Adoption KTM and AM

[2015] NSWSC 296

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption KTM and AM [2015] NSWSC 296
Hearing dates:	20 March 2015 – in chambers
Date of orders:	20 March 2015
Decision date:	20 March 2015
Jurisdiction:	Equity Division - Adoption List
Before:	Brereton J
Decision:	Orders for adoption, consent dispense orders made.
Catchwords:	FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plan – where non-consenting birth parent signs adoption plan – held non-consenting birth parent signatory may apply for registration of plan. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – dispense with consent of birth parents – whether sufficient notice given – where notice given to birth mother by text message – held, text message insufficient to effect notice – held, notice sent to address of birth mother’s mother as ‘nominated’ by birth mother sufficient – held, appropriate to make consent dispense orders without further notice.
Legislation Cited:	(NSW) Adoption Act 2000, s 8, s 46(2A), s 46(2B), s 50, s 51, s 67(2)(d), s 72, s 88, s 197
Category:	Principal judgment
Parties:	Secretary, Family & Community Services (applicant) KTM & AM (children) FTB (mother) TNM (father) SLC & MAL (adoptive parents)
Representation:	Counsel: Solicitors: Crown Solicitor's Office (applicant)
File Number(s):	A130 of 2013

Judgment

1. The Secretary, Department of Family and Community Services applies for orders for the adoption of two children, KTM born 24 November 2004 and AM born 4 February 2006, the children of FTB (“the mother”) and TM (“the father”) by proposed adoptive parents MAL and SLC (a female same-sex de facto couple), orders dispensing with the consents of the birth parents, and an order that an adoption plan providing for contact with the father be registered.

2. I am satisfied that, taking into account all relevant matters referred to in (NSW) Adoption Act 2000, s 8, and in particular the attitude of each proposed adoptive parent to the children and to the responsibilities of parenthood, the nature of the relationship of the children with each proposed adoptive parent, and the suitability and capacity of each proposed adoptive parent to provide for the needs of the children, including their emotional and intellectual needs, the best interests of both children will be promoted by adoption by the proposed adopting parents. In reaching this conclusion, I have taken into account the wishes and feelings of the children, as expressed to the expert.

3. I am satisfied that the prospective adoptive parents have been selected in accordance with the Act.

4. I am satisfied that consent to the adoption of the children has been given by every person whose consent is required under the Act other than the birth parents, whose consent I address below.

5. There are two adoption plans – one in respect of contact with the mother and her mother, and the other in respect of contact with the father. The maternal plan (the signatories to which are the adoptive parents and the delegate) recognises that there has been no maternal contact since December 2008 and that requests for contact will be considered as they arise. The paternal plan (the signatories to which also include the father, though under the express stipulation that he does not consent to the adoption) contains a two-phase approach: the first – which has already commenced – involves re-establishing contact, and the second – which takes effect in late 2015 – provides for quarterly face-to-face contact of at least 2 hours. It conforms to expert advice obtained by Community Services and the proposed adoptive parents. I am satisfied that the arrangements proposed in the adoption plans are in the children’s best interests and are proper in the circumstances, and that the children’s culture, given names, identity, and cultural ties have been taken into account in the making of the adoption plan.

6. There have been some difficulties, for various reasons, with paternal contact, but some promising developments in more recent times. In order to secure that contact for the future, the Secretary proposes that the parental plan be registered under s 50. Section 50 provides that the “parties to an adoption who have agreed to an adoption plan may apply to the Court for registration of the plan”, and once registered the plan has effect as if it were part of the order made by the Court. Further, under s 51, the plan may be reviewed upon application by one of the parties to the plan. Because he does not consent to the adoption, the father is not a “party to the adoption” within the definition in the Dictionary to the Act, but for the purposes of s 50 and s 51 is now – following the commencement of s 46(2A) and (2B) with effect from 29 October 2014, to be treated as if he were a party to the adoption. This means that he has the same standing to apply for registration or review of the plan as any other party to the plan. For the purposes of s 50, I am satisfied that the plan does not contravene the adoption principles, that the parties to the adoption (who for relevant purposes include the father, who has signed the plan) 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 and proper in the circumstances.

7. I consider that the making of an adoption order would be clearly preferable in the best interests of both children than any other action that could be taken by law in relation to their care.

8. I am satisfied that the application for the adoption of the children is made by persons who are authorised carers for the children; that the children have established a stable relationship with them; and that the adoption of the children by those carers will promote the children’s welfare. I am further satisfied that to make a consent dispense order is in the best interests of the children, as it will permit the court to make the order which is clearly the preferable provision for their ongoing and future care and welfare.

9. I am satisfied that notice (under s 72) of the application for a consent dispense order, and notice (under s 88) of the application for the adoption order, has been given to the father at least 14 days before the order is to be made: such notice was given to him personally on 4 December 2014.

10. As to notice to the mother, after unsuccessful attempts to serve her personally at the address she last provided to Community Services, and at the address recorded by Centrelink as her current address, notice under s 72 and s 88 was sent to her mobile telephone number by text message on 14 January 2015. In a subsequent telephone conversation with a departmental officer, she acknowledged receipt of that notice, and said that any documents should be sent to her mother. On 30 January 2015, a copy of the notice was sent to her, care of her mother’s address, by express post.

11. (NSW) Adoption Act 2000, s 197, provides:

197 Manner of giving notice

(cf AI Act s 37)

(1) Any notice required to be given under this Act may be given personally or by post.

(2) If a person required to be given notice has duly nominated an address at which the person is to be notified, the notice may be given to the person only at that address.

(3) Despite subsection (2), the Director-General may give notice at another address known to the Director-General if after duly attempting to give the notice at the nominated address the Director-General has been unable to notify the person.

12. In my view, subsection (1) has the effect that notice must be given either personally or by post, and “post” contemplates use of the postal system, and not email or text message. The references in subsections (2) and (3) to an address are to a physical address, not a telephone number or email account. This is indicated by use of the preposition “at”. Accordingly, I am unable to accept that the text message was due notice.

13. However, either subsection (2) or (3) has been satisfied. The mother informed the departmental officer that “all communications were supposed to go through my mother or solicitor” and “you can send me whatever you want, to my mother”. She has provided no details of a solicitor, but she thereby (if not earlier) “duly nominated” her mother’s address as the address at which she was to be notified. Accordingly, sending of the notice to her mother’s address on 30 January 2015 was notice in accordance with s 197(2). Alternatively, if her last address known to Community Services is considered to be her “duly nominated” address, then attempts to notify her at that address were unsuccessful, and her mother’s address is “another address” within s 197(3).

14. Further, given the evidence of the attempts that have been made to give her notice, that she has received notice albeit by text message, that notice has been sent at her request to her mother’s address, and that she has been reminded in a telephone conversation (on 28 January) and a telephone message (on 13 February 2015) of the necessity to notify the court if she opposed the application, and that she has not responded to a text message (also on 13 February) requesting that she contact Community Services, I would if necessary (a) dispense with the giving of further notice under s 88(4), and (b) consider that in the particular circumstances of the case it is desirable to make a consent dispense order without further notice of the application having been given under s 72(2)(c).

15. The children are to have the surname C-L (C being the surname of one adoptive parent and L of the other). K is to retain his given names KT. A is to retain her given name A and have the additional given name S, which is a name A desires to incorporate to remember a close deceased family friend. In changing the names of the children, I have considered wishes expressed by them, including their preference not to include their birth surname M. I am satisfied that the change in the given names of A is in her best interests, and as her first name will be preserved is not inconsistent with the principle referred to in s 8 that a child’s given name or names should as far as possible be identified and preserved.

16. Accordingly, I will make orders in respect of each child:

1. pursuant to s 67(2)(d), that the consent of the child’s natural father and mother be dispensed with;

2. for the adoption of the child by the proposed adoptive parents and approving their names as KTC-L and ASC-L respectively,

3. for the registration of the paternal adoption plan.

**********

Decision last updated: 23 March 2015