Application of "M" and "S" - [2004] NSWSC 203

CITATION: Application of "M" and "S" [2004] NSWSC 203

HEARING DATE(S): Application in Chambers

JUDGMENT DATE:
22 March 2004

JURISDICTION:
Equity
Adoptions List

JUDGMENT OF: Campbell J

DECISION: Name changes approved

CATCHWORDS: FAMILY LAW - adoption - name of child - change to name of child - whether adoption under Adoption of Children Act 1965 or Adoption Act 2000 - whether alteration of child's first forename in his best interests - whether addition of new third forename connected with adoptive family is in his best interests

LEGISLATION CITED: Adoption Act 2000
Adoption of Children Act 1965

CASES CITED: Application of MJR & MJR - Child: KHB [2003] NSWSC 937

PARTIES :
"M" and "S" - Applicants
Department of Community Services

FILE NUMBER(S): SC 80125/03

COUNSEL: Unrepresented - Applicants
Department of Community Services

SOLICITORS: In person - Applicants
Department of Community Services

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

CAMPBELL J

22 MARCH 2004

80125/03 APPLICATION OF “M” AND “S”

JUDGMENT

1 HIS HONOUR: This is an application by a married couple to adopt a young boy. The merits of the application are strongly in favour of an adoption order being made, and need not be referred to in these reasons. The only aspect of the application which calls for the giving of reasons is that the prospective adopting parents seek certain orders concerning a change of the name of the child.

2 The child in question was born in Korea on 2 April 2002, to a mother who was aged 21 at the time of the child’s birth. She had no family support, and did not believe she could raise the child as a single parent. Hence, she surrendered the child for adoption very soon after his birth.

3 The surrender was to a Korean organisation, Eastern Social Welfare Society, Inc, which is an agency approved by the Korean government to conduct intercountry adoption.

4 After being placed in the care of that Society, the child was looked after by foster parents. During the time he was in the care of the Society, he was known by the surname of his birth mother, and by two Korean forenames, the first consisting of two syllables, and second of one syllable. It is likely that his forenames were chosen by either the foster parents, or someone connected with the Society.

5 In May 2002 the New South Wales Department of Community Services (“DOCS”) discussed with “M” and “S”, the applicants in the present case, a proposal to adopt this child. Those discussions led to “M” and “S” travelling to Korea, where they met the child on 5 August 2002. The child was placed in the care of “M” and “S” on 9 August 2002 in Korea, at a time when he was aged four months. They all left for Australia the next day, arriving on 11 August 2002.

6 From the outset, “M” and “S” decided that they wished to make certain changes to the child’s…

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: [2004] NSWSC 203
Decision Date: 22 March 2004

CaseChat Overview and Summary

"M" and "S" applied to the court to change the name of their adopted child. The application involved determining the applicable legislation and whether the proposed changes to the child's name were in his best interests. The court had to decide whether the adoption was governed by the Adoption of Children Act 1965 or the Adoption Act 2000 and whether the proposed alterations to the child's name would serve his best interests. Specifically, the court examined whether changing the child's first forename and adding a new third forename connected to the adoptive family would be beneficial to the child.

The court considered the child's best interests as the paramount concern in making its decision. It noted that the adoption was final and conclusive under the Adoption Act 2000. The court found that the proposed changes to the child's name would indeed be in his best interests. The alteration of the first forename was considered to be in the child's best interests as it would better reflect his identity within the adoptive family. Additionally, the addition of a new third forename, which was connected to the adoptive family, was also deemed to be in the child's best interests, as it would strengthen his ties to his adoptive family.

The court granted the application, allowing the child's name to be changed as proposed by the applicants. The decision was based on the understanding that the proposed changes would serve the child's best interests by reflecting his identity within the adoptive family and strengthening his ties to the family. The court's ruling provided clarity on the applicable legislation and the factors to be considered when determining the best interests of a child in such circumstances.

Orders