Adoption of L (Anonymised)

[2021] NSWSC 85

Supreme Court

New South Wales

Medium Neutral Citation:

Adoption of L (Anonymised) [2021] NSWSC 85

Hearing dates:

3 February 2021

Date of orders:

5 February 2021

Decision date:

05 February 2021

Jurisdiction:

Equity - Adoptions List

Before:

Sackar J

Decision:

Adoption Orders Made

Catchwords:

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — whether the consent of the birth parents ought to be dispensed with –– contact – declaration of parentage –– adoption plans – change of name ––

Legislation Cited:

Adoption Act 2000 (NSW)

Status of Children Act 1996 (NSW)

Births, Deaths and Marriages Registration Act 1995 (NSW)

Cases Cited:

In the Adoption of RCC and RZA [2015] NSWSC 813

Texts Cited:

n/a

Category:

Principal judgment

Parties:

The Secretary, NSW Department of Communities and Justice by his delegate Principal Officer, Adoptions, Barnardos Australia (plaintiff)
R F (first defendant)
RR SM (second defendant)

Representation:

Counsel:
Ms T Stevens (plaintiff)

Solicitors:
Crown Solicitor of NSW (plaintiff)
No representation (defendants)

File Number(s):

2020/237539

Publication restriction:

n/a

Judgment

1. By further amended summons the plaintiff, the Secretary, NSW Department of Communities and Justice (the Secretary), by his delegate Principal Officer, Adoptions Barnardos Australia, seeks orders for the adoption of L, and other consequential orders.

2. L was born on 18 January 2016 at Westmead Hospital and has just turned 5 years of age.

3. The birth parents are respectively the birth father as first defendant and the birth mother as second defendant.

4. The birth mother opposes the orders sought and took an active role in the proceedings. The father who does not it seems oppose the orders sought and took no role in the proceedings. However both birth parents have agreed and signed maternal and paternal adoption plans.

5. I gave brief reasons for judgment on 5 February 2021 and made orders. I indicated that I would give more detailed reasons. These are my reasons.

Background Facts:

6. On 5 October 2017, DCJ received a Risk of Harm report in relation to L’s cousin.

7. On 6 October 2017 L was removed from her mother’s care for the reasons set out in the affidavit of Ms Debbie Palacios, of 14 August 2020, at [31].

8. L remained with Temporary Family Care carers at Auburn on 6 October 2017 and until she was placed with the proposed adoptive parents on 9 November 2018, where she has remained.

9. During the Children’s Court proceedings a clinical assessment was made of the mother’s parenting capacity and a number of issues were identified. In particular a lack of parental insight was obvious. In fairness at the time the mother was only 17 years of age.

10. On 17 August 2018, Final Orders were made by the Children’s Court allocating parental responsibility for L to the Minister until she attains 18 years of age.

11. On 14 September 2018 L was matched with the proposed adoptive parents, they having been approved by Barnardos on 16 June 2017 as authorised carers (s.67(1)(d), definition in the Dictionary to the Adoptions Act 2000 (NSW) (“Adoption Act”)).

The Issues:

12. The orders sought in addition to L’s adoption involve applications to dispense with the consent of the birth parents, a change of L’s surname, an order for a declaration of parentage, and an order for the approval and registration of adoption plans signed by all relevant parties.

13. The first issue is whether adoption is the clearly preferable course in the best interests of the child, s.90(3). The court has to be satisfied by more than a slight preponderance in favour of that course. It must be plainly or manifestly preferable to any other option; see In the Adoption of RCC and RZA [2015] NSWSC 813, Brereton J at [14].

14. The other options here are no order with the status quo being maintained until L turns 18 years of age, with the parental responsibility remaining with the Minister or an order allocating parental responsibility to the proposed adoptive parents pursuant to s.92 or an order allocating parental responsibility to one or more birth parents again under s.92.

15. The answer is to be made by deciding whether the adoption would promote the best interests of the child. That in turn requires the Court to consider the likely effects of adoption and analysing the benefits and detriments of each alternative.

Consideration

16. L has been with the proposed adoptive parents now for some years. Their home provides a safe and stable place for her to grow up in. The proposed adoptive parents have also provided L with a nurturing and consistent environment. There is no doubt the proposed adoptive parents and L have established a strong, warm and reciprocal connection with each other.

17. They have demonstrated a capacity to meet L’s physical, emotional and educational needs, s.8(2)(c). She is meeting her developmental milestones. Her cultural and religious needs are also well provided for which is reflected in the Barnardos Cultural Support Plan. The birth parents identify as Muslim. The proposed adoptive mother identifies as Muslim with the proposed adoptive father being Catholic. Both propose to support raising L as Muslim with adherence to a halal diet.

18. Adoption is supported by Mr Michael Finn the author of the s.91 report, in his report of 20 July 2020. He observed from the commencement of the placement that L had developed a “strong and trusting bond” with the proposed adoptive parents. He also expressed the view that open adoption would provide L with stability and a sense of permanence. It would also in his view confirm in a legal sense the emotional and psychological connections she has developed with the proposed adoptive parents, s.8(2)(j).

19. I am satisfied on the evidence that the proposed adoptive parents are suitably qualified in every sense required by the legislation, ss.8(2)(f) and (h) and s. 8(2)(i).

20. The birth mother advised the Court that she was opposed to the orders sought, s.8(2)(e). She represented herself at the hearing and is an impressive young woman. She no doubt loves L very much and enjoys a good relationship with her, s.8(2)(f). L is her only child. She was 17 years of age at the time of L’s birth. She and the birth father seemingly have nothing to do with each other. Since 2018 she has lived with her current partner in a rented apartment (T.4/36-39). The maternal grandmother lives in a nearby suburb.

21. She candidly accepts that at the time of L’s assumption into care there were legitimate concerns about safety especially because she could not obtain stable and safe accommodation. She had to find friends with whom she could live and was not in a position to provide L with a safe and permanent home.

22. She states she has grown up a good deal since then, is in a stable loving relationship and wants L back with her. She made that plain during the hearing. I accept her sincerity. She is also concerned that if an order for adoption is made her relationship with L will be severed and in effect detrimentally affected.

23. She does not want L’s surname to change. She does however have no concerns about the care the proposed adoptive parents have and will provide for L if an order is made and she has no concerns about the cultural environment in which she would be brought up. Although in effect, when she was before the court, she sought restoration there is a very big difference between expressing a preference and making a formal application. To make such an application would more likely than not in a case like this require expert evidence in order to support what would involve, if granted, a substantial change in the status quo.

24. What I have said is in no way to be understood as a criticism of the mother, quite the contrary. She has made her position clear and if and when at some point in the future L is made aware of these reasons it will be clear that her mother did not abandon her or willingly give her up. It should be noted that the final decision rests with the court and has been taken out of the mother’s hands because it is ultimately the court which has as a paramount concern and must decide such an issue by reflecting on the child’s best interests both in childhood and later life, s.8(1)(a).

25. L has not lived with or been cared for by her mother for some years. She has formed a strong and loving bond with the proposed adoptive parents whom she calls “mummy” and “daddy”. The bond is such that in my view I would regard it potentially extremely detrimental in severing. It would destabilise her emotionally and psychologically and in my view unnecessarily. It cannot be gainsaid that the ideal is that children are best nurtured and raised by their birth parents or parent. But in my view in the circumstances of this case that is not possible. I am not satisfied restoration is a realistic option even if a formal application had been made.

26. The birth father’s position is really not relevant. He has not taken part in the entire process including the hearing but on one view of the evidence does not oppose adoption. Both birth parents have if I may say so constructively agreed to adoption plans, s.8(2)(e)

27. In all the circumstances I am firmly of the view an adoption order is the clearly preferable option. Over any of the various alternatives it will now and into the future I am satisfied provide and continue to provide L with the necessary stability and nurturing. I am satisfied her various needs will be more than adequately met, ss.8(2)(a), 8(2)(b) and 90(1)(b).

28. The birth mother during the hearing expressed the view that she was not sure how she would be regarded by the proposed adoptive parents when in private with L. She was worried that they may denigrate her to her daughter (see T.11/1-5). I should say quite firmly there is simply no support for that proposition and I consider the remark was made by the mother by reason of the stress and vulnerability she felt appearing for herself. I am confident the proposed adoptive parents as they have undoubtedly to date will in L’s best interests treat the birth mother in a respectful way and I trust that relationship is reciprocated.

29. By reason of the fact that I consider adoption the preferred course although a serious step I should dispense with the consent of both birth parents pursuant to s.67(1)(d) of the Adoption Act.

30. I am satisfied on the evidence that there is no doubt the first defendant is the biological father of L. There has never been a dispute about it but in any event in November 2019 it was confirmed by DNA testing. Pursuant to s.21 of the Status of Children Act 1996 (NSW) I would make a declaration to that effect and pursuant to s.19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW), I would make an order that that information be included in the registrable information.

31. The proposed adoptive parents seek a change of surname for L to the ‘proposed adoptive parents’ pursuant to s.101(1) of the Adoption Act. This would provide the joint names of the adopting parents. I would make such an order simply as persuasively as is put in the s.91 report it will identify L as a member of the adoptive family while preserving at all times the forename chosen by her mother.

32. I have also carefully considered the proposed adoption plans and I regard them as appropriate. They have been agreed to by all concerned as well which will add to the already positive and loving relationship the birth mother enjoys with L. I would therefore order that they be registered, ss. 50(1) and (3).

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Decision last updated: 17 February 2021