In the adoption of Natalie

[2021] NSWSC 254

Supreme Court

New South Wales

Medium Neutral Citation:

In the adoption of Natalie [2021] NSWSC 254

Hearing dates:

On the papers

Decision date:

18 March 2021

Jurisdiction:

Equity - Adoptions List

Before:

Kunc J

Decision:

Adoption order to be made

Catchwords:

CHILD WELFARE — Adoption — Best interests —Adoption by single parent — Court to be satisfied that adequate testamentary guardianship arrangements have been made

Legislation Cited:

Adoption Act 2000 (NSW)

Guardianship of Infants Act 1916 (NSW)

Category:

Principal judgment

Parties:

Secretary, NSW Department of Communities and Justice (Plaintiff)

File Number(s):

2020/261851

Publication restriction:

No

Judgment

Summary

1. The Court is now satisfied, in every respect, that an order should be made for the adoption of Natalie by Veronica. All names in these reasons are pseudonyms, and without disrespect, the Court will use given names.

2. Save for one matter, this application is of a kind in which the Court would not normally publish reasons. It is, in substance, unopposed. Natalie’s birth father is dead and her birth mother, having been served with the adoption application, has declined to take any part (including that she has not given her consent).

3. The matter that has prompted this judgment is the Court’s conclusion that in this case, and generally in cases of adoption by a single person, when considering the child’s best interests, the Court should have evidence that proper testamentary guardianship arrangements have been, or will be, made by the proposed adoptive parent for the child.

Facts

4. Natalie is 8 years old. Veronica is a well-qualified teacher who is 50 years old. She is currently single and does not have a partner. In her original affidavit in support of her application, Veronica included:

“In respect of support networks for [Natalie] if something were to ever happen to me, my preference would be to have my parents to care for [Natalie] as they are my rocks. I also have [Michelle] and [Chris] as a backup option. I have spoken with all of these people about the unlikely event of anything happening to me and they are supportive of helping. I also have my close friends, …, work colleagues and other parents I have met through various social activities who are very supportive of me.”

5. Upon reviewing the application, I asked the Adoptions Clerk to raise this requisition:

“The arrangements for [Natalie] if [Veronica] died or became seriously incapacitated that are set out in paragraph 34(e) of [Veronica’s] affidavit are too vague and uncertain. The Court requires the following:

(a)   An affidavit from [Veronica] attaching her current will showing who she has appointed as the testamentary guardian or guardians for [Natalie], together with an undertaking by [Veronica] to the Court that she will, until [Natalie] turns 18, ensure that there is always a current appointment of testamentary guardian or guardians for [Natalie].

(b)   An affidavit or affidavits from the current testamentary guardian or guardians confirming that they have accepted the appointment as such, and also expressing their willingness to care for [Natalie] should [Veronica] not die but become seriously incapacitated for any period of time, together with a brief statement of their personal health, living and financial circumstances.

The Court must be satisfied that the testamentary guardian(s) is/are likely to be able physically and materially to care for [Natalie] until she turns 18 in 2030. Given [Veronica] is 50, this consideration may, for example, exclude [Veronica’s] parents as suitable testamentary guardians.”

6. In response to that requisition, further evidence has been filed. A further affidavit from Veronica includes:

“4.   I currently have a Will however have not yet appointed a Testamentary Guardian for [Natalie] as she is in the parental responsibility of the Minister for Families, Communities and Disabilities.

5.   In the event that an adoption order is made in respect of [Natalie], I intend to update my Will within one month of the order to appoint my parents, [Jennifer] and [Stephen] … as [Natalie’s] Guardians in the event of my death. I intend to appoint my friends, [Michelle] and [Chris] … as alternative Guardians for [Natalie] in the event that my parents are not fit and capable to take on such a responsibility.

…

11.   I undertake to ensure that my Will remains up to date and there is always a current Guardianship appointment in place for [Natalie].”

7. Veronica’s mother, Jennifer, is currently 73 years old and her father, Stephen, is currently 77 years old. The evidence is that they are both currently healthy. Nevertheless, they will be 83 and 87 years old respectively when Natalie turns 18.

8. The application is now also supported by an affidavit from Jennifer confirming that she and Stephen consent to being appointed testamentary guardians and that they understand that such an appointment would involve being responsible for Natalie until she turned 18. Jennifer also indicates their willingness to provide care for Natalie should Veronica become incapacitated for any period of time. Her affidavit goes on to provide brief, but adequate, details about their financial, health and other circumstances, all of which satisfy the Court as to their suitability to care for Natalie in the event of Veronica’s temporary or permanent incapacitation or death.

9. There is also a similar affidavit from Michelle, on behalf of herself and Chris. They are 50 and 51 years old respectively. Michelle confirms that she and Chris consent to being appointed alternative testamentary guardians and that they understand that such an appointment would involve being responsible for Natalie until she turned 18. She also indicates their willingness to provide care for Natalie should Veronica become incapacitated for any period of time. Her affidavit goes on to provide brief, but adequate, details about their financial, health and other circumstances, all of which satisfy the Court as to their suitability to care for Natalie in the event of Veronica’s temporary or permanent incapacitation or death.

Consideration

10. It is well understood that under s 8(1)(a) of the Adoption Act 2000 (NSW) (the Adoption Act), in making a decision about the adoption of a child, “the best interests of the child, both in childhood and in later life, must be the paramount consideration”. While every case must turn on its facts, in my respectful view an important matter for the Court to take into account when the proposed adoptive parent is a single parent is the arrangements to care for the child in the event of the temporary or permanent incapacitation or death of the proposed adoptive parent before the child turns 18.

11. Such considerations are a serious matter for any parent, but are especially pertinent for a single parent, whether that person is the birth or adoptive parent. In an application for adoption, the question of care of the child in the event of any of those unfortunate circumstances is a sufficiently important matter that hearsay evidence of statements of support and willingness to assist from third parties are insufficient. The Court should receive primary evidence in relation to such significant matters.

12. In the present case, the Court is satisfied by the additional evidence that suitable, legal arrangements will be put into place upon the making of an adoption order to ensure that Natalie will be adequately cared for if something were to happen to Veronica. In making the adoption order, the Court will direct that an affidavit be filed not more than six weeks after the date of the adoption order to prove that those arrangements have been made by attaching Veronica’s new will.

13. By reference to her affidavit set out in [6] above, it appears that those advising Veronica have taken the view that she will not be able to appoint a testamentary guardian for Natalie until after an adoption order has been made. The Court makes no criticism of that. I assume that view has been taken because s 14(1) of the Guardianship of Infants Act 1916 (NSW) (the Guardianship Act) provides that “[t]he parent (including a mother or father) of a minor may by deed or will appoint any person to be guardian of the minor after his or her death”. It is only upon the making of an adoption order that Veronica will be regarded in law as the parent of Natalie (see s 95(2)(c) of the Adoption Act).

14. Given that a will does not take effect until the death of the testator, there may be much to be said for the proposition that an appointment of a testamentary guardian will be effective provided that the testator is the legal parent of the child at the date of the testator’s death, even if he or she was not the legal parent at the date of the will. Alternatively, an appointment expressed to be conditional upon an adoption order being made could be argued to be effective. However, an essentially uncontested application such as the present is not an appropriate vehicle to determine these issues and the conservative position taken by Veronica’s advisers is entirely appropriate.

15. Insofar as the Court requires evidence about testamentary and related arrangements for the child in an adoption application by a single person such as the present, in my respectful opinion it should generally include:

1. An undertaking to the Court by the proposed adoptive parent that, within one month of the adoption order being made, she or he will appoint a testamentary guardian or guardians, and that such an appointment will be kept current while the child is less than 18 years old. (Evidence of a current appointment of a testamentary guardian or guardians would be required in the place of such an undertaking if the issue referred to in [13] and [14] above is resolved by a decision of the Court or an amendment to the Guardianship Act.)

2. An affidavit from the proposed testamentary guardian or guardians consenting to their appointment as such and providing evidence as to their age, health, financial and other circumstances relevant to establishing their suitability, including (if this is intended) their willingness to care for the child should the proposed adoptive parent become temporarily or permanently seriously incapacitated.

3. If this has not already been dealt with by an affidavit of the kind referred to in the preceding sub-paragraph, an affidavit from a person or persons who are willing to care for the child if the proposed adoptive parent becomes temporarily or permanently seriously incapacitated, confirming that they are prepared to do so and providing evidence as to their age, health, financial and other circumstances relevant to establishing their suitability.

Conclusion

16. On the basis of the evidence now before the Court, the Court is satisfied that an adoption order for Natalie should be made in favour of Veronica and that Natalie’s birth mother’s consent should be dispensed with. The Court will now make arrangements to fix a convenient hearing date at which those orders can be made in the presence of Veronica, Natalie and interested family and friends.

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Decision last updated: 18 March 2021