Application of "PM" and "CM" - Child: "YC"

[2004] NSWSC 461

CITATION:	Application of "PM" and "CM" - Child: "YC" [2004] NSWSC 461
HEARING DATE(S):	In chambers
JUDGMENT DATE:	27 May 2004
JURISDICTION:	Equity
JUDGMENT OF:	Austin J
DECISION:	Change of name approved
CATCHWORDS:	FAMILY LAW - overseas adoption - change of name of infant child - relevant considerations
LEGISLATION CITED:	Adoption Act 2000 (NSW), s 101
CASES CITED:	Application of MJR (2003) 31 FamLR 50 Application of "M" and "S" [2004] NSWSC 203
PARTIES :	PM and CM (Applicants) Child: YC
FILE NUMBER(S):	SC 80052/04
COUNSEL:	Nil
SOLICITORS:	Applicants in person Department of Community Services

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

AUSTIN J

THURSDAY 27 MAY 2004

80052/04 APPLICATION OF “PM” AND “CM” – CHILD: “YC”

JUDGMENT (IN CHAMBERS)

1 HIS HONOUR: This is an application by a married couple to adopt a Taiwanese baby girl, who has been placed with them since April 2003. The little girl was born on 24 November 2002 in Taichung City, Taiwan, and was placed for adoption with the Christian Salvation Service. The adopting parents entered into an adoption agreement and made an application to the Taipei District Court, which made an order granting approval to the adoption of the child. The order of the Taipei Court does not, on its face, appear to be an adoption order, but rather an approval for the adopting parents to make the present adoption application before this Court.

2 The adoption is strongly supported by the social worker who has provided a report to the Court. She says the placement has been very successful and there are no concerns in any area. It is also supported by the affidavit of the delegate of the Director-General, Department of Community Services. The only issue that requires comment is that the adopting parents propose to change the child’s name.

3 The child’s Taiwanese surname is “Ch” and her given name is “Y-L”. The adopting parents seek an order for the Court to approve the child having an Anglo-Celtic first forename, “C-L”, while her second forename would be her Taiwanese given name “Y-L”. Her Taiwanese surname would be replaced by the adopting parents’ surname, “M”. In the result, she would have Anglo-Celtic first and last names, and a Taiwanese middle name.

4 The adoption application is made under the Adoption Act, 2000 (NSW). Section 101(1)(b) gives the Court a discretion to approve the surname and given names of an adopted child who is less than 18 years of age, in the adoption order, on the application of the adopting parents. In the present case the child is not old enough to express any wishes as to her name, but as she is more than one year old, subsection (5) is relevant. It says:

“The Court must not approve a change in the given name or names of a child who is more than one year old … unless there are special reasons, relating to the best interests of the child, to do so.”

5 The Act contains some other provisions relevant to a change of name. Section 7 states the objects of the Act. They include to emphasise that the best interests of the child are to be the paramount consideration and that adoption is to be a service to the child, to ensure that adoption law and practice assists the child to know and have access to her birth family and cultural heritage, and that adoption law and practice complies with Australia’s obligations under treaties and other international agreements. Australia has an obligation under the United Nations Convention on the Rights of the Child, article 8.1, to “respect the right of the child to preserve his or her identify, including nationality, name and family relations”.

6 Section 8(1) requires the Court, in making an adoption decision, to have regard (as far as practicable or appropriate) to principles which include the following:

(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 … .

7 Section 32(1) requires the Court in making an adoption decision to take into account, amongst other things, the culture, language and religion of the child, and reiterates the principle stated in paragraph (e) above. Section 32(2) requires the Court to take into account whether the adopting parents have demonstrated:

(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, and
(d) the capacity to help the child if the child encounters racism or discrimination in school or the wider community.

8 In my opinion, it is clear from the evidence that the adopting parents are committed to ensuring that the child’s identify, language, and cultural ties will be preserved, and that the matters listed in s 32(2) are established. Their own evidence on these matters is supported by the social worker’s report to the Court. The adopting parents have given evidence that they are doing all in their power to preserve the child’s language and culture by having her attend a weekly playgroup at which Mandarin (the official language of Taiwan) is taught and cultural awareness is raised through craft. As to religion, they have baptised the child, but that does not appear to be contrary to the child’s own religion, as the Taiwanese adoption placement agency recorded her mother’s religion as “N/A”.

9 The background to the enactment of s 101 was described by Campbell J in Application of “M” and “S” [2004] NSWSC 203 (22 March 2004). His Honour quoted extensively from Report 81 of the New South Wales Law Reform Commission (judgment, at [16]), where the Commission:

· said that the right of a child to preserve his or her first name should be respected;

· drew attention to the enormous change and dislocation experienced by the child in the process of being adopted overseas;

· observed that although the effects of a name change are intensified in older-aged children the disruption is experienced by all children; and

· said that even a child who is only one or two years old will have already learnt to identify herself with a particular name.

10 In Application of MJR and MJR – Child: KHB (2003) 31 FamLR 50, Bryson J referred to s 101 as reflecting:

“… a perception that adopted children, including children adopted from overseas, go through change and dislocation and disruption of everything in life that is familiar, and the maintenance of the child’s name may have some beneficial influence in this disruption, and in the longer term may have positive influences on the development and strength of the child’s sense of identify, in childhood and later.”

11 Section 101(5) does not apply to the change of the child’s surname from “Ch” to “M”. The subsection speaks only of approving a change in the “given name” of the child. The issue, in the present case, is to whether to relegate the child’s given name, “Y-L”, so that it becomes her middle name, and to insert an Anglo-Celtic name as her first name, and therefore the one by which she will be usually known. As Campbell J pointed out in Application of “M” and “B” at [20], the addition of a new first name is a change in the given name or names of the child for the purposes of s 101(5).

12 Under the subsection, the question to be considered is whether, in light of the background to which I have referred, there are special reasons related to the best interests of the child, to authorise the proposed change.

13 In her affidavit, the delegate of the Director-General of the Department of Community Services says she opposes the request for a change of name. She suggests that under s 101(5) the Court should make an order approving that the child maintain her given name of “Y-L” and add the new middle name of “C-L”, as well as the new surname of “M”. However, there are special reasons relating to the interests of the child which have led me to conclude that the application for change of name should be supported.

14 One special circumstance is that the adopting parents have already adopted a Taiwanese boy under the Adoption Act 1965, which contained no provision equivalent to s 101(5). The name given to him on adoption was an Anglo-Celtic first name, his Taiwanese given name as his middle name, and the surname of his adoptive parents. The present application will confirm a continuity and similarity between the siblings, whereas refusal of the application may be confusing to the child as she grows up, and possibly disruptive of her social and family relationships.

15 Moreover, the child has been called “C-L” by her family and friends since the adopting parents received an allocation notice from the Department in December 2002, just a few weeks after her birth. By 7 February 2003 the Christian Salvation Service, who were caring for the child, were referring to her as “C-L”, and have continued to do so since that time. The Department of Community Services have referred to the child as “C-L” in all correspondence to date, as has the social worker in post-placement reports. The adopting parents have registered the child for enrolment in various private schools under the name “C-L Y-L M”, and she has been baptised under that name. She has a bank account and a Medicare card in that name. Generally, she has been referred to as “C-L” from the time of the adopting parents’ earliest involvement with her through the Christian Salvation Service in Taiwan, and therefore from shortly after her birth.

16 Given the commitment of the adopting parents to preserve the language and culture of the child, it does not seem to me that the adoption of an Anglo-Celtic first name will inhibit the child’s development in the manner envisaged by the legislation and the Law Reform Commission Report.

17 I shall therefore make the orders sought in the Summons.

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Last Modified: 06/10/2004