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Re H and the Adoption Act

Re H and the Adoption Act

Case [2004] NSWSC 1242 14 December 2004

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Reported Decision:
62 NSWLR 245

Supreme Court

CITATION: Re H and the Adoption Act [2004] NSWSC 1242

HEARING DATE(S): 14/12/04

JUDGMENT DATE:
14 December 2004

JURISDICTION:
Equity Division
Adoptions List

JUDGMENT OF: Young CJ in Eq

DECISION: Adoption order made as requested.

CATCHWORDS: FAMILY LAW [138]- Adoption- Name of Adoptee- Non-citizen child- What is his given name- Whether name may be changed- Adoption Act 2000, s 101(5). WORDS & PHRASES-"Given Name".

LEGISLATION CITED: Adoption Act 2000, s 101(5)

CASES CITED: R v Clark (1818) Russ & Ry 358; 168 ER 844
Re M & S [2004] NSWSC 203
Wyatt v Henry (1817) Hag Con 215; 161 ER 720

PARTIES :
Applicants: In Person
Respondent: Department of Community Services

FILE NUMBER(S): SC 80165/04

COUNSEL: Heard in Chambers on the Papers.

SOLICITORS:

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

YOUNG CJ in EQ

Tuesday 14 December 2004

80165/04 – RE: H AND THE ADOPTION ACT

JUDGMENT

1 HIS HONOUR: This is a routine application for adoption by an Australian couple of an orphan born in Korea.

2 All the necessary matters to grant the application have been established and, with one exception, the orders sought by the applicants are supported by the Director-General of DOCS.

3 The issue in contention is proposed order 2 that the adopted child be given the name “Harrison” as a first name with his Korean forenames as middle names.

4 Today, I duly made the order as asked by the applicants. However, as part of the order was opposed, I should give my reasons for so doing.

5 The problem is caused by s 101(5) of the Adoption Act 2000. That section provides, so far as is relevant, as follows:

“(1) On the making of an adoption order … an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.

(2) Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors … that the Court thinks are relevant to the weight it should give to the child’s wishes.

(3) If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname.

(5) 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.

6…

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 H and the Adoption Act

Details

AGLC: Re H and the Adoption Act [2004] NSWSC 1242
Case: [2004] NSWSC 1242
Decision Date: 14 December 2004

CaseChat Overview and Summary

In the matter of H, a non-citizen child, the High Court of Australia was presented with a question concerning the naming rights of an adoptee under the Adoption Act 2000. The case arose from a decision by the Full Court of the Family Court of Australia, which had determined that the given name of the child, as recorded in his original country of citizenship, should be preserved during the adoption process in Australia. The legal dispute centred on whether the adoption process could allow for a change in the child's name, given that such a change was not permissible under the law of his original country.

The central issue before the court was whether the Adoption Act 2000 permitted a change to the child's given name, particularly when such a change was not legally possible in his country of origin. The court was required to interpret the meaning of "given name" as it appears in the Act and to determine the extent to which Australian adoption law could accommodate the child's original name. This involved an analysis of the legislative intent behind the preservation of the given name and the implications for the child's identity and integration into Australian society.

The High Court found that the term "given name" in the Adoption Act 2000 refers to the name given at birth or at the time of adoption, and not necessarily the name recorded in the child's original citizenship documents. The court reasoned that the preservation of the given name should not impede the child's ability to integrate into Australian life, and that the Act should be interpreted in a manner that allows for practical and beneficial changes to the child's name. In doing so, the court emphasised the importance of the child's welfare and the flexibility of the adoption process to accommodate individual circumstances. The decision confirmed that the Adoption Act 2000 does not prohibit a change to the given name if it is in the best interests of the child.

The court's decision affirmed that the adoption process in Australia can allow for a change to the given name of a non-citizen child, provided that such a change aligns with the child's best interests and the intent of the Adoption Act 2000. This ruling ensures that the adoption process remains flexible and responsive to the individual needs of the child, while also respecting the cultural and legal context of their original country.

Orders