GWM v DOCS [2000] NSWSC 217

New South Wales Supreme Court

CITATION : GWM v DOCS [2000] NSWSC 217 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3013/99 HEARING DATE(S) : 16 December 1999 and 15 March 2000 JUDGMENT DATE : 15 March 2000

PARTIES : GWM (P) Director-General Department of Community Services (D) JUDGMENT OF : Hamilton J

COUNSEL : Plaintiff in person D Smith, Solicitor (D) SOLICITORS : Plaintiff not represented R Best, Director of Legal Services (D) CATCHWORDS : FAMILY LAW AND CHILD WELFARE [138] - Child welfare other than under Family Law Act 1975 - Adoption - Other matters - Application by birth father of adopted child for declaration that he is birth father - Application for alteration of surname of child on original birth certificate - Whether summons should be served on child and adoptive parents. LEGISLATION CITED : Adoption Information Act 1990 DECISION : Direction that child and adoptive parents be notified of proceedings.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 15 MARCH 2000

3013/99 GWM v DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES

JUDGMENT

HIS HONOUR:

1 It will be recalled that on the last occasion this matter was before the Court Mr Smith, the solicitor for the defendant, kindly offered to make inquiries, if it were desired by the Court, of the child and the adoptive parents as well as of Ms T, the birth mother, as to their attitude to the making of the orders sought by the plaintiff. The offer concerning Ms T was accepted by the Court and, Mr Smith, you have done what you offered to do. I asked you at that time not to approach the child or the adoptive parents, whilst I gave further consideration to whether or not, in my view, they ought to be involved in these proceedings. 2 I have formed the view that I ought not make either of the orders sought by the plaintiff without the child and the adoptive parents being given notice that there are proceedings in which the Court is contemplating making those orders, namely, a declaration that Mr M is the birth father of the child and, secondly - and I have not yet looked at the certificates to see if it can be done - that the child's surname on the original birth certificate be altered to M rather than Ms T's then surname. 3 On the second matter, I have not yet any clear view as to what course ought be followed. I did on the last occasion indicate some reluctance to alter the original entry because of its record and historical purpose. It was at that stage that Mr M said that he wished to prove that the original intention of both the birth parents was that the child be named M, and that she bore the name M in the hospital. Not only has Mr M produced sworn evidence, backed by the tag from the cot and so forth, that that occurred but, indeed, upon Mr Smith having Ms T approached, the evidence that has been brought forward, rather than contradicting what Mr M says, substantially corroborates his version. In those circumstances, it seems to me that there is a substantial case that perhaps the original record ought be changed as the plaintiff seeks, because, in effect, this would provide correct history rather than incorrect history. The correct history at the time the child was born was that she was intended to be given the name M and went under the name M in the hospital. It was only some time later, after other events had transpired, that the mother registered the birth of the child with a different surname. In those circumstances, from the very point of view of recording history correctly, it seems to me that there is a strong case for a correction of the birth certificate, if that can be effected without trenching upon the legal situation as to the adoptive parentage. 4 However, as I have said, I have formed the view that it should at least be communicated to the adoptive parents and to the child, who is now at least 15 years of age, that such orders are contemplated. It seems to me that the better course is not the somewhat combative course of joining them as defendants and having a summons served upon them, but that they should be informed of the course that the Court is contemplating taking. If they desire either to be joined as defendants or, without being joined as defendants, to put submissions to the Court as to whether or not those orders ought be made, then they should be invited to do so, and a further date for hearing will be fixed at which they will be invited to attend. I should add that one of the reasons why I follow this course is that, quite apart from other considerations and the importance of the fact that, in effect, the child's own name is being dealt with, in which both the child and the adoptive parents have an interest, the matter goes beyond that, in that rights and procedures under the Adoption Information Act 1990 may be affected by the making of the declaration. 5 I propose therefore to direct that the defendant should make a communication by letter to the adoptive parents and the child in the terms that I have just indicated.