Sklavos v NSW Registry of Births, Deaths and Marriages

[2017] NSWCATAD 298

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Sklavos v NSW Registry of Births, Deaths and Marriages [2017] NSWCATAD 298
Hearing dates:	On the papers
Date of orders:	10 October 2017
Decision date:	10 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	1. The decision under review is set aside. 2. The decision is made that the Register is to be corrected by deleting the hyphen between Angellina and Eleni in the record pertaining to the registration of the birth of the applicant’s daughter.
Catchwords:	BIRTHS, DEATHS & MARRIAGES – request to correct the register – no error by Registry at the time record made – meaning of “to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event” – assessment of all available evidence
Legislation Cited:	Births Deaths and Marriages Act 1995
Category:	Principal judgment
Parties:	Arthur Sklavos (Applicant) NSW Registry of Births, Deaths and Marriages (Respondent)
Representation:	A Sklavos (Applicant in person) Office of the General Counsel, NSW Registry of Births, Deaths and Marriages (Respondent)
File Number(s):	2017/00194236

reasons for decision

1. This application is made by Mr Arthur Sklavos who is seeking review of a decision made by the Registry of Births, Deaths and Marriages refusing to correct the name of his daughter as recorded on the Register when his daughter was born some years ago. He states that his daughter was given a first and a middle name but the names appear hyphenated on her birth certificate and this is the error he wishes to have corrected.

2. The birth registration form completed by Mr Sklavos and his wife after the birth of their daughter included a single box where the “first name(s)” of the child could be written. The name is printed by hand in capital letters as ANGELLINA – ELENI. The Register records her name as being Angellina-Eleni Sklavos.

3. Mr Sklavos states that the birth registration form did not make an allowance to include a middle name. In the box provided on the form, he therefore put a dash, not a hyphen, between his daughter’s first and middle name to differentiate the two names. He states that his daughter’s name is in fact Angellina Eleni Sklavos. Mr Sklavos points out that the form now contains separate boxes for recording first and middle names.

4. Mr Sklavos states that on all other documentation, his daughter is known as Angellina Eleni. In support he has provided a copy of a document which was issued by the hospital at the time his daughter was born which records the time and date of her birth along with other details. This document records her name as Angellina Eleni Sklavos. A card issued to his daughter by her school records her name as Angellina Sklavos along with her date of birth and photograph. On the family Medicare card her name is recorded as Angellina E Sklavos.

5. Mr Sklavos states that he telephoned the Registry about the error and was told not to worry about it. He did nothing more about it until his daughter needed to obtain a tax file number.

6. Section 45 of the Births, Deaths and Marriages Act 1995 (the Act) contains a provision which permits the Registry to correct an error in the Register:

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.

7. Of relevance to this matter is s 45(1)(b) which permits the Registrar to correct the Register to bring it into conformity with the most reliable information available.

8. The Registry refused to correct the Register on the basis that the name as entered on the Register was in conformity with what was written on the birth registration form lodged by Mr Sklavos after his daughter’s birth. The Registry stated that an amendment to the name on a birth certificate can only be made if an error was made by the Registry at the time of registration. In this case, as the name was entered in accordance with what was on the form, no error was made by the Registry.

9. The respondent has provided written submissions to the Tribunal in which the proposition that, because no error was made by the Registry in recording Mr Sklavos’s daughter’s name, the record cannot be corrected. The submission points out that, at the time the form was received, there was no reason for the Registry to ignore what it believed to be a hyphen between the names Angellina and Eleni.

10. The respondent states that on the form at the time there were two lines in the relevant box but the name was written on one line, thus evidencing an intention that the names were joined. There is also nothing unusual in children being given a “double-barrelled” first name and there is no objective indication that the line between the names is a dash, not a hyphen.

11. The Registry advised Mr Sklavos that the only way to change his daughter’s name would be to submit a request to change her name.

Consideration

12. I am satisfied that the Registry acted reasonably at the time that the registration of birth form was lodged by Mr Sklavos. There was no reason at the time for the Registry to question what appeared to be the name as written on the form. Mr Sklavos’s daughter’s name was therefore registered as Angellina-Eleni Sklavos.

13. However, the Registry’s contention that it can only correct the Register if it has made an error at the time of registration is clearly not supported by the words of the statute. Sub-section 45(1)(b) permits the Registry to correct the register “to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event”. There is no requirement in the sub-section that the Registry itself must have made an error before an entry can be corrected.

14. I agree with the respondent that the birth registration form is very important in determining whether an entry should be corrected, and, in many circumstances would be determinative of that fact. It is a written record made close in time to the registrable event and is a record of great importance to the persons submitting the information for registration. While it would normally be the case that the birth registration form is the “most reliable information available to the Registrar”, once a request is made to correct the Register, other information that is available must be assessed and weighed by the Registrar. It is only then that the Registrar can determine what is, in fact, the “most reliable information available” at the time of consideration of the request.

15. In this case, Mr Sklavos has provided information that his daughter is not known to the world as having a hyphenated first name. She is not recorded as Angellina-Eleni Sklavos at school or on the family’s Medicare records. Importantly, the hospital at the time of her birth records her name as Angellina Eleni Sklavos.

16. This is not a case where the Registrar is being asked to accept that a name completely different to that which was contained in the birth registration form should now be entered on the Register by way of a correction. Mr Sklavos’s explanation for why he did what he did, is reasonable. He states he separated the two names by a dash to indicate they were in fact separate as there was only one box within which to record the names. He states that the spacing left around the dash clearly demonstrates it is not a hyphen. The respondent notes that, being a hand written document, it is not clear whether the spacing is greater than if the mark was a hyphen.

17. I agree that is difficult to discern from the writing on the form itself whether what was intended was a dash or a hyphen. Nevertheless, I am satisfied on the basis of the other information provided that the most reliable information available is that there was never any intention on the part of Mr and Mrs Sklavos to name their daughter Angellina-Eleni. All other information available demonstrates that they intended to name her Angellina Eleni and that the inclusion of the mark between the first and middle name on the form was not meant to indicate her name was hyphenated.

18. I am satisfied that the correct or preferable decision in this case is to set aside the decision the Registry and to substitute a decision that the name of Mr Sklavos’s daughter should be recorded in the Register as Angellina Eleni Sklavos to bring the entry into conformity with the most reliable information available about her name given to her at birth and intended to be registered as her name in the Register.

Orders

1.   The decision under review is set aside.

2.   The decision is made that the Register is to be corrected deleting the hyphen between Angellina and Eleni in the record pertaining to the registration of the birth of the applicant’s daughter.

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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: 10 October 2017