Director-General, Department of Community Services v The Adoptive Parents

Court of Appeal (NSW)|2005-10-19|Before: Mason P, Giles JA, Young CJ

CITATION: Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385

JUDGMENT OF: Mason P at 1; Giles JA at 2; Campbell AJA at 53

DECISION: Leave to appeal granted. Appeal dismissed with costs.

Application of B and P, child H [2005] NSWSC 29; Application of C P and J P, child S [2004] NSWSC 687; Application of K, child N H [2005] NSWSC 248; Application of M and S [2004] NSWSC 203; reported as re M and Anor (2004) 31 Fam LR 415; Application of MJR and MJR, child KBH [2003] NSWSC 937; Application of P M and C M, child Y C [2004] NSWSC 461; Application of R M and E S M, re Y [2004] NSWSC 937; Baker v The Queen [2004] HCA 45; CASES CITED: Chapman v Palmer (1978) FLC 90-510; Earl Cowley v Countess Cowley (1901) AC 450; re D Y K and the Adoption Act 2000 [2005] NSWSC 1045; re H and the Adoption Act [2004] NSWSC 1242; re Parrott, Case v Carrott (1946) Ch 183; R v The Inhabitants of Billingshurst (1814) 3 M & S 25; 105 ER 603; (2004) 62 NSWLR 495; R v Kelly (2000) QB 198; Williams v Bryant (1839) 5 M & W 447.

Director General, Department of Community Services - Appellant PARTIES: The Adoptive Parents - Respondents

A M Colefax SC & D Ward - Appellant COUNSEL: J Van Aalst - Respondents

I V Knight, Crown Solicitor - Appellant SOLICITORS: Hardings - Respondents

LOWER COURT JURISDICTION: Supreme Court - Equity Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40074/05 ED 80165/04

MASON P GILES JA M W CAMPBELL AJA

Monday 14 November 2005 DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES v THE ADOPTIVE PARENTS Judgment 1 MASON P: I agree with Giles JA. 2 GILES JA: Under the Adoption Act 2000 ("the Act"), as under its predecessor the Adoption of Children Act 1965 ("the 1965 Act"), proceedings for the making of orders for the adoption of children are heard and determined by the Supreme Court. Adoption applications come before judges of the Equity Division, and are usually dealt with in chambers. Some questions have emerged in relation to approval of a change in the given name or names of a child. 3 Section 101 of the Act makes the specific provision with respect to names - " 101 Names of adopted children (1) On the making of an adoption order: (a) an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made, and

(b) an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents. (2) Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's wishes.

(3) If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname.

(4) An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change.

(5) The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless 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." (emphasis added) 4 What is a given name for the purposes of s 101(5)? Is the addition of a name a change in the given name or names of the child? If the proposed adoptive parents have called the child by the additional name for a significant period prior to the adoption application, is approval still necessary? If it is, can their calling of the child by the additional name be taken into account in determining special reasons? 5 Young CJ in Eq made an adoption order on the basis that s 101(5) did not apply to an additional first name proposed by the adoptive parents because there was no change in a given name: re H and the Adoption Act [2004] NSWSC 1242; (2004) 62 NSWLR 495. The adoptive parents had called the child by the name as his first name for a significant period. The Director-General applied for leave to appeal on the grounds that his Honour erred in holding that s 101(5) did not apply and should have held that special reasons related to the best interests of the child had not been made out. The application was heard on full submissions so that, if leave were granted, the appeal could be determined without a further hearing. 6 Leave is required because an appeal does not meet the requirement in s 101(2)(r) of the Supreme Court Act 1970 that $100,000 or more be at stake. Consideration of s 101(5) in the respects mentioned is important to the significant role played by the Director-General in adoption applications, and leave to appeal should be granted, but as foreshadowed at the hearing on condition that the Director General pay in any event the costs of the adoptive parents.

Facts 7 The child was born in Korea on 2 September 2002. His mother was aged 16; her relationship with his father had been short-lived, and she was not in a position to rear the child by herself. On 25 September 2002 she gave the child up for adoption to Eastern Social Welfare Society Inc ("the Society"), an agency in Seoul approved to conduct intercountry adoptions. 8 The mother's family name began with H. Whether she named the child did not appear, but it seems not; the report of a Society social worker stated that he was "named by the Intake Worker after birth mother's family name". He was named H, K I, according to Korean convention K I being one name having two parts and the family name beginning with H being first stated. A medical report dated 2 October 2002, plainly enough brought into existence on behalf of the Society, referred to the child as H, K I. The names H, K I appear in an "Extract of Family Register" dated 31 October 2002, in an appointment of the President of the Society as the child's guardian dated the same date, and in a "Certificate of Birth" signed by the President as the custodian of "the records of birth required by law to be kept in my office". The precise status of these documents was not explained in the evidence, but they appear to indicate official recognition of the names H, K I. 9 The child was placed in foster care on 30 September 2002. It may be inferred that his foster parents used the names H, K I. 10 The adoptive parents had applied to the Department of Community Services in November 2001 to adopt a child from overseas, preferably Korea. They already had an adopted child, adopted from Korea on 29 May 2002 at the age of 23 months. This child was known by the western name J followed by his Korean name K M and the adoptive parents' surname R. The adoptive parents were approved as suitable to adopt a child. There was sent to the Society what was referred to as an "Adoption Assessment", presumably particulars of the adoptive parents with a view to adoption of a child placed with the Society. 11 The Society informed the Department that the child "had been selected for placement with" the adoptive parents. On 5 November 2002 they were interviewed by an officer of the Department, who discussed the child's "background" with them. They signed "various documents indicating their desire to adopt [the child]", which documents were forwarded to the Society. 12 On 20 January 2003 the Korean government issued a passport to the child, which gave his "surname" as H and his "Given name(s)" as K I; the English words I have quoted appear in the passport. An Australian visa was issued in the name H, K I. The adoptive parents travelled to Korea on 3 February 2003, and returned with the child on 11 February 2003. 13 According to a joint affidavit of the adoptive parents, the child was called by the first name H, a western name and not the mother's family name beginning with H, "by his family and friends since we received the Allocation Notice in October 2002". The receipt of an Allocation Notice was not otherwise explained. They said that from their "very earliest involvement" with the child at the Society he was referred to by the name H; I think this should be understood as reference by the adoptive parents and their family and friends, rather than by persons at the Society. They said also that they had been referring to the child by the name H for sixteen months prior to the making of the adoption application in October 2004. A social worker's report of an interview at the adoptive parents' home on 26 May 2003 refers to the child as H, and I consider it clear that, from the time he came into the care of the adoptive parents, the child was called by that name as his first name. 14 I do not regard this as controverted by other documents in evidence. One is a Departmental file note dated 31 October 2002 recording as an observation of the one of the adoptive parents, "will keep his name", which is consistent with keeping the name (or, as it would probably be regarded in Australia, names) K I as a middle name. Another is a letter from an officer of the Department to the adoptive parents dated 26 February 2003 congratulating them on the arrival of the child "now known as [K I H R]", the basis for which assertion is unknown. A third is a "To whom it may concern" dated 26 February 2003 from the Department certifying the placement of the child with the adoptive parents for the purpose of adoption and referring to him as K I H R, as to which the same can be said. The social worker referred to the child as K in a later report dated 15 July 2004; I do not think this reflected the name he was called. 15 The adoptive parents made the adoption application by a summons filed on 6 October 2004. Their application included that the Court approve that the child "have his forename(s) as [H K I] and his surname as [R]". The child was then aged 21 months, and was also a non-citizen child within s 101(5) of the Act.

The positions in the adoption application 16 It was not in question that the adoption order, which was supported by the Department, should be made. The only question was in relation to the child's names. 17 The Director-General did not contest the surname R, or addition of the name H following the name K I, but submitted that special reasons related to the best interests of the child had not been established for the names in the order H K I R. It was common ground that K I was the child's given name for the purposes of s 101(5), and that the addition of the name H was a change in his given name or names. The contest was over special reasons; the adoptive parents put forward reasons for the change, which the Director-General said did not warrant approval of the change. The holding of Young CJ in Eq, however, meant that his Honour did not get to special reasons.

The background to the Act 18 The 1965 Act dealt differently and using different terms with the names of a child, providing in s 38(1) that the child should have the adoptive parents' surname and "as his or her forename or forenames such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents", and s 38(2A) as to change in a forename or forenames - "(2A) An approval of a change in the forename or forenames of a child who has attained the age of 12 years shall not be given by the Court unless the child has, in a consent given under section 33, consented to the change or, where the child has not attained the age of 18 years, the Court is satisfied that there are special reasons, related to the welfare and interests of the child, why the change should be made notwithstanding that the child has refused to consent to the change or his or her consent has not been sought." 19 The Act followed a review of the 1965 Act by the New South Wales Law Reform Commission. Its report, LRC 81 published in March 1997, emphasised the desirability of cultural continuity for a child, and as part of the continuity and in particular in recognition of Article 8 of the United Nations Convention on the Rights of the Child concerning respect for the right of a child "to preserve his or her identity, including nationality, name and family relations", proposed as part of a draft Bill a clause substantially in the language of s 101 of the Act. The clause used the terms "surname" and "given name or names" found in the now s 101. 20 The report included - "10.232 Even apart from obligations under UNCROC, it would rarely be in a 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. 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 racial 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 to 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." 21 From the explanatory memorandum and the second reading speech for the Bill which became the Act, the report of the Law Reform Commission underlay its provisions. This can also be seen in the Act itself. Section 7 of the Act includes amongst the Act's objects ensuring that adoption law and practice "assist a child to know and have access to his or her birth family and cultural heritage" and "complies with Australia's obligations under treaties and other international agreements". Section 8 includes amongst the principles to which a decision maker about the adoption of a child is to have regard as far as practicable or appropriate that "the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved". The legislature may be taken to have accepted the report's basis for the clause which became s 101 of the Act. However, the report did not go into what is a surname and what is a given name, nor is either defined in the Act.

A given name? 22 In Application of M and S [2004] NSWSC 203; reported as re M and Another (2004) 31 Fam LR 415 Campbell J had said (at [20]) that "given name or names" in s 101(5) of the Act meant all the names of the child which were not a surname. In Application of R M and E S M, re Y [2004] NSWSC 937; (2004) 62 NSWLR 465 Barrett J had considered (at [8]) that a Korean name recorded as family name was "in fact what s 101(5) calls a 'given name' because it was conferred upon the child in the absence of knowledge of his family of origin and its name". Campbell J did not advert to how the child acquired the names which were not a surname, but neither of their Honours suggested formality in acquisition or anything beyond conferral of the name or names on the child. 23 Young CJ in Eq took a different view in the present case. His Honour referred to the common law concept of a surname as the name or names "sur" or additional to the name conferred on a person "by a ceremony authorised by law for the giving of names". He distinguished between a given name, referring to the strict understanding of one conferred "through a liturgical ceremony in a Christian Church" but apparently also countenancing a name in some manner otherwise officially conferred, and a name obtained by reputation. His Honour said that it appeared that the report of the Law Reform Commission, and later the legislature, were "endeavouring to protect any name given to a child, particularly in his or her place of birth, where that name is one which the child has taken as an important part of the child's own identity", and - "46 Thus, when approaching s 101(5), the Court might take the view that the legislature has used the technical term "given name" in its technical sense. If that is the case, then, if the Department is to oppose the applicant parents' application, there must be evidence that the name was conferred on the child under the law of the place of birth so as to be the official name of the child. 47 There is no such evidence in the instant case. 48 Alternatively, if the definition of "given name" is "name which has been conferred on a child informally shortly after birth and which the child has accepted as part of his or her identity" then again, there is no evidence that the child has ever accepted any name other than [H] as a given name. 49 Another possibility is that "given name" means, "name by reputation" by which the child identifies himself or herself as at the date of hearing. I do not need to explore this as the result is the same as with the previous assumption. 50 Thus, in my view s 101(5) only applies if it appears that the child's identity includes the fact that he or she has a particular name. That is that someone has conferred a name on him or her and that he or she recognises that such name refers to him or her." 24 His Honour postulated, but did not decide, need for an official conferral of the name, by his reference to a technical sense of "given name" it seems meaning the conferral of a name at baptism or confirmation. Whatever the form of conferral, he considered it necessary also that the child recognised that the name referred to him or her. This last requirement could add to the evidentiary canvas in an adoption application. 25 In the present case, if it were necessary that the name K I had been in some manner officially conferred, there was evidence that the names H, K I had been recognised in Korea in (at the least) the Certificate of Birth and the passport. But, for the reasons which follow, I consider that 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. 26 In early times in the Anglo-Celtic tradition a personal name conferred on a child by the parents was the only name the child bore. Surnames as hereditary family names, generally paternal, were customary in England from the fourteenth century, and the conferral of more than one personal name became customary. The personal names came to be referred to as forenames, in etymologically incorrect contrast to the surname. 27 The personal name given to a child at baptism or confirmation was the Christian name in a strict sense, but with loose usage "Christian name" came to extend to any forename; thus in Linnell, Law of Names Public, Private and Corporate, 1938, p 10 it is said - "In the Oxford English Dictionary, a Christian name is defined a 'The name given at christening; the personal name 'as distinguished from the family name or surname'. It seems that the second of these definitions is now almost displacing the first, and it is seldom present in the minds of persons who use the term 'christian name' that in its strict meaning it can designate only the name of baptism or of confirmation; in illustration, it is remarkable with what frequency Jews today are asked for and supply their 'christian names'." 28 The description of forenames as given names, meaning not only a name given in a religious ceremony but any forename, also became accepted; an illustration is the Centrelink publication Naming Systems of Ethnic Groups, 2000, which describes the naming systems of a great many ethnic groups using examples of given name, middle name and family name. The conventional order of personal name(s) followed by surname explains the description also found of first name and middle name(s). 29 By the common law of Australian legal heritage, a surname is founded in use and reputation, and can be changed by using a different surname and acquiring it by repute (see for example Earl Cowley v Countess Cowley (1901) AC 450 at 460; Chapman v Palmer (1978) FLC 90-510 at 77, 677). A child will generally acquire a surname through his or her parents' acts and the assumption of others that the convention of hereditary family name applies. 30 Where not given in a religious ceremony, forenames will ordinarily come from conferral by the child's parents. Often there will be some kind of official recognition, by registration or otherwise, but a child whose forenames rest only on use or reputation, usually consequent on the parent's naming, nonetheless has names. There have been mixed approaches to change in a Christian name strictly so-called, but it would seem that there is no reason why other forenames can not change by use and reputation. 31 As to change in a Christian name, dicta of Vaisey J in in re Parrott, Case v Parrott (1946) Ch 183 at 186 to the effect that a Christian, meaning baptismal, name may only be changed by Act of Parliament, at confirmation or on adoption have been criticised as out of touch with modern conditions, see Goadby (1946) J Comp Legis & Int L (3rd ser) 82 and (1946) 20 ALJ 253 (in the latter article the learned commentator observes that "under modern conditions … a Christian name signifies not so much the name by which a person is baptized as the names preceding the surname"); but see (1946) 62 LQR 221; (1946) 10 Conv (NS) 170. On the other hand, acquisition of forenames other than a Christian name (which arguably leaves the Christian name unchanged) is supported by R v The Inhabitants of Billingshurst (1814) 3 M & S 25; 105 ER 603 and Williams v Bryant (1839) 5 M & W 447; 151 ER 189. In the first of the cases a man with the baptismal and surnames of Abraham Langley was married after publication of banns in the names of George Smith, by which he had become known; it was held that the marriage was valid when the banns had used his "known and acknowledged" names although not his "true" or "real" names. In the second of the cases William Frances Bryant was sued on a bond executed in the name of William Bryant; a defence of non est factum on the ground that the execution was by William Frances Bryant was rejected with the observations that a man could be sued "not merely by his true name of baptism, but by any first name which he has acquired by usage or reputation" (at 455; 192) and that it was sufficient that he was known as William Bryant at the time of execution (at 456;193). 32 For present purposes, however, it is important that naming traditions in other countries and cultures differ from those of the Anglo-Celtic tradition, see for example Naming Systems of Ethnic Groups. Often a child takes the father's family name and is given a personal name or names, but by no means always. In a great many countries and cultures there will not be a Christian religious ceremony, taking up that sense of a given name, or any broadly equivalent religious ceremony. The order of the names may be altered. Names other than the family name may include a religious, clan or other name not purely personal. The variety of naming traditions defies summary. 33 Australia is now a significantly multi-cultural society. Intercountry adoptions are subject to the Act, and many adopted children will be adopted from countries and cultures remote from the Anglo-Celtic tradition and the common law. I do not think 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. Nothing in the report of the Law Reform Commission so suggests: indeed, it refers generally to "names" and to a first name, a birth name, a name given to a child and a name by which a child is addressed. Nor does anything in the report suggest that the change from "forename or forenames" in s 38(2A) of the 1965 Act was intended to change the nature of the name or names. "Given name or names" continued to be used in conjunction with "surname", in the same manner as the 1965 Act had used "forename or forenames". In my opinion, 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.

Given name or names when? 35 The further question then arises, the given name or names as at what time? A name or names may be conferred on a child by his or her parents at or shortly after birth, but a different name or names may subsequently be given to the child: for example, by a carer if the child is placed for adoption or by foster-parents, or as in the present case by the proposed adopting parents in their period of care prior to application for an adoption order. 36 In referring to approval of a change in the given name or names of a child, s 101(5) at first sight means change from the given name or names at the time of the application for the adoption order. Section 101(3) provides some support for this in its recognition that a child may have become generally known by a particular surname, more specifically "before the making of the adoption order". However, proposed adopting parents often have the care of a child for some time prior to the application for an adoption order, for readily understandable reasons, and it would be at odds with the need for approval of a change in the given name or names of the child, in aid of preservation of the child's name or names and identity, if the name or names conferred on the child by the proposed adopting parents become his or her given name or names. Perhaps that is why s 101 refers in s 101(3) to a particular surname by which the child has been generally known and in s 101(1) to the surname and given names "used" by a child over 18, but does not take up general knowledge or usage in relation to approval of a change in the given name or names of a child in s 101(5). 37 There can ordinarily be ascertained the given name or names of a child at the time the child is placed with the proposed adopting parents, usually the child's name or names from the beginning but perhaps a name or names later given to the child. The child's name or names at that time will be the name or names with which the child is likely to identify or has identified, and as envisaged by the Act, to be preserved. 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.

Change in a given name? 38 As I have indicated, in the present case it was common ground that the addition of the name H was a change in the child's given name or names. Because he held that s 101(5) did not apply, it was not necessary for Young CJ in Eq to consider whether the common ground was correct. The common ground remained on appeal. 39 In many decisions judges of the Equity Division have proceeded on the basis that the addition of a forename was a change in the child's forename or forenames; see for example Application of MJR and MJR, child KBH [2003] NSWSC 937 (additional first forename); Application of M and S (additional third forename, but also shortening an existing forename); Application of P and C [2004] NSWSC 436 (additional first forename); Application of P M and C M, child Y C [2004] NSWSC 461 (additional first forename); Application of C P and J P, child S [2004] NSWSC 687 (additional first forename); Application of R M and E S M, re Y (a complex of additional forenames). Campbell J specifically so stated in Application of M and S at [20], and his observation was adopted in Application of P M and C M, child Y C. 40 In Application of K, child N H [2005] NSWSC 248, decided after the decision of Young CJ in Eq in re H and the Adoption Act, it was noted that the parties had made their submissions assuming that approving an additional first name would require a change in the child's given name, an assumption adopted by the judge. The judge also assumed the application of s 101(5) in like circumstances in Application of B and P, child H [2005] NSWSC 29. In re D Y K and the Adoption Act 2000 [2005] NSWSC 1045, however, decided two days before the hearing of this appeal, the judge said (at [14]) that he "would not construe s 101(5) as prohibiting the addition of a third and fourth given name, following the existing given names, which remain unchanged". 41 Since the question was not argued in this appeal, it would be inappropriate to do more than say that, as at present advised, I prefer the view that 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. That appears to me to be a natural understanding of a change in "the given name or names", referring to the whole of what makes up the child's given name or names, and to be in accord with the principle in the Act concerning preservation of the child's name and identity. 42 As I have noted, the Director-General did not contest the addition of the name H following the name K I. It appears to have taken the same position in other adoption applications: that is, that the addition of a name following the child's existing given name or names can properly be approved. It appears that the Departmental view is that such a change in a child's given name or names does not offend the principle last-mentioned, but special reasons related to the best interests of the child may be doubtful; if the Departmental view is sound, perhaps amendment to s 101(5) is desirable.

Special reasons 43 On the facts in this case, the child's given name was K I and the addition of the first name H would be a change in his given name. It must be determined whether there are special reasons related to the best interests of the child. 44 In Baker v The Queen [2004] HCA 45 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. 47 The adoptive parents have the earlier adopted child with the western name J followed by his Korean name K M. A reason for approving the change of name is that the child should not feel different from his brother. Such a consideration contributed to approval of the additional forename in Application of M J R and M J R, child K B H, and to finding special reasons in Application of P M and C M, child Y C and Application of R M and E S M, re Y. In Application of K, child N H it made out special reasons, together with another matter, in order to avoid the risk of division in the family unit through the siblings having first names from different cultures. 48 The adoptive parents have also called the child by the first name H from early 2003. There has been some variance in the regard given to this consideration. In Application of M J R and M J R, child K B H it contributed to approval of the additional forename on the ground that a second change in the naming practices in which the child had been involved would be undesirable, and it was said (at [13]) that it "may well constitute special reasons related to the best interest [sic] of the child to approve a change in the given names". But in Application of M and S Campbell J said (at [29]) as to finding special reasons - "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 section 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. In the present case, though, there is an important additional factor, namely that the name change took place with the knowledge and written consent of DOCS." 49 In Application of P M and C M, child Y C the special reasons on my reading included, without adverse comment, that the child had been called by the additional name from the time the adoptive parents received an allocation notice, which was a short time after her birth; but in Application of R M and E S M, re Y it was considered that the judge had not found that as a special reason, and the observations of Campbell J were adopted in holding that established use of the additional first name was not a special reason for the purposes of s 101(5). 50 The variance may well only reflect the particular circumstances of the usage of the name. 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. 51 Calling the child by the first name H was known to the Department, see the social worker's report of the interview on 26 May 2003. The evidence does not satisfactorily, if at all, show that the adoptive parents were acting contrary to the Department's wishes; there is no reason to conclude that they were acting otherwise than with the best interests of the child at heart, particularly having in mind their earlier adopted child J. In my opinion, in the present case there are special reasons related to the best interests of the child.

The result 52 Although for different reasons, the adoption order made by Young CJ in Eq should stand. The Director-General gave an undertaking in relation to filing a notice of appeal. I propose that leave to appeal be granted, but that the appeal be dismissed with costs. 53 M W CAMPBELL AJA: I agree with Giles JA.

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

(2004) 31 Fam LR 415

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Cases Cited (14)