The Adoption of Ashleigh (a pseudonym)

[2024] NSWSC 763

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Ashleigh (a pseudonym) [2024] NSWSC 763

Hearing dates:

24 June 2024

Date of orders:

24 June 2024

Decision date:

24 June 2024

Jurisdiction:

Equity - Adoptions List

Before:

Nixon J

Decision:

Orders for adoption made; consent of father dispensed with; change of name approved

Catchwords:

CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether consent of father should be dispensed with – whether change of name should be approved

Legislation Cited:

Adoption Act 2000 (NSW), ss 8, 52, 54, 67, 72, 88, 90, 91, 92, 101, 180

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

Cases Cited:

Adoption of BL [2018] NSWSC 391

Adoption of NG (No 2) [2014] NSWSC 680

Adoption of RCC and RZA [2015] NSWSC 813

Adoption of Taylor-Clay [2019] NSWSC 27

Application of A - re D [2006] NSWSC 1056

Re the Adoption of AJH [2017] NSWSC 1751

Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241

Re the Adoption of CCS and FLS [2019] NSWSC 71

Director General Department of Human Services; Re M [2011] NSWSC 369

In re W (A Child) (Adoption: Grandparents’Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793

Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087

Category:

Principal judgment

Parties:

Principal Officer, Anglican Community Services (Trading as Anglicare) (Plaintiff)

Representation:

Counsel:

Solicitors:

File Number(s):

2024/00167815

Publication restriction:

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

JUDGMENT

1. These proceedings concern the proposed adoption of a child, whom I will call Ashleigh Casey-Jones (not her real name), now six years of age, by the proposed adoptive parents, whom I will call Danielle Murray and Peter Smith (not their real names). For convenience, and without intending any disrespect, I will refer to each of the individuals involved in this matter by his or her first name.

2. By Summons filed 18 April 2024, the Principal Officer of Anglican Community Services (trading as Anglicare) seeks the following orders:

1. an order pursuant to section 67(1)(d) of the Adoption Act 2000 (NSW) (the Act), that the consent of Ashleigh’s birth father be dispensed with;

2. an order for the adoption of Ashleigh in favour of the proposed adoptive parents; and

3. an order approving the surname “Smith” as the surname and “Ashleigh Casey-Jones” as the given names of Ashleigh.

3. The Principal Officer of Anglicare also seeks notations that the Court is satisfied that the arrangements proposed in both the maternal adoption plan and the paternal adoption plan are in Ashleigh’s best interests and are proper in the circumstances.

The circumstances of the case

4. In August 2017, Ashleigh was born at X Hospital. She was discharged from hospital into the custody of Anglicare authorised short term foster carers.

5. On 1 December 2017, the Children’s Court of New South Wales made final orders providing for Ashleigh to be placed under the Parental Responsibility of the Minister for Families and Communities until she attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW). These orders remain in effect.

6. Shortly after, Ashleigh moved into the home of Danielle and Peter. She has lived with them continuously ever since then.

7. Danielle and Peter reside in their home with Ashleigh and their two biological sons, Jamie Smith (aged 5) and Andy Smith (aged 3) (not their real names).

8. Ashleigh’s birth mother, as registered on her birth certificate, is Samantha Casey (not her real name).

9. Ashleigh’s birth father, as registered on her birth certificate, is Kevin Jones (not his real name).

10. On 4 April 2023, the Minister’s delegate consented to the adoption of Ashleigh.

11. On 14 November 2023, Samantha consented to the adoption of Ashleigh.

12. On 10 April 2024, the Minister’s delegate provided an updated consent form to the adoption of Ashleigh, in order to align with the correct spelling of her legal name.

13. Kevin has not consented to the adoption of Ashleigh. On 9 May 2024, he was served with notice, pursuant to section 72(1) of the Act, of the Plaintiff’s application for an order under s 67 of the Act dispensing with the requirement for his consent to Ashleigh’s adoption; and notice, pursuant to s 88(1)(a) of the Act, of the application for the adoption order.

14. Kevin has not appeared in these proceedings.

The formal requirements for adoption

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

Adoption orders generally and the “best interests” principles under the Act

16. The determination of applications for adoption is arguably the most important work of the Equity Division of this Court: Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9] (Sackar J). An order for adoption is one of the most significant, and in human terms, far reaching of all orders the Court has power to make: Re the Adoption of CCS and FLS [2019] NSWSC 71 at [157] (Hallen J).

17. In Re the Adoption of CCS and FLS at [150], Hallen J described the far-reaching nature of an adoption order as follows:

“An adoption order is status changing. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. The child becomes part of his, or her, adoptive parents’ family, solely through operation of law, and there is no necessity for any actual blood relationship to exist between them. He, or she, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child: s 95(2)(c) of the Act. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act. The effect of an adoption order is to extinguish any parental responsibility of the birth parents. They no longer qualify as parents for the purpose of taking part in any future proceedings about the child. Thus, the adoption order directly affects three parties, namely the child, the birth parents and the adoptive parents.”

18. When making a decision about the adoption of a child, the paramount consideration to which I must have regard is the best interests of the child, both in childhood and later life: section 8(1)(a) of the Act. I must also have regard to the principles that adoption is to be regarded as a service for the child; that no adult has a right to adopt the child; that, if the child is able to form her own views on a matter concerning her adoption, she must be given an opportunity to express those views freely and such views are to be given due weight; and that the child’s given names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved: sections 8(1)(b)-(e) of the Act.

19. I must not make an adoption order unless I am satisfied that the best interests of Ashleigh will be promoted by the adoption and that, as far as practicable and having regard to Ashleigh’s age and understanding, her wishes and feelings have been ascertained and due consideration given to them: section 90(1)(a)-(b) of the Act.

20. The question of what is in a child’s best interests involves the making of a judicial evaluation and the balancing of many factors from which an overall conclusion must be reached which will be inherently imprecise: Director General Department of Human Services; Re M [2011] NSWSC 369 at [90] per Hallen J, citing Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241 at [16] (Lord Nicholls of Birkenhead).

21. In determining the best interests of Ashleigh, I must have regard to the matters set out in section 8(2) of the Act including, relevantly:

• any wishes expressed by Ashleigh;

• Ashleigh’s age, maturity and level of understanding;

• Ashleigh’s physical, emotional and educational needs, including her sense of personal, family and cultural identity;

• any wishes expressed by either or both of Samantha and Kevin;

• the nature of the relationship that Ashleigh has with Samantha, Kevin, and any siblings or significant other people;

• the attitude of Danielle and Peter to Ashleigh and to the responsibilities of parenthood;

• the nature of Ashleigh’s relationship with each of Danielle and Peter;

• the suitability and capacity of each of Danielle and Peter, or any other person, to provide for Ashleigh’s needs, including her emotional and intellectual needs; and

• the alternatives to the making of an adoption order and the likely effect on Ashleigh in both the short and longer term of changes in her circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of Ashleigh.

22. Ashleigh presents as having an age-appropriate understanding of her proposed adoption. The Adoption Report under section 91 of the Act, which has been prepared by Ms Ruth Wienburg, a Senior Practitioner with Anglicare’s Adoption Program, states that due to Ashleigh’s age, her awareness of the proposed adoption and her understanding of the legal implications of adoption is limited, but that she does appreciate the significance of receiving the same name as her brothers and father and that her understanding of her life story is growing all the time. Ms Wienburg also reports that: “[Ashleigh] has stated that she wants to be adopted by Danielle and Peter and the likelihood is that, as she grows up, this will continue to be important for her as they are the only family she has ever known, and she identifies strongly as a member of the family and no different from her brothers”.

23. Ashleigh has lived with Danielle and Peter since the age of four months, developing with them her primary attachment relationships and experience of family and home life.

24. The Adoption Assessor, Ms Kati Britton, who completed the out-of-home care Adoption Assessment in December 2022, recorded her view that “Peter and Danielle have built a very secure attachment with Ashleigh”.

25. It is clear that there is a strong bond between Ashleigh and Peter, Danielle and their two sons. Ms Wienburg reported that:

“When I met with the family on 14 November 2023, they presented as calm, contented, warm, loving and deeply connected to one another, and there was a great deal of laughter, fun and joy observed. Ashleigh clearly views herself as a member of the family just as her younger brothers are and enjoys the time she spends with each of them. I asked Ashleigh what her favourite thing about being in her family was, and she stated, ‘We all play Spot It (a game) sometimes when we go to bed’. I asked Ashleigh how she knew she was loved, and she told me, ‘Because my mum cuddles me. I like cuddles and also kisses’.”

26. Samantha has also described the care provided by Danielle and Peter as “amazing”, stating: “they’re such great parents”. In addition, Kevin’s mother, Emma (not her real name), has stated that: “Without a doubt [Peter and Danielle are] both looking after Ashleigh and [have] been giving her the best care as their own daughter”.

27. In addition, I am satisfied that Ashleigh’s physical, religious, cultural and educational needs are being well met by Danielle and Peter.

28. For example, as regards medical and developmental needs, Danielle and Peter have facilitated attendance of Ashleigh at optometry and dental appointments and general health check-ups as required, and have supported her engagement in extra-curricular activities.

29. As regards educational needs, Danielle and Peter have supported Ashleigh’s adjustment to starting school and have encouraged her love of reading. Ashleigh began Kindergarten at Y School in 2023. Her school reports indicated she was working at or working beyond expected levels in most subject areas and has also been described as “extremely sporty” and “creative” at school. Her teacher reported her to be a “joyful cooperative student who consistently displays lovely manners, she shows kindness and compassion towards others and has established some close friendships throughout the year”. Her teacher also reported that: “Ashleigh works diligently and as a result has shown pleasing progress across all Key Learning Areas.”

30. Danielle and Peter have also demonstrated their capacity to meet Ashleigh’s cultural needs. While Ashleigh is of Filipino heritage, Danielle and Peter identify as of Chinese heritage. Danielle and Peter have actively supported Ashleigh’s understanding about her Filipino cultural heritage. A cultural plan was developed by Anglicare upon Ashleigh’s placement with Danielle and Peter and they have continued to implement its recommendations over the past five years. For example, Danielle and Peter have used materials provided to them by Ashleigh’s Case Manager, including books and worksheets on Filipino culture, to talk to Ashleigh about her cultural background. Emma had a cultural consult with Anglicare where she provided information for Ashleigh’s cultural plan, and Danielle and Peter have supported Ashleigh having regular visits with Emma, where Emma is able to share Filipino customs.

31. Danielle and Peter also have demonstrated their capacity to meet Ashleigh’s religious needs. While Samantha and Kevin are Catholic, Danielle and Peter are Presbyterian Christian. Ashleigh attends church with Danielle and Peter on a weekly basis. Samantha and Kevin are aware of, and support, this occurring. Samantha has emphasised her desire for Ashleigh to adopt the religion of Danielle and Peter, stating: “Moving forward going through the adoption I would love for her to fit in with you guys and be your religion”.

32. Ms Wienburg reports that “Ashleigh is currently happy, stable, settled, strongly attached to Danielle and Peter and making excellent progress”. Further she reports that “Danielle and Peter have clearly demonstrated their capacity to make key decisions about all areas of Ashleigh’s life”.

33. Having regard to the above matters, I am satisfied that Danielle and Peter are committed to meeting Ashleigh’s needs and will continue to meet them after an adoption order is made.

Is adoption clearly preferable in the best interests of Ashleigh?

34. I may not make an order for adoption unless satisfied that the making of such an order would be “clearly preferable” in the best interests of Ashleigh than any other action that could be taken by law in relation to her care: section 90(3) of the Act.

35. I must be satisfied that there is more than a slight preponderance of considerations in favour of adoption over other alternatives; the making of an adoption order must be obviously, plainly or manifestly preferable to any other action that could be taken by law: Adoption of RCC and RZA [2015] NSWSC 813 at [14] (Brereton J). I must feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision: Application of A - re D [2006] NSWSC 1056 at [53] (Palmer J); Adoption of BL [2018] NSWSC 391 at [13] (Sackar J).

36. Consideration of whether adoption would promote the best interests of the child and whether it is clearly preferable to any other order involves the identification of the likely effects of adoption and examining the benefits and detriments of each alternative from the perspective of the best interests of the child: Adoption of NG (No 2) [2014] NSWSC 680 at [74] (Brereton J).

37. The alternatives to making an adoption order would appear to be as follows:

1. to make no order and to maintain the status quo (namely, that Ashleigh is in the parental responsibility of the Minister until she attains the age of 18);

2. to make an order under section 92 of the Act allocating parental responsibility to Danielle and Peter; or

3. to make an order under section 92 of the Act allocating parental responsibility to one or both of Samantha and Kevin.

38. The Principal Officer of Anglicare submitted, and I accept, that restoration of Ashleigh to her parents is not realistic and is not in her best interests. She has never been in the care of Samantha or Kevin, and neither of them has ever sought the restoration of her to their care. Instead, Samantha supports the adoption. I accept that, in circumstances where Ashleigh has been in the continuous care of Danielle and Peter for more than six years, removing her from their care, from her home and from her familiar networks would likely be distressing for her and would risk significant psychological harm.

39. If I were to make no order and were to maintain the status quo, Danielle and Peter would be unable to make significant decisions concerning Ashleigh, as those decisions would require the approval of the Minister by his delegate.

40. An order allocating parental responsibility for Ashleigh to Danielle and Peter would alleviate some of the disadvantages of maintaining the status quo. However, this would remain a temporary order that would expire when Ashleigh attains 18 years of age. It therefore lacks the permanency of an adoption order and would result in Ashleigh losing her legal connection to her psychological family when she attains adulthood.

41. One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters: In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793 at [64] (McFarlane LJ; Jackson and Lindblom LJJ agreeing). Adoption serves the identity needs of the child in question, in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family, by bringing their legal status into conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own, not only during childhood but for life: Adoption of Taylor-Clay [2019] NSWSC 27 at [58] (Brereton J).

42. In Re the Adoption of AJH [2017] NSWSC 1751 at [297], Hallen J observed that:

“It is often referred to in the literature that a child placed with foster carers has an abiding need for a sense of security and identity and that she, or he, will feel most secure when she, or he, is assured that no one can take her, or him, away from the family of which she, or he, is a legal member. It is recognised that the sooner a child can feel this sense of security, the better for her, or his, development in the future: see Re Peter [2009] NSWSC 697, per Palmer J, at [35].”

43. The Principal Officer of Anglicare submits, and I accept that, having regard to Ashleigh’s age, “providing her with the security of an adoption order now, will likely assist her to grow and develop to her full potential throughout her childhood, adolescence and further into adulthood.”

44. I am satisfied that the making of an adoption order would serve the best interests of Ashleigh now, ensuring she is legally a part of her psychological family; and it would also serve her best interests in the future, including after she has attained the age of 18. Ashleigh clearly identifies Danielle and Peter as her family. Danielle and Peter have provided excellent care for Ashleigh and have demonstrated an ongoing ability to meet all of her needs and supporting relationships with her birth family.

45. For those reasons, I am satisfied that the making of the proposed adoption order would be clearly preferable in the best interests of Ashleigh than any other action that could be taken by law in relation to her care.

Dispensing with the consent of the birth father

46. The consent of Samantha and Kevin to the proposed adoption is required unless, relevantly, consent has been dispensed with by the Court: sections 52 and 54 of the Act.

47. Samantha has consented to the proposed adoption, but Kevin has not.

48. Ms Wienburg’s report sets out her efforts over a number of months to obtain Kevin’s views and wishes on the adoption. She has emailed him, called him, and sent him text messages on multiple occasions. She has also emailed, called and spoken to his mother, Emma, seeking to make contact with Kevin and to ascertain his views. Kevin has not replied to any of these messages, or responded to any of Ms Wienburg’s attempts to contact him, and has not otherwise made his views on the adoption known.

49. The Principal Officer of Anglicare seeks an order, pursuant to section 67(1)(d) of the Act, to dispense with the requirement for Kevin’s consent.

50. Dispensing with the consent of a parent is a grave step, not lightly to be taken: Adoption of RCC and RZA at [17] (Brereton J).

51. I may not make such an order unless I am satisfied that, relevantly, Ashleigh has established a stable relationship with her authorised carers, Danielle and Peter, and that the adoption by Danielle and Peter will promote Ashleigh’s welfare: sections 67(1)(d)(i) and (ii) of the Act.

52. Before making such an order, I must also be satisfied that to do so will be in the best interests of Ashleigh: section 67(2) of the Act.

53. For reasons I have given above, I am comfortably satisfied about these matters. Ashleigh has established a stable relationship with Danielle and Peter and her adoption by Danielle and Peter will promote her welfare. The making of a consent dispense order, so as to allow the making of the adoption order, is plainly in the best interests of Ashleigh.

The Adoption Plans

54. Attached to the proposed Minutes of Order sought by the Principal Officer of Anglicare are maternal and paternal Adoption Plans, which provide for contact arrangements between Ashleigh, her birth parents and extended family, the maintenance of her cultural heritage, arrangements for her religious upbringing and arrangements for financial assistance.

55. Samantha has signed the maternal adoption plan. However, Kevin has not signed the paternal adoption plan.

56. The maternal adoption plan provides that face-to-face visits between Samantha and Ashleigh will occur a minimum of six times a year for a minimum of two hours on each occasion. These visits will be held jointly with her birth siblings, subject to their availability.

57. The maternal adoption plan also provides that Danielle and Peter are committed to providing Samantha with information regarding Ashleigh’s development and progress and with photographs on four occasions per year via email; and that they will support Ashleigh to exchange photos, cards, gifts and information via email, text message or at face-to-face visits on a minimum of four occasions per year with her siblings until they are independent.

58. The contact proposed in the maternal adoption plan largely reflects the current contact arrangements in place and enables Ashleigh to continue to foster and support her connection with Samantha and with Ashleigh’s maternal siblings.

59. In addition, the plan records that Ashleigh will be raised in the Christian faith and that Samantha is supportive of this. The plan also records that Danielle and Peter will support the cultural plan that has been developed for Ashleigh.

60. The paternal plan provides that face-to-face visits between Kevin and Ashleigh will occur a minimum of six times a year for a minimum of two hours on each occasion. These visits will be held jointly with Ashleigh’s paternal grandmother, Emma, and paternal uncle, Roger.

61. Like the maternal adoption plan, the paternal adoption plan also provides for Danielle and Peter to provide Kevin, Emma and Roger with an update on Ashleigh’s progress and photographs on four occasions per year; and also records that Danielle and Peter will support the cultural plan which has been developed for Ashleigh, and that Danielle and Peter are raising Ashleigh in the Christian faith.

62. I am satisfied that the arrangements proposed in each of the maternal adoption plan and the paternal adoption plan are in the best interests of Ashleigh and are proper in all the circumstances: section 90(2) of the Act. The orders which I will make will include a notation to this effect.

Proposed name change

63. It is proposed that, on the making of the adoption order, Ashleigh is to have the name Ashleigh Casey-Jones Smith. That is, she will keep her existing names, and the surname of her adoptive father will be added as her surname.

64. Before changing the name of Ashleigh, I must consider any wishes expressed by her and any factors relevant to the weight that should be given to those wishes: section 101(2) of the Act.

65. The report by Ms Wienburg records that when Ashleigh was asked whether she would be happy with “Smith” being added to her existing surname, and to be called Ashleigh Casey-Jones Smith, she responded positively and enthusiastically to this name. On a subsequent occasion, Ms Wienburg asked Ashleigh “what name she would like to have as her last name if she could choose and she indicated ‘Ashleigh Casey-Jones Smith’”.

66. Despite initial reservations, Samantha has indicated that she understands that adoptive parents often give their child their surname so that the child does not feel different from other members of the family.

67. I am satisfied that the proposed name change is in Ashleigh’s best interests. The proposed surname will reflect Ashleigh’s membership of the adoptive family, and enhance her sense of belonging and stability. The proposed middle name, being her current surname, will allow Ashleigh to have an ongoing connection to their birth family, which is something that is important to Samantha and Kevin.

68. Once the adoption order is made, an Integrated Birth Certificate will be created which will include details of Ashleigh’s birth parents. It will form an important part of Ashleigh’s life story.

Conclusion

69. For the reasons given above, I make the following orders.

1. An order pursuant to section 67(1)(d) the Adoption Act 2000 (NSW) dispensing with the requirement for the birth father of Ashleigh, Kevin to her adoption.

2. An order for the adoption of the child Ashleigh, in favour of the proposed adoptive parents, Peter Smith and Danielle Murray.

3. An order approving “Smith” as the surname and “Ashleigh Casey-Jones” as the given names of the child.

Notations

1. Note that the Court is satisfied that the arrangements proposed in the maternal adoption plan are in the child’s best interests and are proper in the circumstances.

2. Note that the Court is satisfied that the arrangements proposed in the paternal adoption plan are in the child’s best interests and are proper in the circumstances.

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Decision last updated: 24 June 2024