Application of AW & IW re children J & J [2011] NSWSC 1529

Supreme Court New South Wales

Medium Neutral Citation: Application of AW & IW re children J & J [2011] NSWSC 1529 Decision date: 09 December 2011 Jurisdiction: Equity Division - Adoption List Before: Ward J Decision: Adoption orders, including name change, approved Catchwords: ADOPTION - application for change of names of two children - whether change of given names in best interests of children - HELD - application granted Legislation Cited: Adoption Act 2000 (NSW) Cases Cited: Application of H & H, child JW [2011] NSWSC 93 Application of MJR and MJR, child KHB [2003] NSWSC 937; (2003) 31 Fam LR 50 Application of O and P [2005] NSWSC 1297; (2005) 34 Fam LR 385 Director-General Department of Community Services v Adoptive Parents [2005] NSWCA 385; (2005) 64 NSWLR 268 Category: Principal judgment Parties: AW & IW (Adoptive Parents) J & J (Children) Representation: Self-represented File Number(s): 129/2011

Judgment 1HER HONOUR: An application has been made by AW and IW for orders for the adoption of two children born in Taiwan in 2008 and 2009 respectively. 2There is no issue as to the suitability of AW and IW as adoptive parents. However, the Delegate of the Director-General of the Department and Family and Community Services (who is also the Acting Director, Adoption and Permanent Care Services of Community Services), who supports the adoption of the children by AW and IW, has filed an appearance in which the Department's opposition is noted to the application by AW and IW that the Court approve a change to the forenames of the children. 3The applicants seek an order to change the existing forenames of the children (those being Chinese names) so as to give the children new English forenames and retain their Chinese forenames as middle names. 4The Department opposes this on the basis of its view that sufficient special reasons (related to the best interests of the children) have not been made out to justify the change. It has no opposition to the addition of the English names as middle names. 5The principles applicable on such an application were considered recently by Hallen AsJ in Application of H & H, child JW [2011] NSWSC 93 and I am indebted to his Honour for his collation of the relevant authorities. There, his Honour noted at [29] that s 7 of the Adoption Act 2000 (NSW) includes, amongst its objects, 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 compliance with Australia's obligations under treaties and other international agreements. His Honour referred to ss 8(1), 32(1) and 32(2) of the Adoption Act and observed at [33] - [34]: All of these sections point to the principle that the best interests of the child, both in childhood and in later life, must be the paramount consideration. The preservation of any established name that the child will recognise as going to his, or her, identity is important in giving effect to that principle. In dealing with the application for an order with respect to the child's name, the court must obey, and give effect to, specific provisions of the Adoption Act concerning the name of a child who is more than one year old or who is a non-citizen child ... 6Section 101 of the Adoption Act provides, relevantly, that Names of adopted children (1) On the making of an adoption order: ... (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. ... (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. 7The reference in s 101(5) to a change in the given name or names is to a change from the name (or names) that the child had at the time of placement with the proposed adoptive parents ( Director-General Department of Community Services v Adoptive Parents [2005] NSWCA 385; (2005) 64 NSWLR 268 at [37]). In this instance those names are Chinese names. 8In the Application of O and P [2005] NSWSC 1297; (2005) 34 Fam LR 385 Campbell J (as his Honour then was) noted that the power under s 101 to approve changes in any part of the name of an adopted child who is less than 18 years of age is to be exercised in a judicial fashion and that even a general power of that kind would be confined as a matter of construction by reference to the scope and purpose of the statutory enactment (his Honour there referring to Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 at 505; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; New South Wales v Commonwealth and Carlton (1983) 151 CLR 302 at 321-322; FAI Insurances Ltd v Honourable Sir Henry Winneke (1982) 151 CLR 342 at 368; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 285). 9Sub-section 101(6) expressly leaves open the possibility of there being a change in name after the making of an adoption order and, as his Honour noted in O and P , subject to the limitations contained in sub-ss 101(2)-(5), the discretion of the Court is a wide one. 10At [38] - [42] in H & H , Hallen AsJ said: The 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, like others in the Act, contemplates individual justice. The decision maker is obliged to consider the best interests of the particular child in the particular circumstances of the case. How the court determines what is in the best interests of that child is not prescribed. Of course, there is, in subs (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. However, the 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. Importantly, 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. Thus, in deciding whether it would be 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. 11Here, as was the case then before Hallen AsJ, the children are too young to express any wishes, or considered views, as to the change of name for which the applicants seek leave. 12The applicants have deposed to the reasons they seek the changes. The first reason they give is that the names of the two siblings (which are hyphenated) both start with the same first name. It is said that this makes it difficult to identify the two, both legally and practically. It is further said that the only way to differentiate the two is by their middle name (or, more precisely, the second half of their hyphenated name) and that this is not practical in a school situation. (I note that the second half of the respective hyphenated names, at least on paper, would be pronounced as pronouns in common use in the English language.) The applicants are concerned that this could lead to other children making fun of them. The two siblings are very close in age. 13In that regard, the similarity of the second half of the respective hyphenated names is not so close as to be likely in my view to cause a difficulty in identifying each from a legal point of view and there is no evidence that any such confusion has occurred as a practical matter (in child care or otherwise). However, I accept as genuine the concern that there may be a risk of mockery of the children, because of the similarity of their names and the practical likelihood that they would be identified by the second half of their hyphenated names (which may be readily confused with common pronouns) when they do go to school. 14The second reason given by the applicants for the change (and one on which I place more weight) is that each of the children has been called by the proposed new name since arrival in Australia, has been baptised with both the Chinese and proposed English names and is referred to by the family's priest, doctor, friends and in child care by the English name. Significantly, in my view, the applicants depose that the children call each other by their English forenames. 15In Application of MJR and MJR, child KHB [2003] NSWSC 937; (2003) 31 Fam LR 50, Bryson J (as his Honour then was) said at 53: I am inclined to think that where a western forename has been given to the child, and the child has for a significant period, by which I mean a year or more, come to know an order of given names to which the western given name comes first, that may well constitute special reasons related to the best interest of the child to approve a change in the given names. ... However, this is not a subject which can be generalised; the need is to identify special reasons, and acceptance as a matter of course of changes which adopting parents propose would from now on be altogether inappropriate. Proposed adopting parents should be aware, and adoption agencies will probably make them aware, of the effect of s 101 [there, in its previous formulation] and of the difficulty created by that section for changes in given names of non-citizen children. 16Similarly, in Director-General Department of Community Services v Adoptive Parents , Giles JA considered that weight can be given, if it be the fact, to the fact that the adoptive parents have called the child by the name in question, "particularly if the child has come to recognise and respond to that name". His Honour said: The paramount consideration in an adoption application is the best interests of the child. If the Department's practices mean that proposed adopting parents have the care of a child for some time prior to the application for an adoption order, so that there is a period in which the child is called by the name and identifies with it, I do not think that fact can be put aside or given little weight; it is a fact, it must be taken into account, and if it would be detrimental to the child to be held to his or her given name or names as at the time of placement with the proposed adoptive parents, that is material to special reasons. It is weighed, however, together with all relevant circumstances. 17In the present case, the Delegate has deposed that it had been informed by the relevant Taiwanese social welfare foundation that the children had been referred to by their Chinese names since birth (and while in foster care in Taiwan). Further, reference was made to the undertaking given by the applicants at allocation that they would retain their children's given names and to similar statements made during the allocation interview. 18As to the first of these matters, on the evidence of the applicants, the children have been referred to since June 2010 (thus for about a year and a half) by the English names given to them by the applicants. Given their age, it seems unlikely that they will have a greater sense of personal identity with those names than the names by which they were called at a much younger age. Further, as noted above, I think it significant that they call each other by the proposed names. 19As to the second matter, there is no explanation by the applicants as to why they appear to have acted contrary to the undertakings given by them (other than the reasons now proffered for the name changes which may or may not have been obvious to them at the time the children were placed with them). Nevertheless, I also note that the conclusion of the social worker who prepared the account of the applicants and recommends the adoption, is that the applicants will ensure that the children each develops a positive cultural identity and notes the applicants' undertaking of the importance of assisting them to do so. Moreover, the paramount factor to take into account is not a failure by the applicants to abide by their earlier undertakings (for which there seem to have been genuinely considered reasons) but the best interests of the children having regard to the fact that they have for some time been referred to by their proposed new names. (I interpose to note that there is a reference in the Delegate's evidence to the children having been referred to by their Chinese names on various occasions. Further, the references given in connection with the present application refer to the children by their Chinese names. Nevertheless, the latter may be explicable by the formality of the process by which the references are given on affidavit and I do not think the fact that on departmental meetings the children have been called by their birth names outweighs the evidence, which I accept, that within the family circle they have been known by their proposed new names.) 20In O and P , Campbell J noted (at [55]) that s 101(3) presupposes that a child might have become "generally known by a particular surname" before the adoption order is made and that: 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. 21In H & H , Hallen AsJ also noted that there appeared to be no prohibition in the Act on a child acquiring a name by reputation nor any prohibition on the adoption of a substitute "given name" before the adoption order is made. 22In O and P , Campbell J said at [109] - [112]: One benefit which can be achieved by retention of a child's given names upon adoption concerns the child's own sense of personal identity. But a person's sense of personal identity is the product of many different factors - whether that person has had the one given name continually since birth is such a factor, and a significant one, but only one of those factors. That is because there is more to a person's sense of personal identity than just his or her name. By the time this child is adult, his sense of personal identity is likely to include the fact that he was born in Korea, was adopted as a baby by these applicants, was brought up in Australia rather than any other country, was brought up in a particular part of Australia rather than any other, was brought up with an older brother who was also adopted from Korea, grew up in a household of a particular kind, had particular friends and interests as he grew up, did well at some activities but perhaps not others, was given certain experiences and opportunities as he grew, developed certain interests at certain stages of his life and as things transpired was able to either follow them up or not, was given encouragement and direction in certain respects by his parents, and a myriad of other matters which reflect the particular circumstances of his life history. His sense of personal identity will include the views he has about his own personality and about his own strengths and weaknesses, and the attitudes that he has to himself. A name will be part, but only a part, of that sense of personal identity. It is not unusual for first-generation migrants to Australia from a non-English-speaking country to give themselves a new first name, which is a name familiar in Australian society. I recognise that for an adult deliberately to give themselves a new first name is in many respects quite different from a child which has been separated from its biological parents having a new name imposed on it. However, the phenomenon of voluntary changes of first name by adults supports the view that continuity of name is not essential for a sense of personal identity. Sometimes, retention of a name is seen as a means of assisting in links with the culture of the child's birth being retained. The original given name of this child would be recognised by most Australians as one which came from somewhere in eastern Asia, and by those who had a finer understanding of the nuances of Asian names, as being a Korean name. To be called, daily, by a name which contains these marks of its origin within it could operate as a constant reminder to him of where he has come from. However, if reminding be needed, his physical appearance will be every bit as effective as a name to remind him. There is no real likelihood that this child will grow up not knowing such facts as are available concerning his family of origin. He is likely to grow up with knowledge of, and ongoing contact with, Korean culture. In that sense, he is likely to be well aware of his identity, insofar as the culture of his birth is part of that identity, even if his name is changed in the way the applicants wish. The extent to which a change of name is likely to interfere with a child's sense of personal identity is influenced by whether, and if so for how long and under what circumstances, the child ever came to associate his or her identity with the original name. In the present case, the child concerned was less than six months old when first placed in the applicants' care. At that age, he is unlikely to have come to have understood his Korean given names as referring to himself, at least in a way that he remembers now. Even though, in accordance with the recent Court of Appeal decision, a child has a name well before the child recognises that the name refers to him or her, the fact that this child never recognised his Korean given names as referring to himself can be taken into account when deciding whether there are special reasons for approving a change of name. 23His Honour there concluded (at [118]): Concerning these applicants, I conclude that their desire to change the child's name does not come from a wish to either ignore or downplay his Korean origins. To the contrary, they are taking active steps to promote awareness of and engagement with the country where he was born, not only for the child, but also for his elder brother and themselves. All the evidence suggests that this child will not grow into a person who has any doubt about where he came from. Nor is he likely to grow up with any impression or concern that his adoptive parents regarded his birth origins as being unworthy or a problem to be overcome. 24In the present case, while the evidence is not as extensive as that which seems to have been put before Hallen AsJ in H&H as to the steps taken to assist the children's awareness of their cultural heritage, I place weight on the social worker's assessment that the applicants are aware of the importance of so doing and that they are well placed to do so given Mr W's cultural background. 25On balance I am satisfied, despite the opposition expressed by the Delegate of the Director-General, that it is in the best interests of the children to make an order changing their given names in circumstances where I accept that the children have, since a very young age, been referred to by family, friends and others by the proposed names and that they call each other by those names. I note that the applicants recognise the importance of assisting the children to retain links with the culture of their birth and I encourage them to take steps to ensure that all such assistance is provided to the children. 26For the reasons set out above, on approval of their adoption I will make an order approving the children's names in the manner the applicants seek.