Director-General Department of Community Services v The Adoptive Parents

Facts 8The applicants have previously adopted two children from Taiwan. I do not have precise information about either of these adoptions, but it seems clear that the first occurred before the coming into operation of the Adoption Act 2000, and the second was after that date. 9I note, in this regard, that YY was placed with the applicants in February 2008, at the age of 9 months, and was subsequently adopted by them. 10Mrs H informed me that, in each of the other adoptions, there had been opposition to a change of the child's name, "but the court ruled in our favour". No supporting documents in respect of either previous adoption, were available at the hearing. 11The applicants informed me that the Court had approved the change of the name from YY to include, as a first name, the name "C". 12Mrs H went to Taiwan on 16 September 2009. JW was placed in her care on 17 September 2009, and, together, they returned to Sydney on 24 September 2009. From that time onwards, he has been in the care of the applicants. Thus, JW was just over twelve months old when he was brought back to Sydney. He is now almost 2 years and 7 months old and has, therefore, been in the applicants' care for about 18 months. 13The affidavits filed by the applicants did not reveal the circumstances in which there was a change of the forename of each of the older two children adopted by them. However, it appears from a Court Report, provided as part of the Delegate's affidavit, that the applicants started the practice of identifying their oldest son, TA with the European name, "J", prior to the introduction of the current adoption legislation and they have continued this subsequently with YY, who is often called "C" by them, and now with JW, who has often been called "S". 14At the hearing, Mrs H informed me that from the time each of the children entered their home, the applicants have used an English and the Chinese name of each child. She also said that each of the children, from that time, has recognised, and responded to, both names. 15Certainly, during the hearing, each child was referred to by his, or her, English name, and each appeared to recognise, and to respond, to that name. 16In relation to JW, Mrs H said that he had been called by the English name, "S", since he arrived in Australia, although sometimes, by his nickname which is an adaptation of his Chinese name. 17Each of the children refers to the other child by his, or her, English name, although sometimes the Chinese name is used as well. 18At the hearing, Mr H emphasised that each child's Chinese name is used "on a regular basis so they are well and truly in circulation" and that "they are very familiar with their Chinese names because we have respect for their culture, their home birth place, so it's not as if we've discarded those names because we dislike them". I accept that this is so. 19I also enquired whether any of the children had been baptised. I was informed that each child had a "Baby Dedication" through the Church of Christ. I gather this ceremony has some similarities to a baptism. 20The applicants have filed an affidavit stating their reasons for the requested change in JW's forename. They say: (a) they are not changing his name, but adding to it; (b) they wish, like all parents, to enjoy "the precious right to name their child"; (c) Mrs H is adopted and is proud of the name her adoptive parents gave her. By giving a family name as well, JW will further identify as part of the family and feel even more tied to the family tree of the applicants; (d) the name, "S", holds great significance for the family as it is the name of Mrs H's great-grandfather; it also holds special religious significance; (e) each of their other two adopted children has an English name as well as his, or her, Chinese name; and each English name is easily recognisable and easier to pronounce than his, or her, Chinese name. 21It is asserted in the Delegate's affidavit which I have read on the application, that the applicants' affidavit does not demonstrate "special reasons" related to the best interests of the child, for the change in JW's given name so that, in accordance with s 101(5) Adoption Act , the application for change of name must be refused. 22Since the amendments made to the Adoption Act , 2000, by the Adoption Amendment Act , 2008, which was assented to on 4 December 2008, and which, relevantly, came into operation on 1 January 2009, "special reasons" are not required under s 101(5) of the Adoption Act , 2000. Section 20 of the amending Act provided that s 101(5) was amended by omitting the words in the section, "unless there are special reasons, related to the best interests of the child, to do so" and inserting instead "unless the Court is satisfied that the name change is in the best interests of the child". Section 101 of the Adoption Act 2000, as amended, is as set out below. 23I note the following assertions made in the Delegate's Affidavit sworn 16 November 2010 in support of the opposition to the name change: (i) JW is the name given to him by his birth mother. (ii) On 22 March 2009, the applicants signed an agreement and undertaking at allocation which states "We agree to retain our child's given name/s as required by s 101(5) of the Adoption Act 2000". (iii) On 23 December 2009, at the first placement interview, the applicants reportedly stated that they would keep the child's name and that they understood the importance of so doing. They also stated that they proposed to keep his name JW as his forename when the adoption was finalized as with his older siblings. (iv) The importance of maintaining JW's name as part of his identity and heritage is a matter of which the applicants are aware. 24Of course, only the first and the last of the assertions referred to, provides a reason why the name JW should be retained as the first name of the child. Each of those assertions confirms the importance of preserving the child's birth name to maintain a clear and tangible identity, language and cultural bond, with his country of origin. As has been noted in other cases, a child adopted from overseas has lost his, or her, birth culture, birth parents and birth country. For such a child, his, or her, name remains one of the only links to the above: see, for example, Re MJR [2003] NSWSC 937 at [7]; (2003) 31 Fam LR 50 at 52, per Bryson J. 25The other assertions in the Delegate's affidavit reflect an acknowledgement, by the applicants, of the importance of the background and identity of the child. 26At the hearing, Mr H confirmed the applicants' understanding of that importance and stated they intended, otherwise, to ensure the background and cultural heritage of JW is preserved. They indicated that, following the conclusion of the hearing, the family was going to a camp at which other families with children adopted from Taiwan would be attending. 27I was left with no doubt that the applicants will continue to preserve the background and the identity of JW, no matter what his forename is. In this regard, it is clearly in his best interests that they do so.

The Statutory Scheme 28The Adoption Act commenced on 1 February 2003. It has been amended since then, relevantly, as set out above. There is no dispute that it is this Act, rather than the Adoption of Children Act 1965 (NSW), that must be applied in the present case, since JW was placed with the applicants after the commencement of the Adoption Act . 29Section 7 of the Adoption Act includes amongst the Act's objects, one to ensure 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". 30Section 8(1) of the Adoption Act requires the Court, in making an adoption decision, to have regard (as far as practicable or appropriate) to principles which include the following: "(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; ... (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved..." 31Section 32(1) of the Adoption Act requires the Court, in making an adoption decision, to also take into account, amongst other things, the culture, 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. 32Section 32(2) requires the Court to take into account whether the adopting parents have demonstrated: "(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." 33All of these sections point to the to the principle that the best interests of the child, both in childhood and in later life, must be the paramount consideration. The preservation of any established name that the child will recognise as going to his, or her, identity is important in giving effect to that principle. 34In dealing with the application for an order with respect to the child's name, the court must obey, and give effect to, specific provisions of the Adoption Act concerning the name of a child who is more than one year old or who is a non-citizen child - both being categories in which JW is included. 35In Director-General Department of Community Services v The Adoptive Parents (2005) 64 NSWLR 268; [2005] NSWCA 385, the Court of Appeal (Giles JA, Mason P and Campbell AJA concurring), held (at [37]) that when s 101(5) of the Adoption Act 2000 refers to a change in the given name or names, it takes as its starting point the name, or names, that the child had at the time of being placed with the proposed adoptive parents. (At that time, JW was the name that the child had.) Despite the decision of the Court of Appeal having been made before the amendment referred to, it still applies to the section as amended. 36The provision of the Adoption Act which governs the naming of adopted children, is s 101, which provides: "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 the Court is satisfied that the name change is in the best interests of the child. (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." 37The meaning and effect of this section, prior to its amendment, was discussed by Campbell J (as his Honour then was) in the Application of O and P [2005] NSWSC 1297; (2005) 34 Fam LR 385: "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 s 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 s 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 s 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 Pty Ltd (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 Ltd 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 s 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 s 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 s 101, nor is there any necessary implication contained in s 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." 38The court may only order a change of given name under s 101(5) if it "is satisfied that the name change is in the best interests of the child". Thus, the section, like others in the Act, contemplates individual justice. The decision maker is obliged to consider the best interests of the particular child in the particular circumstances of the case. 39How the court determines what is in the best interests of that child is not prescribed. Of course, there is, in sub-s. (2), the requirement to 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. 40However, the ultimate, and only, principle that guides the test under s 101(5) is what is in the best interest of the child. The test cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. The approach to be adopted is for the Court to weigh, and balance, the factors that are relevant, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have. 41Importantly, the focus is on the best interests of the child, not the interests of the applicants as the adoptive parents. This does not mean that their legitimate interests and desires, or their views on what is in the best interest of the child, should be ignored. However, the touchstone for the Court's ultimate decision on whether to permit the change of a given name, remains the best interests of the child. 42Thus, in deciding whether it would be satisfied, the Court should consider all of the circumstances of the particular case before it, and decide whether those circumstances, taken together, justify a name change in the best interests of the child.

Consideration 43In this case, JW is too young to express any wishes, or considered views, as to the change of his name. Accordingly, it is necessary to evaluate the reasons advanced by the applicants. 44The first reason given by the applicants is that "we are not changing [JW's] name but adding to it". As has been pointed out, judges of the Equity Division, in many decisions, have proceeded on the basis that the addition of a forename is a change in the child's forename or forenames: see, Director-General, Department of Community Services v The Adoptive Parents at [39] and [41] and the cases cited. I do not think this is a matter that is relevant to the best interests of the child. 45The second reason given by the applicants is the wish to not be discriminated against in relation to choosing their child's name because they are adoptive parents. The law has a clear, and considered, policy basis, which must be applied in every case. Therefore, I do not regard this as a relevant reason for the making of the order: Application of "M" and "S" [2004] NSWSC 203; Application of RM and ESM, child Y [2004] NSWSC 937 at [24]. 46That Mrs H was adopted and that she holds dear the name given by her adoptive parents, also, in my view, is not a reason that is relevant to the best interests of the child. She was adopted when the present Act had not been passed and when issues of name may have been less important. In addition, she appears not to have had a different cultural background, or heritage, to protect. 47The next reason suggested by the applicants was to perpetuate the name of Mrs H's great grandfather taken with the religious significance to the applicants of the name chosen. 48To perpetuate the name of a now deceased family member, as well as the religious significance of the name being chosen, might each be a reason for the applicants to desire a name change, but I do not consider either to be a reason relevant to the best interests of the child in the circumstances of this case. 49I turn then to what I regard as the most important reasons advanced. 50I note that there appears to be no prohibition in s 105 on a child acquiring a name by reputation; nor does there appear to be any prohibition on the adoption of a substitute "given name" before the adoption order is made. Nor does there appear to be any problem about a substitute given name being given to the child the day after the adoption order. 51JW has been called "S", as well as by his Chinese name, or a diminutive of it, for the whole of the time that he has been in the care of the applicants. In addition, each of his siblings is known by both his, and her, English and Chinese names. The applicants, and their children, have used both forenames to identify each child. 52In Application of MJR and MJR, child KHB [2003] NSWSC 937; (2003) 31 Fam LR 50 Bryson J said at 53: "I am inclined to think that where a western forename has been given to the child, and the child has for a significant period, by which I mean a year or more, come to know an order of given names to which the western given name comes first, that may well constitute special reasons related to the best interest of the child to approve a change in the given names. ... However, this is not a subject which can be generalised; the need is to identify special reasons, and acceptance as a matter of course of changes which adopting parents propose would from now on be altogether inappropriate. Proposed adopting parents should be aware, and adoption agencies will probably make them aware, of the effect of s 101 and of the difficulty created by that section for changes in given names of non-citizen children." 53In Director-General Department of Community Services v The Adoptive Parents , the Court of Appeal referred to the significance, in the context of s 101(5), of the fact that the child has become known by the changed name. It was held that weight can be given to that fact. Giles JA, at [50] said: "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." 54I should refer next to the decision of Austin J in Re YC; Application by PM and CM [2004] NSWSC 461. That case also concerned a child from Taiwan and a proposal that her name consist of a new Anglo-Celtic forename, followed by her original Taiwanese given name and the surname of the adopting parents, with that surname replacing her Taiwanese family name. Austin J approved the altered names pursuant to s.101(5) and, in so doing, said: "One special circumstance is that the adopting parents have already adopted a Taiwanese boy under the Adoption Act 1965, which contained no provision equivalent to s 101(5). The name given to him on adoption was an Anglo-Celtic first name, his Taiwanese given name as his middle name, and the surname of his adoptive parents. The present application will confirm a continuity and similarity between the siblings, whereas refusal of the application may be confusing to the child as she grows up, and possibly disruptive of her social and family relationships. ... Given the commitment of the adopting parents to preserve the language and culture of the child, it does not seem to me that the adoption of an Anglo-Celtic first name will inhibit the child's development in the manner envisaged by the legislation and the Law Reform Commission Report." 55The concerns raised by Austin J in not permitting the name change apply with equal force in this case. 56Although these cases were decided before the amendment to the Adoption Act 2000, and each speaks by reference to the requirement for "special reasons", they provide useful assistance in the determination of this case. 57Considering the facts of the present case, I have also found the reasoning of Campbell J in The Application of O and P most valuable and particularly apt: "[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 s 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." 58In the present case, the applicants have relied upon evidence which demonstrates a commitment to preserve JW's identity and culture. They are part of a support group for families who adopt children from Taiwan. They hope to be able to take their children back to Taiwan when they are older and have researched plans to spend some time as a family residing and working there as English teachers. They have been able to maintain some contact with the birth family of TA, their oldest son. 59I am also satisfied, from observing the applicants, that they are aware of the importance of maintaining JW's name as part of his identity and heritage. In relation to each of their children, they use his, or her, Chinese name as well as the English name given to him and to her regularly. Each of the children responds to each name. The applicants also appear to have a sound understanding of the issues their children will face in the future and a high regard for their children's heritage. 60I am satisfied, despite the opposition expressed by the Delegate of the Director-General that it is in the best interests of JW to make an order changing his given name. The court will make an order approving the name in the manner the applicants seek. 61In the circumstances I shall make orders as sought by the applicants in a document provided to the Court, which I shall sign, date and place with the papers. I make orders accordingly.

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