Adoption of SRK, CLK and Ask (No 2)
[2014] NSWSC 160
•27 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: Adoption of SRK, CLK and ASK (No 2) [2014] NSWSC 160 Hearing dates: Chambers Decision date: 27 February 2014 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Adoption order varied under "slip rule" to substitute name sought
Catchwords: FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - name change - where adoption order made approving name of child in circumstances where child's current wishes inadvertently not before the court - order corrected under slip rule
PROCEDURE - slip rule - where order made approving name of child in circumstances where child's current wishes inadvertently not before the court - question is whether, had the matter overlooked been drawn to the attention of the Court or the parties at the relevant time it would have been corrected as a matter of course - order correctedLegislation Cited: (NSW) Adoption Act 2000, s 55, s 93(4)
Uniform Civil Procedure Rules, r 36.17Cases Cited: Hatton v Harris [1892] AC 547
Adoption SRK, CLK and ASK [2013] NSWSC 1968]
Navimpex Centrala Navara v George Moundreas & Co SA, noted in (1984) 58 ALJ 114].Category: Consequential orders Parties: Director-General, Family and Community Services (applicant) Representation: Counsel:
Solicitors:
Crown Solicitors' Office (applicant)
File Number(s): A202/2012
Judgment
On 26 June 2013, on the application of the plaintiff Director-General, I made orders for the adoption of three children in favour of the proposed adopting parents, and pursuant to s 101(1)(b) made orders approving the names of two of them (A and C), the third (S) having attained eighteen years of age. The adoption order was entered that day.
By notice of motion filed on 16 October 2013, the Director-General sought an order that the Adoption Order in respect of A be discharged pursuant to s 93(4)(b), and that a new adoption order be made approving the names "A L" as the child's given names (in lieu of "A-L S" in the original order). For reasons contained in a judgment delivered on 19 November 2013 [Adoption SRK, CLK and ASK [2013] NSWSC 1968], I declined to make those orders. I was not inclined to think that there was exceptional reason why the adoption order should be discharged, within the meaning of (NSW) Adoption Act 2000, s 93(4), but observed that it may be possible to amend the order under the slip rule, although as that had not then been sought I had not fully considered it. Under cover of a letter of 6 January 2014, the Director-General now seeks to invoke the "slip rule" - UCPR r 36.17 - to have A's adoption order amended to reflect the name "A L K".
On 13 December 2011, A signed a consent pursuant to Adoption Act, s 55, seeking that her name be "A-L S K" upon the making of an adoption order. On 18 October 2012, A indicated to the proposed adoptive mother that she did not wish to have "S" as her middle name. Valid reasons for this wish have been advanced. The mother conveyed this to the Departmental caseworkers. As a result, on 2 November 2012, A signed a further consent, in which she sought that upon the making of an adoption order, her name be "A L K". This was delivered to the Department's Out of Home Care Adoption team but, due to an oversight, not provided to the Crown Solicitor when the adoption application was prepared. Accordingly, when the adoption application was filed on 6 December 2012, the first consent was relied upon, and the name sought for A in the summons was "A-L S K". On making the adoption order on 26 June 2013, the Court approved the names that it was asked to approve in the Summons and draft Order, and in the consent of A that was placed before the Court. The second consent and the wishes of A that it reflected were not before the Court.
Rule 36.17 provides as follows:
If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
A useful test in applying the rule is to ask the hypothetical question whether, had the matter overlooked been drawn to the attention of the Court or the parties at the relevant time (before entry of the judgment), it would have been corrected as a matter of course [Hatton v Harris [1892] AC 547, 558]. The rule permits the correction of a clerical error in a judgment which has arisen as a consequence of an accidental slip or omission by a party's legal advisors [Navimpex Centrala Navara v George Moundreas & Co SA, noted in (1984) 58 ALJ 114].
In my view, the evidence establishes that there was an oversight in failing to place before the Court the second consent. Had it been placed before the Court, the Court would have approved the names sought in it, rather than those it approved, as a matter of course. The slip rule is therefore enlivened, and I will correct the adoption order by substituting the name that the Court would have approved but for the oversight, had the second consent been placed before it.
The Court orders that:
(1) Pursuant to UCPR r 36.17, the order for adoption of the child A-LSK made on 26 June 2013 be amended by deleting the matter 'the names "A-L S"' and substituting the matter 'the names "A L", so that the order as amended reads:
The Court makes an order for adoption of the child A-LSK in favour of the adopting parents LK and DK jointly and approves the name "K" as the surname and "A L" as the given names of the child.
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Decision last updated: 06 March 2014
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