Application of M

[1999] NSWSC 497

CITATION:	Application of M [1999] NSWSC 497
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	80015/99
HEARING DATE(S):	27 May 1999
JUDGMENT DATE:	27 May 1999
PARTIES :	M, applicant. Unopposed.
JUDGMENT OF:	Bryson J

COUNSEL :	--
SOLICITORS:	Heidtman & Co. DX 13013 Sydney Ref: AMcM.
CATCHWORDS:	Adoption - application by relative (great-aunt) - unopposed - court dispensed with consent of father - interests of child best served by adoption despite natural relationship with adopting parent. ss 17, 18(2), 18(2)(b), 32(1).
ACTS CITED:	Adoption of Children Act (1965) No. 23 subs. 32(1)
CASES CITED:	In Re S (a minor) Adoption or Custodianship [1987] Fam 98 Re Adoption of Children Act (1979) 5 Family Law Notes, Note 15 at p 2013 .
DECISION:	Adoption Order

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

80015/99

Thursday, 27 May, 1999

CONFIDENTIAL

RE: THE APPLICATION OF M.

1 HIS HONOUR: This is a private and unopposed Adoption Application made by a relative of the child. The plaintiff is the great-aunt of the child. The Director-General of the Department of Community Services has consented to the adoption; that consent is required by sub-section 18(2) of the Adoption of Children Act 1985, as a great-aunt is not a relative to whom the exception in Paragraph 18(2)(b) applies; see the definition of “relative” in s 6. I have considered the application in Private Chambers.
2 Where an application is made by a relative consideration by the Court of the welfare and interests of the child concerned, which is to be regarded as the paramount consideration - see s 17 - requires me to address whether the existing family relationship is in some way adverse to the welfare and interests of the child in the making of an Adoption Order. The existence of a natural family relationship between the child and the adopting parent suggests that it is possible that there may be confusion for the child about relationships and family roles if the adopting parent and other relatives have several family ties to the child. There are sources of confusion which do not arise in the lives of children generally. The Adoption of Children Act does not show any signs of a policy adverse to adoptions by relatives, and applications by relatives are not appraised with any sense that an unusual degree of scrutiny is required. However recurringly Courts have addressed the impact on the welfare and interests of the child of existing natural relationships as a possible source of confusion.
3 A decision of Waddell J - Re Adoption of Children Act was briefly noted at (1979) 5 Family Law Notes, Note 15 at p 2013; in that case the natural mother was still alive and was known by the child, and an order for adoption by grandparents was made.
4 The Court of Appeal in England in In Re S (a minor) Adoption or Custodianship) [1987] Fam 98 concluded in favour of an Adoption Order in similar circumstances; the view of the Court on the facts of that case was that an Adoption Order would promote the child’s welfare by minimising the risk that the state of affairs in which the child lived would be disrupted in the future; see Cumming-Bruce LJ at 107. A number of cases in which there were generally similar issues were referred to in the arguments of counsel at 99 and 100.
5 The child was born on 3 December 1992. The child’s mother was a dependent personality, and received assistance from relatives, particularly the plaintiff for the care of her child and also for the management of her own life. She left the child in the plaintiff’s care from time to time. Her health was very poor. After several earlier attempts she committed suicide in April 1995. The child was then two years of age and was in the temporary care of the plaintiff. The child has since then remained in the care of the plaintiff, who has actually borne all parental responsibilities for her since then.
6 The child’s father at one time lived in a de facto relationship with the mother. However he did not at any time undertake parental responsibilities in a significant way, he acceded to the child remaining with the plaintiff after the mother’s death, and he has never expressed any intention to take responsibility for the child’s upbringing, provide her with a home, or take any other step. All he has done has been to leave her in the plaintiff’s care. The plaintiff obtained a custody order made by a Local Court Magistrate under the Family Law Act, which the father did not oppose. The father has never made any contribution to the child’s maintenance by the plaintiff. He has not seen the child since late in 1995, about the time the child turned three.
7 The father cannot now be located. The plaintiff has filed affidavit evidence showing extensive inquiries for him. All reasonable avenues of inquiry have been exhausted without success and it is not practically possible to give him notice of this application. Having regard to his behaviour in the past it is extremely unlikely that he would oppose the application.
8 The evidence shows that four grounds exist on each of which the Court should dispense with the father’s consent; the grounds in sub-s 32(1)(a) - after reasonable inquiry he cannot be found, subs 32(1)(c) - in the opinion of the Court he is unfit to discharge the obligations of the parent by reason of his having abandoned the child, subs 32 (1)(d) - he has for over one year failed without reasonable cause to discharge the obligations of a parent or to make suitable arrangements to discharge the obligations of a parent and subs 32(1)(e) - the child is in the care of a foster parent, has established a stable relationship with the foster parent, and her interests and welfare will be promoted by remaining in the care of the foster parent.
9 It is plain that the application should be granted in all respects other than the consideration which I should give to the natural relationship between the plaintiff and the child. The plaintiff is the great-aunt of the child; the child’s mother was the daughter of the plaintiff’s sister. Where there is a generational gap the interests of the child may be adversely affected by introducing complexities into the natural relationships. I have given careful consideration to the impact on the interests of the child of introducing such a complexity here. In my view there is potentially an adverse impact of that kind in that the child will at a later time have to come to terms with unusual complexities in the bonds of relationship: her aunt by adoption will also be her natural grandmother, and there will be other complexities of similar kinds. Although this may cause the child some concern, in every other respect the proposed adoption is very strongly in the child’s interest.
10 The proposed adopting parent, who has never been married, has the child’s interests at heart and has protected and advanced them all the child’s life. She has been a figure in the child’s life at all times since she was born and has been the only person to discharge parental responsibility for the child for almost four years. She does not have a similar responsibility for any other child. The natural mother has died, and there is no reasonable prospect that the child’s father will ever take any real part in the child’s life and upbringing. The plaintiff has well-considered and realistic plans to discharge the responsibilities of a parent which will maintain for the child continuing contact with a circle of relatives. In the whole balance of the child’s interests the potential adverse impacts are of small importance.
11 In these circumstances I will make an order of adoption.

Last Modified: 05/27/1999