Application D and D; re Y [2013] NSWSC 1477

Judgment 1Mr and Mrs D, who are a married couple, applied by summons for adoption order filed on 28 March 2013, for an order for the adoption of Y, a girl born in Taiwan in 2008. On 27 June 2013 the applicants filed an amended summons for adoption order, slightly varying the orders sought. To conform with the requirements of s 180 of the Adoption Act 2000 (NSW) (the "Act"), I will not identify the persons involved in these proceedings by name: see Re Application of H and H, child JW (2011) 45 Fam LR 681. 2The applicants seek the following substantive orders in their amended summons: (1)That (a)pursuant to s67(1)(a) of the Act, the consent of the child's birth mother be dispensed with. (b)pursuant to s67(1)(a) of the Act, the consent of the child's birth father be dispensed with. (c)pursuant to s88(4) of the Act, notice of the application for an adoption order to the child's birth mother and birth father be dispensed with. (2)For the adoption of the child Y in favour of the adopting parents Mr and Mrs D and approving the name "D" as the surname and the names "Y Lily" as the given names of the child. The name "Lily" is a substitute for the name set out in the amended summons. 3In the affidavit filed by the Acting Director, Adoption and Permanent Care Services, of Community Services ("Acting Director"), as the delegate of the Director-General of the NSW Department of Family and Community Services, the Acting Director, as delegate of the Director-General, supports the applicants' application for the making of an adoption order, and provides evidence to support the court making orders 1(a), (b) and (c) contained in the amended summons. 4I am satisfied on the evidence that the court has jurisdiction to make an adoption order in respect of Y under s 23 of the Act. Y is a person in respect of whom an adoption order may be made under s 24, and an order may be made in favour of Mr and Mrs D under ss 26 and 28. Y is a non-citizen child and arrangements for the adoption of the child have been made by the Director-General in conformity with s 31(1). Although the consent of the Director-General to the making of an adoption order is not required by reason of s 87(2)(b), the Acting Director as delegate supports the application, as has been noted above. 5I have considered the evidence provided in support of the application, which complies with the requirements of UCPR r 56.8. I am satisfied of the matters set out in s 90 of the Act, having regard to the objects of the Act in s 7, and the principles required to be applied by s 8. An approved assessor has prepared the report required by s 91. 6The Acting Director, as delegate of the Commonwealth Minister for Immigration, who is presently the guardian of the child as a non-citizen child within the meaning of s 4AAA of the Immigration (Guardianship of Children) Act 1946 (Cth) (the "Commonwealth Act") consents to the adoption and has executed an order under s 11 of the Commonwealth Act, which upon an adoption order being made, will exempt the child from the provisions of the Commonwealth Act. 7The applicants are clearly highly suitable adoptive parents and I am well satisfied that the best interests of the child will be promoted by the adoption. Accordingly, I will make the order for the adoption of the child Y as sought in order 2 of the summons. 8On 29 December 2011, the Taipei District Court approved the adoption of Y by Mr and Mrs D. Notwithstanding that approval it has been necessary for the applicants to apply for an adoption order under the Act, for substantially the same reasons as were considered by Brereton J in Application MKL & MJL; re YSL [2013] NSWSC 564. It is not necessary to set out the precise differences in the facts of the two matters, concerning the timing and the circumstances of the order approving the adoption being made in Taiwan. 9As noted, the applicants seek an order in terms of paragraph 2 of their summons that the names Y Lily be approved as the forenames of the child, and that D be approved as the surname. 10The evidence establishes that Mr and Mrs D refer to Y by her first forename, Y, and that that is the name to which she responds. They recognise that there are good reasons for the retention of Y as Y's first name, including providing acknowledgement and recognition of her culture of origin. The applicants are Christians who attend a Catholic Church approximately 4 times each month. They intend to rear Y in the Catholic religion, which is also the religion of Y's birth mother. Y was baptised on 3 March 2012 and given the baptismal name "Lily". The applicants as parents believe that it is desirable for Y's baptismal name to be included as one of her forenames. The report of the approved assessor provided under s 91 of the Act establishes that Y's birth mother and her family are a practising Catholic family and that the consistency of Y's religious upbringing was one of the reasons why Mr and Mrs D were selected as appropriate adoptive parents of Y. 11The present case is unlike other cases where an order has been sought approving a common Australian name as the first forename of a child, whose existing forenames reflect a different language and culture. As noted, the Director-General supports the making of all of the orders sought by the applicants. 12The power of the court to order that the name or names of an adopted child be changed is governed by s 101 of the Act, which materially provides: "(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. (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... (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"... 13Since the commencement of the Adoption Amendment Act 2008, which by Schedule 1 [20] omitted from s 101(5) of the Act the words "unless there are special reasons, related to the best interests of the child, to do so" and inserted in stead "unless the Court is satisfied that the name change is in the best interests of the child", it has not been necessary for adoptive parents to satisfy the court of the existence of special reasons for a change in the given name or names of the child. Accordingly, the difficulties discussed by the courts in cases such as Re M and Another (2004) 31 Fam LR 415, Application of RM and ESM re Y [2004] NSWSC 937, and Re H and the Adoption Act [2004] NSWSC 1242 no longer require consideration by the court. The issue is whether the name change is in the best interests of the child, and for this purpose the court must have regard to the principles set out in s 8 of the Act, including s 8(1)(e) which provides: "(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles... (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved..." 14I respectfully adopt the statement of principle as to the operation of the statutory scheme set out by Hallen AsJ (as his Honour then was) in Re Application of H and H, child JW (2011) 45 Fam LR 681 at [28] - [42], where his Honour noted in addition the significance of ss 7, 32(1) and 32(2) of the Act. See also Application of AW & IW re children J & J [2011] NSWSC 1529 per Ward J (as her Honour then was). Each case will depend upon its own circumstances, and the final observation made by Hallen AsJ at [42] is salutary: "Thus, 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". 15In the present case the continued use of Y as the child's first forename will foster her appreciation of her cultural heritage, and preserve her sense of identity and cultural ties. However, the relevant statutory provisions require the court additionally to consider the child's "religious ties". The suggested additional second forename "Lily" is the child's baptismal name, which reflects the practices of the religion of the family of Y's birth mother and her adoptive parents. 16It would also be in the child's best interests to approve the name D as her surname, as the applicants have requested. Bearing the same surname as Mr and Mrs D would contribute to Y's sense of family belonging. Further, it would be sensible for her surname to be the same as that of her adoptive parents, following the standard practice in her new home country. Changing her surname will not have a damaging effect on her appreciation of her cultural heritage since Y will continue to be used as her first name. 17Y's age is such that she does not have a level of understanding sufficient to enable her to express any mature wishes on the issue of whether her surname or given names should be changed. 18In these circumstances I am satisfied that a change in Y's given name to add "Lilly" as a second forename and D as her surname will be in the best interests of Y, and accordingly I will make order 2 as sought in the summons insofar as it alters the name of Y. 19The applicants also seek orders in paragraph 1 of their summons dispensing with consents and the giving of notice. 20Section 52 of the Act prohibits the court from making an adoption order unless, in the case of a child who is less than 18 years of age, and who has not been previously adopted, consent has been given by each parent of the child, and any person who has parental responsibility for the child. Consent is not required under s 52 if the requirement for the consent has been dispensed with by the court: s 54(1)(a). 21Section 55 deals with the circumstances in which the consent of the child is necessary before an adoption order can be made. Subsection (1) deals with the circumstance that the child is 12 or more but less than 18 years of age and is capable of giving consent. Subsection (2) empowers the court to make an adoption order "in relation to such a child who is incapable of giving consent" in the circumstances therein set out. There is no requirement for the court to consider the consent of the child when the child is 12 or less years of age. 22Under s 66 a requirement for the consent of a child or any other person to the child's adoption under the Act can be dispensed with if the court makes an order under Division 3 of Part 5 of the Act dispensing with the requirement, which is defined as a "consent dispense order". 23Section 67(1)(a) materially provides: "(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that: (a) the person cannot, after reasonable inquiry, be found or identified, or..." 24Order 1(a) and (b) of the summons seeks an order under this provision. 25Under s 72(1) the court must not make a consent dispense order on the application of any person unless notice of the application for that order has been given to the person whose consent is sought to be dispensed with at least 14 days before the order is made. Subsection (2) relevantly provides: "(2) Subsection (1) does not apply if: (a) the person cannot, after reasonable enquiry, be found or identified, or..." 26The cumulative effect of ss 52, 54, 66, 67 and 72 of the Act is, for present purposes, that though the consent of a person is required by s52 to the making of an adoption order, s54 has the effect that the consent is not required if it has been dispensed with by the court. The court may make an order under s66 dispensing with that requirement. One ground for the making of the order which is available under s 67(1)(a) is that the person whose consent is required cannot, after reasonable inquiry, be found or identified. However, ordinarily s72(1) prohibits the court making a consent dispense order, unless notice has been served on the person whose consent is required of the application for the making of that order. The notice of the application for a consent dispense order is different to the notice of the application for the adoption order. The requirement for the latter notice arises under s 88. However, the requirement for giving notice of the application for the consent dispense order does not arise if, under s 72(2)(a) the person whose consent is required cannot, after reasonable inquiry, be found or identified. 27Evidence that the person whose consent is required cannot, after reasonable inquiry, be found or identified, is therefore relevant to the application for a consent dispense order at two stages of the application. First, if the court is satisfied of the matter, the court will be permitted to make the consent dispense order without proof that notice of an application for that order was served on the person whose consent is required. The court only need be satisfied of the matter, it is not required to make an order to that effect. The fact that the court is satisfied of the matter enables the court to proceed to make the consent dispense order, which under s 67(1)(a) can be made on the same ground. The only order made by the court is made under s 67. 28Section 68 (d) provides that the applicants for the adoption of a child may make an application to the court for a consent dispense order with the consent of the Director-General. That consent is to be inferred in the present case from par 5 of the affidavit of the Acting Director, and the steps taken by her deposed to in the following paragraphs of her affidavit. 29The available evidence suggests that Y's birth mother has identified a man as Y's father although legal paternity has not been established. The birth mother has suggested that the putative father is an adult male serving in the military, and that neither he nor his family were prepared to take any responsibility for Y's upbringing. The Christian Salvation Service ("CSS"), which has provided the available information concerning Y's birth father, notes that the information given by the birth mother could not be verified. 30In these circumstances I am satisfied that the birth father cannot, after reasonable enquiry, be found or identified for the purposes of ss 67(1)(a) and 72 (2)(a) of the Act, and that order 1 (b) should be made. As the paternity of the man identified by the birth mother has not been established, and as he has apparently taken no interest in the child, and no more is known about him than that he is said to be serving in the army of Taiwan, the evidence does not establish that the relevant gentleman is indeed a parent of Y, and, if he is, it would be unreasonable to expect the present applicants to take any additional steps to find him in order to seek his consent. Furthermore, the considerations which I deal with below in relation to the position of the birth mother a fortiori justify the making of the orders in relation to the putative birth father. 31The Acting Director has given evidence that she is aware of the applicants' request for the court to make an order dispensing with the consent of both of Y's parents to the making of an adoption order in favour of the applicants, as well as their request for the court to make an order to dispense with the giving of notice of the application. She says that on 19 June 2013 she convened a telephone conference with Ms Paula Voigtmann, who she describes as the Executive Director of CSS, which is an accredited adoption agency in Taiwan and which facilitated the making of the adoption order by the court in Taiwan in favour of Mr and Mrs D, regarding the adoption of Y. The objective of the conference was to enquire whether CSS was willing to contact the birth mother to assist in obtaining her consent to the adoption. 32The evidence is that CSS would not provide contact details for Y's birth mother to obtain her consent to the adoption. It advised that consent had been confirmed by the court in Taiwan and the adoption proceedings had been finalised. It is CSS' position that Y's birth mother could not consent to the adoption of a child for which she no longer has any legal rights. A copy of a letter dated 28 June 2013 from the Acting Director to Ms Voigtmann, in which the request for assistance was made, was annexed to the Acting Director's affidavit. A reply dated 10 July 2013, which was also annexed, stated: "... As you know, Christian Salvation Service (CSS) has provided all legal documents to the adoptive parents and to the Australian authorities in charge of immigration. If any additional copies of the relevant documents are required we can of course provide them from our files. In the above case, a full and final adoption order has been issued from the court in Taiwan. The mother's consent was verified by the court both in writing and by personal appearances before the court. There is no question that the legal guardian/guardians of any child legally adopted through our agency have satisfied the District Court Family Division judges of their consent. The District Court is also able to determine by independent investigation both the need for adoption, and the suitability of the adoptive parents. Christian Salvation Service is concerned that after a full and final adoption in Taiwan, issuance of an Australian Immigration Visa, and a year of post adoption follow-up by your government, we would receive a letter from your department stating "the Supreme Court is unable to rely upon the consent given by the birth mother in Taiwan." As I have previously stated, CSS is not in a position to contact a former legal guardian of a child regarding new or additional consent as under Taiwan law they have no legal authority regarding the child from the date of the Taiwan adoption. CSS hopes that this legal issue can be resolved in NSW since other states and certain other cases within NSW have no difficulty in issuing the Finalisation of Adoption Order." 33The Acting Director expressed the view in par 10 of her affidavit that it is important for Community Services to maintain a good working relationship with CSS. If Community Services were to ignore the protocol which CSS has set out in their reply and attempt to contact the birth parents independently of CSS, this may impact on the goodwill between Community Services and CSS which has been established over many years, and it would jeopardise any ongoing work between the two organisations. 34In the case of Application MKL & MJL; re YSL (above) Brereton J was not initially satisfied on the evidence before him that it was established that the birth mother could not be found or identified. He adjourned the application to permit the applicants to make submissions and adduce further evidence. 35In a further judgment, Application MKL & MJL; re YSL (No 2) [2013] NSWSC (case number omitted from medium neutral citation) Brereton J recorded at [2] - [4] that the applicants in that case had provided further evidence concerning their ability to find the birth mother, which appears to be materially identical to that which the Acting Director has provided in the present application concerning communications between Community Services and CSS. 36His Honour was satisfied by the evidence that further enquiry to find the birth mother was not reasonable, and he said at [5]: "The content of "reasonable enquiry" for the purposes of Adoption Act, s 67(1), varies according to the circumstances of the case. In this case, the birth mother has given consent in accordance with the law of Taiwan, and appeared before the Taiwanese court to explain her reasons. In that country, she has no continuing parental rights or responsibility. There is an established protocol between the Department and CSS for forwarding letters and photographs about the progress of an adopted child, from the adoptive parents to the birth parents. CSS has agreement with the adoptive parents and the relinquishing parents that contact will be through the means of CSS". 37I respectfully agree with his Honour's conclusion and with his reasons. It seems clear on the evidence that CSS, as an adoption agency apparently authorised to act as such under the law of Taiwan, effectively mediates arrangements whereby in appropriate circumstances children suitable for intercountry adoption may be placed for adoption in this State subject to the court making the necessary orders. That mediation role appears to extend to facilitating ongoing communications between adoptees and their adoptive parents and birth parents in Taiwan. CSS has given reasons in its response to the Acting Director's request for assistance, as to why it declines to assist in finding the birth mother. In my view in the circumstances it would not be reasonable for the court to expect parties in the position of the present applicants to attempt to find the birth mother by their own efforts, unaided by the assistance of an agency such as CSS. 38Furthermore, although the particular circumstances of Taiwan in international law lead to the need for parties in the position of the present applicants to apply for the making of an adoption order by the court in accordance with the Act, notwithstanding that an approval for the adoption has already been given by the appropriate court in Taiwan, it is a material consideration for the court in determining the extent of the enquiries that are reasonably required in the circumstances, that the birth mother has given consent to the Taiwanese court making its order. The court in Taiwan ought to be accorded respect and comity by this court. That observation is by no means intended to subvert the need for this court to apply the Act properly in accordance with its terms. But if the issue is a concern as to whether the court should make a consent dispense order, and to do so without requiring that notice of the application be given to a birth parent, it is appropriate for the court to take into account the giving of consent to the court in Taiwan, and the position adopted by an adoption agency such as CSS, in determining the lengths to which applicants can reasonably be required to go to identify or find the birth parents. 39In the circumstances I find that the requirements of ss 67(1)(a) and 72(2)(a) of the Act have been satisfied in relation to the birth mother, and I will make the orders sought in order 1 (a) of the summons. 40Finally, the applicants also seek in order 1 (c) of the summons an order pursuant to s88(4) of the Act dispensing with notice of the application for an adoption order to the child's birth mother and birth father. 41Section 88 materially provides: "(1) The Court may not make an adoption order unless at least 14 days' notice of the application for the order (containing the particulars, if any, prescribed by the regulations) has been given: (a) to any person whose consent to the adoption of the child concerned is required under this Act and has not been given... (4) The Court may dispense with the giving of the notice." 42As previously noted, the Acting Director has given evidence that she is aware of the applicants' request for the court to make an order to dispense with the giving of notice of the application. For the reasons I have outlined above, this is an appropriate instance for the court to exercise its power in s88(4) and dispense with the notice of the application for an adoption order to the child's birth mother and birth father as required by s88(1). I will therefore make the orders sought in order 1(c) of the summons. 43I will make the following orders: (1) (a) Order that the requirement of the consent of the child's birth mother to the adoption of Y by Mr and Mrs D be dispensed with. (b) Order that the requirement of the consent of the child's birth father to the adoption of Y by Mr and Mrs D be dispensed with. (c) Order that the requirement of notice of the application for an adoption order to the child's birth mother and birth father be dispensed with. (2) Order for the adoption of Y in favour of Mr and Mrs D and approval of the name "D" as the surname and the names "Y Lily" as the given names of the child. 44The orders that the court will formally make and seal will obviously contain the correct names of relevant persons.