Register, arguing that there is no power to do so. The Registrar was prepared to issue a certificate which certifies that Tatiana Isabella Orlov and Stephanie Tatiana Patricia Avery are registered as former names of Ms Avery. Indeed such a certificate was the subject of the proceedings considered by the Court of Appeal The Registrar argues that the Register contains no other details relating to the 1997 change of name and that any certificate issued certifying the contents of the Register, ipso facto, can contain no more the Register does.

Material before the Tribunal

1. In considering this matter I have had regard to the following material relied on by the parties:

• The application for review and attachments
• The affidavit of Stephanie Tatiana Patricia Avery affirmed on 9 April 2013.
• Ms Avery's submissions.
• Ms Avery's bundle of documents.
• The s 58 documents filed by the Registrar.
• The Registrar's written submissions.

1. In addition both Ms Avery and Mr Della-Pozza made oral submissions that I have considered.

1. It is important to bear in mind that the parties and the Tribunal are bound by the decision of the Court of Appeal in Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72. This is not a forum in which those issues can be re-litigated. Insofar as I consider that Ms Avery's submissions invited me to embark on that path I have eschewed them.

The relevant legislation

1. Central to an understanding of the legislative scheme with respect to changes of names are a number of definitions contained in s 4 of the Births, Deaths and Marriages Registration Act 1995 (the BDMR Act). They are -

change of name includes an addition, omission or substitution.

..

registrable event means a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage.

1. Part 5 of the BDMR Act is concerned with changes of name. Section 25 provides that -

A person's name may be changed by registration of the change under this Part.

1. Relevantly, section 31(1)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.

1. Clause 8 of the Births, Deaths and Marriages Regulation 2011 (the Regulation) prescribes the particulars required -

(1) For the purposes of section 31 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) (b) any other name used by the person.

1. The Registrar has a limited power to correct the Register. Section 31G provides -

(1) The Registrar may correct the Register under section 45 if a change of name of a person has been registered in contravention of this Division.

(2) This section does not limit the power of the Registrar under section 45 to correct the Register.

1. Part 8 of the Act is concerned with The Register. Importantly s 43(1) requires the Registrar to maintain a register of registrable events. Sub-s (2) provides that -

(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.

1. Section 45 is in Division 3 of Part 8 and is concerned with correction of the Register by the Registrar. It provides -

(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.

1. Section 44, in Division 2 of Part 8, provides that -

(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.

(2) The Registrar may, by notice given to a person who may be able to provide information relevant to an inquiry under this section, require the person to answer specified questions or to provide other information within a time and manner specified in the notice.

(3) A person who fails, without reasonable excuse, to comply with a notice under subsection (2) is guilty of an offence.

Maximum penalty: 10 penalty units.

1. Section 49 of the Act is concerned with the issue of certificates. It relevantly provides -

(1) On completing a search of the Register, the Registrar may issue a certificate:

(a) certifying particulars contained in an entry, or

(b) certifying that no entry was located in the Register about the relevant registrable event.

(2) A certificate under subsection (1) (a) is admissible in legal proceedings as evidence of:

(a) the entry to which the certificate relates, and

(b) the facts recorded in the entry.

1. The power of this Tribunal to review decisions of the Registrar is found in s 56, part 9, of the Act. it says -

(1) A person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Administrative Decisions Tribunal for a review of the decision.

(2) This section does not give a right of review of a decision of the Registrar to refuse to register a change of name that was made only because the Commissioner of Corrective Services or the Commissioner of Police refused to give approval under section 31F.

1. Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) 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.

Consideration

1. In reliance on s 45(3) Ms Avery submits that the Registrar has a general power to correct an entry in the Register by cancelling it. This she says is what the Registrar should do with respect to her 2007 change of name form Stephanie Tatiana Patricia Avery to Tatiana Isabella Yurovich. The Registrar counters that he does not have the power to do so.

1. I am satisfied that the Registrar does not have a general and unrestrained power to cancel an entry in the Register as and when he sees fit. To the contrary, the circumstances in which the Registrar may use the powers are set out in s 45. The Registrar's powers may only be used in the circumstances set out in s 45(1) and (2). There are:

• To reflect a finding made by an inquiry under s 44 (s 45(1)(a) - there has been no such inquiry.
• To bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event ( s 45(1)(b)) - this is discussed below.
• When required to do so by a Court (s 45(2)). It appears the Registrar did so, on an interim basis, with respect to the 2007 certificate when the Tribunal made a conditional stay order under s 60 of the ADTA in Ms Avery's initial proceedings. That order has since lapsed and the original entry reinstated.

1. When one considers the evidence with respect to Ms Avery's 2007 change of name from Stephanie Tatiana Patricia Avery to Tatiana Isabella Yurovich, it is apparent that her dissatisfaction with the form of certificate issued by the Registrar with respect to that event, (and the difficulties she says are attendant on it) have caused her resile for her stated intention to take up the name Tatiana Isabella Yurovich and not use the name Stephanie Tatiana Patricia Avery. That intention was verified by her on statutory declaration without any express conditions or qualifications. The Registrar accepted that unqualified declaration as evidence of Ms Avery's intention to change her name and registered the change accordingly.

1. Ms Avery's subsequent attempts to renounce her statutory declaration and disavow her stated intention, do not change the fact of what occurred i.e. that she provided evidence of her intention to change her name and acting on that intention the Registrar recorded a change of her name to Tatiana Isabella Yurovich. The most reliable information available as to what occurred demonstrates that Ms Avery changed her name to Tatiana Isabella Yurovich.

1. It is not a change that the Registrar has power to cancel.

1. With respect to Ms Avery's request that the Registrar now issue her with a change of name certificate with respect to her 1997 change of name from Tatiana Isabella Orlov to Stephanie Tatiana Patricia Avery, it is important to understand that this is an historical change of name, that has been supplanted by her registered change of name from Stephanie Tatiana Patricia Avery to Tatiana Isabella Yurovich in 2007.

1. I accept that the entry that now appears in the Register shows that Ms Avery's present registered name is Tatiana Isabella Yurovich and that her former names are -

• Tatiana Isabella Yurovich, her birth name;
• Tatiana Isabella Orlov;
• Stephanie Tatiana Avery ; and
• Stephanie Tatiana Patricia Avery.

The Register does not contain, and clause 8 of the Regulation does not require it to contain, information as to what names were changed in 1997, before the most recent name change. Therefore, any search of the Register conducted by the Registrar since the 2007 change of name will not discover the information Ms Avery wants the Registrar to include in a certificate.

1. I follows that the Registrar correctly refused to issue Ms Avery with a certificate relating to the1997 change of name in the form she seeks.

1. It should also be noted that:

• The Registrar has offered to provide Ms Avery with a letter outlining her change of name history.
• Ms Avery is in possession of a change of name certificate dated 6 December 2007 with respect to her 2007 change of name to Stephanie Tatiana Patricia Avery. It shows her former names as Tatiana Isabella Yurovich and Tatiana Isabella Orlov.

1. It follows from all of the above that I consider that the correct and preferable decisions in this case are to:

(1) Affirm the Registrar's decision not to cancel the 2007 entry in the Register with respect to Ms Avery's change of name; and

(2) Affirm the decision to refuse to issue a certificate relating to Ms Avery's 1997 change of name in the form she requests.

Amendments : 13 August 2014

(1) Paragraph 10 should be amended to read:

There has been a large and continuing volume of correspondence between Ms Avery, the Registrar and others in the course of which, in January 2013, Ms Avery requested that the Registrar cancel the 2007 registration of her change of name to her married name Tatiana Isabella Orlov. Ms Avery says that since 2007 she has never used the name Tatiana Isabella Orlov and that she has withdrawn her statutory declaration dated 10 December 2007. In that declaration she declared that she was changing her name to Tatiana Isabella Orlov, and that the name Stephanie Tatiana Patricia Avery would not be used.

(2) Where the name Tatiana Isabella Yurovich appears in [31] of the Tribunal's decision, it should be replaced with the name Tatiana Isabella Orlov.

(3) Where the name Stephanie Tatiana Patricia Avery appears at [36], it should be replaced with the name Tatiana Isabella Orlov.

I hereby certify that this is a true and accurate record of the amendments to the reasons for decision of the Civil and Administrative Decisions Tribunal.

Registrar

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Decision last updated: 15 August 2014