The Adoption of Andrew, Mark and Richard

[2024] NSWSC 508

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Andrew, Mark and Richard [2024] NSWSC 508

Hearing dates:

On the papers

Decision date:

03 May 2024

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Orders for adoption to be made

Catchwords:

CHILD WELFARE – adoption – order – whether in children’s best interest that adoption order be made – whether adoption order clearly preferable – whether consent of mother and father should be dispensed with – whether adoption plan should be approved

Legislation Cited:

Adoption Act 2000 (NSW)

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

Cases Cited:

Adoption of RCC and RZA [2015] NSWSC 813

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (Plaintiff)
“John” (a pseudonym) (Defendant)

Representation:

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

File Number(s):

2021/332956

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 the three children, who are siblings, who I will call:

1. “Andrew” (not his real name), now 6 years of age;

2. “Mark” (not his real name), now 8 years of age; and

3. “Richard” (not his real name), now 8 years of age;

by the proposed adoptive parents, who I will call “Codey” (not his real name) and “Hannah” (not her real name).

2. By Notice of Motion filed in February 2024, the Secretary of the New South Wales Department of Communities and Justice 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 the children’s birth mother;

2. pursuant to s 67(1)(d) of the Adoption Act, the Court dispense with the requirement for the consent of the children’s birth father;

3. orders for the adoption of the children in favour of the adopting parents;

4. orders approving names for the children;

5. note that the Court is satisfied that the arrangements proposed in the Maternal Adoption Plan and the Paternal Adoption Plan are in the children’s best interests and are proper in the circumstances.

3. The children’s birth father, who I will call “John” (not his real name), filed a Notice of Appearance, and was joined as a defendant in these proceedings.

4. The children’s birth mother, who I will call “Isabel” (not her real name), has been served with notice of the adoption application. She has not sought to engage in these proceedings.

5. The parties attended a preliminary hearing for the application in April 2024. The parties have now agreed that I may consider my decision on the papers. I am grateful to Ms Hailstone, for the Secretary, for her submissions, and to John for the material he provided.

The circumstances of the case

6. Richard and Mark have lived with Codey and Hannah continuously since they were 3 years of age. Andrew has lived with Codey and Hannah continuously since he was 15 months old.

7. Codey and Hannah have three other adopted children, between the ages of 13 and 12 years.

8. In 2019, the Children’s Court made final orders, amongst other things, rescinding all previous orders and allocating parental responsibility for Andrew, Mark, and Richard to the relevant Minister for a period of two years.

9. In 2021, the Secretary filed a Summons seeking an interim order pursuant to s 84(2) of the Adoption Act allocating parental responsibility for the children to the Secretary for a period of 12 months, or until further order.

10. At that time, an adoption application was not ready to be filed by the Secretary due to a breakdown in the relationship between Codey and Hannah, the adoption service provider, and the Secretary.

11. The Court made the interim order sought by the Secretary.

12. About 11 months later, in 2022, the Secretary filed a Notice of Motion seeking interim orders pursuant to the Court’s inherent parens patriae jurisdiction that the children be made wards of the Court until further order, and allocating parental responsibility for the children to the Secretary for a period of 12 months.

13. At that time, I made the following orders:

1. An interim order be made in the Court’s inherent parens patriae jurisdiction that:

1. Until further order, the children in this proceeding [Andrew, Mark and Richard] be made wards of the Court; and

2. For a period of 12 months, or until further order, parental responsibility for the children [Andrew, Mark and Richard] be delegated to the Secretary, New South Wales Department of Communities and Justice.

2. That leave be granted to the Plaintiff to provide a copy of any evidence filed or served in the proceedings on the proposed adoptive parents.

14. About 11 months later, in 2023, the Secretary filed a Notice of Motion seeking a 12-month extension to those orders.

15. At that time, I made the following orders:

1. That an interim order be made in the Court’s inherent parens patriae jurisdiction that:

1. For a period of 12 months, or until earlier further order, parental responsibility for the children in this proceeding [Andrew, Mark and Richard] be delegated to the Secretary, New South Wales Department of Communities and Justice; and

2. For a period of 12 months, or until earlier further order, the Secretary may delegate his duties and powers in relation to such parental responsibility to any officer within his Department.

NOTATION

A. The Court notes that the children in this proceeding are wards of the Court pursuant to an order made by the Supreme Court of NSW [in 2022] that until further order, the children in this proceeding [Andrew, Mark and Richard] be made wards of this Court.

16. The Secretary, on behalf of Codey and Hannah, is now ready to seek the orders for adoption.

The formal requirements for adoption

17. I am satisfied that the formal requirements of the Adoption Act have been satisfied.

Whether adoption is in the best interests of the children

18. 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 Andrew, Mark, and Richard will be promoted by the adoption and that, as far as practicable and having regard to their age and understanding, Andrew, Mark, and Richard’s wishes and feelings have been ascertained and due consideration given to them. ^[1]

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

19. Andrew, Mark, and Richard are not old enough to consent to their adoption, but each child has an age-appropriate understanding of what the adoption orders would mean for their relationship with Codey and Hannah. ^[2] The children know that Codey and Hannah’s older children are adopted, and this has allowed them to ask questions about and reach an understanding of what adoption means. Richard has described adoption as meaning “you get to be adopted and be part of this family”, and Mark and Richard understand that adoption would mean Codey and Hannah’s house is “their forever home”. Each of the children know adoption would mean they could share a surname with the family.

    2. Adoption Act, ss 8(2)(a)-(b) and 90(1)(b).

20. I am comfortably satisfied that the orders for adoption would be in Andrew, Mark, and Richard’s best interests.

21. The children’s physical, emotional, and educational needs are being well met by Codey and Hannah. ^[3] Codey and Hannah have consistently demonstrated their capacity to care for the children’s health, developmental, educational, and social needs, and have supported the children in advocating for and navigating their various diagnoses.

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

22. Codey and Hannah share the same Polish cultural heritage as John and the children. Codey and Hannah expose the children to Polish culture and language daily, and are committed to supporting their connections to their Polish heritage through visits with the paternal family. Codey and Hannah also support the children in connecting with their Indonesian cultural heritage, being Isabel’s cultural heritage.

23. Codey and Hannah are experienced and committed parents to Andrew, Mark, and Richard. ^[4] It is clear that Codey and Hannah are deeply committed to the children and their needs. Their suitability generally is also apparent in their adoption and parenting of their three older children.

    4. Adoption Act, s 8(2)(g)-(i).

The birth parents

24. I have considered the relationship that the parents have with Andrew, Mark, and Richard, and any wishes they have expressed about the adoption. ^[5]

    5. Adoption Act, s 8(2)(e)-(f).

25. John and Isabel have not consented to the adoption.

26. Isabel has stated that she is opposed to the adoption. However, she has stated that she understands the children will not be returned to her care, and that the children are doing well under the care of Codey and Hannah.

27. John has continuously supported adoption by Codey and Hannah as being in the best interests of the children. He has expressed his gratitude that the children are growing up in a “lovely family” who share a Polish cultural heritage. He has stated that he sought to be joined as a defendant in these proceedings in order to have a final say in Court.

28. John was able to participate in the preliminary hearing before me in April 2024. I was able to hear from John about his experience and his relationship with the children, and with Codey and Hannah.

29. John has also filed an affidavit, which he expressed to be “written to the Court and my boys as I want my sons to know about their biological Dad who loves [them] extremely and only wants the very best for [them]”. In that affidavit, John stated, “I am now at the point where I don’t think fighting and having further Court proceedings is best for my boys. Although I could never consent to [the children] being adopted, I will no longer stand in the way of the adoption proceedings.”

30. The children have developed positive relationships with Isabel, John, the paternal grandmother, and the maternal half-siblings. Codey and Hannah are supportive of the children having contact with their birth family, and recognise the importance of the children maintaining connection with them.

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

31. I must be satisfied that the making of an order for adoption is “clearly preferable” in the best interests of Andrew, Mark, and Richard than any other action that could be taken by law in relation to their care. ^[6]

    6. Adoption Act, s 90(3).

32. I am satisfied that the making of an adoption order will provide the children with certainty, stability, and security. It will enable the children to achieve a sense of belonging in the adoptive family, to a degree that no other lawful action could achieve. It will also place the children in the same position as Codey and Hannah’s older adopted children.

33. If I were to make no order, and maintain the status quo, the children would remain as wards of the Court. If I were to make an order for parental responsibility for the children to Codey and Hannah would alleviate some of the disadvantages of taking no step, but it would remain a temporary order that would expire when the children each attain 18 years of age. Both would lack the certainty and permanency of an adoption order.

Dispensing with consent of the birth parents

34. The consent of Andrew, Mark, and Richard’s parents to the proposed adoption is required unless, relevantly, consent has been dispensed with. ^[7]

    7. Adoption Act, ss 52, 54.

35. As I have said above, the birth parents have not consented to the adoption. ^[8]

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

36. Accordingly, the Secretary seeks an order to dispense with the parents’ consent pursuant to s 67(1)(d) of the Act.

37. I may not make a consent dispense order under s 67(1) unless satisfied that, relevantly, the children have established a stable relationship with Codey and Hannah, and that the adoption by Codey and Hannah will promote the children’s welfare. ^[9] I must also be satisfied that to do so will be in the best interests of the children. ^[10]

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

    10. 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. ^[11]

    11. 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 Andrew, Mark, and Richard have established a strong and secure attachment to Codey and Hannah. The children have lived with Codey and Hannah for the vast majority of their lives. It is also apparent that the children have loving attached relationships with Codey and Hannah’s three other adopted children. The adoptions by Codey and Hannah will promote the children’s welfare. The making of a consent dispense order is in the best interests of the children.

The Adoption Plans

40. There is a Maternal Adoption Plan which relates to the children, Isabel, and the maternal siblings, Hayden and Damon. It provides for face-to-face visits with Isabel a minimum of five times per year, for a minimum of 1.5 hours, with an extra visit in the extended Christmas school holidays. It also provides for face-to-face visits with Hayden and Damon, should the children request it.

41. Isabel has not signed the Maternal Adoption Plan, but has stated that she intends to sign the plan.

42. There is also a Paternal Adoption Plan which relates to the children and John. It provides for face-to-face visits with John a minimum of five times per year, for a minimum of 1.5 hours, with an extra visit in the extended Christmas school holidays.

43. John signed the Paternal Adoption Plan following a mediation of the parties in October 2023.

44. Face-to-face visits have often been difficult for the children, Codey and Hannah, Isabel, and John in the past. After a trial of online Zoom visits from October 2022, face-to-face visits resumed in March 2023. I am informed that these visits have since been proceeding positively.

45. I am satisfied that the arrangements proposed in the plans are in the best interests of the children and are proper in all the circumstances. ^[12]

    12. 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. ^[13] Thus, a party to an adoption plan, once registered, can seek to enforce it as an order of the Court.

    13. Adoption Act, s 50(4).

47. I understand that, at this stage, the parties do not seek registration of the Paternal Adoption Plan. I understand that this course is agreed by John and Codey and Hannah. John may, at any time, make an application for the Court to register or review the Paternal Adoption Plan if he wishes it. ^[14]

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

Proposed name change

48. It is proposed that, on the making of the adoption order, each child would take the surname of Codey and Hannah, and have their current surname become a middle name.

49. Before changing the names of the children, I must consider any wishes expressed by the children and any factors relevant to the weight that should be given to those wishes. ^[15]

    15. Adoption Act, s 101(2).

50. I am satisfied that the proposed name changes are in each of the children’s best interests. The proposed surname will reflect the children’s membership of the adoptive family, and enhance their sense of belonging and stability. The proposed middle name, being John’s surname, will allow the children to have an ongoing connection to their birth family.

51. Once the adoption order is made, Integrated Birth Certificates will be created for each of the children which will include details of the children’s birth parents. It will form an important part of Andrew’s, Mark’s, and Richard’s life stories.

Conclusion

52. In the circumstances, I propose to make the orders sought.

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Endnotes

Decision last updated: 03 May 2024