Adoption of AWM and AGM
[2014] NSWSC 1496
•14 March 2014
Supreme Court
New South Wales
Medium Neutral Citation: Adoption of AWM and AGM [2014] NSWSC 1496 Hearing dates: 14 March 2014 Decision date: 14 March 2014 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Orders for adoption made
Catchwords: FAMILY LAW - child welfare under state legislation - adoption trans-cultural adoption - desirability of culturally appropriate placement Legislation Cited: (NSW) Adoption Act 2000, s 8, s 50(3), s 67, s 72(1), s 88, s 91, s 118 Category: Principal judgment Parties: Secretary, Department of Family and Community Services (applicant)
EM (defendant)Representation: Counsel:
Ms S Christie (applicant)
Solicitors:
Crown Solicitors (applicant)
File Number(s): A180 of 2012
Judgment (ex tempore)
HIS HONOUR: By summons filed on 9 November 2012 and amended on 15 August 2013, the Secretary of the Department of Family and Community Services as plaintiff seeks orders for the adoption of twin children AWM and AGM, born March 2006, in favour of prospective adoptive parents BMS and TAS.
The children were removed from the care of their birth mother EM not many months after their birth and, on 20 June 2006, the Children's Court made final orders allocating parental responsibility for the children to the Minister until they attain 18 years of age.
On 6 November 2006, when they were eight months old, the children were placed with the proposed adoptive parents and have resided with them ever since. A further child was born to EM on 28 October 2010 and that child, B, has also been placed with the proposed adoptive parents since 10 November 2011. No adoption application is made in respect of B at this stage, but the proposed adoptive parents aspire that in due course that they may also be able to adopt B.
The birth mother has an unhappy history of violence and transience and has spent some time in recent years in a correctional centre. Although there has been very occasional contact between the birth mother and the children in recent years, there is no realistic prospect of the children being restored to her care. Moreover, given that the children have resided since they were very young with the proposed adoptive parents, who appear in every way to be admirable parents and whose referees speak highly of their qualities, it would be unnecessarily and unreasonably disruptive to these children to consider restoration after so many years.
EM filed an appearance and indicated that she opposed the making of a consent dispense order and an adoption order. Initially, she appeared in the proceedings by a solicitor and on 28 May 2013, the court made an order pursuant to the (NSW) Adoption Act 2000, s 118, joining her as a defendant. Thereafter affidavits were filed by one JW, claiming to be the father of the children, and also by the birth mother's sister MA, an aunt of the children, which seemed to propose that the children might reside with her. However, EM did not appear at the hearing.
The s 91 report of TG recommends that an adoption order be made in respect of the twins in favour of Mr and Mrs S.
At the request of EM's solicitors, an expert report was obtained from Sarah Armstrong and Alexandra Young dated 20 October 2014, and which I must say I have found to be one of the more useful comprehensive and well researched reports that I have encountered in this jurisdiction. The authors focused particularly on the issues that arise in the context of so-called trans-cultural adoption, given that EM's heritage and culture is Sudanese, she being of the Dinka Tribe in the south of Sudan. While acknowledging the potential that the children will undertake a search in relation to their biological family, the authors recognised that the children would be raised with identifying information about their natural mother, and may have the opportunity of ongoing contact if the terms of the adoption plan are honoured. In response to the question whether, if there were a Sudanese family wanting to look after the children, that would be a better option than adoption by the proposed adoptive parents, they answered that while consideration of cultural connection were significant, and it would have been preferable to have been able to locate a placement within the Sudanese community at the outset, in matters (such as this case) where restoration was not viable and family members did not wish to be assessed for the children's care, culturally appropriate placements were the next best option. Recognising that disruption of placements is a cause of distress and harm to children in out-of-home care, they said that there would need to be strong evidence that a placement was not meeting the child's needs to justify a placement change after a continuous period of care of this duration. As they said:
The authors are unaware of any such concerns in relation to the care being provided to AGM and AWM and as such are unable to propose that placement with a Sudanese family would be a preferable option to their placement of seven years.
They then make a number of recommendations as to the ongoing steps that might be taken to facilitate the children's cultural contact and understanding of their origins and heritage.
After the affidavit of JW was filed, he underwent paternity testing which excluded him as a father of the children. EM has at various times identified other potential fathers, and on other occasions said that she does not know who the father is. Reasonable enquiries have been undertaken and those enquiries have not identified who is the father of the children. While their identify needs would be better served if a father could be identified, that is not always possible, and it seems to me that reasonable steps in that respect have been taken. I am therefore satisfied that the children's natural father cannot after reasonable enquiry be found or identified.
I am also satisfied that the application being made by persons who are authorised carers for the children, the children have established a stable relationship with them and the adoption of the children by those carers will promote the children's welfare.
Accordingly, subject to be being satisfied that making an adoption order is in the best interests of the children, the conditions for dispensing with the consent of the birth father and the birth mother are satisfied.
I am satisfied that notice of the application for a consent dispense order has been given to the defendant at least 14 days before the order is made.
I am satisfied that notice of the application for a consent dispense order need not be given to the birth father because s 72(1) does not apply as the birth father cannot after reasonable enquiry be identified.
I am satisfied that at least 14 days' notice of the application for the order containing the prescribed particulars has been given to the birth mother and to all persons other than the birth father whose consent is required and has not been given.
Pursuant to s 88(4) I will dispense with the giving of notice under s 88(1) to the child's birth father.
I am satisfied that taking into account all relevant matters referred to in 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 the children will be noted by adoption by the proposed adopting parents.
I am satisfied that as far as practicable, and having regard to the age and understanding of the children who are now almost eight years of age, the wishes and feelings of the children have been ascertained and due consideration given to them.
I am satisfied that the prospective adoptive parents have been selected in accordance with the Act.
I am satisfied that consent to the adoption of the children has been given by every person whose consent is required under the Act or that in the case of the birth mother and the birth father, such consent should be dispensed with.
I am satisfied that the culture, language and religion of the children, and as far as possible the children's given names, identity, language and cultural and religious ties have been taken into account in the making of the adoption plan.
The adoption plan contains provisions for contact with the birth mother four times a year, contact with her sister and her sister's family five times a year and undertakings to take a number of steps consistent with the recommendations of the experts to which I have referred to foster and sustain the development by the children of an understanding of their cultural origins and, in particular, contact with their Dinka culture and background. I do emphasise that it will be very important in these children's interests, particularly as they move into their teenage years, that they have a sound understanding and appreciation of those origins. I also suspect that their ability to deal with the challenges and the searches that many children of trans-cultural adoptions experience in their teenage years will be facilitated if they have ongoing contact with their birth mother.
I am satisfied that, the parties to the adoption having agreed to an Adoption plan, the arrangements proposed in the plan are in the children's best interests and proper in the circumstances.
I consider that the making of an adoption order would be clearly preferable in the best interests of the children than any other action that could be taken by law in relation to the care of the children. Accordingly I will make a consent to dispense order and an order for the adoption of the children by the proposed adopting parents.
It is proposed that each child retain the name M as a middle name, and otherwise will retain their present first name and adopt the surname or family name of the adoptive parents. In my view this is entirely appropriate. The children's first names will be preserved, and the adoption of their current family name as a second name will assist in preserving their identities and understanding of their origins. Accordingly, AWM is to have the name S as the surname and AWM as given names, and AGM is to have the surname S and the given names AGM.
In respect of the child AGM born March 2006, the court orders that:
(1) Pursuant to the Adoption Act 2000, s 67(1)(d), the consent of the child's natural mother EM be dispensed with.
(2) Pursuant to Adoption Act 2000, s 67(1)(a) and s 67(1)(d), the consent of the child's natural father be dispensed with.
(3) Pursuant to Adoption Act 2000, s 88(4) notice of the adoption application to the child's natural father be dispensed with.
(4) The adoption of the child AGM in favour of the adopting parents BMS and TAS and approves the name S as the surname and AGM as the given names of the child.
(5) Pursuant to Adoption Act, s 50(3), the amended adoption plan in relation to EM be registered.
In respect of the child AWM born March 2006, the court orders that:
(1) Pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child's natural mother EM be dispensed with.
(2) Pursuant to Adoption Act 2000 s 67(1)(a) and s 67(1)(d) the consent of the child's natural father be dispensed with.
(3) Pursuant to Adoption Act 2000 s 88(4) notice of the adoption application to the child's natural father be dispensed with.
(4) The adoption of the child AWM in favour of the adopting parents BMS and TAS and approves the name S as the surname and AWM as the given names of the child.
(5) Pursuant to Adoption Act 2000 s 50(3), the amended Adoption plan in relation to EM be registered.
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Decision last updated: 27 November 2014
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