Application of MSC and CJC; re HES [2011] NSWSC 1071

Supreme Court New South Wales

Medium Neutral Citation: Application of MSC and CJC; re HES [2011] NSWSC 1071 Hearing dates: 23/08/2011 Decision date: 23 August 2011 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Alteration of first name refused. Catchwords: FAMILY LAW AND CHILD WELFARE - Adoption - name of child - inter-country adoption - child given forename by natural mother - principle that Court must preserve the name and cultural ties of child as much as possible - undertaking given by adoptive parents to maintain child's birth name accorded weight - child to retain original first name with anglicised middle-name. Legislation Cited: (NSW) Adoption Act (2000), s 8, s 52, s 67, s 101 Cases Cited: Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 Texts Cited: Caroline Tozzi Reppold and Claudia Simon Hutz, 'Effects of the History of Adoption in the Emotional Adjustment of Adopted Adults' (2009) The Spanish Journal of Psychology volume 12, no. 2, pp. 454-461. Category: Interlocutory applications Parties: MSC & CJC (applicants) HES (child) Representation: Solicitors: Grace Romeo & Suzanne Cavallo (Department of Family and Community Services) MSC & CJC (applicants in person) File Number(s): A40/2011

Judgment (ex tempore) 1HIS HONOUR: Before the Court is an application for the adoption of the child HES born in 2009, by the adopting parents MSC and CJC. The matter was listed today because there was a dispute as to the given names that should be approved for the child upon the making of an adoption order. In addition, in the course of further reviewing the papers before the hearing, it has come to the Court's attention that not only is there no evidence to support the consent dispense order sought in respect of the birth mother, but there is positive evidence that she is identifiable and has a known address. The forenames 2In their summons, the adoptive parents seek that the names L H-E be approved as the child's forenames. (NSW) Adoption Act 2000, s 101, provides that on the making of an adoption order, an adopted child who is less than eighteen years of age is to have his or her surname and given names, or names such name or names as the Court, in the adoption order, approves in the application of the adoptive parent or parents. Section 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 the Court is satisfied that the name change is in the best interests of the child. 3Section 8(1)(e) says that, in making a decision about the adoption of a child, a decision-maker is to have regard (as far as practicable or appropriate) to the principle that the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved. 4The child is, for present purposes, a non-citizen child within the meaning of s 101(5). The child was given the Chinese forenames H-E by his birth mother. They are recorded in his Taiwanese birth certificate. 5The adoptive parents, in their application for approval to adopt, stated "We agree to retain our child's given names as required by s 101(5) of the Adoption Act 2000". They also said at that time, and they maintain today, that they love H-E's given names and intend to retain them. 6Upon return to New South Wales after the placement of the child, they forwarded to the Defendant a family photograph of H-E, showing his name as such. They have provided other photographs similarly designated. 7They give, as reasons for approving 'L' as the first forename, that it (a not uncommon English boy's name) provides a connection with the adoptive mother's side of the family - being a common name in her family; that their own contact with the Asian community indicates strong support for an Anglicised forename, to allow comfortable immersion into the Australian community; and that it is a name which is not uncommon, misunderstood or easily mispronounced for that purpose. This, they contend, will not detract from the child's retaining his birth name and heritage as since December 2009, when the child was eight weeks old, the name L had been used and he now responds to, and knows himself by, that name. 8The Director-General has referred to an article entitled 'Effects of the History of Adoption in the Emotional Adjustment of Adopted Adults', published in 2009 in volume 12 of the Spanish Journal of Psychology. The article expresses the conclusion that a change of first name upon adoption was associated with high levels of depression and low self-esteem and to more frequent perceptions of negligent and authoritative parenting styles. 9On examining the article, however, it emerges that it was a Brazilian study, and involved cases in which the forename had often been changed to the name of the adoptive parents' previous child, since deceased. Its conclusions are therefore not necessarily to be applied, at least directly, to the present circumstances. Moreover, there are apparent inconsistencies in the data which raise in my mind considerable doubt as to the reliability of the conclusions drawn in the study. 10That said, the Court remains obliged to take into account the principles expressed in the Act. 11I do not doubt that it is desirable, and in the interests of the child, to have an Anglicised forename. There is no issue that the name 'L' may be added as an additional - second - forename, and I am amply satisfied that it would be in the interests of the child to do so. The dispute is, in substance, whether it should be the first forename or the second forename. 12In favour of its being the first forename is the argument presented by the adoptive parents, that if it is to be the name by which the child is in fact known, it is appropriate that it be his first name, and that as he is to grow up in the Australian culture it is unnecessary to emphasise his Taiwanese name. 13There have been many studies of the difficulties and challenges presented by what is sometimes called "trans-racial", or more frequently nowadays "inter-country" adoptions, where cultural boundaries are crossed. I referred to some of these cases and considerations in Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 (at [58]-[101]). What is clear is that preservation of the child's original culture is very important. 14Ultimately it can be expected that this child may feel internal tensions between the culture in which he is brought up, and his culture of origin. Experience suggests that recognising a strong bond with both is important to the child's ultimate sense of identity. 15It seems to me that practically no difficulty will be occasioned by the child having L as his second given name, as opposed to his first given name. In the Australian community, there are many who are known by their second forename, for a variety of reasons. Some weight must be given to the original undertaking of the adoptive parents to retain his given names. In addition, preserving H-E as his first forename, even if it is not extensively used in the Australian setting, will in due course be seen by him as providing appropriate and symbolic acknowledgment and recognition of his culture of origin. It also seems to me quite consistent with the widespread practice in Chinese speaking communities in Australia of using an Anglicised forename as an alternative second forename. 16For those reasons, when it is appropriate to make an adoption order I will approve the name C as the surname, and H-E L, as forenames of the child. Dispensing with consent and notice 17Circumstances in which the Court can dispense with a natural parent's consent are governed by s 67. Relevantly, for present purposes, that section allows the Court to make a consent dispense order if it is satisfied that, after reasonable inquiry, the natural parent cannot be found or identified. 18The child's birth certificate does not disclose the name of the natural father, and there is evidence ultimately sourced in the natural mother that, other than knowing him by his first name, she does not know him and had only one encounter with him. I have no difficulty in being satisfied that the natural father cannot be identified or found, and it would be appropriate to make a consent dispense order in respect of him. 19However, the same cannot be said in respect of the natural mother. The child's birth certificate bears her name and address. The allocation interview report indicates that there was contact between the adoption agency and the natural mother at that time in 2009. A subsequent adoption report of February 2011 reports that the adoptive parents have sent photographs and progress reports to the adoption agency, in the hope that the child's birth mother may seek information in the future. 20The adoptive parents have informed the Court that when the placement took place, the birth mother at short notice did not attend, and that the adoptive parents have received some subsequent information that suggests that the adoption agency has not been able to contact her. If some evidence can be placed before the Court that it has not been possible to contact her, that would found a consent dispense order. However, at this stage, there is simply no admissible evidence to that effect. It therefore cannot be said that the birth mother cannot, after reasonable inquiry, be found or identified. There are no other available grounds on which the Court can make a consent dispense order. In those circumstances, the Court is prohibited by Adoption Act s 52 from making an adoption order, unless consent has been given by the birth mother. 21I regret, therefore, that the matter will have to stand adjourned, until either the consent of the birth mother in the appropriate form is obtained, or evidence can be put before the Court demonstrating that, after reasonable inquiries, she cannot be found. 22This matter is adjourned to Tuesday 27 October at 9.30 am in order to permit the Director-General to obtain and file evidence of consent or evidence in support of the consent dispense order.