Application of BJ and SH, Child J [2013] NSWSC 1857

Supreme Court of NSW|2013-12-10|Before: Child J, Hallen J, Re Children J

IN CHAMBERS 1HIS HONOUR: In this application, by Summons filed on 29 May 2013, an order is sought for the adoption of the child (whom I shall call "J") in favour of the applicants, who are the proposed adoptive parents, and to whom I shall refer as "BJ" and "SH" respectively, and an order to approve the last name by which J is to be known, so that it is the last name of the adoptive father (BJ). Additionally, orders are sought that the consent of each of J's birth parents to the adoption be dispensed with pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW) ("the Act"). The last of such orders are necessary because a record of a foreign court referring to such consent is not sufficient to satisfy the requirements for consent in the Adoption Act: Application of MSC and CJC; Re HES [2011] NSWSC 950; In the Matter of N and the Adoption Act 2000 [2012] NSWSC 1263. Finally, an order is sought that notice of the application for an adoption order to each of J's birth parents be dispensed with. 2J, who was born in Korea, was placed in the care of BJ and SH and they received documents pertaining to his adoption, on 1 June 2012. They returned to Australia, with J, on 5 June 2012 and all have been living together since then. The applicants are most suitable as adoptive parents and J has formed a close and loving bond with them. 3The Director General of the NSW Department of Family and Community Services, Adoption and Permanent Care Services ("the Department"), by his delegate, supports the application for the adoption of J. No 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 J to make the adoption order sought. Accordingly, an order for the adoption of J by the applicants will be made as the merits of the application are clear. 4Whilst there is no objection to the ancillary application for an order dispensing with the consents of the birth parents of J, or the order to dispense with the giving of notice of the application to them, or to the addition of an English last name, as sought by the applicants, it is necessary to say something briefly about those matters.

Background Facts 5BJ was born in January 1971. SH was born in April 1971. They were married in December 2003 and have remained married since that time. It is the only marriage of each of them. They do not have any other children, biological or adopted. They are both residents of New South Wales. 6J was born in July 2010. He is, therefore, 3 years and 5 months old. His birth mother and birth father met as school students and commenced a relationship. However, the relationship broke down after they left school, at which time J's birth mother found that she was five months pregnant. The birth mother, with her own mother, decided that she was too young, and also financially unable, to raise the child, and contacted an organisation known as the Eastern Social Welfare Society Inc ("ESWS Inc"), a Korean agency approved by the Korean government to conduct inter-country adoptions. The birth mother was admitted to its unwed single mother's home in Seoul. It is that organisation which has been instrumental in arranging J's adoption by the applicants. 7A Certificate, dated 25 November 2010, confirms that J was placed under the guardianship of Kim Jin Sook, the President of ESWS Inc. 8As White J did in Re K & The Adoption Act 2000 [2005] NSWSC 858, at [4], I shall also "infer from the material before me that it is under the supervisory jurisdiction of the Supreme Court of Korea. The president and chief executive officer of the ESWS, Dr Kim, was appointed guardian of the child ... that this is a procedural step which occurs when any child is placed in the control of ESWS ... that it takes place in order to give ESWS full control of the child, in a way that will not involve further contact with the child's parents [and that] [I]t appears from the Family Census Register that his appointment takes place with the approval, and is subject to the control of the Seoul Family Affairs Court". 9In May 2008, the applicants applied to the Department to adopt a child from overseas, preferably Korea. A short time later, a confidential adoption assessment approving them as suitable for that purpose was sent to ESWS Inc. 10Subsequently, the applicants were approved as adoptive parents and, in February 2011, they were interviewed and received details of J's social and medical background. 11On 10 February 2011, Kim Jin Sook, describing himself as "Guardian" of J, signed a "Statement of Consent to Overseas Adoption", irrevocably consenting to the child's immigration to Australia and his adoption by suitable parents, and authorising the Department to make any and all decisions and to take any and all legal steps necessary to accompany his immigration to Australia and adoption, in the following terms: "By virtue of my right as guardian of [the child], a minor child and having sole custody of the said, I, Kim, Jin Sook, hereby irrevocably consent to his/her immigration to the Australia and his/her adoption by suitable parents. I hereby authorize the Department of Community Services to make any and all decisions and to take any and all legal steps necessary to accomplish his/her immigration to the Australia and adoption, including the right to consent to medical and surgical treatment, the right to consent to adoption and the right to release the custody of this child, and to transfer the right to consent to the adoption of this child to any agency authorized to place children for adoption. I fully understand that I am hereby releasing irrevocably the custody of this child and I understand also that once the legal adoption has been completed, the adoptive parents will assume all the legal responsibilities for the child and will acquire all the legal rights incident to the relationship of parent and child. In consideration of this assumption of my legal obligations by the adoptive parents, I hereby waive all the rights which I now have over this child." 12The applicants did not meet either of J's birth parents in Korea, and there is little opportunity to do so now, as to date, no member of J's family has requested any contact with, or news of, J. However, the applicants have stated that they are "open" to providing any information that is sought from either of J's birth parents to her or him. 13The applicants propose that J has the surname of BJ, and that his forenames be his two (existing) Korean forenames. They feel it important that he retain his Korean names, as this will preserve his cultural identity as well as honouring his birth parent's decision to name him. Needless to say, this is a commendable approach by them and one which, in general terms, accords with the principles of the Act. 14With those brief background facts, I turn to the relevant provisions of the Act.

The Statutory Scheme 15The Act commenced on 1 February 2003. It has been amended since then. There is no dispute that it is the Act, rather than the Adoption of Children Act 1965 (NSW), that must be applied in the present case, since J was placed with the applicants after the commencement of the Act. 16Section 7 of the 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". 17Section 8(1) of the 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..." 18Section 32(1) of the 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 and the principle that the child's given name, identity, language and cultural and religious ties should, as far as possible, be preserved. 19Section 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, (d) the capacity to help the child if the child encounters racism or discrimination in school or the wider community." 20Section 52 of the Act provides: "Consent of Parents and Guardians Generally Required The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given: (a) in the case of a child who has not been previously adopted by: (i) each parent of the child, and (ii) any person who has parental responsibility for the child, ...." 21Section 54(1)(a) of the Act provides that consent is not required under s 52 if the requirement for consent has been dispensed with by the Court. 22Sections 66 and 67 provide that 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 Chapter 4, dispensing with the requirement (a "consent dispense order"). The circumstances in which a Court may make a consent dispense order are prescribed by s 67, which provides: "When can the Court dispense with consent of person other than the child? (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 (b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or (c) if the person is a parent or of, or person who has parental responsibility for, the child-there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or guardian. (d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child: (i) the child has established a stable relationship with those carers, and (ii) the adoption of the child by those carers will promote the child's welfare, and (iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36. (2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child." 23Section 88 of the Act provides that the court may not make an adoption order unless at least 14 days notice of the application for the order has been given to, relevantly, any person whose consent to the adoption of the child concerned is required under the Act and has not been given, or the requirement for which has been dispensed with by the court. Section 88(4) provides that the court may dispense with the giving of that notice. 24All of these sections point to the to the principle that the best interests of the child must be the paramount consideration. 25Section 72 deals with notice to be given of an application for a consent dispense order. 26Section 58 deals with the requirements for consent to a child's adoption to be effective. Subsection 58(5) provides: "5. Consent to a child's adoption given in another State under the law of the other State is an effective consent for the purposes of this Act." 27The provision of the Act which governs the naming of adopted children is s 101, which provides: "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." 28The meaning and effect of this section, prior to its amendment, was discussed by Campbell J (as his Honour then was) in The Application of O and P [2005] NSWSC 1297; (2005) 34 Fam LR 385, at [51] - [55]: "Construction of Section 101 - Structure 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 section 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. 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. Section 101(2)-(5) inclusive is directed in its totality to the Court. If section 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] HCA 21; (1947) 74 CLR 492 at 505; R v The Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49; The State of New South Wales and Others v The Commonwealth of Australia and Carlton and Another [1983] HCA 21 (1983) 151 CLR 302 at 321-322; FAI Insurances Ltd v The Honourable Sir Henry Winneke and Others [1982] HCA 26; (1982) 151 CLR 342 at 368; Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others [1986] HCA 40; (1986) 162 CLR 24 at 40; Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273 at 285. 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. 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 section 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 section 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 section 101, nor is there any necessary implication contained in section 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." 29Importantly, as stated, 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. 30Thus, 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. 31The Act provides for the recognition of overseas adoption orders. By s 108 of the Act, this Court can recognise as effective an adoption order made in a country that is party to the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Inter-country Adoption ("the Hague Convention") with respect to a child habitually resident in that country. Similarly, by s 113, the Court can recognise adoptions effected in a country that is a prescribed overseas jurisdiction within the Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998 (Cth). Otherwise, by virtue of s 116 and s 117, the Court can recognise, and declare the validity of, an adoption effected in accordance with the laws of a foreign country in circumstances where the adoptive parents were domiciled, or resident for at least twelve months, in the foreign country. 32Korea is not a Convention country. Nor is it a prescribed overseas jurisdiction. Accordingly, it is not open to proceed by way of recognising the Korean adoption under the Act: s 108 and s 113. 33Finally, I should refer to s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth), which provides: "6. Guardianship of non-citizen children (1) The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the parents and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens." 34J, being now in Australia, is presently under the guardianship of the Minister pursuant to s 6. Pursuant to s 5 of the Immigration (Guardianship of Children) Act, the Minister has delegated his functions under the Act to, amongst others, the Director, Adoption and Permanent Care Services, of the Department of Family and Community Services. Pursuant to s 11 of the Immigration (Guardianship of Children) Act, the Minister has directed that the provisions of that Act should cease to apply to the child from the date an order for adoption is made.

Consideration 35The evidence establishes that the court has jurisdiction to make an adoption order in respect of J under s 23 of the Act (J is present in the State, and each of the applicants, resides, or is domiciled, in the State). He is a person in respect of whom an adoption order may be made under s 24 (J is less than 18 years of age on the date on which the application for the order was made), and an order may be made in favour of the applicants under s 26 (the applicants are a couple), s 28 (both of them are resident or domiciled in the State, and are of good repute and are fit and proper persons to fulfil the responsibilities of parents), and s 31 (arrangements for the adoption of J, a non-citizen child, have been made by the Director-General or an accredited adoption service provider that may provide intercountry adoption services, and the provisions of the Act and the regulations relating to intercountry adoptions have been complied with). 36The evidence also establishes that the applicants are in all relevant respects suitable adopting parents. The assessor recommends that the adoption proceed. The Director of the Department supports that recommendation and, 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 Immigration (Guardianship of Children) Act 1946 (Cth), s 4AAA, 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. Because this is an inter-country adoption, the consent of the Director-General is not required [s 87(2)(b) of the Act]. 37Also, for the purposes of s 90 of the Act, I am satisfied that the best interests of J will be promoted by the adoption; that as far as practicable and having regard to his age and understanding, J's wishes and feelings have been ascertained and due consideration given to them; that the prospective adoptive parents have been selected in accordance with Act; that the applicable requirements of the Act and other relevant laws in respect of inter-country adoptions have been satisfied; and that the culture and language of the child and his given names, identity, and religious ties have been taken into account. 38In relation to the consent dispense order, I refer again to Re K, at [15] - [20]: "Whose consent is required under s 52? In Re S and the Adoption Act 2000 [2005] NSWSC 393 Gzell J dealt with an application for the adoption by an Australian couple of a child born in Korea. His Honour made an order dispensing with the consent of the child's natural parents and the giving of notice of the application to those persons under ss 67(1)(a) and 72(2)(a) of the Adoption Act. His Honour also held that no order was necessary dispensing with the consent of Dr Kim, the Executive Director of the Eastern Social Welfare Society Inc, having regard to the terms of s 6 of the Immigration (Guardianship of Children) Act 1946. That section provides that the Minister is to be the guardian of the person and of the estate in Australia of every non-citizen child who arrives in Australia, to the exclusion of the father and mother and every other guardian of the child. I agree with his Honour that the effect of that section is that Dr Kim's consent as guardian of the child is not required under s 52 of the Adoption Act as he is no longer the guardian of the child. 16 It was suggested by one deponent that having regard to s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth), it may not be necessary that the Court dispense with the consent of the child's parents. I do not consider that s 6 operates in that way. Although, under s 6, the Minister is the guardian of the person and estate of the non-citizen child to the exclusion of the father and mother, she is not deemed to be the child's parent (assuming that were possible). Nor do the child's parents lose their status as such. Ultimately, the Director-General of DOCS did not contend that the consent of the Minister's delegate was a sufficient consent for the purposes of s 52, if the consent of the child's parents was not obtained, nor a consent dispense order made. In WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 210 ALR 190; 79 ALJR 94, Kirby J observed (at [71]) that the delegation of powers made under s 5 of the Immigration (Guardianship of Children) Act 1946 had apparently been made without accompanying State laws authorising the exercise of such powers delegated under Federal law. Section 77(2) of the Adoption Act purportedly makes the Director-General the guardian of a child resident in NSW to which s 6 of the Immigration (Guardianship of Children) Act 1946 applies. A note to the section states that the functions of the Minister are presently delegated to the Director-General under s 5 of that Act. It seems that the NSW Parliament has accepted that guardianship functions under s 6 of the Immigration (Guardianship of Children) Act 1946 can be delegated to the Director-General. Neither the plaintiffs nor the Director-General of DOCS raised any issue concerning the validity of the delegate's consent. In the absence of any argument on the question, I can assume, as did Gzell J, the validity of the delegation. The requirements for the guardian's consent were satisfied. If it were the case under Korean law that the biological father and mother of the child ceased to be the child's parents on the appointment of Dr Kim as guardian, it may well be that for the purposes of s 52, the child has no parents, and no question arises of dispensing with their consent. (Luther v Sagor [1921] 3 KB 533 at 548; and cf Birtwhistle v Vardill (1840) West 500; 9 ER 578). However, there was no evidence that this was the effect of Korean law. I do not infer from the Family Census Register which records that the child had no father or mother, that this is the effect of Korean law. That record may be merely an administrative act to preserve the privacy of the parents and may not reflect their status under Korean law. Nor can Dr Kim's consent in Korea be treated as an effective consent for the purposes of the Act pursuant to s 58(5). That provision relates only to consent to a child's adoption given in a State or Territory of the Commonwealth. (Adoption Act 2000, Dictionary, definition of "State" and Interpretation Act 1987 (NSW) s 21). Hence the consent of the child's parents is required, unless it can be dispensed with under s 67." 39I note that Campbell J followed Re K in Re KN and The Adoption Act 2000 [2005] NSWSC 896, at [10]. His Honour also dealt with s 67, at [13] - [16]: "Dispense with Natural Parents' Consent? "For the reasons given in Re K, section 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) does not render unnecessary either the consent of the child's parents, or dispensing with that consent. Re K held, at [26], that in deciding whether to dispense with consent on the ground that the natural parents cannot after reasonable inquiry be found, whether an inquiry is reasonable is to be judged from the point of view of the person making the application, and of the person about whom the inquiry is made. In deciding whether the natural parents cannot after reasonable inquiry be found, the reasonableness of an inquiry from the perspective of the applicant has a different role to play than the reasonableness of the inquiry from the perspective of the natural parent. It is for the purpose of deciding whether, on the basis of information which the applicants have presented to it, the Court ought act without the consent of the natural parents, that the question of whether there has been 'reasonable inquiry' comes to be asked in the first place. The Court is, in effect, deciding whether it has a sufficient basis for action presented to it, notwithstanding that the natural parents have not consented. The seriousness of the action in question, involving as it does a severing of one set of parental ties and the creation of another, needs to be taken in to account in that exercise. So far as the perspective of the applicants is concerned the primary focus of the inquiry, it seems to me, is on asking what else it was reasonably open to the applicants to do. So far as the natural parents are concerned, the focus of the inquiry includes matters such as what reason there is to believe that either of the parents would wish to express his or her views about the proposed adoption, and on whether there is any legitimate reason why the parent ought not to be asked to express those views. In Re K, the factual situation appears to have been that, if the NSW Department made some further inquiries in Korea, it might conceivably have ascertained the identity and whereabouts of the parents of the child in question. In that situation, I agree that the fact that the parents were accorded privacy under Korean law was an appropriate matter to take into account in deciding that it would not be reasonable to require those inquiries to be made. If there were a situation where there was reason to believe that a loving parent had been separated from his or her child through some misfortune like war, the court might expect that even inquiries which were long shots but not clearly futile should be made before it was satisfied that the natural parents could not, after reasonable inquiry, be found, while in a situation where the natural parents had clearly abandoned the child such inquiries might not be expected to be made. In the present case, in light of the extremely sparse information known about the parents of KN, and the long time over which those parents have shown no interest in the welfare of KN, there is no reason to believe that any other inquiries are reasonably open, either to the applicants or the NSW Department, which might ascertain the identity or whereabouts of KN's natural parents. As well, KN's natural parents seem to have abandoned her long ago, and the strong likelihood seems today that they would have no interest in reclaiming her or preventing her adoption." 40In Re JSK and the Adoption Act 2000 [2006] NSWSC 1188, Brereton J noted that the birth mother had relinquished a child to an adoption agency in Korea. He concluded that whilst that did not constitute "consent" for the purposes of the Act, the fact of her doing so was highly relevant in considering whether any further inquiries would be "reasonable". 41(I note that both Re K and Re JSK were followed by Black J recently in In the Matter of N and the Adoption ACT 2000 [2012] NSWSC 1263 and by Darke J in Adoption of GWL [2013] NSWSC 1527.) 42As in Re JSK and the Adoption Act 2000, in this case, the birth mother relinquished J to the ESWS. There is no suggestion of either of the birth parents of J wishing to maintain any form of contact with J after his birth. Furthermore, in the document headed "Initial Social History", a copy of which forms part of the evidence relied upon, neither the identities of the child's birth parents (save for surnames), nor their current whereabouts, are known to the applicants or to the Director General. 43It has been submitted that there is no likelihood that any inquiry of which the applicants are, or the Director General is, capable of making would enable the identification and location of either of the natural parents, and there is little likelihood that either of the birth parents would wish to be contacted. Respectfully, I agree. 44I am now satisfied that it would not be reasonable to require further inquiry as to the identity and whereabouts of the birth parents, and, therefore, that they cannot after reasonable inquiry be found. I am also satisfied that it is in the interests of the child that a consent dispense order in respect of the applicants be made. 45For the same reasons, I am satisfied that notice should not be required to be given to the birth parents. 46In Re Application of H and H, child JW [2011] NSWSC 93; (2011) 45 Fam LR 681, at [28] - [42], I set out the principles relevant to the issue of the change of a child's name. What I said was followed by Ward J (as her Honour then was) in Application of AW and IW Re Children J and J [2011] NSWSC 1529 and by Robb J in Application D and D; Re Y [2013] NSWSC 1477. It is not necessary to repeat what I wrote in that case. 47Having read the evidence, I am satisfied that it is in the best interests of J to approve the surname of the adoptive father as J's surname, as the applicants have sought. J is too young to have a level of understanding sufficient to enable him to express any mature wishes on the issue of whether his surname should be changed. Yet it is clear that bearing the same surname as BJ and SH (if she uses that name) would contribute to J's sense of belonging. Further, it would only be sensible and proper for his surname to be the same as that of his adoptive parents. Changing his surname will not have a damaging effect on his appreciation of his cultural heritage since J will continue to be used as his first name. 48In the circumstances, I shall make the orders sought by the applicants in Paragraphs 1, 2, 3 and 4 of the Summons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 January 2014

Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998(Cth)

Adoption of Children Act 1965(NSW)

"State" and Interpretation Act 1987(NSW)s 21).

(2011) 45 Fam LR 681

(2005) 34 Fam LR 385

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