Adoption of SRK CLK and ASK [2013] NSWSC 1968 (19 November 2013)

Last Updated: 11 March 2014

Supreme Court New South Wales

Case Title:	Adoption of SRK, CLK and ASK
Medium Neutral Citation:	[2013] NSWSC 1968
Hearing Date(s):	Chambers
Decision Date:	19 November 2013
Jurisdiction:	Equity Division - Adoption List
Before:	Brereton J
Decision:	Decline to amend orders
Catchwords:	FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - where order made approving name of child in circumstances where child's current wishes were inadvertently not before the court - whether "exceptional" circumstances justifying discharge of adoption order - no basis for discharging order so as to correct error FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - where no order sought or made approving name change of child over the age of eighteen years upon making adoption order - whether order should now be made - proper mechanism for a name change in the circumstances is deed poll
Legislation Cited:	(NSW) Adoptions Act 2000, s 93, s 101
Cases Cited:	DG re JMS and LJS [2012] NSWSC 786
Category:	Principal judgment
Parties:	Director-General, Family and Community Services (applicant)
Representation
- Counsel:	Counsel:
- Solicitors:	Solicitors: Crown Solicitors' Office (applicant)
File Number(s):	A202/2012

JUDGMENT

1. On 26 June 2013, on the application of the plaintiff Director-General, I made orders for the adoption of three children in favour of the proposed adopting parents, and pursuant to (NSW) Adoption Act 2000 s 101(1)(b) made orders approving the names of two of them (A and C), the third (S) having attained eighteen years of age. By letter of 15 October 2013, the plaintiff requests that the Adoption Orders made in respect of A and S be amended.

Child "A"

2. By notice of motion filed 16 October 2013, the Director-General seeks an order that the Adoption Order in respect of A be discharged pursuant to s 93(4)(b), and that a new adoption order be made approving the names "A L" as the child's given names (in lieu of "A-L S" in the original order).

3. Valid reasons for A to have the proposed names have been advanced. However, the Court approved the names that it was asked to approve in the Summons and draft Order, and in the consent of A that was placed before the Court. There appears to have been an oversight in respect of some wishes expressed by A when giving a later consent, which was not placed before the Court.

4. Section 93(4) provides for the Court to make a discharge order, upon notice to each concerned person, if it is satisfied that (a) the adoption order, or any consent to adoption, was obtained by fraud, duress or other improper means, or (b) there is some other exceptional reason why the adoption order should be discharged.

5. As presently minded, I am not inclined to think that there is exceptional reason why the adoption order should be discharged. It may be possible to amend the order under the slip rule, but as this has not at this stage been sought I have not fully considered this.

Child "S"

6. No order was made in respect of S's name because she was over 18.

7. Section 101(1)(a) provides that on the making of an adoption order, an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made.

8. In DG re JMS and LJS [2012] NSWSC 786, I took the view that the Court could nonetheless "reflect" such a child's "decision" for the purpose of s 101(1)(a) in the adoption order, thereby dispensing with the need for a Deed Poll (the availability of which is otherwise preserved by s 101(6)).

9. No order was sought in respect of S's name. I cannot accept that there was a typographical error, as no order at all was sought in respect of her name - appropriately given her age and the provisions of s 101(1)(a).

10. I am inclined to the view that if S wishes to change her name, the appropriate course is Deed Poll.

Conclusion

11. If the plaintiff wishes, I will appoint a time for submissions. Otherwise, at present I decline to amend the orders in the manner sought.

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