Adoption of Alice

[2018] NSWSC 1483

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of Alice [2018] NSWSC 1483
Hearing dates:	2 October 2018
Date of orders:	02 October 2018
Decision date:	10 October 2018
Jurisdiction:	Equity - Adoptions List
Before:	Slattery J
Decision:	1. Consent dispense orders made under Adoption Act 2000, s 67(1)(d). 2. Order the Adoption Plan of 11 September 2018 be registered under Adoption Act 2000, s 50(3). 3. Order made for the adoption of the child in favour of the adopting parents. The Court approves the names proposed as the surname and given names of the child.
Catchwords:	ADOPTIONS – Adoption Act 2000, s 67(1)(a) – application to dispense with the consent of the birth father of the child proposed for adoption – whether such an order should be made in the circumstances – whether an order for adoption is the clearly preferable course in the best interests of the child – whether the proposed name change is in the best interests of the child – whether the Adoption Plan is in the best interests of the child
Legislation Cited:	Adoption Act 2000, ss 50(3), 67(1)(d) and 101 Children and Young Persons (Care and Protection) Act 1998
Cases Cited:	Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521 Re Adoption of RCC [2015] NSWSC 813 Re Sarah [2013] NSWCA 379
Category:	Principal judgment
Parties:	Plaintiff: Secretary, New South Wales Department of Family and Community Services Defendant: Not published
Representation:	Counsel: M Anderson (plaintiff) No appearance (defendant)   Solicitors: Lea Armstrong, Crown Solicitor’s Office (plaintiff) No appearance (defendant)
File Number(s):	A169/2017
Publication restriction:	No

Judgment

1. Alice (not her real name), who is now seven years of age, has been in the continuous care of her proposed adoptive parents since she was 10 months old. These proceedings concern an application brought by the Secretary of the NSW Department of Family and Community Services in relation to the adoption of Alice by her proposed adoptive parents.

2. Alice was born in Sydney in early 2011. Later in 2011, by order of the Children’s Court, Alice was placed under the parental responsibility of the Minister for Family and Community under the Children and Young Persons (Care and Protection) Act 1998. Before the end of the same year, Alice was placed in the proposed adoptive parents’ care as a child under the parental responsibility of the Minister for Family and Community Services until the age of 18.

3. Alice’s birth mother passed away in 2017 and her death certificate was in evidence in the proceedings. Alice’s birth father is the defendant in these proceedings. He does not consent to the proposed adoption, but does not actively oppose the orders sought to be made.

4. In these proceedings, the Court must decide: (1) whether an adoption order is the clearly preferable order in Alice’s best interests; (2) whether to make orders dispensing with the birth father’s consent; (3) whether the Adoption Plan takes into account Alice’s culture, language, religion, given names, identity and whether the Adoption Plan is in Alice’s best interests; and (4) whether to make an order under Adoption Act 2000, s 101 to change Alice’s name and whether such change is in her best interests.

5. At the hearing, the plaintiff was represented by Mr M Anderson of counsel, instructed by L Armstrong of the Crown Solicitor’s Office. The birth father had appeared in person at the directions hearing on 11 July 2018, but did not appear at the hearing on 2 October 2018.

The Proposed Adoptive Parents

6. The proposed adoptive parents live in regional New South Wales and have done so since 2001. They are the authorised carers who have had the care responsibility for Alice since 2011 under out-of-home care arrangements pursuant to the Children and Young Persons (Care and Protection) Act 1998. They have been married for almost 20 years and neither has previously been married. They also have two other older children who have been in their care since 2007. Alice regards them as her brothers. They each meet the age requirements under Adoption Act 2000, s 28.

7. In 2012, the proposed adoptive parents formally expressed interest in being approved as suitable, and being selected, to adopt a child. In May 2013, the Secretary assessed the suitability of the proposed adoptive parents to adopt Alice, a process which was eventually completed in March 2015. In July 2015, the proposed adoptive parents signed an application form to adopt Alice pursuant to Adoption Act 2000, s 45D.

8. The proposed adoptive parents are of good repute, and are fit and proper persons in accordance with Adoption Act 2000, s 28(1)(b). Affidavits of referees in evidence before me attest to the good fame and character of each of the proposed adoptive parents.

9. National Police Certificates have been issued in respect of each of the proposed adoptive parents, showing “no disclosable Court outcomes”. A national criminal records check showed no disclosable Court outcomes or outstanding matters were present. Each of the proposed adoptive parents has received a Working With Children Check clearance from the New South Wales Children’s Guardian.

10. The proposed adoptive parents have been the carers of Alice for well over six and a half years. They clearly have a stable and established relationship with Alice. The Secretary’s assessment of the adoptive parents found that they have a strong attachment with Alice. Further, there is no prospect of Alice being restored to the care of her birth father.

The Adoption Plan

11. The Adoption Plan dated in September 2018, has been signed by the father, the adoptive parents and on behalf of the Secretary. It makes provision for appropriate contact and communication between Alice and her birth father, half siblings and extended family (in particular, her paternal grandmother who is very elderly and currently residing in a nursing home). It provides for Alice to have face-to-face contact with her birth father for a minimum of six times per year. It is proposed that there will be telephone and electronic communication between them as well, as Alice matures and is able to participate in those interactions.

12. The birth father’s face-to-face contact with Alice has always been supervised. Previously, contact has occurred in school holidays with two contacts to be had surrounding important dates such as Father’s Day or birthdays. It is proposed that contact continue to be supervised to ensure that the relationship between Alice and her proposed adoptive parents not be undermined. The Adoption Plan provides that the birth father is to receive phone calls or video calls from Alice and any written updates, photos and school reports from the proposed adoptive parents.

13. The proposed adoptive parents have shown respect for Alice’s biological cultural heritage in a number of different ways. They have done research in relation to the birth father’s Italian and Maltese heritage, and the birth mother’s Irish heritage. They have also encouraged and fostered Alice’s interest in ballet, singing, and drama and have provided her with weekly swimming lessons. The proposed adoptive parents have also taken steps to accommodate the birth father’s request that Alice be brought up in the Catholic faith, by having Alice attend Catholic scripture classes at school and, should she show an interest in attending, allow her to attend a Catholic church.

14. The frequency of contact provided for in the Adoption Plan is proper in the circumstances. It is sufficient to promote Alice’s understanding of her biological identity and cultural heritage, which will almost certainly be of importance to her later in life. Alice has never been in the care of her birth father, and the Adoption Plan does not allow for contact between them sufficient for the purposes of building a relationship.

15. The Court is satisfied within Adoption Act 2000, s 90(2) that the arrangements proposed in the Adoption Plan are in the child’s best interests and are proper in the circumstances.

Dispensing with the Birth Father’s Consent

16. The birth father has not provided a signed instrument of consent to Alice’s adoption. Notice of the proposed consent dispense order was provided to the birth father. More than 14 days have passed since notice of the application was given. The birth father was joined as a party to the proceedings by this Court’s orders in July 2018. Orders were made for the plaintiff to serve certain documents on the birth father, and for him to file any evidence in reply. He has not done so.

17. Under s 67 of the Adoption Act 2000, the Court my make a consent dispense order, dispensing with the requirement of consent of a person to a child’s adoption. In particular, the plaintiff seeks to rely on s 67(1)(d), which provides for a consent dispense order to be made where the applicant authorised carers have established a stable relationship with the child and an adoption order by those carers will promote the child’s welfare. And the Court must not make a consent dispense order unless satisfied that to do so is in the best interests of the child: s 67(2).

18. In his Honour’s decision of Re Adoption of RCC [2015] NSWSC 813, Brereton J made the following remarks in relation to the history and rationale of s 67(1)(d):

“Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was a serious cause for concern for the child’s welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006), as enabling consent to be dispensed with where adoption would enhance a child’s sense of belonging and permanence in the carer’s family notwithstanding that there is no concern about the child’s current welfare (as distinct from the child’s welfare at the beginning of the placement). As the Court of Appeal observed in Re Sarah [2013] NSWCA 379, [68] – endorsing what Slattery J had said in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, [59] – the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child’s present situation. Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or her parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will best be served by adoption. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child.”

19. On the evidence, I am satisfied that the interests of Alice will best be served by her adoption by the proposed adoptive parents. The proposed adoptive parents have provided Alice, in my view, with exceptional care for nearly her whole life, and have had an established a stable relationship with her since 2011. Alice’s adoption will enhance her belonging and sense of permanence in this family and will promote her welfare. For that reason, the Court will make the consent dispense order and will also make the adoption order.

The Child’s Name Change

20. The plaintiff also seeks orders for the name change of Alice under Adoption Act 2000, s 101. Section 101 provides that, on the making of an adoption order, the child shall have as her surname and given name or names as the Court, in the adoption order, approves on the application of the adoptive parents. Pursuant to s 101(5), the Court may only order a change of given name if the Court is satisfied that the name change is in the best interests of the child. Before changing the name of a child, the Court must have regard to any express wishes of the child in relation to his or her name. Because of her age, Alice only has a basic understanding of adoption, and is not of sufficient maturity to have considered views or wishes in relation to her name that should be given weight.

21. The name change proposed for Alice, a change of her surname from that of her birth parents to that of her proposed adoptive parents, will avoid Alice being constantly questioned and being reminded that she is adopted. Instead, she will know that she truly belongs to a family who have provided her with love, stability and sustenance since she was 10 months old. The proposed adoptive parents wish to keep one of Alice’s middle names, a name which was chosen by her birth mother and to which Alice has some attachment. Her other middle name, which is the name of her birth father’s mother, will continue her connection to her paternal family. These reminders of and connections to her biological heritage may be of some importance to Alice as she grows older.

Concluding Remarks

22. It is important for the Court to stress that this is not a judgment about the quality of parenting of Alice’s birth mother or father. Rather, these reasons are about what is in the best interests of Alice at this time.

23. I regard the care that the proposed adoptive parents have provided to Alice over the last seven years to be exceptional, and it is in her best interests that it should continue. The Court considers within Adoption Act2000, s 90(3) that the making of this 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 her care.

24. The Court is gratified to see that the proposed adoptive parents and Alice’s birth father have been able to reach an agreement after mediation about the details of the Adoption Plan. In my view, the history of the proposed adoptive parents’ effective communication and their agreement with the birth father means that it is more likely the Adoption Plan will continue to be successfully implemented.

25. Alice’s adoption will encourage a relationship of stability and commitment between all parties, particularly given the agreement between the proposed adoptive parents and the birth father to the terms of the Adoption Plan. But perhaps more importantly, the adoption will provide Alice with a sense of belonging in a family she has known nearly her whole life. It will provide her now, and as she gets older, with a sense of security, permanency and love.

Orders

26. The Court hereby makes the following orders and directions:

1. That pursuant to Adoption Act 2000, s 67(1)(d), the Court dispense with the consent of the child’s birth father [NAME SUPPRESSED].

2. That pursuant to Adoption Act 2000, s 50(3), the Adoption Plan signed by the adoptive parents [NAMES SUPPRESSED] and the child’s birth father [NAME SUPPRESSED] on 11 September 2018, be and is hereby registered.

3. The Court makes an order for the adoption of the child [NAME SUPPRESSED] in favour of the adopting parents [NAMES SUPPRESSED] and approves the name [NAME SUPPRESSED] as the surname and [NAMES SUPPRESSED] as the given names of the child.

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Decision last updated: 10 October 2018