Adoption of HMJ
[2014] NSWSC 406
•09 April 2014
Supreme Court
New South Wales
Medium Neutral Citation: Adoption of HMJ [2014] NSWSC 406 Hearing dates: In Chambers Decision date: 09 April 2014 Jurisdiction: Equity Division Before: Darke J Decision: Order made for adoption of child and approval of a change to child's surname.
Catchwords: FAMILY LAW AND CHILD WELFARE - adoption - whether applicable requirements satisfied - whether adoption is in best interests of the child - adoption order made - application for approval of change in child's surname - whether change of name is in best interests of the child - approval for change of name given Legislation Cited: Adoption Act 2000
Children (Care and Protection) Act 1987
Children and Young Persons (Care and Protection) Act 1998Category: Principal judgment Parties: The Director-General, Department of Family and Community Services Representation: Solicitors: I V Knight, Crown Solicitor
File Number(s): A162 of 2013 Publication restriction: Nil
Judgment
By an Amended Summons filed on 1 November 2013 by the Director-General of the Department of Family and Community Services on behalf of a prospective adoptive parent, JE, an order is sought for the adoption of a child, HMJ, in favour of JE. An order approving a change in the child's name from HMJ to HME is also sought.
The evidence in support of the Summons comprises an affidavit sworn by JE, the affidavits of two character referees, two affidavits sworn by a delegate of the Director-General, and affidavits of service of notice of the application upon HMJ's mother and upon HMJ's putative father. Neither HMJ's mother nor her putative father have appeared, or otherwise sought to participate in the proceedings.
HMJ was born on 26 February 2000. She is 14 years of age. On 30 August 2000, the Children's Court made an order under s 72 of the Children (Care and Protection) Act 1987 declaring HMJ to be a ward. On 29 July 2008, the Children's Court made a final order under the Children and Young Persons (Care and Protection) Act 1998 that HMJ be placed under the parental responsibility of the Minister until HMJ attains the age of 18 years. For all but the first few days of her life, HMJ has been in the care of JE.
JE is 51 years of age. She is not married, and is not in a de facto relationship. JE does not have any biological children or adopted children. She is currently caring for HMJ as well as for AGB, a boy who is now 17 years old. An adoption application in respect of AGB in favour of JE is also before the Court.
A comprehensive account of HMJ's history is contained in the two affidavits sworn by the delegate of the Director-General. The evidence reveals that when HMJ was born, her mother was not capable of caring for her. HMJ was placed into the care of JE and her then husband on 3 March 2000. They were already caring for AGB. HMJ's putative father was initially not able to be located. Information which subsequently became available about him suggested that he, too, would not have been capable of caring for HMJ.
HMJ's mother has three other children. Two are older than HMJ. They live in Queensland with foster carers. The other child is younger than HMJ, and has remained in the care of her mother. HMJ's mother has from time to time expressed a wish that the three children out of her care might be restored to her. Nevertheless, in 2000, she supported HMJ remaining with JE and JE's then husband on a long-term basis. HMJ's putative father has never sought to become involved in HMJ's upbringing.
JE and her husband separated in 2006, and were divorced in 2010. JE's former husband has ceased to be a carer of HMJ and AGB. However, regular contact has been maintained between the children and JE's former husband.
In December 2006, JE and the children moved in to live with a friend of JE's, and the friend's two children. Later, JE and her friend began a relationship and her friend became a carer of HMJ and AGB. However, difficulties emerged between JE and her friend and they no longer live together. Since that time, HMJ and AGB have remained under the care of JE living in a suburb of Sydney. HMJ continues to have contact with her mother and her mother's three other children. An adoption plan, made pursuant to Part 4 of Chapter 4 of the Act, provides for those contact arrangements to continue.
There is no doubt that HMJ falls within s 24(1) of the Adoption Act 2000 ("the Act") as a child in relation to whom an adoption order may be made. It is also clear that JE satisfies the requirements of s 27 of the Act which concerns the making of an adoption order in favour of one person only. JE is domiciled in New South Wales and she satisfies the relevant age requirements. Moreover, the evidence establishes that she is plainly of good repute and a fit and proper person to fulfil the responsibilities of a parent. There is no doubt that the Court has jurisdiction under s 23 of the Act to make an order for the adoption of HMJ by JE.
The Court cannot make an adoption order unless it is satisfied that the requirements set out in s 90(1) of the Act are fulfilled. These are, relevantly:
(a) that the best interests of the child will be promoted by the adoption, and
(b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and
(c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child - that the prospective adoptive parent or parents have been selected in accordance with this Act, and
(d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and
...
(h) the case of a child (other than an Aboriginal or Torres Strait Islander child) - that the culture, language and religion of the child, and as far as possible, that the child's given names, identity, language, and cultural and religious ties have been taken into account in the making of any adoption plans in relation to the adoption.
Section 8 of the Act outlines the principles to be applied when making decisions about the adoption of a child. By section 8(1) of the Act, the best interests of the child is expressed to be the paramount consideration. By section 8(2) of the Act, it is provided that in determining the best interests of the child, a decision maker is to have regard to various matters. In addition, section 32(1) of the Act provides that in placing a child (other than an Aboriginal or Torres Strait Islander child) for adoption, a decision maker must take into account certain matters including the principle that the child's given name, identity, language and cultural and religious ties should, as far as possible, be preserved. Finally, as HMJ is under the age of 18, the Court may not make an order for her adoption unless a report which complies with s 91 of the Act has been provided to the Court. Such a report is annexed to one of the affidavits sworn by the delegate of the Director-General.
Having considered the affidavit evidence referred to above, I am satisfied of the matters set forth in s 90(1) of the Act to the extent that they are relevant to this case.
The proposed adoption appears to be clearly in the interests of HMJ. She has spent almost all of her life under JE's care and their relationship is apparently close and strong. She relates to JE as her parent. JE provides a secure and supportive environment for HMJ. HMJ has also developed a strong sibling relationship with AGB. Despite experiencing some health issues and learning difficulties, HMJ now seems to be progressing well at school. JE has shown a determination to have these problems appropriately dealt with for HMJ's benefit.
HMJ would like the adoption to proceed. Discussions about adoption, including in relation to AGB, have been held within the family over a number of years. HMJ has an understanding of her family history and the reasons why she came into JE's care. HMJ is aware of a reluctance on the part of her mother to formally consent to the adoption, but HMJ wants it to proceed nonetheless. HMJ apparently sees herself (together with AGB) as part of JE's family, and considers that adoption would be a confirmation of that situation. HMJ feels that adoption will simplify matters for her which are seen as being "all complicated".
There is no doubt that JE has been appropriately assessed, pursuant to s 45 of the Act, as a suitable person to adopt a child. There is no reason to doubt that she is capable of appropriately discharging the responsibilities of a parent. There is clear evidence that she takes seriously her responsibilities as a carer of HMJ and AGB, and will continue that attitude if the adoption proceeds.
HMJ has given her formal consent to the adoption. I am satisfied on the evidence that this consent satisfies s 54(2) of the Act and the other relevant provisions of the Act, such that no further consent is required under s 52 of the Act. In November 2013, notice of the application was given to HMJ's mother and also to HMJ's putative father. HMJ's mother, who has from time to time expressed the wish that HMJ may eventually be placed in her own care, has not positively stated that she supports the proposed adoption. However, she has become a party to an adoption plan which makes provision for continued contact to occur between HMJ, her mother and her mother's other children. HMJ's putative father has not been involved with her upbringing. Nevertheless, he has expressed support for the proposed adoption (as has JE's former husband).
There is obviously no need for any notice of the application to be given to the Director-General or JE, on whose behalf the application is made. Accordingly, I dispense with any requirement for such notice. I am therefore satisfied that the requirements of s 54(3) of the Act present no barrier to the making of an adoption order in this case.
Further, to the extent that s 88(1)(b) of the Act would require notice of the application to be given to AGB, I dispense with the need for the giving of such notice.
I am also satisfied that in the making of the adoption plan, which provides for HMJ to continue to have contact with HMJ's mother and her three other children, the matters referred to in s 90(1)(h) of the Act have been taken into account.
There is every reason to think that, if the adoption proceeds, HMJ will continue to have contact with her mother's family. JE has facilitated such contact over the years. In circumstances where HMJ's putative father has not been involved in her upbringing, there are, understandably, no plans for HMJ to have any contact with him or his family. It is proposed that HMJ will keep her given names. It is likely that HMJ's cultural background and identity will be appropriately preserved if the adoption proceeds.
Having considered all of the evidence, I consider that adoption, above any other option for HMJ's care, would best serve HMJ's needs. Apart from being something which HMJ herself wishes, the proposed adoption would provide HMJ with clarity and certainty concerning her place in the family with JE and AGB. It would also enhance the familial relationship that currently exists between HMJ, JE and AGB, and foster a stronger family identity.
For the above reasons, the Court will make an order for the adoption of HMJ in favour of JE.
An order is also sought pursuant to s 101(1)(b) of the Act approving a change in HMJ's name. The proposed change is only to the surname so that HMJ will have the same surname as JE. HMJ has been enrolled in school under the surname E and is known socially by that surname. The surname E is also used socially by AGB. HMJ has, as part of her formal consent to the adoption, requested that upon the making of the adoption order, the proposed change in surname occur. The proposed change seems to me to be clearly desirable in HMJ's interests. It will remove what HMJ sees as the complication of having two last names, and will further foster the family identity. Accordingly, I approve the proposed change in the name of HMJ to HME.
The Court makes an order for the adoption of the child HMJ in favour of the adopting parent JE, and approves the name E as the surname, and HM as the given names, of the child.
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Decision last updated: 10 April 2014
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