re AJC

[2010] NSWSC 1282

CITATION:	Application of Director-General Department of Human Services; re AJC [2010] NSWSC 1282
HEARING DATE(S):	In Chambers
JUDGMENT DATE :	16 September 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
DECISION:	Make orders substantially in accordance with claims 1 and 2 in the summons
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Adoption – Application for orders – relevant considerations – whether adoptive parents fit and proper parents – where application made under (NSW) Adoption Act 2000, s 101 – where child over eighteen years of age – whether natural father’s consent necessary – whether notice to natural father pursuant to s 88 required.
LEGISLATION CITED:	(NSW) Adoption Act 2000, s 54, s 88, s 101
CATEGORY:	Principal judgment
FILE NUMBER(S):	SC 2010/84

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTION LIST

Brereton J

Thursday, 16 September 2010

2010/84 Application of Director-General Department of Human Services; re AJC

JUDGMENT

1 HIS HONOUR: In this adoption application, the child AJC is eighteen years of age and has been cared for by the proposed adopting parents PNN and SDN full-time since August 2003 as a foster child while she has been under the parental responsibility of the Minister pursuant to a care order made by the Children’s Court; she had earlier been in their care from time to time for respite purposes. AJC initiated the proposal for adoption, has signed an instrument of consent, and plainly wishes to be adopted. Subject to one matter, the evidence plainly establishes that it would be in the interests of the child to make an adoption order as sought.

2 That matter is that the proposed female adopting parent SDN was on 12 December 2006 convicted of assault causing bodily harm on the child’s sibling, who was also placed with the proposed adopting parents. The assault was a hit on the legs with a strap. The victim and AJC remained in the care of PNN and SDN, and a carer review undertaken by an external psychologist in August 2007 found that the assault was an isolated event related to an accumulation of stressors in SDN’s life, and difficulty in managing the victim’s defiant and aggressive behaviour. Although the victim’s placement subsequently broke down, AJC is aware of the events, is confident that SDN would never hurt her, and maintains her wish to be adopted. PNN and SDN have engaged well with supporting services, and the Department is very confident that there will be no repetition. There is no other known instance of physical discipline by either PNN or SDN in their 15-year history as foster carers of multiple children. In my view, having regard to the whole of this evidence, the age and independence of AJC, and the history of PNN and SDN as foster carers, an isolated loss of control to the extent of the assault in question, in the context of serious accumulated stressors and challenging and provocative conduct on the part of the sibling, does not disqualify them as fit adopting parents.

3 The Summons seeks an order that the child’s name be her existing first names, and a hyphenated surname combining her current (natural mother’s) surname and her adoptive parents’ surname. That accords with the child’s expressed wish, and reflects an appropriate combination of her birth heritage, her real living arrangements, and her adoptive family. Had the application been dealt with before the child attained eighteen years of age, there would have been no difficulty in approving the names proposed. However, (NSW) Adoption Act 2000, s 101, relevantly provides as follows (emphasis added):

101 Names of adopted children (cf AC Act s 38)
(1) On the making of an adoption order:
(a) an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made , and
(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.
(4) An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change.
(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.
(6) Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, under the law of New South Wales.

4 It is arguable that the intent of s 101(1)(a) and (6) is that any change in the name of an adopted child over 18 years of age should be a function of the child under the general law, and not of the court in making an adoption order. However, the inclusion in s 101(1)(a) of an exception where the child decides otherwise, suggests that on making an adoption order the Court can specify such name as the child decides he or she is to have. In my view, where the child has made such a decision, then it is desirable that the court should specify the names that the child is to have, in accordance with the child’s decision, in order to ensure that the birth certificate issued consequent upon the adoption order reflects the child’s decision. Accordingly, I will, in accordance with the child’s wishes, order that she is to have the names proposed.

5 The Summons also seeks an order dispensing with notification to the natural father, whose whereabouts are unknown and who has never had any contact with the child - although it does not seek any order dispensing with notification to the natural mother, who has not consented. (NSW) Adoption Act 2000, s 54, provides as follows (emphasis added):

54 When consent of parent or person who has parental responsibility not required (cf AC Act s 26 (4A))
(1) Consent is not required under section 52 if:
(a) the requirement for the consent has been dispensed with by the Court, or
[Note. See Division 3 of Part 5.]
(b) the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or
(c) the child gives sole consent to his or her adoption in accordance with subsection (2), or
(d) the child is 18 or more years of age .
(2) A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years.
(3) However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless:
(a) the Court is satisfied that at least 14 days’ notice of the application for the adoption order has been given by the Director-General or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or
(b) the Court dispenses with the giving of notice.
(4) The regulations may prescribe the particulars to be contained in a notice under this section.
[Note. Parental responsibility is defined in the Dictionary.]

6 The child is now more than eighteen years of age. Accordingly, by operation of s 54(1)(d), consents of the natural parents are not required.

7 Moreover, because the child is more than 18 years of age, the notice requirement contained in s 54(3) does not apply. In respect of notice of the application, s 88 provides as follows:

88 Notice of application for adoption orders (cf AC Act s 22)
(1) The Court may not make an adoption order unless at least 14 days’ notice of the application for the order (containing the particulars, if any, prescribed by the regulations) has been given:
(a) 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), and
(b) to any person (not being a person whose consent is so required) with whom the child resides or who has parental responsibility for the child.
(2) Except as the Court may otherwise determine, nothing in subsection (1) requires a notice referred to in that subsection to be given to a person referred to in subsection (1) (b) if that person is:
(a) an applicant for the adoption order, or
(b) a person with whom the child resides only as a patient or inmate of a hospital of which that person is in charge or a person who has parental responsibility for a child only as the person in charge of a hospital.
(3) The notice must not specify the name of, or identify, any applicant.
(4) The Court may dispense with the giving of the notice.
(5) If it appears to the Court to be necessary in the interests of justice so to do, the Court may direct that notice of an application for an adoption order be given to any specified person.

8 Because the natural parents’ consent is not required, and because the child does not reside with either of them, notice is not required under s 88(1). It follows that neither an order dispensing with the consent of the natural parents, nor one dispensing with notice to them, is necessary.

9 I will therefore make orders substantially in accordance with claims 1 and 2 in the Summons.

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