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."