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. Name and special reasons 6 The applicants propose that the child have their surname, and that his forenames be his two (existing) Korean forenames, together with a non-Korean forename. 7 Adoption Act, s 101(5) provides that 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. The addition of a third given name, following existing given names, is a "change in the given name or names", and it follows can be approved only if there are special reasons, related to the best interests of the child, to do so [Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385; Re KSE & The Adoption Act 2000 [2006] NSWSC 92]. 8 In this context, "special reasons related to the best interests of the child" are constituted by factors or circumstances factor or circumstances related to the best interests of the child that are out of the ordinary course, unusual, special or uncommon and that are not regularly, routinely or normally encountered. In Director-General, Department of Community Services v The Adoptive Parents, Giles JA addressed what constituted "special reasons" in this context as follows:- 44 In Baker v The Queen [2004] HCA 45 Gleeson CJ said (at [13]) - "There is nothing unusual about legislation that requires courts to find "special reasons" or "special circumstances" as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors." 45 In the same case Callinan J said (at [173]-[174]) that "special reasons" shared the characteristics of which Lord Bingham spoke in relation to "exceptional circumstances" in R v Kelly (2000) QB 198 at 208, that - "We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered." 46 Barrett J took up these observations in Application of R M and E S M, re Y at [12], saying that the court could only act "if it positively finds some factor or circumstances related to the best interests of the child that is out of the ordinary course, unusual, special or uncommon and that is not regularly, routinely or normally encountered". I respectfully agree; but it would be a mistake to attempt to define or categorise what might be special reasons related to the best interests of a child. 9 Are there such reasons in this case? The Department does not oppose the proposed additional forename as a third forename. In Director-General, Department of Community Services v The Adoptive Parents, Giles JA noted that the Director-General did not contest the addition of an Anglo-Saxon (third) forename following two Korean forenames, and that the Department apparently consistently took the position that the addition of a forename following the child's existing given name or names could properly be approved, as such a change in a child's given name or names did not offend the principle in the Act concerning preservation of the child's name and identity; but his Honour added that it may be doubted whether that amounted to "special reasons related to the best interests of the child", suggesting that amendment to s 101(5) was perhaps desirable. I respectfully agree that it may be doubted whether this factor alone could constitute "special reasons", but it may, when added to other matters, contribute to a finding that the requirement of "special reasons, related to the best interests of the child" is satisfied. Because the addition of a third name in that way does not infringe the principle concerning preservation of name and identity, "special reasons, related to the best interests of the child" may much more readily be found in such a case. In this case, the addition of a third, non-Korean name will not detract from the child's Korean heritage, or identity - and it is clear that the applicants are conscious of the importance of maintaining this. 10 The only reason which can be inferred from the applicants' evidence is that they were both raised in the Catholic faith, attended Catholic schools, are involved with the Catholic church and propose to raise their children, including the child, in the Catholic faith. The name they propose has a religious significance. It also has a link with the European heritage of the adoptive father. In my view, the Court should be sensitive to the cultural and religious context of the adoptive parents, as well as of the child. The interests of the child are paramount, but they are not exclusive. The circumstance that this child is to be brought up in a particular religious and cultural setting is a circumstance special to this case. 11 An additional factor is one to which I referred in Re KSE & The Adoption Act 2000 [2006] NSWSC 92, as follows: Another contributing factor is that in the context of an inter-country adoption, at a very young age, from a non-English speaking country, the conferring on a child of an additional Anglo-Saxon name is reflective of the circumstance that the child will grow up knowing his or her original cultural heritage which is reflected in the retained forenames, but also in an Australian cultural context which is reflected in the additional forename, and may be a matter of convenience and benefit. As Campbell J has pointed out in Application of O and P [2005] NSWSC 1297, whose valuable analysis of the similar issues in that case I have found of great assistance, migrants to Australia from non-English-speaking countries not uncommonly give themselves new first names, often Anglicised versions of one of their original names, and it may be inferred that the availability of such a name is often seen by such immigrants as a matter of convenience and benefit. 12 The conferring on this child of a third forename will have the benefit of reflecting the diverse cultural heritage that the child will acquire in his adopted family in this country, while preserving his connection in name with his cultural origins. It will not detract from the child's sense of identity or his cultural heritage. As the additional name will be a third name, and not the name by which the child will be known, its approval would be not inconsistent with the principle in the Act concerning preservation of the child's name and identity. It has no apparent detriment. I am satisfied that, taken together, these matters amount to special reasons, relating to the best interests of this child, why the name sought by the applicants should be approved, and I will approve the proposed name. 13 However, I would observe for the guidance of the Department and practitioners in the future, that so long as there remains a requirement to establish "special reasons" for the approval of an additional forename, the supporting affidavit evidence should address the issue clearly and set out the "special reasons" advanced. Release of certified copy order for ESWS 14 For the reasons explained by Campbell J in Re KN [at [19-26]], in the exercise of the Court's inherent jurisdiction and pursuant to Adoption Act, s 143, it is appropriate to make an order releasing two certified copies of the orders to DOCS for transmission to ESWS. Orders 15 Accordingly, I will make orders: 1 for adoption of the child in favour of the applicants, 2 for the approval of the child's name, including the additional third forename, 3 dispensing with the consents of the child's natural parents, and with the giving of notice of the application to the natural parents, and 4 releasing two certified copies of the orders to DOCS for transmission to ESWS. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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