Attorney-General for Canada v Attorney-General for Ontario

Application of CP & JP - Child: S [2004] NSWSC 687 Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326 Coleman v Power (2004) 78 ALJR 1166; (2004) 209 ALR 182 Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385 FAI Insurances Ltd v The Honourable Sir Henry Winneke and Others (1982) 151 CLR 342 Gourlay v Casey (1927) 38 CLR 586 Re H and the Adoption Act (2004) 62 NSWLR 245 Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; (1991) 103 ALR 684 Jess v Scott (1986) 12 FCR 187 Re KM and the Adoption Act 2000 [2005] NSWSC 896 King Investment Solutions v Hussain [2005] NSWSC 1076 Application of "M" and "S" [2004] NSWSC 203 sub nom Re M & Another (2004) 31 Fam LR 415 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 CASES CITED : Minister for Community Services & Health v Chee Keong Thoo (1988) 78 ALR 307 Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1; (2003) 195 ALR 502 Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 Re MJR (2003) 31 Fam LR 50 R v The Australian Broadcasting Tribunal; Ex parte 2HD Proprietary Limited (1979) 144 CLR 45 Republic of Italy v Hambros Bank Limited [1950] 1 Ch 314 The State of New South Wales and Others v The Commonwealth of Australia and Carlton and Another (1983) 151 CLR 302 Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 Detrick, "The United Nations Convention on the Rights of the Child - a Guide to the "Travaux Préparatoires"", Martinus Nijhoff Publishers, 1992 Hodgson, "The Child's Right to a Legal Identity" (1993) 7 Australian Journal of Family Law 121 Avery, "A Return to Life: the Right to Identity and the Right to Identify Argentina's "Living Disappeared"" (2004) 27 Harvard Women's Law Journal 235 Stewart, "Interpreting the Child's Right to Identity in the UN Convention on the Rights of the Child" (1992) 26 Family Law Quarterly 221 United Nations Convention on the Rights of the Child Vienna Convention on the Law of Treaties

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

80115/05 APPLICATION OF "O" AND "P" JUDGMENT 1 HIS HONOUR: This judgment relates to an application for the adoption of a boy born in Korea. Once I had reached the conclusion that the orders which the applicants sought should be made without amendment, I made those orders in Chambers on 8 December 2005, and then arranged for the parties to be notified of the orders, and of the fact that I would give reasons later. That way of proceeding is legally permissible (King Investment Solutions v Hussain [2005] NSWSC 1076 at [144]-[164]). Because this is an application for adoption orders, where the proceedings are usually conducted through the filing of affidavits and written submissions, and the making of orders in Chambers, and there is usually an understandable desire on the part of the parties to know the result of the application as soon as possible, it was appropriate to adopt that procedure in the present case. 2 The merits of the application for an adoption order are clear. There was no contest between the applicants and the Department of Community Services ("the Department") about whether the order for adoption should be made, so I need give no reasons concerning the making of the adoption order itself. 3 For the reasons I gave in Re KN and the Adoption Act 2000 [2005] NSWSC 896 at [18]-[26], I have made an order releasing a certified copy of the orders to the Department, for transmission to Eastern Social Welfare Society Inc. the Korean organisation which has been instrumental in arranging the adoption. 4 There was a dispute between the proposed adoptive parents and the Department as to whether a change in the given name of the child should be approved, involving the placing of a Western given name in front of his Korean given names, and the retention of his Korean family name as an additional given name. I have approved the name that the applicants want. These reasons relate to the dispute about the boy's name. 5 The law governing this adoption is the Adoption Act 2000 ("the Act"). That is because the Act commenced on 1 February 2003, its transitional provisions exempted from the operation of the Act applications to adopt children where the child had been placed with the prospective adoptive parents before the commencement of the Act (Schedule 3 Clause 8), and the child involved in the present case was placed with the applicants after the commencement of the Act. 6 The provision of the Act which governs the naming of adopted children is section 101: "(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 there are special reasons, related to the best interests of the child, to do so. (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." 7 The Department opposes the name change on the ground that "special reasons" are not made out. As well, the Department relies on several reasons why the name change should not be approved. It acknowledges that the applicants have been calling the child by the western given name by which they would like him to be known since the time of his placement with them, but say, in effect, that this has been done by stealth, and dishonestly. In the words of the affidavit of the Delegate of the Director-General, the de facto name change "clearly contravenes the commitment made by the applicants through the entire adoption process." Further, the Delegate says the change of name would contravene several legal standards which he contends are applicable. 8 The issues in the case relate to whether the matters the applicants rely on as "special reasons" are enough to pass section 101(5), and whether any of the various submissions of the Delegate concerning reasons why the name change ought not be made are sound. The Applicants' First Adoption 9 The applicants are husband and wife. They have previously adopted a boy who was born in Korea in February 2001. I have consulted the file relating to his adoption in connection with the application now before me. 10 The first child the applicants adopted was known in the period soon after his birth by a Korean family name (KFN-1) and Korean given names (KGN-1 and KGN-2). Those names were arranged according to the usual Korean convention for the order of personal names with the family name first, followed by a comma, followed by the given names. Thus, the child's name took the form: "KFN, KGN-1 KGN-2". 11 After coming into custody of the applicants he was ordinarily called by a Western given name (WGN-1), and known also by the adoptive father's surname (AFS). Unusually, his Korean family name was retained as part of his name, but with the Korean parts of his name ordered in accordance with the usual Australian convention for the order of personal names, so that the Korean family name came after the Korean given names. Thus, his full name has taken the form "WGN-1 KGN-1 KGN-2 KFN-1 AFS". An order relating to his adoption by the applicants was made on 24 July 2002, and in that order the names taking the form "WGN-1 KGN-1 KGN-2 KFN" were approved as the forenames of the child. 12 That adoption was made under the Adoption of Children Act 1965. There was no question raised about whether the change of name of the boy should not be approved. The social worker who reported on the desirability of making the adoption, Ms Gwenda Gray, made her report for the Court on 18 May 2002. In it, she referred to the child as "WGN-1". Events Before Placement of the Second Boy 13 On 27 April 2002 the applicants made another application to adopt a child from overseas, preferably Korea. That application resulted in the placement of another Korean boy with them, who is now the subject of the present adoption application. 14 In August 2003 the boy the subject of the present application was born. The day after his birth his mother referred him for adoption to the Eastern Social Welfare Society Inc. While she knew who the boy's father was, she had lost contact with him and had never been able to inform him of her pregnancy. 15 The boy was named by the intake worker of the Society, and given a name in the usual Korean form of "KFN-2, KGN-3 KGN-4". In his case, the Korean family name was the same as the family name of his mother. The Korean given names do not have, it seems, any particular connection with his biological parents. The Korean given names and the Korean family name of this child were all different to the Korean given names and Korean family name of the applicants' first child. When the boy was about three weeks old he was placed in foster care with a lady aged 60 and her husband. They had adult children, who were living on their own. The Society's records say that this lady, "… has taken good care of babies with devotion for 6 years … She is calm, diligent, and devoted to child care … He has been growing well under foster mother's loving care and love." 16 It is the usual practice of the Eastern Social Welfare Society Inc. to complete a form called an "Initial Social History" which gives some information about a child who is available for adoption and its parents. The form when completed was made available to the Department, and used in seeking to match the child with suitable prospective adoptive parents. That form gave this child's name as being the one given him by the intake worker, arranged in the order appropriate under the Korean convention for order of personal names. There is provision in that form for filling in a space labelled "Meaning of Name". The form relating to this child gave, concerning each of the Korean given names of the child, a meaning which was optimistic and attractive. 17 Other documents, besides the Initial Social History, were prepared in Korea relating to the child, which referred to him by exactly the same name as had been used in the Initial Social History. These were:

15 September 2003 - Certificate of Appointment to Guardian of Minor Orphan in Orphanage, given by what appears to be a Korean official entitled "Chief of Sodaemun Ward Office", appointing the President & CEO of the Eastern Social Welfare Society Inc. as guardian of the child.

17 September 2003 - medical report of Eastern Social Welfare Society Inc. relating to the child.

23 September 2003 - "Family Census Register" concerning the child created by the "Chief of Sodaemun Ward Office" .

15 October 2003 - Certificate of Birth issued by Eastern Social Welfare Society Inc.

15 October 2003 - Statement of Consent to Overseas Adoption by the child's Korean guardian.

16 January 2004 - passport, issued by the Ministry of Foreign Affairs and Trade of the Republic of Korea. 18 On 20 October 2003 Ms Gwenda Gray, the social worker who had been involved in the applicants' adoption of their first child, interviewed the applicants and discussed the background of this child with them. The applicants signed documents indicating a desire to adopt him. Ms Gray's report records that the applicants: "… were very happy and excited to have received the allocation. They picked up the photographs on Friday, and had made copies and emailed them to friends and family. Everyone is very positive and excited for them. [The applicants] have also been showing their son [WGN-1] the photographs and are preparing him for the trip to Korea …" 19 In the report she refers to the child the subject of the present application as "KGN-3 KGN-4". Under a separate heading of "Child's Name", Ms Gray records that the applicants: "… are keeping the child's name, and adding [WGN-2]" 20 On 8 February 2004 the child was first placed in the applicant's care, and was brought back to Australia. At the time the child was about a week short of being six months old. 21 There were some letters from the Department to the applicants after that, which referred to the child by his Korean names, but with those Korean names arranged in the conventional Australian format for personal names, with no comma in the name and the family name last, ie as KGN-3 KGN-4 KFN-2. 22 WGN-2 has been the name used for the child in ordinary daily activities by the applicants, and their extended family and friends, since the child arrived in Australia in February 2004, a period now of over 22 months. It is the name by which he has been referred to by doctors, under which health insurance for him is provided, under which the Federal Government provides family benefits, and under which he is enrolled in part-time day care. The only people with whom he has come into contact who have not referred to him as WGN-2 are the Department, or government bodies, such as Medicare, that have had information provided to them by the Department. He is now nearly two years and four months old. 23 Both applicants were raised in the Catholic faith, and attend Mass every few weeks (according to one piece of evidence) or "approximately once a week" (according to other evidence). The male applicant sings in his local church choir. They intend to raise their children in the Catholic faith, and may send them to Catholic schools. One of their referees refers to their "strong Catholic faith", and reports on the regularity of their church attendance. Another referee identifies one of the contexts in which he has come to know the applicants as being through attendance at a Catholic church near their home. The applicants' first child was baptised in the Catholic Church in November 2001. The name by which he was baptised was WGN-1 KGN-1 KGN-2 KFN-1 AFS. 24 The child the subject of this application was baptised in the Catholic Church on 8 August 2004. The name by which he was baptised was WGN-2 KGN-3 KGN-4 KFN-2 AFS. 25 Ms Gray, the social worker, visited the applicants' house in connection with the child's adoption on 21 April 2004, 17 August 2004, and 16 November 2004. She produced a report dated 18 November 2004, in the course of which she refers to the child as KGN-3 KGN-4. She reports that the two boys "have developed a good sibling relationship", and that the younger boy loves to do whatever his older brother is doing. She reports: "[The applicants] are also aware of the importance of building a positive cultural identity for both boys. They have chosen to keep the boys' Korean names, but feel strongly that these are best as middle names, rather than first names, so [KGN-3 KGN-4] is known as [WGN-2]. Both [applicants] have learnt Korean, and [the male applicant] has done so for a few years now. They are involved with the Saet Byol school, as well as other cultural activities through the Australian Society for Intercountry Aid for Children. They observed Korean traditions for the children's first birthdays, such as wearing hanboks. [The applicants] commented that [their first adopted child] was very proud to wear his hanbok for [their second adopted child's] first birthday. They see it as very important to make sure that both boys have the opportunity to learn about their Korean culture and language, and they also plan to travel back to Korea regularly. [The applicants] are also aware of issues of difference and racism, and will be supportive with the boys in listening to their experience and working on strategies. They will be strong advocates for the boys and will choose schools carefully, as well as being involved with school programs." 26 The "Saet Byol School", referred to by Ms Gray, is an organisation of parents and friends of children adopted from Korea that fosters and teaches Korean culture and language. The Australian Society for Intercountry Aid for Children (NSW) ("ASIAC") is an organisation of people involved in intercountry adoptions. 27 Ms Gray's report recommends that the adoption be finalised. She says, unequivocally, "there are no concerns with this placement". 28 As well as the matters referred to in Ms Gray's report concerning the applicants' fostering of an interest in Korean culture and language in their children, they are active in more than the cultural activities of ASIAC. The male applicant is now the Secretary of that organisation. The applicants wrote a submission for ASIAC to the ongoing Federal Government House of Representatives Standing Committee on Family and Human Services Enquiry into Adoption of Children Overseas, and the male applicant appeared at the Sydney public hearings of that committee on 23 September 2005 on behalf of ASIAC. Identifying the Change in Given Name 29 Some matters concerning the construction of section 101 have been settled by the decision of the Court of Appeal in Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385. These are: "[25] … the given name or names of a child for the purposes of s 101(5) are the name or names conferred on the child other than the surname, not necessarily either officially conferred or recognised by the child as referring to him or her. … [33] … I do not think that it can be accepted that the legislature intended that strict concepts of surname and given name according to the Anglo-Celtic tradition, still less all the intricacies of the common law, should be taken up in s 101 of the Act. … s 101 took as its model the customary but by no means universal naming tradition of a surname and a personal name or names given to the child, not in the sense of given at baptism or confirmation but in the sense of conferred on the child. What name or names have been conferred on the child is a question of fact, ordinarily easily answered but perhaps sometimes requiring search for the equivalents of a family name and a personal name or names as the child's surname and given names for the purposes of the section." [34] Young CJ in Eq was influenced by the Law Reform Commission report's emphasis on a child's identification with his or her name and the Act's principle directed to preservation of the child's given name or names and identity. It does not follow, however, that a name is not a given name unless the child has come to recognise that it refers to him or her. That is no part of "given" in any sense, and a child will have a name (whether called a forename, a first name or a given name) before he or she is of an age to identify with the name. In my opinion, while the basis for s 101(5) is that the child will "identify with a particular name" (report para 10.233), it calls for ascertaining the given name or names with which the child is likely to identify as well as has identified and does not make identification part of the ascertainment of the name or names. … [37] … A sensible operation is given to s 101(5) if the given name or names are the name or names as at the time the child is placed with the proposed adopting parents. Subsequent acquisition of a different name or names may fall for consideration as or as part of special reasons related to the best interests of the child for approving a change to the given name or names." … [41] … the addition of a name, whether as a first name or following the child's existing given name or names, would be a change in the child's given name or names." 30 It follows from these principles that the "given name" of this child is the name other than the family name which had been conferred on the child at the time of his placement with the applicants. Thus, his given name is KGN-3 KGN-4. The applicants are seeking approval to two separate changes to that given name. The first is the addition of WGN-2 at the front of those given names. The second is the addition of KFN-2 at the end of those given names. Adding KFN-2 is a change in the given name, because what the applicants wish to do is to change the name KFN-2 from being the family name of the child to being one of his given names.

The Applicants' "Breach of Commitment" Argument 31 The Delegate of the Director-General, Mr Jones, submits that any reference by the applicants to the child by another name "has been a clear contravention of … their commitment as demonstrated during the adoption process …". That submission requires examination of some additional facts. 32 In the time after the placement of their first child with them, the applicants were active members of ASIAC. The applicants attended the Annual General Meeting of that organisation on 10 May 2002. Mr Moore, an official of the Department, addressed the meeting concerning the Adoption Act 2000 (which by that stage had passed both Houses of Parliament and been assented to, but not yet proclaimed to commence). He specifically discussed the naming provisions in the new Act. The applicants sought clarification from him on some issues related to those provisions. 33 On 16 May 2002 the applicants attended a Preparation for Adoption Seminar organised by the Department, in connection with their new adoption application. Mr Jones, the Delegate of the Director-General of the Department who has sworn the Delegate's affidavit in connection with this application for adoption, says concerning this seminar: "It is on each Preparation for Adoption Seminar agenda and the practice of the social workers delivering the training to raise and discuss the importance of a child retaining his or her birth names as "given names" so as to aid the child in maintaining their identify and links with their birth culture. The trainers also highlight the importance of complying with the provisions of s 101(5) of the Adoption Act 2000 ."

The agenda of the seminar is in evidence, and confirms that a one-hour session on "Identity and the Adopted Child", and a 45-minute session on "Cultural Identity" were on the agenda. 34 It is to be noted that Mr Jones' account of the seminar is at the level of the usual practice in conducting such seminars. He does not claim to have attended the seminar. 35 The applicants give a different account of the seminar. They say: "In our opinion the training that was provided at that seminar was unclear and inconsistent at best concerning the naming of children, what the new legislation, yet to commence, actually meant and how it was to be interpreted. We note that the answers given by … Moore at the ASIAC AGM of 10 May 2002 were inconsistent with the presentation given a week later at the seminar. We sought clarification and repeated his answers of the week before. An officer of the Department informed us, and the whole seminar, that the Department was aware of the answers given by Mr Moore, did not agree that they necessarily represented the Department's position, and that their position was that it was a matter for the Courts to decide. We note that they did not provide further clarification of these issues."

Even though the first paragraph of that account is expressed unconventionally in terms of the "opinion" of the applicants, I am prepared to accept that their "opinion" is a statement of the effect produced in their minds, and the effect which would be produced in the mind of a person trying to understand what was said at the seminar, by what was actually said there. 36 On 20 November 2002 the male applicant, having received what he took to be encouragement to do so from the Adoptions Clerk of the Court, wrote to Bryson J on behalf of the Committee of ASIAC, seeking certain information on various topics relating to the new Act. One of the topics on which he sought clarification was "the effect of the new Act on naming rights that parents have for their children -what are the rules and what flexibility is there in this area." 37 A letter from a member of the public to a judge, seeking advice about a matter of law, would normally receive a reply to the effect that the letter had been received and it was not appropriate for a judge to provide advice on questions of law. However, the role of the Court in adoption applications, being a historical development of the administrative tasks the Court performs in its parens patriae jurisdiction, is not the same as its role in acting as a decider of issues in inter partes litigation. Bryson J's Associate wrote back, at his Honour's direction, on 29 January 2003. Understandably, however, the response was in very general terms. Concerning naming, it said: "The new Act deals with the names of adopted children in s 101. Its provisions are not simple and you should look through them for yourself. There is more involved than just the idea that adopting parents have naming rights."

The relevance of this exchange is not that it provided the applicants with any particular enlightenment about the operation of the naming provisions of the Act, but rather that the applicants were making a serious attempt to understand what was involved in the naming provisions. 38 All these matters occurred before the Act was proclaimed. Indeed, the proclamation of commencement of the Act was made only on 31 January 2003, one day before the actual commencement date of the Act. They occurred before the child the subject of the present application had been born, let alone allocated to the applicants. 39 In connection with this submission that the applicants have contravened a commitment, the Department also draws attention to what the applicants told Ms Gray concerning their intention about the child's name at the allocation interview on 20 October 2003, set out at para [19] above. 40 The applicants say, and I accept, that no issue of concern was raised with them about the intention they told Ms Gray they had, or specifically concerning in what order the names would be arranged. As a matter of ordinary English, a Korean name can have a Western name "added to" it if the Western name is added at the beginning, or at the end. The applicants were talking to a social worker who already knew them in connection with the placement of their first child, and knew the naming practices they had adopted concerning that first child. At the allocation interview itself they referred to their first child by his Western given name. They had no reason to believe that Ms Gray would mistakenly assume that their intention was to add WGN-2 to the end of this particular child's Korean name. Indeed, there is no evidence from Ms Gray, or anyone else in the Department, which actually says that that was the way in which she interpreted the applicants' statement of intention to her concerning the name. 41 The applicants state that at all times before the commencement of the 2000 Act, questions put to the Department concerning the interpretation of the naming provisions in section 101 were met with the answer that it would be up to the Courts to decide. They had themselves identified some issues for adoptive parents concerning the naming provisions, relating to whether all or only some names were referred to, what constituted special reasons, and what children or groups of children were affected by the naming provisions of the Act. The full position of the Department concerning the naming provisions was not clear to them until they received the affidavit of Mr Jones in this application. They accept that the Department had made clear that new naming provisions were to come into play, and that the Department intended in some manner to oppose name changes as a consequence of supporting those new provisions, but they were not clear at any time until they read Mr Jones' affidavit what the Department would regard as a "name change". They made known, through the seminar on 16 May 2002, through discussions with Mr Moore at the ASIAC Annual General Meeting, and on other occasions, their concerns over the issue. They deny that they have been secretive or underhand about their intentions concerning the naming of this child. They attempted, both through questioning officers of the Department and writing to Bryson J, to find out what the requirements of the law were concerning the naming of adopted children. 42 I accept what they say about all those matters. 43 I do not accept that the applicants gave any express "commitment" during the adoption process regarding the name of the child. It necessarily follows that they have not contravened any such commitment. 44 Sometimes it may be possible to say, in a loose way, that a person has "breached a commitment" if they have made an implied representation by their conduct that they will act in a certain way, and have then acted differently. Such a circumstance might sometimes arise, in relations between people A and B, if A has a firm expectation that B will act in a particular way, B knows that A has that expectation, and B does not let on that he is planning to act any differently. That loose way in which there might be a breach of commitment does not apply in the circumstances of the present case either, because, despite serious efforts to find out the Department's views and expectations concerning names, they did not ascertain that the Department expected them to not change the name of the boy in any respect, or make any additions to it. In putting the matter that way, I am not making a finding that the Department actually had any such expectation, at the relevant time. 45 Rather, the applicants made their intentions known to Ms Gray, as soon as the child was allocated to them, in a way they had no reason to believe would be misunderstood. The Department's allegation, that the applicants have, in effect, acted dishonestly by using a Western forename for the child, is without foundation. 46 There is a further troubling aspect to this allegation. It is made as part of a three-pronged allegation in Mr Jones' affidavit that: "Any reference by the applicants to the child by another name has been a clear contravention of the Adoption Act 2000, their commitment as demonstrated during the adoption process and clearly is not in the best interests of the child as deemed by international authorities." 47 Those are the self-same words which were used by a different Delegate of the Direction-General concerning the adoption to which Young CJ in Eq gave attention in Re H and the Adoption Act (2004) 62 NSWLR 245. His Honour quotes those same words at 248, [17], and criticises the fact that they are used in an affidavit at all. The decision in Re H and the Adoption Act was given on 14 December 2004, more than a year ago. The "Contravention of the Adoption Act 2000" Argument 48 The second prong of Mr Jones' three-pronged allegation is that any reference by the applicants to the child by another name prior to the present application "has been a clear contravention of the Adoption Act 2000". The same view of the obligations created by the Act concerning names, prior to the making of the adoption order, appears in the statement in his affidavit that "all Departmental correspondence to the applicants has referred to the child's birth name as his or her legal name to comply with section 101(5) Adoption Act 2000" (emphasis added). 49 It is convenient to set out some of the material which might possibly be used as a aid to construction of section 101. For convenience I repeat the collection of that material which I made in Application of "M" and "S" [2004] NSWSC 203, reported sub nom Re M & Another (2004) 31 Fam LR 415, at 418-420, [12]-[18]. In exercising its power under section 101, the Court should take into account matters of policy concerning adoption which are discernible in the Adoption Act 2000 . Section 7 of that Act says: "The objects of this Act are as follows: (a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice, (b) to make it clear that adoption is to be regarded as a service for the child concerned, (c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage, … (f) to ensure that adoption law and practice complies with Australia's obligations under treaties and other international agreements, …" Section 8 says: "(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: (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, not for adults wishing to acquire the care of 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, … (2) In determining the best interests of the child, the decision maker is to have regard to the following: … (b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant, …" Section 32 of the Adoption Act 2000 says: "(1) In placing a child (other than an Aboriginal or Torres Strait Islander child) for adoption, the decision maker must take into account the culture, any disability, 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. (2) Without limiting matters that may be taken into account, the decision maker must take into account whether a prospective adoptive parent of a different cultural heritage to that of the child has demonstrated the following: (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." One of the obligations under treaties, which section 7(f) of the Act says the Act should advance, is Australia's obligation under the United Nations Convention on the Rights of the Child ("UNCROC"). Under Article 8.1 of that Convention, Australia has undertaken to "respect the right of the child to preserve his or her identity, including nationality, name, and family relations" . The New South Wales Law Reform Commission issued, in March 1997, Report No. 81, which was a review of the Adoption of Children Act 1965 . Part of that Report dealt specifically with how birth names should be treated in intercountry adoptions. At para 10.231, the Report referred to Article 8 of UNCROC, and continued: "Clearly intercountry adoption, which involves a child losing his or her nationality and family relations, is not consistent with Article 8. However, Australia should honour this undertaking at least to the extent that can be accommodated within the practice of intercountry adoption. Accordingly, the right of a child to preserve his or her first name should be respected. 10.232 Even apart from obligations under UNCROC, it would rarely be in the child's best interests for his or her names to be formally changed in the adoption process. The intercountry adoptee endures enormous change and dislocation in the process of being adopted overseas. The child is uprooted from all that is familiar, including relationships and language. The child's name is one of the few remaining links with his or her birth culture. To change this involves further dislocation and disorientation for the child. More importantly, though, the child's name is an integral part of his or her identity: "Abandoned children are often renamed … by their adoptive parents who wish to encourage integration into their new culture so that the little they bring with them is taken away. For older children this may be especially painful since it suggests that who they are, which is so often defined by their name, is not acceptable and must be changed. In addition, a name often reflects cultural connectedness and contributes to the establishment of facial identity." 10.233 Although the effects of a name change are intensified in older-aged children, the points made above can be applied to all children. A child who is only one or two years old has already learnt to identify with a particular name. The concept that "I am x and no other" can be powerful even to a very young child. 10.234 In DP 34, it was proposed that the changing of first names of intercountry adoptees should be discouraged. Nineteen submissions were received addressing this proposal, the majority of which supported the proposal but felt that the changing of names should be a matter for parents and not subject to legislation or a court order. Several submissions were unconditionally in favour of the proposal. 10.235 Two submissions pointed out that some overseas names created problems in Western society, either because of the English meaning or association or because of difficulties with pronunciation. It should be borne in mind here that as Australia becomes an increasingly multicultural society more and more non-Anglo-Saxon names, many difficult to pronounce, will become commonplace. However, if there was a real risk that his or her name could, in Australia, cause anguish to the child or make life difficult in any way, then a name change may be justified. But such a decision should be taken in the belief that a name change is an exceptional step, with the child's best interests being paramount. A birth name should not be changed simply because adoptive parents would prefer an Anglicised name for their child. 10.236 It has also been submitted that often a child has been given his or her name by carers at an orphanage and therefore it may have no significance for the child. This argument ignores the point made above that children, particularly older-aged but also young children, identify with the name by which they are addressed so that it becomes an important part of their concept of themselves. 10.237 Recommendations in relation to changing an adoptee's names are made in Chapter 5. These recommendations take into account the provisions of UNCROC, the arguments raised above and the content of submissions. That Report included a draft Bill, which had, as clause 71, a clause almost identical to the text eventually adopted as section 101(4) Adoption Act 2000 . (The only difference was in what has now become section 101(4), a sub-section not relevant to the present application.) The Second Reading Speech on the Adoption Bill ( Hansard , 5 September 2000, Legislative Council, page 8640) makes clear that the Law Reform Commission Report had been taken into account in preparation of that Bill. The Explanatory Memorandum for the Adoption Bill 2000 stated, at page 1, that: "The Bill gives effect in general to the principal recommendations of the New South Wales Law Reform Commission in its Report No. 81 …" Thus, under section 34 Interpretation Act 1987 , the Law Reform Commission report can be taken into account to clarify any ambiguities or obscurities in the Act."" 50 By making reference to UNCROC and the Law Reform Commission Report, I was implicitly accepting a submission of the Department that those were proper matters to take into account. After giving the matter further thought, and taking into account the decision of the Court of Appeal in Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385, it now seems to me that I was mistaken in so doing. Construction of Section 101 - Structure 51 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. 52 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 section 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. 53 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) 74 CLR 492 at 505; R v The Australian Broadcasting Tribunal; Ex parte 2HD Proprietary Limited (1979) 144 CLR 45 at 49; The State of New South Wales and Others v The Commonwealth of Australia and Carlton and Another (1983) 151 CLR 302 at 321-322; FAI Insurances Ltd v The Honourable Sir Henry Winneke and Others (1982) 151 CLR 342 at 368; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40; Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 285. 54 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. 55 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. 56 I have quoted at para [46] above the precise words by which Mr Jones' affidavit made this allegation of contravention of the Act. In Application of CP & JP - Child: S [2004] NSWSC 687 Barrett J dealt with an intercountry adoption application in which the same allegation of contravention of the Act was made, in exactly the same words. Barrett J, at [10] described that allegation as a "sweeping and legally wrong assertion". That decision was given on 3 August 2004. As shown by the verbatim repetition of the allegation in Re H and the Adoption Act (para [47] above), and in the present case, the Department appears to be ignoring these findings of the Court. Construction of section 101(5) - "Special reasons" 57 It is fairly common for legislation to confer a power on a court to adopt some course of action if there are "special reasons". In Jess v Scott (1986) 12 FCR 187 the Full Federal Court (Lockhart, Sheppard and Burchett JJ) considered a provision which allowed a court "for special reasons" to permit an appeal out of time. They said, at 195, that what that rule required was: "… that there be shown a special reason why are the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify a departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this. … It should not be overlooked that r 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. " See also, to similar effect, Minister for Community Services & Health v Chee Keong Thoo (1988) 78 ALR 307 at 324 per Burchett J; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; (1991) 103 ALR 684 at 686-7 of ALR per Burchett J. 58 This meaning of "special reasons" now been decided by the Court of Appeal in Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385 to be applicable in section 101(5). At [44]-[46] Giles JA said: "44 In Baker v The Queen [2004] HCA 45 [(2004) 210 ALR 1; (2004) 78 ALJR 1483] Gleeson CJ said (at [13]) - "There is nothing unusual about legislation that requires courts to find "special reasons" or "special circumstances" as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors." 45 In the same case Callinan J said (at [173]-[174]) that "special reasons" shared the characteristics of which Lord Bingham spoke in relation to "exceptional circumstances" in R v Kelly (2000) QB 198 at 208, that - "We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered." 46 Barrett J took up these observations in Application of R M and E S M, re Y at [12], saying that the court could only act "if it positively finds some factor or circumstances related to the best interests of the child that is out of the ordinary course, unusual, special or uncommon and that is not regularly, routinely or normally encountered". I respectfully agree; but it would be a mistake to attempt to define or categorise what might be special reasons related to the best interests of a child."

59 In exercising a power which is able to be exercised where there are "special reasons", "doubtless the discretion of the Court is very large, and necessarily so; but it must have as its basis some circumstance which it can reasonably regard as "special reasons" for lifting the particular"

circumstance out of the usual: Gourlay v Casey (1927) 38 CLR 586 at 591 per Isaacs, Gavan Duffy and Powers JJ. 60 When the Court comes to exercise the discretion under section 101(5) from time to time, " … a discretion to relax the requirement of general rules should not itself become entangled in a web of rules spun out of the Court's discretionary decisions. The tendency in some of the decisions we have discussed to regard a particular factor considered previously, in the light of other circumstances, as requiring the same effect to be given to it in the different situation before a court on a later occasion is a temptation which a court should resist. Decisions are not authorities upon the facts but upon principles; the facts must be regarded as unique to the particular case."

(per Lockhart, Sheppard and Burchett JJ, Jess v Scott (1986) 12 FCR 187 at 196). 61 At the end of the passage from Application of "M" and "S" [2004] NSWSC 203 which I have quoted at para [49] above, I correctly identified the circumstance in which the Law Reform Commission Report, and the view that the Report expressed concerning UNCROC, could be used as an aid to construction of the Act, namely as a means of resolving ambiguities. I should have gone on to actually apply that test, but did not do so. In light of the meaning of section 101(5) which has been endorsed by the Court of Appeal, there is no ambiguity in section 101(5). That it requires the Court not to approve a change of given name unless a criterion is met, and that criterion is one which is inherently elastic and involves the formation of a judgment, does not mean it is ambiguous. Thus there is no occasion to use either the Report, or its indirect reference to UNCROC, as an aid to construction of section 101(5). Alleged breach of UNCROC 62 Australia has ratified the United Nations Convention on the Rights of the Child (UNCROC), on 17 December 1990. That Convention includes the following provision, in Article 8: "1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity." 63 The Department's Delegate draws attention to that Convention, and says that the Department, "… contends that special reasons for changing the child's birth name would arise in only exceptional circumstances to justify a contravention of International Law." 64 It is also presumably on the basis of the Convention that Mr Jones puts the third prong of his three-pronged allegation, that any reference by the applicants to the child by another name "clearly is not in the best interests of the child as deemed by international authorities". Present Status of UNCROC 65 UNCROC has not been implemented in Australia by the Commonwealth Parliament passing legislation. The Commonwealth Government has stated that: "Australia does not propose to implement the Convention … by enacting the Convention as domestic law. The general approach taken in Australia to human rights and other conventions is to ensure that domestic legislation, policies and practice comply with the Convention prior to ratification. In the case of the Convention on the Rights of the Child a complaints mechanism also exists pursuant to the Human Rights and Equal Opportunity Commission Act 1986."

(Australian Government, Australia's First Report under the Convention on the Rights of the Child , Commonwealth of Australia, 1955, para 6, quoted in Roth, "Children's Rights in NSW" Background Paper No 2/05 NSW Parliamentary Library Research Service p 118). The complaints mechanism which exists under the Human Rights and Equal Opportunity Commission Act 1986 is not one which has relevance to the present case, because that Act enables complaints to be made to the Commission about acts or practices of the Commonwealth that are in breach of the Convention. As there were no equivalent of section 101 in the adoption legislation of New South Wales prior to the 2000 Act, it appears to have been the view of the Commonwealth Government that, when Australia ratified UNCROC in December 1990, Australia's legislation already complied with its obligations under the Convention, even though there was no equivalent of section 101 of the Act. Can Australian Individuals or Courts Breach UNCROC Re Name Change? 66 To deal with the submission that the applicants would have been acting in a way which is not in the best interests of the child as deemed by international authorities, or that the Court would be contravening international law if it were to find special circumstances for changing a child's birth name in anything other than exceptional circumstances, it is necessary to restate some basic principles about the relationship between international law arising under a treaty which Australia has ratified, and Australian domestic law. 67 International law recognises nations as having legal personality. Thus, nations are entities which are capable, in the eyes of international law, of carrying out actions, of having rights, and having obligations. The action of a nation in entering a treaty is an action of its executive government. In the case of Australia, the executive government which has power to enter treaties is the executive government of the Commonwealth. It acts in international law through the Governor General, through ministers (such as the Prime Minister, and the Minister for Foreign Affairs), and through public servants in the Commonwealth public service (such as diplomats and consular officials). It is by an action of the executive government that Australia can become bound to a treaty, and thereby become, in the eyes of international law, subject to the obligations arising from that treaty. Once Australia has entered a treaty, the obligations of the treaty are ones that are owed by Australia to other nations or international institutions that have entered it. 68 Human beings are not entities that can be the direct holders of any rights, or directly subject to any obligations, where those rights or obligations arise from a treaty in international law. Sometimes a nation might be bound by a treaty to treat certain people or classes of people in a particular way, but that obligation is one which is owed to the other parties to the treaty. The people who are required to be treated in that particular way are indirect beneficiaries of the treaty, but do not themselves have rights which they themselves are capable of enforcing against a nation which acts in breach of the treaty. Similarly, merely because Australia has entered into a treaty, unless and until that treaty has been incorporated in municipal law by Australian legislation, Australian citizens are not bound by any obligations of substantive law arising under that treaty. 69 Whatever may be the situation so far as the application of international law arising from custom in the domestic law of Australia may be, a treaty becomes part of Australian domestic law only if and to the extent that it is adopted by the legislature of the nation. The executive government of Australia does not have power to make any new law, except to the extent that such power that has been delegated to it by legislation. There has been no delegation to the executive government in Australia of a general power to make treaties which are binding upon being made, or of any specific power to enter a treaty such as UNCROC which becomes binding simply by force of being entered. Ever since the Stuart kings failed in their attempts to assert a Divine Right of Kings, it has been clear law that Parliament is a necessary part of the lawmaking process. As Lord Atkin said in Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326 at 347: "Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law." 70 In Republic of Italy v Hambros Bank Limited [1950] 1 Ch 314 Vaisey J had before him an action which arose from an agreement reached between the Italian and British governments concerning the terms of the peace between those countries at the end of the Second World War, and which dealt with the way in which Italian property in the United Kingdom would be dealt with. The British government had issued an Order in Council which purported to give effect to the treaty. However, an Order in Council is itself an act of the executive, and in this case the making of it was not empowered by any legislation, and the treaty had not been adopted by any legislation. The plaintiff before Vaisey J alleged that the treaty imposed obligations on a company to which the English courts had issued letters of administration concerning the British property of the late King Victor Emanuel III. His Honour dismissed the action, saying: at 329, that he did so "on the ground that the financial agreement is not cognisable or justiciable in this court." 71 In Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1; (2003) 195 ALR 502 at [99] McHugh and Gummow JJ said: "… in general, ratification, as an executive act, did not in the domestic constitutional structure thereby confer rights upon citizens or impose liabilities upon them ( Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 480-2; 138 ALR 129 at 143-4). In that sense the ratified treaty was not "self-executing" and lacked "direct application" in that domestic system." 72 When UNCROC has not been incorporated into Australian domestic law, there is no legal obligation which binds either individuals or Courts to act in conformity with it. 73 To say that a treaty which has been ratified by Australia but not adopted in domestic legislation has no direct application in Australian law is not to say that the treaty in that state is completely without effect in domestic law. As McHugh and Gummow JJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1; (2003) 195 ALR 502 at [100]: "… a peace treaty will, without legislation, change the status of enemy aliens in Australian courts ( Porter v Freudenberg [1915] 1 KB 857 at 871, 880; cf Schering AG v Pharmedica Pty Ltd (1950) 52 SR (NSW) 16.). Further, the taking of a step by the executive government in the conduct of external affairs, whilst of itself neither creating rights nor imposing liabilities, may supply a step in a broader process of resolution of justiciable disputes ( Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 370; 83 ALR 265 at 286-7). The so-called "disguised extradition" cases are an example. (See Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719. Other examples are given in Leeming, "Federal Treaty Jurisdiction" (1999) 10 Public Law Review 173; see also Z Cohen and L Zines, Cowen and Zines's Federal Jurisdiction in Australia , 3rd ed, 2002, Federation Press, Sydney, pp 29-30.) The treatment of public policy objections in the conflict of laws may be another. (See, for example, Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1 at 16 [56]-[57]; 76 ALJR 551 at 562; Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1353 at 1363 [29], 1383-4 [114], 1390 [137], 1393 [148]; [2002] 3 All ER 209 at 219, 238, 245, 247.) More frequently encountered are the rules of statutory interpretation which favour construction which is in conformity and not in conflict with Australia's international obligations; this matter was discussed by Mason CJ and Deane J in Teoh . ((1995) 183 CLR 273 at 287-8; 128 ALR 353 at 362-3). It is with such influences as these in domestic law that American scholars have been concerned in distinguishing, under the United States system, between "self-executing" treaties and their "invocability" without direct application. (Riesenfeld, "International Agreements" (1989) 14 Yale Journal of International Law 455 at 462-7; Jackson, "Status of Treaties in Domestic Legal Systems: A Policy Analysis" (1992) 86 American Journal of International Law 310 at 315-19)." 74 More recent authority for the appropriateness of a court resolving ambiguity in legislation in a way which is in accord with a treaty which was on foot at the time that the legislation was passed is to be found in Coleman v Power (2004) 78 ALJR 1166; (2004) 209 ALR 182 at [17]-[19] per Gleeson CJ, [240] per Kirby J. However, as I have earlier said, there is no relevant ambiguity in section 101(5). 75 It has been held that UNCROC has a limited effect on the way in which an administrative decision maker goes about making decisions, even though it has not been implemented by legislation. The High Court delivered its decision in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 on 7 April 1995. A majority of the High Court held that ratification of UNCROC would give rise to a legitimate expectation that administrative decision makers would act in accordance with it, unless there were statutory or executive indications to the contrary. The Article there under consideration was Article 3, which requires that in all actions concerning children the best interests of the child shall be a primary consideration. The complaint of the plaintiff in that case was that a delegate of the Minister had rejected an application for a permanent entry permit without treating the best interests of the applicant's children as a primary consideration, contrary to Article 3. Roth, op. cit., p 120 accurately summarises the situation: "the High Court held that while the delegate was not required to comply with Article 3 (since it was not part of domestic law), if the delegate proposed to act inconsistently with Article 3, procedural fairness required him to give the applicant notice and an opportunity of presenting a case against taking that course. It is not clear whether this principle applies to state public servants. On 10 May 1995 the Minister for Foreign Affairs and the Commonwealth Attorney-General issued a Joint Statement for the purpose of making an "executive indication to the contrary"; ie that the ratification of a treaty by Australia does not create any legitimate expectations as to the conduct of the government and its bureaucracy. On 25 February 1997 another joint statement was issued to similar effect, which replaced the 1995 statement. This joint statement was expressed so as to apply to federal and state administrative decisions." (footnotes omitted) 76 Even in its own terms, Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 is a case which involved an action of a Commonwealth public servant, exercising a power which has a close connection with the relations between Australia other countries (namely, denying a right of residence here), and held that the ratification of the treaty gave rise to a legitimate expectation, and thus altered the content of the procedural requirement of natural justice in decision-making. That is an application in domestic law of the treaty which is a long way removed from the facts of the present case, where what is involved is a decision by a State court about whether to effect a change which has substantive effects in law, namely the change of a person's name. Further, without needing to decide this matter, there must be at the least, doubt about whether the ratification of the Treaty could give rise to even a legitimate expectation as a matter of administrative procedure, since the making of the Joint Statement. As well, in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1; (2003) 195 ALR 502 McHugh and Gummow JJ at [98] - [102], Hayne J at [121] - [122] and Callinan J at [147] - [148] cast some doubt upon the continued applicability of Teoh itself. 77 I do not find there is anything in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 which results in the applicants in the present case, or the Court, having any obligations under the Treaty, or being capable of committing a breach of the Treaty, so far as a change in the name of a child who is being adopted is concerned. Breach of UNCROC -- Meaning of Article 8 of the Treaty 78 The wording of Article 8 (set out at para [62] above} needs to be considered as a whole. It simply does not state that a child's name should not be changed. 79 Article 8 starts from the assumption that various attributes of the identity of a child are recognised by law, and that those attributes include (but are not necessarily limited to) nationality, name and family relations. What Article 8(1) provides is that the nations who are bound by the Treaty will take steps, of a rather indeterminate type, but which still count as "respecting", in relation to the right of a child to preserve those aspects of his identity which are recognised by law from being interfered with in a way which is unlawful. Under Article 8(2) the nations bound by the Treaty promise each other that where a child has been illegally deprived of some or all of the elements of his identity, they will take steps, in the form of "assistance and protection", to enable the identity of the child to be re-established speedily. 80 There is some ambiguity about whether the "lawfulness" referred to in Article 8 means lawfulness in accordance with domestic law, or lawfulness according to international law. It is a common enough for treaties to contain some studied ambiguity, which enables agreement to be reached on a set of words, by parties who have different views about what those words mean. Without needing to express a final view on it, it seems to me that the preferable construction of Article 8 is that the unlawfulness referred to in it is unlawfulness according to domestic law. Nationality, name, and family relations are the sort of matters which are usually regulated by domestic law. As well, Article 8 follows on immediately from Article 7, which provides: "1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless."

Thus, the subject matter of Article 8, insofar as it concerns the nationality, name and family relations of a child, are the sort of things which Article 7 imposes an obligation on States to grant by their national law. 81 If I am right in construing Article 8 so that it refers to unlawfulness according to domestic law, it has no application in the present case. The child in question in the present case has been made available for adoption in accordance with Korean law, and the adoption itself is proceeding in accordance with the relevant Australian law. If it is the effect of a court order for his adoption that his name is changed, that is simply not a breach of Article 8. 82 Even if I am wrong in construing Article 8 as referring to lawfulness in accordance with domestic law, there is no relevant international law principle which prevents the name of a child being changed upon adoption. 83 UNCROC itself specifically recognises that intercountry adoption occurs. Article 21 provides: "States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs."

It contains no requirement for preservation of a given name in intercountry adoptions. 84 When ascertaining the meaning of this treaty, it is appropriate to use the standards which international law itself states for the interpretation of treaties. Under Article 31 of the Vienna Convention on the Law of Treaties (opened for signature May 23, 1969, UN doc A/CONF 39/27) the terms of treaties are to be interpreted, generally, in good faith and in accordance with their ordinary meaning, in their context and in light of the object and the purpose of the treaty. Under Article 32, the travaux préparatoires may be used as supplementary sources for interpreting treaties. 85 Assistance in ascertaining the origins of Article 8 can be found in Detrick, "The United Nations Convention on the Rights of the Child -- a Guide to the "Travaux Préparatoires"" (Martinus Nijhoff Publishers 1992). In an introductory overview of the Convention, Detrick says, at p 28 that Article 8: "… is another totally new obligation. Here the Convention underscores the child's right to name and nationality by the careful protection of the child's identity. The Working Group included this provision at the suggestion of Argentina in the light of mass "disappearances" of children whose identity papers had been deliberately falsified and family ties arbitrarily severed." 86 At p 292, Detrick records that Argentina's first draft submitted to the Working Group in 1985 was: "The child has the inalienable right to retain his true and genuine personal, legal and family identity. In the event that a child has been fraudulently deprived of some or all of the elements of his identity, the State must give him special protection and assistance with a view to re-establishing his true and genuine identity as soon as possible. In particular, this obligation of the State includes restoring the child to his blood relations to be brought up." 87 The draft evolved into its final shape, to take account of matters including the following concerns raised by various delegates:

• that "family identity" was a concept not known in the law of every State, and thus a qualification "as recognised by law" was needed

• that "family relations" was a preferable expression to "family identity"

• that it was preferable to recognise a right of the child to preserve his or her "identity" , rather than "family identity" . 88 Stewart, "Interpreting the Child's Right to Identity in the UN Convention on the Rights of the Child" (1992) 26 Family Law Quarterly 221 at 221-222 explains the historical background to the Article: "The Argentinean sponsor of the article, Dr Jaime Sergio Cerda, acknowledges the novelty of the right, but points to experiences in his country that demonstrate the need for international recognition of such a right. Military authorities there abducted children from their parents and the children subsequently disappeared or were kept by their adbuctors. Existing national laws proved inadequate for addressing the problem, particularly in terms of forcing the state to take action to restore the children to their families. The right to identity was intended to fill this legal void." 89 Hodgson, "The Child's Right to a Legal Identity", (1993) 7 Australian Journal of Family Law 121 at 132, gives further detail: "In Argentina, between 1975 and 1983, 145 to 170 children "disappeared" when they were either kidnapped with their parents by the authorities or were born in captivity to imprisoned women and then separated from their mothers. So far, some 41 children who disappeared under these circumstances have been located following a diligent search by relatives of the missing children led by a group called the Grandmothers of the Plaza de Mayo . Many of these children were found with adoptive parents, some of whom have claimed the children as their own. In one case, they child was discovered in the care of a policeman implicated in her parents "disappearance" … The "disappearance" of children is not confined to Argentina; similar cases have been reported in Chile, Guatemala and Peru." Defence for Children International (USA) The Children's Clarion: Database on the Rights of the Child (1987) A-11" 90 A more highly coloured account is that of Avery in "A Return to Life: the Right to Identity and the Right to Identify Argentina's "Living Disappeared"" (2004) 27 Harvard Women's Law Journal 235, at 235-236: "While Argentina has been plagued with governmental corruption and political instability for much of the past century, the March 24, 1976, military coup on the Perón government marked their culmination. The subsequent seven-year period, termed the "Dirty War", involved acts of abduction, torture, mass murder, and the disappearance of tens of thousands of people, all disguised as "National Security". After the coup, the military junta dissolved the Argentine Constitution and in its place enacted the Statute for the Process of National Reorganisation. Through this statute, the junta usurped the full range of executive, legislative and judicial powers. Claiming to be the defenders of "tradition, family, and property," the military categorised all opposition to its rule as subversive activity that had to be eliminated to protect and preserve Argentina. The leaders of the junta directed every branch of the military and police force to wage war against such subversion, launching the most brutal campaign of terror and repression in Argentina history. The military regime practised a method of repression likened to Hitler's Nacht und Nebel Erlass (Night and Fog Degree), in which subversive citizens were made to disappear without a trace. Men, women, and children from all social classes were abducted, as were the elderly, the infirm, and the disabled. Thousands of people went missing, "never to be seen again." A large number were taken to one of the regime's hundreds of clandestine detention centres to be tortured … Despite the widespread atrocities, the judiciary acquiesced in the disappearances by denying approximately 80,000 writs of habeas corpus, and many of the lawyers seeking writs were disappeared themselves. Perhaps the most disturbing institution of terror created by the junta was an unprecedented and systematic plan to steal and sell the babies of its victims. Approximately 500 babies were born in captivity to mothers who would never hold or even see them, mothers who were kept alive only long enough to give birth. Military officers waited outside makeshift maternity wards like "macabre expectant fathers", ready to steal the infants at the first opportunity. Forced to accept the near certain deaths of their children, the Abeuelas de Plaza de Mayo focused on the possibility that their grandchildren were still alive and could be found. Using old-fashioned detective work as well as cutting-edge scientific techniques, the Abuelas campaigned to restore their grandchildren to their biological families and provide them with their true identities." (extensive footnotes omitted) 91 The problem which gave rise to Article 8 has nothing to do with the circumstances in which orders for intercountry adoption are made in this court. Thus, consideration of the evil at which Article 8 was aimed supports the construction of Article 8 that seems to me to be right as a matter of its ordinary wording. 92 The travaux préparatoires also provide some assistance concerning the problem of construction which I mentioned at para [80] above. The reason given for the adoption of the phrase "as recognised by law" was that the concept of "family identity" was not known in every State (Detrick, op cit p 293 para 41, 44, p 294 para 46, 47.) This reference to the travaux préparatoires assists in reaching the conclusion that the unlawfulness referred to in Article 8 is unlawfulness in accordance with domestic law. The use of the travaux préparatoires in this way as an aid to construction is further strengthened by the fact that "[t]he Working Group operated on the basis of consensus. At no time during its work, in other words, was a proposal taken to a vote." (Detrick, op cit p 22). 93 Australia was one of the nations which identified this reason for introduction of the phrase "as recognised by law" (Detrick, op cit para 41 p 293). As well, it was Australia which proposed the deletion of the word "family" from before "identity" at the end of the second paragraph (Detrick op cit para 46 p 294). If a treaty is ambiguous, there is something to be said for the courts of a nation which has acceded to the treaty dealing with ambiguity in the way in which the government of that nation intended it to be dealt with. 94 For these reasons I conclude that neither the act of the applicants in calling the child by a Western name, nor the act of the Court in approving that change of name, involves any contravention of UNCROC. Contravention of Principles of Law Reform Commission Report? 95 The Departmental Delegate submits: "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) as undertaken by the New South Wales Law Reform Commission Report 81. …" 96 The relevant parts of that Report are set out at para [49] above: 97 The part of the Report which deals with names starts from the position that intercountry adoption is not consistent with Article 8 of UNCROC. That position is not one which the Commissioners argued towards. Rather, they thought it was clear. For the reasons which I have given, they were mistaken in taking that view. It fundamentally influenced their discussion of the topic of name change. 98 The ultimate recommendation of the Report was, however, that a section almost identical with section 101 as ultimately enacted should be made law. The only difference between their recommendation and the section as enacted related to subsection (4), which is not presently relevant. In other words, the means by which the sort of considerations relating to name change which the Report identified should be given practical effect in an individual case was by a discretionary decision of a judge, based upon the best interests of the child. 99 Both the Report, and UNCROC itself, identify various matters which can be relevant to deciding what is in the best interests of any particular child. Insofar as the Report identifies reasons, independently of UNCROC, why, in any intercountry adoption, it is sometimes not in the child's interests to change the name of the child, it provides a list of matters which can be appropriate to take into account in considering any particular case. It is not an exhaustive list, and does not purport to be. When any decision maker is faced with the need to make a decision concerning some area of human activity, it can sometimes be helpful to consider the ways in which other people making decisions about that area of human activity have proceeded, and the sorts of factors they have taken into account. In that way, it might be appropriate for a judge making a decision under section 101(5) to consider the terms of the Report, and of UNCROC. However, for the reasons I have given, they do not have the status of legitimate aids to construction of section 101(5) itself.

The Argument Based on Dicta in Re M & S 100 In Application of "M" and "S" [2004] NSWSC 203 (reported under the name Re M & Anor (2004) 31 Fam LR 415) I dealt with an application under the Adoption of Children Act 1965 concerning a child from Korea. The prospective adoptive parents wished to shorten the first of the Korean forenames of the child, by deleting its second syllable, thereby turning it into a name which could pass for a forename of Australian origin, as well as to add a third forename which had a family connection with one of the adoptive parents. Even though the adoption was under the 1965 Act, it was appropriate, in accordance with Re MJR (2003) 31 Fam LR 50, for the Court to take into account the perception of the significance of name changes which was recognised in section 101 of the 2000 Act. I found that it was in the best interests of the child to allow the shortening of the forename. I added, at 423, [29]: "In coming to this conclusion, I do not regard it as sufficient that the child has been known by the shortened forename for the whole time he has been in the custody of the adoptive parents, and that it would be confusing to him to now change back to his original name. Given that children are very frequently placed in the custody of adoptive parents long before an adoption order is made, giving weight to those factors would enable intending adopting parents to subvert the policy of s 101 by presenting the court, at the time an adoption order came to be made, with a fait accompli so far as the name of the child was concerned. …" 101 The Delegate's affidavit in the present case quoted that passage, and said that, given this decision by the Supreme Court, it would appear to be inappropriate to change the child's given name on the basis that the applicant had chosen to give him another name since the time of his placement. 102 Those remarks in Application of "M" and "S" were dicta. They have been disproved by the Court of Appeal in Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385. Giles JA (with whom Mason P and MW Campbell AJA agreed) quoted, at [48] the dictum, and said, at [50]: "In my opinion, however, weight can be given to the fact, if it be 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. 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." 103 That passage was part of the reasoning process by which Giles JA came to the conclusion, in the case he was considering, that there were special reasons related to the best interests of the child for permitting a change of given name. Thus it is part of the ratio decidendi of the case, and hence is binding upon me. It is no longer legally possible, in accordance with the law of precedent, for me to give effect to the dicta. 104 Sometimes, when the Court of Appeal disapproves dicta of a trial judge, the view of the trial judge, (and indeed, sometimes, the view of a disinterested observer) is that, even though the disapproval of the dicta must be given legal effect because of the law of precedent, in the broader context of legal principle and wise policy it is the Court of Appeal which has made the mistake. This is not one of those cases. I do not now find the dicta persuasive. They were influenced by my too ready acceptance, in Application of "M" and "S" of the Department's submission that UNCROC and the passages I quoted from the NSW Law Commission Report should be taken into account in applying section 101. For the reasons that I have given in this judgment, it is only in the very loose sense that I have identified at para [99] above that the Report and UNCROC might sometimes be taken into account by the Court in exercising its discretion under section 101. The "policy of s. 101" concerning changes in the given names of a child is nothing beyond what section 101 itself requires, namely that a court is to approve a change in given name in an adoption order only if there are special reasons to do so, which are related to the best interests of the child. 105 While section 8(1)(e) of the Act requires a decision maker concerning adoption to have regard to the principle that the child's given name or names should as far as possible be identified and preserved, section 101(5) expressly contemplates that there can be circumstances when it is appropriate to approve a change in the given name of the child. The objective that decision-makers should "as far as possible" preserve the given names is made subject, by the language of section 8(1) itself, to the "paramount consideration" of "the best interests of the child, both in childhood and in later life". If there is a conflict between the different objectives set out in section 8(1), it is always the paramount objective which prevails. That paramount objective is expressly invoked by section 101(5). The paramount objective is one which must be exercised in taking into account the individual circumstances of the particular child and the particular adopting parents who are being considered. The only way in which a judge or other decision-maker could, consistently with the legislation, adopt a policy that the given name of children who are being subjected to adoption should not be changed is if that policy is adopted as a default position, which is always subject to change so far as any particular child is concerned in light of the best interests of the particular child. 106 The dicta in Application of "M" and "S" were wrong, and I withdraw them.

Special Reasons in this Case 107 In deciding whether special reasons are made out, under section 101(5), the Court considers all of the circumstances of the particular case before it, and decides whether those circumstances, taken together, amount to special reasons, related to the best interests of the child, which justify a name change. 108 In deciding whether, in any particular case special reasons for a change of given name are made out, it is appropriate to recall that section 101 is applicable to all adoptions, not just to intercountry adoptions. Intercountry adoptions are, these days, fairly frequently encountered in the adoption list of this court, but they are by no means the standard case. Indeed, the circumstances in which the adoption of children comes to be considered by the court are quite various, and it would be hard to say that there was any such thing as a "standard case". 109 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. 110 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. 111 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. 112 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. 113 Even though he was separated from his mother virtually at birth, for nearly all of the time until he came into the care of the applicants he was looked after, in a home environment, by a single child carer who was both experienced and devoted. He has not been through the trauma which young children can go through if they are institutionalised for long periods, which can sometimes make it desirable for the child to be subjected to the absolute minimum possible disturbance of his psyche. 114 The child is being adopted into a family where he will have an elder brother, who has also been adopted from Korea, and that brother has a western forename. The applicants wish to maintain consistency, similarity and continuity in naming the children in their family. That is a legitimate wish. They wish to encourage the relationship between the two boys - and, from Ms Gray's report, it seems that they are achieving this well. Similarity in name structures is one way of encouraging fraternal bonds. 115 The child has been referred to by the Western name which the parents wish to have for a period of around one year and ten months now. That is a name which has been used by everyone with whom he comes in daily contact. Thus, when he is now nearly two years and four months old, he has been referred to by the Western forename for as long as he is likely to be able to remember. That particular period of time in a child's life is one which is very important for the development of a sense of personal identity. 116 Like his elder brother, this boy has been baptised by a name which includes his Western name, in a family which regards its religious beliefs as an important matter. 117 The applicants are, now, the people who are best acquainted with this child in the entire world. They are people who have made most unusually extensive efforts to acquaint themselves with the difficulties which there can be in intercountry adoptions. It is their considered view (which they have deposed to on affidavit) that formalising the name which they wish to have for the child as his name is in his best interests. While the Court certainly does not abdicate its responsibility of deciding for itself, for the purposes of section 101(5) what is in the best interests of the child, in making that decision the Court is entitled to take into account the views of the proposed adoptive parents. 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. 119 The Department's opposition to the change of name is an opposition which is expressed regardless of the circumstances of this particular child's individual case. No view has been put to me, besides that of the applicants, which has taken into account what is in the best interests of this individual child in his particular circumstances, so far as his given name is concerned. 120 In all the circumstances, I am satisfied that there are special reasons, relating to the best interests of this child, why the name sought by the applicants should be approved. 121 I mention that the second of the child's Korean given names is phonetically identical to a female name in English-speaking countries. However I do not give weight to that factor, because, if the applicants' wishes were to be followed he would in any event have that name as a part of his given name, and if he were to retain his Korean given names without change it is unlikely that the second of his Korean given names is the name which would ordinarily be used by people when referring to him. **********

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