Application of RM and ESM re Y [2004] NSWSC 937

Reported Decision : 62 NSWLR 465

New South Wales Supreme Court

CITATION : Application of RM and ESM re Y [2004] NSWSC 937 HEARING DATE(S) : N/A JUDGMENT DATE : 11 October 2004

JURISDICTION: Equity Division Adoptions List JUDGMENT OF : Barrett J DECISION : Leave to amend summons

CATCHWORDS : FAMILY LAW - overseas adoption - change of name of infant child - whether "special reasons" shown as per Adoption Act 2000, s.101 - child referred to by alternative name since before placement at five months - original name may be mispronounced by English speakers seeing it in written form LEGISLATION CITED : Adoption Act 2000, s.101 Baker v R [2004] HCA 45 CASES CITED : Re M and Anor (2004) 31 FamLR 415 Re MJR and Anor (2003) 31 Fam LR 50 Re YC; Application by PM and CM [2004] NSWSC 461 PARTIES : RM and ESM - Applicants FILE NUMBER(S) : SC 80117/04 COUNSEL : N/A SOLICITORS : N/A

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTIONS LIST

BARRETT J

MONDAY, 11 OCTOBER 2004

80117/04 – APPLICATION OF RM and ESM – CHILD: Y JUDGMENT 1 By their summons filed on 20 July 2004, the plaintiffs, a married couple, seek an order for the adoption of a boy aged 25 months, together with ancillary orders. The child has been in the care of the plaintiffs since being placed with them in February 2003 at the age of five months. 2 The evidence shows that, subject to one qualification, there is a strong and clearcut case for the making of the orders sought. The plaintiffs are in all respects eminently suited to be recognised by adoption order as the parents of the child. The qualification relates to the aspect of the application concerning approval of names for the child. That aspect requires discussion since the Delegate of the Director-General of the Department of Community Services whose affidavit has been filed opposes the making of the order the plaintiffs seek as to the child's names. 3 The child was born in Korea in August 2002 and abandoned at or soon after birth. An extract from a family register maintained by a Korean court records his "family name" as a name beginning with "Y", this name having been given to the child, apparently by Korean social workers, in the absence of knowledge of any other family name. The extract shows his other names as two words beginning with "J" and "H" respectively. I shall refer to these words by their initial letters. In the formulation the plaintiffs have put before the court, the so-called "family name" comes last, with the two names which are not the "family name" preceding it. 4 The order with respect to names sought by the plaintiffs is an order approving a name which consists of six words, of which "J", "H" and "Y" are the second, third and fourth. The proposed first name is another word beginning with "J" but, to avoid further confusion and without intending any disrespect, I shall refer to it as "I". The fifth and sixth names both begin with "M" and again, to avoid confusion and merely for ease of reference, I shall refer to the fifth as "N" and the sixth as "M". 5 Using these symbols, the full name the adopting parents wish their child to have is "IJHYNM". "J", "H" and "Y", as I have explained, make up the child's existing Korean forenames and family name. "M" is the family name of the adopting father and is proposed in accordance with the convention in our society under which a child takes his or her father's surname. "N" is a forename from Europe which is of significance within the family of the adopting mother. 6 In addressing the application for an order with respect to the child's names, the court must obey and give effect to specific provisions of the Adoption Act 2000 concerning the names of a child who is more than one year old or is a non-citizen child – both being categories in which the child the subject of the present application is included. Because the child was placed with the plaintiffs after the commencement of the Act of 2000 on 31 January 2003, it is the Adoption Act 2000 rather than the Adoption of Children Act 1965 that must be applied. 7 Section 101(1) of the Adoption Act says that, upon the making of an adoption order, an adopted child under the age of 18 years is to have as his or her surname and given names "such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents". In cases within the two categories to which I have referred, however, the court is subjected to a specific command by s.101(5). It is convenient to set out s.101 in full: "(1) On the making of an adoption order: (a) an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made, and (b) an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents. (2) Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's wishes. (3) If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname. (4) An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change. (5) The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless there are special reasons, related to the best interests of the child, to do so. (6) Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, under the law of New South Wales." 8 In the present case, the "special reasons" question posed by s.101(5) arises in relation to both the addition of "I" before "JHY" and the addition of "N" after "JHY". I do not regard it as extending also to the retention of "Y" after "JH" since, although "Y" is represented in the extract from the Korean court as a family name, it is in fact what s.101(5) calls a "given name" because it was conferred upon this child in the absence of knowledge of his family of origin and its name. 9 The rationale behind s.101(5) was explained by Campbell J in Re M and Anor (2004) 31 FamLR 415. It is appropriate to quote at some length from his Honour's judgment, particularly because it explains important matters of background. I hasten to add, however, that the applicable Act there was the Act of 1965, not the Act of 2000 to which his Honour referred merely for guidance. Campbell J said: "One of the obligations under treaties, which s 7(f) of the Act says the Act should advance, is Australia's obligation under the United Nations Convention on the Rights of the Child (UNCROC). Under Art 8.1 of that Convention, Australia has undertaken to 'respect the right of the child to preserve his or her identity, including nationality, name, and family relations'.