Judgment - EX TEMPORE
Revised and reissued 22 May 2019
This adoption application was before me in March. On 20 March I delivered a judgment explaining why I was unable to make an adoption order at that point but granting leave to counsel for the plaintiffs to approach me in chambers for the making of an adoption order when further evidence had been obtained: The Adoption of K [2019] NSWSC 309.
This judgment assumes familiarity with the background set out in my March judgment. The same abbreviations are used to identify the parties as were used in that judgment.
Following my March judgment, the s 91 report was provided to the Court. Having considered the report, I remained of the view that the case was an appropriate one for the making of the adoption order which was sought. Accordingly, on 10 April I made an adoption order in the form submitted on behalf of the applicants. I was then told that the form contained errors and on 12 April under the Slip Rule [Uniform Civil Procedure Rules 2005 (NSW), r 36.17] I made a replacement order correcting the errors in the particulars relating to the child and the adopting parents. The formal order, as corrected, was issued by the Registrar on 1 May.
The Court has now been told that there is a further problem with the form of the order. The applicants are no longer legally represented. They have approached the Court because they say that the particulars of the adopting mother, as recorded in the order, are not suitable for their purposes.
The adopting parents N and S who are the applicants, were married in September 2005. This was about three years after the birth of K, the child who was the subject of the application. Since she married N, S has used his surname as her married name. The application was made to the Court in her married name and the form of orders submitted on the plaintiffs' behalf specified S's married name as her surname in her particulars as adopting parent. This would appear to be correct as it reflects the name she in fact uses.
The custody order made by the Family Court in New Zealand in S's favour was made under S's maiden name, which she was then (before her marriage) using.
N and S are now attempting to have the New Zealand authorities issue a fresh birth certificate but say they are encountering difficulty in doing so because the adoption order is not in the same name as the custody order made in March 2005.
The evidence before the Court does not explain why this is such a difficulty. On the face of it, the difference in names is something that would be encountered all the time by the New Zealand authorities. One would think that, if not dealt with by the production of the marriage certificate (which is a New Zealand marriage certificate), it could be addressed by some form of statutory declaration. Furthermore, there is no explanation before the Court as to why the issue of a fresh birth certificate by the New Zealand authorities is so important for the purposes of the American immigration authorities. It was N and S's desire to obtain a visa for K to travel with them to the United States which prompted the adoption application in the first place. Nonetheless in order to resolve the matter finally, I have considered whether it is open to the Court to make the amendment to the particulars in the order which is sought.
In Application of CMS and JTS - Child K - MM [2006] NSWSC 47, Barrett J, as his Honour then was, considered a similar problem. In that case the application was to amend an adoption order so as to vary the child's date of birth. Barrett J referred to the earlier decision of Bryson J in Application of the Director General of the Department of Community Services [2004] NSWSC 44. In that case Bryson J identified two possible sources of power to make such an order. One was the "slip rule" under the then Supreme Court Rules 1970 (NSW) Part 20, r 10(1). The other was the separate power of the Court to amend its orders under the Supreme Court Rules Part 40, r 9.
Concerning the latter provision Bryson J said (at [12]-[14]):
[12] Counsel also referred to Part.40, r.9 of the Supreme Court Rules 1970. This rule relates to setting aside or varying a judgment or order. Subrules (1), (2) and (3) set out a number of cases where setting aside or varying a judgment or order is authorised; none of these applies to the present case. Subrules (4) and (5) are in these terms:
(4) In addition to its powers under subrules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.
(5) Nothing in this rule affects any other power of the Court to set aside or vary a judgment or order.
[13] Each adoption order determined a claim for relief. I have to consider whether the reference to the birth dates in the adoption orders determined any question (whether of fact or law or both) arising on any claim for relief. In subrule (4) the exception, which I have set out with added emphasis, must be given a reading in which it is an exception and no more, and a reading in which it does not cover all the grounds covered by the conferral of power in the earlier part of subrule (4). It cannot be the correct reading of subrule (4) that the exception blots out the conferral of power which went before. It could be said that the age of a child is a question of fact arising on a claim for an adoption order, but if the subrule was read in that way it is hard to see any room in which it could operate. In my opinion the exception is not directed to matters (such as the birth dates) which are incidental or ancillary to the central provision which the order makes.
[14] Obviously enough, the birth date of each child was not central to the Court's decision to make an adoption order. It was relevant in the sense that the Court must know the ages of the child and the adopting parents, and the adoption order must identify the persons with whom it deals. In the present case, there was no dispute about the ages of the children. In my view it should not be held that, within the meaning of subrule (4), the statement of birth date in each order determined any question arising on any claim for relief. The birth dates were not in question; they were included essentially for the purpose of identification, not for the purpose of deciding or disposing of any issue. With hindsight it is known that the dates were wrong, and there is a strong case for the exercise of any available discretionary power in favour of varying the orders, so as to produce accuracy and to minimise adverse impacts on the children from attributing incorrect ages to them. In my view power is available under Part.40, r.9(4) to vary the adoption orders in respect of the dates given for the births of the children, and I propose to make orders varying those dates by substituting dates two years earlier than those shown.
As Barrett J recorded, SCR Part 40 r 9 was subsequently replaced by the Uniform Civil Procedure Rules, r 36.16 sub-rules (3) and (4). His Honour was satisfied that despite the changes of wording there was no difference in substance and, accordingly, that the reasoning of Bryson J was still applicable. I respectfully agree.
The Births, Deaths and Marriages Registration Act 1995 (NSW) provides in s 24 that the Registrar of Births, Deaths and Marriages is to register an adoption by registering the record of adoption sent to the Registrar pursuant to Chapter 7 of the Adoption Act. That record is sent by the Court. The Registrar is to register the record sent, including information required by the regulations. The relevant regulation, cl 6 of the Births, Deaths and Marriages Registration Regulation 2017 (NSW), requires the following particulars:
(a) the full name, sex and date and place of birth of the child to whom the record of adoption or discharge relates,
(b) the full name (including, if applicable, the original surname), date of birth (or age), place of birth, occupation and usual place of residence of the child's adoptive parent or parents,
(c) the date and place of marriage of the adoptive parents of the child (if applicable),
(d) the full name and date of birth of any other children (whether adopted children or not and including any deceased children) of either of the adoptive parents of the child.
The critical fact for present purposes is that by subs (b) the full name of the adoptive parent must include that parent's original surname "if applicable". I assume that this includes a maiden name where the adoptive mother has changed her name on marriage.
These provisions are, of course, not directly applicable in New Zealand. The Births, Deaths and Marriages Registration Act deals with registration in New South Wales. It does not and could not directly require registration of details in the New Zealand register but I have been assured from the bar table by N and S that they have been told that if the Court makes an order with revised particulars including S's maiden name that this will be sufficient for their purposes.
I think in these circumstances, it is open to the Court to include in the particulars not only S's current or married name but also her maiden name. Indeed, if K's birth had originally been registered in New South Wales then I would think that S's maiden name should have been included as a matter of course, so as to enable compliance with cl 6 of the Regulations.
It is not necessary for me to decide whether these circumstances are such to enliven the slip rule. I think there is some doubt about that, but it is clear that the reasoning of Bryson J in Application of the Director General of the Department of Community Services, which remains applicable under UCPR r 36.16 would justify the Court varying the order so as to include S's maiden name.
The order of the Court is that the adoption order made by the Court dated 10 April 2019 and issued on 1 May 2019 be varied so as to add to the particulars of the adopting parent, S, the words "(formerly [xxxxxx])" after her surname. This order may be entered forthwith.
[2]
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Decision last updated: 22 May 2019
Legislation Cited (6)
Births, Deaths and Marriages Registration Regulation 2017(NSW)