Adoption of C, D, E (ANONYMISED (3 children)

[2021] NSWSC 473

Supreme Court

New South Wales

Medium Neutral Citation:

Adoption of C, D, E (ANONYMISED (3 children) [2021] NSWSC 473

Hearing dates:

5 May 2021

Date of orders:

6 May 2021

Decision date:

19 May 2021

Jurisdiction:

Equity - Adoptions List

Before:

Sackar J

Decision:

Adoption Orders made

Catchwords:

CHILD WELFARE — Adoption — Consent — Dispense order — Best interests

CHILD WELFARE — Adoption — Change of name

Legislation Cited:

Adoption Act 2000 (NSW)

Category:

Principal judgment

Parties:

The Secretary, NSW Department of Communities and Justice by his delegate Principal Officer, Adoptions, Barnardos Australia (plaintiff)
Birth mother (defendant)

Representation:

Counsel:

Solicitors:
Crown Solicitors for NSW (plaintiff)
Self represented (defendant)

File Number(s):

2020/336326

Publication restriction:

Nothing which would identify the parties in this matter

Judgment

1. This an application for the adoption of three children:

1. C, born 13 August 2017;

2. D, born 11 September 2018; and

3. E, also born 11 September 2018.

2. C has lived with the proposed adoptive parents since 21 September 2017 and the twins have lived with the proposed adoptive parents since 20 December 2019.

3. The Children’s Court made Final Orders providing that C be placed under the parental responsibility of the Minister on 16 May 2018, until she turns 18. These orders remain in place.

4. The Children’s Court made Final Orders on 16 December 2019 providing that D and E be placed under the parental responsibility of the Minister until they turn 18. These orders also remain in place.

5. The birth mother was born on 28 July 1980. The birth father was born on 25 March 1969.

6. The birth mother does not appear to oppose the adoption of C but does oppose the adoption of the twins, D and E. The birth father has taken no active role in the proceedings.

7. Relevantly orders are sought for the adoption of the children by the proposed adoptive parents, a dispensation with the consent of the birth parents, a change of name for each of the children and an approval of maternal and paternal adoption plans.

8. Sections 8(1), 90(1)(a) and 90(3) of the Adoption Act 2000 (NSW) (“Adoption Act”) combine to prevent a court from making an adoption order unless it is satisfied that it is in the best interests of the child whose interest is paramount.

9. The Court must be satisfied that adoption is the clearly preferable course. In determining whether adoption is the clearly preferable course and apart from formal statutory requirements the Court must consider that adoption in all the circumstances be the obviously, plainly or manifestly preferable course to order. Here I am satisfied that it is.

10. I am satisfied that all formal requirements have been met. The proposed adoptive parents are entirely suitable (s.45F of the Adoption Act). They have provided a stable and loving environment for each of the children. The bond already created will grow stronger over time very much to the benefit of each of the children concerned. I am satisfied their health, educational and cultural requirements will properly be catered for. Of course because of the ages of the children they are unable to express their wishes or indicate any consent and I have taken those matters into account, s.90(1)(b). It is of considerable importance that the proposed adoptive parents have already adopted two biological siblings to the children, the subject of this application.

11. Further, as against alternatives, I consider that the advantages of adoption with the security and stability that it will bring at the very least far outweighs the preservation of the status quo or any other possible order. The proposed adoptive parents have amply demonstrated their capacity as parents in relation to the biological siblings referred to.

12. Having carefully considered the materials and the submissions provided I am satisfied that restoration is not a realistic possibility. The birth mother who appeared in person at the hearing indicated her natural desire to care for her children. I am not satisfied however given her difficulties, especially those outlined in the Delegate’s affidavit at [34]-[36] and [37]-[39] and Exhibit DKB-1, p.13, that restoration is feasible. No formal application for restoration has been made and she filed no evidence in these proceedings even though she had the opportunity to do so. I accept she is opposed to the application and extremely distressed by it. That said, I do not consider she has the requisite parenting capacity and little insight into her difficulties.

13. In my view the children’s interests, both now and in later life, is best catered for by the making of an adoption order. The birth parents’ consent for an order for adoption is required under s.52 of the Adoption Act. However, the Court is empowered to dispense with such consent. Although a serious step, I am of the view that it is therefore appropriate that I make orders dispensing with the consent of both the birth parents pursuant to s.67(1)(d). I do so because I consider that adoption is the clearly preferable course.

14. A change of name for each child is also sought. I am of the view that the changes are entirely appropriate in the circumstances. I consider they will in time enhance a sense of community and belonging which will be crucial as the years unfold.

15. There are two adoption plans: a maternal and a paternal. The maternal plan is signed importantly by the birth mother and the proposed adoptive parents and of course others in October and November 2020. I am of the view that the plan is appropriate in the circumstances and I would approve of it and its registration. Likewise, I approve of the paternal adoption plan; although it is not signed by the birth father, it is signed by the Delegate and the proposed adoptive parents.

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Decision last updated: 19 May 2021