Application of O and P

[2005] NSWSC 1297

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 Another (1983) 151 CLR 302 Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 Detrick, "The United Nations Convention on the Rights of the Child - a Guide to the “Travaux Préparatoires”", Martinus Nijhoff Publishers, 1992 Hodgson, “The Child's Right to a Legal Identity” (1993) 7 Australian Journal of Family Law 121 Avery, “A Return to Life: the Right to Identity and the Right to Identify Argentina's “Living Disappeared”” (2004) 27 Harvard Women's Law Journal 235 Stewart, “Interpreting the Child’s Right to Identity in the UN Convention on the Rights of the Child” (1992) 26 Family Law Quarterly 221 United Nations Convention on the Rights of the Child Vienna Convention on the Law of Treaties
PARTIES:	Undisclosed
FILE NUMBER(S):	SC 80115/05

LOWER COURT JURISDICTION:

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

CAMPBELL J

15 December 2005

80115/05 APPLICATION OF “O” AND “P”

JUDGMENT

1 HIS HONOUR: This judgment relates to an application for the adoption of a boy born in Korea. Once I had reached the conclusion that the orders which the applicants sought should be made without amendment, I made those orders in Chambers on 8 December 2005, and then arranged for the parties to be notified of the orders, and of the fact that I would give reasons later. That way of proceeding is legally permissible (King Investment Solutions v Hussain [2005] NSWSC 1076 at [144]-[164]). Because this is an application for adoption orders, where the proceedings are usually conducted through the filing of affidavits and written submissions, and the making of orders in Chambers, and there is usually an understandable desire on the part of the parties to know the result of the application as soon as possible, it was appropriate to adopt that procedure in the present case.

2 The merits of the application for an adoption order are clear. There was no contest between the applicants and the Department of Community Services (“the Department”) about whether the order for adoption should be made, so I need give no reasons concerning the making of the adoption order itself.

3 For the reasons I gave in Re KN and the Adoption Act 2000 [2005] NSWSC 896 at [18]-[26], I have made an order releasing a certified copy of the orders to the Department, for transmission to Eastern Social Welfare Society Inc. the Korean organisation which has been instrumental in arranging the adoption.

4 There was a dispute between the proposed adoptive parents and the Department as to whether a change in the given name of the child should be approved, involving the placing of a Western given name in front of his Korean given names, and the retention of his Korean family name as an additional given name. I have approved the name that the applicants want. These reasons relate to the dispute about the boy’s name.

5 The law governing this adoption is the Adoption Act 2000 (“the Act”). That is because the Act commenced on 1 February 2003, its transitional provisions exempted from the operation of the Act applications to adopt children where the child had been placed with the prospective adoptive parents before the commencement of the Act (Schedule 3 Clause 8), and the child involved in the present case was placed with the applicants after the commencement of the Act.

6 The provision of the Act which governs the naming of adopted children is section 101:

“(1) On the making of an adoption order:
(a) an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made, and
(b) an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.
(2) Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.
(3) If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname.
(4) An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change.
(5) 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.
(6) Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, under the law of New South Wales.”

7 The Department opposes the name change on the ground that “special reasons” are not made out. As well, the Department relies on several reasons why the name change should not be approved. It acknowledges that the applicants have been calling the child by the western given name by which they would like him to be known since the time of his placement with them, but say, in effect, that this has been done by stealth, and dishonestly. In the words of the affidavit of the Delegate of the Director-General, the de facto name change “clearly contravenes the commitment made by the applicants through the entire adoption process.” Further, the Delegate says the change of name would contravene several legal standards which he contends are applicable.

8 The issues in the case relate to whether the matters the applicants rely on as “special reasons” are enough to pass section 101(5), and whether any of the various submissions of the Delegate concerning reasons why the name change ought not be made are sound.

The Applicants’ First Adoption

9 The applicants are husband and wife. They have previously adopted a boy who was born in Korea in February 2001. I have consulted the file relating to his adoption in connection with the application now before me.

10 The first child the applicants adopted was known in the period soon after his birth by a Korean family name (KFN-1) and Korean given names (KGN-1 and KGN-2). Those names were arranged according to the usual Korean convention for the order of personal names with the family name first, followed by a comma, followed by the given names. Thus, the child’s name took the form: “KFN, KGN-1 KGN-2”.

11 After coming into custody of the applicants he was ordinarily called by a Western given name (WGN-1), and known also by the adoptive father’s surname (AFS). Unusually, his Korean family name was retained as part of his name, but with the Korean parts of his name ordered in accordance with the usual Australian convention for the order of personal names, so that the Korean family name came after the Korean given names. Thus, his full name has taken the form “WGN-1 KGN-1 KGN-2 KFN-1 AFS”. An order relating to his adoption by the applicants was made on 24 July 2002, and in that order the names taking the form “WGN-1 KGN-1 KGN-2 KFN” were approved as the forenames of the child.

12 That adoption was made under the Adoption of Children Act 1965. There was no question raised about whether the change of name of the boy should not be approved. The social worker who reported on the desirability of making the adoption, Ms Gwenda Gray, made her report for the Court on 18 May 2002. In it, she referred to the child as “WGN-1”.

Events Before Placement of the Second Boy

13 On 27 April 2002 the applicants made another application to adopt a child from overseas, preferably Korea. That application resulted in the placement of another Korean boy with them, who is now the subject of the present adoption application.

14 In August 2003 the boy the subject of the present application was born. The day after his birth his mother referred him for adoption to the Eastern Social Welfare Society Inc. While she knew who the boy’s father was, she had lost contact with him and had never been able to inform him of her pregnancy.

15 The boy was named by the intake worker of the Society, and given a name in the usual Korean form of “KFN-2, KGN-3 KGN-4”. In his case, the Korean family name was the same as the family name of his mother. The Korean given names do not have, it seems, any particular connection with his biological parents. The Korean given names and the Korean family name of this child were all different to the Korean given names and Korean family name of the applicants’ first child. When the boy was about three weeks old he was placed in foster care with a lady aged 60 and her husband. They had adult children, who were living on their own. The Society’s records say that this lady,

“… has taken good care of babies with devotion for 6 years … She is calm, diligent, and devoted to child care … He has been growing well under foster mother’s loving care and love.”

16 It is the usual practice of the Eastern Social Welfare Society Inc. to complete a form called an “Initial Social History” which gives some information about a child who is available for adoption and its parents. The form when completed was made available to the Department, and used in seeking to match the child with suitable prospective adoptive parents. That form gave this child’s name as being the one given him by the intake worker, arranged in the order appropriate under the Korean convention for order of personal names. There is provision in that form for filling in a space labelled “Meaning of Name”. The form relating to this child gave, concerning each of the Korean given names of the child, a meaning which was optimistic and attractive.

17 Other documents, besides the Initial Social History, were prepared in Korea relating to the child, which referred to him by exactly the same name as had been used in the Initial Social History. These were:

1. 15 September 2003 – Certificate of Appointment to Guardian of Minor Orphan in Orphanage, given by what appears to be a Korean official entitled “Chief of Sodaemun Ward Office”, appointing the President & CEO of the Eastern Social Welfare Society Inc. as guardian of the child.

2. 17 September 2003 – medical report of Eastern Social Welfare Society Inc. relating to the child.

3. 23 September 2003 – “Family Census Register” concerning the child created by the “Chief of Sodaemun Ward Office” .

4. 15 October 2003 – Certificate of Birth issued by Eastern Social Welfare Society Inc.

5. 15 October 2003 – Statement of Consent to Overseas Adoption by the child’s Korean guardian.

6. 16 January 2004 – passport, issued by the Ministry of Foreign Affairs and Trade of the Republic of Korea.

18 On 20 October 2003 Ms Gwenda Gray, the social worker who had been involved in the applicants’ adoption of their first child, interviewed the applicants and discussed the background of this child with them. The applicants signed documents indicating a desire to adopt him. Ms Gray’s report records that the applicants:

“… were very happy and excited to have received the allocation. They picked up the photographs on Friday, and had made copies and emailed them to friends and family. Everyone is very positive and excited for them. [The applicants] have also been showing their son [WGN-1] the photographs and are preparing him for the trip to Korea …”

19 In the report she refers to the child the subject of the present application as “KGN-3 KGN-4”. Under a separate heading of “Child’s Name”, Ms Gray records that the applicants:

“… are keeping the child’s name, and adding [WGN-2]”

20 On 8 February 2004 the child was first placed in the applicant’s care, and was brought back to Australia. At the time the child was about a week short of being six months old.

21 There were some letters from the Department to the applicants after that, which referred to the child by his Korean names, but with those Korean names arranged in the conventional Australian format for personal names, with no comma in the name and the family name last, ie as KGN-3 KGN-4 KFN-2.

22 WGN-2 has been the name used for the child in ordinary daily activities by the applicants, and their extended family and friends, since the child arrived in Australia in February 2004, a period now of over 22 months. It is the name by which he has been referred to by doctors, under which health insurance for him is provided, under which the Federal Government provides family benefits, and under which he is enrolled in part-time day care. The only people with whom he has come into contact who have not referred to him as WGN-2 are the Department, or government bodies, such as Medicare, that have had information provided to them by the Department. He is now nearly two years and four months old.

23 Both applicants were raised in the Catholic faith, and attend Mass every few weeks (according to one piece of evidence) or “approximately once a week” (according to other evidence). The male applicant sings in his local church choir. They intend to raise their children in the Catholic faith, and may send them to Catholic schools. One of their referees refers to their “strong Catholic faith”, and reports on the regularity of their church attendance. Another referee identifies one of the contexts in which he has come to know the applicants as being through attendance at a Catholic church near their home. The applicants’ first child was baptised in the Catholic Church in November 2001. The name by which he was baptised was WGN-1 KGN-1 KGN-2 KFN-1 AFS.

24 The child the subject of this application was baptised in the Catholic Church on 8 August 2004. The name by which he was baptised was WGN-2 KGN-3 KGN-4 KFN-2 AFS.

25 Ms Gray, the social worker, visited the applicants’ house in connection with the child’s adoption on 21 April 2004, 17 August 2004, and 16 November 2004. She produced a report dated 18 November 2004, in the course of which she refers to the child as KGN-3 KGN-4. She reports that the two boys “have developed a good sibling relationship”, and that the younger boy loves to do whatever his older brother is doing. She reports:

“[The applicants] are also aware of the importance of building a positive cultural identity for both boys. They have chosen to keep the boys’ Korean names, but feel strongly that these are best as middle names, rather than first names, so [KGN-3 KGN-4] is known as [WGN-2]. Both [applicants] have learnt Korean, and [the male applicant] has done so for a few years now. They are involved with the Saet Byol school, as well as other cultural activities through the Australian Society for Intercountry Aid for Children. They observed Korean traditions for the children’s first birthdays, such as wearing hanboks. [The applicants] commented that [their first adopted child] was very proud to wear his hanbok for [their second adopted child’s] first birthday. They see it as very important to make sure that both boys have the opportunity to learn about their Korean culture and language, and they also plan to travel back to Korea regularly. [The applicants] are also aware of issues of difference and racism, and will be supportive with the boys in listening to their experience and working on strategies. They will be strong advocates for the boys and will choose schools carefully, as well as being involved with school programs.”

26 The “Saet Byol School”, referred to by Ms Gray, is an organisation of parents and friends of children adopted from Korea that fosters and teaches Korean culture and language. The Australian Society for Intercountry Aid for Children (NSW) (“ASIAC”) is an organisation of people involved in intercountry adoptions.

27 Ms Gray’s report recommends that the adoption be finalised. She says, unequivocally, “there are no concerns with this placement”.

28 As well as the matters referred to in Ms Gray’s report concerning the applicants’ fostering of an interest in Korean culture and language in their children, they are active in more than the cultural activities of ASIAC. The male applicant is now the Secretary of that organisation. The applicants wrote a submission for ASIAC to the ongoing Federal Government House of Representatives Standing Committee on Family and Human Services Enquiry into Adoption of Children Overseas, and the male applicant appeared at the Sydney public hearings of that committee on 23 September 2005 on behalf of ASIAC.

Identifying the Change in Given Name

29 Some matters concerning the construction of section 101 have been settled by the decision of the Court of Appeal in Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385. These are:

“[25] … the given name or names of a child for the purposes of s 101(5) are the name or names conferred on the child other than the surname, not necessarily either officially conferred or recognised by the child as referring to him or her.

…
[33] … I do not think that it can be accepted that the legislature intended that strict concepts of surname and given name according to the Anglo-Celtic tradition, still less all the intricacies of the common law, should be taken up in s 101 of the Act. … s 101 took as its model the customary but by no means universal naming tradition of a surname and a personal name or names given to the child, not in the sense of given at baptism or confirmation but in the sense of conferred on the child. What name or names have been conferred on the child is a question of fact, ordinarily easily answered but perhaps sometimes requiring search for the equivalents of a family name and a personal name or names as the child’s surname and given names for the purposes of the section.”
[34] Young CJ in Eq was influenced by the Law Reform Commission report’s emphasis on a child’s identification with his or her name and the Act’s principle directed to preservation of the child’s given name or names and identity. It does not follow, however, that a name is not a given name unless the child has come to recognise that it refers to him or her. That is no part of “given” in any sense, and a child will have a name (whether called a forename, a first name or a given name) before he or she is of an age to identify with the name. In my opinion, while the basis for s 101(5) is that the child will “identify with a particular name” (report para 10.233), it calls for ascertaining the given name or names with which the child is likely to identify as well as has identified and does not make identification part of the ascertainment of the name or names.
…
[37] … A sensible operation is given to s 101(5) if the given name or names are the name or names as at the time the child is placed with the proposed adopting parents. Subsequent acquisition of a different name or names may fall for consideration as or as part of special reasons related to the best interests of the child for approving a change to the given name or names.”
…
[41] … the addition of a name, whether as a first name or following the child’s existing given name or names, would be a change in the child’s given name or names.”

30 It follows from these principles that the “given name” of this child is the name other than the family name which had been conferred on the child at the time of his placement with the applicants. Thus, his given name is KGN-3 KGN-4. The applicants are seeking approval to two separate changes to that given name. The first is the addition of WGN-2 at the front of those given names. The second is the addition of KFN-2 at the end of those given names. Adding KFN-2 is a change in the given name, because what the applicants wish to do is to change the name KFN-2 from being the family name of the child to being one of his given names.

The Applicants’ “Breach of Commitment” Argument

31 The Delegate of the Director-General, Mr Jones, submits that any reference by the applicants to the child by another name “has been a clear contravention of … their commitment as demonstrated during the adoption process …”. That submission requires examination of some additional facts.

32 In the time after the placement of their first child with them, the applicants were active members of ASIAC. The applicants attended the Annual General Meeting of that organisation on 10 May 2002. Mr Moore, an official of the Department, addressed the meeting concerning the Adoption Act 2000 (which by that stage had passed both Houses of Parliament and been assented to, but not yet proclaimed to commence). He specifically discussed the naming provisions in the new Act. The applicants sought clarification from him on some issues related to those provisions.

33 On 16 May 2002 the applicants attended a Preparation for Adoption Seminar organised by the Department, in connection with their new adoption application. Mr Jones, the Delegate of the Director-General of the Department who has sworn the Delegate’s affidavit in connection with this application for adoption, says concerning this seminar:

“It is on each Preparation for Adoption Seminar agenda and the practice of the social workers delivering the training to raise and discuss the importance of a child retaining his or her birth names as “given names” so as to aid the child in maintaining their identify and links with their birth culture. The trainers also highlight the importance of complying with the provisions of s 101(5) of the Adoption Act 2000 .”

The agenda of the seminar is in evidence, and confirms that a one-hour session on “Identity and the Adopted Child”, and a 45-minute session on “Cultural Identity” were on the agenda.

34 It is to be noted that Mr Jones’ account of the seminar is at the level of the usual practice in conducting such seminars. He does not claim to have attended the seminar.

35 The applicants give a different account of the seminar. They say:

“In our opinion the training that was provided at that seminar was unclear and inconsistent at best concerning the naming of children, what the new legislation, yet to commence, actually meant and how it was to be interpreted.
We note that the answers given by … Moore at the ASIAC AGM of 10 May 2002 were inconsistent with the presentation given a week later at the seminar. We sought clarification and repeated his answers of the week before. An officer of the Department informed us, and the whole seminar, that the Department was aware of the answers given by Mr Moore, did not agree that they necessarily represented the Department’s position, and that their position was that it was a matter for the Courts to decide.
We note that they did not provide further clarification of these issues.”

Even though the first paragraph of that account is expressed unconventionally in terms of the “opinion” of the applicants, I am prepared to accept that their “opinion” is a statement of the effect produced in their minds, and the effect which would be produced in the mind of a person trying to understand what was said at the seminar, by what was actually said there.

36 On 20 November 2002 the male applicant, having received what he took to be encouragement to do so from the Adoptions Clerk of the Court, wrote to Bryson J on behalf of the Committee of ASIAC, seeking certain information on various topics relating to the new Act. One of the topics on which he sought clarification was “the effect of the new Act on naming rights that parents have for their children –what are the rules and what flexibility is there in this area.”

37 A letter from a member of the public to a judge, seeking advice about a matter of law, would normally receive a reply to the effect that the letter had been received and it was not appropriate for a judge to provide advice on questions of law. However, the role of the Court in adoption applications, being a historical development of the administrative tasks the Court performs in its parens patriae jurisdiction, is not the same as its role in acting as a decider of issues in inter partes litigation. Bryson J’s Associate wrote back, at his Honour’s direction, on 29 January 2003. Understandably, however, the response was in very general terms. Concerning naming, it said:

“The new Act deals with the names of adopted children in s 101. Its provisions are not simple and you should look through them for yourself. There is more involved than just the idea that adopting parents have naming rights.”

The relevance of this exchange is not that it provided the applicants with any particular enlightenment about the operation of the naming provisions of the Act, but rather that the applicants were making a serious attempt to understand what was involved in the naming provisions.

38 All these matters occurred before the Act was proclaimed. Indeed, the proclamation of commencement of the Act was made only on 31 January 2003, one day before the actual commencement date of the Act. They occurred before the child the subject of the present application had been born, let alone allocated to the applicants.

39 In connection with this submission that the applicants have contravened a commitment, the Department also draws attention to what the applicants told Ms Gray concerning their intention about the child’s name at the allocation interview on 20 October 2003, set out at para [19] above.

40 The applicants say, and I accept, that no issue of concern was raised with them about the intention they told Ms Gray they had, or specifically concerning in what order the names would be arranged. As a matter of ordinary English, a Korean name can have a Western name “added to” it if the Western name is added at the beginning, or at the end. The applicants were talking to a social worker who already knew them in connection with the placement of their first child, and knew the naming practices they had adopted concerning that first child. At the allocation interview itself they referred to their first child by his Western given name. They had no reason to believe that Ms Gray would mistakenly assume that their intention was to add WGN-2 to the end of this particular child’s Korean name. Indeed, there is no evidence from Ms Gray, or anyone else in the Department, which actually says that that was the way in which she interpreted the applicants’ statement of intention to her concerning the name.

41 The applicants state that at all times before the commencement of the 2000 Act, questions put to the Department concerning the interpretation of the naming provisions in section 101 were met with the answer that it would be up to the Courts to decide. They had themselves identified some issues for adoptive parents concerning the naming provisions, relating to whether all or only some names were referred to, what constituted special reasons, and what children or groups of children were affected by the naming provisions of the Act. The full position of the Department concerning the naming provisions was not clear to them until they received the affidavit of Mr Jones in this application. They accept that the Department had made clear that new naming provisions were to come into play, and that the Department intended in some manner to oppose name changes as a consequence of supporting those new provisions, but they were not clear at any time until they read Mr Jones’ affidavit what the Department would regard as a “name change”. They made known, through the seminar on 16 May 2002, through discussions with Mr Moore at the ASIAC Annual General Meeting, and on other occasions, their concerns over the issue. They deny that they have been secretive or underhand about their intentions concerning the naming of this child. They attempted, both through questioning officers of the Department and writing to Bryson J, to find out what the requirements of the law were concerning the naming of adopted children.

42 I accept what they say about all those matters.

43 I do not accept that the applicants gave any express “commitment” during the adoption process regarding the name of the child. It necessarily follows that they have not contravened any such commitment.

44 Sometimes it may be possible to say, in a loose way, that a person has “breached a commitment” if they have made an implied representation by their conduct that they will act in a certain way, and have then acted differently. Such a circumstance might sometimes arise, in relations between people A and B, if A has a firm expectation that B will act in a particular way, B knows that A has that expectation, and B does not let on that he is planning to act any differently. That loose way in which there might be a breach of commitment does not apply in the circumstances of the present case either, because, despite serious efforts to find out the Department’s views and expectations concerning names, they did not ascertain that the Department expected them to not change the name of the boy in any respect, or make any additions to it. In putting the matter that way, I am not making a finding that the Department actually had any such expectation, at the relevant time.

45 Rather, the applicants made their intentions known to Ms Gray, as soon as the child was allocated to them, in a way they had no reason to believe would be misunderstood. The Department’s allegation, that the applicants have, in effect, acted dishonestly by using a Western forename for the child, is without foundation.

46 There is a further troubling aspect to this allegation. It is made as part of a three-pronged allegation in Mr Jones’ affidavit that:

“Any reference by the applicants to the child by another name has been a clear contravention of the Adoption Act 2000, their commitment as demonstrated during the adoption process and clearly is not in the best interests of the child as deemed by international authorities.”

47 Those are the self-same words which were used by a different Delegate of the Direction-General concerning the adoption to which Young CJ in Eq gave attention in Re H and the Adoption Act (2004) 62 NSWLR 245. His Honour quotes those same words at 248, [17], and criticises the fact that they are used in an affidavit at all. The decision in Re H and the Adoption Act was given on 14 December 2004, more than a year ago.

The “Contravention of the Adoption Act 2000” Argument

48 The second prong of Mr Jones’ three-pronged allegation is that any reference by the applicants to the child by another name prior to the present application “has been a clear contravention of the Adoption Act 2000”. The same view of the obligations created by the Act concerning names, prior to the making of the adoption order, appears in the statement in his affidavit that “all Departmental correspondence to the applicants has referred to the child’s birth name as his or her legal name to comply with section 101(5) Adoption Act 2000” (emphasis added).

49 It is convenient to set out some of the material which might possibly be used as a aid to construction of section 101. For convenience I repeat the collection of that material which I made in Application of “M” and “S” [2004] NSWSC 203, reported sub nomRe M & Another (2004) 31 Fam LR 415, at 418-420, [12]-[18].

In exercising its power under section 101, the Court should take into account matters of policy concerning adoption which are discernible in the Adoption Act 2000 . Section 7 of that Act says:
“The objects of this Act are as follows:
(a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,
(b) to make it clear that adoption is to be regarded as a service for the child concerned,
(c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,
…
(f) to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements,
…”
Section 8 says:
“(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles:
(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,
(b) adoption is to be regarded as a service for the child, not for adults wishing to acquire the care of the child,
…
(e) the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,
…
(2) In determining the best interests of the child, the decision maker is to have regard to the following:
…
(b) the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,
…”
Section 32 of the Adoption Act 2000 says:
“(1) In placing a child (other than an Aboriginal or Torres Strait Islander child) for adoption, the decision maker must take into account the culture, any disability, language and religion of the child and the principle that the child’s given name, identity, language and cultural and religious ties should, as far as possible, be preserved.
(2) Without limiting matters that may be taken into account, the decision maker must take into account whether a prospective adoptive parent of a different cultural heritage to that of the child has demonstrated the following:
(a) the capacity to assist the child to develop a healthy and positive cultural identity,
(b) knowledge of or a willingness to learn about, and teach the child about, the child’s cultural heritage,
(c) a willingness to foster links with that heritage in the child’s upbringing,
(d) the capacity to help the child if the child encounters racism or discrimination in school or the wider community.”
One of the obligations under treaties, which section 7(f) of the Act says the Act should advance, is Australia’s obligation under the United Nations Convention on the Rights of the Child (“UNCROC”). Under Article 8.1 of that Convention, Australia has undertaken to “respect the right of the child to preserve his or her identity, including nationality, name, and family relations” .
The New South Wales Law Reform Commission issued, in March 1997, Report No. 81, which was a review of the Adoption of Children Act 1965 . Part of that Report dealt specifically with how birth names should be treated in intercountry adoptions. At para 10.231, the Report referred to Article 8 of UNCROC, and continued:
“Clearly intercountry adoption, which involves a child losing his or her nationality and family relations, is not consistent with Article 8. However, Australia should honour this undertaking at least to the extent that can be accommodated within the practice of intercountry adoption. Accordingly, the right of a child to preserve his or her first name should be respected.
10.232 Even apart from obligations under UNCROC, it would rarely be in the child’s best interests for his or her names to be formally changed in the adoption process. The intercountry adoptee endures enormous change and dislocation in the process of being adopted overseas. The child is uprooted from all that is familiar, including relationships and language. The child’s name is one of the few remaining links with his or her birth culture. To change this involves further dislocation and disorientation for the child. More importantly, though, the child’s name is an integral part of his or her identity:
“Abandoned children are often renamed … by their adoptive parents who wish to encourage integration into their new culture so that the little they bring with them is taken away. For older children this may be especially painful since it suggests that who they are, which is so often defined by their name, is not acceptable and must be changed. In addition, a name often reflects cultural connectedness and contributes to the establishment of facial identity.”
10.233 Although the effects of a name change are intensified in older-aged children, the points made above can be applied to all children. A child who is only one or two years old has already learnt to identify with a particular name. The concept that “I am x and no other” can be powerful even to a very young child.
10.234 In DP 34, it was proposed that the changing of first names of intercountry adoptees should be discouraged. Nineteen submissions were received addressing this proposal, the majority of which supported the proposal but felt that the changing of names should be a matter for parents and not subject to legislation or a court order. Several submissions were unconditionally in favour of the proposal.

10.235 Two submissions pointed out that some overseas names created problems in Western society, either because of the English meaning or association or because of difficulties with pronunciation. It should be borne in mind here that as Australia becomes an increasingly multicultural society more and more non-Anglo-Saxon names, many difficult to pronounce, will become commonplace. However, if there was a real risk that his or her name could, in Australia, cause anguish to the child or make life difficult in any way, then a name change may be justified. But such a decision should be taken in the belief that a name change is an exceptional step, with the child’s best interests being paramount. A birth name should not be changed simply because adoptive parents would prefer an Anglicised name for their child.
10.236 It has also been submitted that often a child has been given his or her name by carers at an orphanage and therefore it may have no significance for the child. This argument ignores the point made above that children, particularly older-aged but also young children, identify with the name by which they are addressed so that it becomes an important part of their concept of themselves.
10.237 Recommendations in relation to changing an adoptee’s names are made in Chapter 5. These recommendations take into account the provisions of UNCROC, the arguments raised above and the content of submissions.
That Report included a draft Bill, which had, as clause 71, a clause almost identical to the text eventually adopted as section 101(4) Adoption Act 2000 . (The only difference was in what has now become section 101(4), a sub-section not relevant to the present application.)
The Second Reading Speech on the Adoption Bill ( Hansard , 5 September 2000, Legislative Council, page 8640) makes clear that the Law Reform Commission Report had been taken into account in preparation of that Bill. The Explanatory Memorandum for the Adoption Bill 2000 stated, at page 1, that:
“The Bill gives effect in general to the principal recommendations of the New South Wales Law Reform Commission in its Report No. 81 …”
Thus, under section 34 Interpretation Act 1987 , the Law Reform Commission report can be taken into account to clarify any ambiguities or obscurities in the Act.””

50 By making reference to UNCROC and the Law Reform Commission Report, I was implicitly accepting a submission of the Department that those were proper matters to take into account. After giving the matter further thought, and taking into account the decision of the Court of Appeal in Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385, it now seems to me that I was mistaken in so doing.

Construction of Section 101 – Structure

51 Section 101(1) is a substantive provision, which states what in the eyes of the law a child’s name shall be “on the making of an adoption order”. Section 101(1)(a) is a mandatory provision, to the effect that the making of an adoption order concerning a child who is 18 or more effects no change in either the surname or given names of the adopted child, unless the child decides otherwise. Section 101(1)(b) enables both the surname and given name or names of a child who is less than 18 years of age to become whatever name the Court approves in the adoption order itself. The drafting of section 101(1)(b) necessarily presupposes that the Court has power, in an adoption order, to approve a change of surname, and also to approve a change of given name or names.

52 Section 101(1) is concerned with the name which an adopted child is to have at a single moment in time, namely the moment when the adoption order is made. However, if in accordance with section 101(1) the child has a particular name at that moment, it will continue to have that name unless and until some other event happens which is effective to change the name. Section 101(6) expressly leaves open the possibility of there being such a change in name after the making of an adoption order.

53 Section 101(2)-(5) inclusive is directed in its totality to the Court. If section 101(1) had stood in the Act alone, the Court would have had an extremely wide discretionary power to approve changes in any part of the name of an adopted child who is less than 18 years of age. Being a power conferred on a court, it would be implicit that the power would be exercised in a judicial fashion. As well, even though no express limitations were imposed on the power, it would not be completely unconfined – however it would be confined as a matter of construction only to the extent that the scope and purpose of the statutory enactment may enable the Court to see that some exercises of the power would be definitely extraneous to any objects the legislature could have had in view: Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 at 505; R v The Australian Broadcasting Tribunal; Ex parte 2HD Proprietary Limited (1979) 144 CLR 45 at 49; The State of New South Wales and Others v The Commonwealth of Australia and Carlton and Another (1983) 151 CLR 302 at 321-322; FAI Insurances Ltd v The Honourable Sir Henry Winneke and Others (1982) 151 CLR 342 at 368; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40; Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 285.

54 Section 101(2)-(5) imposes limits on the Court’s exercise of discretion to change a child’s name by stating certain factors which the Court must consider, one factor which the Court may consider in approving a surname, and certain circumstances when the Court must not approve a change in the given name or names of a child. Subject to those limitations, the discretion of the Court remains a wide one.

55 Section 101(3) presupposes that a child might have become “generally known by a particular surname” before the adoption order is made. Given that the circumstances in which adoption orders are made are almost invariably ones where the child has been in the custody of the proposed adoptive parents prior to the adoption order being made, frequently for a period of more than a year, the most common situation in which section 101(3) will come to be applied is where the child “has become generally known by” the surname of the proposed adoptive parents before the adoption order is made. While there is no analogous recognition in section 101 of the possibility of a given name having undergone a de facto change before the adoption order is made, neither is there anything in either the express terms of section 101, nor is there any necessary implication contained in section 101, that no de facto change in the given name of the child can occur prior to the adoption order being made. It is simply wrong to say that the applicants, by referring to the child by another name prior to the application being brought, have contravened the Act.

56 I have quoted at para [46] above the precise words by which Mr Jones’ affidavit made this allegation of contravention of the Act. In Application of CP & JP – Child: S [2004] NSWSC 687 Barrett J dealt with an intercountry adoption application in which the same allegation of contravention of the Act was made, in exactly the same words. Barrett J, at [10] described that allegation as a “sweeping and legally wrong assertion”. That decision was given on 3 August 2004. As shown by the verbatim repetition of the allegation in Re H and the Adoption Act (para [47] above), and in the present case, the Department appears to be ignoring these findings of the Court.

Construction of section 101(5) – “Special reasons”

57 It is fairly common for legislation to confer a power on a court to adopt some course of action if there are “special reasons”. In Jess v Scott (1986) 12 FCR 187 the Full Federal Court (Lockhart, Sheppard and Burchett JJ) considered a provision which allowed a court “for special reasons” to permit an appeal out of time. They said, at 195, that what that rule required was:

“… that there be shown a special reason why are the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify a departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression “for special reasons” implies something narrower than this.
…
It should not be overlooked that r 15(2) enables leave to be given “at any time”; the “special reasons” relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. “Special reasons” must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. “

See also, to similar effect, Minister for Community Services & Health v Chee Keong Thoo (1988) 78 ALR 307 at 324 per Burchett J; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; (1991) 103 ALR 684 at 686-7 of ALR per Burchett J.

58 This meaning of “special reasons” now been decided by the Court of Appeal in Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385 to be applicable in section 101(5). At [44]-[46] Giles JA said:

“44 In Baker v The Queen [2004] HCA 45 [(2004) 210 ALR 1; (2004) 78 ALJR 1483] Gleeson CJ said (at [13]) -
“There is nothing unusual about legislation that requires courts to find “special reasons” or “special circumstances” as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.”
45 In the same case Callinan J said (at [173]-[174]) that “special reasons” shared the characteristics of which Lord Bingham spoke in relation to “exceptional circumstances” in R v Kelly (2000) QB 198 at 208, that -
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
46 Barrett J took up these observations in Application of R M and E S M, re Y at [12], saying that the court could only act “if it positively finds some factor or circumstances related to the best interests of the child that is out of the ordinary course, unusual, special or uncommon and that is not regularly, routinely or normally encountered”. I respectfully agree; but it would be a mistake to attempt to define or categorise what might be special reasons related to the best interests of a child.”

59 In exercising a power which is able to be exercised where there are “special reasons”,

“doubtless the discretion of the Court is very large, and necessarily so; but it must have as its basis some circumstance which it can reasonably regard as “special reasons” for lifting the particular”

circumstance out of the usual: Gourlay v Casey (1927) 38 CLR 586 at 591 per Isaacs, Gavan Duffy and Powers JJ.

60 When the Court comes to exercise the discretion under section 101(5) from time to time,

“ … a discretion to relax the requirement of general rules should not itself become entangled in a web of rules spun out of the Court's discretionary decisions. The tendency in some of the decisions we have discussed to regard a particular factor considered previously, in the light of other circumstances, as requiring the same effect to be given to it in the different situation before a court on a later occasion is a temptation which a court should resist. Decisions are not authorities upon the facts but upon principles; the facts must be regarded as unique to the particular case.”

(per Lockhart, Sheppard and Burchett JJ, Jess v Scott (1986) 12 FCR 187 at 196).

61 At the end of the passage from Application of “M” and “S” [2004] NSWSC 203 which I have quoted at para [49] above, I correctly identified the circumstance in which the Law Reform Commission Report, and the view that the Report expressed concerning UNCROC, could be used as an aid to construction of the Act, namely as a means of resolving ambiguities. I should have gone on to actually apply that test, but did not do so. In light of the meaning of section 101(5) which has been endorsed by the Court of Appeal, there is no ambiguity in section 101(5). That it requires the Court not to approve a change of given name unless a criterion is met, and that criterion is one which is inherently elastic and involves the formation of a judgment, does not mean it is ambiguous. Thus there is no occasion to use either the Report, or its indirect reference to UNCROC, as an aid to construction of section 101(5).

Alleged breach of UNCROC

62 Australia has ratified the United Nations Convention on the Rights of the Child (UNCROC), on 17 December 1990. That Convention includes the following provision, in Article 8:

“1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity.”

63 The Department’s Delegate draws attention to that Convention, and says that the Department,

“… contends that special reasons for changing the child’s birth name would arise in only exceptional circumstances to justify a contravention of International Law.”

64 It is also presumably on the basis of the Convention that Mr Jones puts the third prong of his three-pronged allegation, that any reference by the applicants to the child by another name “clearly is not in the best interests of the child as deemed by international authorities”.

Present Status of UNCROC

65 UNCROC has not been implemented in Australia by the Commonwealth Parliament passing legislation. The Commonwealth Government has stated that:

“Australia does not propose to implement the Convention … by enacting the Convention as domestic law. The general approach taken in Australia to human rights and other conventions is to ensure that domestic legislation, policies and practice comply with the Convention prior to ratification. In the case of the Convention on the Rights of the Child a complaints mechanism also exists pursuant to the Human Rights and Equal Opportunity Commission Act 1986.”

(Australian Government, Australia’s First Report under the Convention on the Rights of the Child , Commonwealth of Australia, 1955, para 6, quoted in Roth, “Children's Rights in NSW” Background Paper No 2/05 NSW Parliamentary Library Research Service p 118). The complaints mechanism which exists under the Human Rights and Equal Opportunity Commission Act 1986 is not one which has relevance to the present case, because that Act enables complaints to be made to the Commission about acts or practices of the Commonwealth that are in breach of the Convention. As there were no equivalent of section 101 in the adoption legislation of New South Wales prior to the 2000 Act, it appears to have been the view of the Commonwealth Government that, when Australia ratified UNCROC in December 1990, Australia's legislation already complied with its obligations under the Convention, even though there was no equivalent of section 101 of the Act.

Can Australian Individuals or Courts Breach UNCROC Re Name Change?

66 To deal with the submission that the applicants would have been acting in a way which is not in the best interests of the child as deemed by international authorities, or that the Court would be contravening international law if it were to find special circumstances for changing a child’s birth name in anything other than exceptional circumstances, it is necessary to restate some basic principles about the relationship between international law arising under a treaty which Australia has ratified, and Australian domestic law.

67 International law recognises nations as having legal personality. Thus, nations are entities which are capable, in the eyes of international law, of carrying out actions, of having rights, and having obligations. The action of a nation in entering a treaty is an action of its executive government. In the case of Australia, the executive government which has power to enter treaties is the executive government of the Commonwealth. It acts in international law through the Governor General, through ministers (such as the Prime Minister, and the Minister for Foreign Affairs), and through public servants in the Commonwealth public service (such as diplomats and consular officials). It is by an action of the executive government that Australia can become bound to a treaty, and thereby become, in the eyes of international law, subject to the obligations arising from that treaty. Once Australia has entered a treaty, the obligations of the treaty are ones that are owed by Australia to other nations or international institutions that have entered it.

68 Human beings are not entities that can be the direct holders of any rights, or directly subject to any obligations, where those rights or obligations arise from a treaty in international law. Sometimes a nation might be bound by a treaty to treat certain people or classes of people in a particular way, but that obligation is one which is owed to the other parties to the treaty. The people who are required to be treated in that particular way are indirect beneficiaries of the treaty, but do not themselves have rights which they themselves are capable of enforcing against a nation which acts in breach of the treaty. Similarly, merely because Australia has entered into a treaty, unless and until that treaty has been incorporated in municipal law by Australian legislation, Australian citizens are not bound by any obligations of substantive law arising under that treaty.

69 Whatever may be the situation so far as the application of international law arising from custom in the domestic law of Australia may be, a treaty becomes part of Australian domestic law only if and to the extent that it is adopted by the legislature of the nation. The executive government of Australia does not have power to make any new law, except to the extent that such power that has been delegated to it by legislation. There has been no delegation to the executive government in Australia of a general power to make treaties which are binding upon being made, or of any specific power to enter a treaty such as UNCROC which becomes binding simply by force of being entered. Ever since the Stuart kings failed in their attempts to assert a Divine Right of Kings, it has been clear law that Parliament is a necessary part of the lawmaking process. As Lord Atkin said in Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326 at 347:

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