Adoption of L and M (children) (anonymised) [2021] NSWSC 706

Supreme Court New South Wales

Medium Neutral Citation: Adoption of L and M (children) (anonymised) [2021] NSWSC 706 Hearing dates: 14 December 2020, 4 & 10 June 2021 Date of orders: 18 June 2021 Decision date: 18 June 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 –– change of name –– declaration of paternity –– registration of maternal adoption plan –– dispensation of the consent of the birth parents Legislation Cited: Adoption Act 2000 (NSW) Category: Principal judgment Parties: Secretary, New South Wales Department of Communities & Justice (plaintiff) Birth Father (first defendant) Birth Mother (second defendant) Birth Grandmother (third defendant) Representation: Counsel: J Harris (plaintiff)

Solicitors: Crown Solicitor, NSW (plaintiff) Self represented (defendants) File Number(s): 2019/305419 Publication restriction: Nothing which will identify the parties

Judgment 1. By summons dated 30 September 2019, the Secretary, Department of Communities & Justice (the Secretary) makes an application for the adoption of two children, a boy L, born on 29 May 2014 and a girl, M, born on 19 November 2015. 2. Both children have been in the care of the proposed adoptive parent in L's case since 2 October 2014, when he was 4 months old and M since 20 November 2015 when she was one day old. 3. The matter first came before the court on 20 November 2019 and again on 14 December 2020, 7 April, 12 May, 4 June 2021 and finally on 7 and 10 June 2021. 4. The issue which caused some hesitation on the part of the court from the outset was first, the proposed adoptive parent is a single woman who was then living in Penrith and who has two other children (from a different birth family) in her care, K born in 2018, who has been with the proposed adoptive parent since then and P born in 2017 who has been with the proposed adoptive parent since July 2019. I should add that both boys L and K have special needs. 5. When the matter was first before the court the proposed adoptive parent had also from time to time other children for respite care. 6. The birth mother of L and M and the birth grandmother have been present as unrepresented litigants on all occasions when the matter was before the court, and they oppose orders being made for adoption. The birth father has taken no part in the proceedings. 7. Orders are sought for adoption, a declaration as to paternity, dispensation of the consent of the birth parents, a name change for the children and the approval and registration of maternal adoption plans. 8. A good deal of evidence has been provided. Written submissions have been received from the Secretary and the birth mother and grandmother made oral submissions. As a result of the various concerns outlined above the Secretary obtained two reports from psychologist Ms Dianne Starkey dated 10 March 2021 and 2 June 2021. Detailed written submissions have been received from the Secretary on 11 May 2020, 8 December 2020 and 4 June 2021 9. The relevant witnesses for the Secretary support the orders sought as does Ms Starkey. 10. One potentially complicating factor in my mind was precisely what the Secretary proposed for the other two children in the proposed adoptive parent's care. 11. On that point the position would appear to be that there is no current plan to place those children elsewhere. There are at least two reasons for that. First the Secretary is obviously satisfied that they are happy and well cared for. Secondly there is no other placement readily to hand. However the Secretary is not currently able to support orders for adoption and such an application may be some little time off. I should note in passing that the proposed adoptive parent would, herself it seems, seek adoption of the other two children at the appropriate time. 12. In any application for adoption the court is obliged to consider the best interests of the child or children as the paramount concern and that adoption has got to be the clearly preferable course. And while a court need not be persuaded beyond reasonable doubt about the course of adoption over other options being preferable it must entertain a comfortable satisfaction such that adoption should be considered the "obviously, plainly or manifestly" preferable outcome against any other lawful course open to the court. 13. The factors at play in this case are somewhat unique and it has been necessary with the benefit of independent expert opinion to take the time carefully to consider the best interests of the particular children who cannot clearly be considered in a vacuum given the circumstances caused by the Secretary's decisions on placement. 14. In cases such as these it should come as no surprise that a court would need to take some time to consider the position and may very well as here require independent expert opinion. 15. Ms Starkey has as always provided measured, thoughtful and comprehensive reports which not only looked carefully at the children's needs but in depth as to the capacity of the proposed adoptive parent. 16. Notably, the proposed adoptive parent has recently appointed a testamentary guardian and moved to Hazelbrook in the Blue Mountains which is not only much closer to her mother, but also her grandfather and uncles. It is also more importantly closer to the children's schools. 17. In Ms Starkey's assessment, the proposed adoptive parent is an exceptional carer with prior child care experience but who is also providing loving and appropriate care to all of the children concerned. Notwithstanding her own genetic anxiety which is well controlled with medication (corroborated by her general practitioner) she is a highly organised and impressive woman who is providing an excellent home for the children. 18. After much thought and not without some hesitation I am of the view, especially in the light of Ms Starkey's reports, that adoption is the preferable course for M and L. 19. Although the birth mother opposes adoption she both generously and pragmatically accepts that it would not be in the children's best interests to take them away from the proposed adoptive parent with whom she has, it seems a very warm and workable relationship. My earlier concerns have been allayed not only by Ms Starkey's analysis but also my observation of the proposed adoptive parent. She obviously loves each of the children and does have the capacity in my view properly to care for them and when it is needed seek expert medical or other assistance. 20. It is well documented that adoption can and more often than not does provide the best environment to nurture and assist a child to grow, as opposed to long term care. The stability, certainty and permanence which adoption provides is clearly in the children's best interests. Here M and L regard the proposed adoptive parent as their psychological mother as they have been with her since both were very young. 21. Ultimately I am not satisfied any other alternative which would be some sort of long term care order would be more preferable. I am firmly of the view that adoption is the preferable course. I do not consider restoration is a realistic option to the birth mother or to the grandmother in all the circumstances. 22. I am also of the view that the proposed adoptive parent is equipped to fulfil the role as their parent. She has demonstrated a capacity to care for each of the children in all aspects of their lives and I am satisfied will continue to do so. I have taken into account the fact that evidence is that K and P are also well cared for. 23. I am also satisfied all other formal requirements of the Act have been satisfied. 24. It also follows that as I consider adoption the preferable course I consider it appropriate to dispense with the consent of both birth parents. I also consider on the basis of the evidence I should make a declaration as to paternity. 25. I also consider it appropriate that there be a name change as I consider this will enhance the children's sense of belonging and permanence. 26. I have also carefully considered the proposed maternal adoption plan and regard it as entirely appropriate in the circumstances, and I consider it should be registered.