The Adoption of Hattie (a pseudonym)

[2024] NSWSC 1212

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Hattie (a pseudonym) [2024] NSWSC 1212

Hearing dates:

On the papers

Date of orders:

26 September 2024

Decision date:

26 September 2024

Jurisdiction:

Equity - Adoptions List

Before:

McGrath J

Decision:

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

Catchwords:

CHILD WELFARE — adoption — where proposed adoptive parents are child’s current foster parents — where birth father recently identified and declaration of parentage sought — whether adoption order is in child’s best interests — whether birth parents’ consent should be dispensed with — whether change of name should be approved

Legislation Cited:

Adoption Act 2000 (NSW) ss 8, 23, 28, 30, 52, 66, 67, 72, 90, 101, 180

Children and Young People Act 2008 (ACT) s 514B

Status of Children Act 1996 (NSW) s 21

Cases Cited:

A Child Proposed for Adoption [2019] NSWSC 1653

Adoption of RCC and RZA [2015] NSWSC 813

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

Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239; [1995] 3 All ER 333

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

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, New South Wales Department of Communities and Justice by his delegate, Principal Officer, Barnardos Australia (Applicant)

Representation:

Self-represented

File Number(s):

2024/00113306

Publication restriction:

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

JUDGMENT

INTRODUCTION

1. By amended summons filed 22 April 2024, the Secretary of the New South Wales Department of Communities and Justice by his delegate, the Principal Officer of Barnardos Australia, seeks an order that Hattie Marija Kennedy, now 10 years of age, be adopted by the proposed adoptive parents, Christine James and Eileen James.

2. In addition to the adoption order in favour of Christine and Eileen, the Principal Officer seeks orders that Adam Elliott (Hattie’s putative father) be declared Hattie’s birth father; orders dispensing with the consent of Hattie’s birth parents; and an order approving a change of surname for Hattie, along with a notation that the maternal and paternal adoption plans have been approved by the court.

3. In this judgment, I will refer to each of the individuals involved by their first names, for convenience and without intending any disrespect, noting that they have been assigned pseudonyms in keeping with s 180 of the Adoption Act 2000 (NSW) (the Act).

The proposed adoptive family

4. Christine and Eileen, 52 and 49 years of age respectively, have been married since December 2022 and have lived together at their current residential address since 2013. They share no children of their own together. Christine is employed as a senior teacher and Eileen is employed as a senior manager.

5. In May 2020, when she was six years old, Hattie was placed in the care of Christine and Eileen. Hattie has remained in the couple’s care ever since.

6. Christine, Eileen, and Hattie currently live together in a township in rural New South Wales, with Eileen’s father occupying a separate dwelling on the same property. They have lived in the same location since Hattie entered the care of Christine and Eileen.

Hattie’s birth parents

7. Hattie’s biological mother is Yasmin Kennedy. Hattie’s birth father does not appear on her current birth certificate and Yasmin has previously refused to disclose his identity. However, Adam was recently identified as Hattie’s putative father after DNA paternity testing conducted at the end of 2023 established a 99.999999% chance of his being her birth father.

8. On 28 March 2024 and 2 April 2024, Adam and Yasmin were each respectively served with notice of the present application pursuant to s 72(1) of the Act. Neither Yasmin nor Adam have entered an appearance in these proceedings, so the proposed adoption is not contested. While they have not given their formal consent to the adoption, both Yasmin and Adam as Hattie’s birth parents have expressed their unqualified support for Hattie’s adoption by Christine and Eileen.

BACKGROUND AND CIRCUMSTANCES OF THIS CASE

9. Hattie was born in November 2013 in the Australian Capital Territory (ACT). Hattie has two elder maternal half-siblings, Jye Simpson (aged 15) and Matthew Simpson (aged 13), who reside in separate long-term kinship care pursuant to orders made by the Children’s Court and with whom she has only informal and infrequent contact.

10. Hattie has an extensive care placement history, beginning prior to her second birthday. I will only relay the relevant aspects of that history here.

11. In August 2015, Hattie was first placed into care following receipt by child protection services of 11 Child Concern Reports (CCRs). These CCRs expressed concerns for Hattie’s welfare, citing neglect, unsafe and unclean living conditions at home, Yasmin’s mental health and substance abuse issues, and potential exposure to family violence. At this time, Hattie was temporarily placed in the care of her maternal great grandmother, Dominique Merchant, and an application initiating care proceedings was filed in the Children’s Court of the ACT.

12. In September 2016, the Children’s Court made final care and protection orders allocating parental responsibility for Hattie to the Director-General (Community Services Directorate) until she attains 18 years of age. Those orders remain in effect.

13. Between January 2017 and February 2020, Hattie was living in long-term kinship care with her maternal great uncle and aunt (Mr and Ms Babic) and their two young children. In early 2020, Mr and Ms Babic made the difficult decision to end the placement on account of their inability to provide the care Hattie needed on an ongoing basis.

14. In April 2020, child protection authorities and out-of-home care service-providers agreed that it was in Hattie’s best interests that she be placed with foster carers.

15. In May 2020, Christine and Eileen (who in June 2018 had been endorsed and recommended for approval as concurrency or long-term carers for children up to five years of age) were provided with a Specific Parental Authority to care for Hattie. Three days later, Hattie was placed in the care of Christine and Eileen.

16. Since being placed with Christine and Eileen, Hattie has maintained relationships with members of her maternal birth family, including Yasmin, Ms Merchant, Mr Babic and Ms Babic, through regular catch-ups. Following Yasmin’s relocation to South Australia in mid-2023, monthly face-to-face contact visits between Hattie and Yasmin transitioned to phone and video-calls. These calls presently take place on a weekly basis.

17. In November 2022, each of Christine and Eileen became approved foster carers under s 514B(1) of the Children and Young People Act 2008 (ACT), and were also approved as dually authorised carers and adoptive parents for Hattie.

18. The identity of Hattie’s birth father having only recently been confirmed, there are arrangements in place, including a staged Introduction Plan, to acquaint Hattie with Adam. Christine, Eileen and Adam are committed to facilitating this, and it is their shared hope that Hattie will develop a meaningful relationship with Adam and her extended paternal family in the years to come.

PRINCIPLES AND CONSIDERATION

Declaration of parentage

19. As part of this application, the Principal Officer seeks an order pursuant to s 21(2) of the Status of Children Act 1996 (NSW) that Adam be declared the birth father of Hattie.

20. I am satisfied that it is highly likely and almost certain that Adam is Hattie’s biological father. This is based on the results of the parentage testing procedure conducted in December 2023 which indicate a probability of paternity of 99.999999%. Accordingly, I will make the declaration sought.

21. I note that the necessary steps are being taken to add Adam’s name to Hattie’s birth certificate in accordance with the administrative process prescribed by the ACT Registrar of Birth, Deaths and Marriages.

Adoption orders

22. For the following reasons, I have determined that the formal requirements of the Act have been satisfied in the present case.

23. In respect of adoption orders generally, s 90(1) of the Act stipulates that the court must be satisfied as to certain matters, namely:

(a)   that the best interests of the child will be promoted by the adoption, and

(b)   that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and

(c)   if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and

(d)   that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and

(e)   if the child is an Aboriginal child—that the Aboriginal child placement principles have been properly applied, and

(f)   if the child is a Torres Strait Islander child—that the Torres Strait Islander child placement principles have been properly applied, and

(g)   if the child is a non-citizen child from a Convention country or other country outside Australia—that the applicable requirements of this Act and any other relevant law have been satisfied, and

(h)   in the case of a child (other than an Aboriginal or Torres Strait Islander child)—that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.

24. Section 90(3) of the Act provides that no adoption order should be made unless the court considers that the making of the order would be clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child.

25. In respect of an application for adoption by a couple, s 28 of the Act requires that both members of the couple be:

1. resident or domiciled in New South Wales (s 28(1)(a)), and have lived together continuously for a period of at least two years immediately prior to the adoption application (s 28(4));

2. of good repute and fit and proper persons to fulfil the responsibilities of parents (s 28(1)(b)); and

3. 21 or more years of age and at least 18 years older than the child (s 28(3)).

26. In the present case, the requirements of s 28(1)(a), (3) and (4) are all met, as is s 28(1)(b), for reasons I will give below. The considerations set out in s 90 are also addressed below.

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

27. Determining adoption applications is an important aspect of the court’s work. ^[1] An order for adoption is one of the most significant and far-reaching orders the court is empowered to make,^[2] not least because adoption orders involve a particular degree of finality. ^[3]

    1. 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).

    2. Re the Adoption of CCS and FLS [2019] NSWSC 71 at [157] (Hallen J).

    3. Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239; [1995] 3 All ER 333 at 251G-H (Sir Thomas Bingham).

28. The far-reaching nature of an adoption order has been described this way:

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) 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. ^[4]

4. Re the Adoption of CCS and FLS (supra) at [150] (Hallen J).

29. In the present case, I note that the adoption order sought is one in favour of the child’s foster parents, with whom the child has been living continuously for more than four years and who have the full support of the child’s birth parents to permanently assume responsibility for the child’s care.

30. Because of the seriousness and significance of the decision and in line with s 90(1)(a) and (b) of the Act, I must not make an adoption order unless I am satisfied that the best interests of Hattie will be promoted by the adoption and that, as far as practicable and having regard to Hattie’s age and understanding, the wishes and feelings of Hattie have been ascertained and due consideration given to them.

31. I must have regard to the best interests of Hattie, both in childhood and later life, this being the paramount consideration as stated in s 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 (s 8(1)(b)) and that no adult has a right to adopt the child (s 8(1)(c)).

32. In determining the best interests of a child, I must take into account the matters set out in s 8(2), including:

1. any wishes expressed by the child;

2. the child’s age, maturity and level of understanding;

3. the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity;

4. the wishes expressed by the parent;

5. the nature of the relationship that the child has with their parents and any siblings or significant other people;

6. the attitude of the proposed adoptive parents to the responsibilities of parenthood;

7. the nature of the relationship of the child with each proposed adoptive parent or parents; and

8. the suitability and capacity of the proposed adoptive parent(s) to provide for the needs of the child.

33. 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. It will, inherently, be impressionistic and imprecise. ^[5]

    5. Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241 at [16] (Lord Nicholls of Birkenhead), cited with approval in Re the Adoption of CCS and FLS (supra) at [164] (Hallen J).

34. Having regard to the matrix of factors listed above, I put particular store in the evidence before me that demonstrates the following matters:

1. Although Hattie is below the age fixed by the Act to give sole consent to her own adoption, [6] she has repeatedly communicated her desire to be adopted and to live with Christine and Eileen, who she calls “mumma” and “mummy” respectively, “forever”. She considers herself to be one of the “luckiest kids in the world”, with “two fabulous mums”.

   6. Section 55(1) of the Act.

2. Hattie has a strong sense of personal and family identity and views herself as part of a three-person family unit. The marriage of Christine and Eileen, for instance, was a particularly significant moment for her. Moreover, Hattie has repeatedly expressed a desire for the three of them to share the same last name.

3. There is no real question as to the capacity of Christine and Eileen to meet Hattie’s physical, emotional and educational needs. From the time Hattie was placed in their care, they have made every effort to support her growth, including to develop her social skills, introspective awareness, and an age-appropriate level of independence, as well as supporting her to pursue her passions and interests (such as sports and caring for animals who are on their property).

4. Hattie previously struggled with managing difficult emotions in both the home and school environments, but her capacity to self-regulate has improved significantly since coming into the care of Christine and Eileen, owing in large part to their policy of open communication and their practice of involving Hattie in setting routines and boundaries.

5. Christine and Eileen prioritise Hattie’s physical and psychological well-being. Hattie has been diagnosed with attention-deficit/hyperactivity disorder and generalised anxiety disorder, both of which conditions Christine and Eileen ensure are managed through a combination of medication and psychological therapy (as needed).

6. Hattie is in the fifth grade and thriving at school, socially and academically. Christine and Eileen have proactively and independently facilitated educational support for Hattie over the past 18 months, engaging constructively with the school in relation to any issues that have arisen.

7. In terms of Hattie’s cultural identity, Hattie is encouraged to connect with her maternal cultural heritage. Christine and Eileen ensure that this is fostered naturally through the time Hattie spends with Ms Merchant, who has taught Hattie some words in the language of her maternal cultural heritage.

8. Hattie has indicated an interest in and gravitated towards a Christian-based faith system. Christine and Eileen do not themselves adhere to one specific faith but identify as a spiritual family, and support Hattie’s religious learning and development through enrolling her in school scripture classes and discussing with her the meaning of biblical narratives that are raised in those classes.

9. The adoption has the potential to reinforce Hattie’s present feelings of stability and safety, and of being loved, cared for and supported by Christine and Eileen. The adoption also presents an opportunity to bring a lasting sense of cohesion to Hattie’s personal and family identity through formal legal recognition.

10. Both Yasmin and Adam unconditionally approve of the adoption. The adoption is unlikely to materially affect Hattie’s existing relationship with her birth mother, which is positive and functional, and the maintenance of which Christine and Eileen have facilitated as a priority. I am also satisfied that Christine and Eileen are committed to assisting Hattie to develop a relationship with Adam as her birth father, to the extent possible.

11. The aptitude and commitment of Christine and Eileen to parenting Hattie has been amply demonstrated. Friends and neighbours of the couple have frequently witnessed and attested to the exceptional parenting skills of Christine and Eileen, individually and separately.

Is adoption clearly preferable in the best interests of Hattie?

35. I may not make an adoption order unless satisfied that such an order is "clearly preferable" in the best interests of Hattie, compared with any other legal measure that could be taken in relation to Hattie's care: ss 30(1)(d) and 90(3) of the Act.

36. I must therefore be satisfied that the balance weighs more than slightly in favour of the proposed 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. I must reach the degree of conviction in favour of the adoption commensurate with the gravity of the decision.

37. In the present case, adoption serves the identity needs of Hattie, in circumstances where she is emotionally, psychologically and residentially already a member of the proposed adoptive family, bringing her legal status into conformity with reality, and by perfecting her sense of permanent belonging in the family with which she identifies as her own, not only during childhood but for life. I consider that this purpose has real relevance and should be duly weighed in respect of Hattie’s proposed adoption by Christine and Eileen.

35. I note that if I were to maintain the status quo and make no order, Hattie would remain, at law, the child of Yasmin and Adam. This would mean that notwithstanding the assumption of the role of parents by Christine and Eileen and the provision of care in kind by each of them to Hattie from the time she was six years old, and Hattie’s perception of Christine and Eileen as her parents, Christine and Eileen would not be legally recognised as Hattie’s parents. An adoption order has the advantages of certainty and permanency, where making no order risks that Hattie may experience stigma, or at least internal disquiet, arising, for instance, from the fact she would continue to be the foster-daughter of Christine and Eileen, rather than their "daughter", so far as the law is concerned.

36. I note also that other alternatives — a guardianship order or an order allocating parental responsibility for Hattie to Christine and Eileen — while achieving some of the functional aims served by an adoption order, lack the symbolic and expressive value of a formal adoption order. An order allocating parental responsibility for Hattie to Christine and Eileen, expressly allowing Christine and Eileen to make significant decisions about Hattie and Hattie’s life and care, would, moreover, lack any real practical utility in the circumstances, in light of the ongoing and undisputed role of Christine and Eileen in jointly parenting Hattie. Such shortcomings have been remarked upon as follows:

An order allocating parental responsibility to the proposed adoptive parents would address some deficiencies arising with the alternative of maintaining the status quo. An order allocating parental responsibility to the proposed adoptive parents would allow them to make significant decisions about the child. But it still lacks the permanency of an adoption order: Adoption of NG (No 2) [2014] NSWSC 680, (at [75]-[82]). And a major disadvantage of this alternative is that when the child reaches 18 years of age [they] would lose [their] legal connection to the proposed adoptive parents and their children, despite the reality that the proposed adoptive parents have been acting in the role of [their] parents almost since [their] birth. ^[7]

7. A Child Proposed for Adoption [2019] NSWSC 1653 at [165] (Slattery J).

40. For these reasons, I am persuaded that Hattie’s best interests are best served by an adoption order in favour of Christine and Eileen, and that such a course is clearly preferable to the alternatives to adoption.

Dispensing with parental consent

41. If a child is 18 or more years of age, parental consent is not required for an adoption order: s 54(1)(d) of the Act. If a child is 12 or more years of age and of sufficient maturity to understand the effect of giving consent, he or she 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 two years: s 54(2) of the Act. As Hattie is currently 10 years old, she is not able to consent to her own adoption in accordance with s 54 of the Act.

42. Neither Yasmin nor Adam have signed a formal instrument of consent, although both of them have indicated their informal consent to (and indeed fully support) the adoption of Hattie by Christine and Eileen in principle.

43. Pursuant to s 52, in conjunction with s 90(1)(d), of the Act, the consent to the proposed adoption of each of a child's birth parents and any person who has parental responsibility for the child is generally required. However, parental consent may be dispensed with if the court so orders: s 66 of the Act. If consent is dispensed with by the court, consent is not required under s 52 of the Act: s 54(1)(a) of the Act.

44. Section 67 of the Act sets out the circumstances in which a consent dispense order may be made, providing:

(1)    The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that—

(a)   the person cannot, after reasonable inquiry, be found or identified, or

(b)   the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or

(c)   if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or

(d)   if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers or the guardians for the child—

(i)   the child has established a stable relationship with those carers or guardians, and

(ii)   the adoption of the child by those carers or guardians will promote the child’s welfare, and

(iii)   in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.

(2)   The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.

45. Under s 72(1) of the Act, the court must not make a consent dispense order unless the person whose consent is sought to be dispensed with has received at least 14 days’ notice of that application. I am satisfied that both Yasmin and Adam have been personally served with the requisite documents and are each on notice of the application to make a consent dispense order.

46. Dispensing with the consent of a parent is a serious step and not to be done lightly. [8] The statutory provisions make clear that I may not make a consent dispense order unless satisfied that Hattie has established a stable relationship with Christine and Eileen as her authorised carers, and that the adoption by Christine and Eileen will promote Hattie’s welfare.

    8. Adoption of RCC and RZA [2015] NSWSC 813, Brereton J at [17].

47. For the reasons outlined above, I am satisfied as to these matters. Hattie has a strong and positive bond with Christine and Eileen, and she is secure and comfortable in her home environment. It is plain to me that the adoption will promote Hattie’s welfare, not least because she has come to thrive — physically, emotionally, academically, socially, and in various other respects — in the four years that she has been in the proposed adoptive parents’ care. This has included overcoming behavioural and emotional dysregulation challenges stemming from a history of trauma.

48. I am comfortably satisfied that dispensing with the consent of Yasmin and Adam so as to allow for the making of the adoption order in favour of Christine and Eileen is in Hattie’s best interests.

Change of name

49. Hattie wishes to take her adoptive mothers’ surname and be known as “Hattie Marija James” instead of “Hattie Marija Kennedy”. An order to give effect to that desired change of name is sought by the Principal Officer.

50. The effect of s 101(2) of the Act is that I cannot change Hattie’s name without first considering her express wishes and any factors (such as Hattie’s maturity and understanding) that I consider are relevant to the weight to be given to her wishes.

51. The evidence from caseworkers and program managers involved in supervising Hattie’s care placement and from Christine and Eileen is that Hattie began referring to herself as “Hattie James” verbally and in writing in 2021 and has continued to do so since.

52. It is clear to me that the proposed name change is in Hattie’s best interests. Taking her adoptive mothers’ surname will reflect her internally-felt and now legally confirmed reality of membership of her adoptive family, and increase her sense of belonging and self-determination.

53. Once the adoption order is made, an Integrated Birth Certificate will be created which will include details of Hattie’s birth parents. It will form an important part of Hattie’s life story, which Hattie herself, with the assistance of Christine and Eileen, has already been documenting at home in scrapbook form.

Adoption plans

54. Annexed to the proposed minutes of order sought by the Principal Officer are maternal and paternal adoption plans, which provide for contact arrangements between Hattie, her birth parents and extended family; the maintenance of her cultural heritage; and arrangements for her religious upbringing, noting Hattie’s personal interest in developing a Christian-based faith.

55. Yasmin has signed the maternal adoption plan and Adam has signed the paternal adoption plan.

56. The maternal adoption plan makes provision for face-to-face contact visits:

1. between Yasmin and Hattie, to occur six times per year with each lasting for two hours, depending on Hattie’s needs and best interests.

2. with Hattie’s maternal great grandmother, Ms Merchant, to occur naturally in the community five times per year on dates and at venues as agreed between Eileen, Christine and Ms Merchant, subject to Hattie’s needs and best interests.

3. with Hattie’s maternal great uncle and aunt, Mr Babic and Ms Babic, to occur naturally in the community twice per year with dates and venues to be agreed between Eileen, Christine and the Babics, subject to Hattie’s needs and best interests.

4. with Hattie’s maternal half-siblings, Jye and Matthew, to occur naturally in the community on dates and at venues to be agreed between Eileen and Christine and a responsible adult representing Jye and/or Matthew. Visits will have a minimum duration of one hour, but will be subject to Hattie’s needs, safety and best interests and will be supervised by Eileen and/or Christine.

57. The paternal adoption plan makes provision for potential face-to-face and telephone contact between Hattie and Adam, to be arranged and facilitated by Eileen and/or Christine in the future, subject always to Hattie’s needs and best interests. The plan also records that information, letters, photographs, cards and gifts may be exchanged on an informal basis between Hattie and Adam according to Hattie’s wishes and consent.

58. I may not make an adoption order if the parties to the adoption have agreed to an adoption plan, unless I am satisfied that the arrangements proposed in the plan are in the best interests of Hattie and are proper in the circumstances: s 90(2) of the Act.

59. The contact proposed in the maternal adoption plan largely reflects the current contact arrangements in place and enables Hattie to continue to foster and support her connection with Yasmin, her extended maternal family, and her maternal cultural heritage (the latter in the context of family visits with Ms Merchant), without compromising her safety or well-being.

60. I am satisfied that the level of contact proposed in the paternal adoption plan is appropriate in all the circumstances, having regard to the very recent identification (and introduction to Hattie) of Adam as Hattie’s birth father, Hattie’s initial anxiety at the prospect of meeting him, and Hattie’s agreement with the staged Introduction Plan and paternal adoption plan.

61. Accordingly, I consider that the arrangements proposed in each of the maternal adoption plan and the paternal adoption plan are in the best interests of Hattie and are proper in all the circumstances. The orders which I will make will include a notation to this effect.

ORDERS AND NOTATIONS

62. For the reasons given above, I make the following orders and notation:

1. Pursuant to s 21(2) of the Status of Children Act 1996 (NSW), Adam Elliott be declared the birth father of the child, Hattie Marija Kennedy.

2. Pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the court dispenses with the consent of the child’s birth mother, Yasmin Kennedy.

3. Pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the court dispenses with the consent of the child’s birth father, Adam Elliott.

4. Pursuant to s 23 of the Adoption Act 2000 (NSW), for the adoption of the child, Hattie Marija Kennedy, in favour of the adopting parents, Eileen James and Christine James.

5. Pursuant to s 101(1) of the Adoption Act 2000 (NSW), approves the name “James” as the surname and “Hattie Marija” as the given names of the child.

6. It is noted that the maternal adoption plan and the paternal adoption plan have been approved by the court.

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Endnotes

Decision last updated: 26 September 2024