The Adoption of Johanna (a pseudonym) (No 2)

[2023] NSWSC 1430

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Johanna (a pseudonym) (No 2) [2023] NSWSC 1430

Hearing dates:

20 November 2023

Decision date:

23 November 2023

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Order for adoption made

Catchwords:

CHILD WELFARE – adoption – order – best interests of the child – where child has complex medical needs

Legislation Cited:

Adoption Act 2000 (NSW)

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

Cases Cited:

The Adoption of Johanna (a pseudonym) [2023] NSWSC 688

Category:

Principal judgment

Parties:

Principal Officer, Anglicare Community Services (trading as Anglicare) (Plaintiff)
“Emma” (a pseudonym) (Defendant)

Representation:

Counsel:
R Dart (Plaintiff)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Defendant (self-represented)

File Number(s):

2023/156231

Publication restriction:

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

JUDGMENT

1. The Principal Officer of Anglicare Community Services seeks an order that a child, who I will refer to as “Johanna” (not her real name), be adopted by a couple to whom I will refer as the “Proposed Adoptive Parents”.

2. Johanna is 18 years of age. She was born in a refugee camp in Africa and arrived in Australia with her mother, who I will call “Emma” (not her real name) in 2006. Emma was born in an African nation. Emma has remained in Australia since 2006 and is now a permanent resident. Johanna’s father is believed to have died in 2012.

3. Johanna has 11 siblings, two of whom are living independently, one of whose whereabouts is not known and eight of whom are in out of home care.

4. Johanna has lived with the Proposed Adoptive Parents since April 2008, at which time she was two years of age.

5. On 12 January 2009, the Children’s Court of New South Wales made final orders providing for Johanna to be placed under the parental responsibility of the relevant Minister until she attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW).

6. Johanna was granted Australian Citizenship in March 2011.

7. Johanna has a significant number of medical diagnoses which limit her capacity to understand and consider complex information and questions. These diagnoses include cerebral palsy, intellectual impairment and global developmental delay. Johanna has been assessed as having a developmental age of 12 months. She has a diagnosis of developmental encephalopathy, meaning she has severe and significant developmental delays. She is physically immobile and has no speech.

8. On 14 June 2023, I made an order, on the application of the Principal Officer, pursuant to s 69(1) of the Adoption Act 2000 (NSW) (the “Act”), dispensing with the requirement that Johanna consent to her proposed adoption. ^[1]

   1. The Adoption of Johanna (a pseudonym) [2023] NSWSC 688.

9. There is no doubt about the care that Johanna is receiving from the Proposed Adoptive Parents. They have an intimate knowledge of Johanna’s significant needs.

10. Emma recognises this to be so.

11. Thus, in an affidavit she made on 28 September 2023, she said:

“I do not consent to the proposed Adoption Order. I am [Johanna’s] birth mother, and I do not agree to an Order that changes this.

I accept that the Proposed Adoptive Parents … have taken really good care of [Johanna] over the years. I think [the Proposed Adoptive Parents] are good people.

I have said to Anglicare Caseworkers that I want [Johanna] returned to my care, although I accept that I am not able to care for her at this time. Additionally, I also said that I want [Johanna] to be placed with her maternal aunt …

Although these are my wishes, I understand that recently a Guardianship Order was made for [Johanna], in favour of [the Proposed Adoptive Parents] making decisions for [Johanna’s] care. I have not seen … the terms of this Order. Although I do want [Johanna] placed with family or in a culturally matched placement, I do understand that I would have to seek relief from the NSW Civil and Administrative Tribunal for [Johanna’s] placement to be changed or for me to make decisions for [Johanna’s] care.

I understand this to mean that the only purpose of an Adoption Order is to extinguish me from being [Johanna’s] mother. I have concerns about this Order being made, because it could result in extinguishing [Johanna’s] direct link with our family and her … culture.”

12. In relation to Emma’s stated wish that Johanna be placed with Johanna’s aunt, the evidence shows that Johanna’s aunt is well intentioned and does hope to support Emma by caring for Johanna. However, the information made available to the author of the report required by s 91 of the Act, who I will call “Ms Hampson” (not her real name), indicates that the aunt does not have a robust and comprehensive understanding of the complexities of caring for Johanna.

13. Emma has expressed concern that an adoption order would relinquish Johanna’s direct links “to our family and her … culture”.

14. However, the evidence shows that the Proposed Adoptive Parents are taking steps to educate Johanna, to the extent that this is possible, about her culture.

15. As Ms Dart, who appeared for the plaintiff, submitted, now that Johanna is 18, the only alternative to making an adoption order would be a Guardianship Order. There is in place such an order for a period of 12 months.

16. However, such an order lacks the permanency of an adoption order and allows for other persons to seek guardianship and financial management of Johanna in the future. As Ms Dart submitted:

“Given [Johanna’s] complex and significant needs, she is a vulnerable young person and the proposed adoption order will provide her with the safety and security which [the Proposed Adoptive Parents] have provided to date on a permanent basis. It will also relieve [the Proposed Adoptive Parents] of the need to seek a renewal of that order, which will in turn benefit [Johanna] because such proceedings, if the application is to be challenged, will detract considerable energy and resources away from [Johanna].”

17. As Ms Dart further submitted:

“For the purpose of s 90(3) of the Act, the plaintiff contends that the making of an adoption order is clearly preferable and in the interests of [Johanna]. In particular, the plaintiff contends that it is important that [the Proposed Adoptive Parents], who have cared for [Johanna] for the majority of her life and are intimately familiar with her significant medical needs, retain decision making for [Johanna] and that [Johanna] is afforded the benefit of the permanence of an adoption order which will provide her with secure and familiar care throughout her life.”

18. In that regard, Ms Dart drew attention to the following observations made by Ms Hampson:

“[Johanna] is a young adult who has the right to a permanent, safe home with the people with whom she has lived since she was two years of age. [Johanna] has the right to consistent and predictable care and should not be subjected to the uncertainty of reliance on guardianship orders which expire and which allow for the possibility of someone other than [the Proposed Adoptive Parents] becoming her carer and making decisions about her care. [Johanna] has a predictable and safe routine and has been provided with a high level of care by [the Proposed Adoptive Parents]. [The Proposed Adoptive Parents] … and their extended family view [Johanna] as a member of the family and while they respect and support [Johanna’s] need to have a connection to her birth family, [the Proposed Adoptive Parents] believe they are best placed to provide a permanent home for [Johanna]. [Johanna] has grown up in out of home care, however, is entitled to care and safety in the same way as any other adult with a disability and an adoption order allows [the Proposed Adoptive Parents] to provide her with this care and make decisions for her future in her best interests.”

19. Because Johanna is now 18, Emma’s consent to the adoption is not required and a consent dispense order is not necessary.

20. I am satisfied, based on these matters, that Johanna’s best interests require that I make an adoption order and that the making of such an order is clearly preferable to any other course that could be lawfully taken in relation to her care.

21. I propose to make an order in the terms of par 5 of the Summons. The plaintiff should bring in short minutes of order.

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Endnote

Decision last updated: 23 November 2023