Adoption of Q

[2023] NSWSC 1277

Supreme Court

New South Wales

Medium Neutral Citation:

Adoption of Q [2023] NSWSC 1277

Hearing dates:

On the papers

Date of orders:

27 October 2023

Decision date:

27 October 2023

Jurisdiction:

Equity - Adoptions List

Before:

Robb J

Decision:

See orders at [48]

Catchwords:

CHILD WELFARE – adoption – best interests – consent – notice – change of name – adoption plan – where child has established a stable relationship with the proposed adoptive parents – where identity of child’s birth father remains unconfirmed – whether adoption order should be made in favour of proposed adoptive parents – whether consent of birth mother and father should be dispensed with – whether requirement to give notice on the birth father should be dispensed with – whether proposed name change should be approved – whether proposed adoption plan should be approved and registered

Legislation Cited:

Adoption Act 2000 (NSW), ss 8(1)(e), 23, 46(1), 48, 50, 59, 61, 67(1), 72(1), 72(2)(a), 88(1)(a), 88(4), 90(1)(d), 91, 101(1), 180, 194(2)

Adoption Regulation 2015 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 138

Cases Cited:

Adoption of IEK [2019] NSWSC 171

Adoption of RCC and RZA [2015] NSWSC 813

Application of A; Re D [2006] NSWSC 1056

Application of BJ and SH, Child J [2013] NSWSC 1857

Application of DOCS re C [2004] NSWSC 702

Application of O and P [2005] NSWSC 1297

Director-General, Department of Human Services; re DAM [2011] NSWSC 634

Re K & The Adoption Act 2000 [2005] NSWSC 858

Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007

Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Texts Cited:

Practice Note SC EQ 13

Category:

Principal judgment

Parties:

Secretary, New South Wales Department of Communities and Justice by his delegate, Principal Officer, Barnados Australia (Plaintiff)

Representation:

Solicitors:
Ms S Shariff (Barnados Australia) (Plaintiff)

File Number(s):

2023/00228058

Publication restriction:

Nil

Choose an item.

JUDGMENT

Introduction

1. By Summons for Adoption filed on 17 July 2023, the Secretary of the New South Wales Department of Communities and Justice (“the Secretary”), by his delegate, the Principal Officer of Barnados Australia, seeks orders for the adoption of a child and certain related relief under the Adoption Act 2000 (NSW) (“the Act”).

2. The child the subject of these proceedings is a four-year-old girl, whom I will refer to as “Q”. I will refer to the proposed adoptive parents as “CK” and “AM”.

3. As I previously explained in Adoption of IEK [2019] NSWSC 171 at [6], the reference to interested parties in adoption proceedings by the use of initials is the customary approach utilised by this Court in order to permit the publication of a judgment for the benefit of any member of the public who may take an interest in it, without identifying the interested parties. This approach is consistent with the spirit of s 180 of the Act, which makes it an offence for other parties to publish material that identifies, or is reasonably likely to identify, a person as a person affected by an adoption application (as defined in s 180(2)).

4. In addition to an order under s 23 of the Act for the adoption of Q in favour of CK and AM, the Secretary seeks a consent dispense order under s 67(1)(d) of the Act to dispense with the requirement for the consent of Q’s birth mother. A consent dispense order is also sought under ss 67(1)(a) and 67(1)(d) of the Act to dispense with the requirement for the consent of Q’s birth father.

5. Furthermore, orders are sought under s 88(4) of the Act for the Court to dispense with the requirement of giving notice of the adoption application on Q’s birth father and under s 101(1) of the Act for the approval of “L” as the surname and “QZ” as the given names of Q. Finally, approval is sought for a proposed adoption plan in respect of Q.

6. It is not necessary to provide reasons for the making of the adoption order sought by the Secretary as the evidence clearly establishes that the making of such an order would be in the best interests of Q (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279-280 per McHugh JA (as his Honour then was), Application of O and P [2005] NSWSC 1297 at [2] per Campbell J (as his Honour then was) and Application of BJ and SH, Child J [2013] NSWSC 1857 at [3] per Hallen J). Accordingly, as the merits of the adoption order sought are clear, I will make an order for the adoption of Q in favour of CK and AM.

7. These reasons, therefore, relate only to the balance of the orders sought by the Secretary, namely, the consent dispense orders, the notice dispense order, the order for the approval of Q’s proposed name and the approval of the proposed adoption plan. In all the circumstances, I am satisfied that the Court should also make the balance of the orders sought by the Secretary, subject to some qualifications.

Background and evidence

8. By way of background, Q has been under the parental responsibility of the Minister for Families, Communities and Disability Services (“the Minister”) since 19 March 2020, pursuant to orders made by the Surry Hills Children’s Court (which remain in effect). She was assumed into care on 29 May 2019 following concerns for her welfare which were raised in respect of her birth mother’s drug use, mental health issues and exposure to domestic violence. Around that time, Q’s nutritional needs were not being met by her birth mother and she was transported to Bankstown-Lidcombe Hospital following concerns raised by a child and family health nurse regarding her slow weight gain.

9. Since 14 October 2021, Q has lived continuously with CK and AM, both of whom are dually authorised as prospective adoptive applicants and carers for a child in out-of-home care, and have responsibility for Q under arrangements made pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). CK and AM do not have any other biological children or other adopted children.

10. The Secretary’s delegate, Barnados Australia, is a designated agency under s 138 of the Care Act which has delegated parental responsibility for Q, including as to case management and supervisory responsibility for Q’s out-of-home care placements.

11. It should be noted that Q’s birth mother has not filed an appearance in these proceedings. Moreover, to date, the identity of the Q’s birth father remains unconfirmed.

12. In support of the orders sought, the Secretary relies on, inter alia, written submissions prepared on its behalf by Sonya Shariff, a solicitor of Barnados Australia, and the Affidavit of Debbie Elizabeth Palacios, an adoptions program manager at Barnados Australia, affirmed on 11 July 2023 and the documents exhibited to that affidavit (Exhibit “DEP-1”). Additionally, the Secretary relies on the Affidavit of Service of Danitza Castro, an adoptions case manager at Barnados Australia, affirmed on 25 July 2023.

13. The other evidence relied on by the Secretary includes a further affidavit of Ms Castro affirmed on 4 July 2023 which annexes a court report prepared pursuant to s 91 of the Act, affidavits of each of Q’s proposed adoptive parents and affidavits of two referees for Q’s proposed adoptive parents.

14. Consistently with the requirement prescribed by Practice Note SC EQ 13 at [10(e)], the Secretary has annexed and marked as “A” the proposed adoption plan for which approval is sought to the draft minute of order filed on 17 July 2023. A copy of the proposed adoption plan has also been annexed to Ms Castro’s 25 July 2023 affidavit and provided at Tab 9 of Exhibit “DEP-1” to Ms Palacio’s 11 July 2023 affidavit.

15. I have read and considered the Secretary’s written submissions and all material relied on by the Secretary in determining this application.

Whether the consent of Q’s birth mother and father should be dispensed with

16. Pursuant to s 90(1)(d) of the Act, the Court must not make an adoption order in relation to a child unless the Court is satisfied that consent to the adoption of a child has been given by every person whose consent is required under the Act or that consent has been, or should be, dispensed with. Moreover, under s 52 of the Act, the Court must not make an adoption order in relation to a child who is less than 18 years of age and who has not been previously adopted unless each parent of the child and any person who has parental responsibility for the child has given their consent. However, the requirement for consent may be dispensed with by the Court under s 67 of the Act.

17. Section 67 provides as follows:

(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that—

(a) the person cannot, after reasonable inquiry, be found or identified, or

(b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or

(c) if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or

(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers or the guardians for the child—

(i) the child has established a stable relationship with those carers or guardians, and

(ii) the adoption of the child by those carers or guardians will promote the child’s welfare, and

(iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.

(2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.

(3) In this section—

guardian has the same meaning as in section 79A (1) of the Children and Young Persons (Care and Protection) Act 1998.

18. The authorities are clear that to dispense with the consent of the birth parents is a grave step which is not to be taken lightly (see Application of A; Re D [2006] NSWSC 1056 at [52] per Palmer J, Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007 at [52]-[54] per Kunc J and Adoption of RCC and RZA [2015] NSWSC 813 at [17] per Brereton J (as his Honour then was)). The gravity of consent dispense orders is also emphasised in Practice Note SC EQ 13 at [32], where it is stated that “[t]he [C]ourt requires strict proof of the grounds upon which such an order can be made.”

19. I will deal first with the issue of whether an order dispensing with the consent of Q’s birth mother should be made under s 67(1)(a) of the Act.

20. As deposed by Ms Castro in her 25 July 2023 affidavit, it is known that the birth mother has been served with a copy of the mandatory written information relating to Q’s adoption pursuant to s 59 of the Act and notice of both the adoption application and the application for the consent dispense order pursuant to ss 72(1) and 88(1)(a) of the Act. Furthermore, as deposed by Ms Palacios in her 11 July 2023 affidavit, Q’s birth mother has, on multiple occasions, expressed her support for the adoption of Q by CK and AM to a case manager of Barnados Australia. However, s 61 of the Act requires that consent is given by way of an instrument that is in a form containing the information prescribed by the Adoption Regulation 2015 (NSW). No such instrument has been signed by the birth mother. While the birth mother signed the proposed adoption plan on 30 June 2023, the execution of this document is not tantamount to consent for the purposes of s 61 of the Act. The adoption plan itself provides that “[i]t is agreed by the signatories to this plan, that this Adoption Plan is not to be deemed as giving consent for the adoption of [Q].”

21. Pursuant to s 67(1)(d) of the Act, as Q’s proposed adoptive parents are her authorised carers, the Court may make a consent dispense order dispensing with the requirement for the consent of her birth parents if it is satisfied that Q has established a stable relationship with the proposed adoptive parents, that the adoption of Q by the proposed adoptive parents will promote Q’s welfare and that the making of the consent dispense order is in Q’s best interests.

22. I note that the Secretary has not sought any consent dispense orders under s 67(1)(c) of the Act, which would require the Court to make a finding that there is a serious concern for the welfare of Q if placed in the care of her birth mother. However, this matter remains a relevant consideration for the Court where Q’s mother has a history of drug use, mental health issues and exposure to domestic violence. In any event, I note that I would have been minded to make a consent dispense order in respect of the birth mother pursuant to s 67(1)(c) of the Act had that order been sought by the Secretary.

23. The evidence clearly establishes that Q has formed a stable relationship with CK and AM and that her adoption by CK and AM will promote her welfare. Q was placed with CK and AM at two and a half years of age and has been in their continuous care for over two years. The evidence provided by each of CK and AM, by their two referees, by Ms Palacios and the evidence contained within the court report prepared pursuant to s 91 of the Act establish that CK and AM are dedicated and loving parents who have consistently acted in the best interests of Q.

24. I have already concluded above at [6] that an adoption order in favour of CK and AM is in Q’s bests interests. While the birth mother has expressed her support for the adoption order and has not filed an appearance in these proceedings to contest the orders sought by the Secretary, there is good reason to believe that she would not be sufficiently organised to comply with arrangements for her to sign a formal instrument of consent which accords with the requirements of s 61 of the Act. This is strongly suggested by the failure of the birth mother to attend several review meetings organised with the proposed adoptive parents and a senior case manager of Barnados Australia throughout 2023.

25. In the circumstances, it is not in the best interests of Q to await the provision of a formal instrument of consent by her birth mother. Such an approach would unfairly subject Q’s opportunity to formally and legally join the family which she has been part of for the past two years to logistical uncertainties and unjustified delay (see, by way of analogy, Application of DOCS re C [2004] NSWSC 702 at [11] per Austin J and Director-General, Department of Human Services; re DAM [2011] NSWSC 634 at [2] per Brereton J (as his Honour then was)). Accordingly, it is in the best interests of Q that an order is made for the consent of her birth mother be dispensed with pursuant to s 67(1)(d) of the Act.

26. I now turn to consider whether the consent of the birth father should be dispensed with under ss 67(1)(a) and 67(1)(d) of the Act.

27. The reasons provided above for the making of a consent dispense order pursuant to s 67(1)(d) of the Act in relation to the birth mother’s consent are equally applicable to the making of a consent dispense order with respect to the birth father. While the wording of s 67(1) is clear that only one of the paragraphs in s 67(1) must be satisfied for the making of a consent dispense order in relation to a person (see Re K & The Adoption Act 2000 [2005] NSWSC 858 at [21] per White J (as his Honour then was)), I will, for completeness, consider the availability of such an order with respect to the birth father under s 67(1)(a).

28. Section 67(1)(a) of the Act provides that the Court may make a consent dispense order if it is satisfied that the person cannot, after reasonable inquiry, be found or identified and that the making of the order is in the best interests of the child. The reasonableness of the inquiry is “to be evaluated from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made” (see Re K & The Adoption Act 2000 at [22] per White J (as his Honour then was)).

29. As noted above at [11], Q’s paternity remains unconfirmed. In particular, Q’s birth mother has identified two potential birth fathers for Q. The first man identified by Q’s birth mother is unlikely to be Q’s father as his parents submitted to DNA testing which did not establish any paternal connection to Q. The second man identified by Q’s birth mother has refused to submit to DNA testing and has made assertions which are inconsistent with him being Q’s father, including assertions that he had ceased his relationship with Q’s birth mother prior to her pregnancy with Q. Additionally, the birth father could not be found or identified following inquiries by Barnados Australia. I am satisfied that the inquiries undertaken thus far to confirm Q’s paternity have been reasonable.

30. In the circumstances, it is plainly clear that the making of an order under s 67(1)(a) of the Act to dispense with the requirement for the consent of Q’s father (who cannot be found or identified after reasonable inquiry) is in the best interests of Q. While s 72(1) of the Act provides that the Court must not make a consent dispense order on the application of any person unless notice of the application has been given to the person whose consent is sought to be dispensed with at least 14 days before the order is made, s 72(2)(a) provides an exception where the person cannot, after reasonable inquiry, be found or identified. That exception is applicable here.

31. Accordingly, I will make orders dispensing with the consent of the birth father pursuant to ss 67(1)(a) and 67(1)(d) of the Act.

Whether the requirement to serve notice on the birth father should be dispensed with

32. Section 88(1)(a) of the Act provides that the Court may not make an adoption order unless at least 14 days’ notice of the application for the order has been given to any person whose consent to the adoption of the child concerned is required under this Act and has not been given (or the requirement for which has been dispensed with by the Court).

33. For essentially the same reasons provided above at [29]-[30] for the making of a consent dispense order in relation to Q’s birth father under s 67(1)(a) of the Act, I accept the Secretary’s submission that the Court should also dispense with the requirement to service notice of the adoption application on the birth father pursuant to s 88(4) of the Act.

Whether an order should be made to change Q’s names

34. Section 101 of the Act relevantly provides as follows:

(1) On the making of an adoption order—

…

(b) an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.

(2) Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.

(3) If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname.

…

(5) The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless the Court is satisfied that the name change is in the best interests of the child.…

35. Furthermore, s 8(1)(e) of the Act relevantly provides that, in making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the principle that the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved.

35. The Secretary seeks orders that Q retains her forename and one of her middle names, “Z”, which holds significance as the name of the birth mother’s grandmother, to maintain an ongoing connection to her birth family (which is of Australian and Māori heritage). It is also proposed that Q is given the proposed adoptive parents’ surname “L” to identify Q as a member of the adoptive parents’ family and consolidate her sense of legal belonging and security with that family. Furthermore, it is proposed that two of Q’s existing middle names are removed as her existing name is relatively lengthy and can present challenges when her full legal name is required to be provided on documents.

36. I do not consider that s 101(2) of the Act has any application in this context as Q has not expressed any wishes regarding her existing name or the proposed name change. In any event, Q is only four years old and is unlikely to have the requisite degree of maturity or level of understanding to express a view on the issue of the proposed name change.

37. The retention of Q’s forename and the middle name “Z” is plainly consistent with the requirements of s 8(1)(e) of the Act. Furthermore, to give Q the surname of her proposed adoptive parents is appropriate for the reasons stated by Brereton J (as his Honour then was) in Adoption of RCC and RZA at [105]:

Upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child’s family name accords with that of his or her legal family. Indeed, children see that outcome as one of the most significant indicia of the sense of “belonging” that adoption is intended to nurture, and not to do so would detract from the benefits of adoption. …

39. With respect to the deletion of two of Q’s existing middle names, I am satisfied that it is a matter of convenience and benefit for Q for her name to be consolidated from a relatively lengthy five-part name to a three-part name which adequately preserves her ties to both her birth family and adoptive family.

40. Accordingly, I am satisfied that the proposed name changes are in the best interests of Q.

Proposed adoption plan

41. Section 46(1) of the Act states that an adoption plan is a plan agreed to by two or more of the parties to an adoption of a child that includes provisions relating to various aspects of the child’s adoption, such as, for example, the child’s contact with her or his birth parents. Section 48 of the Act provides that if the parties to an adoption agree to an adoption plan, a copy of the plan must (unless registered under s 50) accompany the application for an adoption order.

42. Under s 50 of the Act, the parties to an adoption plan may apply to the court for registration of the plan. If an adoption plan is registered then, pursuant to s 50(4), it has effect as if it were part of the court order for adoption.

43. As stated above at [14], the Secretary’s draft minute of order annexes a proposed adoption plan in respect of Q which was signed by the birth mother (on 30 June 2023), the proposed adoptive parents (on 4 July 2023) and by an adoptions officer of Barnados Australia (on 5 July 2023). However, the relief sought by the Secretary does not contain any reference to an order for the registration of the proposed adoption plan. The Secretary’s draft minute of order only contains a prayer seeking an order for the approval of the plan by the Court.

44. Despite the absence of a formal prayer for an order registering the proposed adoption plan, I consider it appropriate for such an order to be made by the Court. In particular, I concur with the observations of Bergin CJ in Eq in Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926 at [123]:

Although there is no express provision in the Act that an Adoption Plan be registered with the Court (as opposed to elsewhere) I am satisfied having regard to the scheme of Part 4 and the provisions of s 51(1) of the Act that the legislative intention is that the Adoption Plan is registered with the Court. Importantly an adoption plan that is registered has effect, on the making of the adoption order, “as if it were part of the [adoption] order”: s 50(4) of the Act.

45. Pursuant to s 50(3) of the Act, the Court may register an adoption plan if it is satisfied that (a) the plan does not contravene the adoption principles; (b) the parties to the adoption understand the provisions of the plan and have freely entered into it; and (c) the provisions of the plan are in the child’s best interests and is proper in the circumstances.

46. I am satisfied that adoption plan meets the requirements of s 50(3) of the Act. Accordingly, I approve of the plan and conclude that it is appropriate to make an order for its registration. The plan provides, inter alia, a structured scheme for Q to maintain contact and have face-to-face contact visits with her birth mother, her maternal grandmother and her maternal aunt.

47. Contrary to the requirement prescribed by Practice Note SC EQ 13 at [10(f)], however, the Secretary has not filed a draft minute of order for the granting of leave for the Secretary to provide copies of the final adoption plan (whether approved or registered) to the birth mother or any other significant persons in the plan. Accordingly, I will make orders pursuant to s 194(2) of the Act granting leave to the Secretary to provide copies of the registered maternal adoption plan to the birth mother.

Conclusion

48. I will make the following orders:

1. Order pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) that the consent of the child’s birth mother be dispensed with.

2. Order pursuant to ss 67(1)(a) and 67(1)(d) of the Adoption Act 2000 (NSW) that the consent of the child’s birth father be dispensed with.

3. Order pursuant to s 88(4) of the Adoption Act 2000 (NSW) that the giving of notice on the birth father of the adoption application be dispensed with.

4. Order for the adoption of the child in favour of the proposed adoptive parents, CK and AM.

5. Order that the child’s surname be changed to “L” and that “QZ” be the given names of the child.

6. Order pursuant to s 50(3) of the Adoption Act 2000 (NSW) that the adoption plan signed by the birth mother on 30 June 2023, a copy of which is annexed hereto and marked “A”, be registered.

7. Order pursuant to s 194(2) of the Adoption Act 2000 (NSW) that leave is granted to provide to the birth mother a copy of the adoption plan signed by the birth mother on 30 June 2023 which has been registered and annexed hereto and marked “A”.

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Decision last updated: 27 October 2023