The Adoption of Harriet (a pseudonym)

[2024] NSWSC 1118

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Adoption of Harriet (a pseudonym) [2024] NSWSC 1118

Hearing dates:

On the papers

Date of orders:

3 September 2024

Decision date:

03 September 2024

Jurisdiction:

Common Law

Before:

Nixon J

Decision:

Orders for adoption made; 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 change of name should be approved

Legislation Cited:

Adoption Act 2000 (NSW), ss 8, 90, 92, 101, 180

Cases Cited:

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

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:

Secretary, NSW Department of Communities and Justice (Plaintiff)

File Number(s):

2024/00280248

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, Harriet Fiona Wright (not her real name), now five years of age, by the proposed adoptive parents, Alexander John Bryan and Jane Bryan (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 29 July 2024, the Secretary, NSW Department of Communities and Justice (DCJ), seeks an order for the adoption of Harriet in favour of Alexander and Jane, and an order that the surname “Bryan” and the given names “Harriet Fiona Wright” be approved for Harriet.

3. The Secretary 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 Harriet’s best interests and are proper in the circumstances.

The circumstances of the case

4. On 8 April 2019, Harriet was born at Fairfield Hospital.

5. On 10 April 2019, DCJ caseworkers conducted a safety assessment in relation to Harriet. The outcome of the assessment was that Harriet was deemed “Unsafe” in the care of her parents and was assumed into care.

6. On 17 April 2019, the Children's Court made Interim Orders allocating parental responsibility for Harriet to the Minister for Families and Communities. Harriet’s parents were legally represented throughout the proceedings in that Court.

7. Harriet was placed into the care of Alexander and Jane when she was 10 months old, and has lived with them continuously since 14 February 2020.

8. On 31 March 2020, the Children’s Court made final orders providing for Harriet to be placed under the parental responsibility of the Minister until she attains the age of 18 years. These orders remain in effect.

9. Alexander and Jane reside in their home with Harriet and their three biological children, Bob (aged 15), Emma (aged 14) and Mike (aged 11) (not their real names).

10. Harriet’s birth mother, as registered on her birth certificate, is Fiona Thompson (not her real name).

11. Harriet’s birth father, as registered on her birth certificate, is Jordan Wright (not his real name).

12. On 13 June 2024, Jordan signed an instrument of consent to Harriet’s adoption by Alexander and Jane.

13. On 24 June 2024, Fiona signed an instrument of consent to Harriet's adoption by Alexander and Jane.

14. Neither of Harriet’s birth parents has revoked consent to the adoption.

15. Harriet has three maternal half-siblings, Max Smith (aged 23), Xavier Johnson (aged 13) and Neville Roberts (aged 11) (not their real names). Xavier and Neville reside in Taiwan with their paternal grandmother while it is understood that Max resides independently in Taiwan.

16. Harriet has one paternal half-sibling, Oliver Wright (aged 20) (not his real name) who was raised by his mother and currently resides in Western Sydney.

The formal requirements for adoption

17. I am satisfied that the formal requirements of the Adoption Act 2000 (NSW) (the Act) have been satisfied.

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

18. The principles regarding the making of an adoption order are well established. I have adopted the following summary of those principles from my recent decision in The Adoption of Ashleigh (a pseudonym) [2024] NSWSC 763.

19. 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).

20. 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.”

21. 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 his or her own views on a matter concerning her adoption, he or 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.

22. I must not make an adoption order unless I am satisfied that the best interests of Harriet will be promoted by the adoption and that, as far as practicable and having regard to Harriet’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.

23. 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).

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

• any wishes expressed by Harriet;

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

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

• any wishes expressed by either or both of Fiona and Jordan;

• the nature of the relationship that Harriet has with Fiona, Jordan and any siblings or significant other people;

• the attitude of Alexander and Jane to Harriet and to the responsibilities of parenthood;

• the nature of Harriet’s relationship with each of Alexander and Jane;

• the suitability and capacity of each of Alexander and Jane, or any other person, to provide for Harriet’s needs, including her emotional and intellectual needs; and

• the alternatives to the making of an adoption order and the likely effect on Harriet 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 Harriet.

25. Harriet is five years old and as such, does not yet possess the capacity to understand the legal and psychological implications of an adoption order.

26. In her affidavit sworn 15 July 2024, Jane states that she and Alexander are assisting Harriet “to know her birth history and legal status and to have access to her birth family and cultural heritage, as appropriate to her needs.”

27. Ms Janette Thorogood, who completed the Adoption Court Report, reported that there is a “strong bond” between Harriet, her adoptive parents and her adoptive siblings. Bob has stated that after Harriet’s adoption there will be “nothing different for me, she is my sister, but Harriet will know she is with us forever” and that he wanted Harriet “knowing she will never leave”. Emma and Mike have expressed similar sentiments, with Emma saying that Harriet is “already part of our family”. Ms Thorogood also reported that the four children “share the natural banter of siblings”, “teasing each other” and “making fun of Jane and Alexander.”

28. Ms Thorogood also observed that Harriet was “comfortable within the family environment” and that her “mannerisms, confidence in expressing her thoughts, or inclusion in the conversation did not alter as the family members present changed.” She noted that Jane and Alexander have a “similar intimacy in their relationship with Harriet, as they do with Bob, Emma and Mike”.

29. The delegate of the Secretary, Ms Laura Towns, gave evidence that Harriet’s physical and medical needs are being met by Alexander and Jane.

30. Alexander and Jane are also meeting Harriet’s educational needs. In 2023 Harriet attended Pre-School, and in 2024 she commenced attending Pre-Kindergarten at the campus where each of the other children of Alexander and Jane attend school.

31. On 15 March 2024, the Director of the Pre-School reported that Harriet’s "development is progressing well in all areas" and that "she is an inquisitive child who is eager to participate and learn."

32. In her affidavit, Jane has stated her intention to introduce Harriet to a range of extra-curricular activities, to provide her with additional private tutoring support when she reaches high school age, and to give her strong encouragement to pursue tertiary education.

33. Alexander and Jane also have demonstrated their capacity to meet Harriet’s cultural needs. The family identify as “a Chinese Aussie family”. Fiona’s cultural background is Taiwanese and Jordan’s cultural background is Vietnamese. Alexander and Jane are committed to ensuring that cultural events such as Chinese New Year are celebrated in their home. Alexander’s parents speak both Cantonese and Mandarin, and Harriet and her proposed adoptive siblings all learn Mandarin at school. Mandarin is the language of Fiona and Harriet’s maternal half-siblings.

34. While exposure to Jordan’s Vietnamese cultural background is comparatively limited, Jordan indicated that this did not bother him as he believed that “Jane was doing an amazing job in exposing Harriet to both her cultures.”

35. Alexander and Jane also have demonstrated their capacity to meet Harriet’s religious needs. Jordan identifies as Catholic and Fiona identifies as Buddhist. Harriet attends the same Anglican school as her proposed adoptive siblings, and Jane has given evidence that they raise their children with “Christian values”.

Is adoption clearly preferable in the best interests of Harriet?

36. 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 Harriet than any other action that could be taken by law in relation to her care: section 90(3) of the Act.

37. 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).

38. 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).

39. 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 Harriet 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 Alexander and Jane; or

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

40. Restoration of Harriet to her parents is not realistic and is not in her best interests. She has never been in the care of Fiona or Jordan, and each of them supports the adoption.

41. If I were to make no order and were to maintain the status quo, Alexander and Jane would be unable to make significant decisions concerning Harriet, as those decisions would require the approval of the Minister by his delegate. Ms Thorogood stated in her report that she was not of the view that maintenance of the status quo was preferable to any other action that could be taken by law. She noted that Harriet identifies as “a complete member of Jane and Alexander’s immediate and extended family”, and that the maintenance of the status quo would impact Harriet’s familial identification as she becomes aware of the relevant orders, providing her “with uncertainty of permanency within her identified family unit”. Further, the maintenance of the status quo would disadvantage Harriet by requiring the continued presence of caseworkers and auxiliary support staff, in circumstances where Jane and Alexander have demonstrated the capacity to make all care and welfare decisions for her.

42. An order allocating parental responsibility for Harriet to Alexander and Jane would alleviate some of the disadvantages of maintaining the status quo, as it would remove the involvement of agency staff in personal decision making. However, this would remain a temporary order that would expire when Harriet attains 18 years of age. It therefore lacks the permanency of an adoption order and, as Ms Thorogood stated, would not remove “placement insecurity”.

43. 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).

44. 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].”

45. In an email dated 14 October 2022 to Ms Emily Harding, an Open Adoption Caseworker for the DCJ, Jordan said that “Fiona and I are behind and supportive about Jane and Alexander adopting Harriet and they are the only people I trust with Harriet”. He indicated in this email that the main concern which he and Fiona had was that they wanted Harriet to remain in the care of Alexander and Jane, and did not want DCJ to take her away from them.

46. Similarly, in a video call meeting with two caseworkers on 20 March 2023, Jordan expressed concern about the possibility that Harriet would be removed from the care of Jane and Alexander and would be stuck in the adoption system.

47. On 15 April 2024, an Adoptions Caseworker emailed Fiona and Jordan to ascertain whether or not they wished to formally consent to Harriet’s adoption by Alexander and Jane. On 30 April 2024, Jordan responded, saying that he and Fiona "whole hearty and formally consent”, adding: “We just want the judge, social workers and especially the Bryan family to know that we are in support of them adopting Harriet”. Subsequently, as noted above, both parents provided their formal consent to the adoption.

48. I am satisfied that the making of an adoption order would serve the best interests of Harriet 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. Alexander and Jane have provided excellent care for Harriet and have demonstrated an ongoing ability to meet all of her needs.

49. While Jane admits in her affidavit that she initially found contact with Fiona and Jordan “challenging and overwhelming”, the evidence indicates that Alexander and Jane are committed to supporting Harriet’s relationship with her birth family. Jane provides regular updates and photos of Harriet preparing for significant occasions including Chinese New Year celebrations, starting ballet classes and a family holiday. For example, Jane provided photographs of Harriet’s first day of pre-Kindergarten and, in response, Fiona expressed her gratitude to Alexander and Jane for raising Harriet. The evidence indicates that Jane is making a significant effort to keep Jordan and Fiona updated with Harriet’s progress. The proposed maternal and paternal adoption plans provide for such regular reports on Harriet’s progress to continue.

50. Having regard to those matters, I am satisfied that the making of the proposed adoption order would be clearly preferable in the best interests of Harriet than any other action that could be taken by law in relation to her care.

The Adoption Plans

51. Attached to the proposed Minutes of Order are maternal and paternal Adoption Plans, which provide for contact arrangements between Harriet, her birth parents and her extended family, and the maintenance of her cultural heritage.

52. Fiona has signed the maternal adoption plan and Jordan has signed the paternal adoption plan. Alexander and Jane have signed both adoption plans.

53. The maternal adoption plan provides for the opportunity for a minimum of four visits per year to occur between Harriet and Fiona. In addition, it provides for regular reports to be provided to Fiona on Harriet’s progress and achievements, together with photographs. The plan also refers to visits with Harriet’s maternal siblings in Taiwan should they wish to make contact as well as setting out a plan to maintain Harriet’s cultural identity by learning Mandarin at school and continuing to ensure regular interaction with Taiwanese families.

54. The paternal adoption plan provides for the opportunity for a minimum of four visits per year to occur between Harriet and Jordan, together with regular reports and photographs. It also provides for the facilitation of a relationship with Harriet’s paternal sibling should it be desired as well as setting out the cultural plan in the terms outlined in the maternal adoption plan.

55. 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 Harriet 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

56. It is proposed that, on the making of the adoption order, Harriet is to have the name Harriet Fiona Wright Bryan. That is, she will keep her existing names, and the surname of the proposed adoptive parents will be added as her surname.

57. Before changing the name of Harriet, 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.

58. The affidavit of Ms Towns notes the consent of both Fiona and Jordan to the proposed name change. Jordan specifically noted that he and Fiona “wanted Harriet to take on the proposed adoptive parents' surname because they did not want Harriet to have a different surname to the rest of the family and be bullied at school because of this.”

59. I am satisfied that the proposed name change is in Harriet’s best interests. The proposed surname will reflect Harriet’s membership of the adoptive family, and enhance her sense of belonging and stability, in accordance with the wishes of both her adoptive parents and her birth parents. The proposed middle names “Fiona Wright”, which are part of Harriet’s current name, will provide an ongoing connection to each of her birth parents.

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

Conclusion

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

1. An order for the adoption of the child Harriet Fiona Wright, in favour of the proposed adoptive parents, Alexander John Bryan and Jane Bryan.

2. An order approving “Bryan” as the surname and “Harriet Fiona Wright” 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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Amendments

05 September 2024 - Coversheet and notation numbering amended

Decision last updated: 05 September 2024