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 2004JURISDICTION:
Equity Division
Adoptions ListJUDGMENT 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 720PARTIES :
Applicants: In Person
Respondent: Department of Community ServicesFILE 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.
(6) Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, under the law of New South Wales.”(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…
Continue reading Re H and the Adoption Act
Sign in free to access the full text
- AGLC
- Re H and the Adoption Act [2004] NSWSC 1242
- Case
- [2004] NSWSC 1242
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.