Re JM

[2005] NSWSC 976

CITATION:	Re JM [2005] NSWSC 976
HEARING DATE(S):	Application in Chambers
JUDGMENT DATE :	26 September 2005
JURISDICTION:	Equity Adoption List
JUDGMENT OF:	Campbell J
DECISION:	Name change approved. No order made dispensing with notice to, or consent of, alleged guardian of child

CATCHWORDS:	FAMILY LAW - adoption - name of child - change to name of child - whether adoption under Adoption of Children Act 1965 or Adoption Act 2000 - whether any need to dispense with notice to, and consent of, an alleged guardian of the child
LEGISLATION CITED:	Adoption Act 2000 Adoption of Children Act 1965
CASES CITED:	Application of MJR & MJR - Child KHB [2003] NSWSC 937 Re K & the Adoption Act 2000 [2005] NSWSC 858
PARTIES:	Undisclosed
FILE NUMBER(S):	SC 80111/05

LOWER COURT JURISDICTION:

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

CAMPBELL J

26 SEPTEMBER 2005

80111/05 RE: JM

JUDGMENT

1 HIS HONOUR: This is an application to adopt a boy who was born in Bolivia in October 2001. He was abandoned by his mother less than one month after his birth, and shortly thereafter was placed into a church-run home.

2 He has been in the custody of the applicants since a date in April 2002.

3 At the time the child came to the church home, he had two forenames. The first is a recognisably Spanish name. The second was a name which is the same as the forename of the man who the child’s mother claimed was the father of the child. That second name is a name which is sometimes used as a surname, and sometimes as a forename in Australia.

4 The applicants wish the child to be known by three forenames. The first forename is the name which was originally the second forename of the child. The second proposed forename is a name commonly used in Australia as a forename, which is the name of the male applicant’s father. The third proposed forename is the name which was the first of the original forenames of the child.

5 An order of a Bolivian court for the adoption of the child by the applicants was made in May 2002. That order included a requirement that the birth of the child be registered in the appropriate Bolivian registry, with the child identified by the name by which the applicants wish him to be known.

6 A Bolivian birth certificate, and a Bolivian identity card, issued for the child in May 2002, with him known by the name which the applicants wish him to be known by.

7 Since his arrival in Australia, later in May 2002 he has been known consistently by the name which the applicants wish him to have.

8 Thus, the child has been known by the name which the applicants wish to have approved since he has been a little more than six months old.

9 The Adoption Act 2000 commenced on 1 February 2003. Its transitional provisions (in Schedule 3, clause 8) provide that when a child has been placed with a view to adoption by a prospective adoptive parent or parents, an application to adopt the child by that parent or those parents is to continue to be dealt with under the Adoption of Children Act 1965. Thus, the policy concerning name changes on adoption contained in the Adoption Act 2000 is only of indirect relevance: Application of MJR & MJR – Child KHB [2003] NSWSC 937. The discretion of the Court concerning approval of a name change is not confined by anything in the 1965 Act. That discretion is, of course, exercised by reference to what is in the best interests of the child.

10 In the present case, it is appropriate to approve the change of name. Apart from the child having been known by this name for as long as he is likely to be able to remember, the name change still retains both of his original forenames, even though their order has been altered.

11 As well, the applicants have adopted another child from Bolivia, who was born in May 1994 and adopted in December 1997. That child is known by forenames which have nothing recognisably Spanish about them at all.

12 Further, the affidavits filed for the Department, while they consistently refer to the child by his two original forenames, do not state that the Department opposes the name change.

13 The applicants sought orders dispensing with the consent of, and the giving of notice to, “the child’s guardian, the President (name unknown) of the Secretaria Nacional de Servicio Social in La Paz, Bolivia.” I am not satisfied that that person has ever been the guardian of the child. In any event, even if he or she had been the guardian of the child, the orders sought are inappropriate, for reasons analogous to those given by White J in Re K & the Adoption Act 2000 [2005] NSWSC 858.

14 Otherwise, I shall make the orders sought.

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