re HES - [2011] NSWSC 1071

Supreme Court

New South Wales

Medium Neutral Citation: Application of MSC and CJC; re HES [2011] NSWSC 1071
Hearing dates: 23/08/2011
Decision date: 23 August 2011
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Alteration of first name refused.

Catchwords: FAMILY LAW AND CHILD WELFARE - Adoption - name of child - inter-country adoption - child given forename by natural mother - principle that Court must preserve the name and cultural ties of child as much as possible - undertaking given by adoptive parents to maintain child's birth name accorded weight - child to retain original first name with anglicised middle-name.
Legislation Cited: (NSW) Adoption Act (2000), s 8, s 52, s 67, s 101
Cases Cited: Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762
Texts Cited: Caroline Tozzi Reppold and Claudia Simon Hutz, 'Effects of the History of Adoption in the Emotional Adjustment of Adopted Adults' (2009) The Spanish Journal of Psychology volume 12, no. 2, pp. 454-461.
Category: Interlocutory applications
Parties: MSC & CJC (applicants)
HES (child)
Representation: Solicitors:
Grace Romeo & Suzanne Cavallo (Department of Family and Community Services)
MSC & CJC (applicants in person)

File Number(s): A40/2011

Judgment (ex tempore)

HIS HONOUR: Before the Court is an application for the adoption of the child HES born in 2009, by the adopting parents MSC and CJC. The matter was listed today because there was a dispute as to the given names that should be approved for the child upon the making of an adoption order. In addition, in the course of further reviewing the papers before the hearing, it has come to the Court's attention that not only is there no evidence to support the consent dispense order sought in respect of the birth mother, but there is positive evidence that she is identifiable and has a known address.

The forenames

In their summons, the adoptive parents seek that the names L H-E be approved as the child's forenames. (NSW) Adoption Act 2000, s 101, provides that on the making of an adoption order, an adopted child who is less than eighteen years of age is to have his or her surname and given names, or names such name or names as the Court, in the adoption order, approves in the application of the adoptive parent or parents. Section 101(5) provides that 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 the Court is satisfied that the name change is in the best interests of the child.

Section 8(1)(e) says that, in making a decision about the adoption of a child, a decision-maker is to have regard (as far as practicable or appropriate) to the principle that the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved.

The child is, for present purposes, a non-citizen child within the meaning of…

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.

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Details

Case: [2011] NSWSC 1071
Decision Date: 23 August 2011

CaseChat Overview and Summary

In the Family Court of Australia, the case of re HES dealt with the adoption of a child born in Vietnam and adopted by Australian parents. The primary concern was the retention of the child's name, which was given by the natural mother. The Court was required to balance the principle of preserving the child's cultural identity with the adoptive parents' request to modify the name. The Court recognised the importance of maintaining the child's cultural ties and name as much as possible, in line with established legal principles.

The court examined the legal precedents regarding the preservation of a child's name in adoption cases, particularly in inter-country adoptions. It was noted that courts should strive to preserve the child's cultural heritage and identity, and that the natural name of the child should be maintained unless there are compelling reasons to the contrary. The Court also considered the adoptive parents' undertaking to respect and maintain the child's birth name, which was a significant factor in the decision-making process.

In its reasoning, the Court emphasised the importance of preserving the child's cultural ties and name, while also acknowledging the adoptive parents' commitment to maintaining the child's original first name. The Court decided that the child should retain the original first name given by the natural mother, with an anglicised version of the middle name to facilitate integration into the adoptive family's cultural context. This decision was made to ensure that the child's cultural identity was preserved, while also allowing for some adaptation to the new family environment.

The final orders of the Court required the child to retain the original first name provided by the natural mother, with an anglicised version of the middle name. This decision underscores the importance of maintaining cultural ties and heritage in adoption cases, particularly in inter-country adoptions. The Court's decision also highlights the significance of the adoptive parents' commitment to preserving the child's birth name, which was a crucial factor in reaching the final outcome.

Orders