Re S and the Adoption Act 2000

[2005] NSWSC 393

CITATION:	Re S and The Adoption Act 2000 [2005] NSWSC 393
HEARING DATE(S):	27/04/05
JUDGMENT DATE :	27 April 2005
JURISDICTION:	Equity Division Adoptions List
JUDGMENT OF:	Gzell J
DECISION:	Dispense orders unnecessary

CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Adoption - Application for dispense orders with respect to Korean guardian of orphan child - Whether necessary - Immigration (Guardianship of Children) Act 1946 (Cth) provides that Minister becomes guardian of every non-citizen child entering Australia to the exclusion of any former guardian
LEGISLATION CITED:	Adoption Act 2000
CASES CITED:	Re H and the Adoption Act [2004] NSWSC 1242 Immigration (Guardianship of Children) Act 1946 (Cth)
FILE NUMBER(S):	SC 80040/05
COUNSEL:	Heard in Chambers on Papers

LOWER COURT JURISDICTION:

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

GZELL J

WEDNESDAY 27 APRIL 2005

80040/05 RE: S AND THE ADOPTION ACT 2000

JUDGMENT

1 An application has been made with the consent of the Director-General by an Australian couple for the adoption of an orphan born in Korea.

2 An English translation of a certificate of birth of the child refers to him as having three names. The applicants seek an order, in terms of the Adoption Act 2000, s 101(1)(b), that the child have their names as his surname and a combination of the first two names on his birth certificate into one as his given name.

3 In Re H and the Adoption Act [2004] NSWSC 1242, Young CJ in Eq held that the embargo against change in given names of a child under the Adoption Act 2000, s 101(5) applied only where there is evidence of acceptance by a child of a particular name as part of the child’s identity. No such evidence is tendered in this matter and I follow Young CJ in Eq in adopting the given name for the child proffered by the applicants.

4 The application seeks an order dispensing with the consent of the child’s natural parents and dispensing with the giving of notice of the application to those persons. There is nothing contentious in making such orders under the Adoption Act 2000, s 67(1)(a) and s 72(2)(a) and I will make those orders.

5 Before the child arrived in Australia in the company of the applicants, Do Young Kim, the executive director of Eastern Social Welfare Society Inc of Korea had been appointed the guardian of the child. Orders are sought dispensing with the consent of Dr Kim and with notice of the application upon him. An order is also sought releasing a copy of the court’s orders to him.

6 Those orders are, in my view, unnecessary. The Immigration (Guardianship of Children) Act 1946 (Cth), s 6 provides that the Minister administering that Act becomes the guardian of every non-citizen child who arrives in Australia to the exclusion of any former guardian. It is in the following terms:

“The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.”

7 Included in the material before the court is a certificate of a delegate of the Minister administering the above Act, consenting to the making of an adoption order. There is a further certificate under the delegation of the Minister directing that the provisions of the Immigration (Guardianship of Children) Act 1946 (Cth) will cease to apply to the child with effect from the date an order for adoption is made.

8 I do not intend to make any orders with respect with to the former guardian, Dr Do Young Kim.

**********