Adoption of K (anonymised)

[2020] NSWSC 683

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Adoption of K (anonymised) [2020] NSWSC 683
Hearing dates:	25 May 2020
Date of orders:	25 May 2020
Decision date:	03 June 2020
Jurisdiction:	Equity - Adoptions List
Before:	Sackar J
Decision:	Adoption Orders Made
Catchwords:	FAMILY LAW – Children – Adoption – Whether adoption clearly preferable – whether adoption is in child’s best interests – whether the consent of the birth parents ought to be dispensed with – contact – adoption plans – change of name
Legislation Cited:	Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	Adoption of NG (No 2) [2014] NSWSC 680 Adoption of RCC and RZA [2015] NSWSC 813 Adoption of Taylor-Clay [2019] NSWSC 27 OA v Secretary, Department of Communities and Justice [2019] NSWCA 322
Texts Cited:	n/a
Category:	Principal judgment
Parties:	Secretary, New South Wales, Department of Communities and Justice (plaintiff) M K (first defendant) N O S (second defendant)
Representation:	Counsel: C McGorey (plaintiff) No representation (first defendant) Ms D Kaiti (second defendant)   Solicitors: NSW Crown solicitors (plaintiff) Self represented (first defendant) Self represented (second defendant)
File Number(s):	2019/175482

Judgment

1. These proceedings concern the application for the adoption of L who has just turned 5 years of age.

2. I heard the matter on 25 May 2020. It was initially to be heard on 17 April 2020, but was adjourned to enable both the birth parents to the proceedings to obtain legal assistance.

3. Up until the morning of the hearing which was fixed for two days the application was opposed by the birth parents. However prior to the matter proceeding I was informed the parties were in discussion and had asked for an adjournment for the purposes of exploring further the possibility of resolving the matter. Those discussions proved fruitful and ultimately apart from reaching a consensus on contact arrangements the birth parents also withdrew their opposition to the application but still did not formally consent to it.

4. That said the court needs still to be satisfied of the various statutory requirements. I had the benefit of reading carefully the materials provided, some of which had been previously before the court.

5. In addition the court was supplied with an updating affidavit of Ms Tarina Ambesi, caseworker on behalf of the Secretary, and Mr S, the birth father, supplemented his earlier evidence (date 12 November 2019) with additional material in his affidavit of May 2020. I have read all this material carefully.

6. The parties’ legal representatives helpfully supplied detailed written submissions, parts of which became otiose as a result of the consensus.

7. Having heard the parties I decided that an order for adoption should be made and did so on 25 May. I indicated I would provide short reasons in due course, these are they. I should say however in passing that the factual background together with a detailed chronology attached to the Secretary’s submissions is not controversial and I accept those matters as accurate and have based my decision on that history.

8. L has lived continuously with the adoptive parents since she was about three months old. They have their own biological daughter, P, who is about three years old. The adoptive mother is in fact the birth mother’s first cousin.

9. In order to make an order for adoption the court has to take into account importantly the provisions of s.8(1) of the Adoption Act which requires the court to place as its paramount consideration the best interests of the child (see also s.90(1)(a)) and further the court must be satisfied that adoption is the clearly preferable course (s.90(3)). That ultimate conclusion is underpinned by the court being satisfied of a number of related matters. In determining the best interests of the child the court must have regard to the factors set out in s.8(2).

10. Here given her age L’s wishes are not really able to be assessed but it is clear from the materials that she feels secure and unsurprisingly identifies the adoptive parents as her mother and father and P as her sister. As she gets older she will obviously learn more about her birth family. There is no doubt in my mind that the adoptive parents who are authorised carers under Part 8 of the Children and Young Persons (Care and Protection) Act 1998 are appropriate to become her legal parents. They have provided her with a loving stable and secure environment in which to grow up. They are attuned to her psychological and physical needs. Given the rather fortuitous connection between the birth mother and the adoptive mother there is a special familial and cultural bond which is very much in L’s interest and I think will enhance the contacts. I am satisfied that the adoptive parents comply with all relevant statutory requirements (ss. 90(1)(c), 45F and 28 in particular). I am of the view that each is of good repute and are fit and proper persons to fulfil the responsibilities of parents: s.28(1).

11. I also take the view that restoration to either birth parent is unrealistic, not that it has seriously been contended for here. It does not seem to me that any option other than adoption is appropriate for L, particularly having regard to the observations of Brereton J (as his Honour then was) in Adoption of NG (No 2) [2014] NSWSC 680 at [14]-[17] and Adoption of Taylor-Clay [2019] NSWSC 27 (recently approved by the Court of Appeal in OA v Secretary, Department of Communities and Justice [2019] NSWCA 322 at [57]). Happily for L and the future of the relationship between all the relevant adults the ultimate position taken by the birth parents was a fair and totally reasonable acceptance by them that L’s interests will be advanced by an order for adoption. For that they must rightly be given credit.

12. Having formed the view that adoption is the clearly preferable option (s.90(3)) there are other matters requiring separate consideration; namely dispensing with the birth parents’ consent, the proposed name change and the terms of the amended maternal and paternal plans.

13. Because I have formed the view that adoption is the clearly preferable course it is virtually axiomatic that I would dispense with the consent of the birth parents pursuant to s.67(1)(d) and because it is therefore in her best interests that consent be dispensed with (s.67(2)). The parents received the prescribed notice of the consent dispense order application for the purposes of s.72.

14. The Secretary has also applied for a name change. The change is sought in two respects. First the addition of ‘Q’. That is a name she in facts calls herself. Secondly that she take the surname ‘R’, the surname of the adoptive father. As to the surname she has used that name since starting day care in 2017 and it is of course the name used by her foster sister. In my view both changes are entirely appropriate. The change goes in my view a long way towards promoting further stability and security for her: see s.101; Adoption of RCC and RZA [2015] NSWSC 813 at [105].

15. I have again reviewed the proposed maternal and paternal adoption plans in their amended form and regard them as appropriate and I approve them (s.90(2)).

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Amendments

03 June 2020 - removed duplicate coversheet

Decision last updated: 03 June 2020