Application of K: Child Nh [2005] NSWSC 248 (24 March 2005)

Last Updated: 8 May 2005

NEW SOUTH WALES SUPREME COURT

CITATION: Application of K: Child NH [2005] NSWSC 248



CURRENT JURISDICTION: Equity

FILE NUMBER(S): 80182/04

HEARING DATE{S): In chambers

JUDGMENT DATE: 24/03/2005

PARTIES:
K (P)
Director-General Department of Community Services (D)

JUDGMENT OF: Austin J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:


SOLICITORS:



CATCHWORDS:
FAMILY LAW - adoption - non-citizen child - change of name - whether "special reasons" justifying change of name

ACTS CITED:
Adoption Act 2000 (NSW) s 101

DECISION:
Application approved


JUDGMENT:

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


AUSTIN J

THURSDAY 24 MARCH 2005


80182/04 APPLICATION OF K: CHILD NH

JUDGMENT

1 HIS HONOUR: This is an adoption application in which the plaintiffs seek an order that the court approve that the child, NH, have a name chosen by the adopting parents as his first given name, and that he retain his birth name as his second given name.

2 The Minister’s delegate does not oppose the adoption, but she opposes the making of the order changing the child’s name. The issue is therefore whether the plaintiffs have been able to demonstrate that there are “special reasons, related to the best interests of the child”, pursuant to s 101(5) of the Adoption Act 2000 (NSW) (“the Act”), to permit the court to order a change in the child’s given name.

Background

3 NH was born on 21 June 2003 in the Republic of Korea. NH’s parents ended their relationship before NH’s mother was aware she was pregnant. After finding out about her pregnancy, NH’s mother became concerned that she could not satisfactorily look after her baby in an environment lacking social, financial and emotional security, and, thinking it desirable for NH to grow up in an adoptive home with these benefits abounding, she referred NH for adoption on 23 June 2003.

4 The plaintiffs had already adopted one Korean child, and on 4 December 2002, applied to adopt another. NH was placed with them on 8 November 2003, and has been living with them ever since.

5 Ms Debbie Palacios, a social worker, has prepared a report dated 26 September 2004 for the purposes of the adoption proceeding. The report thoroughly describes the domestic conditions, the financial situation and physical health of the family, and concludes that H “has thrived the care of Mr and Mrs [K], growing from an infant into an active, happy and healthy toddler. It is therefore recommended that the adoption of [NH]...by [K] proceed.” The Minister’s delegate adopted the report and its recommendations as the Director-General’s report under s 91 of the Act.

6 The name given to NH by his birth mother is a traditional Korean given name of two syllables. It is, co-incidentally, spelt the same as two ordinary English words, one of which carries negative connotations in the English language. Over the time of NH’s placement with the plaintiffs, NH has been called by a well-known western name chosen by the plaintiffs. The plaintiffs’ other adopted son also has a well-known western first name. The plaintiffs have therefore sought an order that the court approve the western name he has been called as his first given name, but that he retain his birth name as a second given name.

The Law

7 Section 101(5) of the Act relevantly provides “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.”

8 I have read and considered the judgment of Young CJ in Eq in Re H and the Adoption Act [2004] NSWSC 1242, particularly the passages from [27] to [50] that discuss the different possible definitions of the term “given name”. In this case, both parties have made their submissions assuming that the order would require a change in NH’s “given name”. I have assumed, without deciding, that in this case the orders sought would involve a “change in the given name or names of a child” and accordingly that the “special reasons” referred to in s 101(5) must be present before a change can be made.

9 The court may only order a change of given name under s 101(5) if it “positively finds some factor or circumstance related to the best interests of the child that is out of the ordinary course, unusual, special or uncommon and that is not regularly, routinely or normally encountered”: Application of RM and ESM re Y [2004] NSWSC 937 at [12].

10 In a short affidavit of special reasons dated 10 November 2004, the plaintiffs put forward a number of reasons why they sought an order changing NH’s given name. These were:
· that the western name selected by the parents was a well known name in Australia, and similar to NH’s birth name;
· that the plaintiffs’ first adopted son also has a western first name, and the plaintiffs do not want NH to feel different from his brother;
· that the naming process was an important step in taking NH to be the plaintiffs’ own child;
· the chosen western name was endorsed by the plaintiffs’ Korean neighbours;
· the plaintiffs would retain NH’s birth name as his middle name; and
· NH had already been known and addressed by his western name since he was 5 months old, a period of over one year.

11 The Minister’s delegate, Ms Prodigalidad, responded to the plaintiffs’ affidavit of special reasons with a lengthy and detailed submission contained within her affidavit of 7 December 2004. I note in passing the observations of Young CJ in Eq regarding the inclusion of submissions in an affidavit: Re H and the Adoption Act at [18]. The affidavit seems to be of a “standard form” variety used by the Department, sworn before Re H and the Adoption Act was decided. The submission raises the following issues:

· the plaintiffs had been informed of the need to retain the child’s birth name at Preparation for Adoption seminars, and the importance of this had been stressed on other occasions where the plaintiffs had been observed calling NH by a western name;
· the fact that NH had been called a western name for a long period was not a “special reason”, following Campbell J’s judgment in Application of M and S [2004] NSWSC 203 at [29];
· under the United Nations Convention on the Rights of the Child (“UNROC”), which has been ratified by Australia, the principles of which are reflected in various sections of the Act, there is a need to preserve the child’s identity, including nationality, name and family relations;
· the New South Wales Law Reform Commission’s Review of the Adoption of Children Act 1965 (NSW) Report 81, which is a guide to the policy of the Act, stresses the importance of UNROC and particularly the child’s right to preserve its identity, including in the case of very young children: [10.231] to [10.234].

12 It became apparent that the plaintiffs had not seen, and were not aware of the existence of, the submissions contained in the delegate’s affidavit. I therefore directed that the plaintiffs be provided with a copy of the delegate’s affidavit, and made provision for them to file further evidence or make submissions should they wish to do so. The plaintiffs made a further submission dated 10 January 2005, in which they detailed further special reasons for the court’s consideration.

The plaintiffs made a number of points.

13 First, they stressed the point raised in their original affidavit of special reasons that they wanted their two adopted children to have western names so that NH would not feel different from his brother. The delegate had not specifically responded to this submission in her primary affidavit. However in a further Delegate’s Affidavit of Mr Brendan Jones, of 16 February 2005, Mr Jones made a submission to the effect that if the court made the order as requested by the applicants, “no indication of the form of [NH]’s original name will appear on his new birth registration.”

14 Secondly, with reference to the spelling of NH’s birth name, the plaintiffs submit that as it reads like a colloquial English word with negative and insulting connotations, it would provide a source of distress to NH as he grows up. In his affidavit, Mr Jones responded that it was the applicants’ responsibility to teach the community, their friends and family the correct pronunciation of NH’s name. He submitted there was nothing that could be considered offensive when NH’s name was correctly pronounced.

15 Thirdly, the plaintiffs pointed out that in order to preserve the child’s identity, and particularly a connection with his birth mother, they proposed to preserve his whole birth name, not merely his given names at birth, as additional given names.

16 In a case like this it is for the plaintiff to show that there are special reasons why an order changing the child’s given name(s) should be made, not for the respondent to proffer special reasons why the order should not be made. I consider that, in combination, these are “special reasons, related to the best interests of the child” for the purposes of s 101(5), justifying an order changing NH’s given name. In the ordinary course, it may be ideal for a child to retain its birth name. However in this situation there are two circumstances that justify classifying the plaintiffs’ reasons as “special”.

17 First, this case is special in that NH is the applicants’ second adoptive child from Korea, and the first child has a Western first name given to him under the prior legislation (the Adoption of Children Act 1965 (NSW)). This is a transitional case and accordingly not a routine application under the current legislation. In my opinion it would be potentially divisive of the family unit to have two young children of similar age, both adopted from the same cultural heritage, growing up with names from different cultures. Retaining the child’s birth name as a second name balances the competing interests of avoiding division within the family unit, and preserving the children’s sense of identity and cultural heritage. I do not consider the submission contained in Mr Jones’ affidavit persuasive. The order sought by the applicants retains NH’s full birth name as given names, and would thus appear on his new birth registration.

18 Secondly, the fact that NH’s name is spelt the same as an English word that, according to the Macquarie Dictionary, connotes surly, aggressive behaviour or a person who lives off the proceeds of prostitution, is also reason to prefer a Western name chosen by the family over the child’s existing given name. As Barrett J held in Application of RM and ESM re Y, supra at [21]:

“I accept that anything likely to be productive of distress to a child in formative and later years is readily capable of being regarded as a ‘special reason’ related to ‘the best interests of the child’. In Re M and Anor [2004] NSWSC 203; (2004) 31 Fam LR 415, Campbell J took account of the fact that the original Korean name, when spoken by an English speaker, sounded like an English word used in an affectionate but patronising way in relation to young women and girls. The child there was a boy. His Honour acknowledged that use of the Korean name would entail ‘a real risk it would be a source of playground jokes at his expense’. This, to my mind, would have amounted to a special reason related to the best interests of the child for the purposes of s.101(5).”

19 I consider that these comments are apposite notwithstanding the delegate’s submission regarding the parents’ obligation to teach the community of the proper pronunciation of NH’s name. If NH’s given names remain unchanged, his parents’ best efforts at enlightening friends and family would not necessarily prevent the gamut of insults that might befall him as he grows up.

20 The special reasons put forward by the plaintiffs in their reply submissions justify an order under s 101 changing NH’s given names. In my opinion, the matters raised in the delegates’ affidavit do not detract from the force of these considerations.

21 I will make the orders sought in chambers.

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LAST UPDATED: 29/03/2005