Adoption of AT

[2016] NSWSC 1971

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of AT [2016] NSWSC 1971
Hearing dates:	Friday, 19 February 2016
Date of orders:	19 February 2016
Decision date:	19 February 2016
Jurisdiction:	Equity - Adoptions List
Before:	Brereton J
Decision:	Adoption order made and change of surname approved
Catchwords:	FAMILY LAW AND CHILD WELFARE – adoption – whether making an adoption order clearly preferable to any other order that could be made with respect to the care of the child – consent dispense order – whether child’s surname should be changed
Legislation Cited:	(NSW) Adoption Act 2000, s 50, s 67(1)(d)
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services (plaintiff) CK (defendant mother)
Representation:	Counsel: T Stevens (plaintiff) A Petrie (defendant)   Solicitors: Crown Solicitors (plaintiff) Robert Tricca & Associates (defendant)
File Number(s):	A168/2014

Judgment (ex tempore)

1. HIS HONOUR: The child A was born on 23 August 2009, the daughter of TT and the defendant CK. She was removed from her mother's care pursuant to an order of the Children's Court on 9 September 2009, when she was but a couple of weeks of age. After a number of relatively short-term foster placements, she was placed, at the age of 16 months, with the adoptive applicants RIT and BT on 22 December 2010 with a view to adoption, and has resided with them ever since. By summons filed on 12 November 2014, the Secretary seeks an adoption order in favour of RIT and BT; consent dispense orders in respect of both birth parents' consent in order to enable the adoption order to be made; and an order approving T as the surname and A as the given name of the child. Pursuant to an amendment to the summons made today, the Secretary also seeks registration of a maternal adoption plan, which provides for ongoing contact between A and her birth mother CK.

2. The birth father has been given all requisite notice of the proceedings, and has not sought to participate in them. It is a fair inference, from the evidence of conversations that have taken place with him, that he does not oppose an adoption, and although not willing formally to consent, considers that such an order would be in his daughter's interests.

3. The birth mother opposes an adoption order and a change of surname, but without for a moment consenting to the adoption, has agreed to the terms of the proposed adoption plan in respect of future contact, should an adoption order be made.

4. There is no issue that the jurisdictional, formal and notification prerequisites to an adoption order being made have been satisfied. Formerly there was an issue about the extent of contact with the birth mother and the contents of the maternal adoption plan, but that has been resolved this morning. The remaining issues are, essentially, whether adoption is clearly preferable to the alternatives (which, in the context that the birth mother does not propose restoration, or maintenance of the status quo or a parental responsibility order in favour of the adoptive applicants); whether a consent dispense order should be made in order to permit an adoption order to be made; and finally, whether, if an adoption order is made, the child's surname should be changed to that of the adoptive applicants.

5. It is clear that A is very settled in her placement and doing very well, and is attached to the adoptive applicants. The adoptive applicants are plainly meeting her physical, emotional and psychological needs. They have provided quality parenting for her now for 5 years, and their parenting capacity is acknowledged by the birth mother, who seems to like them and get on well with them. In the context that restoration is not proposed, a fundamental consideration in this case is that, in one way or another, A is going to continue to reside with the adoptive applicants indefinitely, and foreseeably for the remainder of her childhood. She plainly perceives their family as her family, and identifies with them as her mother and father.

6. On the other hand, her relationship with her birth parents has been a limited one. She has had very little contact at all with her birth father – the latest was around 2013. She has developed a relationship with her birth mother although, except for perhaps a short time following birth, she has never lived with her. That relationship has been developed through contact which has been supported by the adoptive applicants and the Department, notwithstanding that no contact orders were made in connection with the parental responsibility orders. In the course of that contact, it has become clear that A knows that CK is her birth mother, and despite what must have been the challenges and frustrations that she encountered, CK has demonstrated great commitment and ongoing interest in A's welfare and growth. In addition, she has undertaken a number of programmes and courses to acquire and improve her life skills, her resilience and, in particular, her parenting capacity. That is not to say that she does not still have some issues, as is evident from the unfortunate incident with the police late last year. Nonetheless, she has made tremendous strides in improving her life skills and parenting capacity; but she does not suggest that after 5 years of a stable and secure placement, restoration would be in A's best interests, and that represents on her part a mature, realistic, and, I am sure, very difficult judgment. It also demonstrates how far she has come in being able to recognise and prioritize her child’s best interests.

7. This is not a case in which, if an adoption order is made, the birth mother will be a mere distant figure occasionally seen at contact. It seems to me that CK has a significant commitment to and interest in A, whatever the outcome, and that A will have the good fortune of having a positive relationship with her birth mother as well as with the adoptive applicants with whom she resides.

8. All that said, in a situation where A is going to continue to reside with the adoptive applicants, there are many and indeed overwhelming advantages for an adoption order over the alternatives. Fundamentally, these include bringing the legal situation into accord with practical reality, in that those who are exercising and discharging the responsibilities of parenthood will stand in the legal position of parents; that A will cease to be a state ward, whose care requires ongoing involvement of the Minister or the Department in significant decisions; and that responsibility for decisions about her short- and long term-care will thereafter be vested in those who love and know her best, and are best positioned to make such decisions – much better than the most well-intentioned departmental officer could be. Importantly, an adoption order will perfect A's status as a full member of the family of the adoptive applicants, and in that way, provide her with a sense of belonging and security, which it is recognised generally produces better outcomes in adopted children than in children in long-term fostering arrangements.

9. The only negative in respect of adoption is that it will sever the legal tie of parenthood with A’s birth parents; but severing the legal tie does not sever the biological tie, and what is important is that A knows who her birth parents are, and has a relationship with them, and with the siblings in her birth family, and understands why she does not live with them.

10. It is very clear in this case that the adoptive applicants have been, and will continue to be, supportive of contact with CK. As I have foreshadowed, they and CK appear to get on well and respect each other, and arrange contact between themselves already, without the intervention of Community Services. The negotiations that have culminated in the revised maternal adoption plan are further indications that I can have confidence that A's relationship with her birth mother will be well sustained in the future.

11. The s 91 reporter Ms Gray well summarises the situation in her report:

A has been with R and B since she was nearly 16 months of age. She has no recall of living with different carers, and regards R and B as her parents. She is emotionally robust and has strong attachments to R and B, and fully identifies as a member of her foster family. An adoption order would reflect her permanent place in that family both now and in the future. Importantly, unlike the status quo or a parental responsibility order, it would make her a member of that family for life, and not just during childhood.

12. As Ms Gray pointed out, A has regular contact with her mother and the siblings in her family of origin, although not with her father. Ms Gray observes that RIT and BT are committed to birth family contact, and take an active role in organising it so that family members can meet and share positive times. This means that a month does not go by without A having contact of some kind with her birth family. According to Ms Gray, RIT and BT see it as critical for A to grow up knowing her birth family and understanding her story, and it seems to me that they have demonstrated that in a practical way through what has happened with contact to this point. Ms Gray recommends that A's long-term placement with RIT and BT progress to adoption.

13. It was submitted on behalf of CK that adoption and a change of name would confuse A if she sustains her relationship with her birth mother. I do not accept that this would produce confusion for a child. Nowadays, children are exposed to many more challenging, more ambiguous and more complex family relationships than this – in the context of blended families, same-sex parent families and surrogacy. It is by now clear that children have little difficulty in understanding and adapting to these situations. Here, it is clear that A enjoys contact not only with her birth mother, but also with the siblings of her family of origin. That means that as she grows she will be very well aware of her family of origin and her place in it, while at the same time living with and identifying with the family that has cared for her since she was less than two years old. She will be fortunate in that way to have two families of which she will be a member.

14. So far as the change of name is concerned, the surname that a child bears is an important identifier of membership of a family. It is an exceptional case, when an adoption order is made, that the child's surname would not be brought into accord with the family name of the adoptive parents, principally because one of the purposes of adoption is to place the child in the status and position of a full member of that family, and adopting that family's surname is a significant aspect of doing so. In this case, A is already using the surname T at school. In my view, as an adoption order is to be made, its effect should be reflected in the change of surname.

15. While making a consent dispense order is a serious step, when the application is made under (NSW) Adoption Act 2000, s 67(1)(d) – as it is here – where the adoptive applicants are authorised carers with whom the child has an established and settled placement, then if the Court comes to the conclusion that it is in the child's best interests that an adoption order be made, it will usually follow that a consent dispense order should also be made. That is because the practical effect of s 67(1)(d) is to reduce the significance of parental consent in the situation that a court of competent jurisdiction – in this case, the Children's Court – has already placed the child permanently in out-of-home care.

16. In this case, it is not in issue that the adoptive applicants are authorised carers with whom the child has developed a close relationship in excess of two years, and the necessary grounds for a consent dispense order are established. I am satisfied that it is in A's interests to make such an order, in order to enable an adoption order to be made.

17. The Court is also asked to register the maternal adoption plan. The fundamental purpose of contact in the context of adoption is to assist the child to know or learn of her or his identity, and the components of it, and to provide the child with knowledge and information on which to make her or his own judgment in the future as to how to pursue relationships with the family of origin. In this case, as it is clear that a relationship between A and CK has now already been fostered through contact, and that that relationship is enjoyed by A and is an important source of satisfying her identity needs now and in the future, it is important that that relationship be sustained.

18. The maternal adoption plan – amended as it has been, by providing for an increase in contact to five occasions each year, two of them being exclusively with CK, and the others also involving other siblings – will well serve A's needs in that respect. As has been pointed out, more frequent contact than that, given the complexities and family dynamics involved, would involve considerable logistical difficulties at this stage; although, if A wishes to pursue that in the future, it plainly remains an option.

Orders

19. The Court orders that:

1. Pursuant to (NSW) Adoption Act 2000, s 67(1)(d), the consent of the child's natural father be dispensed with.

2. Pursuant to (NSW) Adoption Act 2000, s 67(1)(d), the consent of the child's natural mother be dispensed with.

3. There be an order to the adoption of the child, A in favour of the adopting parents, and the Court approves the name T as the surname, and A as the given name of the child.

4. Pursuant to (NSW) Adoption Act 2000, s 50, the maternal adoption plan dated 19 February 2016, and marked as exhibit PX02, be and is hereby registered.

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Decision last updated: 25 May 2018