Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Charlwood v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 69 Hearing dates: 8 April 2019 Date of orders: 26 April 2019 Decision date: 26 April 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof GD Walker, Senior Member Decision: Decision under review affirmed.
Catchwords: BIRTHS, DEATHS AND MARRIAGES – birth registration - name change – parents’ “original surname[s]” – statutory interpretation – literal rule – ordinary meaning - purposive interpretation – legislative history.
WORDS AND PHRASES – “original surname” – “family name at birth”.Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Births and Deaths Registration Act 1836 (UK)
Births, Deaths and Marriages Registration Act 1995 (NSW)
Births, Deaths and Marriages Registration Regulation 2017 (NSW)
Marriage Act 1753 (GBR).Cases Cited: Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129;
Briginshaw v Briginshaw (1938) 60 CLR 316;
Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 42;
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;
Manly Council v Malouf [2004] NSWCA 299, (2004) 61 NSWLR 394;
McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354;
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10;
Norrie v New South Wales Registrar of Births, Deaths and Marriages [2013] NSWCA 145;
R v Peters (1886) 16 QBD 636;
Reid v Reid [1979] 1 NZLR 572;
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10.Texts Cited: D Pearce, R Geddes, Statutory Interpretation in Australia, 8th edn., Lexis Nexis Butterworths 2014. Category: Principal judgment Parties: Samuel E & Clare Charlwood (Applicants)
Registrar of Births, Deaths and Marriages (Respondent)Representation: Solicitors:
S E & C Charlwood (Self Represented)(Applicants)
Office of General Counsel, Department of Justice (Respondent)
File Number(s): 2018/00352478 Publication restriction: Nil
reasons for decision
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The applicants Mr Samuel Charlwood and Mrs Clare Charlwood applied to this tribunal on 16 November 2018 for review of a decision made by the respondent on 17 October 2018 declining their request to change their original surnames shown on their son’s birth certificate from their names at birth to the family names recorded on their birth certificates, as a result of changes of name of both applicants registered before their son’s birth (exhibit R1, p 18). That decision was affirmed following an internal review on 17 January 2019.
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The applicants were married in 2015 and their son B*** J*** Charlwood was born on 4 August 2017 (as he is a minor, I will refer to him for privacy reasons only by his initials, BJ). His birth certificate, under the heading “Family Name at Birth”, recorded the surnames Hall and Fairall for his father and mother respectively as their surnames at birth.
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On 21 March 2018, the applicants wrote to the respondent about the birth certificate, saying that “it has come to our attention that there are two errors…
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- AGLC
- Charlwood v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 69
- Case
- [2019] NSWCATAD 69
- Decision Date
CaseChat Overview and Summary
The central legal issue was the interpretation of the phrase "original surname[s]" in the relevant legislation. Specifically, the court had to determine whether this phrase referred to the surnames the parents had at birth, or if it encompassed any surname the parents had at the time of the child's birth. The court was also required to consider the purpose of the statute in question and whether a literal or purposive interpretation was more appropriate.
The court examined the literal meaning of "original surname[s]" and found it to refer to the surnames the parents had at their own birth. However, the court also considered a purposive interpretation, which aimed to give effect to the legislative intent of ensuring a clear lineage and avoiding potential identity issues. After weighing both interpretations, the court concluded that the literal interpretation was more consistent with the statutory language. Furthermore, the court found that the legislative history supported the narrower interpretation, as it aimed to maintain a clear link between the child's name and the parents' identities at birth.
Ultimately, the court affirmed the Registrar's decision, holding that the term "original surname[s]" did not extend to any surname the parents had at the time of the child's birth. The court's decision underscored the importance of adhering to the literal meaning of statutory language, unless a purposive interpretation was clearly warranted by the legislative intent.
Orders
Orders of the court
Decision under review affirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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