R v Clark

Supreme Court of NSW|2004-12-14|Before: Young CJ

CITATION : Re H and the Adoption Act [2004] NSWSC 1242 HEARING DATE(S) : 14/12/04 JUDGMENT DATE : 14 December 2004

JURISDICTION: Equity Division Adoptions List JUDGMENT OF : Young CJ in Eq DECISION : Adoption order made as requested.

CATCHWORDS : FAMILY LAW [138]- Adoption- Name of Adoptee- Non-citizen child- What is his given name- Whether name may be changed- Adoption Act 2000, s 101(5). WORDS & PHRASES-"Given Name". LEGISLATION CITED : Adoption Act 2000, s 101(5) R v Clark (1818) Russ & Ry 358; 168 ER 844 CASES CITED : Re M & S [2004] NSWSC 203 Wyatt v Henry (1817) Hag Con 215; 161 ER 720 PARTIES : Applicants: In Person Respondent: Department of Community Services FILE NUMBER(S) : SC 80165/04 COUNSEL : Heard in Chambers on the Papers. SOLICITORS :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTIONS LIST

80165/04 - RE: H AND THE ADOPTION ACT JUDGMENT 1 HIS HONOUR: This is a routine application for adoption by an Australian couple of an orphan born in Korea. 2 All the necessary matters to grant the application have been established and, with one exception, the orders sought by the applicants are supported by the Director-General of DOCS. 3 The issue in contention is proposed order 2 that the adopted child be given the name "Harrison" as a first name with his Korean forenames as middle names. 4 Today, I duly made the order as asked by the applicants. However, as part of the order was opposed, I should give my reasons for so doing. 5 The problem is caused by s 101(5) of the Adoption Act 2000. That section provides, so far as is relevant, as follows: "(1) On the making of an adoption order … 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 … 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.

(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." 6 The applicants have provided an affidavit of special circumstances. It is not as extensive as many of the affidavits the court receives in adoption matters. Essentially it says that the applicants were unaware of the new provisions brought about by s 105(5) of the Act and that the child has been known as Harrison from the time they first met him in February, 2003. They also point out that the first report of the Department's consultant, a consultant who actually lectured at the Department's seminar to which I will refer later, referred to the child as Harrison. 7 The adopting parents also make the point that they already have adopted another child of Korean origin who is called Jack with his original Korean names as middle names. Jack has been brought up with care to see that he appreciates his Korean ethnicity: it is proposed that Harrison be raised in the same way.

8 The Department has filed an affidavit by a Ms Prodigalidad who says she is a public servant and a delegate of the Director-General. Just what is Ms Prodigalidad's seniority or status is left unrevealed. 9 Ms Prodigalidad annexes an extract from the United Nations Convention on the Rights of the Child. She says on her oath that article 8 is as follows: "ARTICLE 8 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity." 10 Ms Prodigalidad then says on her oath, "The Department of Community Services contends that special reasons for changing the child's birth name would arise in only exceptional circumstances to justify a contravention of International Law." 11 It would not seem that Ms Prodigalidad has much conception of International Law or what is legal in this area or what is identity. 12 First, the mere fact that Australia ratifies an international treaty does not make it part of Australian law. Secondly, "International Law" refers to the obligations between nations rather than individual rights. Thirdly, it must be established that a child has an identity before there is anything to preserve. Fourthly, it must not be assumed that a person's identity is fixed at birth and thereafter there can never be any changes. Finally, there is no Australian law, other than perhaps s 101(5) of the Adoption Act 2000, which recognizes identity. 13 Ms Prodigalidad also uses the term "birth name". There is no material to suggest that a person emerges from the womb with a name. Indeed, authority is against the proposition; see eg R v Clark (1818) Russ & Ry 358; 168 ER 844. Until named in a ceremony appropriate under what might be called the lex loci natus to confer a name, the child has no name, Linell, The Law of Names (Butterworths, London, 1938) p 18. In due course, the child will attain a name by reputation. 14 Ms Prodigalidad seems to be saying, on her oath, that a name conferred on an infant by a stranger shortly after birth, without the child's consent marks that child's identity for ever. This just cannot be correct. 15 Ms Prodigalidad then purports to construe a judgment of Campbell J in Re M & S [2004] NSWSC 203. She cites para [29] and then says, "Given this decision by the Supreme Court, it would appear to be inappropriate to change (the child's) given name on the basis that the applicants have chosen to give him another name since the time of his placement". 16 Unfortunately for Ms Prodigalidad, para [29] was dicta in a case under the transitional provisions in which Campbell J actually allowed a change of name. 17 Ms Prodigalidad then swears on her oath the following statement, "Any reference by the applicants to the child by another name has been a clear contravention of Adoption Act 2000, their commitment as demonstrated during the adoption process and clearly is not in the best interests of the child as deemed by international authorities." 18 At this point I should remind the Department that affidavits are for the statement of facts. A person who swears to matters purporting to be matters of fact when she does not know them of her own knowledge, or interprets documents in a way which states as a fact that someone made a commitment when they deny it, is in danger of a charge of perjury. 19 The proper manner of dealing with such matters is to annex documents or reports, or better still, have the person who made the report swear an affidavit, and make all matters of submission and contention in an unsworn document marked "Submissions". 20 The so-called "commitment" is that on 22 November 2001, the applicants attended a Preparation for Adoption Seminar. The evidence as to this seminar is meagre. Ms Prodigalidad (who it would seem did not attend) says it was the practice of the social workers delivering "the training" to raise and discuss the importance of a child retaining his or her birth names as "given names". There is no material to show that they ever did so. One of the so called "trainers" was actually the social worker who gave the reports in this case: up until recently, she referred to the child as Harrison. 21 It is clear from the evidence that comes before the judges of this Court that if the Department considers that the message about its policy is being clearly spread at these seminars, there is poor and inadequate communication, as many applicants are swearing that they did not understand that such message was given. Indeed this makes one uneasy as to whether the seminars are achieving their purpose about adoption generally. 22 I should repeat what has been said before that in uncontested matters and, indeed generally, under s 126 of the Adoption Act, 2000, the court accepts less than the best evidence. However, it endeavours to insist that:

(2) Where there is a contest, the facts should normally be presented on affidavit by the person best equipped to make the statement who is prepared to be cross-examined thereon. 23 Costs on the indemnity basis will ordinarily be ordered against the Department if an objection to adoption is not sustained. This is because it is the Department's policy that has occasioned the extra costs. 24 With the foregoing in mind, I turn to s 101 of the Adoption Act 2000, the text of which I have set out earlier in these reasons. 25 The section is oddly expressed. Sub-section (1) read by itself recognizes that the court may only approve the name in the application of the adopting parents. There would not appear to be any power in the court to do otherwise than accept the applicant's choice. 26 Despite sub-section (1), sub-section (3) permits the child to be given his or her surname by reputation (but not a given name by reputation). It is not clear whether sub-section (3) cuts across the rights of the adopting parents conferred by sub-section (1) or modifies the prohibition in sub-section (5) or both. 27 The section refers to "given name or names", but nowhere defines this term. However, it is the given name existing at the time of the adoption order that can only be changed under special circumstances in sub-section (5). 28 There is no prohibition in the section 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 is there any problem about a substitute given name the day after the adoption order. For some reason, the legislature has focused on the actual order and decreed that the given name at that point in time is not to be changed. 29 Traditionally in Christian countries a name was conferred at baptism. Since the Black Death it has usually been a saint's name so as to seek the saint's protection for the person carrying his or her name. 30 This term would be understandable in sixteenth century England where the Book of Common Prayer made it clear that a person was given his or her name by the godfathers and godmothers at his or her baptism.

31 Thus the Catechism of 1662: "Q. What is your name? A. N or M Q. Who gave you this name? A. My godfathers and godmothers in my Baptism …" 32 The Laws of England made provision for names to be given to non-members of the established church, see Linell, The Law of Names, (Butterworths, London, 1938) p 12. 33 Any name taken by a person other than through a liturgical ceremony in a Christian church was considered not to be a "given name"' but a name by reputation. 34 Linell says at p 15: "Forenames that are not conferred by the christian Church at baptism or at confirmation are acquired purely by reputation … . Consequently they may be acquired, abandoned, or altered in accordance with the rules of law that regulate the acquisition, abandonment, or alteration of surnames." 35 At common law, an assumed forename or a name by reputation may supersede a Christian name: Wyatt v Henry (1817) 2 Hag Con 215 at 220-1; 161 ER 720 at 722 and see Linell p 60. 36 However, in multi-cultural NSW for non-members of liturgical churches, there is no formal giving of a name. 37 In England, by the Births and Deaths Registration Acts of 1836 and 1874, the informant was required to inform the Registrar of the "Name, if any" of the child being registered. 38 In NSW, apart from forms in regulations, there was no statutory mention of registering a child's name until the Births, Deaths and Marriages Registration Act 1996. Section 21(1) of the Act says that the birth registration statement must state the name of the child. The Act is silent as to how the child acquires that name. However, s 21(2) states that if the parents cannot agree on a name (or if they agree on a prohibited name) then the registrar assigns a name to the child. [NB the Act preserves the technical meaning of the term "give a name" by using the word "assign".] 39 Section 21 thus gives the impression that both parents have the right and, indeed, the duty, to register the child, and before registration to confer a name on the child which becomes the child's official name on registration. 40 Outside NSW, there may or may not be a formal manner of giving a name which becomes, by law, the official given name of an infant as opposed to a name obtained by reputation. 41 In Re M & S, Campbell, J briefly raised the problem of the expression "'given name". He contrasted it with "real name", that is the name that most people would use when addressing the child. This is a valid distinction. 42 However, his Honour said at [20]: "There is no definition of the expressions 'given name or names' which appears in (the) section … . However, as a matter of construction of the Act as a whole, and the policy explained in portions of the Law Reform Commission Report … 'given name or names' of a person are all the names which that person has which are not a surname." 43 With great respect, I cannot agree with all of that statement, as the word "surname" connotes those additional names a person takes other than the name which was conferred on him or her by a ceremony authorised by law for the giving of names. By the common law, which has never been abrogated in this State, all of a person's names other than one are sur or additional names. However, for present purposes it matters little as the problem remains whether one adopts his Honour's definition or not.

44 The Law Reform Report to which his Honour refers is No 81 of 1997. That Report, however, is rather confused. At 10.231 it refers to the alleged right of a child to preserve his or her first name: at 10.232 it refers to the child's name which is an integral part of his or her identity while paragraph 10.235 refers to "birth name" whatever that is. Paragraph 10.236 then says, "often a child has been given his or her name by carers at an orphanage and therefore it may have no significance for a child. This argument ignores the point … that children … identify with the name by which they are addressed so that it becomes an important part of their concept of themselves." 45 If one slides over the confusion in terminology of the report and the fact that it seems oblivious to the common law of names in Australia, it would appear that what the report, and later the legislature, was endeavouring to protect was 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. 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 Harrison 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. 51 Accordingly there is nothing in s 101(5) which inhibits the Court from making an order to comply with s 101(1)(b), that is, to order that the child have a name in the form proffered by the applicants. 52 Thus I made the orders as requested.

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