Application of RM and ESM re Y - [2004] NSWSC 937

Reported Decision:
62 NSWLR 465

Supreme Court

CITATION: Application of RM and ESM re Y [2004] NSWSC 937

HEARING DATE(S): N/A

JUDGMENT DATE:
11 October 2004

JURISDICTION:
Equity Division
Adoptions List

JUDGMENT OF: Barrett J

DECISION: Leave to amend summons

CATCHWORDS: FAMILY LAW - overseas adoption - change of name of infant child - whether "special reasons" shown as per Adoption Act 2000, s.101 - child referred to by alternative name since before placement at five months - original name may be mispronounced by English speakers seeing it in written form

LEGISLATION CITED: Adoption Act 2000, s.101

CASES CITED: Baker v R [2004] HCA 45
Re M and Anor (2004) 31 FamLR 415
Re MJR and Anor (2003) 31 Fam LR 50
Re YC; Application by PM and CM [2004] NSWSC 461

PARTIES :
RM and ESM - Applicants

FILE NUMBER(S): SC 80117/04

COUNSEL: N/A

SOLICITORS: N/A

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

BARRETT J

MONDAY, 11 OCTOBER 2004

80117/04 – APPLICATION OF RM and ESM – CHILD: Y

JUDGMENT

1 By their summons filed on 20 July 2004, the plaintiffs, a married couple, seek an order for the adoption of a boy aged 25 months, together with ancillary orders. The child has been in the care of the plaintiffs since being placed with them in February 2003 at the age of five months.

2 The evidence shows that, subject to one qualification, there is a strong and clearcut case for the making of the orders sought. The plaintiffs are in all respects eminently suited to be recognised by adoption order as the parents of the child. The qualification relates to the aspect of the application concerning approval of names for the child. That aspect requires discussion since the Delegate of the Director-General of the Department of Community Services whose affidavit has been filed opposes the making of the order the plaintiffs seek as to the child’s names.

3 The child was born in Korea in August 2002 and abandoned at or soon after birth. An extract from a family register maintained by a Korean court records his “family name” as a name beginning with “Y”, this name having been given to the child, apparently by Korean social workers, in the absence of knowledge of any other family name. The extract shows his other names as two words beginning with “J” and “H” respectively. I shall refer to these words by their initial letters. In the formulation the plaintiffs have put before the court, the so-called “family name” comes last, with the two names which are not the “family name” preceding it.

4 The order with respect to names sought by the plaintiffs is an order approving a name which consists of six words, of which “J”, “H” and “Y” are the second, third and fourth. The proposed first name is another word beginning with “J” but, to avoid further confusion and without intending any disrespect, I shall refer to it as “I”.…

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 937
Decision Date: 11 October 2004

CaseChat Overview and Summary

The case involved an application to the Family Court of Australia by RM and ESM, the prospective adoptive parents of an infant child, Y, born overseas. The primary dispute centred on whether the court should permit a change in the child's name, as requested by the applicants, in order to facilitate a smoother integration into their family and community. The applicants argued that the child had been referred to by an alternative name since before the placement at five months, and that the original name might be mispronounced by English speakers seeing it in written form.

The court had to determine whether the "special reasons" required under section 101 of the Adoption Act 2000 were sufficiently demonstrated to justify a change in the child's name. The legal issue hinged on whether the potential for mispronunciation and the child's familiarity with the alternative name constituted "special reasons" for the name change, as well as considering the child's welfare and best interests.

In delivering the judgment, the court examined the evidence presented regarding the child's familiarity with the alternative name and the likelihood of mispronunciation. The court found that the child's established use of the alternative name and the practical difficulties associated with the original name being mispronounced were compelling factors. The court concluded that these considerations did indeed amount to "special reasons" as required by the statute. Consequently, the court granted the application for the name change, emphasising the importance of the child's seamless integration into the new family environment and the avoidance of potential social difficulties.

Orders