The Adoption of Mary (a pseudonym) and Michael (a pseudonym) (No 3)

[2023] NSWSC 1435

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Mary (a pseudonym) and Michael (a pseudonym) (No 3) [2023] NSWSC 1435

Hearing dates:

21 November 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Orders for adoption made

Catchwords:

CHILD WELFARE – adoption – order – best interests of children

Legislation Cited:

Adoption Act 2000 (NSW)

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

Cases Cited:

Adoption of BL [2018] NSWSC 391

Adoption of RCC and RZA [2015] NSWSC 813

Adoption of Taylor-Clay [2019] NSWSC 27

Application of A - re D [2006] NSWSC 1056

In re W (A Child) [2017] 1 WLR 889

The Adoption of Mary (a pseudonym) and Michael (a pseudonym) [2023] NSWSC 149

The Adoption of Mary (a pseudonym) and Michael (a pseudonym) (No 2) [2023] NSWSC 1038

Category:

Principal judgment

Parties:

Secretary, New South Wales Department of Communities and Justice (Plaintiff)
“Audrey” (a pseudonym) (First Defendant)
“Steven” (a pseudonym) (Second Defendant)

Representation:

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

File Number(s):

2019/221936

Publication restriction:

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

JUDGMENT

1. The background to this matter is set out in my earlier judgments. ^[1]

   1. The Adoption of Mary (a pseudonym) and Michael (a pseudonym) [2023] NSWSC 149; The Adoption of Mary (a pseudonym) and Michael (a pseudonym) (No 2) [2023] NSWSC 1038.

2. In those judgments I referred to the “Prospective Adoptive Parents”. In these reasons, I will refer to that couple as “Julie” and “Matthew” (not their real names).

3. Otherwise, I shall use the same abbreviations and pseudonyms as in those earlier judgments.

4. On 21 November 2023, I heard the Secretary’s application for orders that Mary and Michael be adopted by Julie and Matthew.

5. The children’s mother, “Audrey”, and Michael’s father, “Steven” (not their real names), appeared by audio-visual link to confirm their opposition to the making of an adoption order.

6. Audrey and Steven had, however, shortly prior to the hearing, signed the Adoption Plans to which I refer below.

7. At the hearing, I announced I proposed to make the orders sought by the Secretary.

8. Those orders were made after a ceremony involving the children earlier today.

9. The orders I then made in relation to Mary were:

1. That pursuant to Adoption Act 2000, s 67(1)(d), the Court dispense with the requirement for the consent of the child’s birth mother, Audrey.

2. Order for the adoption of the child Mary in favour of the adopting parents Julie and Matthew and approves their surname as the surname and “Mary [and current surname]” as the given names of the child.

3. That pursuant to Adoption Act 2000, ss 50(1) and (3), the Adoption Plan signed by the proposed adoptive parents on 31 October 2023 and the plaintiff on 7 August 2023, a copy of which is annexed hereto and marked “A”, be registered.

4. That pursuant to Adoption Act 2000, ss 50(1) and (3), the Paternal Adoption Plan for Mary signed by the proposed adoptive parents on 28 September 2022 and the plaintiff on 12 October 2022, a copy of which is annexed hereto and marked “B”, be registered.

10. The orders I made in relation to Michael were:

1. That pursuant to Adoption Act 2000, s 67(1)(d), the Court dispense with the requirement for the consent of the child’s birth mother, Audrey.

2. That pursuant to Adoption Act 2000, s 67(1)(d), the Court dispense with the requirement for the consent of the child’s birth father, Steven.

3. Order for the adoption of the child Michael in favour of the adopting parents Julie and Matthew and approves their surname as the surname and “Michael [and current surname]” as the given names of the child.

4. That pursuant to Adoption Act 2000, ss 50(1) and (3), the Adoption Plan signed by the proposed adoptive parents on 31 October 2023 and the plaintiff on 7 August 2023, a copy of which is annexed hereto and marked “A”, be registered.

11. These are my reasons for making those orders.

12. I have been greatly assisted by the comprehensive submissions made on behalf of the Secretary by Ms Ananda Hall, for the Crown Solicitor’s Office.

13. Much of what follows is taken, with gratitude, from those submissions.

Factual background

14. Mary is almost 10 and Michael is almost 8.

15. The children have lived with Julie and Matthew continuously since September 2015. Michael was then 9 months old and Mary was 22 months old.

16. At the time of the hearing, the children were under the parental responsibility of the Minister for Families and Communities as a result of orders made by the Children’s Court of New South Wales in 2015 pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW).

Family composition

17. Audrey is the mother of the children. Audrey is an Aboriginal woman through her maternal ancestry. Audrey was not made aware of this until relatively recently.

18. I have set out in my earlier judgments the steps that have been taken by the Secretary arising from revelation of Audrey’s Aboriginal ancestry.

19. Mary’s father died in 2015.

20. Michael’s father is Steven.

21. The children have a number of siblings.

22. Mary has two maternal half-siblings, one of whom is in the care of Audrey and Steven.

23. Mary has one full sibling, who is under the care of the Minister and resides with her long-term carers.

24. Michael has two maternal half-siblings and one full sibling.

25. Michael has nine paternal half-siblings who range in age between 13 and 27.

Formal requirements

26. The formal requirements for the making of an adoption order are satisfied.

The best interests of the children

27. The paramount consideration in an application for adoption is the best interests of the child or children the subject of the application. ^[2]

    2. Adoption Act 2000 (NSW), ss 8(1)(a) and 90(1)(a).

28. There is overwhelming evidence in this case that the best interests are served by the making of an adoption order.

29. Ms Hall has set out, in great detail, in her submissions why this is so.

30. A convenient summary of this is contained in a report prepared by an Independent Assessor who I will call “Ms Smith” (not her real name), shortly before the hearing, in which Ms Smith supplemented the views she expressed in an earlier report made under s 91 of the Adoption Act 2000 (NSW) (the “Act”) and arising from a further visit she made to Julie, Matthew and the children’s home shortly before the hearing.

31. In her report Ms Smith said:

“In my S91 Court Report, I noted that [Julie] and [Matthew] ‘demonstrated a keen intelligence, tolerant and inclusive general attitudes and the ability to think contextually’ and it is my view that these attributes have been foundational in their capacity to manage the discovery of [Mary] and [Michael’s] Aboriginal heritage and the implications that this has had on their desire to secure [Mary] and [Michael’s] permanency in their family through adoption.

[Julie] and [Matthew] were very clear in stating to me that ‘we are not Aboriginal people and we cannot pretend that we are’ and ‘we are constantly informing ourselves because this … has been a journey for us too and it is not tokenistic’.

[Julie] told me that she feels that ‘everything we have had in our lives has led us to this point – South Africa, the countries and cultures we have lived and worked in, the understanding we have built about culture generally and the power of connection’. [Julie] and [Matthew] both commented to me that they really understand and accept the duty of care that they, as [Mary] and [Michael’s] parental figures, have had to ensure that [Mary] and [Michael] understand their ([Mary and Michael’s]) cultural connection, their cultural history and their links to their maternal community and lands. [Matthew] and [Julie] both emphasised to me that they were committed to ensure that [Mary] and [Michael] ‘have access to whatever they want culturally’ but also that ‘we raise these children with pride in their culture and with empathy to the disadvantage that led to their removal from [Steven] and [Audrey]’.

[Matthew] and [Julie] have seen and understood the last five years as an important opportunity ‘to get all this as right as we can for the kids’. They have been exemplary, in my view, in the positive, energetic and creative manner by which they have embraced all the responsibilities and the process changes they have been through – for example, building new relationships; managing established relationships when they have become difficult; and accessing opportunities and building cultural connections. [Matthew] and [Julie] told me that they have sought counselling support to ensure that they have managed the last five years, which have included COVID-19 lockdowns, with grace, empathy and purpose, both as individuals and as a couple. Counselling has also supported them to remain resilient and focused on the strong, loving primary attachments they have with [Mary] and [Michael] and to not become distracted by other stressors – the Section 90 application and the uncertain legislative framework around permanency for Aboriginal children placed in non-indigenous families for example.

…

[Matthew] and [Julie] remain, in my view, a most impressive couple. They are articulate, considered, determined and committed to raising [Mary] and [Michael] within a nurturing, creative, connected and empathetic family group that includes and respects birth family members and celebrates cultural background and history. That they accessed counselling to support their personal growth and development and the love and respect they share as a couple is, in my view, yet further evidence of their sterling personal qualities and their commitment to always focus on the achievable and the possible rather than lose themselves in impossibility and obstacles.

[Julie] and [Matthew] continue to celebrate [Mary] and [Michael’s] birth family connections and their rich cultural heritage. Further, they continue to present as very nurturing, loving and committed parents and certainly [Mary] and [Michael] were affectionate, well mannered, chatty, funny and very engaged and warm with [Matthew] and [Julie] and with me. It was heart-warming to meet this family again, five years after my last visit with them, and to see how [Mary] and [Michael] have grown and matured and how their primary attachments to [Matthew] and [Julie] have deepened and settled over these years.”

32. Another independent assessor, who I will call “Ms Jones” (not her real name), has expressed views to the same effect including that:

“[Matthew] and [Julie] have continued to foster a healthy and positive cultural identity for [Mary] and [Michael] in their local community and hope to contribute to this via annual trips to country, even if the family do not connected [sic] these times. While this is not ideal, the maternal family cannot be forced to engage. [Matthew] and [Julie] have demonstrated a willingness to connect with any family members who wish to do so, now or in the future.”

The children’s wishes^[3]

3. Section 90(1)(b) of the Act.

33. As the children are both under 12, they are too young to provide their consent to their adoption. However, both children have an age-appropriate understanding of adoption and have indicated they want to be adopted. Mary has consistently expressed these views.

34. Ms Jones, in her 2023 report, noted that Mary “is worried the adoption order would not be made” and that she wants “to live with Mum and Dad as they keep us safe and feed us healthy food. They love us most in the whole world.”

35. In a recent visit to the family home, Ms Smith spoke to the children and has recorded:

“[Mary] is in Year 4 … and [Michael] is in Year 2. Both knew that I was at their house to ‘say hello again’ and we talked about how they had grown since I last saw them. [Mary] told me that she understood that ‘you might need to talk to the Judge [Ms Smith]’ and that ‘we remember [Ms Jones] when she talked to us’. [Mary] described her birth family to me and she showed me the photo montage on her bedroom wall with photos of her birth family members, pointing out each member by name, what relationship they were to her and where they lived. She told me that … her birth father had … died …

[Mary] talked about being an Aboriginal girl and what she did at school because of her cultural background. For example, she told me that she cannot do Welcome to Country speeches because her country is not Sydney … [Julie] commented to me later that ‘[Mary] is so, so proud of her culture – and I’m so proud of her that she is so proud’.

I talked with, and explained to, [Mary] and [Michael] the general court process and I asked [Mary] if there was anything that she wanted [the] Judge to know. [Mary] thought for a moment, she looked at [Michael], and she turned to me and said ‘could you make sure he knows that we really want to be adopted please’. When I explored with [Mary] what adoption meant to her, she said that she would get a new birth certificate ‘with Mum and Dad on it’ and that her last name would become [Julie and Matthew’s surname]. She told me too that she would still see her birth family ‘because nothing changes there with adoption’.

The Adoption Plans

36. As I have said, Audrey and Steven have signed the Adoption Plans.

37. There are two Adoption Plans. The “Adoption Plan” relates to Audrey, Steven, the maternal family and Michael’s paternal family. The “Paternal Adoption Plan” relates to Mary’s paternal family.

38. The Adoption Plans provide for six face-to-face family visits with each parent each year and with other contact.

39. The children live with Julie and Matthew in Sydney. Audrey and Steven live in regional New South Wales, several hundred kilometres from Sydney. The children are currently relatively young and are engaged in regular therapies and various extra-curricular activities in Sydney. I am satisfied that those facts, and the distance that needs to be travelled for face-to-face visits, are factors tending against any more frequent contact.

Dispensing with the birth parents’ consent

40. The consent of Audrey and Steven to the proposed adoption is required pursuant to s 52 of the Act unless, relevantly, consent has been dispensed with or the child has provided sole consent to their own adoption. ^[4]

    4. Section 54 of the Act.

41. As Mary and Michael are not old enough to provide consent to their own adoption, the Secretary seeks an order to dispense with Audrey and Steven’s consent pursuant to s 67(1)(d) of the Act.

42. I may not make a consent dispense order under s 67(1) unless satisfied that, relevantly, Mary and Michael have established a stable relationship with their authorised carers, being Julie and Matthew, and that the adoption by Julie and Matthew will promote Mary and Michael’s welfare. ^[5]

    5. Subsections 67(1)(d)(i)-(ii) of the Act.

43. Before making a consent dispense order, I must also be satisfied that to do so will be in the best interests of Mary and Michael. ^[6]

    6. Section 67(2) of the Act.

44. Dispensing with the consent of parents to the adoption of their child by proposed adoptive parents is a grave step, not lightly to be taken. ^[7]

    7. See for example, Adoption of RCC and RZA [2015] NSWSC 813 at [17] (Brereton J, as his Honour then was).

45. I am comfortably satisfied about these matters. Mary and Michael have established a stable relationship with Julie and Matthew and their adoption by Julie and Matthew will promote their welfare. The making of a consent dispense order is in the best interests of Mary and Michael.

Is adoption clearly preferable in the best interests of Mary and Michael?

46. 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 the children than any other action that could be taken by law in relation to their care. ^[8]

    8. Section 90(3) of the Act.

47. 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. ^[9] I must achieve the degree of conviction in favour of adoption commensurate with the gravity of the decision. ^[10]

    9. Adoption of RCC and RZA (supra) at [14] (Brereton J, as his Honour then was).

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

48. The benefit of making an adoption order is that it will “achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family”. ^[11]

    11. In re W (A Child) [2017] 1 WLR 889 at [64] (McFarlane LJ; Jackson and Lindblom LJJ agreeing).

49. Further:

“… adoption serves the identity needs of such children – 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.”^[12]

12. Adoption of Taylor-Clay [2019] NSWSC 27 at [58] (Brereton J, as his Honour then was).

50. If I were to make no order, the children would remain as wards of the State until attaining 18 years of age. This would mean that Julie and Matthew would be unable to make significant decisions concerning the children, which decisions would require the approval of the Minister by his delegate.

51. An order allocating parental responsibility for the children to Julie and Matthew would alleviate some of the disadvantages of taking no step, but would remain a temporary order that would expire when the children attained 18 years of age. In the meantime, the Minister and relevant caseworkers would continue to be involved in decision making in relation to the children.

52. Thus, making no order, or making an order for parental responsibility, would lack the certainty and permanency of an adoption order and would also give rise to a risk that the children may experience stigma arising from the fact that they would continue to be “foster children”, rather than living in a family that is recognised at law as their own.

53. It will be hard for Audrey and Steven to read this, but I am satisfied that restoration of the children to their care is not a realistic possibility.

54. The making of an adoption order will reflect the day-to-day reality for the children and provide them with a sense of belonging and stability.

55. Ms Jones recommended the making of an adoption order and expressed the opinions that:

“Currently … [Mary] and [Michael] have two sets of parents, or three fathers for [Mary], however, their legal parent is the Minister. These orders keep [Mary] and [Michael] in the out of home care system and potentially expose them to being stigmatised as children in out of home care … As they will not share [Matthew] and [Julie’s] last name, or even the same surname as each other, they continue to be identified to others as different. This will likely be especially pertinent to [Michael] given he is already experiencing difficulties which differentiate him from other children …

Adoption is the only order available that gives [Michael] and [Mary] security within their placement with [Julie] and [Matthew] beyond the age of 18 years.”

Names of the children

56. It is proposed that the children’s names be changed by preserving the names given to them by their parents, while adding Julie and Matthew’s surname.

57. As Ms Jones has pointed out, this means that the children’s current names will be maintained in their entirety with the addition of Julie and Matthew’s surname as their surname and with their current surnames becoming their middle names.

58. I am satisfied that this is in the children’s best interests.

56. It is also their wish.

Conclusion

60. For those reasons, on 24 November 2023, I made the orders referred to at [9] and [10].

**********

Endnotes

Decision last updated: 24 November 2023