Garrick v NSW Registry of Births, Deaths and Marriages

[2017] NSWCATAD 306

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Garrick v NSW Registry of Births, Deaths and Marriages [2017] NSWCATAD 306
Hearing dates:	25 September 2017
Date of orders:	23 October 2017
Decision date:	23 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. The time for lodging the application is extended to 11 April 2017. 2. The decision of the Registrar of Births, Deaths and Marriages not to ‘correct’ the Death Certificate of Jayra Garrick is affirmed.
Catchwords:	MERITS REVIEW – where mother of deceased applied for Death Certificate to be ‘corrected’ to change the deceased’s marital status from ‘de facto’ to ‘single’ – where deceased and her partner had argued 6 days before the deceased’s death – whether correct and preferable decision is to change the Register
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), s 63 Births, Deaths and Marriages Registration Act 1995 (NSW), s 4, 42, 45(1)(b), s 56 Births, Deaths and Marriages Registration Regulation 2001 (NSW), cl 9(h) Interpretation Act 1987 (NSW), s 21C
Category:	Principal judgment
Parties:	Giovanna Garrick (Applicant) Registrar of Births, Deaths and Marriages (First Respondent) Jarryd Saaghy (Second Respondent)
Representation:	Solicitors: Uther Webster & Evans (Applicant) A Gilroy (Office of the General Counsel, Department of Justice) (First Respondent) Second Respondent (self-represented)
File Number(s):	2017/00112359
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. The tragic circumstances of this case are that Ms Jayra Garrick committed suicide on Tuesday 17 May 2016. Her partner, Mr Saaghy, provided information for the completion of the death certificate. That information included that, as at the date of death, he was in a de facto relationship with Ms Garrick. Ms Garrick’s mother, Giovanna Garrick, applied to the Registrar of Births, Deaths and Marriages for that information to be corrected. She says that although Mr Saaghy had been in a de facto relationship with her daughter before she died, he ended the relationship on Saturday 14 May 2016, 4 days before her death.

2. The main issue in these proceedings is whether Ms Garrick’s marital status immediately before her death should be recorded as “single” or “de facto”. There is no legal significance to any changes to the entries on the death certificate although I appreciate that it is personally significant for Ms Giovanna Garrick and for Mr Saaghy. For the reasons I give below the Registrar decision should be affirmed.

3. The application was filed out of time. Ms Giovanna Garrick says she was under considerable stress due to the death of her daughter and her own medical issues. She says she only recently found a solicitor who was prepared to represent her. There was no objection to the acceptance of the application out of time. I extend the time for the filing of the application to 11 April 2017.

The death certificate

4. Relevant extracts from the death certificate are set out below. I have included the corrections the applicant seeks in brackets and italics. In particular, under the heading “Deceased,’ the word “de facto” be changed to “single”; under the heading “Marriages”, the words “1 year and 4 months” be added after the word “de facto”; and under the heading “Informant”, the word “de facto” be changed to “friend”.

1 DECEASED

Family Name

Given Name(s)

Date of Death

Place of Death

Sex and Age

Place of Birth

Period of Residence

Place of Residence

Usual Occupation

Marital Status at Date of Death

Garrick

Jayra

17 May 2016

Home, (address deleted)

Female 27 years

Sydney, NSW

Life

(address deleted)

Vet Nurse

De facto (single)

2 MARRIAGE(S)

Place of Marriage

Age when Married

Full Name of Spouse

De facto (1 year & 4 months)

23 years

Jarryd Jason Saaghy

7 INFORMANT

Name

Address

Relationship to deceased

Jarryd Jason Saaghy

(address deleted)

De facto (friend)

Relevant law

5. A person’s death must be registered: Births, Deaths and Marriages Registration Act 1995 (NSW) (BD & MR Act), s 4 (definition of registrable event). “The Registrar registers a death by making an entry about the death in the Register including the particulars required by the regulations”: BD & MR Act, s 42(1). The regulations provide that “the marital status of the deceased immediately before death” is information that is required from a funeral director or other person who arranges for the disposal of human remains”: Births, Deaths and Marriages Registration Regulation 2001 (NSW), cl 9(h).

6. The term “marital status” is not defined in the legislation but I understand that the Registrar includes information about whether a person was married, single or in a de facto relationship on the Register. None of these terms is defined in the legislation but the parties agreed that I should apply the definition of de facto relationships in s 21C of the Interpretation Act 1987 (NSW):

21C References to de facto partners and de facto relationships

(1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if:

(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or

(b) the person is in a de facto relationship with the other person.

(2) Meaning of "de facto relationship" 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.

(3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of their common residence,

(c) whether a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

7. Based on this definition, to be in a de facto relationship, the couple must not be married to one another or related by family and must “have a relationship as a couple living together”. All the circumstances of the relationship are to be taken into account including those listed in s 21C(3) when determining whether two people “have a relationship as a couple”.

8. The Registrar’s power to correct the Register is in s 45(1)(b) of the BD & MR Act:

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.

9. A person who is dissatisfied with a decision of the Registrar, including a decision not to correct the Register, may apply to the Tribunal for an administrative review of that decision: BD & MR Act, s 56. The Tribunal’s role is to “decide what the correct and preferable decision is having regard to” the factual material and the law: Administrative Decisions Review Act 1997 (NSW), s 63(1).

The relationship

10. There was no dispute that Ms Garrick and Mr Saaghy were in a de facto relationship at least until Saturday 14 May 2016. They lived together in a property that was in their joint names, they had joint bank accounts and planned to get married. They had temporarily separated on two occasions for approximately two to three weeks between 2013 and May 2014. There was also some evidence about their sexual relationship.

11. Based on this evidence, and the concession by Ms Giovanna Garrick, I find that Ms Garrick and Mr Saaghy were in a de facto relationship for at least 1 year and 4 months. But the issue is not whether they were in a de facto relationship, but whether that relationship ended some time after 14 May 2016. If it did, the issue is whether the Registrar should exercise the discretion to ‘correct’ the death certificate.

Should Ms Garrick’s marital status be recorded as de facto or single on her death certificate?

12. Ms Garrick and Mr Saaghy were living together immediately before Ms Garrick’s death. That part of the definition of de facto relationship in s 21C of the Interpretation Act was satisfied at that time. Whether or not they “had a relationship as a couple” at that time depends on all the circumstances of the relationship including those listed in s 21C(3). The most critical circumstance is whether the relationship had come to an end in those 4 days.

13. The most reliable and relevant evidence of the status of the relationship immediately before Ms Garrick’s death is the text messages that she sent to Mr Saaghy on the day she died. At 8.57 am she sent the following text:

Are you intentionally pyshing me away so i break up with you and then you don’t have to break up with me and you can have a guilt free conscance?

14. This text suggests that Ms Garrick suspected that Mr Saaghy was thinking about breaking up with her.

15. At 9.51 am Ms Garrick wrote:

Okay you win.

I will move out today. You can have everything i don’t want anything. Dispose of anything i leave behind. I won’t come back for it. I’ll need a bit of money for petrol but you can keep the rest.

16. This text suggests that Ms Garrick had decided to move out and end the relationship.

17. At 2.08 pm Ms Garrick wrote:

K so usually I give you like a week to process shit. And I know ur working and this is the furthest thing from your mind right now but I am crushed as fuck and seriously ready to just dissappear forever.

Can you please stop playing games and just say something? Otherwise i will take your silence as you don’t care and you don’t want to be with me.

18. This text suggests that Ms Garrick had changed her mind about moving out and was giving Mr Saaghy another opportunity to tell her how he felt about the relationship.

19. The screen shot of the final text message does not contain a time but Mr Saaghy gave evidence that the final text message was sent to him at 2.30 pm:

Seriously it does not take much time to txt me something like ‘everything is okay we will talk on whichever day’ or ‘I have had enough I don’t love you anymore.’ … it takes two seconds … nothing excuses you ignoring me. ... ignoring me just increases me insecurities makes me feel rejected and unloved and definately not a priority. this feeling of not feeling wanted by you has been going on since Thursday. I’m either going to neck myself or move out if this goes on for much longer.

20. This text suggests that Ms Garrick was giving Mr Saaghy a final opportunity to respond.

21. Mr Saaghy returned home at 5.30 pm on Tuesday 17 May 2016 by which time Ms Garrick had committed suicide. Mr Saaghy’s evidence was that the couple had argued on Thursday 12 May 2016 and that he did not respond to any of Ms Garrick’s messages or phone calls after that time. According to Mr Saaghy, they did not speak again after Thursday night. He was ‘on call’ at work and spent very little time at home from Thursday 12 May until Tuesday 17 May 2016. The contemporaneous text messages and Mr Saaghy’s evidence are consistent and strongly support a finding that Ms Garrick was very upset after the argument and wanted Mr Saaghy to talk to her about how he felt. That evidence also strongly supports a finding that Mr Saaghy did not respond to her text messages or phone calls and did not speak to her.

22. Ms Giovanni Garrick says that the Tribunal should find that Mr Saaghy ended the relationship sometime on or before Saturday 14 May 2016. The evidence in support of that version of events comes from conversations Ms Giovanni Garrick says she had with her daughter and a conversation Mr Saaghy had with Ms Garrick’s step father, Mr Leon Banas.

23. Ms Garrick was very close to her mother. Giovanna Garrick gave evidence that on Saturday 14 May 2016 her daughter told her that she had argued with Mr Saaghy. Ms Garrick’s mother gave evidence that her daughter said to her:

We have been arguing since last Thursday about the lack of sex. Last Thursday he physically kicked me out of bed by pushing me away and then kicking me with his feet. I fell on the floor. I went out the lounge-room and sent him some text messages. I will show you the text messages.

24. Ms Giovanna Garrick then said that her daughter told her that:

I am humiliated and embarrassed. I am scared of him. I am sick of him abusing me. What is going to happen now? I don’t have a choice, I need to get away from him. I need to move home and leave him. I have told him that it is over.

25. I find that Ms Garrick said these words, or words to that effect, to her mother. However I am not satisfied that Ms Garrick actually told Mr Saaghy that “it was over”. As I have said, I accept Mr Saaghy’s evidence that he did not speak to Ms Garrick after the argument. The communication, if it occurred, would have to have been in a text message. There was no message to that effect in the evidence.

26. I find, in accordance with Ms Giovanna Garrick’s evidence, that her daughter was not wearing her engagement ring when she died.

27. On the day after Ms Garrick’s death, Mr Saaghy visited Ms Garrick’s mother’s home. She was there with her son Ohrin Banas, Ms Garrick’s step father, Mr Leon Banas, and another person, Heath Francome. Mr Saaghy asked Mr Leon Banas whether he could speak to him outside. Leon Banas says that Mr Saaghy told him during that conversation that:

I do need to tell you something, that I have not told Ohrin and Giovanna. I am concerned about their stress levels given that Jayra died yesterday. You need to know that Jayra and I had recently separated.

28. Ohrin Banas says that he followed Leon Banas and Mr Saaghy into the backyard and ‘observed’ Mr Saaghy tell Mr Banas that:

The relationship between Jayra and me is over. It wasn’t going anywhere. Things had broken down between us over the past year.

29. Mr Francome gave evidence that he was in the kitchen when he heard Mr Saaghy tell Ohrin Banas that his relationship with Ms Garrick was over and that he knew it wasn’t going anywhere. Mr Francome said he was a bit shocked knowing that they had not been engaged for long.

30. Mr Saaghy acknowledged that he and Ms Garrick had issues in the lead up to her death. Mr Saaghy’s version of this conversation is that he told Mr Leon Banas that he did not want to hurt Giovanna Garrick but that when driving home on Tuesday 17 May 2016, he had decided to tell Ms Garrick that he wanted to have a break from the relationship.

31. I am satisfied that Mr Saaghy told Mr Banas that he and Ms Garrick had recently separated. That version of events is consistent with the evidence of three witnesses. It is also consistent with the fact that Mr Saaghy asked to speak to Mr Banas privately. If Mr Saaghy merely told Mr Banas that he had been planning to end the relationship, I find it implausible that he would have delivered that information in private.

32. In my view the entirety of the evidence supports a finding that Mr Saaghy had decided, in his own mind, to end the relationship but that he had not positively communicated that intention to Ms Garrick before she died. She suspected that he was “pushing” her away but Ms Garrick’s texts on the day she died do not support a finding that Mr Saaghy had told her definitively that the relationship was over. She was continuing to ask him to make his intentions clear.

33. With marriage and divorce, the date and approximate time when a person is married, or is not married, can easily be identified. That is not the case with de facto relationships. In this case, Mr Saaghy did not definitively communicate to Ms Garrick his intention to end the relationship. Although Ms Garrick decided on the morning of her death to end the relationship, she changed her mind later and gave Mr Saaghy another opportunity to respond to her. In those circumstances, in the context of a de facto relationship that had existed for at least 1 year and 4 months, and all the other circumstances, I am not satisfied that it is correct to describe Ms Garrick’s marital status as “single”, rather than “de facto” immediately before her death.

34. It follows that I also decline to make the other “corrections” sought by the applicant.

Orders

1. The time for lodging the application is extended to 11 April 2017.

2. The decision of the Registrar of Births, Deaths and Marriages not to ‘correct’ the Death Certificate of Jayra Garrick is affirmed.

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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

Decision last updated: 23 October 2017