Application of F and T: child A [2011] NSWSC 149

Supreme Court New South Wales

Medium Neutral Citation: Application of F and T: child A [2011] NSWSC 149 Hearing dates: 4 March 2011 Decision date: 10 March 2011 Jurisdiction: Equity Division - Adoption List Before: Hallen AsJ Decision: Orders proposed by the Applicants except that the court rejects the application to change the spelling of the child's given name Catchwords: Adoption - Change of name of child - s 101(5) whether change of given name in best interests of the child - application not granted Legislation Cited: Adoption Act 2000 (NSW) Adoption Amendment Act, 2008 Adoption of Children Act 1965 Cases Cited: Application of K: child Nh [2005] NSWSC 248 Application of "M" and "S" [2004] NSWSC 203 Application of O and P [2005] NSWSC 1297 Application of RM and ESM, child Y [2004] NSWSC 937 Director-General Department of Community Services v The Adoptive Parents (2005) 64 NSWLR 268 DL & W [2004] FMCAfam 526 Re M and Anor [2004] NSWSC 203 Re MJR [2003] NSWSC 937 Category: Principal judgment Parties: Mr F & Ms T (adoptive parents) A (adoptive child) Representation: No appearance for Department Applicants appeared in person File Number(s): A184/2010

Judgment The Application 1HIS HONOUR: Mr F and Ms T ("the applicants"), who have lived together in a domestic relationship for over 20 years, apply for an order for the adoption of "A", a boy born in Ethiopia in March 2008. (In accordance with the requirements of s 180 of the Adoption Act 2000 (NSW), I shall not refer to the persons concerned in these proceedings in a manner that will identify them.) 2The applicants are most suitable as adoptive parents and "A" has formed a close and loving bond with them and also with his two older siblings, "B" and "T", the biological children of the applicants. Accordingly, an order for the adoption of "A" by the applicants will be made. 3The Director General of the NSW Department of Human Services, Adoption and Permanent Care Services, supports the application for the adoption of "A". However, there is opposition to the ancillary application that has been made to change the spelling of the given name of "A". There is no opposition to the addition of an English second name, "C", following the given name, or the addition of a last name, as sought by the applicants. 4The further ancillary application for an order dispensing with the consents of the natural parents of "A", and also dispensing with the giving of notice of the application to them, are not the subjects of any dispute. Accordingly, these orders, too, will be made. 5At the hearing, it appeared that the applicants had not read the Delegate's affidavit. I ordered that they be permitted to read it before proceeding. 6No reasons for the making of the adoption order itself are necessary, as the evidence clearly establishes that it would be in the best interests of "A" to make the adoption order sought. Similarly, it is not necessary to state the reasons why dispensing with consents of, and the giving of notice to, the natural parents of "A" is appropriate. 7These reasons, therefore, relate only to the matter in contest, namely, the change of the given name, "A", as sought by the applicants. The sole issue is whether they have been able to demonstrate that it is in the best interests of the child, pursuant to s 101(5) of the Adoption Act 2000, to permit a spelling change to the given name of "A". 8There was no appearance by, or on behalf of, the Director-General at the hearing of the matter on 4 March 2011. 9At the hearing, after recording the documents to be relied upon, and providing the applicants with an opportunity to provide me with any additional information, I indicated that I proposed to make most of the orders sought by the applicants, but would refuse one authorising the given name change as sought and that I would publish my reasons for doing so. Facts 10The biological child of the applicants, "B", was born in March 1997, and their child, "T", was born in February 2001. They attended the hearing with the applicants and with "A". 11The applicants first lodged an application to adopt a child from Ethiopia in September 2002. With their two children, they travelled to Ethiopia on 18 May 2009 to collect "A". He was placed in their care on 21 May 2009. On 23 May 2009, the applicants received the papers pertaining to the approval of his adoption from the Federal First Instance Court of the Federal Republic of Ethiopia. They returned to Australia, with "A", on 3 June 2009. "A" has been living as part of the applicants' family since that time. 12The Ethiopian Birth Certificate of "A", which is in English, refers to his given name without the spelling alteration sought by the applicants, although it includes the middle name, "C", proposed by them. 13On 19 December 2008, the applicants entered into a Contract of Adoption with the Welfare Foundation at which "A" was resident. In that document, which is also in English, the given name "A" was spelt without the spelling alteration sought by the applicants. 14A copy of the Judgment, dated 19 March 2009, of the Federal First Instance Court of the Federal Republic of Ethiopia, which deals with the approval of the adoption agreement concluded between the applicants and the Welfare Foundation, and which was translated into English, refers to the given name "A" without the spelling alteration sought by the applicants. 15The Ethiopian Passport of "A" states the given name "A" without the spelling alteration sought by the applicants, although it includes the middle name, "C", proposed by them. 16The Visa to enter Australia refers to the given name "A" without the spelling alteration sought by the applicants, although it includes the middle name "C" proposed by them. 17I was informed, at the hearing, that the name given to "A" by his birth mother was spelt slightly differently to the name as it appeared on these documents and as it appears on the documents referred to. However, that is not otherwise clear from the documents that I have read. 18The applicants have filed an affidavit stating their reasons for the requested change to the given name of "A" and the addition of "C" as a middle name. They say: (a) The addition of the middle name "C" was changed in Ethiopia after the Federal First Instance Court handed down its judgment. (b) The name "A" is said to be a common name in Ethiopia and that, when spelt in English, the name is spelt in the way proposed by the applicants. (c) The given name "A" is intended to be retained, but the "spelling should be changed to better represent, phonetically, how his name is pronounced". (d) The name, as altered, will avoid confusion with a similar name that is usually given to a female. 19I note in respect to (b), that none of the documents emanating from Ethiopia, relied upon by the applicants, which were translated into English, spell the name "A" in the way suggested by the applicants when spelt in English. 20It is asserted, in the Delegate's affidavit which I have read on the application, that the applicants' affidavit does not demonstrate "special reasons" related to the best interests of the child, for the change of spelling of the name "A", so that, in accordance with s 101(5) Adoption Act , the application for change of name must be refused. 21Since the amendments made to the Adoption Act 2000, by the Adoption Amendment Act , 2008, which was assented to on 4 December 2008, and which, relevantly, came into operation on 1 January 2009, "special reasons" are no longer required under s 101(5) of the Adoption Act , 2000. Section 20 of the amending Act provided that s 101(5) was amended by omitting the words in the section, "unless there are special reasons, related to the best interests of the child, to do so" and by inserting instead "unless the Court is satisfied that the name change is in the best interests of the child". Section 101(5) of the Adoption Act , as amended, is set out below. 22I note the following assertions made in the Delegate's Affidavit sworn 9 February 2011, opposing the name change: (i) On 12 December 2008, the applicants signed an agreement and undertaking at allocation which states "We agree to retain our child's given name/s as required by s 101(5) of the Adoption Act 2000". (ii) On 12 December 2009, at the allocation interview, the applicants reportedly stated that they would keep the child's name and that they would be honest with him about his adoption. They submitted photographs that identified him as "A" (without the spelling change). 23Each assertion confirms the importance of preserving the child's birth name to maintain a clear and tangible identity, language and cultural bond, with his country of origin. As has been noted in other cases, a child adopted from overseas has lost his, or her, birth culture, birth parents and birth country. For such a child, his, or her, name remains one of the only links to the above: see, for example, Re MJR [2003] NSWSC 937 at [7]; (2003) 31 Fam LR 50 at 52, per Bryson J. 24However, neither assertion goes, specifically, to reasons why it would not be in the best interests of "A" to permit the change of name. Rather, the assertions in the Delegate's affidavit reflect an acknowledgement by the applicants of the importance of the background and identity of the child. 25The applicants, in any event, confirmed their understanding of that importance and stated they intended, otherwise, to ensure the background and cultural heritage of "A" is preserved. They confirmed, in their affidavit, that they will preserve A's connection with his culture and language through various groups including the Australian African Children's Aid Support Association (a support group for adoptive parents with children mainly from Ethiopia), and, otherwise, with an involvement with the Ethiopian community generally. 26Already, the applicants foster the close connection of "A" and contact with other children adopted from the same orphanage. They attend Ethiopian functions and have incorporated Ethiopian culture into their home, by cooking Ethiopian food, playing Ethiopian music, learning and teaching the Amharic language and celebrating Ethiopian special events with Ethiopian friends and children. "A" has access to photographs displayed around the house that depict his life in Ethiopia. Ms T is developing a "life story book" for "A". 27I have no doubt that the applicants will continue to preserve the background and the identity of "A", no matter how his given name is spelt. This, in my view, will be in the best interest of "A", a matter that the applicants seem to understand and appreciate. The Statutory Scheme 28The Adoption Act commenced on 1 February 2003. It has been amended since then, relevantly, as set out above. There is no dispute that it is this Act, as amended, rather than the Adoption of Children Act 1965 (NSW), or the Adoption Act 2000, before its amendment, that must be applied in the present case, since "A" was placed with the applicants after the commencement of the Adoption Act . 29Section 7 of the Adoption Act includes amongst the Act's objects, one to ensure that adoption law and practice "assist a child to know and have access to his or her birth family and cultural heritage" and "complies with Australia's obligations under treaties and other international agreements". 30Section 8(1) of the Adoption Act requires the Court, in making an adoption decision, to have regard (as far as practicable or appropriate) to principles which include the following: "(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration; (b) adoption is to be regarded as a service for the child; ... (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved..." 31Section 32(1) of the Adoption Act requires the Court, in making an adoption decision, to also take into account, amongst other things, the culture, language and religion of the child. 32Section 32(2) requires the Court to take into account whether the adopting parents have demonstrated: "(a) the capacity to assist the child to develop a healthy and positive cultural identity, (b) knowledge of or a willingness to learn about, and teach the child about, the child's cultural heritage, (c) a willingness to foster links with that heritage in the child's upbringing, and (d) the capacity to help the child if the child encounters racism or discrimination in school or the wider community." 33All of these sections point to the preservation of any established name that the child will recognise as going to his, or her, identity as being important. 34In dealing with an 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 concerning the names of a child who is more than one year old or who is a non-citizen child - both being categories in which "A" is included. 35In Director-General Department of Community Services v The Adoptive Parents (2005) 64 NSWLR 268; [2005] NSWCA 385, the Court of Appeal (Giles JA, Mason P and Campbell AJA concurring), held (at [37]) that when s 101(5) of the Adoption Act 2000 refers to a change in the given name or names, it takes as its starting point the name, or names, that the child had at the time of being placed with the proposed adoptive parents. (At that time, the given name "A", without the spelling change sought by the applicants, was the name that the child had.) Even though this case was decided before the amendment to s 101(5), it is still relevant. 36There is no definition of what constitutes a name change in the Adoption Act . I have considered whether an alteration of the spelling of the given name of a child is a name change governed by the Act. I am of the view that it is: see, for example, DL & W [2004] FMCAfam 526. The applicants did not submit to the contrary. 37I also note that in Application of "M" and "S" [2004] NSWSC 203 (reported under the name Re M & Anor (2004) 31 Fam LR 415), Campbell J (as his honour then was) dealt with an application under the Adoption of Children Act 1965, in which the applicants wished to shorten the first of the Korean forenames of the child, by deleting its second syllable, thereby turning it into a name which could pass for a forename of Australian origin, as well as to add a third forename which had a family connection with one of the adoptive parents. His Honour considered, at [20], that there could be "a change in the given name or names of a child", within the meaning of s 101(5), if one of the existing given names of the child is altered or replaced. 38The provision of the Adoption Act that governs the naming of adopted children is s 101. That section provides: "101 Names of adopted children (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 the Court is satisfied that the name change is in the best interests of the child. (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." 39The meaning and effect of this section, prior to its amendment, was stated by Campbell J (as his Honour then was) in the Application of O and P [2005] NSWSC 1297; (2005) 34 Fam LR 385: "Construction of Section 101 - Structure [51] Section 101(1) is a substantive provision, which states what in the eyes of the law a child's name shall be "on the making of an adoption order". Section 101(1)(a) is a mandatory provision, to the effect that the making of an adoption order concerning a child who is 18 or more effects no change in either the surname or given names of the adopted child, unless the child decides otherwise. Section 101(1)(b) enables both the surname and given name or names of a child who is less than 18 years of age to become whatever name the Court approves in the adoption order itself. The drafting of s 101(1)(b) necessarily presupposes that the Court has power, in an adoption order, to approve a change of surname, and also to approve a change of given name or names. [52] Section 101(1) is concerned with the name which an adopted child is to have at a single moment in time, namely the moment when the adoption order is made. However, if in accordance with s 101(1) the child has a particular name at that moment, it will continue to have that name unless and until some other event happens which is effective to change the name. Section 101(6) expressly leaves open the possibility of there being such a change in name after the making of an adoption order. [53] Section 101(2)-(5) inclusive is directed in its totality to the Court. If s 101(1) had stood in the Act alone, the Court would have had an extremely wide discretionary power to approve changes in any part of the name of an adopted child who is less than 18 years of age. Being a power conferred on a court, it would be implicit that the power would be exercised in a judicial fashion. As well, even though no express limitations were imposed on the power, it would not be completely unconfined - however it would be confined as a matter of construction only to the extent that the scope and purpose of the statutory enactment may enable the Court to see that some exercises of the power would be definitely extraneous to any objects the legislature could have had in view: Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 at 505; R v The Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; The State of New South Wales and Others v The Commonwealth of Australia and Carlton and Another (1983) 151 CLR 302 at 321-322; FAI Insurances Ltd v The Honourable Sir Henry Winneke and Others (1982) 151 CLR 342 at 368; Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others (1986) 162 CLR 24 at 40; Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 285. [54] Section 101(2)-(5) imposes limits on the Court's exercise of discretion to change a child's name by stating certain factors which the Court must consider, one factor which the Court may consider in approving a surname, and certain circumstances when the Court must not approve a change in the given name or names of a child. Subject to those limitations, the discretion of the Court remains a wide one. [55] Section 101(3) presupposes that a child might have become "generally known by a particular surname" before the adoption order is made. Given that the circumstances in which adoption orders are made are almost invariably ones where the child has been in the custody of the proposed adoptive parents prior to the adoption order being made, frequently for a period of more than a year, the most common situation in which s 101(3) will come to be applied is where the child "has become generally known by" the surname of the proposed adoptive parents before the adoption order is made. While there is no analogous recognition in s 101 of the possibility of a given name having undergone a de facto change before the adoption order is made, neither is there anything in either the express terms of s 101, nor is there any necessary implication contained in s 101, that no de facto change in the given name of the child can occur prior to the adoption order being made. It is simply wrong to say that the applicants, by referring to the child by another name prior to the application being brought, have contravened the Act." 40The court may only order a change of given name under s 101(5) if it "is satisfied that the name change is in the best interests of the child". Thus, the section contemplates individual justice. The decision maker is obliged to consider the best interests of the particular child in the particular circumstances of the case. 41How the court determines what is in the best interests of a child is not prescribed. Of course, there is, in sub-s. (2), the requirement to 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. 42The ultimate, and only, principle that guides the test under s 101(5) is what is in the best interest of the child. The test cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. The approach to be adopted is for the Court to weigh, and balance, the factors that are relevant, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have. 43Importantly, the focus is on the best interests of the child, not the interests of the applicants as the adoptive parents. This does not mean that their legitimate interests and desires, or their views on what is in the best interest of the child, should be ignored. However, the touchstone for the Court's ultimate decision on whether to permit the change of a given name remains the best interests of the child. 44Thus, in deciding whether it would be so satisfied, the Court should consider all of the circumstances of the particular case before it, and decide whether those circumstances, taken together, justify a name change in the best interests of the child.