The Adoption of Henry (a pseudonym)

[2023] NSWSC 939

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Adoption of Henry (a pseudonym) [2023] NSWSC 939

Hearing dates:

03 August 2023

Date of orders:

09 August 2023

Decision date:

10 August 2023

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Order for adoption to be made

Catchwords:

CHILD WELFARE – adoption – intercountry adoption – non convention country – subsequent adoption has effect that earlier adoption order ceases to have effect – where adoption by birth mother and step father as couple

Legislation Cited:

Adoption Act 2000 (NSW)

Adoption of Infants Act 1944 (Fiji)

Adoption Regulation 2015 (NSW)

Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth)

Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption

Cases Cited:

Adoption of BL [2018] NSWSC 391

Adoption of GK (Anonymised) [2020] NSWSC 362

Adoption of MSAT [2014] NSWSC 1950

Adoption of RCC and RZA [2015] NSWSC 813

Application of A - re D [2006] NSWSC 1056

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

Texts Cited:

Practice Note SC Eq 13

Category:

Principal judgment

Parties:

“Sally” (a pseudonym) (First Plaintiff)
“Liam” (a pseudonym) (Second Plaintiff)
“Amelia” (a pseudonym) (First Defendant)
“William” (a pseudonym) (Second Defendant)
Secretary, New South Wales Department of Communities and Justice (Intervener)

Representation:

Counsel:
R Dart (Intervener)

Solicitors:
Jameson Law (Plaintiffs)
Crown Solicitor’s Office (Intervener)

File Number(s):

2022/96924

Publication restriction:

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

JUDGMENT

1. By Amended Summons filed on 24 March 2023, “Sally” and “Liam” (the “Proposed Adoptive Parents”) seek an order for the adoption of “Henry” in their favour. Sally is the biological mother of Henry.

2. Henry is currently subject to an adoption order made by the Family Division of the Magistrates Court at Suva, Fiji, on 17 April 2012 (“the Fijian Adoption Order”) in favour of Sally’s parents, “Amelia” and “William” (the “Maternal Grandparents”).

3. The reason for this is that in late 2011, Amelia was offered an opportunity to work at UNSW in Australia and for the family to relocate. However, Sally needed to finish her law studies in Fiji so Henry was adopted by the Maternal Grandparents, which allowed him to move to Australia. Upon completion of her studies, Sally moved to Australia in 2015.

4. The Proposed Adoptive Parents have been in a relationship since June 2016 and married since December 2021.

5. Notwithstanding the Fijian Adoption Order, Henry has continuously resided with the Proposed Adoptive Parents since 2017 and, on 16 December 2022, Henry, and the Proposed Adoptive Parents relocated from New South Wales to the Northern Territory, where the Maternal Grandparents now reside.

6. Because of the unusual circumstances of this case, I invited the Secretary, New South Wales Department of Communities and Justice, to intervene. I am very grateful for the assistance I have received from the Secretary and, in particular, from Ms Dart of counsel who appeared for the Secretary and provided very helpful submissions.

Recognition of the Fijian Adoption Order in Australia

7. Since 1 August 2012, Fiji has been a “Convention country” under the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (the “Convention”) and within the meaning of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (“the Regulations”).

8. However, at the time the Fijian Adoption Order was made, 17 April 2012, Fiji was not a Convention country for the purpose of reg 4 of the Regulations.

9. An adoption order in a non Convention country is taken to have the same effect as an order made under the Adoption Act 2000 (NSW) (“the Act”) if:

1. at the time the legal steps that resulted in the adoption were commenced the adoptive parents were resident in the country of adoption for 12 months or more or were domiciled in that country; ^[1]

2. the adoption is in accordance with and has not been rescinded under the law of the country; ^[2]

3. as a consequence of the adoption, the adoptive parents under the law of that country have a right superior to that of the adopted person’s birth parent in relation to the custody of the adopted person; ^[3] and

4. under the law of that country the adoptive parents were, because of the adoption, place generally in relation to the adopted person in the position of parents. ^[4]

   1. Section 116(1)(b) of the Act.

   2. Section 116(2)(a) of the Act.

   3. Section 116(2)(b) of the Act.

   4. Section 116(2)(c) of the Act.

10. As to the first of these requirements, Amelia gave evidence that the Maternal Grandparents had lived in Suva, Fiji, for eight years prior to filing the adoption application in Fiji.

11. As to the second to fourth of these requirements, s 10 of the Adoption of Infants Act 1944 (Fiji), provides that:

Upon an adoption order being made, all rights, duties, obligations and liabilities of the parent or parents, guardian or guardians of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage, shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercised by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock, and in respect of the same matters and in respect of the liability of a child to maintain its parents the adopted child shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock, provided that, in any case where 2 spouses are the adopters, such spouses shall, in respect of the matters aforesaid and for the purpose of the jurisdiction of any court to make orders as to the custody and maintenance of and right of access to children, stand to each other and to the adopted child in the same relation as they would have stood if they had been the lawful father and mother of the adopted child, and the adopted child shall stand to them respectively in the same relation as a child would have stood to a lawful father and mother respectively.

12. Further, s 116(5) of the Act provides, relevantly:

(5) In any proceedings before a court (including proceedings under section 117), it is to be presumed unless the contrary appears from the evidence, that an order for the adoption of a person that was made in a country outside Australia that is not a Convention country or a prescribed overseas jurisdiction complies with subsection (1).

13. As Brereton J (as his Honour then was) observed in Adoption of MSAT,^[5] the reference in s 116(5) to “subsection (1)” is obviously an error and should be a reference to “subsection (2)”.

    5. [2014] NSWSC 1950 at [17]; and see footnote 28 of Practice Note SC Eq 13.

14. Those two matters in combination enable me to be satisfied that the second to fourth requirements set out at [9] are satisfied.

15. Thus, the Fijian Adoption Order is taken to have had the same effect as if made under the Act.

The requirements of the Act

16. I may make an order for adoption in favour of a couple jointly even where one of the proposed adoptive parents is a birth parent. ^[6]

    6. Section 28(5) of the Act.

17. By reason of the Fijian Adoption Order, Sally is technically Henry’s sister. Sally is thus a “relative” of Henry.

18. Section 29 of the Act provides that, in that circumstance I must not make an adoption order in her favour unless:

1. The Maternal Grandparents, as the persons presently having parental responsibility for Henry (under the Fijian Adoption Order) have given their specific consent to the adoption of Henry by Sally; ^[7]

2. Henry has established a relationship of at least two years’ duration with Sally; ^[8] and

3. I am satisfied that the making of the adoption order is clearly preferable in the best interest of Henry to any other action could be taken by law in relation to Henry. ^[9]

   7. Sections 29(a) and 53(b) of the Act.

   8. Section 29(b) of the Act.

   9. Section 29(c) of the Act.

19. As Liam is a step parent of Henry, I must not make an adoption order in his favour unless the further requirements of s 30 of the Act are satisfied, namely that:

1. Henry is at least five years old; ^[10]

2. Liam has lived with Henry and Sally for a continuous period of not less than two years immediately before the application of the adoption order; ^[11] and

3. The Maternal Grandparents have given their specific consent to the adoption of Henry by Liam. ^[12]

   10. Section 30(1)(a) of the Act.

   11. Section 30(1)(b) of the Act.

   12. Section 30(1)(c) of the Act.

20. I am comfortably satisfied about each of these matters.

21. Henry is now 12 years old and has lived with the Proposed Adoptive Parents continuously at least over five years. He has, obviously, established a relationship of at least 2 years with Sally.

22. The Maternal Grandparents have both provided the requisite specific consents.

23. As I set out below, I am satisfied that the making of the adoption order is clearly preferable in the best interests of Henry to any other action that could be taken by law, such that s 30(1)(d) of the Act is satisfied.

24. I am satisfied that the requirements of ss 29 and 30 of the Act have been complied with and I am entitled to proceed with considering making an adoption order under s 28 of the Act. ^[13]

    13. Section 28(2) of the Act.

25. Section 28(1) of the Act provides two persons, who are a couple, may adopt child only if “both of them are resident or domiciled” in New South Wales.

26. The Proposed Adoptive Parents were resident in New South Wales at the time of the filing of the Summons ^[14] but, as I have set out above, relocated to the Northern Territory last December.

    14. And thus satisfied the requirements of s 23(2) that Henry be present in New South Wales and that the Proposed Adoptive Parents reside in or be domiciled in New South Wales on that date.

27. A couple may only “adopt a child” by making an application under the Act to do so. In those circumstances, I read the requirement of residence or domicile in s 28 as applying as at the date of such application, consistently with the requirement in s 23 that the Court must not make an adoption order unless the applicants for adoption reside or are domiciled in New South Wales.

28. This is consistent with the view expressed by Hallen J in Re the Adoption of CCS and FLS:^[15]

“… It would not be consistent, or harmonious, for the legislature to have provided for a requirement of proof of residence or domicile of the proposed adoptive parents for jurisdictional purposes, being at the time of the filing of the Summons (in s 23(3) of the Act), whilst when dealing with the “basic requirements” for a couple seeking to adopt a child, requiring proof of their residence or domicile at the time of the making of an adoption order. …”

15. [2019] NSWSC 71 at [55].

29. Section 28 also requires that, in the case of adoption by a couple, each must be 21 years or more and 18 years older than the child and have been living together continuously for no less than 2 years immediately before the making of the application for adoption. ^[16] Those requirements are satisfied here.

    16. Section 28(3)(a) and (4) of the Act.

30. Section 28 also requires that I be satisfied that the Proposed Adoptive Parents are of good repute and fit and proper persons to fulfil the responsibility of parents. ^[17]

    17. Section 28(1)(b) of the Act.

31. Ms Sarah Collett filed an Affidavit Annexing Court Report in these proceedings, pursuant to s 91 of the Act, noting, amongst other topics, that the Proposed Adoptive Parents are of good health, have a strong commitment to prioritising familiar bonds and relationships, and share the same cultural values. I am satisfied that the Proposed Adoptive Parents are of good repute and are capable of fulfilling the responsibilities of parents, as both already exercise this role with Henry.

Henry’s consent

32. As Henry is now 12, he is capable of giving his consent to his proposed adoption. He has done so.

33. Henry has been counselled by Registered Adoption Counsellor Ms Christine Wynd pursuant to s 63 of the Act. Ms Wynd has certified that Henry understands the effect of signing the instrument of consent,^[18] stating:

From the information discussed, I formed the view that Henry is capable of understanding the legal and emotional effect of signing the instrument of consent. Henry was clear in his desire to be adopted by [the Proposed Adoptive Parents]. I have no concerns about Henry’s capacity to consent to his own adoption.

18. Section 61 of the Act.

34. In these circumstances, Henry has provided his formal consent to his own adoption in favour of the Proposed Adoptive Parents under s 55 of the Act.

35. I am satisfied that the requirements of ss 28 and 30 of the Act have been made out so as to allow me to consider making an order for adoption in accordance with the “best interests” principles under the Act. ^[19]

    19. Sections 8 and 90 of the Act.

The “best interests” principles under the Act

36. As I have set out above, I must not make an adoption order unless satisfied that the best interests of Henry will be promoted by the adoption and that, as far as practicable and having regard to his age and understanding, his wishes and feelings have been ascertained and due consideration given to them. ^[20]

    20. Section 90(1)(a) and (b) of the Act.

37. When considering making a decision about the adoption of a child, I must have regard to the best interests of the child, both in childhood and later life (this being the paramount consideration). ^[21] I must also have regard to the principles stated in the Act that adoption is to be regarded as a service for the child,^[22] and that no adult has a right to adopt the child. ^[23]

    21. Section 8(1)(a) of the Act.

    22. Section 8(1)(b) of the Act.

    23. Section 8(1)(c) of the Act.

38. In determining the best interests of a child, I must have regard to the matters set forth in s 8(2) of the Act including, relevantly:

• any wishes expressed by the child;

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

• the child’s physical, emotional, and educational needs;

• the wishes expressed by the parents;

• the nature of the relationship that the child has with his or her parents and any siblings or significant other people;

• the attitude of the proposed adoptive parents to the responsibilities of parenthood; and

• the nature of the relationship of the child with the proposed adoptive parents.

39. Henry has expressed his wishes to be adopted and understands the legal effect of these proceedings. The Proposed Adoptive Parents both wish for Henry to be their adoptive child so as to recognise the existing parent-child relationships and maintain the strong established bond they share as a family. Henry maintains a strong and healthy relationship with the Proposed Adoptive Parents, unsurprisingly as Sally is his birth mother, as well as with the Maternal Grandparents, and I am satisfied Henry will continue to do so after the orders are made.

40. I may not make an order for adoption unless satisfied that the making of such an order is “clearly preferable” in the best interests of Henry than any other action that could be taken by law in relation to the care of Henry. ^[24]

    24. Section 90(3) of the Act.

41. I must therefore 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. ^[25] I must achieve the degree of conviction in favour of adoption commensurate with the gravity of the decision. ^[26]

    25. Adoption of RCC and RZA [2015] NSWSC 813 at [14] (Brereton J, as his Honour then was).

    26. Application of A - re D [2006] NSWSC 1056 at [53] (Palmer J); Adoption of BL [2018] NSWSC 391 at [13] (Sackar J).

42. If I were to make no order, Henry would remain as an adopted child of his Maternal Grandparents, despite living with the Proposed Adoptive Parents. This would mean that the Proposed Adoptive Parents would be unable to make significant decisions concerning Henry, which decisions would require the approval of the Maternal Grandparents.

43. An order allocating parental responsibility for Henry to the Proposed Adoptive Parents would alleviate some of the disadvantages of taking no step, but would remain a temporary order that would expire when Henry attains 18 years of age and would fail to recognise the strength of the family bond.

44. Thus, making no order, or making an order for parental responsibility, would lack the certainty and permanency of an adoption order, and would fail to recognise the parent-child relationships that currently exist.

45. Additionally, Ms Collett recommended adoption in her report, stating:

An Order of Adoption is considered the most appropriate permanent order for [Henry]. [Liam] has been actively involved in [Henry’s] life since [Henry] was five years old with [Henry] strongly identifying him as his father. Although [Henry] was adopted by his maternal grandparents, he has always understood that [Sally] is his mother. Following adoption, [Sally] has remained consistently connected to Henry, with she and [Liam] assuming his full-time care in early 2018.

…

The writer recommends that an Order of Adoption be granted for [Henry] in respect of his birth mother, [Sally] and his stepfather, [Liam]. An Order of Adoption is considered to be in [Henry’s] best interests, as it will formally recognise the parent-child relationships that are already in existence between [Henry] and his birth mother and stepfather.

46. In this case, I think it obvious that Henry’s best interests require that he remain in the care of the Proposed Adoptive Parents and that the making of an adoption order is clearly preferable to any other action that could be taken by law.

Effect of adoption order under the Act on the Fijian Adoption Order

47. Section 96(1) provides that on the making of an adoption order:

“… the previous adoption of the child “whether effected under the law of New South Wales or otherwise) ceases to have effect”. ^[27]

27. Section 96(1)(b) of the Act.

48. Thus, although an adoption order will not be discharged in the absence of fraud, duress, impropriety or exceptional circumstances,^[28] and although adoption orders are usually intended to bring about a permanent change to the legal status of those involved, the plain reading of s 96 shows that:

1. a subsequent adoption order can be made notwithstanding the fact that the child is already the subject of an adoption order, including one made outside New South Wales;

2. the effect of a subsequent adoption order is of the former order ceases to have effect; and

3. a discharge of the former order is not a precondition to the making of a subsequent adoption order.

   28. Section 93(4) of the Act.

49. In this case, all that is necessary for the Court to do is to make an order for the adoption of Henry by the Proposed Adoptive Parents. It will follow from the making of that order that the Fijian Adoption Order will cease to have effect.

50. Thus, upon the making of this adoption order, the sole parental responsibility and legal rights of Henry will pass to the Proposed Adoptive Parents, and the Fijian Adoption Order in favour of the Maternal Grandparents will cease to have effect.

Proposed name change

51. It is proposed that, on the making of an adoption order, Henry is to have the surname of his step father, to reflect Liam as Henry’s father figure.

52. I am satisfied that this is in the best interests of Henry as it will recognise and strengthen the connection Henry has with Liam as his adoptive and step father, while retaining his connection to his birth family and identity.

Conclusion

53. For those reasons, on 9 August 2023, I made the orders sought by the plaintiffs.

**********

Endnotes

Amendments

17 August 2023 - Insertion of parenthesis in [2]

Decision last updated: 17 August 2023