In the adoption of Natalie [2021] NSWSC 254

Supreme Court New South Wales

Medium Neutral Citation: In the adoption of Natalie [2021] NSWSC 254 Hearing dates: On the papers Decision date: 18 March 2021 Jurisdiction: Equity - Adoptions List Before: Kunc J Decision: Adoption order to be made Catchwords: CHILD WELFARE — Adoption — Best interests —Adoption by single parent — Court to be satisfied that adequate testamentary guardianship arrangements have been made Legislation Cited: Adoption Act 2000 (NSW) Guardianship of Infants Act 1916 (NSW) Category: Principal judgment Parties: Secretary, NSW Department of Communities and Justice (Plaintiff) File Number(s): 2020/261851 Publication restriction: No

Judgment

Summary 1. The Court is now satisfied, in every respect, that an order should be made for the adoption of Natalie by Veronica. All names in these reasons are pseudonyms, and without disrespect, the Court will use given names. 2. Save for one matter, this application is of a kind in which the Court would not normally publish reasons. It is, in substance, unopposed. Natalie's birth father is dead and her birth mother, having been served with the adoption application, has declined to take any part (including that she has not given her consent). 3. The matter that has prompted this judgment is the Court's conclusion that in this case, and generally in cases of adoption by a single person, when considering the child's best interests, the Court should have evidence that proper testamentary guardianship arrangements have been, or will be, made by the proposed adoptive parent for the child.

Facts 1. Natalie is 8 years old. Veronica is a well-qualified teacher who is 50 years old. She is currently single and does not have a partner. In her original affidavit in support of her application, Veronica included: "In respect of support networks for [Natalie] if something were to ever happen to me, my preference would be to have my parents to care for [Natalie] as they are my rocks. I also have [Michelle] and [Chris] as a backup option. I have spoken with all of these people about the unlikely event of anything happening to me and they are supportive of helping. I also have my close friends, …, work colleagues and other parents I have met through various social activities who are very supportive of me." 1. Upon reviewing the application, I asked the Adoptions Clerk to raise this requisition: "The arrangements for [Natalie] if [Veronica] died or became seriously incapacitated that are set out in paragraph 34(e) of [Veronica's] affidavit are too vague and uncertain. The Court requires the following: (a) An affidavit from [Veronica] attaching her current will showing who she has appointed as the testamentary guardian or guardians for [Natalie], together with an undertaking by [Veronica] to the Court that she will, until [Natalie] turns 18, ensure that there is always a current appointment of testamentary guardian or guardians for [Natalie]. (b) An affidavit or affidavits from the current testamentary guardian or guardians confirming that they have accepted the appointment as such, and also expressing their willingness to care for [Natalie] should [Veronica] not die but become seriously incapacitated for any period of time, together with a brief statement of their personal health, living and financial circumstances. The Court must be satisfied that the testamentary guardian(s) is/are likely to be able physically and materially to care for [Natalie] until she turns 18 in 2030. Given [Veronica] is 50, this consideration may, for example, exclude [Veronica's] parents as suitable testamentary guardians." 1. In response to that requisition, further evidence has been filed. A further affidavit from Veronica includes: "4. I currently have a Will however have not yet appointed a Testamentary Guardian for [Natalie] as she is in the parental responsibility of the Minister for Families, Communities and Disabilities. 5. In the event that an adoption order is made in respect of [Natalie], I intend to update my Will within one month of the order to appoint my parents, [Jennifer] and [Stephen] … as [Natalie's] Guardians in the event of my death. I intend to appoint my friends, [Michelle] and [Chris] … as alternative Guardians for [Natalie] in the event that my parents are not fit and capable to take on such a responsibility. … 11. I undertake to ensure that my Will remains up to date and there is always a current Guardianship appointment in place for [Natalie]." 1. Veronica's mother, Jennifer, is currently 73 years old and her father, Stephen, is currently 77 years old. The evidence is that they are both currently healthy. Nevertheless, they will be 83 and 87 years old respectively when Natalie turns 18. 2. The application is now also supported by an affidavit from Jennifer confirming that she and Stephen consent to being appointed testamentary guardians and that they understand that such an appointment would involve being responsible for Natalie until she turned 18. Jennifer also indicates their willingness to provide care for Natalie should Veronica become incapacitated for any period of time. Her affidavit goes on to provide brief, but adequate, details about their financial, health and other circumstances, all of which satisfy the Court as to their suitability to care for Natalie in the event of Veronica's temporary or permanent incapacitation or death. 3. There is also a similar affidavit from Michelle, on behalf of herself and Chris. They are 50 and 51 years old respectively. Michelle confirms that she and Chris consent to being appointed alternative testamentary guardians and that they understand that such an appointment would involve being responsible for Natalie until she turned 18. She also indicates their willingness to provide care for Natalie should Veronica become incapacitated for any period of time. Her affidavit goes on to provide brief, but adequate, details about their financial, health and other circumstances, all of which satisfy the Court as to their suitability to care for Natalie in the event of Veronica's temporary or permanent incapacitation or death.