Application of JMB and EAB - Child KTH

[2006] NSWSC 1357

CITATION:	Application of JMB and EAB - Child KTH [2006] NSWSC 1357 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Application in Chambers
JUDGMENT DATE :	6 December 2006
JURISDICTION:	Equity Division Adoptions List
JUDGMENT OF:	Barrett J
DECISION:	Adoption order made. Change of given names approved.
CATCHWORDS:	ADOPTION - non-citizen child more than one year old - change of given names sought - whether special reasons related to best interests of child shown
LEGISLATION CITED:	Adoption Act 2000, ss.101(1), 101(5)
CASES CITED:	Application of L; re H [2006] NSWSC 801 Director General Department of Community Services v The Adoptive Parents (2005) 64 NSWLR 268
PARTIES:	JMB and EAB - Plaintiffs KTH - Child
FILE NUMBER(S):	SC 84/06
COUNSEL:	Applicants not represented
SOLICITORS:	Applicants in person

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

BARRETT J

WEDNESDAY, 6 DECEMBER 2006

84/06 APPLICATION OF JMB and EAB – CHILD KTH

JUDGMENT

1 The plaintiffs, a married couple, seek an adoption order under the Adoption Act 2000 in respect of a boy aged 2 years and 6 months. The merits of the case are clear. An adoption order plainly should be made.

2 It is, however, necessary to say something about the part of the proposed order that relates to the name of the child.

3 Under s.101(1) of the Act, an adopted child is to have as his or her surname and given names such names as the court, in the adoption order, approves on the application of the adoptive parent or parents. Under s.101(5), the court must not, in a case such as the present (involving a child who is more than one year old or a non-citizen child), approve a change in the given name or names of the child “unless there are special reasons, related to the best interests of the child, to do so”.

4 The child with whom I am here concerned was born in Korea. According to a certificate of birth from Korea which has been put into evidence, the name of the child consists of three words, the first beginning with “K”, the second beginning with “T” and the third beginning with “H”. The certificate does not make it clear which, if any, of the three names is a surname or family name and which name or names are given names. In the end, this does not matter since the order the court is asked to make involves a name consisting of the surname of the adopting parents as the surname of the child and four forenames of which the second, third and fourth are the three to which I have already referred. The adopting parents wish to see a further forename added before the three existing names. That further forename is not a Korean name. It is an Anglicised variant of a Hebrew name found in the Old Testament.

5 In accordance with the decision of the Court of Appeal in Director General Department of Community Services v The Adoptive Parents (2005) 64 NSWLR 268, the court may not, under s.101(5), approve a change in the given name or names of the child unless 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.

6 In this particular case, the special reasons, related to the best interests of the child, upon which the adopting parents rely are set out in their affidavit. They there explain that they already have two adopted children, both from Korea, and that each of those children has what is termed an “Anglo Saxon name” before the pre-existing Korean name or names. The parents go on to say that they wish to have the same naming pattern for the child the subject of this application “to keep the continuity within our family” and to prevent the child “feeling different from” the other two children. To this, the adopting parents, add the observation that the child has been baptised by the names they now ask the court to approve.

7 The circumstances of this case may therefore be seen to be virtually the same as those considered by Palmer J in Application of L; re H [2006] NSWSC 801 – or perhaps this might be considered an even stronger case in that, in the situation before Palmer J, there was only one older child with the same naming pattern; whereas, in the present case, there are two older children. It is clearly in the interests of the child that he should have, in the particular family situation, a pattern of names that does not set him apart from his siblings.

8 I am satisfied that, despite the opposition expressed by the Delegate of the Director-General, the matters put forward constitute special reasons of the kind required by s.105(5). The court will make an order approving the names in the manner the adopting parents seek.

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07/12/2006 - Judgment date on front sheet - Paragraph(s) Front sheet - Judgment date