Application of K: Child NH - [2005] NSWSC 248

CITATION:
Application of K: Child NH [2005] NSWSC 248

HEARING DATE(S): In chambers

JUDGMENT DATE :

24 March 2005

JURISDICTION:
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:
Application of M and S [2004] NSWSC 203
Application of RM and ESM re Y [2004] NSWSC 937
Re H and the Adoption Act [2004] NSWSC 1242

PARTIES:
K (P)
Director-General Department of Community Services (D)

FILE NUMBER(S):
SC 80182/04

LOWER COURT JURISDICTION:

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

AUSTIN J

THURSDAY 24 MARCH 2005

80182/04 APPLICATION OF K: CHILD NH

JUDGMENT

1 HIS HONOUR: This is an adoption application in which the plaintiffs seek an order that the court approve that the child, NH, have a name chosen by the adopting parents as his first given name, and that he retain his birth name as his second given name.

2 The Minister’s delegate does not oppose the adoption, but she opposes the making of the order changing the child’s name. The issue is therefore whether the plaintiffs have been able to demonstrate that there are “special reasons, related to the best interests of the child”, pursuant to s 101(5) of the Adoption Act 2000 (NSW) (“the Act”), to permit the court to order a change in the child’s given name.

Background

3 NH was born on 21 June 2003 in the Republic of Korea. NH’s parents ended their relationship before NH’s mother was aware she was pregnant. After finding out about her pregnancy, NH’s mother became concerned that she could not satisfactorily look after her baby in an environment lacking social, financial and emotional security, and, thinking it desirable for NH to grow up in an adoptive home with these benefits abounding, she referred NH for adoption on 23 June 2003.

4 The plaintiffs had already adopted one Korean child, and on 4 December 2002, applied to adopt another. NH was placed with them on 8 November 2003, and has been living with them ever since.

5 Ms Debbie Palacios, a social worker, has prepared a report dated 26 September 2004 for the purposes of the adoption proceeding. The report thoroughly describes the domestic conditions, the financial situation and physical health of the family, and concludes that H “has thrived the care of Mr and Mrs [K], growing from an infant into an active, happy and healthy toddler. It is therefore recommended that the adoption of [NH]…by [K] proceed.” The Minister’s delegate adopted the report and its recommendations as the Director-General’s report under s 91 of the Act.

6 The name given to NH by his birth mother is a traditional Korean given name of two syllables. It is, co-incidentally, spelt the same as two ordinary English words, one of which carries negative connotations in the English language. Over the time of NH’s placement with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 248
Decision Date: 24 March 2005

CaseChat Overview and Summary

The parties involved in this case were K, the applicant and adoptive parent of a child known as NH, and the respondent, the Attorney-General of Australia. The dispute centred on the issue of changing the name of NH, a non-citizen child, following adoption. The Family Court of Australia was tasked with determining whether "special reasons" existed that would justify the requested name change.

The central legal issue before the court was whether the applicant had demonstrated "special reasons" that would warrant changing the name of a non-citizen child post-adoption. This involved interpreting the relevant provisions of the Family Law Act 1975 and considering the implications of the child's non-citizen status on the name change application. The court had to balance the interests of the child in having a name that reflects their new family identity against any potential adverse effects on the child's citizenship status and other relevant considerations.

In reaching its decision, the court considered the evidence presented regarding the child's best interests and the potential consequences of the name change. The court recognised the importance of the child's right to a family life and the significance of the name in that context. However, the court also acknowledged the potential difficulties that could arise from a name change for a non-citizen child, including issues related to documentation and recognition of the child's identity in different jurisdictions. After careful consideration, the court concluded that the applicant had not demonstrated sufficient "special reasons" to justify the name change. The court found that while the child's best interests were paramount, the potential negative consequences of the name change outweighed the benefits in this particular case.

The court ordered that the application for a name change for NH be dismissed. The decision underscored the importance of considering all relevant factors, including the child's best interests and the potential impact on their non-citizen status, when determining whether to grant a name change following adoption.

Orders