Application of CMS and JTS - Child K-MM [2006] NSWSC 47

DECISION : Orders varying particulars in adoption order by amending year of birth

CATCHWORDS : ADOPTION - application to vary particulars in adoption order by amending year of birth - child born in remote part of Ethiopia and orphaned at early age - no reliable evidence of date of birth - observations of parents, medical evidence and opinions of teachers support conclusion that child one year younger than recorded age

Adoption Act 2000 Adoption of Children Act 1965 LEGISLATION CITED : Births, Deaths and Marriages Registration Act 1995, s.19(2) Supreme Court Rules 1970, Part 20 rule 10(1), Part 40 rule 9 Uniform Civil Procedure Rules 2005, rule 36.16

CASES CITED : Application of the Director General of the Department of Community Services [2004] NSWSC 44 Application of PMD [2004] NSWSC 556

PARTIES : CMS and JTS - Applicants KM-M - Child

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

80114/05 APPLICATION OF CMS AND JTS - CHILD K-MM JUDGMENT 1 An adoption order and ancillary orders were made by me in these proceedings on 28 October 2005 pursuant to the Adoption Act 2000. The parents now make application for a further order. 2 So that the purpose and effect of that further order may be properly understood, I should set out in full the orders of 28 October 2005 (with names and other identifying particulars altered to preserve the confidentiality the Act requires):

Surname: S………. Surname: S.…………. Other names: K…. M……. Other names: J………… Sex: Male Sex: Male D.O.B.: 5/1/1998 Occupation: [occupation] Place of Birth: Ethiopia Address: [address] Surname: S ………….. Other names: C………… Occupation: [occupation] Address: [address]

1. THE COURT MAKES AN ORDER for the Adoption of the child in favour of the adopting parents and approves the name K…….. M……… as the forenames of the child and S……… as the surname of the child. 2. THE COURT MAKES A FURTHER ORDER dispensing with the consents of the child's natural parents. 3. THE COURT MAKES A FURTHER ORDER dispensing with the giving of notice of the application to the child's natural parents. 4. THE COURT MAKES A FURTHER ORDER releasing a certified copy of the orders made herein to the Department of Community Services for transmission." 3 The order the parents now seek is an order varying the text I have thus set out by substituting "1999" for "1998" in the section labelled "D.O.B." under the heading "CHILD" stating the child's date of birth so that the date of birth is shown as 5 January 1999 instead of 5 January 1998. 4 The solicitor for the parents has referred me to two instances in which orders of the kind now sought were made following the making of adoption orders under the Adoption of Children Act 1965: Application of the Director General of the Department of Community Services [2004] NSWSC 44 (Bryson J) and Application of PMD [2004] NSWSC 556 (Palmer J). 5 In Application of the Director General of the Department of Community Services, Bryson J referred to the long-standing practice of the court to include the child's date of birth in the adoption order. As His Honour noted, the age of the child is relevant for several purposes related to adoptions and is also a significant part of the particulars identifying the child. Bryson J considered two possible sources of jurisdiction to correct the date of birth in the case before him - a case where information about the child's birth in another country was sparse and medical examination conducted in Australia, together with other evidence, showed that the child was some two years older than recorded. 6 The first possible source of jurisdiction considered by Bryson J was the "slip rule" being Part 20 rule 10(1) of the Supreme Court Rules 1970 as they then applied. He held that provision to be inapplicable in the circumstances: "What happened in this case was clearly not a clerical mistake. With the information available now, it is clear that there was an error, but in my opinion it cannot be described as "an error arising from an accidental slip or omission." The only material before the Court about the children's birth dates was clear and uncontentious and appeared to be reliable. There can in my view be no doubt that the Judge who made the orders fully and deliberately intended to adopt the dates which appear in the orders." 7 Bryson J next considered Part 40 rule 9 of the Supreme Court Rules as they then stood. I quote paragraphs [12] to [14] of the judgment: "[12] Counsel also referred to Part.40, r.9 of the Supreme Court Rules 1970 . This rule relates to setting aside or varying a judgment or order. Subrules (1), (2) and (3) set out a number of cases where setting aside or varying a judgment or order is authorised; none of these applies to the present case. Subrules (4) and (5) are in these terms: (4) In addition to its powers under subrules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief. (5) Nothing in this rule affects any other power of the Court to set aside or vary a judgment or order. [13] Each adoption order determined a claim for relief. I have to consider whether the reference to the birth dates in the adoption orders determined any question (whether of fact or law or both) arising on any claim for relief. In subrule (4) the exception, which I have set out with added emphasis, must be given a reading in which it is an exception and no more, and a reading in which it does not cover all the grounds covered by the conferral of power in the earlier part of subrule (4). It cannot be the correct reading of subrule (4) that the exception blots out the conferral of power which went before. It could be said that the age of a child is a question of fact arising on a claim for an adoption order, but if the subrule was read in that way it is hard to see any room in which it could operate. In my opinion the exception is not directed to matters (such as the birth dates) which are incidental or ancillary to the central provision which the order makes.

[14] Obviously enough, the birth date of each child was not central to the Court's decision to make an adoption order. It was relevant in the sense that the Court must know the ages of the child and the adopting parents, and the adoption order must identify the persons with whom it deals. In the present case, there was no dispute about the ages of the children. In my view it should not be held that, within the meaning of subrule (4), the statement of birth date in each order determined any question arising on any claim for relief. The birth dates were not in question; they were included essentially for the purpose of identification, not for the purpose of deciding or disposing of any issue. With hindsight it is known that the dates were wrong, and there is a strong case for the exercise of any available discretionary power in favour of varying the orders, so as to produce accuracy and to minimise adverse impacts on the children from attributing incorrect ages to them. In my view power is available under Part.40, r.9(4) to vary the adoption orders in respect of the dates given for the births of the children, and I propose to make orders varying those dates by substituting dates two years earlier than those shown." 8 Bryson J made orders varying the adoption orders by deleting the recorded year of birth and inserting instead the year that was two years earlier. 9 In Application of PMD, Palmer J followed the decision of Bryson J. His Honour made an order under Part 40 rule 9(4) of the Supreme Court Rules varying the adoption order to record a date of birth one year earlier than that shown in the order. He also made a consequential order under s.19(2) of the Births, Deaths and Marriages Registration Act 1995. 10 As regards jurisdiction or power, two developments since the decisions of Bryson J and Palmer J need to be taken into account. The first is that the adoption order with which I am concerned was made under the Adoption Act 2000, not the Adoption of Children Act 1965. The second is that Part 40 rule 9(4) of the Supreme Court Rules ceased to be operative on 15 August 2005 and has been replaced by rule 36.16 of the Uniform Civil Procedure Rules 2005. 11 I am satisfied that neither of these changes calls into question the availability in the present case of the approach that commended itself to Bryson J and Palmer J. The Adoption Act 2000 contains no provision relevant to the matter. Rule 36.16 of the Uniform Civil Procedure Rules is, in relevant respects, indistinguishable in effect from Part 40 rule 9(4) of the Supreme Court Rules (the text of which is set out in the above extract from the judgment of Bryson J). Rules 36.16(3) and (4) of the Uniform Civil Procedure Rules read as follows: " Further power to set aside or vary judgment or order (3) Without limiting subrules (1) and (2), the court may set aside or vary any order (whether or not part of a judgment) except so far as the order: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order." 12 I am satisfied that rule 36.16(3) permits the court today to take the course that was taken in the two earlier cases. 13 I turn therefore to the facts and the question whether, as the parents contend, the child's year of birth was 1999 rather than 1998. 14 Produced to the court in connection with the adoption application were a birth certificate and a passport issued in Ethiopia in respect of the child. Each records the date of birth as 5 January 1998. A report from the Child, Youth and Family Affairs of Ethiopia records the same birth date but goes on to make it clear that the child, together with a sibling, had been orphaned at an early age in a remote part of the country and was taken in by a monastery. The report says that "the information about the children is sketchy …". 15 It further appears from the evidence that the two children were taken to the monastery by relatives who were able to give to the monastery authorities no more than estimates or approximations of their ages. The material from Ethiopia does not disclose any reliable evidence of the date of birth. It refers to no more than estimate and approximation, from which I infer that 5 January 1998 was chosen by someone in authority in Ethiopia as an appropriate date based on the estimate or approximation. 16 In relation to the present application, I have before me, in the first place, the observations of the parents and, in particular, comparisons they have made between the child and other Ethiopian children of their acquaintance (they are members of a group of people who have children born in Ethiopia). The parents consider the child's behaviour to be of the same developmental level as that of Ethiopian children a year younger. 17 The parents have also put into evidence the opinions of a medical practitioner, the organiser of a young starters program and the assistant principal of the infants school the child attends. The medical practitioner states an unqualified opinion that the child's birthday is most likely to be 5 January 1999. The organiser of the young starter's program states that the child did not display the readiness that one would expect of a child of the recorded age, referring in particular to language skills and motor skills both of which were indicative of a younger stage of development. The assistant principal of the school, who was the child's class teacher in the kindergarten grade, provides information which does little to pinpoint the likely time of birth but in no way calls into question (and tends to support) the other opinion evidence. 18 In these circumstances, I am satisfied, first, that the date of birth as recorded in Ethiopia is no more than an approximation (given the child's early history to which I have referred) and, second, that, on the balance of probabilities, the child is a year younger than the age indicated by that recorded date of birth. It is appropriate that this be formally recognised. 19 I accordingly make the following orders: 1. Order pursuant to rule 36.16(3) of the Uniform Civil Procedure Rules 2005 that the adoption order relating to [name] made on 25 October 2005 in these proceedings be varied by deleting "1998" in the statement of the date of birth of the child and inserting instead "1999". 2. Order pursuant to s.19(2) of the Births, Deaths and Marriages Registration Act 1995 that the information about the birth of [name] arising from Order 1 be included in the relevant register kept under that Act. **********

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