Adoption Application - re T & S

[2008] NSWSC 96

CITATION:	Adoption Application – re T & S [2008] NSWSC 96
HEARING DATE(S):	15 February 2008
JUDGMENT DATE :	15 February 2008
JURISDICTION:	Equity Division, Adoption List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	15 February 2008
DECISION:	Adoption orders will be made.
CATCHWORDS:	ADOPTION – Children consent to their own adoption – whether adoption order clearly preferable to any other course.
LEGISLATION CITED:	Adoption Act 2000 (NSW) – s 8(2), s 52, s 54, s 55, s 63, s 67, s 89(b), s 90
CATEGORY:	Principal judgment
PARTIES:	Director General, Department of Community Services for the applicants (Mr and Mrs X) (Plaintiffs) Birth father, Mr M (First Defendant) Birth Mother, Ms P (Second Defendant) T and S (Children)
FILE NUMBER(S):	SC 51/07
COUNSEL:	Ms D. Ward (Plaintiffs) In person via audio link (Ms P, Second Defendant) Ms E. Wood (Separate representative for T&S)
SOLICITORS:	Crown Solicitor (Plaintiffs) No appearance (Mr M, First Defendant) In person via audio link (Ms P, Second Defendant) Grant & Co (Separate representative for T&S)

51/2007 Adoption application: Re T & S

JUDGMENT – Ex tempore
15 February, 2008

1 This is an application for the adoption of twins, to whom I will refer as "T" and "S". The twins were born on 24 December 1995. At the time of the application for adoption, the twins were under the age of twelve years so that under s 52 of the Adoption Act 2000 (NSW), the adoption order could not be made unless the twins' natural parents consented, or unless their consents were dispensed with under s 67 of the Act. However, the twins have now attained the age of twelve years so that they may give sole consent to their adoption if the requirements of s 54(2) and s 55 of the Act have been satisfied. 2 The twins have been cared for by the applicants, Mr and Mrs "X", since December 1996. The requirement of s 54(2) is met. 3 The twins have been counselled as required by s 63 of the Act. A psychologist’s report has stated that each of the girls is capable of understanding the effect of giving consent and that each of them does, in fact, understand the effect of adoption and each of them freely and actively consents to their adoption. The requirements of s 55 of the Act are therefore met. 4 While the Court now does not require the consent of the girls' natural parents, by reason of s 8(2)(e) of the Act, the Court must still have regard to the wishes of both the girls' natural parents in determining the best interests of the children. That is because, even if the children's consent is freely given to their adoption, the Court must be satisfied as required by s 8(1) that an adoption order is in fact in their best interests both in childhood and in later life. Indeed, s 90(3) requires that the Court must consider that an adoption order would be clearly preferable in their best interests rather than any other action that could be taken in relation to their care. 5 The girls' natural father, Mr "M", has consented to the adoption and has not appeared today to tell the Court anything of his wishes. 6 The girls' natural mother, Ms "P", does not consent and she has, by audio link this morning, told the Court of her reasons and her wishes for the children. First and foremost, Ms P freely acknowledges that T and S are happy and secure in their foster family. She acknowledges that they should not be removed and she has no intention of seeking to regain parental responsibility for them. However, Ms P feels that giving her consent to the girls' adoption would somehow be failing them as their mother. This she cannot bring herself to do. 7 While any parent would understand Ms P's feeling that she is somehow failing the children by consenting to their adoption, I am sure that the children themselves do not see it in that way. 8 The children, supported by Mr and Mrs X, have a good and continuing relationship with Ms P and I am quite sure that that relationship would continue pursuant to an adoption plan if an adoption order were to be made. 9 Ms P also desires the children to retain the surname "M", rather than "X" which would be a consequence if an adoption order were to be made. Ms P feels that retaining the name “M” would enable the children to retain a sense of their identity. 10 I have listened with sympathy to Ms P's reasons for refusing to consent to the girls' adoption. However, I am of the opinion that her concerns relate, very understandably, to her own emotional needs rather than to the best interests of the children, considered objectively, as I must do. 11 There is no question that T and S are now happy and secure in a loving and supportive family. The evidence satisfies me that all of the relevant requirements of s 90(1) of the Act have been met. The question remains, however, whether an adoption order would be clearly preferable rather than leaving the children in the foster care of Mr and Mrs X. 12 Having regard to the evidence of the children's early history, the evidence of the medical care which they have required and will continue to require, and to the evidence of the exemplary parental care and nurture provided to them by Mr and Mrs X, I am satisfied that the permanence, security and sense of belonging which an adoption order would provide to T and S makes such an order clearly preferable to any other course which could be taken. 13 I need to consider, however, whether the present Adoption Plan is appropriate in the circumstance that Mr M and Ms P are no longer on good terms and it would be best if their access to the children occurred separately. 14 I will require that the Adoption Plan provide that a maximum of eight access visits per year be allowed to Mr M and Ms P, provided that Ms P is to have not less than four of such visits for herself. That means that if Mr M is unable to attend for the full complement of his four visits, Ms P will be able to have more than four visits. If Mr M and Ms P reconcile, they may have more than four visits each, if they visit together. These are matters to be worked out by sensible co-operation between the families and I am sure that that is the attitude in which the parties will approach the working out of the Adoption Plan. However, I feel that Ms P should have the security of knowing that whatever be the future of her relationship with Mr M, she at least will have the benefit of not less than four access visits with the children. 15 In these circumstances, I am now satisfied that adoption orders should be made for T and S. I would make those orders immediately but for the fact that the period of thirty days after the consents given by the children, as required by s 89(b) of the Act, will not expire until 10 March 2008. 16 Accordingly, if the children do not communicate to the Court through their legal representatives by 10 March 2008 that they have revoked their consents, I will, on 11 March 2008, formally make the adoption orders in Chambers without the necessity for any further appearance by the parties.
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