Adoption of O – ( Anonymised)

[2019] NSWSC 1430

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of O – ( Anonymised) [2019] NSWSC 1430
Hearing dates:	26 September 2019
Date of orders:	26 September 2019
Decision date:	26 September 2019
Jurisdiction:	Equity - Adoptions List
Before:	Sackar J
Decision:	Adoption Orders Made
Catchwords:	ADOPTION - FAMILY LAW AND CHILD WELFARE –Adoption- whether adoption in the child’s best interests- whether adoption clearly preferable
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	Adoption of Hogarth (No 2) [2019] NSWSC 9
Texts Cited:	n/a
Category:	Principal judgment
Parties:	Secretary, Department of Communities & Justice (formerly Family and Community Services) (Plaintiff) HO (Defendant)
Representation:	Solicitors: Crown Solicitors for NSW (Plaintiff) Self represented (Defendant)
File Number(s):	A169/2018

Judgment

Procedural Background

1. These proceedings concern the proposed adoption of CO, born 12 June 2014.

2. The Secretary, NSW Department of Family and Community Services (now known as the Secretary of the Department of Families, Communities and Justice) by Summons filed 17 September 2018, sought the following orders:

1. That pursuant to Adoption Act 2000 s 67(1)(d), the consent of the child’s birth mother, AL be dispensed with.

2. That pursuant to Adoption Act 2000 s 67(1)(d), the consent of the child’s birth father, HO “M” be dispensed with.

3. An order for the adoption of the child CO in favour of the adoption parents X and Y E

4. An order approving the name “E” as the surname and CO as the given names of the child

3. At hearing, the birth father appeared in person with the aid of an interpreter. He did not file any evidence. The birth mother did not play any active role in the proceedings.

4. Even though no evidence was filed by the birth father, and there was no written submission or statement provided by him, I was informed at the beginning of the hearing that all issues relating to the adoption formally remained in dispute. However, I was informed that the day before hearing the birth father had emailed Ms Hailstone to inform her of particular issues he wished to raise, specifically regarding C’s culture and heritage, as well as to allow C to visit her paternal step-grandmother. A new adoption plan was prepared to take into account some of the birth father’s concerns. I briefly heard from the birth father and he reiterated some of the issues that were canvassed in the email. I then took a short adjournment so that the changes in the paternal adoption plan could be explained in detail to the birth father.

5. The birth father then informed me that he still wished to take C to visit his step-mother, that he wished to take her to Church and he wished for her to learn Old Assyrian.

6. There was no cross-examination of any witnesses at the hearing. Following oral submissions from Ms Hailstone, I gave brief reasons ordering the dispensing with consent of the birth parents and the adoption of C in favour of the proposed adoptive parents, as well as an order registering the adoption plans and an order for a name change. I now publish in full my reasons.

Background Facts

7. C was born in June 2014 to SL and HO “M”. The birth parents were separated at about February 2017.

8. C was born with benzodiazepines and opiates in her system and developed narcotic abstinence syndrome. She was assumed into care at birth due to concerns about the mother’s ongoing drug abuse and failure to seek necessary antenatal care and concern about the father’s ongoing drug abuse and lack of concern about the child’s wellbeing. C was discharged from the hospital and placed into the care of the proposed adoptive parents when she was one month old.

9. C has four maternal siblings with whom she does not have contact. The maternal siblings live in Lebanon with their respective fathers. It is intended that Skype contact will be explored when C is older. C has two adult paternal siblings. There has been no contact between C and the adult paternal siblings at this stage however the proposed adoptive parents have indicated that they are open to contact in the future.

10. The proposed adoptive parents, have two biological sons, born in 2002 and 2008.

11. In October 2018, C was diagnosed with mild global developmental delay with significant language difficulties. C continues to receive occupational therapy and psychological support and up until April 2019 received speech therapy.

12. C’s maternal family are Lebanese Muslim and her paternal family are Iraqi Christian. The proposed adoptive parents are Lebanese Muslim. They speak Arabic with C at home and she learns Arabic at preschool. The birth father has indicated that he would like C to attend church with him every second week, however has previously informed the proposed adoptive parents that he does not currently attend church himself. C is not currently baptised however the proposed adoptive parents remain open to baptism provided that the birth father takes an active role in the process. Although the birth father has verbally indicated that he would like C to be baptised he has not taken any actions to facilitate this, for example he has been unable to advise any proposed godparents for C.

13. C has had ongoing contact with her birth father since she was assumed into care, although at times the birth father has not attended contact visits and has not informed the proposed adoptive parents that he was unable to attend contact. Generally however, C and the birth father have contact once a month for one hour and phone contact between visits. Recently, the birth father has brought his new wife G to visits. Although C has expressed she does not like it when G attends visits it has been recognised that the birth father appears more engaged with C when G is present.

14. C has not had contact with the birth mother since she was assumed into care.

Legal Principles

15. By s 8(1) of the Adoption Act 2000 (NSW) (‘the Act’), the Court is to have regard to specified principles when making a decision about the adoption of a child, including the best interests of the child both in childhood and in later life, which must be the paramount consideration. Adoption is to be regarded as a service for the child and that no adult has a right to adopt a child. The focus in any proceedings must be in the best interests of the child and how making an adoption order would benefit the child rather than how the order would benefit others.

16. In determining what is in the child’s best interests, the matters contained in s 8(2) are to be taken into account, for example any wishes expressed by the child, the child’s physical, emotional and educational needs and the nature of the relationship of the child with the proposed adoptive parents.

17. Section 90 of the Act reinforces those considerations but in addition the child’s age and understanding and wishes if they can be ascertained should be taken into account. The proposed adoptive parents must be regarded as appropriate and those persons who may give consent, in particular the birth parents have either done so or their consent has been dispensed with. The Court must not dispense with consent of the birth parents unless, among other things, it is satisfied that it is in the child’s best interests (s 67(2)).

18. Due consideration should be given to cultural issues, language, and religion in making any order for adoption. In particular s 7 provides that one of the objectives of the Act is to ensure that adoption law and practice assist a child to know and have access to his or her family and cultural heritage.

19. Further the Court should not make any order for an adoption if the parties to the adoption have agreed to an adoption plan unless the Court is satisfied that the arrangements proposed are again in the best interests of the child and are proper in the circumstances (s 50(3)).

20. Importantly the Court may not make an order for adoption unless it considers that the making of the order would be clearly preferable and in the best interests of the child over any other order that could be taken by law in relation to the care of the child (s 90(3)).

21. A Court must not order a name change for the child unless satisfied that the name change is in the best interests of the child (s 101(5)).

22. Recently in Adoption of Hogarth (No 2) [2019] NSWSC 9 (at [51]-[52]), Brereton J considered the benefits of adoption orders over long term care. His Honour considered that in general, an adoption order will provide a sense of permanency and stability for a child and give a legal relationship between the child and the proposed adoptive parents that extends beyond the child reaching 18 years of age. His Honour also considered that the child’s connection to their birth family and sense of identity can be maintained through the appropriate use of adoption plans.

Evidence

23. Various affidavits were relied upon by the Secretary (T1/44-2/14). In particular I note the court report prepared by Ms Gurton filed September 2018. Ms Gurton notes that C has a close and loving relationship with the proposed adoptive parents. They have attended to her physical, educational and emotional needs, and have engaged with a variety of doctors, child care workers and therapists to help address C’s needs. Ms Gurton notes that C seeks out the proposed adoptive parents for comfort and support and she is clearly attached to them, the proposed adoptive parents have likewise indicated that C has completed their family. The proposed adoptive parents are helping C learn about her Iraqi heritage and about the Christian faith and they are helping explain adoption to her in an age-appropriate manner and are open with her about her birth family. The proposed adoptive parents are open to birth family contact and currently facilitate contact with the birth father once a month. The proposed adoptive parents are open to contact with the birth mother in the future. Ms Gurton is of the view that this level of contact is in C’s best needs. She is of the view that an adoption order would give C a permanent, stable, secure and loving home and provide her with legal ties to the proposed adoptive family.

Submissions

24. Counsel for the Secretary provided detailed written submissions. The Secretary submits that in all the circumstances adoption is clearly the preferable course of action. The Secretary notes that C has been living continuously with the proposed adoptive parents since she was one month old and she enjoys a strong and secure connection with the proposed adoptive parents and their two biological sons. The Secretary submits that the proposed adoptive parents have been able to provide a high quality of care for C and have been able to meet her educational, emotional and physical needs. In particular C is a high-needs child and has been diagnosed with mild global developmental delay with significant language difficulties, the proposed adoptive parents have worked with childcare workers, speech therapists and occupational therapist, and an educational and developmental psychologist to help C prepare for school in 2020.

25. The Secretary further submits that the proposed adoptive parents have demonstrated a commitment to fostering good relationships with the birth family and have recognised the importance of C’s birth family for her ongoing identity needs. The proposed adoptive parents are helping C engage with her Lebanese and Christian heritage, they cook Lebanese food at home and have bought C a bible and celebrate Christmas with extended family members, they plan to continue speaking to C about her background in an age appropriate manner. The Secretary submits that an adoption order would provide C with a lifelong connection to her adoptive family and provide C with a sense of permanency and belonging. The Secretary finally submits that the proposed adoption plans make adequate provision for C to maintain contact and a connection with her birth family and cultural and religious heritage in an age appropriate manner that is in her best interests.

26. Although the birth father filed no written submissions and no evidence, he verbally informed me on the date of hearing that there were several issues with the adoption that he wished to be heard on. He indicated that he wished for C to attend church with him once every two weeks and on special occasions such as Christmas and Easter and for her to be baptised. He also indicated that he wanted to take C to visit his mother (apparently step-mother) and other extended family members. He also wished for his new wife, G to attend more contact visits and for C to learn Old Assyrian.

Consideration

27. In my view it is clearly preferable that an adoption order should be made in this matter.

28. I am satisfied that the formal requirements of the Adoption Act have been met, in particular I am satisfied that C was residing in the State of NSW when a summons for adoption was filed. I am satisfied that the proposed adoptive parents have been living together continuously for at least two years, and are clearly, on the evidence, fit and proper persons to adopt.

29. I am satisfied that under s 90 an adoption order is clearly preferable and in C’s best interests taking into account that factors under s 8.

30. C is described as a confident independent young child, she enjoys swimming and gymnastics and doing puzzles. She has a loving and stable relationship with the proposed adoptive parents and her two proposed adoptive siblings. She has benefited greatly from the stability and continuity which those relationships have provided to her. Her primary psychological bonds are clearly with the proposed adoptive family, and she indeed considers herself to be part of that family. The proposed adoptive parents have been able to meet all of C’s needs including addressing her language difficulties and development delay by proactively engaging with a variety of specialists to help provide C with the highest quality of care.

31. There has been some discussion about C’s religious upbringing. The proposed adoptive parents and the birth mother are Muslim. The birth father is Christian. However, having carefully considered all the materials, I am more than satisfied that the proposed adoptive parents are not only entirely suitable persons to assume responsibility for this little girl but will also be immensely sensitive to her religious alliances over the years. Although C will be brought up in a Muslim household, it is clear that the proposed adoptive parents are eager to help C engage with her Christian heritage and expose her to the Christian faith in an age appropriate way. At some point in her life she will be able to make a choice which of either of those religions she wants to pursue and it should be a matter for her. I am entirely satisfied that the proposed adoptive parents will ensure that she is placed in the best position to ultimately make the decision she wishes to make in relation to her religious pursuits, if any.

32. I am satisfied that adoption is clearly preferable to any other adoption available at law. In this case, there is no realistic possibility of restoration. Further it has been well-documented the benefits of an adoption order in providing the child with long-term psychological stability and the knowledge that they are legally part of the family with whom they live. C has lived with the proposed adoptive parent’s since she was 1 month old, it is clearly preferable for her legal status to match her lived reality.

33. I am satisfied that dispensing with the consent of both birth parents is in C’s best interests. Dispensing with the consent of a birth parent or parents is a serious step and the Court has to take into account a number of factors in doing so. But in taking any other factors into account, the primary factor that must be taken into account is what is in the best interests of the child concerned. It is clear to me based on my above reasons, taking into account the strength of the relationship between C and the proposed adoptive parents, that I should dispense with the birth parent’s consent.

34. I am of the view that the adoption plans are appropriate and in C’s best interests. The paternal adoption plan makes provision for continuing the monthly visits between C and the birth father. I am of the view that this is appropriate given C’s age and is sufficient to enable her to maintain contact with her birth father and build a relationship with him and her wider paternal family. The maternal adoption plan also recognises the importance of future contact with the birth mother, and the proposed adoptive parents have demonstrated their commitment to facilitating contact as long as it is in C’s best interests.

35. Finally, I note that the name change is in C’s best interests as it will allow her to retain a connection to her birth family as well as secure her sense of belonging as part of the proposed adoptive family.

**********

Decision last updated: 24 October 2019