The Adoption of Elijah (a pseudonym) [2022] NSWSC 1753

Supreme Court New South Wales

Medium Neutral Citation: The Adoption of Elijah (a pseudonym) [2022] NSWSC 1753 Hearing dates: 30 November 2022 Date of orders: 5 December 2022 Decision date: 05 December 2022 Jurisdiction: Equity - Adoptions List Before: Stevenson J Decision: Order for adoption to be made Catchwords: ADOPTIONS – adoption by relative – whether adoption order in best interests of the child – whether consent of mother should be dispensed with – whether adoption plan should be approved – whether contact with maternal grandmother adequate – whether such contact should be overseen by proposed adoptive father Legislation Cited: Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: Secretary, New South Wales Department of Communities and Justice (Plaintiff) Alice (a pseudonym) (First Defendant) Mia (a pseudonym) (Second Defendant) Representation: Counsel: Dr M Barnett SC (Plaintiff)

Solicitors: Crown Solicitor's Office (Plaintiff) File Number(s): 2021/347169 Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT 1. The Secretary, New South Wales Department of Communities and Justice ("the Secretary") seeks an order for the adoption of the child, who I will call "Elijah" (not his real name). Elijah was born in August 2011. 2. For convenience, and without intending any disrespect, I will refer to the various persons involved in this application by given names. For reasons of confidentiality, none of these names are the persons' real names. 3. Elijah's mother is Mia. His father is not known. 4. The proposed adoptive parents are Mia's sister, Sophia, and her husband, Ben. 5. Elijah was taken into care on 1 September 2011, when he was less than one month old. 6. On 16 February 2012, the Children's Court of New South Wales made an order that parental responsibility for Elijah be allocated to the Minister for Families, Communities and Disability Services for a period of two years, with joint responsibility for contact then to be shared between the Minister and Elijah's grandmother (and the mother of Mia and Sophia), Alice, and her then partner for a period of 12 months. Thereafter, for a further period of 12 months, the Children's Court made an order that Alice and her then partner have sole parental responsibility, except in relation to the issue of contact with Mia, which was to be supervised by the Minister for a period of two years. 7. Elijah lived with Alice until around June 2014, at which point Elijah was placed temporarily into foster care. 8. Elijah was placed into the care of the proposed adoptive parents, Sophia and Ben, in June 2014. He was then almost three years of age. 9. On 15 May 2015, the Children's Court made final orders allocating parental responsibility for Elijah to the Minister for 12 months, followed by shared parental responsibility between the Minister, Sophia and Ben for a further 12 months, after which Sophia and Ben would have sole parental responsibility. 10. Sophia and Ben have thus had sole parental responsibility for Elijah since 15 May 2017. 11. Whilst Sophia and Ben have sole parental responsibility for Elijah, they are also "authorised carers" of Elijah for the purposes of, relevantly, the provisions in s 67(1)(d) of the Adoption Act 2000 (NSW) ("the Act") dealing with the dispensing of consent. I return to this below. 12. Sophia and Ben have a daughter, Melanie, who is now seven years of age. 13. Mia has not formally given her consent to the proposed adoption but agrees to it and has signed the proposed Maternal Adoption Plan ("the Adoption Plan"). 14. The maternal grandmother, Alice, has been joined as a defendant to the proceedings. She appeared before me on 30 November 2022 to make submissions in opposition to the proposed Adoption Plan. 15. I turn now to that issue.