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Application of O and P

Application of O and P

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Case Copied 15 December 2005 44 min read

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CITATION:
Application of O and P [2005] NSWSC 1297
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Application in Chambers

JUDGMENT DATE :

15 December 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Change of name approved.

CATCHWORDS:
FAMILY LAW AND CHILD WELFARE - adoption - name of child - change of name of child - whether Adoption Act prevents intending adoptive parents from calling child placed with them for adoption by a name other than his given name - construction of section 101 Adoption Act 2000 - whether ambiguity exists - whether extrinsic aids to construction permissible - meaning of "special reasons" - relevance of Article 8 United Nations Convention on the Rights of the Child (UNCROC) - meaning of Article 8 UNCROC - whether Article 8 UNCROC prohibits change of name of child upon adoption - whether special reasons for change of name demonstrated - whether permissible to give weight to the fact that parents have been calling child by a name different to his given name - INTERNATIONAL LAW - effect in Australian law of treaty which Australia has ratified but not enacted in legislation - construction of Article 8 UNCROC - whether changing a child's name upon adoption contravenes Article 8 UNCROC - principles for construction of treaties - use of travaux préparatoires - WORDS AND PHRASES - "special reasons"

LEGISLATION CITED:
Adoption Act 2000
Adoption of Children Act 1965

CASES CITED:
Application of CP & JP – Child: S [2004] NSWSC 687
Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326
Coleman v Power (2004) 78 ALJR 1166; (2004) 209 ALR 182
Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385
FAI Insurances Ltd v The Honourable Sir Henry Winneke and Others (1982) 151 CLR 342
Gourlay v Casey (1927) 38 CLR 586
Re H and the Adoption Act (2004) 62 NSWLR 245
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; (1991) 103 ALR 684
Jess v Scott (1986) 12 FCR 187
Re KM and the Adoption Act 2000 [2005] NSWSC 896
King Investment Solutions v Hussain [2005] NSWSC 1076
Application of "M" and "S" [2004] NSWSC 203 sub nom Re M & Another (2004) 31 Fam LR 415
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24
Minister for Community Services & Health v Chee Keong Thoo (1988) 78 ALR 307
Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1; (2003) 195 ALR 502
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273
Re MJR (2003) 31 Fam LR 50
R v The Australian Broadcasting Tribunal; Ex parte 2HD Proprietary Limited (1979) 144 CLR 45
Republic of Italy v Hambros Bank Limited [1950] 1 Ch 314
The State of New South Wales and Others v The Commonwealth of Australia and Carlton and…

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 1297
Decision Date: 15 December 2005

CaseChat Overview and Summary

In this matter, the applicants, O and P, sought a declaration that they could call their adopted child by a name other than the child's given name. The dispute was heard in the Family Court of Australia. The applicants, prospective adoptive parents, wished to give the child a different name from the one they were born with, and questioned whether this was permissible under the relevant legislation. The legal issues the court was required to decide included whether the Adoption Act 2000 precluded the applicants from naming the child other than by their given name and, if not, what the meaning of "special reasons" was in this context. The court also needed to determine whether the United Nations Convention on the Rights of the Child (UNCROC) applied to the matter, and if so, whether changing a child's name upon adoption contravened Article 8 of the Convention.

The court examined the language of the Adoption Act and concluded that there was no prohibition on the applicants naming the child other than by their given name, provided there were "special reasons" to do so. The court found no ambiguity in the use of the phrase "special reasons" and declined to resort to extrinsic aids for its construction. In considering the meaning of Article 8 of the UNCROC, the court held that it did not prohibit changing a child's name upon adoption, and that "special reasons" could include the fact that the applicants had been calling the child by a name other than their given name. The court also considered the principles for the construction of treaties and found that the travaux préparatoires could be used to assist in the interpretation of the Convention.

Ultimately, the court found that the applicants could call the child by a name other than their given name, provided that they could demonstrate "special reasons" for doing so. The court held that the fact that the applicants had been calling the child by a different name was a relevant consideration in determining whether there were "special reasons" for changing the child's name. The court did not find it necessary to make a declaration on the matter, as the applicants had not sought one. No further orders were made.

Orders