The Adoption of S

[2021] NSWSC 1335

Supreme Court

New South Wales

Medium Neutral Citation:	The Adoption of S [2021] NSWSC 1335
Hearing dates:	7 October 2021
Date of orders:	7 October 2021
Decision date:	07 October 2021
Jurisdiction:	Equity - Adoptions List
Before:	Sackar J
Decision:	Adoption Orders made
Catchwords:	FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — whether the consent of the birth parents ought to be dispensed with — change of name
Legislation Cited:	Adoption Act 2000 (NSW)
Category:	Principal judgment
Parties:	The Secretary, NSW Department of Communities and Justice by his delegate Principal Officer, Adoptions, Barnardos Australia (plaintiff) Birth mother (defendant)
Representation:	Counsel: Ms T Stevens (plaintiff) Solicitors: Crown Solicitor for NSW (plaintiff) Self represented (defendant)
File Number(s):	2020/351742
Publication restriction:	Nothing that will identify the parties

Judgment

1. These proceedings concern an application for the adoption of S. S was born on 18 June 2018 and is currently three years old. On 5 April 2019, he commenced living with the proposed adoptive parents and as such he has been, in a loving and stable home environment. He knows who his mother is, and he refers to both of the proposed adoptive parents slightly differently, but he clearly regards them as his parents.

2. The Adoption Act 2000 (NSW) (“the Act”) requires the court, unsurprisingly, to give priority to the best interests of the child, and that must be the court's paramount consideration. In order for it to be satisfied that it is the appropriate course, that is, adoption as opposed to other options, there are many considerations the court needs to take into account. One of them, of course, is the attitude of the biological parent or parents, another is the eligibility of the adoptive parents and the suitability of those proposed adoptive parents.

3. Since about 2010, the law in New South Wales has provided that same sex couples are eligible to adopt a child. Love and inclusion are not and should not be peculiar or unique, in my view, to any particular religion or faith, or for that matter, sexual orientation. What is of crucial importance for a child is the creation and maintenance of a loving and stable relationship between the parent or parents and that child. Since 2010, therefore, legislation in this State has provided an additional opportunity for a child to be nurtured in a permanent, secure and loving family environment.

4. In those circumstances, it should also come as no surprise that same sex couples are subjected to the same level of scrutiny as are heterosexual couples or, for that matter, a single proposed adoptive parent, whatever their sexual orientation. That is right that that should be the case. There is no doubt, also, that children benefit from a positive relationship with a parent, especially in a supportive, nurturing and loving environment.

5. The biological mother in this case did not initially consent to the adoption, however, in the course of today’s proceedings, I think her views have mellowed - very much to her credit. The biological father has played no role whatsoever in the proceedings and may never play, sadly, any role in S’s life.

6. The birth mother acknowledges, if I may say so, candidly and courageously, that S is in a stable and loving relationship with the proposed adoptive parents, but she was concerned, about possibilities of bullying and some form of discrimination at some point in his life. If that were to happen, S would not sadly be the only child who is the subject to bullying or some form of discrimination.

7. Discrimination takes many forms; sometimes it turns upon the colour of somebody’s skin, sometimes it turns upon their religious orientation, and sometimes, it turns upon someone’s sexual orientation. However, those people who really count in our society do not discriminate on any of those bases at all. They treat everyone as they should, equally.

8. The evidence before the court does suggest that restoration is not a realistic possibility, again, the birth mother accepts that that is the likely outcome. It should be also noted, that when S can be told about what occurred today, or perhaps read for himself what I have had to say, that this has not been a case of the birth mother deserting S or relinquishing him in any sense. Rather she has acknowledged and clearly recognised what is in his best interests. Indeed as modern adoption law mandates openness and transparency, one thing that will never ever change is that she is now, and will always be, S’s biological mother. He will always be aware of that fact.

9. Here in my view adoption is the preferred course in this case and it is to be preferred over any other option. It is clear that S is too young, obviously, to make choices, but I am firmly of the view that adoption is the preferred course. I am satisfied that the proposed adoptive parents are more than suitably qualified. They have established a secure, a permanent, and inclusive environment, which not only includes S but, from what I have observed today and from what I have read in the evidence, will include the birth mother.

10. I am satisfied, therefore, that all of the various formal requirements of the Act have been complied with. It is also my view that the proposed adoption plans are appropriate. It seems to me that at least in the first instance the plans that are proposed are appropriate. It is however also clear that the proposed adoptive parents are inclusive. They will not prevent, I am satisfied S communicating with and acknowledging communications with his biological mother.

11. Open adoption obviously carries with it certain stresses and anxieties, but it is much, much better than the procedure which was in place previously in the State where children could not get access to who their biological parents were, and without some degree of difficulty, could never really discover their life history.

12. That has all changed. S will grow up knowing precisely who he is, precisely who everyone who loves and cares for him is, and he will be under no misapprehension who his siblings are. Formally, however, I will dispense with the consent of the birth mother and the birth father. I also consider that it is often important when an adoption order is made that a change of name assists the creation going forward of a permanent and more stable environment. And this is especially true here, because S will have the names of everyone who really counts in his life included in his name. So, may I therefore make the orders that are proposed in the further amended summons for adoption.

13. I make orders in accordance with 1 and 1A. I make an order in accordance with 2 and 2A. I make an order pursuant to s 23 of the Act for the adoption of S in favour of the adopting parents. And I also make an order that the name of the adopting parents be his surname, and that his given names remain the same. I will make those orders now. Once I put a seal on this document, not only are the adoptive parents the legal parents, they will share parentage with the birth mother. I have made those orders. I have sealed the copy of the orders. The adopting parents, you are now, along with the birth mother, parents. You are the legal parents. Congratulations to both of you, and to you, the birth mother, my warmest best wishes. And I wish you all the very, very best.

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Decision last updated: 21 October 2021