Application of SGR and KMR - Child BW

[2005] NSWSC 1321

CITATION:	Application of SGR and KMR - Child BW [2005] NSWSC 1321
HEARING DATE(S):	Application in Chambers
JUDGMENT DATE :	14 December 2005
JURISDICTION:	Equity Division Adoptions List
JUDGMENT OF:	Barrett J
DECISION:	Orders made as sought

CATCHWORDS:	ADOPTION - change of given names - one name given by natural mother and registered after birth - second name chosen by proposed adoptive parents with knowledge and consent of natural mother - child known by both names - child baptised by both names - special reasons shown
LEGISLATION CITED:	Adoption Act 2000, s.101(5)
CASES CITED:	Application of M and S [2004] NSWSC 203 Director-General Department of Community Services v The Adoptive Parents [2005] NSWCA 385
PARTIES:	SGR and KMR - Applicants Child - BW
FILE NUMBER(S):	SC 80028/05
COUNSEL:	Unrepresented - Applicants
SOLICITORS:	A. Harvey Sutton & Co - Applicants

LOWER COURT JURISDICTION:

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

BARRETT J

WEDNESDAY, 14 DECEMBER 2005

80028/05 APPLICATION OF SGR AND KMR -
CHILD BW

JUDGMENT

1 The child the subject of this adoption application was born in New South Wales in April 2004. Because he is more than one year old, s.101(5) of the Adoption Act 2000 operates to deny the court power to make an adoption order approving a change in his given name or names unless there are “special reasons, related to the best interests of the child” to approve the change.

2 In particulars registered under the Births, Deaths and Marriages Registration Act 1995 in May 2004, the child has one forename. It begins with the letter “B”. The registration records particulars furnished by the natural mother.

3 In October 2005, before the filing of the summons in this proceeding, the child was baptised in the Roman Catholic Church as the child of the present applicants. He was given two names at his baptism: the existing name beginning with “B” and a second name beginning with “T”.

4 The order sought in the summons is an order for the adoption of the child and for approval of the given names “B” and “T”.

5 In Director-General Department of Community Services v The Adoptive Parents [2005] NSWCA 385, the Court of Appeal (Giles JA, Mason P and Campbell AJA concurring), held (at [37]) that when s.101(5) refers to a change in the given name or names, it takes as its starting point the name or names that the child had at the time of being placed with the proposed adoptive parents. In this case, placement occurred in April 2005. At that time, the only given name was “B”.

6 In the case I have mentioned, the Court of Appeal expressed a preference for the view that 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 names. Although the Court of Appeal did not decide the question to which it thus referred, I think I should proceed on the basis indicated. Addition of the name “T” should therefore be regarded as a change in relation to which s.101(5) operates. I turn, therefore, to the question of “special reasons, related to the best interests of the child”.

7 In the present case, the additional name “T” has been chosen by the adoptive parents with the concurrence of the natural mother. According to the evidence, the child is known by those names, together with the surname of the adoptive parents. I have already referred to his baptism by the names “B” and “T”.

8 In Director-General Department of Community Services v The Adoptive Parents (above), the Court of Appeal referred to the significance, in the s.101(5) context, of the fact that the child has become known by the changed name. It was held that weight can be given to that fact. I quote from paragraph [50] of the judgment of Giles JA:

“In my opinion, however, weight can be given to the fact, if it be the fact, that the adoptive parents have called the child by the name in question, particularly if the child has come to recognise and respond to that name. The paramount consideration in an adoption application is the best interests of the child. If the Department’s practices mean that proposed adopting parents have the care of a child for some time prior to the application for an adoption order, so that there is a period in which the child is called by the name and identifies with it, I do not think that fact can be put aside or given little weight; it is a fact, it must be taken into account, and if it would be detrimental to the child to be held to his or her given name or names as at the time of placement with the proposed adoptive parents, that is material to special reasons. It is weighed, however, together with all relevant circumstances.”

9 The possible objection that affording weight to a fait accompli tends to facilitate subversion of the policy of s.101(5) (a matter first raised by Campbell J in Application of M and S [2004] NSWSC 203) was apparently not seen by the Court of Appeal as in any way determinative.

10 In the present case, there are factors additional to actual use of the names “B” and “T” by the applicants after placement with them. First, the additional name “T” was chosen with the knowledge and consent of the natural mother who is, as it were, the source of the child’s heritage with which the name change provisions are concerned. Second, the child has been received into the Christian Church by baptism by the names “B” and “T”.

11 These two matters, coupled with actual use of the additional name “T” after placement, cause me to conclude that special reasons within s.101(5) have been shown. It is in the best interests of the child that he be formally recognised by the names by which he is known, which his natural mother has approved and by which he has been baptised. It would not be in his best interests that he be denied one of those names, so that his “official” name differed from his baptismal name and the name that both his natural parents and his adoptive parents wish him to have.

12 The orders will be made as sought.

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