Re ASK and the Adoption Act 2000

1. [1]

   HIS HONOUR: In these proceedings, the Court is concerned with the future of a female child, ASK, who was born in March 2011, and who is now 6 years old. The Applicant on the Summons is the New South Wales Department of Family and Community Services (“The Applicant”).

2. [2]

   For the sake of preserving the anonymity of the parties, as is required by s 180 of the Adoption Act 2000 (NSW) ("the Act") and because it is an offence to publish the name, or the particulars relating to the identity, of any person by, or in relation to whom, an application for a declaration of parentage has been sought (Status of Children Act 1996 (NSW) (“the SC Act”), s 25), I shall refer, somewhat impersonally, to the child as "ASK", to the couple in whose favour the adoption order is sought, as "BCB” and “KM", to the mother of the child, as "NHM", and to the person who is said to be the father of the child, as "D-NW”. The medium neutral citation has been anonymised accordingly.

3. [3]

   The Dictionary to the Act defines the expression “parties to an adoption” to mean: (a) the child; (b) birth parent or birth parents who have consented to the child’s adoption; (c) person or persons selected to be the prospective adoptive parent of the child; (d) the Secretary of the Department; (e) the appropriate principal officer. In this case, the only parties are the Secretary, New South Wales Department of Family and Community Services and D-NW. D-NW has not played any part in the proceedings, although there will be reference to his involvement with representatives of the Applicant.

4. [4]

   In the Summons for Adoption, filed on 31 October 2016, the Applicant seeks:

5. [5]

   On 8 May 2017, the applicant filed an Amended Summons adding;

6. [6]

   It can be seen, therefore, that there are four parts to the proceedings, namely: the determination of paternity of the child; whether an adoption order under s 23 and Part 9 of the Act should be made; whether the consent of the natural mother under s 67(1) of the Act should be dispensed with; and whether there should be a change of the child’s name.

The Proceedings

1. [7]

   As stated, D-NW was named as the Defendant but he did not file an Appearance. As will be demonstrated, he signified his consent to some of the relief being granted.

2. [8]

   NHM was not named as a Defendant, or formally joined, as a party to the proceedings. She has played no part at all in these proceedings for reasons to which I shall later refer.

3. [9]

   Each of BCB and KM, are not parties to the proceedings. However, each has given evidence, by affidavit, relied upon by the Applicant in support of the relief sought in the Summons.

4. [10]

   Even though it is often unnecessary to deliver written reasons for judgment in a case where there is no contested hearing, no person appears to defend the proceedings, and the Applicant does not seek written reasons, I considered that the Court should do so in view of the issues in this case.

Service of Documents Relating to the Hearing

1. [11]

   The Applicant has encountered difficulty contacting NHM since 2012.

2. [12]

   On 2 July 2013, contact was attempted with NHM but there was no response.

3. [13]

   On 8 May 2014, NHM was able to be contacted by telephone. Discussion took place about the procedures and legal and emotional effects of adoption. She stated that she was open to giving consent to ASK’s adoption but other issues prevented her from dealing with that issue at the time. NHM accepted that ASK was receiving “excellent care” and that adoption was in ASK’s best interests.

4. [14]

   On 8 May 2014, a copy of the Mandatory Written Information on Adoption was sent, by email, to NHM and an appointment was made for her to meet with a representative of the Applicant, on 16 June 2014, to discuss the Mandatory Written Information. (A copy of the Mandatory Information had been sent to her, by registered post, on 7 December 2012, but it was returned, unopened, on 29 January 2013.)

5. [15]

   On 14 June 2014, a telephone message was left for NHM confirming the meeting, but NHM responded, by text message, stating that she could not attend and would call back. Further contact occurred on 25 June 2014, but it was not possible to arrange counselling, or to obtain a written consent for ASK’s adoption, from her.

6. [16]

   Since that time, representatives of the Applicant have experienced much difficulty meeting with NHM in person. For example, as outlined in the affidavit of the Delegate of the Applicant, Ms C L Davis:

7. [17]

   On 6 October 2016, the Caseworker Consultant, Ms T Bonnici, spoke with NHM, who stated words to the effect that she did not want anything to do with the adoption of ASK. Ms Bonnici telephoned NHM again on 7 October 2016 and on 11 October 2016, but each call went unanswered and she was unable to leave a voicemail message for NHM.

8. [18]

   On 4 November 2016, a process server, instructed by the Crown Solicitor, on behalf of the Applicant, attended NHM’s home address. He was informed that NHM no longer resided there.

9. [19]

   On 11 November 2016, Ms Bonnici received a response from Centrelink in relation to a request for information about NHM’s residential address recorded by Centrelink, pursuant to Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). This request confirmed NHM’s address to be the address at which the process server had attended.

10. [20]

    When contacted by telephone on 22 November 2016, the maternal grandfather of ASK provided a different residential address for NHM to the Applicant.

11. [21]

    On 23, 24, 27 and 30 (on 2 occasions) November 2016, and then again on 5, 8 and 11 December 2016, another process server attended the new address and attempted service, again, unsuccessfully.

12. [22]

    On 5 December 2016, Ms Bonnici contacted the maternal grandfather of ASK, who indicated that NHM was not likely to open her door to anyone. On 12 December 2016, Ms Bonnici spoke to the maternal grandfather again. During this conversation, the maternal grandfather stated some concerns about NHM’s physical, and mental, health, and advised that she was refusing to meet with anyone to enable service of the required Notice. He repeated his concerns regarding the impact that receipt of the Notice documents might have on NHM. He agreed to speak to NHM regarding the attempts to provide her with the notice of ASK’s adoption.

13. [23]

    Ms Bonnici has not been contacted by NHM at any time since her conversations with the maternal grandfather of ASK.

14. [24]

    I am satisfied that NHM has chosen to play no part in the determination of these proceedings. However, she has not formally consented to the order for adoption, or to the other relief, that is sought. In the circumstances, I shall deal with the matter on the evidence available.

15. [25]

    There has been no recent difficulty experienced regarding service of documents upon D-NW.

16. [26]

    On 31 July 2013, a copy of the Mandatory Written Information was sent by post to the two known addresses for D-NW. One was returned on 26 August 2013 and the other was accepted by him, but there was no response from him to requests to make contact.

17. [27]

    On 12 February 2015, D-NW was handed a copy of the Mandatory Written Information in person.

18. [28]

    On 6 April 2016, D-NW attended a meeting at the Child and Family District Unit, in Strawberry Hills, Sydney, to discuss ASK’s proposed adoption, during which he was told what an Adoption Plan was and how it would affect his relationship with ASK. He stated that he intended to sign the Adoption Plan and to consent to the adoption of ASK.

19. [29]

    On 4 May 2016, in accordance with the provisions set out in s 63 of the Act, D-NW was counselled by Mr A McMahn, a Registered Counsellor.

20. [30]

    On 13 May 2016, in accordance with the provisions set out in s 53 of the Act and Clause 80 of the Adoption Regulation 2015, D-NW signed an Instrument of Consent to ASK’s adoption.

21. [31]

    On 25 May 2016, a notice of expiry of the revocation period was sent to D-NW by post, pursuant to s 74 of the Act.

22. [32]

    On 23 June 2016, D-NW was telephoned and he was reminded that the revocation period for his consent was about to expire. He confirmed that he had not changed his decision to consent to the adoption of ASK.

23. [33]

    I am satisfied that D-NW has consented to the adoption of ASK.

Background Facts

1. [34]

   A comprehensive account of the history is contained in the affidavits filed for the Applicant. It is not necessary to repeat all of that history. The following facts are clearly established.

2. [35]

   KM was born in Perth, Scotland, in October 1969, whilst BCB was born in Campsie, New South Wales, in March 1964.

3. [36]

   KM and BCB were married in July 2001. They have one biological child, namely ERM, who was born in November 2002.

4. [37]

   On 21 July 2011, some 5 months after the birth of ASK, the Children’s Court of NSW, at Bidura, made final orders providing for ASK to be placed under the parental responsibility of the Minister for Family and Community Services until she attained the age of 18 years, pursuant to the Care Act. The orders include a notation that contact with the birth family would occur on no less than 4 separate occasions per year to be supervised by the Applicant. These orders remain in effect.

5. [38]

   KM and BCB are “authorised carers”. The Dictionary to the Act defines "authorised carer" as including any person who has care and responsibility for a child under out-of-home care arrangements made under the Care Act. Section 135A(1) of the Care Act, relevantly, provides that “statutory out-of-home care is out-of-home care that is provided in respect of a child or young person for a period of more than 14 days, pursuant to a care order of the Children's Court”. The reference to “those carers” is, relevantly, a reference to the persons who have been caring for ASK and who seek to adopt her, namely KM and BCB: Director-General, NSW Department of Family and Community Services; re D [2012] NSWSC 223, per Ball J, at [17].

6. [39]

   ASK was placed into the care of KM and BCB, when she was 5 months old, in August 2011. She has remained living with them and with ERM, continuously, since that time.

7. [40]

   NHM was born in May 1984. D-NW was born in January 1979.

8. [41]

   Whilst NHM was identified on ASK’s Birth Certificate as ASK’s mother, D-NW was not identified thereon as ASK’s father. No father was recorded on ASK’s Birth Certificate. However, there is evidence that D-NW and NHM were in a relationship at the time of ASK’s conception. He is recorded as being the father of EB, another child born to NHM in November 2004 (or 2006), on EB’s Birth Certificate.

9. [42]

   D-NW has stated that ASK is his child. He has completed documents required to have his name included on ASK’s Birth Certificate.

10. [43]

    On 13 March 2015, D-NW signed a Statutory Declaration in support of his application to the NSW Registry of Births, Deaths and Marriages to have his details added to ASK’s Birth Certificate.

11. [44]

    On 21 May 2015, D-NW sent a letter to ASK introducing himself and acknowledging his paternity. Since June 2015, he has engaged in regular contact with ASK. It is usually on a monthly basis.

12. [45]

    Since November 2011, ASK has been in regular contact with EB, her brother. It continues on a fortnightly basis, and coincides with EB’s visits to their maternal grandparents.

13. [46]

    On 22 November 2016, D-NW was served with a Notice of Application for Declaration of Parentage (under s 21 of the SC Act), a copy of the Summons filed in these proceedings, and a copy of the Adoption Plan for ASK. On 15 December, 2016, D-NW signed the Consent to Declaration of Parentage.

14. [47]

    I am satisfied that D-NW has consented to the adoption of ASK by KM and BCB.

15. [48]

    Since coming into care, ASK’s contact with NHM has been virtually non-existent. There was a period of contact between 8 April 2011 and 15 June 2011 but not since then. It has proven impossible to obtain confirmation from her of any contact arrangements in the future.

16. [49]

    At the date of these reasons, NHM, still, has not consented to the adoption of ASK by KM and BCB.

17. [50]

    Generally, other maternal family members (the parents and sister of NHM) support the adoption of ASK.

Formal Matters

1. [51]

   Next, I set out some of the formal factual matters that must be proved by the Applicant, which I am also satisfied have been established:

Issue of Paternity

1. [52]

   Under section 21(1)(d) of the SC Act, the Applicant is authorised to bring an application for a declaration of parentage.

2. [53]

   Section 19(2) of the Births Deaths and Marriages Registration Act 1995 (NSW) provides that if any court makes a finding about a child's parents, the court may order inclusion of registrable information about the parents in the Register. Section 20 of that Act makes provision for alterations of details after the birth of a child has been registered.

3. [54]

   In Farnell v Penhalluriack (No 2) [2008] VSC 214, Bell J, at [4], wrote (omitting citations):

4. [55]

   Section 13 of the SC Act gives rise to a rebuttable presumption of paternity arising from a formal acknowledgment signed by the putative father, which states that he is the child’s father. Section 13(1) provides the following:

   1. (1)

      A man is presumed to be the child’s father if:

5. [56]

   In this case, D-NW has signed the instrument acknowledging that he is ASK’s father and the instrument has not been annulled or otherwise set aside. Furthermore, he has stated that he is ASK’s father and has acknowledged this to her.

6. [57]

   All of the available evidence to which I have referred, as well as other evidence that I have read, clearly establishes the paternity of ASK. I am satisfied that D-NW is the father of ASK. I shall so declare accordingly.

7. [58]

   The importance of having a birth father’s name added to a child’s birth certificate for that purpose was acknowledged by Brereton J in Adoption of BS (No 3) [2013] NSWSC 2033, where his Honour noted, at [100], that:

8. [59]

   Section 7 of the Act specifically provides that one of the objects of the Act is to ensure that adoption law and practice assist a child to know and have access to his, or her, birth family and cultural heritage. It cannot be doubted that it is important for ASK to know her true identity and origins. The concept of identity must include the recognition of relationships between a child and her, or his, parents.

9. [60]

   As was pointed out by Nicholson J in H, AM v L, L [2013] SASC 7, at [83]:

10. [61]

    I do not have any doubt that it is in ASK’s best interests for the Registrar of Births, Deaths and Marriages to be informed of the identity of ASK’s birth father, and for this to be reflected on ASK's original Birth Certificate, and I shall so order.

The Legal Framework Regarding Adoption - Statutory Framework and Principles

1. [62]

   I have dealt with the statutory framework and the principles in another case in some detail: Director General Department of Human Services; Re M [2011] NSWSC 369. I shall not repeat all that I said there. However, in view of the importance of this case to the parties, and to KM and BCB, I shall repeat some of the matters that are particularly relevant to this case.

2. [63]

   Adoption is purely a creature of statute. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues unchanged. New family ties are created which approximate blood ties.

3. [64]

   Following adoption, the child ceases, in law, to be a child of her, or his, birth mother and birth father and the brother or sister of his or her siblings. Thereafter, the child is regarded, in law, as the child of the adoptive parent or adoptive parents, and the adoptive parent, or adoptive parents, are regarded, in law, as the parents of the adopted child. An adoption order made by the Court gives sole parental responsibility for a child to the adoptive parents: s 95(1) of the Act.

4. [65]

   Adoption will be an extremely important step in a child’s life, which will determine her, or his, identity and family relationships throughout her, or his, remaining life. Thus, the making of an order must be considered, not as a means of determining with whom a child is to live, but as a way of making a child legally part of a new family, and severing any legal relationship with her or his birth family.

5. [66]

   As has been pointed out in regard to the effect of an adoption order, in Oxfordshire County Council v X [2010] EWCA Civ 581; [2010] Fam Law 790 at [4]:

6. [67]

   Section 7 sets out the objects of the Act and relevantly include:

7. [68]

   Under s 8(1)(a) of the Act, the “paramount consideration” in making a decision about the adoption of a child is the best interests of the child, both in childhood and in later life.

8. [69]

   As I noted in Director General Department of Human Services; Re M at [89]-[90] (cited with approval by Bergin CJ in Eq in Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926 at [93]):

9. [70]

   When making a decision about the adoption of a child, the decision maker is also to have regard to other principles specified in s (8)(1), including, relevantly:

10. [71]

    In Adoption of KH [2015] NSWSC 274, Brereton J noted at [20], that:

11. [72]

    Section 8(2) of the Act requires the Court to have regard to the principles at s 8(2)(a) – (k) when determining the best interest of the child, namely:

12. [73]

    Section 52 of the Act provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age and who has not been previously adopted unless consent has been given by each parent of the child. Consent is not required in a number of circumstances, including, but not limited to, where the Court has made a consent dispense order: s 54.

13. [74]

    Section 56 of the Act also provides for the birth mother to be given an opportunity to consent.

14. [75]

    There is no signed "instrument of consent" from NHM (s 61 of the Act).

15. [76]

    Section 66 of the Act provides:

16. [77]

    In certain circumstances, the Court can make a consent dispense order, dispensing with the requirement for consent to an adoption. Relevantly, s 67 of the Act confers a power on the Court to make a consent dispense order in relation to the requirement for consent by a parent if the Court is satisfied of certain matters.

17. [78]

    White J (as his Honour then was) explained in Re K & The Adoption Act 2000 [2005] NSWSC 858 at [21]:

18. [79]

    The Applicant has referred to s 67(1)(a) of the Act as a ground for making a consent dispense order, submitting that the Court should be satisfied that NHM cannot, after reasonable inquiry, be found or identified.

19. [80]

    On the evidence that I have read, I am unable to be so satisfied. As the submissions state:

20. [81]

    “Engagement” is not what the sub-section requires. It seems to me that other enquiries could be conducted to locate NHM, including making further enquiries of each of her mother and father, and, perhaps, Centrelink (again).

21. [82]

    However, the Applicant also relies upon s 67(1)(d), which relevantly provides that:

22. [83]

    The inclusion of s 67(1)(d) in the Act reflects a policy decision that once a child has, by judicial decision, been removed from her, or his, birth parents, and placed in permanent out-of-home care, the rule that legal parental relationships are not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption: Adoption of KH, at [62].

23. [84]

    In Re Adoption of RCC [2015] NSWSC 813, Brereton J made the following remarks, at [11] and [17], with respect to the history and rationale for s 67(1)(d):

24. [85]

    In Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, Slattery J wrote, at [72]:

25. [86]

    ln this case, KM and BCB are the authorised carers of ASK, and she has been in their care for almost 6 years, since she was five months old. It is clearly a stable relationship. The evidence establishes that ASK is developing into a healthy and happy child under their care. A reasonable amount of time has passed, so that there is a level of secure and robust attachment between KM and BCB and ASK.

26. [87]

    Section 67(2) further provides that the Court must not make a consent dispense order unless satisfied that to do so is in the best interests of the child.

27. [88]

    ASK, on the evidence, seems to have a sense of strong family identity. KM and BCB are committed and loving parents, and ASK has her primary attachment to them. There is no prospect of restoration to NMH. An adoption order will confirm and formalise ASK’s status as a part of the only family she has ever known.

28. [89]

    Thus, I am satisfied, on the evidence, that the adoption of ASK by KM and BCB will promote ASK’s welfare. I am prepared to, and shall, make a consent dispense order, dispensing with the consent of NHM.

29. [90]

    Section 70(1)(b) of the Act permits the Court to make a consent dispense order in conjunction with an adoption order.

30. [91]

    Notice of the intention to apply for an order dispensing with consent is required: s 72(1)). The Applicant has endeavoured to provide such notice to NHM within the relevant time period but she does not wish to engage. I consider, in the particular circumstances of this case, that it is desirable to make a consent dispense order without notice of the application having been given to NHM: s 72(2)(c) of the Act.

31. [92]

    For the purposes of s 88, the only person who is required to consent to the adoption and who has not given consent is NHM. Even if I did not consider, in the particular circumstances of this case, that it is desirable to make a consent dispense order without notice of the application having been given to NHM, I would be prepared to make an order, under s 88(4) of the Act, dispensing with the giving of such notice to her.

32. [93]

    For the purposes of s 87 of the Act, the application is made by the Secretary. The Minister, who has parental responsibility, has, by an authorised delegate, consented.

33. [94]

    The Court may not make an order for the adoption of a child unless a report, in writing, concerning the proposed adoption has been provided to the Court: s 91(1) of the Act. A Confidential Affidavit has been provided. The author of the report has the requisite delegation to prepare that report.

34. [95]

    Under s 90(1)(a) of the Act, an adoption order cannot be made unless the Court is satisfied that the child’s best interests will be promoted by the adoption. Section 90(3) provides that adoption must be “clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child”.

35. [96]

    In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J, at [14], stated that s 90(3) requires:

36. [97]

    Brereton J, at [15], reiterated the principles that his Honour had previously expressed in Adoption of NG (No 2) [2014] NSWSC 680 at [16]-[17]:

37. [98]

    In Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926, Bergin CJ in Eq, similarly explained, at [99], that:

38. [99]

    In reaching the conclusion, “a global, holistic evaluation of the options available for the child's future before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare” should be undertaken: Re G [2013] EWCA Civ 965.

39. [100]

    In Adoption of SVS [2015] NSWSC 2043, Brereton J wrote, at [25]-[28]:

40. [101]

    I am satisfied that, taking into account all relevant matters referred to in s 8 of the Act, and in particular the attitude of each of KM and BCB to ASK, and to the responsibilities of parenthood, the nature of the relationship of ASK with each of them, and the suitability and capacity of each of them to provide for the needs of ASK, including her emotional and intellectual needs, the best interests of ASK would be promoted by her adoption by KM and BCB.

41. [102]

    In this case, I am also satisfied that adoption will provide ASK with the security of belonging, permanently, in the family who is committed to her and which is able to meet her needs. That is far preferable to the only realistic alternative, which is that she simply remain in the care of KM and BCB, without the security and sense of belonging that adoption will bring. ASK’s legal status will be brought into conformity with what has been her reality almost since her birth. ASK identifies exclusively with KM and BCB as her family, given the role of each in her life to date. Their family provides a far greater component of her identity than her maternal origins.

42. [103]

    No doubt, ASK has the same general physical and emotional needs of children of her age, requiring a loving, stable and supportive home, where she is kept safe, and where these needs will be met. ASK will be a member of BCB and KM’s family, not only during childhood but for life, a situation which would not otherwise necessarily pertain.

43. [104]

    As has been noted in the s 91 report:

44. [105]

    For these, and the other reasons set out above, an adoption order will be made.

The Adoption Plan

1. [106]

   As described in s 46 of the Act, an "adoption plan" is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to:

2. [107]

   It has been said that “a significant element in meeting the identity needs of a child who does not reside with his or her birth family is birth parent contact”: Adoption of NG (No 2), per Brereton J, at [59].

3. [108]

   An Adoption Plan that outlines a proposal for post adoption family contact with D-NW has been referred to. The Adoption Plan, in each case, has been signed by D-NW and by the Applicant’s delegate. It is, therefore, an "adoption plan" within the meaning of the Act.

4. [109]

   Where a birth parent does not consent to the adoption of the child, under s 46(2A), the birth parent must “as far as possible” be “given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child”.

5. [110]

   Section 50 of the Act provides that a Court may register an adoption plan if it is satisfied that the plan does not contravene the adoption principles, the parties to the adoption understand the provisions of the plan and have freely entered into it, and the provisions of the plan are in the child’s best interests. (See also s 90(2) of the Act).

6. [111]

   In Re JLR, Bergin CJ in Eq described the history of the legislation governing adoption plans as follows (at [116]-[118]):

7. [112]

   It is important to recognise that a child's relationship with her, or his, birth parents does not cease upon the making of an adoption order. All that ceases is the legal parental relationship, which is effectively transferred to those who are exercising and discharging the legal responsibilities of parenthood. Nothing can take away the biological link that exists, and the emotional and psychological ties, such as they are, and will be sustained by birth parent contact.

8. [113]

   Furthermore, arrangements for birth parent contact are relevant to whether an adoption order should be made, because they bear on whether the child's identity needs will be adequately met, and thus whether adoption is in the child's best interests: Adoption of KH, at [41].

9. [114]

   I am satisfied that the arrangements proposed in the Adoption Plan are in ASK’s best interests and proper in the circumstances.

10. [115]

    In any event, as Brereton J has pointed out many times, “adoption plans are not set in stone, and a birth parent retains the ability to apply to the court for contact or for a variation of the adoption plan, if that becomes necessary in the future”: Adoption of KH, at [43].

Change of Name

1. [116]

   Section 101(1)(b) of the Act provides that on the making of an adoption order, a child under 18 years of age is to have “as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents”.

2. [117]

   Under s 101(2) of the Act, before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.

3. [118]

   In the present case, ASK is too young for the Court to give weight to her wishes. However, as noted by Brereton J in Adoption of RCC and RZA at [104], the principles set out in s 8 should also be considered by the Court, including relevantly s 8(1)(e) which states that “the child’s given name or names … should, as far as possible, be identified and preserved”.

4. [119]

   His Honour continued at [105]:

5. [120]

   The Court is prohibited from approving a change in the child’s given name(s) unless it is satisfied that to do so is in the child’s best interests: s 101(5) of the Act. For these purposes, the addition of a further given name amounts to a change of name: Director-General, Department of Community Services v Adoptive Parents [2005] NSWCA 385, at [39]–[41]; Re KSE & Adoption Act 2000 [2006] NSWSC 92, at [17]; Adoption of GWL [2013] NSWSC 1527, at [34].

6. [121]

   In Application of H & H, child JW [2011] NSWSC 93; (2011) 45 Fam LR 681, I wrote, at [38] – [42]:

7. [122]

   What I wrote was followed by Ward J (as her Honour then was) in Application of AW and IW Re Children J and J [2011] NSWSC 1529 and in Application D and D; Re Y [2013] NSWSC 1477.

8. [123]

   In this case, ASK is too young to express any wishes, or considered views, as to the change of her name, although she has stated that she will have the surname “M” (KM’s surname). She is also too young to have identified with her current surname. She will retain the names given to her by NHM, thereby retaining a sense of personal identity as well as assisting in retaining the link to NHM.

9. [124]

   As stated, s 8(1)(e) of the Act requires a decision maker to have regard to the principle that the child's given name, or names, should, as far as possible, be identified and preserved. That objective is made subject, by the language of s 8(1) itself, to the "paramount consideration" of "the best interests of the child, both in childhood and in later life" as set out in s 101: Application of O and P [2005] NSWSC 1297 at [105].)

10. [125]

    By the change of surname, she will share the same surname as KM and BCB and ERM. This will provide her with a sense of security and stability and foster the family relationship and identity now and in the future. It will also demonstrate and reinforce the commitment of KM and BCB to ASK, which is likely to be of benefit to ASK.

11. [126]

    ASK does currently have a middle name. The addition of additional name will also provide her with a sense of belonging. The proposed name changes seem to me to be clearly desirable in ASK's best interests and accordingly, the orders sought in regard to the change of ASK’s name will be made.

Conclusion

1. [127]

   Although the declaration and orders, when entered, will refer to the names of the relevant persons with precision, and completely, the Court for the purposes of these reasons:

   1. (1)

      Declares pursuant to Status of Children Act 1996 (NSW), s 21(2), that D-NW is the father of ASK.

   2. (2)

      Orders pursuant to Births Deaths and Marriages Registration Act 1995 (NSW), s 19(2), that D-NW be included as the father of ASK in the Register of Births Deaths and Marriages.

   3. (3)

      Orders pursuant to Adoption Act 2000 (NSW), s 67(1)(d), that the consent of the child's natural mother, NHM, be dispensed with.

   4. (4)

      Orders, pursuant to Adoption Act 2000 (NSW), s 88(4), that the Court dispense with the giving of notice on NHM.

   5. (5)

      Orders for the adoption of the child, ASK, in favour of the adopting parents, KM and BCB.

   6. (6)

      Orders that the name “M” as the surname and “ASKM” as the given names of the child be approved.

2. [128]

   I am satisfied that publication of my reasons for Judgment in this case will not result in contravention of s 25 of the SC Act. I authorise the publication of the reasons for Judgment, but of no other document relating to the proceedings.