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

Supreme Court of NSW|2006-02-24|Before: Brereton J

Background 4 On 2 May 2003, the applicants lodged with the Department an application to adopt a child from overseas, preferably Korea. A confidential adoption assessment approving them as suitable for that purpose was sent to ESWS. 5 The child was born on 22 April 2004. The ESWS intake details record that his birth father was a 19 year old of whom the only detail recorded is a surname, and his birth mother a 21 year old of whom the only recorded detail is also a surname. The birth mother referred the child to ESWS in Sungnam, for adoption, on 23 April 2004, when he was one day old. He was placed with foster parents from the age of 6 days, until he was ultimately placed with the applicants. There is no indication of any contact at all with the birth parents. 6 A certificate of birth issued by ESWS certifies that the child was born on 22 April 2004 and shows no father or mother. A certificate dated 1 June 2004 records that Kim Do Young, President and CEO of ESWS, was named as guardian of the child. An entry in the Family Census Register dated 3 June 2004 records the child as having no father and no mother.

7 On 18 June 2004, Kim Do Young, describing himself as "legal guardian" of the child, signed a "Statement of consent to overseas adoption", irrevocably consenting to the child's migration to Australia and his adoption by suitable parents, and authorising DOCS to make any and all decisions and to take any and all legal steps necessary to accompany his migration to Australia and adoption, in the following terms: By virtue of my right as guardian of [the child], a minor child and having sole custody of the said, I, Kim Do Young, hereby irrevocably consent to his/her immigration to the Australia and his/her adoption by suitable parents. I hereby authorise the Department of Community Services to make any and all decisions and to take any and all legal steps necessary to accomplish his/her immigration to the Australia and adoption, including the right to consent to medical and surgical treatment, the right to consent to adoption and the right to release the custody of this child, and to transfer the right to consent to the adoption of this child to any agency authorised to place child for adoption. I fully understand that I am hereby releasing irrevocably the custody of this child and I understand also that once the legal adoption has been completed, the adoptive parents will assume all the legal responsibilities for the child and will acquire all the legal rights incident to the relationship of parent and child. In consideration of this assumption of my legal obligations by the adoptive parents, I hereby waive all the rights which I now have over this child. 8 On 27 June 2004, a DOCS officer interviewed the applicants who signed various documents indicating their desire to adopt the child, which were then returned to ESWS in Korea. The applicants left Australia and travelled to Korea on 7 October 2004. There they contacted ESWS, and met the child at the orphanage on 8 October 2004. On 14 October 2004, he was placed in their care and they received the relevant Korean papers pertaining to his adoption. On the same day they left Korea with the child, arriving back in Australia on 15 October 2004. Since then, the child has resided in New South Wales with the applicants and their three-year-old adopted son, who was also born in Korea, on 16 March 2002. The placement has, by all accounts, been very successful. Dispensing with consent and notice - the birth parents 9 The Director-General's delegate has suggested that it may not be necessary that the court dispense with the consent of the birth parents, by reason of the child being a non-citizen child as defined in the Immigration (Guardianship of Children) Act 1946 (Cth). This court has repeatedly explained that this view is erroneous [Re K and the Adoption Act 2000 [2005] NSWSC 858; Re KN and the Adoption Act 2000 [2005] NSWSC 896; Re DYK & The Adoption Act 2000 [2005] NSWSC 1045; Re S & the Adoption Act 2000 (NSW) [2005] NSWSC 1346], and that the consent of the natural parents is still required unless an order dispensing with that consent (called a "consent dispense order") is made.

10 Consent dispense orders, and orders dispensing with giving of notice of the application to the natural parents, are authorised by Adoption Act 2000 (NSW), s 67(1)(a) and s 72(2)(a). The court may make a "consent dispense order" if satisfied that the person whose consent is otherwise required cannot after reasonable inquiry be found or identified, but not unless it is satisfied that to do so is in the best interests of the child. As White J has explained in Re K, what amounts to "reasonable inquiry" is to be evaluated from the perspective both of the applicants and of the person whose consent is otherwise required.

11 Neither the identities of the child's natural parents (save for surnames), nor their whereabouts, are presently known to the applicants or to the Director General. There is no evidence of the identity of the birth father or birth mother other than surnames; no hint of the father having ever had anything to do with the child, or even being aware of his existence; and no suggestion that the mother has had any contact with the child after his birth. The evidence shows that the birth mother, thinking that she could not provide a proper environment for the baby, and that it was most desirable for him to grow up well in an appropriate adoptive home, relinquished him to ESWS for adoption. While that is not a "consent" for the purposes of the Adoption Act, it is highly relevant in considering whether any further inquiries would be "reasonable". The view that they would not is reinforced by the circumstance that, from the perspective of the birth parents, their anonymity, which has been conferred on them by the measures taken in Korea in respect of the birth documentation, would be infringed. 12 There is no likelihood that any inquiry of which the applicants are capable would find either of the natural parents, and scant likelihood that they would wish to be contacted. I am satisfied that it would not be reasonable to require further inquiry as to the identity and whereabouts of the natural parents, and, therefore, that the natural parents cannot after reasonable inquiry be found. I am also satisfied that it is in the interests of the child that a consent dispense order in respect of the parents be made. For the same reasons, I am satisfied that notice should not be required to be given to the birth parents.

Dispensing with consent - the guardian 13 Orders dispensing with the consent of the CEO of ESWS as guardian are unnecessary, as by operation of s 6 of the Immigration (Guardianship of Children) Act, the Commonwealth Minister became the guardian of the child upon his arrival in Australia, to the exclusion of any former guardian [Re S & The Adoption Act 2000 [2005] NSWSC 393; Re K, [15]; Re KN, [10]; Re DYK]. 14 The Acting Director of Adoption and Permanent Care Services of DOCS, as delegate of the Commonwealth Minister, has signed a consent on 29 August 2005 to the making of an adoption order, and a direction that the provisions of the Immigration (Guardianship of Children) Act cease to apply to the child with effect from the date of the adoption order. That is the only guardian's consent that is required. Name and special reasons 15 The applicants propose that the child have their surname, and that his forenames be his two (existing) Korean forenames (S and E), together with the Anglo-Saxon forename M. 16 Adoption Act, s 101(5) provides that 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. In Re D Y K, which like most of these applications was dealt with in chambers and without the benefit of argument, I ventured the view that I would not construe s 101(5) as prohibiting the addition of a third and fourth given name, following existing given names, which remained unchanged. However, in Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385, Giles JA, with whom Mason P and Campbell AJA agreed, wrote:- 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.

17 On reflection, and with the benefit of reference to the authorities, which Giles JA has catalogued, I agree that the phrase "the given name or names" is apparently a reference to the whole of what makes up the child's given name or names, and that the addition of a name following a child's existing given name or names, would be a change in the child's given name or names. I therefore withdraw what I said, in that respect, in Re DYK. It follows that approval may be given to the name M as part of the child's adoptive given name only if there are special reasons, related to the best interests of the child, for doing so.

18 In this context, "special reasons related to the best interests of the child" are constituted by factors or circumstances related to the best interests of the child that are out of the ordinary course, unusual, special or uncommon and that are not regularly, routinely or normally encountered. In Director-General, Department of Community Services v The Adoptive Parents, Giles JA addressed what constituted "special reasons" in this context as follows:- 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. 19 Are there such reasons in this case? The main reason which the applicants advance is that their older child, also adopted from Korea, has an Anglo-Saxon middle name (B), although they say that both children are known to everyone by their first, Korean, name. 20 The Department does not oppose the proposed additional forename as a third forename. In Director-General, Department of Community Services v The Adoptive Parents, Giles JA noted that the Director-General did not contest the addition of an Anglo-Saxon (third) forename following two Korean forenames, and that the Department apparently consistently took the position that the addition of a forename following the child's existing given name or names could properly be approved, as such a change in a child's given name or names did not offend the principle in the Act concerning preservation of the child's name and identity; but his Honour added that it may be doubted whether that amounted to "special reasons related to the best interests of the child", suggesting that amendment to s 101(5) was perhaps desirable. I respectfully agree that it may be doubted whether this factor alone could constitute "special reasons"; but it may, when added to other matters, contribute to a finding that the requirement of "special reasons, related to the best interests of the child" is satisfied. Because the addition of a third name in that way does not infringe the principle concerning preservation of name and identity, "special reasons, related to the best interests of the child" may much more readily be found in such a case than in cases where that principle would be contravened. In this case, the addition of an Anglo-Saxon name will not detract from the child's Korean heritage, or identity - and it is clear from the applicants' record with the older child that they are conscious of the importance of maintaining this. 21 The circumstance that adoptive parents have an earlier adopted child who has been given an additional Anglo-Saxon name, and a similar mixed name structure, to that proposed for the child, is a factor which can at least contribute to a finding of "special reasons, related to the best interests of the child". This is because if the name were not approved, there would be potential for the appearance if not the actuality of distinctions and differences between the status of the siblings, whereas approval is more likely to foster the promotion of fraternal bonds through similar name-structures. In Director-General, Department of Community Services v The Adoptive Parents, Giles JA continued: 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.

22 Another contributing factor is that in the context of an inter-country adoption, at a very young age, from a non-English speaking country, the conferring on a child of an additional Anglo-Saxon name is reflective of the circumstance that the child will grow up knowing his or her original cultural heritage which is reflected in the retained forenames, but also in an Australian cultural context which is reflected in the additional forename, and may be a matter of convenience and benefit. As Campbell J has pointed out in Application of O and P [2005] NSWSC 1297, whose valuable analysis of the similar issues in that case I have found of great assistance, migrants to Australia from non-English-speaking countries not uncommonly give themselves new forenames - often Anglicised versions of one of their original forenames - and it may be inferred that the availability of such a name is often seen by such immigrants as convenient and beneficial.

23 The circumstance that the child has an adoptive brother who has been given a name similar in structure to that proposed is plainly an unusual circumstance which takes the case out of the ordinary. The conferring on this child of a third, Anglo-Saxon forename will have the benefits of consistency with the approach adopted in the elder child's case, avoidance of different treatment of the siblings, and reflection of the diverse cultural heritage that the child will acquire in his adopted family in this country, while preserving his connection in name with his cultural origins. It will not detract from the child's sense of identity or his cultural heritage. As the additional name will be a third name, and not the name by which the child will be known, its approval would be not inconsistent with the principle in the Act concerning preservation of the child's name and identity. It has no apparent detriment. I am satisfied that, taken together, these matters amount to special reasons, relating to the best interests of this child, why the name sought by the applicants should be approved, and I will approve the proposed name. Release of certified copy order for ESWS 24 For the reasons explained by Campbell J in Re KN [at [19-26]], in the exercise of the Court's inherent jurisdiction and pursuant to Adoption Act, s 143, it is appropriate to make an order releasing a certified copy of the orders to DOCS for transmission to ESWS. Orders

1 for adoption of the child in favour of the applicants,

3 dispensing with the consents of the child's natural parents,

4 dispensing with the giving of notice of the application to the natural parents, and

5 releasing a certified copy of the orders to DOCS for transmission to ESWS. 26 No order dispensing with the consent of Kim Do Young, nor dispensing with the giving of notice of the application to him, is necessary.

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.

CITATION : Re KSE & The Adoption Act 2000 [2006] NSWSC 92

Application of O and P [2005] NSWSC 1297 Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385 Re D Y K and the Adoption Act 2000 [2005] NSWSC 1045 CASES CITED : Re H & The Adoption Act [2004] NSWSC 1242 Re K & The Adoption Act [2005] NSWSC 858 Re KN & The Adoption Act 2000 [2005] NSWSC 896 Re S & The Adoption Act 2000 [2005] NSWSC 393 Re S & The Adoption Act 2000 [2005] NSWSC 1346

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