The Adoption of Joy and Sophia

[2024] NSWSC 1615

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Joy and Sophia [2024] NSWSC 1615

Hearing dates:

On the papers

Date of orders:

16 December 2024

Decision date:

16 December 2024

Jurisdiction:

Equity - Adoptions List

Before:

Hmelnitsky J

Decision:

See [50]

Catchwords:

CHILD WELFARE – Adoption – Best interests of the child

Legislation Cited:

Adoption Act 2000 (NSW) ss 8, 23, 24, 27, 45, 50, 51, 52, 54, 67, 72, 87, 88, 90, 91, 101

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

Cases Cited:

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

Adoption of SVS [2015] NSWSC 2043

Application of A – re D [2006] NSWSC 1056

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

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

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:

The Secretary, New South Wales Department of Communities and Justice (Plaintiff)

Representation:

Counsel: determined on the papers

Solicitors:

File Number(s):

2024/296267

Publication restriction:

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

JUDGMENT

1. The Secretary of the NSW Department of Communities and Justice seeks an order that “Joy” and “Sophia” (not their real names), now seven and four years of age respectively, be adopted by “Cath” (not her real name).

2. The birth parents of the children are aware of these proceedings but have not consented to the adoption. The Secretary therefore seeks an order that the Court dispense with the requirement of consent pursuant to s 67(1)(d) of the Adoption Act 2000. The Secretary also seeks orders in relation to the children’s names. In each case, the Secretary proposes that the children adopt the surname of the proposed adoptive parent. In Sophia’s case, the Secretary also proposes an additional given name.

3. Joy has lived with Cath continuously since 23 October 2017, when she was about five months old. Sophia has lived continuously with Cath since 21 February 2020, when she was one day old.

4. The children are sisters. Their birth parents were served with the Notice of Application for Adoption Orders, but neither parent has entered an appearance.

5. The children are presently under the parental responsibility of the Minister for Families and Communities until each attains the age of 18 years, pursuant to orders made by the Children’s Court of New South Wales at Parramatta on 19 December 2017 (in the case of Joy) and 25 May 2021 (in the case of Sophia). Those orders remain in effect.

6. I have determined to make the orders sought and to register the adoption plan. These are my reasons for doing so.

The circumstances of this case

7. It is not necessary to set out the reasons why the children are presently under the parental responsibility of the Minister. Neither birth parent has expressed the view that it is appropriate for the children to be restored to their care and I am satisfied that restoration is not a realistic possibility.

8. Cath is 44 years old and is currently single. She has one adopted child, “Patrick” (not his real name) who is eight years old and was adopted on 4 October 2019 pursuant to orders of the Court.

9. Cath has a tertiary qualification in counselling and family therapy, although she is not currently employed. She does however have the financial capacity to meet the care needs of the children as well as the needs of Patrick and her own needs. She is also able to count on the support of her brother and his wife, who support this application.

10. I have read the affidavit of the proposed adoptive parent and those of her referees.

11. Both children have very high care needs. Both have been diagnosed with a number of medical conditions and disabilities. However, all the evidence before me suggests that Joy and Sophia have been very well cared for and that their complex needs have been met. Cath maintains a loving home in a suburb of Sydney with plenty of room for all of the children to explore and grow. The environment in which the children now reside seems to me to be conducive to their wellbeing, which is borne out by the various reports in evidence.

12. Cath owns her home together with her brother and his wife. They are currently doing some renovations to the property to allow both families to live there. Once complete, Cath, Patrick, Joy and Sophia will live in one part of the premises and Cath’s brother, wife and two young sons will live in another part of the premises.

The formal requirements for adoption

13. I am satisfied that the formal requirements of the Adoption Act have been met.

14. Pursuant to s 87 of the Adoption Act, this application is brought by the Secretary of the Department of Communities and Justice. At the time the application was filed, the children were present within NSW: ss 23(2)(a) and 24(1)(a). The proposed adoptive parent, Cath is resident and domiciled in NSW: ss 23(2)(b) and 27(1)(a).

15. A report concerning the proposed adoption authored by an “approved assessor” has been provided to me as part of the application: ss 91(1) and 91(2A)(s). The proposed adoptive parent is of good repute and is a fit and proper person and meets the age requirement: ss 27(1)(b) and 27(2). The proposed adoptive parent has also been assessed as a suitable person and has been selected in accordance with the Adoption Act: ss 45F and 90(1)(c).

16. Finally, notice was given to the birth parents more than 14 days before the date of the orders contained in this Judgment: ss 72(1) and 88(1)(a), and, the birth parents have been provided with a copy of the Mandatory Written Information: s 59.

Consent

17. The Court may not make an order for adoption unless both parents consent: s 52(a), or unless the requirement for consent has been dispensed with: s 54(1)(a). The circumstances in which the Court may dispense with the requirement for consent are set out in Part 5, Division 3 of the Adoption Act. In this case, the Secretary seeks an order dispensing with consent on the basis of s 67(1)(d), which is relevantly as follows:

(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—

…

(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.

18. Section 67(2) provides:

(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.

19. There was evidence the birth parents are aware of the proposed adoption and that they do not oppose it. Both parents have a good, positive relationship with Cath. They consider her to be caring.

20. The evidence suggests that both birth parents are resigned to the proposed adoption and feel that there is not much they can do about it because it is a foregone conclusion. However, I respectfully acknowledge that they have not consented to the proposed adoption. I do not treat the question of whether the adoption order should be made as being a foregone conclusion.

21. I am however satisfied that it is appropriate to make an order dispensing with the consent requirement. That is for the following reasons.

22. As to s 67(1)(d)(i), the evidence demonstrates that the children have established a stable relationship with Cath. They have lived with her virtually their entire lives. She has a strong and loving bond with each child. The children have strong psychological bonds with Cath and Patrick.

23. As to s 67(1)(d)(ii), I note that Cath has met the complex and demanding care needs of both children for, essentially, their entire lives. This includes their health, developmental, educational and social needs. I have every confidence that Cath will continue to meet these needs in the future.

24. As to s 67(2), I am also satisfied that it is in the best interests of both children that the consent requirement is dispensed with. My reasons for being satisfied of this requirement are, essentially, the same as my reasons for being satisfied that it is in the best interests of the children for the adoption orders to be made, which I address below. Having formed the view that it is in the best interests of the children to make the adoption orders, and in the light of the supportive attitude of the birth parents to the children remaining in Cath’s care, I am satisfied that it is appropriate to dispense with the requirement of their consent.

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

25. Section 8 of the Adoption Act provides:

“(1)   In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles—

(a)   the best interests of the child, both in childhood and in later life, must be the paramount consideration,

(b)   adoption is to be regarded as a service for the child,

(c)   no adult has a right to adopt the child,

(d)   if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

(e)   the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,

(e1)   undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare,

…

(2)   In determining the best interests of the child, the decision maker is to have regard to the following—

(a)   any wishes expressed by the child,

(b)   the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,

(c)   the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,

(d)   any disability that the child has,

(e)   any wishes expressed by either or both of the parents of the child,

(f)   the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,

(g)   the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,

(h)   the nature of the relationship of the child with each proposed adoptive parent,

(i)   the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,

(j)   the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,

(k)   the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.”

26. Section 90 of the Adoption Act further provides:

“(1)   The Court must not make an adoption order in relation to a child unless the Court is satisfied—

(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.

(2)   The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.

(3)   The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.”

27. I note the paramount consideration in s 8(1)(a). Of this principle, and adoptions more generally, Brereton J said in Adoption of SVS [2015] NSWSC 2043 at [9]:

“it is worth remembering that these inquiries are concerned with the future rather than with the past. At their centre is ascertaining the best interests and welfare of the child, now and in the future, and not the rights and wrongs of past conduct and decisions – whether of the birth parents, the adoptive parents or the Department.”

28. Sackar J pointed out in 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] that “arguably the most important work at least in this Division of the court by a very large margin in my view is determining applications for adoption. It is one of the most profound and important decisions a judge can be called upon to make.”

29. Brereton J further summarised the principles applicable to the interaction of ss 8(2) and 90 of the Adoption Act in Adoption of NG (No 2) [2014] NSWSC 680 at [15]-[16]:

“[15] Adoption Act, s 90(3), provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]].

[16] The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows:

-   Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships;

-   Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and

-   Concerning to the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them.”

30. His Honour continued at [74]:

“[74]   Consideration of whether adoption would promote the child's best interests, and whether it is clearly preferable to any other order that could be made, involves identification of the likely effects of adoption, and of the various available alternatives, and examining their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is, or is not, clearly preferable to all the others. In the light of the proposals of the parties, the alternatives to adoption that require consideration in this case are:

-   restoring the child to the care of the birth mother;

-   allocating parental responsibility in favour of the applicants;

-   maintaining the status quo, with the Minister having parental responsibility and the child in foster care; and

-   deferring determination of the question until the child is older, either maintaining the status quo or making a parental responsibility order in the meantime.”

31. 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: 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 [2019] NSWSC 71 at [164].

Is adoption clearly preferable in the best interests of Joy and Sophia?

32. I am comfortably satisfied that adoption is clearly preferable and in the best interests of both Joy and Sophia. There is no other option available that I consider is better for their long-term best interests, having regard to the factors in s 8(2), and I consider this to be the case overwhelmingly.

33. Cath supports contact with Joy and Sophia’s birth family, as appropriate. She is mindful of their relationship with their birth parents and with their extended family. She has made an effort to foster these relationships. She has a thorough and responsible attitude to parenting.

34. The adoption of Joy and Sophia will be an excellent example of what was described as one of the “principal benefits of adoption”, namely “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].

35. I am therefore satisfied that this adoption is in the best interests of both Joy and Sophia.

36. It is also necessary for me to be satisfied that the adoption is clearly preferable in the best interests of the children to any alternative care order. As matters stand, both Joy and Sophia are in the care of the Minister and have been living with Cath in foster care for almost their whole lives. The only alternative to adoption would be to maintain the status quo. However, the status quo offers no practical advantages over an adoption. To the contrary, the maintenance of the status quo is likely to stymie their positive bonds with, and attachment to, both Cath and their foster sibling, Patrick. Adoption will provide additional certainty and permanence for both Joy and Sophia in what is already a very healthy environment for them. It will also help to avoid any stigma that may be associated with being a “foster child.” In my view, it is clearly preferable to any other course.

32. I will therefore make the order sought for the adoption of both Joy and Sophia, subject to the below, having satisfied myself to a degree commensurate with the gravity of this decision: Application of A – re D [2006] NSWSC 1056 at [53].

The Adoption Plan

38. I may not make an adoption order, where 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 child’s best interests and are proper in the circumstances: Adoption Act s 90(2).

39. The proposed adoption plan essentially maintains the arrangements for contact with the children’s birth family which Cath, to her credit, has already had in place for some time. It has not been agreed to by the birth parents, but the mother has indicated that she was happy with the plan following the implementation of some changes which she suggested. The father’s views have been sought but he has not to date indicated his attitude to the plan.

40. The proposed adoption plan provides, in summary, for the following:

“a. Face-to-face visits between the children and the parents at least six times per year.

b. Face-to face visits between the children and their maternal and paternal extended family members at least twice a year.

c. Regular updates about the children provided by Ms Crossley to the parents and some extended family members via phone calls and SMS messages.

d. A plan to maintain the children’s cultural identity.”

41. I am well satisfied that the adoption plan is in the best interests of Joy and Sophia and that it is proper in the circumstances. It a sensible plan which reflects well on Cath’s approach to parenting.

42. Accordingly, I will make an order for the adoption plan to be registered, such that it will have effect as an order of the Court: Adoption Act s 50(4). I note that, should it be necessary, the Court can review an adoption plan on the application of one or more parties to the plan and make such changes, if any, to the provisions of the adoption plan as it considers appropriate, although I hope that, given the good sense underlying this plan, this will not be necessary: Adoption Act ss 51(1) and (3).

Proposed name change

43. The orders sought in relation to the names of the children differ slightly. Both children currently have their parents’ names, separated by a hyphen, as their surname. The Secretary seeks an order that both children take Cath’s surname as their new surname, but that they keep their parents’ names as additional given names. In Sophia’s case, the Secretary also seeks an order that she take an additional given name that has particular significance for her.

44. Before changing the children’s names, I must consider any wishes expressed by them and any factors relevant to the weight that should be given to those wishes: Adoption Act s 101(2). Given their age, it is not necessary that the children consent to the change: s 101(4).

45. The evidence suggests that the children have responded positively to the proposed name changes.

46. Cath’s position is that she would prefer the children to take her surname in lieu of their current hyphenated surname. She has some concern about the overall length of their names if they keep their parents’ names, which is understandable given the age of the children. However, she is not opposed to the children retaining their parents’ names as middle names.

47. The Secretary submits that it is in the best interests of the children to keep their parents’ names in addition to their new surname. The Secretary submitted that this will allow the children to retain a connection with their birth family, life story and identity, whilst also being formally recognised as part of Cath’s adoptive family.

48. I accept the Secretary’s submission on this point. The children’s birth parents are part of their lives and the adoption plan will ensure that this continues to be the case. It is appropriate in these circumstances for the children to retain their parents’ names, albeit as middle names.

49. I am also satisfied that is in Sophia’s best interests to take an additional middle name. The chosen name has particular significance for Cath and Sophia has responded very positively to the suggestion that she take it. Joy already has one additional middle name. If Sophia’s name is changed in the manner proposed, she will have the same number of names as her big sister, which will be a small but precious token of their connection to one another.

50. Once the adoption order is made, Integrated Birth Certificates will be created for each child which will include details of their birth parents. These will be an important part of their life story.

Conclusion

51. I am grateful to all concerned for their approach to this matter. The orders of the Court will be:

1. Pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the Court dispenses with the requirement for the consent of the children’s birth mother and father.

2. The Court makes an order for the adoption of the child Joy in favour of the adopting parent Cath and approves the proposed name changes.

3. The Court makes an order for the adoption of the child Sophia in favour of the adopting parent Cath and approves the proposed name changes.

4. Pursuant to s 194(2) of the Adoption Act 2000 (NSW), leave is granted to provide a of copy of the Adoption Plans, which the Court has found to be in the children’s best interests, to the children’s birth mother and father.

Notations

5. Note that the Court is satisfied that the arrangements proposed in both adoption plans are in the children’s best interests and are proper in the circumstances.

**********

Decision last updated: 17 December 2024