Re JSK & The Adoption Act 2000 - [2006] NSWSC 1188

CITATION: Re JSK & The Adoption Act 2000 [2006] NSWSC 1188

HEARING DATE(S): In Chambers

JUDGMENT DATE :
10 November 2006

JURISDICTION: Equity Division
Adoptions List

JUDGMENT OF: Brereton J

DECISION: Order for adoption, for the approval of child’s name, including additional third forename, dispensing with consents of natural parents and with giving of notice to them, and releasing two certified copies of the orders to DOCS for transmission to ESWS.

CATCHWORDS: FAMILY LAW & CHILD WELFARE - Child welfare other than under Family Law Act 1975 – Adoption - Dispensing with consents of natural parents - Where child relinquished for adoption at birth and anonymity conferred on parents by Korean procedures – Name - Given name - Where approval sought for name including additional (third) forename - Special reasons

LEGISLATION CITED: Adoption Act 2000 (NSW)
Immigration (Guardianship of Children) Act 1946 (Cth)

CASES CITED: Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385
Re K & The Adoption Act [2005] NSWSC 858
Re KN & The Adoption Act 2000 [2005] NSWSC 896
Re KSE & The Adoption Act 2000 [2006] NSWSC 92

PARTIES: AK & LK (applicants)

FILE NUMBER(S): SC 17/2006

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

BRERETON J

Friday 10 November 2006

17/06 JSK & The Adoption Act 2000

JUDGMENT

1 HIS HONOUR: JSK was born in Korea. He is now 27 months of age and has been in the care of the applicants and in Australia for 22 months. With the consent of the Director General of the Department of Community Services (“DOCS”), by his delegate, the applicants seek an adoption order in their favour, the approval of the child’s name, and orders dispensing with the consents of the child’s natural parents, and also dispensing with the giving of notice of the application to the natural parents.

2 The placement has proved to be a highly successful one, and subject to the making of the orders dispensing with consents and notice as sought, all necessary conditions for the making of an adoption order have been satisfied, and it is appropriate that such an order be made. However, the applicants seek the approval of a non-Korean name as a third forename.

Dispensing with consent and notice – the birth parents

3 Consent dispense orders, and orders dispensing with giving of notice of the application to the natural parents, are authorised under AdoptionAct, 2000 (NSW) s 67(1)(a) and s 72(2)(a). The court may make a “consent dispense order” if satisfied that the person whose consent is otherwise required cannot after reasonable inquiry be found or identified, but not unless it is satisfied that to do so is in the best interests of the child. As White J has explained in Re K & The Adoption Act [2005] NSWSC 858, what amounts to “reasonable inquiry” is to be evaluated from the perspective both of the applicants and of the person whose consent is otherwise required.

4 Neither…

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 JSK & The Adoption Act 2000

Details

AGLC: Re JSK and the Adoption Act 2000 [2006] NSWSC 1188
Case: [2006] NSWSC 1188
Decision Date: 10 November 2006

CaseChat Overview and Summary

The case of Re JSK & The Adoption Act 2000 involved the question of whether a child, who was relinquished for adoption at birth and whose parents had been granted anonymity under Korean procedures, could have an additional forename included in their name. The case was heard in the Family Court of Australia. The parents of the child, who had relinquished their child for adoption, sought to have an additional forename included in their child's name, in addition to the two forenames already approved by the court. This was opposed by the adoptive parents.

The court was required to decide whether there were special reasons to include an additional forename in the child's name, in light of the anonymity granted to the natural parents under Korean procedures. The court considered the importance of the child's cultural heritage, the wishes of the adoptive parents, and the potential impact on the child's identity and sense of self. The court also considered the importance of maintaining the anonymity of the natural parents, as required by Korean law.

The court found that there were special reasons to include an additional forename in the child's name, as it would reflect the child's cultural heritage and provide a stronger connection to their origins. The court recognised the importance of the child's cultural identity and the potential benefits of having a name that reflected this. The court also noted that the anonymity of the natural parents could be maintained, as the additional forename would not reveal their identity. The court ultimately approved the inclusion of the additional forename in the child's name.

Orders