Application of CP and JP - Child: S [2004] NSWSC 687 - NSWSC 2004 case summary

Supreme Court of NSW|2004-08-03|Before: Barrett J

CITATION : Application of CP and JP - Child: S [2004] NSWSC 687 HEARING DATE(S) : In chambers JUDGMENT DATE : 3 August 2004

JURISDICTION: Equity Division Adoptions List JUDGMENT OF : Barrett J DECISION : Change of name approved

CATCHWORDS : FAMILY LAW - overseas adoption - change of name of infant child - relevant considerations LEGISLATION CITED : Adoption of Children Act 1965, s.38 Adoption Act 2000, s.101 Application of MJR and MJR - Child: KHB (2003) 31 Fam LR 50 CASES CITED : Application of M and S (2004) 31 Fam LR 415 Application of PM and CM - Child: YC (2004] NSWSC 461 PARTIES : CP and JP - Applicants Child: S FILE NUMBER(S) : SC 80093/04 COUNSEL : Nil SOLICITORS : Applicants in person Department of Community Services

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTIONS LIST

80093/04 - APPLICATION OF CP AND JP - CHILD: S JUDGMENT 1 The plaintiffs, a husband and wife, seek and order in their favour for the adoption of a boy aged 3 years and 4 months together with ancillary orders. 2 The adoption order clearly should be made. The evidence makes it plain that the plaintiffs are in all respects suitable adopting parents well able to provide for the child a stable and happy home as well as material and other benefits. It is undoubtedly in his interests that the plaintiffs should become his parents. There is, however, one aspect of the application that requires consideration. It concerns the names proposed for the child. 3 The child was born in Thailand in March 2001. His parents are unknown and efforts by Thai officials to trace them have been unsuccessful. He accordingly has no known surname or family name. Soon after birth, the child came into the care of the Department of Public Welfare in Thailand and was transferred to a babies' home. It was apparently there that he was given the name "S" which, until his placement with the plaintiffs, was his sole name. "S" is, I infer, a forename in general use in Thailand. Common experience tells me that it is not a name encountered in the ordinary course in Australia. 4 The plaintiffs seek an order approving for the child two forenames together with the plaintiffs' surname. They, as a married couple, follow the tradition under which both husband and wife use the husband's family name. The forenames the applicants wish the child to have are a male forename in common use in Australia ("B") followed by his existing name, "S". 5 The Director-General of the Department of Community Services opposes the making of this order. When the papers came before me in chambers it was not clear that the statement of opposition related to the naming proposal precisely as it was set out in the plaintiffs' summons. A letter from the Department received on Friday last, 30 July 2004, made it clear that this is the case and that the Director-General's opposition relates to the proposal that the child's forenames be "B" followed by "S". There would be no opposition if the plaintiffs sought approval of forenames consisting of "S" followed by "B". 6 As is testified by an open "To Whom it May Concern" letter from a delegate of the Director-General dated 17 December 2002, the child was placed in the custody of C and J on 28 November 2002. This was before the commencement of the Adoption Act 2000. As a result, the application for adoption is to be dealt with under the Adoption of Children Act 1965, despite repeal of that Act: see Adoption Act 2000, Schedule 3, clause 8. The restrictions imposed by s.101 of the Adoption Act 2000 therefore do not apply. Those restrictions include the restriction imposed by s.101(5) in the case of a child more than one year old or a non-citizen child: "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 there are special reasons, related to the best interests of the child, to do so." 7 Although the child now under consideration is both more than one year old and a non-citizen child, the fact that the application is to be dealt with under the 1965 Act to the exclusion of the Act of 2000 means that the applicable statutory provision with respect to naming continues to be s.38 of the former Act: "(1) Subject to subsections (2) and (2A), upon the making of an adoption order, the adopted child shall have as his or her surname the surname of the adoptive parent or parents and shall have as his or her forename or forenames such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.

(2) Where, 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 shall have that name as his or her surname.

(2A) An approval of a change in the forename or forenames of a child who has attained the age of 12 years shall not be given by the Court unless the child has, in a consent given under section 33, consented to the change or, where the child has not attained the age of 18 years, the Court is satisfied that there are special reasons, related to the welfare and interests of the child, why the change should be made notwithstanding that the child has refused to consent to the change or his or her consent has not been sought.

(3) Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, in accordance with the law of New South Wales." 8 Under the provisions of the 1965 Act thus applicable, the court has power to approve as forenames only such names as are the subject of an application for approval by the adoptive parents: s.38(1). The restrictions on change of forename imposed by s.38(2A) apply only in the case of a child who has attained the age of 12 years and are accordingly irrelevant here. 9 The Director-General's opposition to the naming desired by the plaintiffs appears to proceed on the assumption that the Adoption Act 2000 applies or, at least, that the principles it states should be observed. The Director-General's submissions concentrate on the "special reasons" requirement imposed by s.101 of that Act. The Director-General, after referring to relevant provisions of the United Nations Convention on the Rights of the Child (UNROC), says: "It is important to preserve the child's birth name to maintain a clear and tangible identity, language and cultural ties to their country of origin. A child adopted from overseas has lost his/her birth culture, birth parents and birth country. For these children, his/her name remains one of the only links to the above. No amount of socialising in a foreign country provides a real and substantial connection as a birth name would. These principles were clearly elucidated in the Review of the Adoption of Children Act (1965) (NSW) undertaken by New South Wales Law Reform Commission Report 81." 10 The Director-General then refers to features of this particular case. There is reference to the allocation interview with the plaintiffs on 30 August 2002 in which the plaintiffs reportedly said that they "planned to keep [S's] name, and add a second name of their choosing"; and that they "had not finally decided on what this name will be". Whether "second" here was meant as "subsequent" or merely "additional" is not clear. The Director-General has obviously taken it to mean "subsequent". The Director-General also makes the sweeping and legally wrong assertion that "[a]ny reference by the applicants to the child by another name has been a clear contravention of the Adoption Act 2000". 11 This attitude of the Director-General is somewhat puzzling in the light of the delegate's letter of 17 December 2002 already mentioned and a letter from the Department of Community Services to the plaintiffs dated 20 May 2004. The first of these refers to "[S], now known as [BS] [plaintiffs' surname]". The second refers to "your adoption application of [BS]". The Department has thus apparently been content to refer to the child by the "BS" forenames desired by the plaintiffs but now formally opposed by the Director-General. 12 The plaintiffs rely on these two letters and other matters in support of the making of the order they seek as to names. The other matters are, first, that the child has been called "BS" since November 2002 and can now say that name; second, that he was baptised in the Anglican church by the names "BS" on 7 March 2004; and, third, that he appears on the family's Medicare card by the name "B" followed by the initial "S". 13 On one view, it would be sufficient to say in this case that, because the matter of naming is to be dealt with in accordance with the 1965 Act to the exclusion of the 2000 Act, factors that the latter Act makes relevant but the former does not may simply be ignored. I am satisfied, however, that that would be too narrow a view: see the decision of Bryson J in Application of MJR and MJR - Child: KHB (2003) 31 Fam LR 50, the approach in which was subsequently adopted by Campbell in Application of M and S (2004) 31 Fam LR 415 and by Austin J in Application of PM and CM - Child: YC [2004] NSWSC 461. The present is one of the small number of cases referred to by Bryson J as follows: "This application is to be decided under the provisions of the Adoption of Children Act 1965. It can be expected that a small number of applications to which the Act of 1965 applies will come before the Court over the next few years as there is often an interval of one or several years between an adoption placement and an application for an order. Section 38 of that Act dealt with names of adopted children. Its provisions bore a general resemblance to provisions now found in s.101, but it did not have a provision corresponding to s.101(5), or a test of special reasons. (In the Act of 1965 the terminology referred to forenames whereas the Act of 2000 refers to given names). Section 17 made the welfare and interest of the child concerned the paramount consideration, and this extends to decision on what should be the child's forenames. Subsection 38(1) said to the effect that the child "… shall have as his or her forename or forenames such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents." Although it was for the adopting parents to make an application for approval of forenames, the Court was not bound to accept what they asked. The practice has long been for the Court to accept what the adopting parents propose. However submissions made in this case, and the terms of s.101 of the Act of 2000 show that this will not always be appropriate. A special test relating to children who are more than one year old, or who are non-citizens, reflects a perception that adopted children, including children adopted from overseas, go through change and dislocation and disruption of everything in life that is familiar, and the maintenance of the child's name may have some beneficial influence in this disruption, and in the longer term may have positive influences on the development and strength of the child's sense of identity, in childhood and later. The New South Wales Law Reform Commission's Report 81 Review of the Adoption of Children Act 1965 (NSW) dealt with the maintenance of birth names and pointed to advantages for the child of maintaining the birth name, with a reference to a provision of the United Nations Convention on the Rights of the Child to "… preserve his or her identity, including nationality, name and family relations."

These things have revealed perceptions of the interrelation between the welfare and interest of the child concerned and decision on whether the child's forename should be maintained or changed in an overseas adoption which were not earlier available and which the Court did not earlier act upon. Now that this perception is available it is appropriate for the Court to bring it to bear on its consideration of the interest of the child in any application to change the child's forenames, not only under the Adoption Act 2000 where a special statutory test has been prescribed, but also under the Act of 1965." 14 The rules now applicable under the Act of 2000, as they apply to a non-citizen child, are obviously the product of a concern that the interests of such a child in maintaining his or her heritage and birth culture should be recognised. In the case of a child over the age of one year, there is a concern to preserve any established name that the child will recognise as going to his or her identity. The welfare of the child must be the overriding consideration in all such cases. 15 The child with whom I am currently concerned was about 20 months old when placed with the plaintiffs. He has been with them and their daughter for about the same period. It may be inferred that, during the first half of his life - or at least from the point at which he began to understand references to himself - he identified with the name "S" alone. Throughout his time as part of plaintiffs' family, he has been known as "BS", a name that he can now say and by which he refers to himself. His familiarity with that name has obviously developed during a period of growth in his understanding and sense of identity. 16 On the evidence, there is no ground for apprehension that the plaintiffs seek to stifle or relegate the child's Thai origins and heritage. Indeed, the opposite is the case. The plaintiffs lived in Thailand for five years and have visited on several occasions since. The persons providing testimonials in support of the adoption application say that the plaintiffs have Thai furniture and decoration in their house and have a number of Thai friends. The older child, also adopted, is of Thai origin. She has three forenames of which the first two are names in general use in Australia and the third appears clearly enough to be a Thai name. She is said to attend Thai "school" in school holidays. 17 My conclusion is that the naming pattern the plaintiffs desire, considered in the context of the family's obvious commitment to preserving and enhancing the child's awareness of his Thai heritage and Thai culture (as the parents appear to be doing already for their daughter), will adequately serve the interests of the child. The parents are Christians and have presented the child for baptism by the name "BS". It is understandable that they have a cultural desire for him to have "B" as a "Christian name". It is also understandable, as well as commendable, that they will, through retention and use of "S" as a second forename and steps to keep the child in touch with his birth culture, show a sensitivity for the policy on which the current legislation is founded. The child is, in my view, fortunate to have parents thus willing to foster the two branches of the twin heritage with which he will grow to manhood. 18 On the plaintiffs' summons as it stands, the court may, consistently with the Adoption of Children Act 1965, either grant or refuse the application (made in conjunction with the adoption application itself) for an order that the child's forenames be "B" and "S" in that order and that his surname be that of the plaintiffs. Having regard to the terms of the summons and s.38 of that Act, these are the only courses the court may take. The present application does not enliven jurisdiction to make the order that the Director-General prefers (but for which the plaintiffs do not apply), namely, an order that the forenames be "S" and "B" in that order and that the surname be that of the plaintiffs. I say nothing about whether "special reasons" of the kind envisaged by s.101(5) of the Act of 2000 might be found to exist in this case. But I do say that, in light of all the matters to which I have referred, I have no hesitation in making with respect to the child's names the order the plaintiffs seek. Such a result is consistent with the conclusions of Bryson J, Campbell J and Austin J in the cases to which I have referred. 19 I make the orders 1 to 4 in the form of orders which I now sign and date. **********

Last Modified: 08/03/2004 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.

Adoption of Children Act 1965(NSW)

(2004) 31 Fam LR 415

Application of CP and JP - Child: S [2004] NSWSC 687

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