Adoption of A
[2022] NSWSC 493
•27 April 2022
Supreme Court
New South Wales
Medium Neutral Citation: Adoption of A [2022] NSWSC 493 Hearing dates: 20 April 2022 Date of orders: 20 April 2022 Decision date: 27 April 2022 Jurisdiction: Equity - Adoptions List Before: Stevenson J Decision: Order for adoption made; consent of mother and father dispensed with; change of name approved
Catchwords: FAMILY LAW – children – adoption – whether adoption order clearly preferable and in best interest of child – whether consent of mother and father should be dispensed with – whether change of name should be approved
Legislation Cited: Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited: Adoption of RCC and RZA [2015] NSWSC 813
Category: Principal judgment Parties: Secretary, New South Wales Department of Communities and Justice (Plaintiff)
LB (Defendant) (self-represented)Representation: Solicitors:
Crown Solicitor’s Office (Plaintiff)
File Number(s): 2021/126918 Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)
Judgment
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On 20 April 2022 I made orders for adoption of a child who I will call “A” in favour of a couple, who I will refer to as the “adoptive parents”.
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I also made orders pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) (the “Act”) dispensing with the consent to the adoption of A’s mother and father and approving A’s name as incorporating the adoptive parents’ surname as well as an identified middle name.
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I also approved Maternal and Paternal Adoption Plans to which I will make further reference below.
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These are my reasons for making those orders.
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A was born in 2018. She is three, almost four, years of age. A has lived with the adoptive parents continuously since she was just five days old.
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On 8 April 2019, the Children’s Court of NSW made final orders providing for A to be placed under the parental responsibility of the Minister for Families, Communities and Disability Services.
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On 7 May 2021, this Court made an interim order pursuant to s 84(2) of the Act allocating parental responsibility for A to the Secretary, New South Wales Department of Communities and Justice for 12 months from the date of that order.
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The mother and father of A have been served.
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I am satisfied that the formal requirements of the Act have been met.
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Only the father filed a Notice of Appearance. He appeared before me by telephone link on 20 April 2022.
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Although neither A’s mother or father consented to the adoption, I was satisfied that I should make a consent dispense order under s 67(1)(d) of the Act because, it is clear on the evidence, that A has established a stable relationship with the adoptive parents and that A’s welfare would be promoted by the making of an adoption order.
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The adoptive parents are “authorised carers” for the purposes of the Act as they have care responsibility for A under out of home care arrangements under the Children and Young Persons (Care and Protection) Act 1998 (NSW).
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It is clear on the evidence that A has established a “stable relationship” with the adoptive parents.
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As I have said, A has lived with the adoptive parents since she was five days old. She has also lived, since that time, with her biological sister, C, who was adopted by the adoptive parents pursuant to an order made by this Court on 30 August 2018.
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I had no doubt that A’s adoption by the adoptive parents would promote her welfare.
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As was submitted on behalf of the Secretary, the adoptive parents have demonstrated their dedicated caring for A’s medical, developmental and educational needs outlined in the affidavits read on the application. A is clearly thriving in the care of the adoptive parents. She has no significant medical issues and is reaching all of her developmental milestones.
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A shares a positive, affectionate and loving relationship with her older biological sister C, and also with the adoptive parents’ biological child, T (now aged 12), who regards A (as well as C) as a sibling of his own.
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The adoptive parents currently supervise contact between A and her mother and father approximately four times each year. The Maternal Adoption Plan and the Paternal Adoption Plan, that I have approved, provide that A will have contact visits with the mother and the father a minimum of four times a year for a period of two hours each visit. The adoptive parents have agreed to provide updates of A’s progress to A’s mother and father and to facilitate A’ participation in telephone calls at an appropriate stage of her development.
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Section 90(3) of the Act provides that the Court may not make an adoption order unless it considers that the making of the order is in the best interests of A and would be “clearly preferable”, that is “obviously, plainly or manifestly preferable”,[1] to any other action that could be taken by law in relation to her care.
1. Adoption of RCC and RZA [2015] NSWSC 813 at [14] (Brereton J).
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There were alternatives to making an adoption order. They were an order allocating parental responsibility of A to the adoptive parents or an order allocating parental responsibility to one or both of A’s mother or father. [2]
2. Section 92 of the Act.
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I accept the Secretary’s submission that given A’s secure attachment to the adoptive parents, together with her child protection history, restoration of A to either her mother or father is not a realistic possibility and would, in any event, raise serious concerns for her welfare.
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An order allocating parental responsibility to the adoptive parents will alleviate some of the disadvantages of maintaining the status quo but would remain a temporary order that would expire when A turns 18.
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It therefore lacks the essential elements: permanency, security and certainty that an adoption order would make.
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I find this to be particularly significant in the circumstances where A’s biological sister, C, has been adopted by the adoptive parents.
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As to the change of name to one including the surname of the adoptive parents, I am mindful of the fact that s 101(5) of the Act prohibits a court from approving a change in name unless satisfied that to do so would be in the child’s best interest.
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In that regard, the father made this statement during the hearing:
“Firstly, I'd like to say that I don't disagree with [A] being in care. I've always agreed to that. Same as with [C]. Both me and my partner [B] at the time actually went to [the adoptive parents] when we knew [A] was - when we knew [B] was pregnant with [A] and asked them if they would consider looking after [A] as well. That was before DOCS and all that knew. We went back to see [the adoptive parents] and asked them ourselves, told them, you know, that we understand if taking on a third child would be too much for them, because they do have a child of their own and one of ours. So I don't disagree with [A] being in care. I've always been happy for [A] to be in their care.
I don't agree to a name change mainly because that's her birth family. She biologically, you know, belongs to her birth family. That was the name she was given at birth, you know. I can understand where a child has no family and no direct family for a name change, but [A] has direct family and contact with direct family with visits and all of that.
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[A] was named by the parents, myself and [B]. You know, it's just, I don't know, very disappointing when you have named your own child and that, you know, someone has the power to be able to go and change those names.”
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The father may well have been expressing heartfelt sentiments when making these statements. However, he seemed only to be able to see the matter from his own point of view, and did not appear to have taken into account what I see as the obvious benefit to A, as the adopted child of the adoptive parents, of having their surname and, thus, the same surname as her biological sister C, and her adoptive brother T.
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It was for those reasons that I made orders on 20 April 2022 as set out at [1] and [2] above.
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Endnotes
Decision last updated: 27 April 2022