The Adoption of Agnes (a pseudonym)

[2024] NSWSC 934

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Agnes (a pseudonym) [2024] NSWSC 934

Hearing dates:

On the papers

Date of orders:

1 August 2024

Decision date:

01 August 2024

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Adoption orders to be made; declaration of parentage orders to be made

Catchwords:

CHILD WELFARE – adoption – whether declaration of parentage should be made – whether adoption order should be made – whether adoption is in the best interests of the child – whether dispensing with the consent of the birth parents to the adoption would promote child’s welfare – whether proposed adoption plans are in the best interests of the child – whether proposed name change would be in the best interests of the child

Legislation Cited:

Adoption Act 2000 (NSW)

Births, Deaths and Marriages Registration Act 1995 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Status of Children Act 1996 (NSW)

Cases Cited:

Adoption of RCC and RZA [2015] NSWSC 813

In the adoption of Natalie [2021] NSWSC 254

Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142

Category:

Principal judgment

Parties:

Secretary, New South Wales Department of Communities and Justice (Plaintiff)
“Helen” (a pseudonym) (Defendant)

Representation:

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (duty basis) (Defendant)

File Number(s):

2024/8446

Publication restriction:

This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

1. These proceedings relate to the proposed adoption of a child who I will call “Agnes” (not her real name), now five years of age.

2. By an Amended Summons filed 14 June 2024, the Secretary of the New South Wales Department of Communities and Justice (“the Secretary”) seeks the following orders:

1. pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the Court dispense with the requirement for the consent of Agnes’s birth mother, who I will call “Helen” (not her real name);

2. pursuant to s 67(1)(d) of the Adoption Act, the Court dispense with the requirement for the consent of Agnes’s birth father, who I will call “Ian” (not his real name);

3. pursuant to s 21(2) of the Status of Children Act 1996 (NSW), the Court declare that Ian is the father of Agnes;

4. pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW), the Court make directions for the inclusion of Ian as the father of Agnes in the Register of Births, Deaths and Marriages;

5. pursuant to ss 50(1) and (3) of the Adoption Act, the Maternal Adoption Plan signed by Helen and the adopting parent be registered;

6. an order for the adoption of the child in favour of the adopting parent, who I will call “Deborah” (not her real name); and

7. an order approving a new surname and middle name for Agnes.

3. Agnes’s mother is Helen. She filed a Notice of Appearance in these proceedings and was joined as a defendant. She has been assisted by Legal Aid NSW on a duty basis.

4. Agnes’s father is Ian. However, Ian is not registered on Agnes’s birth certificate; thus, the Secretary has brought an application for a declaration of parentage. Ian has not sought to engage in these proceedings.

5. The parties attended mediation on 1 May 2024, and attended a preliminary hearing before me on 22 May 2024. The parties have agreed that I may consider my decision on the papers. I am grateful to Ms Anderson, for the Secretary, for her submissions, and to Helen for the material she provided.

The circumstances of the case

6. Agnes has lived with Deborah continuously since February 2019, when Agnes was eight days old.

7. There are two other children in Deborah’s home, aged six years and one year respectively. They live in the home with Agnes, Deborah, and Deborah’s sister, who I will call “Ruth” (not her real name). The older child is under the joint parental responsibility of Deborah and Ruth pursuant to a guardianship order made under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). The younger child is under the sole parental responsibility of Ruth pursuant to a guardianship order made under the Care Act.

8. As for Agnes, in August 2020, the Grafton Children’s Court made final orders providing for Agnes to be placed under the parental responsibility of the Minister for Family and Communities until she reaches 18 years of age pursuant to the Care Act.

Declaration of parentage

9. I will deal first with Agnes’s parentage.

10. As I have said above, Agnes’s birth certificate does not name her father. The Secretary seeks an order that Ian be declared as Agnes’s father.

11. The Secretary is a nominated person authorised to bring an application for a declaration of parentage. ^[1] On any such application, the Court may make a declaration that a named or identified person is a child’s parent. ^[2]

    1. Status of Children Act, s 21(1)(d); see Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142 at [11] (Sackar J).

    2. Status of Children Act s 21(2).

12. I am satisfied that Agnes’s paternity is proven on the balance of probabilities. Ian considers himself to be Agnes’s father. Ian was identified to be Agnes’s father by Helen shortly after Agnes’s birth. There is also forensic evidence of paternity. While Ian did not submit DNA to conduct relationship testing, consent was obtained to test DNA from Ian’s child, who would be Agnes’s paternal half-sibling. The relationship test results stated that a half-sibling relationship between the children was “highly likely”.

13. I am also satisfied that it is in Agnes’s best interests that a declaration of parentage be made that Ian is her father. The inclusion of Ian’s name on her birth certificate will support her ongoing relationship with her birth father, and support her understanding of her identity as she grows up.

14. I propose to make the declaration pursuant to s 21(2) of the Status of Children Act that Ian is the father of Agnes.

15. In accordance with my finding, pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act, I propose to make an order that the Registrar of Births, Deaths and Marriages include Ian as the father of Agnes in the Register of Births, Deaths and Marriages.

Orders for adoption

16. I will now deal with the orders sought by the Secretary in relation to the adoption of Agnes.

The formal requirements for adoption

17. This is an application commenced by the Secretary on behalf of one proposed adoptive parent, being Deborah. The Adoption Act does not make any distinction between an application for adoption made on behalf of one person or jointly on behalf of a couple. ^[3]

    3. Adoption Act, ss 26-28.

18. Thus, having read the materials, I am satisfied that the formal requirements of the Adoption Act have been satisfied.

Whether adoption is in the best interests of the child

19. The paramount consideration in an application for adoption is the best interests of the child the subject of the application. I must not make an adoption order unless satisfied that the best interests of Agnes will be promoted by the adoption and that, as far as practicable and having regard to her age and understanding, Agnes’s wishes and feelings have been ascertained and due consideration given to them. ^[4]

    4. Adoption Act, ss 8(1)(a) and 90(1)(a).

20. Agnes is not old enough to consent to her adoption, but she has an age-appropriate understanding of what an adoption order would mean for her relationship with Deborah. She calls Deborah “mummy [Deb]” and sees the other children in the home as her “brother” and “sister”. She has stated: “I love my family and my home”. It is clear she has a strong attachment to Deborah and Deborah’s family.

21. Agnes’s physical, emotional, and educational needs are being well met by Deborah. ^[5] Deborah has consistently demonstrated her capacity to care for Agnes’s health, developmental, and behavioural needs, and has supported Agnes in navigating her diagnoses of Reactive Attachment Disorder and Oppositional Defiant Disorder. Deborah is committed to encouraging Agnes to maintain her connections with her family and cultural identity, and considers this to be emotionally beneficial to Agnes. ^[6]

    5. Adoption Act, s 8(2)(c).

    6. Adoption Act, s 8(2)(c).

22. Deborah is an experienced and devoted parent to Agnes. ^[7] She parents Agnes in a manner which is child focused and nurturing, and it is clear she is deeply committed to Agnes’s needs. I understand that Deborah has identified Ruth as a testamentary guardian in the event that Deborah is unable to care for Agnes. ^[8] Thus, Deborah is well suited as a parent to Agnes.

    7. Adoption Act, ss 8(2)(g)-(i).

    8. See In the adoption of Natalie [2021] NSWSC 254 (Kunc J).

23. I am comfortably satisfied that an order for adoption would be in Agnes’s best interests.

The birth parents

24. I have considered the relationship that the birth parents have with Agnes and any wishes they have expressed about the adoption. ^[9]

    9. Adoption Act, ss 8(2)(e)-(f).

25. Helen and Ian have not consented to the adoption.

26. Helen has expressed her wish for Agnes to be restored to her. It is her preference that Agnes return to her care so that Helen may parent Agnes with Agnes’s sibling, who I will call “Nicola” (not her real name), aged two years old. However, Helen agrees that Deborah takes good care of Agnes and recognises the bond formed between the two.

27. On 22 May 2024, at the preliminary hearing before me, I was able to hear from Helen directly. With the assistance of the Legal Aid duty solicitor, Helen had prepared a Proof of Evidence which clearly articulated her concerns at that time regarding the proposed adoption. Those concerns related to the proposed Maternal Adoption Plan, which I will discuss below. I congratulate Helen for the dignity with which she expressed herself in that Proof of Evidence and at the preliminary hearing.

28. Ian has not engaged in these proceedings. He is of the view that Agnes should be returned to the care of her birth parents, but has said he will accept an adoption order.

29. It is clear that Agnes has a very positive relationship with Helen. Despite the barriers, Helen is committed to having regular contact with Agnes. Agnes also has a positive connection with Ian. Agnes understands that she has two families, and that both families love her very much.

30. Deborah is supportive of Agnes having contact with her birth family, and recognises the importance of Agnes maintaining connections with them.

Whether adoption is clearly preferable in the best interests of the child

31. I must be satisfied that the making of an order for adoption is “clearly preferable” in the best interests of Agnes than any other action that could be taken by law in relation to their care. ^[10]

    10. Adoption Act, s 90(3).

32. I am satisfied that the making of an adoption order will provide Agnes with certainty, stability, and security. It will enable Agnes to achieve a sense of belonging in the adoptive family, to a degree that no other lawful action could achieve.

33. If I were to make no order, in circumstances where the Grafton Children’s Court has found no realistic possibility of restoration to Helen or Ian, Agnes would remain in the care of Deborah, but parental responsibility would remain with the Minister. That would mean that Deborah is unable to make significant decisions regarding Agnes without the approval of the Minister.

34. If I were to make an order for parental responsibility for Agnes to Deborah, that would alleviate some of the disadvantages of taking no step. Indeed, this is the position of the other children in Deborah’s home. However, it would remain a temporary order that would expire when Agnes attains 18 years of age.

Consent

35. The consent of Agnes’s parents to the proposed adoption is required unless, relevantly, consent has been dispensed with. ^[11]

    11. Adoption Act, ss 52, 54.

36. As I have said above, the birth parents have not consented to the adoption. ^[12] Accordingly, the Secretary seeks an order to dispense with the parents’ consent pursuant to s 67(1)(d) of the Adoption Act.

    12. Adoption Act, s 8(2)(e).

37. I may not make a consent dispense order under s 67(1) unless satisfied that, relevantly, Agnes has established a stable relationship with Deborah, and that the adoption by Deborah will promote Agnes’s welfare. ^[13] I must also be satisfied that to do so will be in the best interests of Agnes. ^[14]

    13. Adoption Act, ss 67(1)(d)(i)-(ii).

    14. Adoption Act, s 67(2).

38. Dispensing with the consent of parents to the adoption of their child by proposed adoptive parents is a grave step, not lightly to be taken. ^[15]

    15. See, for example, Adoption of RCC and RZA [2015] NSWSC 813 at [17] (Brereton J, as his Honour then was).

39. I am comfortably satisfied about these matters. It is clear that Agnes has established a strong and secure attachment to Deborah. Agnes has lived with Deborah for the vast majority of her life. It is also apparent that Agnes has a loving attached relationship with the other children in Deborah and Ruth’s care. The adoption by Deborah will promote Agnes’s welfare. The making of a consent dispense order is in the best interests of Agnes.

The Adoption Plans

40. There is an Amended Maternal Adoption Plan which relates to Agnes, Helen, and Nicola. It provides for face-to-face visits with Helen and Nicola a minimum of four times per year. Three of those visits are to occur in the area where Agnes and Deborah reside, and one of those visits is to occur in the area where Helen and Nicola reside. It also provides for telephone and video-call contact.

41. At the preliminary hearing before me on 22 May 2024, Helen was able to speak to what is involved for her and Nicola to travel from their area to the area where Agnes and Deborah reside to visit Agnes and Deborah. I understand that, altogether, it takes at least 8 hours in travel time.

42. Helen’s Proof of Evidence set out her concerns about the proposed Maternal Adoption Plan at that time, and stated that it was on that basis that she opposed the making of an adoption order. Those concerns were:

1. The amount of telephone and video-call contact provided in the Plan;

2. The duration of face-to-face visits provided in the Plan;

3. The funding provided by the Department of Communities and Justice for travel.

43. Following the preliminary hearing, the parties were able to resolve these issues, and the Secretary prepared the Amended Maternal Adoption Plan. Helen has signed that Amended Maternal Adoption Plan, and the Secretary seeks the registration of it. I congratulate the parties on resolving these issues in dispute.

44. There is a Paternal Adoption Plan which relates to Agnes, Ian, Agnes’s paternal grandmother, and Agnes’s paternal half-sibling. It provides for face-to-face visits with Ian a minimum of four times per year, with Agnes’s paternal grandmother and half-sibling to attend once per year. Deborah is willing to support telephone contact in addition to what is in the Plan. Ian has not signed the Paternal Adoption Plan, but the Secretary does not seek the registration of it.

45. I am satisfied that the arrangements proposed in both plans are in the best interests of Agnes and are proper in all the circumstances. ^[16]

    16. Adoption Act, s 90(2).

46. If an adoption plan is registered, it has the effect, on the making of an adoption order, as if the adoption plan were part of the order. ^[17] Thus, a party to an adoption plan, that is someone who has signed it, can, once registered, seek to enforce it as an order of the Court. A party to an adoption plan can also apply the Court for a review of an adoption plan. ^[18] The Court may make such changes, if any, to the provisions of the adoption plan as it considers proper in the circumstances and in the best interests of the child. ^[19]

    17. Adoption Act, s 50(4).

    18. Adoption Act, s 51(1).

    19. Adoption Act, ss 51(3)-(4).

47. As Helen is a party to the Maternal Adoption Plan, she may, at any time, make an application for the Court to review the Plan if she wishes it. ^[20]

    20. Adoption Act, ss 50(1)-(3), 51(1)-(3).

Proposed Name Change

48. It is proposed that, on the making of the adoption order, Agnes would have Deborah’s surname, retain her surname at birth as a middle name, and slightly change her existing middle name.

49. Before changing Agnes’s name, I must consider any wishes expressed by Agnes and any factors relevant to the weight that should be given to those wishes. ^[21] Agnes has not expressed any wishes about her name. When considering the remaining factors, I am satisfied that the proposed name change is in Agnes’s best interests.

    21. Adoption Act, s 101(2).

50. The proposed surname will reflect Agnes’s membership of the adoptive family, and enhance her sense of belonging and stability with Deborah. The proposed middle name, being her birth surname and Helen and Ian’s surname, will allow Agnes to have an ongoing connection to her birth family. It is Helen’s preference that Agnes retain her birth surname as a surname, but I am satisfied that the proposed name change is in Agnes’s best interests.

51. It is submitted that the slight change to her existing middle name would give Agnes a further connection to her adoptive family, as the change reflects Deborah’s middle name. This change is supported by Helen. I am satisfied that this would be in Agnes’s best interests.

52. An Integrated Birth Certificate will be created which will include details of Agnes’s birth parents. It will form an important part of Agnes’s life story.

Conclusion

53. I propose to make the orders sought.

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Endnotes

Decision last updated: 01 August 2024