Re Application of K - [2005] NSWSC 617

CITATION:
Application of K, Re [2005] NSWSC 617

HEARING DATE(S): In chambers

JUDGMENT DATE :

24 June 2005

JURISDICTION:
Equity (Adoptions List)

JUDGMENT OF:
Austin J

DECISION:
Application approved

CATCHWORDS:
ADOPTION - change of name - where adopting parents wish to give child western first given name - where proposed first given name was the original surname of the child - whether s 101(5) applies - whether special reasons within the meaning of s 101(5) exist

LEGISLATION CITED:
Adoption Act 2000 (NSW) s 101

CASES CITED:
Application of K: Child NH [2005] NSWSC 248
Application of RM and ESM re Y [2004] NSWSC 937
Re H and the Adoption Act [2004] NSWSC 1242
Re S and the Adoption Act 2000 [2005] NSWSC 393

PARTIES:
K (P)
Director-General Department of Community Services (D)

FILE NUMBER(S):
SC 80041/05

LOWER COURT JURISDICTION:

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

AUSTIN J

FRIDAY 24 JUNE 2005

80041/05 APPLICATION OF K, RE

JUDGMENT

1 HIS HONOUR: This is an adoption application in which the adopting parents seek an order that the child, MSL, have his surname as his first given name, and that he retain his current given names as his second and third given names respectively. The Minister’s delegate has supported the adoption application, and has made no submission on the question of given names.

2 MSL was born on 29 July 2003 in the Republic of Korea, and his mother referred him for adoption the same day. He was cared for by an adoption agency and foster parents in Korea until 8 February 2004, when he was placed with the adopting parents, who brought him to Australia.

3 MSL’s given names, as recorded in the adoption agency’s records, are traditional Korean names. His surname is also a traditional Korean name, but is also a common western given name. Over the time of MSL’s placement with the adopting parents, MSL has been called by this name as his first given name. The adopting parents’ other adopted son, who is older, has a well-known western first name.

4 Section 101(5) of the Adoption Act 2000 (NSW) (“the Act”) relevantly provides, “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”.

5 In Re H and the Adoption Act [2004] NSWSC 1242, it was held (at [50]) that s 101(5) applies only where “the child’s identity includes the fact that he or she has a particular name. That is that someone has conferred a name on him or her and that he or she recognises that such name refers to him or her” (per Young CJ in Eq; see also Re S and the Adoption Act 2000 [2005] NSWSC 393 (Gzell J)). In this case, it is unclear on the evidence whether the names “M” and “S”…

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.

Continue reading Re Application of K

Details

AGLC: Re Application of K [2005] NSWSC 617
Case: [2005] NSWSC 617
Decision Date: 24 June 2005

CaseChat Overview and Summary

In the Family Court of Australia, the case of Re Application of K involved an application by the adopting parents of a child to change the child's surname to the father's western first given name. The proposed name was the original surname of the child, which had been adopted due to cultural reasons. The court was required to determine whether section 101(5) of the Family Law Act 1975 applied to the case and if special reasons existed that would justify the name change. The primary concern was whether the change would be in the best interests of the child, considering the cultural and familial context.

The legal issues central to this case were the interpretation and application of section 101(5) of the Family Law Act 1975. This section allows for a name change upon adoption unless it is not in the best interests of the child. The court had to assess whether the proposed name change constituted a significant change in the child's identity, and if so, whether there were special reasons to warrant such a change. The adoption process and the implications of altering the child's name, particularly given its cultural significance, were also pivotal considerations in the decision.

The court, after considering the evidence presented by the adopting parents and the implications of the name change, concluded that the change would be detrimental to the child's cultural identity and overall well-being. It was determined that the adoption process should respect the child's cultural heritage and that the proposed name change did not meet the criteria of special reasons under section 101(5) of the Family Law Act 1975. The court found that maintaining the child's original surname was in their best interests and denied the application for the name change.

The final orders of the court were that the application to change the child's name to the father's western first given name was dismissed. The child's original surname, which held cultural significance, was to remain unchanged to protect the child's identity and heritage. This decision underscored the importance of considering cultural factors and the best interests of the child in adoption and name change proceedings.

Orders