Adoption of C

[2018] NSWSC 267

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of C [2018] NSWSC 267
Hearing dates:	6 March 2018
Date of orders:	06 March 2018
Decision date:	06 March 2018
Before:	Ball J
Decision:	Order for adoption of child and approval of change to child's name
Catchwords:	FAMILY LAW – Adoption – Whether an adoption order should be made without the child’s consent under s 55 of the Adoption Act 2000 (NSW) FAMILY LAW – Adoption – Application for a consent dispense order under s 67 of the Adoption Act 2000 (NSW) FAMILY LAW – Adoption – Application to dispense with requirement to give notice of proposed consent dispense order under s 72 of the Adoption Act 2000 (NSW) FAMILY LAW – Adoption – Application to dispense with requirement to give notice of proposed adoption order under s 88 of the Adoption Act 2000 (NSW)
Legislation Cited:	Adoption Act 2000 (NSW) Adoption Regulation 2003 (NSW) Adoption Regulation 2015 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	Re ASK and the Adoption Act 2000 [2017] NSWSC 521 The Application of the Director General re Adoption of JMS and LJS [2012] NSWSC 786
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services
Representation:	Solicitors: Crown Solicitor (Plaintiff)
File Number(s):	A210/2017
Publication restriction:	This version is for publication and uses pseudonyms for the child, the proposed adoptive parents and the birth parents

Judgment (Ex tempore)

1. Before me is a Summons filed on 22 December 2017 on behalf of the adoptive parents, whom I will refer to as Mr and Mrs Lionel, seeking an order for adoption of a child, whom I will refer to as Charlie, and related orders pursuant to the Adoption Act 2000 (NSW) (the Act).

2. Charlie was born on 13 June 2003 and is 14 years of age. He has been under the parental responsibility of the Minister for Family and Community Services since 29 July 2003, initially pursuant to s 72 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care and Protection Act). On 17 August 2004, the Children’s Court of New South Wales made final orders placing Charlie under the parental responsibility of the Minister until the age of 18.

3. Charlie has lived continuously with Mr and Mrs Lionel since 22 November 2006. Charlie has established a strong and stable relationship with them and their three biological children. Mr and Mrs Lionel are “authorised carers” of Charlie within the meaning of the Act because they have the care and responsibility for Charlie under out-of-home care arrangements made under the Care and Protection Act.

4. From the evidence provided, the parenting capacity of Charlie’s natural parents appears to be limited as a result of concerns relating to their mental health, drug abuse and transience. The evidence establishes that there are no reasonable prospects of Charlie being restored to their care.

The requirement of consent

5. 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. However, s 54 provides that consent is not required under s 52 if, relevantly, the requirement for the consent has been dispensed with by the Court (s 54(1)(a)) or the child gives sole consent to his or her adoption in accordance with s 54(2). That provision states that a child who is 12 or more and of sufficient maturity to understand the effect of consent may give sole consent to his or her adoption if the child has been cared for by the proposed adoptive parent or parents for at least 2 years.

6. Section 55(1) of the Act provides that the Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless certain conditions are satisfied. Section 55(2) provides that the Court may make an adoption order in relation to such a child who is incapable of giving consent if the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order.

7. Section 66 of the Act provides that the Court can dispense with the requirement of consent by making a consent dispense order. It may make a consent dispense order in relation to the requirement of consent of someone other than a child if, relevantly, 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, the child has established a stable relationship with those carers, and the adoption of the child by those carers will promote the child’s welfare: s 67(1)(d). However, it must not make such an order unless satisfied that to do so is in the best interests of the child: s 67(2).

8. The Court may make a consent dispense order in relation to the requirement of consent of a child who is 12 or more but less than 18 years of age if the Court is satisfied that the child is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent: s 69(1).

9. Notice of a consent dispense order must be given under section 72(1). However, the court can dispense with that notice under s 72(2).

10. Under s 88(1), notice of an order seeking an adoption must also be given to a person whose consent is required or in respect of whom the requirement of consent has been dispensed with. However, the court may dispense with the giving of the notice under s 88(4).

11. In this case, Charlie’s consent has not been sought. The evidence establishes that he suffers from autism spectrum disorder and a moderate intellectual disability which means that he does not have the capacity to understand the adoption process, the change to his birth certificate and the change in his legal relationship with his birth family that will result from his adoption. However, he told the assessor who interviewed him that he likes his adopted family, he knows that they love him and that they make him happy, and that he is in favour of adoption because it will mean that he can live with his family forever.

12. I am satisfied that Charlie is incapable of giving consent to his adoption. The question, then, is whether “the circumstances are exceptional and that it would be in the best interests of the child to make the order”: s 55(2). In my opinion, both these requirements are met in this case. The circumstances will be regarded as “exceptional” if “taken as a whole, the circumstances are such as to justify an exception from the ordinary rule being made”: see The Application of the Director General re Adoption of JMS and LJS [2012] NSWSC 786 at [23] per Brereton J. Here, Charlie is unable to give his consent because of his intellectual disability. There is no reason to think that those circumstances will change. He has clearly established close bonds with his adopted family and they with him. He is thriving under their care. Adoption will give him security in the future. Those matters together justify a departure from the ordinary rule that an order should not be made without his consent. Those same factors establish that it would also be in Charlie’s best interests that the order be made.

13. An order is also sought, out of what is said to be an abundance of caution, dispensing with Charlie’s consent under s 69 of the Act. The relationship between s 55 and s 69 is not clear. However, in my opinion, it is neither necessary nor desirable to make an order under s 69. It is not necessary because, on the findings I have made, Charlie’s consent is not required. It is not desirable because such an order might suggest that Charlie’s consent is required in circumstances where I have found that it is not.

14. The inability of Charlie to consent to his own adoption requires either the consent of his natural parents or orders dispensing with their consent: see s 52.

15. I am satisfied that the child’s natural father, whom I will refer to as Tim, has given his consent in accordance with the Act..

16. There is no signed consent from Charlie’s natural mother, whom I will refer to as Nancy. However, in my opinion, it would be appropriate to dispense with her consent.

17. It is clear from the evidence before me that Charlie has established a stable relationship with the proposed adoptive parents. He has lived with Mr and Mrs Lionel for the majority of his life. It is also clear that the adoption would promote Charlie’s welfare. Making an order to dispense with Nancy’s consent would clearly be in his best interests because it would permit the adoption to proceed.

18. In my opinion, it is also appropriate to dispense with the requirements to give notice to Nancy of a proposed consent dispense order under s 72(2)(c) of the Act and to dispense with the requirement to give notice of the adoption under s 88(4). A number of attempts have been made to engage Nancy in relation to the adoption process. It is clear from the evidence that she does not wish to be involved and that any further attempts to involve her may well cause her distress and threaten her own well-being.

The requirements of s 90 of the Act

19. Before the court can make an adoption order, it must be satisfied that the requirements of s 90(1) of the Act have been met. It is not necessary for me to read them out.

20. I am satisfied that the requirements have been met in this case. For the reasons I have already given, Charlie’s best interests will be promoted by the adoption. I am also satisfied on the evidence that the prospective adoptive parents have been selected in accordance with the Act, the consent of every person whose consent is required under the Act for the adoption has been either obtained or dispensed with, the matters set out in para 90(h) of the Act have been taken into account in making the adoption plan in relation to the adoption, the parties to the adoption have agreed to an adoption plan and the arrangements proposed in the plan are in the Charlie’s best interests and are proper in the circumstances.

Change of name

21. An order is also sought pursuant to s 101(1)(b) of the Act approving a change in Charlie’s name to Charlie Damien Benjamin Lionel. I am satisfied that that order is in Charlie’s best interests. The change in name will give Charlie a sense of belonging in his new family. His given names will include his natural mother’s family name, which will also provide him with a connection to his natural mother’s family.

Orders

22. Accordingly, I am satisfied that the orders of the court should be:

1. an order pursuant to s 67(1)(d) of the Adoption Act that consent of the child’s natural mother be dispensed with;

2. an order pursuant to ss 72(2)(c) and 88(4) of the Adoption Act that service of the notice of the adoption application on the child’s natural mother be dispensed with;

3. an order for the adoption of the child in favour of the adopting parents; and

4. approval of the name Lionel as the surname and Charlie Damien Benjamin as the given names of the child.

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Decision last updated: 06 March 2018