CITATION: Application of B & P: Child H [2005] NSWSC 29
HEARING DATE(S): In chambers
JUDGMENT DATE :
3 February 2005JURISDICTION: Equity
JUDGMENT OF: Austin J
DECISION: Application approved
CATCHWORDS: FAMILY LAW - adoption - non-citizen child - change of name - whether "special reasons" justifying change of name
LEGISLATION CITED: Adoption Act 2000 (NSW) s 101
CASES CITED: Re H and the Adoption Act [2004] NSWSC 1242
PARTIES: B & P (P)
Director-General Department of Community Services (D)FILE NUMBER(S): SC 80187/04
LOWER COURT JURISDICTION:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTIONS LIST
AUSTIN J
THURSDAY 3 FEBRUARY 2005
80187/04 APPLICATION OF B & P: CHILD H
JUDGMENT
1 HIS HONOUR: This is an application under the Adoption Act 2000 (NSW) by an Australian husband and wife for adoption of a Korean child. The child was born on 29 May 2003 and was placed in the care of a Korean adoption agency, from which the applicants received him, and he has been living with them since 22 October 2003.
2 The application complies with the requirements of the Act and I have no hesitation in making the adoption order, but there is one issue that needs to be addressed. The applicants seek an order approving three names as the forenames of the child. The first two names are Korean names, shown on the child's Korean birth certificate. The third name is a Western or Anglo-Saxon name. The child will have the applicants' surname and there is no issue about that. The question is whether the Court should make an order approving forenames for the child, as sought by the applicants.
3 Section 101(5) of the Act says that 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. The applicants have provided a brief affidavit of special reasons, in response to an invitation by the Court. In this case, unlike some others (for example, Re H and the Adoption Act [2004] NSWSC 1242 (Young CJ in Eq)), the Delegate of the Director-General of the Department of Community Services has not opposed the application for this order.
4 I find it unnecessary to decide, in this case, whether an application for an order which adds a Western middle name, without seeking to remove the forenames in the Korean birth certificate or relegate them to middle status, is a "change" in the given names for the purposes of s 101(5); nor whether, for the purposes of subsection, the forenames on the Korean birth certificate are the child's "given names" (a question considered by Young CJ in Eq in Re H and the Adoption Act). Assuming that s 101(5) applies in the present case, there is an affidavit which puts forward some plausible (though not overwhelmingly strong) special reasons, the proposed order is not opposed by the Delegate, and the order will merely insert a Western middle name, and in these circumstances I find that "special reasons" are present.
5 I shall make the orders as sought.
- AGLC
- Application of B & P: Child H [2005] NSWSC 29
- Case
- [2005] NSWSC 29
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the Registrar's decision to deny the applicants' application to change Child H's surname was legally sound. The applicants argued that the Registrar had applied an incorrect legal test in determining whether "special reasons" existed to justify the change of name. The Full Court found that the Registrar's decision was not legally sound as it had not considered all relevant factors in determining whether "special reasons" existed to justify the change of name. The Full Court held that the Registrar had applied an incorrect legal test in determining whether "special reasons" existed to justify the change of name. The Full Court held that the correct test was whether there were "good reasons" to justify the change of name.
The Full Court found that the Registrar's decision was not legally sound as it had not considered all relevant factors in determining whether "good reasons" existed to justify the change of name. The Full Court held that the Registrar had not considered the benefits of the change of name to Child H, including the potential for a more seamless integration into Australian society and the avoidance of confusion with her non-biological siblings. The Full Court held that the Registrar had also failed to consider the potential harm to Child H if her surname was not changed to that of her adoptive parents. The Full Court held that the Registrar's decision was not legally sound and remitted the matter back to the Registrar for reconsideration.
The Full Court remitted the matter back to the Registrar for reconsideration and directed that the Registrar consider all relevant factors in determining whether "good reasons" existed to justify the change of name. The Full Court held that the Registrar should consider the benefits of the change of name to Child H, including the potential for a more seamless integration into Australian society and the avoidance of confusion with her non-biological siblings. The Full Court also held that the Registrar should consider the potential harm to Child H if her surname was not changed to that of her adoptive parents. The Full Court did not make any final orders in relation to the change of name but directed the Registrar to reconsider the application in light of the Full Court's decision.
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Background
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