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.