Adoption of J

1. [1]

   HIS HONOUR: In these proceedings, the Court is concerned with the future of a child, who was born on 12 October 2012. It is an application by the Secretary, Department of Family and Community Services, by its delegate, the Principal Officer of Barnados Australia, seeking a declaration as to the paternity of the child, an order that the person so identified be included in the Register of Births Deaths and Marriages, and an order for the adoption of the child, in favour of a married couple. Other orders sought include orders dispensing with the consent of the child’s birth parents and an order approving the change of his name.

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"), I shall refer, somewhat impersonally, to the child as "J", to the couple in whose favour the adoption order is sought, as "Mr Y and Mrs Y", to the mother of the child, as "Ms R", and to the father of the child, as "Mr P". I shall identify other children to whom reference is made by initials also. I shall refer to the Secretary as the Applicant.

3. [3]

   Barnardos Australia (“Barnardos”) is a designated agency under s 139 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). Since January 2013, Barnardos has had delegated parental responsibility for J, including case management and supervisory responsibility for his out-of-home care placement.

4. [4]

   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.

5. [5]

   The case was a little unusual only in that it included the application for the declaration of paternity and because, although Ms R appeared with legal representation until shortly before the hearing, she then did not appear thereafter. Mr P did not appear at any time.

The Proceedings

1. [6]

   The proceedings were commenced by Summons filed on 18 September 2015, in which Summons only Mr P was named as a Defendant. By amended Summons filed 23 February 2016, Ms R was named as the second Defendant.

2. [7]

   Mr Y and Mrs Y were not named, or formally joined, as parties to the proceedings. They did not file an Appearance or appear at the hearing, other than as witnesses.

3. [8]

   Mr P has not, at any time, filed an Appearance. He did not appear during the hearing and did not, otherwise, signify any consent, or opposition, to the relief being granted.

4. [9]

   Ms R, upon being joined as the second Defendant, filed an Appearance and an affidavit (which was, without objection, adverted to by counsel for the Applicant, and read by me at the hearing). She appeared, by counsel, at the preliminary hearings which were held, first on 27 April 2016 and then again on 15 June 2016. However, on 17 June 2016, Ms R’s solicitor filed a Notice of Intention to File Notice of Ceasing to Act, and on 6 July 2016 filed a Notice of Ceasing to Act. Neither those solicitors, nor Ms R, have played any further part in the Proceedings.

5. [10]

   At the hearing, it was accepted that Ms R does not consent to the adoption of J.

6. [11]

   It can be seen, therefore, that there are four parts to the proceedings, namely: the determination of paternity of the child, J; an adoption order under s 23 and Part 9 of the Act; dispensing with the consent of the natural parents under s 67(1) of the Act; and the change of J's name to add the middle and surname "JY".

Service of Documents relating to the Hearing

1. [12]

   At the hearing, counsel for the Applicant read an affidavit affirmed 21 June 2016 of Deborah May Willick, the Program Manager, Adoptions, at Barnardos, who had also performed some of the casework in relation to J, of her attendance, by arrangement with Ms R on 17 June 2016, when she handed to her a number of documents, including a letter dated 15 June 2016 from the Crown Solicitor’s Office.

2. [13]

   The letter handed to Ms R, amongst other things, confirmed that the hearing of the application was listed before this Court on 14 July 2016; set out the nature of the orders that were to be sought; and identified the telephone number of the author of the letter in the event that Ms R wished to discuss any matter to do with the Proceedings.

3. [14]

   Also included in the documents delivered to Ms R, was a copy of the Maternal Adoption Plan signed by Mr Y and Mrs Y on 4 May 2016 and by Ms L Vihtonen, the Principal Officer, Barnardos Australia, as Delegate of the Applicant on 28 April 2016 (a copy of which was tendered as Ex. C).

4. [15]

   Ms Willick created a File Note dated 17 June 2016, a copy of which was tendered as Ex. A. In that File Note there is a reference to Ms R saying to Ms Willick that she “may attend on the day”.

5. [16]

   Despite being called at the commencement of the hearing, Ms R did not appear. She was called later in the proceedings, again, but she did not appear. On each occasion, Ms Willick looked outside the immediate precincts of the Courtroom but did not see Ms R.

6. [17]

   I am satisfied that Ms R was given notice of the hearing date, and that she has chosen to play no part, or no further part, in the proceedings. However, she has not formally consented to the order for adoption, or to the other relief, that is sought. In the circumstances, the hearing proceeded as an ex parte application.

7. [18]

   There was evidence that on 13 October 2015, Leighton Heald, a senior Community Corrections Officer employed by Wollongong Community Corrections, personally provided to Mr P a copy of the Summons; a document entitled “Notice to Dispense with Consent” and “Notice of Application for Adoptions Order”; a document entitled “Adoption Plan” signed by Mr Y and Mrs Y on 28 August 2015, by the parents of Mr P, on 28 August 2015, and by Ms Vihtonen on 9 September 2015; together with a letter dated 9 October 2015 addressed to Mr P from the Crown Solicitor’s Office identifying the nature of the relief that was to be sought.

8. [19]

   However, there was no specific evidence of service of notice of the hearing date upon Mr P. There is no specific requirement in the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), or in any other relevant regulation, for service – personal or otherwise – on the birth father of notice of the listing of the hearing date of an adoption. Similarly, there is no specific requirement for any particular notice to be provided to the birth father in regard to an application for a declaration for parentage, other than the requirement that the proceedings be commenced by Summons and that the Summons be served.

9. [20]

   The UCPR set out the procedure for service on a defendant in civil proceedings in the Supreme Court. Specifically, UCPR r 10.20 establishes that an originating process must be personally served on a person in any proceedings. Mr P was personally served with the Summons on 13 October 2015.

10. [21]

    The UCPR further prescribes that a defendant may enter an appearance in proceedings by filing a notice of appearance or filing a defence (UCPR r 6.9).

11. [22]

    In the case of proceedings commenced by Summons, the time for a defendant to enter an appearance is on, or before, the return date stated in the Summons (UCPR r 6.10).

12. [23]

    Whilst the Summons of 18 September 2015 filed in the proceedings did not list a return date, the document entitled “Notice to Dispense with Consent” and “Notice of Application for Adoptions Order”, which was personally served on Mr P at the same time as the Summons, stipulated that he had 14 days in which to file a notice of appearance, failing which orders could be made in his absence. Thus, Mr P, who did not enter an appearance, and who has, thereafter, continued to play no part in these proceedings at all, is in default of appearance.

13. [24]

    Relevantly, UCPR r 10.16 also provides that in any proceedings where a document is to be served on a person who is in default of appearance, the mere filing of the document is taken to have the same effect as service of the document on the person, unless the Court orders otherwise (except for any document which is required to be served personally).

14. [25]

    UCPR r 29.7 relevantly provides:

15. [26]

    In relation to UCPR, r 29.7, I wrote, in NSW Trustee and Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681 at [18]–[20]:

16. [27]

    There is nothing to suggest that this rule does not apply to the trial of the proceedings currently before the Court.

17. [28]

    Even though no application was made, I considered whether the trial should be adjourned to give Mr P an opportunity to appear. However, it seemed to me that there would be no utility in doing so for that purpose, in the absence of an explanation why he had not appeared at any time since the Summons was served upon him. There was simply no reason to believe that he would be more likely to appear on the date to which the trial might be adjourned than on any occasion the matter has been before the Court.

18. [29]

    (Because I reserved my decision and because Mr Y and Mrs Y wished to be present at the time of the delivery of reasons, the matter was not concluded by the making of orders at the hearing.)

19. [30]

    In this case, Mr P was properly served with the original Summons setting out the orders sought, including the declaration of parentage, and he has chosen not to participate in the proceedings at any time. There is no evidence that he has engaged, in any way, with the legal representatives of the Applicant or otherwise. Overall, I am satisfied that reasonable attempts have been made, fruitlessly, to have Mr P participate in the proceedings, and that he has made an active choice not to do so.

20. [31]

    The Court is not required to indefinitely delay the completion of the hearing in the hope that a party might change his, or her, mind and appear: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 4. I am satisfied that Mr P was on notice of the proceedings, and that he had been afforded the opportunity to appear in the proceedings and to be heard. He has chosen not to do so. It followed that it was appropriate for the proceedings to be determined in his absence and the hearing proceeded.

Background Matters

1. [32]

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

2. [33]

   Mr Y was born in Wollongong, New South Wales, in August 1970, whilst Mrs Y was born, also in Wollongong, in November 1971.

3. [34]

   Mr Y and Mrs Y were married in October 1997. They have two biological children, namely KBY, who was born in February 2003, and MKY, who was born in January 2005.

4. [35]

   Almost at birth, J was placed under the care and responsibility of the then Director-General of Community Services, pursuant to s 49 of the Care Act. I have earlier stated that since January 2013, Barnardos has had delegated parental responsibility for J.

5. [36]

   J was placed into the care of Mr Y and Mrs Y on 17 October 2012, five days after his birth. He has remained living with them since then.

6. [37]

   Whilst Ms R was identified on J’s Birth Certificate as J’s mother, Mr P was not identified thereon as J’s father. ln 2012, Ms R nominated Mr P as J’s father.

7. [38]

   J’s three full siblings, whose parents are also Mr P and Ms R, are CR, who was born in March 2007, T R-P, who was born in April 2008, and JP, who was born in November 2009.

8. [39]

   Mr P orally stated, in January 2015, that he did not doubt that J was his child. As they otherwise have three children, a paternity test report, dated 5 May 2015, from Genetic Testing Laboratories, was able to be been obtained, which, together with the other evidence established, on the balance of probabilities, that Mr P is J’s father.

9. [40]

   (There is a letter dated 3 September 2015 from the Registry of Births Deaths and Marriages to Ms Willick stating that the paternity test report “does not meet the requirements of the Family Law Act 1975 (Cth).” It was suggested that in lieu of obtaining a report that did meet those requirements, the same could be achieved by providing a court order or if “both parents complete the adding father form and provide 3 identifications”.)

10. [41]

    J has four maternal half-siblings (whose mother is Ms R), namely BS and KS, twins who were born in August 1998, GS, who was born in February 2000, and PS, who was born in September 2003.

11. [42]

    Since coming into care, J’s contact with Ms R has been sporadic, and with Mr P, non-existent. It has proven impossible to obtain confirmation from him of contact arrangements.

12. [43]

    Other persons of significance in J’s life are his maternal grandmother, his two maternal aunts, and his paternal grandparents. However, the evidence reveals that Ms R has little involvement with any of them.

Formal Matters

1. [44]

   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. [45]

   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 J to know his true identity and origins. The concept of identity must include the recognition of relationships between a child and his, or her, parents.

2. [46]

   Inclusion of Mr P’s name, as J’s birth father, on the original Birth Certificate, would enable J to access that information under the adoption information provisions in due course. If that information is not included, the birth father would be a "putative birth father" under r 110 of the Adoption Regulation 2015 (NSW), and J would not be able to access information concerning him unless J signed an undertaking not to contact or attempt to contact him: Adoption of BS (No 3) [2013] NSWSC 2033, per Brereton J, at [100] (where his Honour dealt with the previous provision under the Adoption Regulation 2003).

3. [47]

   J is, of course, entitled to know his parentage.

4. [48]

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

5. [49]

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

The Legal Framework regarding Adoption - Statutory Framework and Principles

1. [50]

   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 Mr Y and Mrs Y, I shall repeat some of the matters that are particularly relevant to this case.

2. [51]

   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. [52]

   Following adoption, the child ceases, in law, to be a child of his or her birth mother and birth father and the brother or sister of his or her siblings. He or she thereafter 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: s 95(2)(c) of the Act.

4. [53]

   The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act.

5. [54]

   Adoption will be an extremely important step in a child’s life, which will determine his or her identity and family relationships throughout his or her 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 his or her birth family.

6. [55]

   As has recently 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]:

7. [56]

   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. [57]

   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. [58]

   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.

10. [59]

    Section 56 of the Act also provides for the birth father to be given an opportunity to consent, through the Secretary giving notice to the putative birth father to inform him of the legal processes by which he can establish paternity (1) in relation to a child or be registered as the child's father and (2) in respect of his rights as a parent in relation to the adoption of the child.

11. [60]

    There is no signed "instrument of consent" from either Ms R or Mr P (s 61 of the Act). Section 66 provides:

12. [61]

    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.

13. [62]

    White J explained in Re K & The Adoption Act 2000 [2005] NSWSC 858 at [21]:

14. [63]

    With respect to dispensing with the consent of the birth parents, in this case, only s 67(1)(d) is relied upon. It provides that:

15. [64]

    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 Children and Young Persons (Care and Protection) Act 1998". 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 a reference to the persons who have been caring for J and who seek to adopt him, namely Mr Y and Mrs Y: Director-General, NSW Department of Family and Community Services; re D [2012] NSWSC 223, per Ball J, at [17].

16. [65]

    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.

17. [66]

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

18. [67]

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

19. [68]

    ln this case, Mr and Mrs Y are the authorised carers of J and he has been in their care for three and a half years and since he was five days old. It is clearly a stable relationship. The evidence establishes that J 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 Mr Y and Mrs Y and J.

20. [69]

    I accept the submission of the Applicant that J “has a sense of strong family identity, Mr Y and Mrs Y are committed and loving parents, and [that] J has his primary attachment” to them. There is no prospect of restoration. I also accept that the submission that an adoption order will “confirm and formalise J’s status as a part of the only family he has ever known”.

21. [70]

    Thus, I am satisfied, on the evidence, that the adoption of J by Mr Y and Mrs Y will promote J’s welfare. It is a case where I will make a consent dispense order, dispensing with the consent of Ms R and Mr P.

22. [71]

    Section 70(1)(b) of the Act permits the Court to make a consent dispense order in conjunction with an adoption order. Notice of the intention to apply for an order dispensing with consent is required: s 72(1)). Such notice has been provided to both Ms R and Mr P within the relevant time period.

23. [72]

    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. For the purposes of s 88, the only persons who are required to consent to the adoption and who have not given consent are the birth parents. I am satisfied that at least 14 days' notice of the application for the order, containing the prescribed particulars, has been given to them.

24. [73]

    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. (This report is not open to inspection by, or made available to, any person, including any party to the proceedings (s 194 of the Act), although s 91 permits the trial Judge hearing the adoption application to have access to the report, notwithstanding the restriction imposed by s 194(1). It also permits the trial Judge to accept the report.) The author of the report has the requisite delegation to prepare that report.

25. [74]

    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”.

26. [75]

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

27. [76]

    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]:

28. [77]

    In Re JLR, Bergin CJ in Eq similarly explained, at [99], that:

29. [78]

    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.

30. [79]

    Adoption will provide J with the security of belonging, permanently, in the family who is committed to him and which is able to meet his needs. That is far preferable to the only realistic alternative, which is that he simply remain in the care of Mr Y and Mrs Y, without the security and sense of belonging that adoption will bring. J’s legal status will be brought into conformity with what has been his reality almost since his birth. J identifies exclusively with Mr Y and Mrs Y as his family, given the role of each in his life to date. Their family provides a far greater component of his identity than his origins.

31. [80]

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

32. [81]

    For these, and the other reasons set out above, an adoption order should be made. (In coming to this conclusion, I have, of course, considered the affidavit of Ms R even though she did not appear.)

The Adoption Plan

1. [82]

   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. [83]

   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) [2014] NSWSC 680, per Brereton J, at [59].

3. [84]

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

4. [85]

   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. [86]

   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. [87]

   In Re JLR, Bergin CJ in Eq described the history of the legislation governing adoption plans as follows (at [116]-[119]):

7. [88]

   The proposed contact arrangements are detailed in two adoption plans; one in respect of Ms R and the other in respect of Mr P, agreed between the Applicant and Mr Y and Mrs Y. That they have signed each of the adoption plans attests to the fact that they will continue to be supportive of contact by Ms R and Mr P.

8. [89]

   Neither Ms R nor Mr P has chosen to sign the relevant Adoption Plan and become a party to it.

9. [90]

   The Maternal Adoption Plan provides for a minimum of two contact visits per year, increasing to three visits in 2017 if Ms R exercises such contact in 2016, and four visits in 2018 and thereafter if Ms R exercises such contact in 2017. The Plan also provides for contact between J and his maternal half-siblings as guided by the existing informal regime.

10. [91]

    The Paternal Adoption Plan provides for contact between Mr P and J twice a year if Mr P should request such contact. The Plan further provides for contact between J and his three full siblings and paternal grandmother a minimum of four times per year, which the paternal grandfather may attend.

11. [92]

    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 [2015] NSWSC 274 at [41].

12. [93]

    I am satisfied that the arrangements proposed in each Adoption Plan are in J’s best interests and proper in the circumstances. As was submitted, each Adoption Plan is suitable “given the limited role that each of the birth parents has played in J’s life” and each will ensure an appropriate minimum level of birth parent contact for J.

13. [94]

    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. [95]

   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. [96]

   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. [97]

   It was submitted by the Applicant, and I accept, that in the present case, J is too young for the Court to give weight to his wishes.

4. [98]

   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”.

5. [99]

   His Honour continued at [105]:

6. [100]

   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). 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].

7. [101]

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

8. [102]

   What I said 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 by Robb J in Application D and D; Re Y [2013] NSWSC 1477.

9. [103]

   The Applicant proposes that J have as his surname, the surname “Y” instead of his present surname and his given names “JJ”.

10. [104]

    In this case, J is too young to express any wishes, or considered views, as to the change of his name. He is also too young to have identified with his current surname. Accordingly, he will retain the first name given to him by Ms R, thereby retaining his own sense of personal identity as well as assisting in retaining the link to Ms R. Section 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].)

11. [105]

    By the change of surname, he will share the same surname as Mr Y and Mrs Y and their children. This will provide him 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 Mr Y and Mrs Y to J, which is likely to be of benefit to J.

12. [106]

    J does not currently have a middle name. The addition of the middle name, “J”, which has been in Mr Y’s family for 3 generations, will also provide him with a sense of belonging.

13. [107]

    The proposed name changes seem to me to be clearly desirable in J's best interests and accordingly, the orders sought in regard to the change of J’s name will be made.

Conclusion

1. [108]

   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 Mr P is the father of J.

   2. (2)

      Orders pursuant to Births Deaths and Marriages Registration Act 1995 (NSW), s 19(2), that Mr P be included as the father of J in the Register of Births Deaths and Marriages.

   3. (3)

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

   4. (4)

      Orders pursuant to Adoption Act, s 67(1)(d), that the consent of the child's natural father, Mr P, be dispensed with.

   5. (5)

      Orders for the adoption of the child, J, in favour of the adopting parents, Mr Y and Mrs Y, and approve the name “Y” as the surname and “JJ” as the given names of the child.