Application of CP and JP - Child: S [2004] NSWSC 687

New South Wales Supreme Court

CITATION : Application of CP and JP - Child: S [2004] NSWSC 687 HEARING DATE(S) : In chambers JUDGMENT DATE : 3 August 2004

JURISDICTION: Equity Division Adoptions List JUDGMENT OF : Barrett J DECISION : Change of name approved

CATCHWORDS : FAMILY LAW - overseas adoption - change of name of infant child - relevant considerations LEGISLATION CITED : Adoption of Children Act 1965, s.38 Adoption Act 2000, s.101 Application of MJR and MJR - Child: KHB (2003) 31 Fam LR 50 CASES CITED : Application of M and S (2004) 31 Fam LR 415 Application of PM and CM - Child: YC (2004] NSWSC 461 PARTIES : CP and JP - Applicants Child: S FILE NUMBER(S) : SC 80093/04 COUNSEL : Nil SOLICITORS : Applicants in person Department of Community Services

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

BARRETT J

TUESDAY, 3 AUGUST 2004

80093/04 – APPLICATION OF CP AND JP – CHILD: S JUDGMENT 1 The plaintiffs, a husband and wife, seek and order in their favour for the adoption of a boy aged 3 years and 4 months together with ancillary orders. 2 The adoption order clearly should be made. The evidence makes it plain that the plaintiffs are in all respects suitable adopting parents well able to provide for the child a stable and happy home as well as material and other benefits. It is undoubtedly in his interests that the plaintiffs should become his parents. There is, however, one aspect of the application that requires consideration. It concerns the names proposed for the child. 3 The child was born in Thailand in March 2001. His parents are unknown and efforts by Thai officials to trace them have been unsuccessful. He accordingly has no known surname or family name. Soon after birth, the child came into the care of the Department of Public Welfare in Thailand and was transferred to a babies' home. It was apparently there that he was given the name "S" which, until his placement with the plaintiffs, was his sole name. "S" is, I infer, a forename in general use in Thailand. Common experience tells me that it is not a name encountered in the ordinary course in Australia. 4 The plaintiffs seek an order approving for the child two forenames together with the plaintiffs' surname. They, as a married couple, follow the tradition under which both husband and wife use the husband's family name. The forenames the applicants wish the child to have are a male forename in common use in Australia ("B") followed by his existing name, "S". 5 The Director-General of the Department of Community Services opposes the making of this order. When the papers came before me in chambers it was not clear that the statement of opposition related to the naming proposal precisely as it was set out in the plaintiffs' summons. A letter from the Department received on Friday last, 30 July 2004, made it clear that this is the case and that the Director-General's opposition relates to the proposal that the child's forenames be "B" followed by "S". There would be no opposition if the plaintiffs sought approval of forenames consisting of "S" followed by "B". 6 As is testified by an open "To Whom it May Concern" letter from a delegate of the Director-General dated 17 December 2002, the child was placed in the custody of C and J on 28 November 2002. This was before the commencement of the Adoption Act 2000. As a result, the application for adoption is to be dealt with under the Adoption of Children Act 1965, despite repeal of that Act: see Adoption Act 2000, Schedule 3, clause 8. The restrictions imposed by s.101 of the Adoption Act 2000 therefore do not apply. Those restrictions include the restriction imposed by s.101(5) in the case of a child more than one year old or a non-citizen child: "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." 7 Although the child now under consideration is both more than one year old and a non-citizen child, the fact that the application is to be dealt with under the 1965 Act to the exclusion of the Act of 2000 means that the applicable statutory provision with respect to naming continues to be s.38 of the former Act: "(1) Subject to subsections (2) and (2A), upon the making of an adoption order, the adopted child shall have as his or her surname the surname of the adoptive parent or parents and shall have as his or her forename or forenames such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.