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” have been “conferred” on MSL in the appropriate sense, and whether MSL recognises these given names as referring to him. He was placed with the adopting parents when he was 6 months old, and evidence has been adduced that tends to indicate that he in fact responds to his surname as his first given name.

6 It may therefore be open to the court in this case to order that the child’s name be changed in the manner sought by the adopting parents, without regard to s 101(5). However, to the extent that s 101(5) may apply, there are in my view “special reasons, related to the best interests of the child” that justify approving the given names proposed by them.

7 Where s 101(5) applies, a court may not order a change of name unless it “positively finds some factor or circumstance 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”: Application of RM and ESM re Y [2004] NSWSC 937, at [12]; Application of K: Child NH [2005] NSWSC 248.

8 In an annexure to their affidavit of 11 April 2005, the adopting parents identified a number of reasons why they sought an order changing MSL’s name, namely:

· that their proposal would retain MSL’s given names as his second and third given names;

· that their proposal would also retain MSL’s surname by changing it to his first given name, thereby retaining a link to his birth mother;

· that by recording MSL’s surname as his first name, his name would appear in written form as it does in Korea, with the surname first;

· that their other adopted son has a western first given name; and

· that the proposed first name would be more easily accepted in Australian society, whilst preserving MSL’s original name and culture.

To these reasons may be added the fact that the adopting parents have called MSL by his surname since he was placed with them, and he has come to be known by that name.

9 I respectfully agree with Barrett J in Application of RM and ESM re Y [2004] NSWSC 937, at paragraphs [22] to [23], that it cannot be inferred that a non-English name will make a person any less accepted in Australia’s multicultural society. However, in my opinion, the other matters identified by the adopting parents are sufficient, in combination, to constitute “special reasons” for the purposes of s 101(5).

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