Adoption of AJH and BLH
[2014] NSWSC 1133
•20 August 2014
Supreme Court
New South Wales
Medium Neutral Citation: Adoption of AJH and BLH [2014] NSWSC 1133 Hearing dates: In Chambers Decision date: 20 August 2014 Jurisdiction: Equity Division Before: Darke J Decision: Orders for adoption made, and approval given to a change of surname.
Catchwords: FAMILY LAW AND CHILD WELFARE - adoption - absence of consent to adoption by parents - whether appropriate to dispense with requirement of parental consent - adoption orders made - approval given to a change of surname Legislation Cited: Adoption Act 2000 (NSW) ss 67(1)(d), 90, 101 Cases Cited: Adoption of NG [2014] NSWSC 680 Category: Principal judgment Parties: Director-General of the Department of Family and Community Services (plaintiff)
AJH (child)
BLH (child)File Number(s): A35 of 2014 Publication restriction: Nil
Judgment
Introduction
By a Summons filed on 18 March 2014, the Director-General of the Department of Family and Community Services (by his delegate, the Principal Officer of Barnardos Australia) seeks orders under the Adoption Act 2000 (NSW) ("the Act") for the adoption of two siblings (AJH and BLH) in favour of SAM and AJW ("the proposed adoptive parents"). In the absence of consent to the adoptions from the parents of the siblings, consent dispense orders under s 67(1)(d) of the Act are also sought. Finally, approval is sought for the surnames of each of the children to be changed from "H" to "M-W".
The application is one that falls within s 87(1)(b) of the Act. The evidence in support of the application includes an affidavit sworn by the proposed adoptive parents, two affidavits sworn by the Principal Officer of Barnardos Australia (an organisation that has been delegated parental responsibility for each of the children), and affidavits sworn by three character referees. The evidence includes a report as required by s 91 of the Act, and an adoption plan entered into between the proposed adoptive parents and the Director-General (again by his delegate, the Principal Officer of Barnardos Australia).
The parents of the siblings are not parties to the adoption plan as they have not consented to the adoptions and are thus not parties to the adoptions. Only parties to an adoption can be parties to an adoption plan. Nevertheless, each of the parents has signed the adoption plan.
Background
The proposed adoptive parents are both of Anglo-Australian background. They reside in New South Wales. The proposed adoptive parents have been in a de facto relationship since May 2007. They have no children of their own. They are the authorised carers of both AJH and BLH. Neither of the proposed adoptive parents professes to practise any religion.
AJH was born on 5 December 2011 to TH and MG. BLH was born on 23 April 2013 to the same parents. The siblings are presently aged 2 years and 8 months, and 15 months, respectively. The children are both Australian citizens of Anglo-Australian descent. For practically all of their lives they have lived with the proposed adoptive parents in New South Wales. The children are in generally good health.
The parents, TH and MG, are both non-practising Catholics. TH, the mother, is of Anglo-Australian background. MG, the father, is of Anglo-Australia/Greek background. The siblings are the only children of both TH and MG. However, MG has numerous other children with other partners. It appears that he has regular contact with only one of those children.
AJH came to the attention of the Department soon after his birth. On 8 December 2011, the Director-General assumed the care and responsibility of AJH. Barnardos Australia was then contacted, and on 12 December 2011, AJH was placed into the care of the proposed adoptive parents. On 15 December 2011, an interim order was made giving parental responsibility for AJH to the Minister. On 16 November 2012, a final order was made giving parental responsibility for AJH to the Minister until AJH attains the age of 18. The proposed adoptive parents have remained the carers of AJH throughout.
When BLH was still in utero, risk of harm reports were made to the Department. Before he was born, the Department attempted to engage with the parents, who, for various reasons, were unreceptive. On 29 April 2013, six days after BLH was born, the Director-General assumed the care and responsibility for him, and BLH was thereupon placed, alongside his older brother, with the proposed adoptive parents. He has remained in their care ever since.
Parental responsibility for BLH was placed with the Minister pursuant to an interim order made in May 2013. On 23 August 2013, a final order was made giving parental responsibility for BLH to the Minister until BLH attains the age of 18.
The requirements of the Adoption Act
There is no doubt that this Court has jurisdiction to make the adoption orders as sought in this case. When the application was made, the children were present in New South Wales. The proposed adoptive parents, who have been in a de facto relationship since 2007, had been domiciled in New South Wales for many years. Further, it is clear that the children satisfy the age requirements of s 24 of the Act, and the proposed adoptive parents, as a couple, satisfy the requirements of s 28 of the Act.
It is provided by s 90(1) of the Act that the Court must not make an adoption order in relation to a child unless the Court is satisfied of various matters. In the present case, these matters are, relevantly:
"(a) that the best interests of the child will be promoted by the adoption, and
(b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and
(c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child - that the prospective adoptive parent or parents have been selected in accordance with this Act, and
(d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and
[...]
(h) in the case of a child (other than an Aboriginal or Torres Strait Islander child) - that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption."
Section 90(1)(a):
The first requirement, that the best interests of the child will be promoted by the adoption, is the paramount consideration (see s 8 of the Act).
Having considered the substantial body of evidence adduced in support of the proposed adoptions, I have concluded that in each case, the best interests of the child will be promoted by the adoption. The proposed adoptive parents are undoubtedly well suited to the role of parents to the children. They have, over an extended period, demonstrated that they are capable of performing that role skilfully and in a manner which promotes a secure and loving environment for the children. It appears that the children are doing very well under the care of the proposed adoptive parents, and there is good reason to think that this will continue into the future.
For a variety of reasons, the parents, either separately or together, appear incapable of providing adequate care for the children. The parents seemingly recognise that this is the case and, whilst neither of them has consented to the proposed adoptions, each has expressed views to the effect that if it is not possible for the children to be placed into their care (or perhaps the care of the mother's brother) then they would want the children to remain in the care of the proposed adoptive parents. The possibility of TH's brother assuming the role of carer to AJH was considered for a time in 2012. However, it appears that the brother came to realise that he was not capable of providing adequate care to AJH, so this possibility was pursued no further.
Section 90(1)(b):
The children are not of sufficient age or understanding to be able to express wishes concerning the proposed adoptions. However, the evidence shows that both children appear happy in their present family environment and have formed strong relationships with the proposed adoptive parents. The evidence also shows that the children are beginning to form a strong relationship as brothers.
Section 90(1)(c):
The evidence clearly establishes that the proposed adoptive parents have been selected in accordance with the provisions of the Act (see Part 3 of Chapter 4 of the Act).
Section 90(1)(d):
Section 52 of the Act relevantly provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by each parent of the child and any person who has parental responsibility for the child. The Minister, by a delegate, has given such consent. However, the consent of each of the parents to the proposed adoption has not been given. Consent is not required under s 52 of the Act if the requirement for consent has been dispensed with by the Court. Section 67 of the Act relevantly provides:
"(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that:
[...]
(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child:
(i) the child has established a stable relationship with those carers, and
(ii) the adoption of the child by those carers will promote the child's welfare, and
(iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.
(2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child."
Consent dispense orders are sought pursuant to s 67(1)(d) of the Act. The parents have been given notice of the application for the consent dispense orders, as required by s 72(1) of the Act.
The proposed adoptive parents are the authorised carers of AJH and BLH, so s 67(1)(d) of the Act is engaged in this case. Moreover, in my view the evidence shows that both AJH and BLH have established a stable relationship with the proposed adoptive parents, and the evidence that has been adduced satisfies me that in each case, the adoption of the child by the proposed adoptive parents will promote the child's welfare.
Despite some suggestions that the children may be Aboriginal children, the results of the inquiries made about that issue indicate that is not the case, and I am prepared to proceed on the basis that neither child is an Aboriginal child.
It follows that all of the requirements of s 67(1)(d) of the Act have been satisfied, such that the Court has a discretion to make consent dispense orders in this case in relation to the consents of the parents.
In my view, this is an appropriate case in which to make such consent dispense orders. It is clear that the parents were made aware of the bringing of the application for the adoptions and were informed that they could oppose the adoptions if they wished. Neither of them has sought to actively oppose the adoptions. Indeed, as noted earlier, the parents have each signed the adoption plan that has been made between the proposed adoptive parents and the Director-General. On the evidence before the Court I have concluded that the best interests of each child will be promoted by the proposed adoption. Unless consent dispense orders are made, the adoptions cannot proceed. In these circumstances, I consider that making consent dispense orders in relation to the parents is in the best interests of each of AJH and BLH (see Adoption of NG [2014] NSWSC 680 at [106] per Brereton J).
Section 90(1)(h):
I am further satisfied that the requisite matters have been taken into account in the making of the adoption plan. The plan provides for arrangements to be made for contact between each of the children and their parents, and it is acknowledged that such arrangements will support the children with their development and assist them with knowledge of their family of birth and their sense of identity. I note also that the evidence suggests that the proposed adoptive parents have taken a constructive attitude towards the parents and the facilitation of on-going contact between the children and their parents.
Section 90(2):
Having considered the terms of the adoption plan, I am also satisfied that the arrangements proposed in the plan are in the best interests of each child and are proper in the circumstances (see s 90(2) of the Act).
Section 90(3):
I am also satisfied that, in respect of each child, the making of the adoption order is 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 (see s 90(3) of the Act). The evidence shows that both children are developing well in a stable and secure environment. The making of adoption orders is likely to enhance the security and stability of the existing situation, and help to build a sense of belonging. Those advantages are less likely to be present with other care regimes such as long-term foster care.
For the above reasons, the Court is satisfied of all the relevant matters specified in s 90 of the Act.
Further, the requirement that the Court be provided with a report in accordance with s 91 of the Act has been satisfied. I have taken the contents of that report into account in reaching the conclusions I have expressed above.
Finally, the notice requirements of s 88 of the Act appear to have been satisfied, save in respect of notice to the children themselves. To the extent that such notice would be required under s 88(1)(b) of the Act, the Court dispenses with the giving of such notice. Clearly, in view of the ages of the children, it is appropriate to dispense with the giving of such notice.
The Court will therefore make orders for the adoption of each of AJH and BLH in favour of SAM and AJW.
Approval of names:
Approval is sought, pursuant to s 101 of the Act, for the present surname of each child (that is, the mother's surname, H) to be changed to M-W, a surname that is a combination of the surnames of the adoptive parents. The Court cannot give such approval without first considering any wishes expressed by the child (see s 101(2) of the Act). There is no evidence of any such wishes being expressed, and in any event the children are of such an age that the weight which it would be appropriate to give to any such wishes would be somewhat diminished.
The parents have expressed opposition to the proposed change of name. That is a relevant matter to take into account, but in circumstances where the given names of the children are to remain as they are, and the proposed change of surname will reflect the surnames of the adoptive parents, and thus further promote a sense of belonging and identity within the family, I consider that it is in the best interests of each of the children for the proposed change in surname to occur.
On the making of the adoption orders, the Court will therefore give its approval to the names as proposed for each of the children.
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Decision last updated: 21 August 2014
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