Re JSK & The Adoption Act 2000 [2006] NSWSC 1188

New South Wales Supreme Court

CITATION : Re JSK & The Adoption Act 2000 [2006] NSWSC 1188

HEARING DATE(S) : In Chambers

JUDGMENT DATE : 10 November 2006

JURISDICTION : Equity Division Adoptions List

JUDGMENT OF : Brereton J

DECISION : Order for adoption, for the approval of child's name, including additional third forename, dispensing with consents of natural parents and with giving of notice to them, and releasing two certified copies of the orders to DOCS for transmission to ESWS.

CATCHWORDS : FAMILY LAW & CHILD WELFARE - Child welfare other than under Family Law Act 1975 – Adoption - Dispensing with consents of natural parents - Where child relinquished for adoption at birth and anonymity conferred on parents by Korean procedures – Name - Given name - Where approval sought for name including additional (third) forename - Special reasons

LEGISLATION CITED : Adoption Act 2000 (NSW) Immigration (Guardianship of Children) Act 1946 (Cth)

Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385 CASES CITED : Re K & The Adoption Act [2005] NSWSC 858 Re KN & The Adoption Act 2000 [2005] NSWSC 896 Re KSE & The Adoption Act 2000 [2006] NSWSC 92

PARTIES : AK & LK (applicants)

FILE NUMBER(S) : SC 17/2006

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

BRERETON J

Friday 10 November 2006

17/06 JSK & The Adoption Act 2000 JUDGMENT 1 HIS HONOUR: JSK was born in Korea. He is now 27 months of age and has been in the care of the applicants and in Australia for 22 months. With the consent of the Director General of the Department of Community Services ("DOCS"), by his delegate, the applicants seek an adoption order in their favour, the approval of the child's name, and orders dispensing with the consents of the child's natural parents, and also dispensing with the giving of notice of the application to the natural parents. 2 The placement has proved to be a highly successful one, and subject to the making of the orders dispensing with consents and notice as sought, all necessary conditions for the making of an adoption order have been satisfied, and it is appropriate that such an order be made. However, the applicants seek the approval of a non-Korean name as a third forename. Dispensing with consent and notice – the birth parents 3 Consent dispense orders, and orders dispensing with giving of notice of the application to the natural parents, are authorised under Adoption Act, 2000 (NSW) s 67(1)(a) and s 72(2)(a). The court may make a "consent dispense order" if satisfied that the person whose consent is otherwise required cannot after reasonable inquiry be found or identified, but not unless it is satisfied that to do so is in the best interests of the child. As White J has explained in Re K & The Adoption Act [2005] NSWSC 858, what amounts to "reasonable inquiry" is to be evaluated from the perspective both of the applicants and of the person whose consent is otherwise required. 4 Neither the identities of the child's natural parents (save for surnames), nor their whereabouts, are presently known to the applicants or to the Director General. There is no evidence of the identity of the birth father or birth mother other than surnames; no hint of the father having ever had anything to do with the child, or even being aware of his existence; and no suggestion that the mother has had any contact with the child after his birth. The evidence shows that the birth mother, thinking that she could not provide a proper environment for the baby, and that it was most desirable for him to grow up well in an appropriate adoptive home, relinquished him to the Eastern Social Welfare Society ("ESWS"), a Korean agency approved by the Korean government to conduct inter-country adoptions - for adoption. While that is not a "consent" for the purposes of the Adoption Act, it is highly relevant in considering whether any further inquiries would be "reasonable". The view that they would not is reinforced by the circumstance that, from the perspective of the birth parents, their anonymity, which has been conferred on them by the measures taken in Korea in respect of the birth documentation, would be infringed. 5 There is no likelihood that any inquiry of which the applicants are capable would find either of the natural parents, and scant likelihood that they would wish to be contacted. I am satisfied that it would not be reasonable to require further inquiry as to the identity and whereabouts of the natural parents, and, therefore, that the natural parents cannot after reasonable enquiry be found. I am also satisfied that it is in the interests of the child that a consent dispense order in respect of the parents be made. For the same reasons, I am satisfied that notice should not be required to be given to the birth parents.