The Adoption of Sam (a pseudonym)

[2024] NSWSC 1317

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Adoption of Sam (a pseudonym) [2024] NSWSC 1317

Hearing dates:

On the papers

Decision date:

21 October 2024

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Adoption orders made

Catchwords:

CHILD WELFARE – adoption – best interests – where birth parents oppose adoption – where birth mother opposes adoption due to belief of wrongful removal at birth – where birth mother opposes adoption in circumstances where adoptive parents are a same-sex couple – where birth mother opposes adoption due to fear of birth family contact not being facilitated post-adoption – whether adoption order would be in best interests of the child

Legislation Cited:

Adoption Act 2000 (NSW)

Adoption Amendment (Same Sex Couples) Act 2010 (NSW)

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

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Adoption of BS (No 3) [2013] NSWSC 2033

Adoption of RCC and RZA [2015] NSWSC 813

Adoption of Taylor-Clay [2019] NSWSC 27

Director-General, NSW Department of Family and Community Services Re JS [2013] NSWSC 306

Re ASK and the Adoption Act 2000 [2017] NSWSC 521

Re: William and Jane [2010] NSWSC 1435

Secretary, New South Wales Department of Families and Community Services by his delegate, Principal Officer Barnardos Australia v HR & CD [2016] NSWSC 1926

The Adoption of S [2021] NSWSC 1335

Category:

Principal judgment

Parties:

Secretary, New South Wales Department of Communities and Justice by his delegate, Principal Officer, Adoptions, Barnardos Australia (Plaintiff)
“Ellen” (a pseudonym) (First Defendant)
“Michael” (a pseudonym) (Second Defendant)

Representation:

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

File Number(s):

2023/257793

Publication restriction:

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

JUDGMENT

1. These proceedings concern the adoption of a happy, animated boy who is 4 years of age who I will call “Sam” (not his real name).

2. By Amended Summons filed 28 March 2024, the Secretary of the New South Wales Department of Communities and Justice by his delegate, the Principal Officer, Adoptions, Barnardos Australia, seeks the following orders:

1. That pursuant to Adoption Act 2000 (NSW) (“Adoption Act”), s 67(1)(d), the Court dispense with the requirement for the consent of Sam’s birth parents;

2. Orders pursuant to Adoption Act, s 23, for the adoption of Sam in favour of the adoptive parents, who I will call “Richard” and “Gerard” (not their real names);

3. That pursuant to Adoption Act, ss 50(1) and (3), the Adoption Plan be registered;

4. That pursuant to Adoption Act , s 101(1), the Court approves a surname and given names for Sam.

3. Sam’s mother, who I will call “Ellen” (not her real name), filed a Notice of Appearance on 29 August 2023 and was joined as the first defendant in these proceedings on 6 September 2023.

4. Sam’s father, who I will call “Michael” (not his real name), was joined as the second defendant in these proceedings on 6 September 2023.

5. The parties attended a preliminary hearing for the application in March 2024. The parties have now agreed that I may consider my decision on the papers. I am grateful to Ms Olivier, for the Secretary, for her submissions, and to Ellen for the material she provided.

The circumstances

6. In October 2021, the Children’s Court made Final Orders providing for Sam to be placed under the parental responsibility of the Minister for Families and Communities until he attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). Those orders remain in effect.

7. One month later, Sam was placed with Richard and Gerard, when he was 1 year of age. He has lived with Richard and Gerard continuously since that time.

8. In August 2023, the Secretary, by his delegate Barnardos, commenced these proceedings seeking adoption orders for Sam in favour of Richard and Gerard.

9. In March 2024, the parties attended a preliminary hearing before me. On that occasion, Ellen, Richard, and Gerard were each given an opportunity to speak to me and to each other about what they believed to be the best course forward for Sam.

Formal requirements for adoption

10. The formal requirements of the Adoption Act have been satisfied, namely:

1. notice of the application for adoption orders has been served on Ellen and Michael; ^[1]

   1. Adoption Act, ss 72(1), 88(1)(a).

2. Sam was present in New South Wales when the proceedings were commenced; ^[2]

3. Richard and Gerard were resident and domiciled in New South Wales when the proceedings were commenced; ^[3]

4. Richard and Gerard are of good repute and are fit and proper persons to fulfil the responsibility of parents; ^[4]

5. Richard and Gerard have been selected in accordance with the Adoption Act; ^[5]

6. Richard and Gerard satisfy the age and length of relationship requirements. ^[6]

   2. Adoption Act, s 23(2)(a).

   3. Adoption Act, s 28(1)(a).

   4. Adoption Act, s 28(1)(b).

   5. Adoption Act, s 90(1)(c).

   6. Adoption Act, s 28(3)-(4).

Whether adoption is in the best interests of the child

11. Adoption is to be regarded as a service for the child,^[7] and not as a right of the adults with whom they are placed. ^[8]

    7. Adoption Act, s 8(1)(b).

    8. Adoption Act, s 8(1)(c).

12. The paramount consideration in an application for adoption is the best interests of the child the subject of the application. I must not make an adoption order unless satisfied that the best interests of Sam will be promoted by the adoption and that, as far as practicable and having regard to his age and understanding, Sam’s wishes and feelings have been ascertained and due consideration given to them. ^[9] I must have regard to the best interests of Sam, both in childhood and later life. ^[10]

    9. Adoption Act, ss 8(1)(a), 8(2)(a), 90(1)(a).

    10. Adoption Act, s 8(1)(a).

13. When considering Sam’s best interests, I have had regard to the matters set forth in s 8(2) of the Adoption Act, relevantly:

1. Sam’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics that I consider relevant,^[11]

2. Sam’s physical, emotional and educational needs, including his sense of personal, family and cultural identity,^[12]

3. Richard’s and Gerard’s attitudes to the children and to the responsibilities of parenthood,^[13]

4. the nature of the relationship that Sam has with each of Richard and Gerard,^[14]

5. the suitability and capacity of each of Richard and Gerard to provide for Sam’s needs, including his emotional and intellectual needs. ^[15]

   11. Adoption Act, s 8(2)(b).

   12. Adoption Act, s 8(2)(c).

   13. Adoption Act, s 8(2)(g).

   14. Adoption Act, s 8(2)(h).

   15. Adoption Act, s 8(2)(i).

14. I am comfortably satisfied that an order for adoption would be in Sam’s best interests.

15. I have been greatly assisted in hearing and ascertaining the voice of Sam, that is his wishes and feelings about the adoption, through the court report prepared pursuant to s 91 of the Adoption Act by Ms Murray filed 9 August 2023.

16. Sam is too young to provide his consent to his adoption. Nevertheless, I am satisfied that Sam has an age-appropriate understanding of adoption at 4 years of age. Sam refers to Richard and Gerard as “Daddy” and “Papa”. He has stated that he wants to “stay with Daddy and Papa”, and is comforted when reassured that he will remain residing with Richard and Gerard. I am confident that Richard and Gerard will help Sam understand his birth family history and what open adoption means through Life Story work as he grows older.

17. Richard and Gerard have demonstrated their ability to provide a high level of care to Sam and meet his physical, emotional and educational needs. Richard and Gerard provide a stable, loving, and nurturing home environment to Sam. As health professionals themselves, they have capably managed Sam’s physical health needs, including Sam’s expressive language development and stammer. Richard and Gerard work with Sam’s daycare teachers to ensure that Sam is learning to develop positive relationships with other children. They will also help Sam to remain connected with his Italian heritage, from his paternal family, and his German heritage, from his maternal family, through music, books, food, travel, and contact visits with Sam’s birth family.

18. Richard and Gerard have demonstrated their positive attitude to the responsibilities of parenthood and commitment to Sam. At the preliminary hearing, Richard told me:

“We love [Sam] with all of our - all of our being. He’s a little bundle of joy and I think [Ellen] should be really proud of - of that. He is an amazing little human and his current situation provides him with safety and stability and a sense of connection.”

19. As for the relationships between Sam, Richard and Gerard, it is clear that Sam shares a strong connection with Richard and Gerard. Sam seeks out Richard and Gerard when he is in need of comfort or reassurance. It is clear that Sam is thriving in the care of Richard and Gerard.

20. I have no doubt as to the suitability and capacity of Richard and Gerard to provide for Sam’s needs. They have cared for Sam since 2021, and have shown their capacity to provide a secure, loving and nurturing home for Sam.

The parents

21. When considering Sam’s best interests, I must have regard to the relationship that Ellen and Michael have with Sam and any wishes they, as Sam’s birth parents, have expressed about the adoption. ^[16]

    16. Adoption Act, s 8(2)(e)-(f).

22. Sam has a positive relationship with Ellen. He calls her “Mummy” or “Mummy Ellen”. Sam has family visits with Ellen and members of the maternal family a minimum of six times per year. These visits tend to be positive. Ellen has previously stated that she has found it difficult to engage with Sam and develop a bond with him.

23. Sam has had more sporadic contact with Michael, due in part to Michael being incarcerated on various occasions since Sam was born. When Michael does attend contact visits with Sam, they tend to be positive. Sam calls Michael “Daddy Michael”.

24. Both Ellen and Michael oppose the adoption of Sam.

Ellen’s opposition to the adoption

25. First, Ellen opposes an adoption order being made because she wishes to have Sam restored to her care. She has consistently stated her belief that Sam was wrongfully removed from her care at birth, and that she “should have been given the right to prove” she could parent Sam.

26. At the preliminary hearing before me in March 2024, I was able to hear directly from Ellen about her wishes for Sam. Ellen told me:

“I don’t believe that the adoption will go through because I was never given a chance by a DCJ. You know - sorry, I’m sorry, I’m just trying to - I’m his mum. I was never given a chance by DCJ.”

27. Ellen has deposed in her two affidavits to her experiences while pregnant with Sam and following Sam’s birth. Those experiences are also set out in the material provided in support of Ellen by her parents and by her support workers. It is clear that Ellen has endured many hardships in her life due to her mental health, complex trauma, and circumstances. It is not necessary that I set out the details of those matters here.

28. Whilst I acknowledge the hardships that Ellen has faced, my focus must now be on the present and future interests and welfare of Sam. [17]

    17. Adoption of BS (No 3) [2013] NSWSC 2033 at [33]-[34] (Brereton J).

29. Second, Ellen has stated her concerns that, if an adoption order is made, “[Sam will be] raised without a mum [in] his day to day life”. Ellen has provided a letter prepared by her father, Sam’s maternal grandfather, which appears to indicate the maternal family’s position that Sam’s placement with a same-sex couple is “immoral” and “inappropriate”.

30. The Adoption Act does not treat adoption by a same-sex couple any differently than adoption by an opposite-sex couple. [18]

    18. See Adoption Amendment (Same Sex Couples) Act 2010 (NSW).

31. As I have said, the Court may have regard to the wishes of the birth parents in making a decision about the adoption of a child, but the Court’s paramount focus must be on the best interests of the child. What is of crucial importance for a child is the creation and maintenance of a loving and stable relationship between themselves and their parents. [19] The Court’s concern is to ensure that adoptive parents, regardless of sexual orientation, are suitable in that sense. [20]

    19. The Adoption of S [2021] NSWSC 1335 at [3]-[4] (Sackar J).

    20. Re: William and Jane [2010] NSWSC 1435 (Palmer J), adopted by Sackar J in Secretary, New South Wales Department of Families and Community Services by his delegate, Principal Officer Barnardos Australia v HR & CD [2016] NSWSC 1926 at [55].

32. I am satisfied that Richard and Gerard have been properly assessed and selected in accordance with the Adoption Act. They have clearly demonstrated their capacity to care for Sam and to provide him with a stable, supportive and loving environment. It is evident that Richard and Gerard have the benefit of an extended family, including Gerard’s sister, who are close with Sam and can support Sam as he grows up.

33. At the preliminary hearing, Richard and I had this exchange:

HIS HONOUR: I know that same-sex adoption is a common thing; it’s very welcome from the Court’s point of view. There’s been many, many circumstances where that has happened, and it works very well so [there is no problem] definitely at all from the Court’s point of view. But I see that [Ellen] has said that she’s worried that [Sam] won’t “have a mother”. I’m sure she’d like to hear from you what your response to that is. …

[Richard]: Yes. I think a few thoughts about that, I suppose. I think, potentially, that’s a positive thing for him because he won’t have that competing sense of who his mum is. His mum is [Ellen], and that’s - that’s the way it is, basically.

34. I hope that Ellen is encouraged by Richard’s statement. Ellen will always be Sam’s mother: nothing can take away the biological link that exists, and the emotional and psychological ties, between Sam and Ellen. [21] That connection will be sustained by future contact between Sam and Ellen.

    21. Re ASK and the Adoption Act 2000 [2017] NSWSC 521 at [112] (Hallen J).

35. Third, as I have said above, Ellen has stated that she does not feel Sam sees his birth family frequently enough to develop a relationship with them, and she finds it hard from time to time to engage with Sam and develop a bond with him. She is concerned that if an adoption order is made in respect of Sam, that Richard and Gerard will not facilitate contact with her or her family. I will discuss this below in reference to the adoption plans.

36. I am grateful to Ellen for the dignity with which she expressed her wishes and feelings at the preliminary hearing and in the material before me.

Michael’s opposition to the adoption

37. Michael opposes the adoption order being made, and has previously stated that he intended to contest these proceedings. He has not engaged in these proceedings in this Court, so I have not been able to directly hear from him about his wishes for Sam.

Whether adoption is clearly preferable in the best interests of the child

38. When considering Sam’s best interests, I also must be satisfied that the making of an order for adoption is “clearly preferable” in the best interests of Sam than any other action that could be taken by law in relation to his care. ^[22] The making of an adoption order must be obviously, plainly or manifestly preferable to any other action that could be taken by law. ^[23]

    22. Adoption Act, s 90(3).

    23. Adoption of RCC and RZA [2015] NSWSC 813 at [14] (Brereton J, as the Commissioner then was).

39. I am not satisfied that restoration of the children to either Ellen or Michael, or an order allocating parental responsibility to one or both of Ellen or Michael, is a realistic prospect, nor in the best interests of Sam. ^[24] The Children’s Court has found, on 29 October 2021, that there is no realistic possibility of restoration of Sam to either of Ellen or Michael. While much of the material provided by Ellen was directed to her submission that Sam should be restored to her, neither she nor Michael has made a formal application in the Children’s Court for the restoration of Sam.

    24. I must consider restoration as an alternative to adoption: see Adoption of Taylor-Clay [2019] NSWSC 27 at [66] (Brereton J, as the Commissioner then was); Adoption of RCC and RZA (supra) at [69]-[72] (Brereton J, as the Commissioner then was).

40. If I were to make no order and maintain the status quo, Sam would remain in the care of Richard and Gerard, but parental responsibility would remain with the Minister. In those circumstances, Richard and Gerard would be unable to make significant decisions regarding Sam without approval of the Minister’s delegate, Barnardos.

41. If I were to make orders for parental responsibility for Sam to Richard and Gerard, that would alleviate some of the disadvantages of taking no step, but this would be a temporary order that would expire when Sam attains 18 years of age.

42. I am satisfied that the making of adoption orders is clearly preferable in the best interests of Sam. Adoption will provide Sam with certainty, stability, and security. It will enable Sam to achieve a sense of belonging in the adoptive family, to a degree that no other lawful action could achieve. At the preliminary hearing, Richard and I had this exchange:

“HIS HONOUR: … [W]hat difference do you think it would make to him in the short and, more importantly, in the long term were there to be an order made later this year that he’d be adopted by you?

[Richard]: I - I guess we’re future-focused, I suppose and, for the current time, it doesn’t impact him because he doesn’t have that understanding of - of the way that the world works in that regard. But we assume that there will be, probably quite soon, questions around … his story, and I think that having that adoption formalised would allow us to communicate that to him in a really honest way, but in a way that allayed any fears for him about where he sits in the world and where his long-term is. I think, having the certainty of that adoption and knowing that that is for life for him is - is something that will be really important to him going forward.”

43. Indeed, adoption will bring Sam’s legal status into conformity with reality, and perfect his sense of permanent belonging in the family with which he identifies as his own, being Richard and Gerard. ^[25]

    25. Adoption of Taylor-Clay (supra) at [58] (Brereton J, as the Commissioner then was).

Consent to the adoption

44. Before making an adoption order, I must deal with the consent requirements under the Adoption Act. As the children’s birth parents, Ellen’s and Michael’s consent would be required to the proposed adoption of Sam unless, relevantly, consent is dispensed with. ^[26] Ellen and Michael did not consent to the adoption. Accordingly, the Secretary seeks an order to dispense with the parents’ consent pursuant to s 67(1)(d) of the Adoption Act.

    26. Adoption Act, ss 52, 54.

45. I may not make a consent dispense order unless satisfied that, relevantly, Sam has established a stable relationship with Richard and Gerard, and that the adoption by Richard and Gerard will promote Sam’s welfare. ^[27] I must also be satisfied that doing so will be in the best interests of Sam. ^[28]

    27. Adoption Act, ss 67(1)(d)(i)-(ii).

    28. Adoption Act, s 67(2).

46. Dispensing with the consent of parents to the adoption of their child by proposed adoptive parents is a grave step, not to be taken lightly. ^[29]

    29. See, for example, Adoption of RCC and RZA (supra) at [17] (Brereton J, as the Commissioner then was).

47. Nonetheless, I am comfortably satisfied that I should dispense with the requirements for Ellen’s and Michael’s consent. It is clear that Sam has established a strong and secure attachment to Richard and Gerard. His relationship with Richard and Gerard is loving and supportive and I have no doubt the adoption will promote his welfare. The making of the consent dispense orders is in the best interests of Sam.

The Adoption Plans

48. The Secretary has prepared adoption plans pursuant to s 46 of the Adoption Act that include provisions for the means and nature of contact between Sam and his birth family. Despite Ellen and Michael not consenting to the adoption of Sam, the Secretary has given them, as far as possible, the opportunity to participate in the development of, and agree to, adoption plans. ^[30]

    30. Adoption Act, s 46(2).

49. The question before me is whether those proposed adoption plans are in the children’s best interests and proper in the circumstances, and, if so, whether those adoption plans should be approved and registered.

50. There is a Maternal Adoption Plan which relates to Ellen, the maternal grandparents, and the maternal aunt and great aunt. The plan provides for Sam to have face-to-face family visits with Ellen a minimum of six times per year, for up to two hours. The maternal grandparents may attend four of those face-to-face visits with Ellen. Additional visits, and contact with the maternal aunt and maternal great aunt, may be arranged between Ellen and Richard and Gerard subject to Sam’s needs and wishes.

51. There is a Paternal Adoption Plan which relates to Michael and the paternal grandmother. The plan provides for Sam to have face-to-face family visits with Michael a minimum of six times per year, for up to two hours. The parental grandmother may attend four of those face-to-face visits with Michael.

52. As I have said above, Ellen has stated that she does not feel Sam sees his birth family frequently enough to develop a relationship with them, and she finds it hard from time to time to engage with Sam and develop a bond with him.

53. Having regard to Sam’s family relationships,[31] and his emotional needs and sense of personal, family and cultural identity,[32] I am satisfied that the proposed Adoption Plans are in Sam’s best interests and proper in the circumstances. The frequency of contact in the adoptions plans is a minimum level, so Ellen, Richard, and Gerard may arrange additional visits subject to Sam’s needs and wishes.

    31. Adoption Act, ss 8(2)(f)-(h).

    32. Adoption Act, s 8(2)(c).

54. At the preliminary hearing, Gerard told me:

“We, I think, really genuinely see this as a shared journey with [Ellen], that for [Sam]’s sake, and for his identity, and for his - for him living a settled, secure, and peaceful life, he needs to know [Ellen], and she needs to be a big part of his life, and I see it as our shared responsibility between the three of us and with the extended family in being village for [Sam], that we’re all working on this together. It looks different, but this is what I believe is in the best interests of [Sam]. But I absolutely see it as a partnership that we need to work with [Ellen], and we would love [Ellen] to work with us in providing that for [Sam] for as long as he needs.

55. Richard and Gerard have diligently worked to independently facilitate family visits between Sam and his birth family up to now. I have no doubt they will continue to do so.

56. If an adoption plan is registered, it has the effect, on the making of an adoption order, as if the adoption plan were part of the order. [33] Once it is registered, the parties to the adoption order can seek to enforce it as an order of the Court. A party to an adoption plan, that is someone who has signed it, can also apply to the Court for a review of an adoption plan. [34]

    33. Adoption Act, s 50(4).

    34. Adoption Act, s 51(1).

57. Ellen and Michael did not sign the adoption plans. Accordingly, they cannot apply to the Court for a review of the adoption plans in the future. However, they may seek to enforce the adoption plans as “person[s] having the benefit of a deemed order”. [35]

    35. See Director-General, NSW Department of Family and Community Services Re JS [2013] NSWSC 306 at [12] (Brereton J, as the Commissioner then was); see also Uniform Civil Procedure Rules 2005 (NSW), r 39.49(1): “If, in any proceedings, a person who is not a party obtains an order, or an order is made in favour of a person who is not a party, that person may enforce the order as if that person were a party”.

Proposed name change

58. It is proposed that, on the making of the adoption orders, Sam would have the proposed adoptive parents’ surname as his surname and, for his given names, his current two given names with the addition of his current surname.

59. Before changing the names of a child, I must consider any wishes expressed by the child and any factors relevant to the weight that should be given to those wishes. ^[36] Sam has not expressed any clear wishes about his name.

    36. Adoption Act, s 101(2).

60. I am satisfied that the proposed name change is in Sam’s best interest. The proposed surname will reflect Sam’s membership of the adoptive family, and enhance his sense of belonging and stability with Richard and Gerard. He will retain his birth given names, and add his birth surname, that is Ellen’s surname, as a middle name. This will preserve and honour Sam’s ongoing connection to his birth family.

Conclusion

61. Adoption serves the identity needs of the child in question, in circumstances where they are emotionally, psychologically and as a matter of fact already members of the proposed adoptive family, 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. ^[37]

    37. Adoption of Taylor-Clay (supra) at [58] (Brereton J, as the Commissioner then was).

62. I have no doubt that it is in the best interest of Sam to make the adoption orders sought.

63. An Integrated Birth Certificate will be created for Sam which will include details of Ellen and Michael. The certificate will form an important part of Sam’s life story.

**********

Endnotes

Amendments

03 March 2025 - Grammatical error corrected at [52].

Decision last updated: 03 March 2025