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. The proposed Adoption Plan 1. The Adoption Plan was the subject of a mediation attended by Sophia, Ben, Mia and Alice. 2. It provides that, relevantly, Elijah is to have face-to-face contact with Mia (and her two year old son, Louis) at least eight times a year and that, in addition, Mia is able to attend at least four of the visits to take place with Alice. 3. The Adoption Plan makes the following provision for Elijah's contact with Alice: "Sophia and Ben are supportive of face-to-face contact occurring between Elijah and Alice at least eight (8) times per year; one being close to Elijah's birthday and one being close to Christmas, where possible. Ben will oversee the visits to support Elijah until such a time as Elijah is an adult and can manage and decide visitation arrangements independently. Alice has expressed in the course of preparing this adoption plan that she intends to seek extra time with Elijah at Easter, Elijah's birthday and Christmas. Alice and Ben have each other's contact details and are able to contact one another directly to arrange visits for Elijah. The specific details of contact such as timeframes, venue and which extended family members may also attend, will be negotiated directly between Ben and Alice. This includes where the contact will be exercised jointly with Mia. Sophia and Ben agree to provide Alice with a visit schedule every 3 months." 1. Alice expressed concern with two aspects of the Adoption Plan. The first was the frequency of her contact with Elijah. The second was the proposal that Ben oversee their contact. Frequency of contact 1. The Adoption Plan provides for face-to-face contact between Elijah and Alice "at least" eight times per year. 2. There is also to be telephone or video contact. 3. Thus, in her affidavit dated 9 May 2022, Sophia said: "Phone calls with Mia and Alice usually occur once every fortnight or month. It is totally flexible and this fits around everyday life. Sometimes calls occur more often, or sometimes less often, depending on what is occurring in everyone's lives." 1. As I have said, there has been a mediation concerning, amongst other things, the nature of Alice's contact with Elijah. Thus, in his affidavit dated 16 September 2022, Ben said: "On 24 August 2022, I attended a mediation along with Sophia, Mia, Alice and representatives of the Department of Communities and Justice, facilitated by Legal Aid NSW, to discuss contact arrangements. As a result of this mediation, some changes to the Maternal Adoption Plan were agreed by myself and Sophia." 1. As Dr Barnett SC, who appeared for the Secretary, submitted, in cases like this, it is necessary to balance a number of competing and not always reconcilable considerations when considering what formal arrangement should be settled upon in an adoption plan. This is particularly so in a busy household including young children such as Elijah and Melanie. 2. Ben gave this evidence in that regard: "21. I will continue to support Elijah's contact with his birth family as outlined in the revised Maternal Adoption Plan. 22. It is important to me and my family – including Elijah – that contact arrangements can be flexible, and that any contact schedule takes into account that we are a busy family participating in many activities on the weekends, some of which cannot be planned for months in advance. 23. For example, a typical weekend for our family during school term might include any or all of: a) A soccer game for Elijah; b) Mathematics tutoring for Elijah; c) Dance class and competitions for Melanie; d) Family time with Sophia's extended maternal family, or my extended family; e) A birthday party for a school friend of Elijah or Melanie. 24. As the proprietor of my own business, I also work on Saturdays until 2pm, leaving Sophia to manage much of the above, and leaving Sundays as the most suitable day for me to facilitate contact between Elijah and his birth family." 1. As I have said, the Adoption Plan proposes a total of, at least, eight contact visits a year between Elijah and each Mia and Alice. Alice submitted that this involved, in effect, her having contact with Elijah once every six weeks or so and that her contact with Elijah should be at least monthly. I have no reason to doubt that, as Alice said to me, she loves Elijah and wishes to have regular contact with him so that a loving and appropriate grandmotherly relationship can continue to develop between them. However, I am unable to conclude that the frequency of contact proposed in the Adoption Plan is, at least for the moment, less than is necessary to promote Elijah's best interests in relation to his relationship with Alice. Oversight by Ben 1. There have been incidents, some years ago now, where Alice's mental health has been challenged. 2. These incidents played a role in the removal of Elijah from her care and his ultimate placement with Sophia and Ben. 3. Contact between Elijah and Alice has been overseen by Ben. 4. Thus, in his affidavit of 9 May 2022, Ben said: "42. Contact with Mia and Alice is overseen by me. This is to ensure contact is positive for everyone involved. Sophia does not attend visits with Alice. Sophia and I have explained to Elijah and Melanie why she does not attend visits with Nonna [Alice]. We have explained that it is important for Sophia to have boundaries; that Sophia is able to have healthy relationships whilst also having boundaries if she needs to. 43. I have observed that Elijah is polite towards Alice and Mia during visits and engages in their conversations. Elijah also enjoys spending time with his half-brother, Louis. Elijah understands Louis is biologically his half-brother, this will remain the same status if an adoption order is made. Elijah always greets Louis with a kiss and cuddle." 1. In his affidavit of 16 September 2022, Ben said: "10. I see my role at family contact as facilitating and supporting Elijah to engage with his family. I do not proactively involve myself in conversations with family members beyond polite small talk, but stay in the background, so that Elijah can independently interact with his family as he chooses, while knowing that I am there if he is concerned about something and wants to seek my support. Elijah and I have discussed that I am [there] to support him at contact and to ensure it is enjoyable for him. 11. I find contact for Elijah relating to his family members (Mia, Alice and Louis) to be positive. Elijah leaves contact generally feeling happy. He has enjoyed getting acquainted with his young half brother, Louis. 12. I also think it is important that I am present during visits, to ensure that Elijah is not probed about inappropriate topics and can be supported to change subject if the conversation is making him feel uncomfortable." 1. As to Ben's latter point, Alice did inform me that she wished to speak to Elijah, in Ben's absence, about the level of contact Elijah may wish to have with her; a topic which Sophia and Ben may well see as being inappropriate. 2. In his most recent affidavit, made on 16 November 2022, Ben said: "10. Generally, I email Alice with proposed dates for visits three months in advance. The location and exact time of the visit are usually confirmed the week before, once I know more about Elijah's other commitments and weather predictions for the weekend in question. 11. I understand that in the past, Alice has expressed that she would like to be part of Elijah's extracurricular activities, as a way of building a greater connection with him. I have endeavoured to facilitate that by inviting Alice to attend Elijah's sporting activities." 1. In relation to overnight visits, Ben deposed: "At this stage, I do not feel that overnight visits with Alice are in Elijah's best interests. Elijah has had quite a challenging history, in terms of his placement, and he at times still recalls the period when he lived with Alice and his great grandmother … He has made comments in the past that he does not feel comfortable or safe being left alone with Alice, particularly relating to overnight visits." 1. This evidence persuades me that the contact proposed in the Adoption Plan between Elijah and Alice is, at least for the moment, appropriate, and acts to promote Elijah's best interests. 2. In oral submissions, Dr Barnett drew attention to information produced on subpoena by the Commissioner of Police which shows a number of interactions between Alice and the police, most recently relating to an Apprehended Domestic Violence Order made in relation to Mia's former partner, the father of Louis. Dr Barnett submitted that these matters, the details of which it is unnecessary for me to recite, show that Alice is associated with an "unstable environment" and that there had been a "history of volatility". I do not see that these matters add significantly to the factors which, in my opinion, emerge from the balanced evidence given by Ben to explain why he considers that his oversight is, at least for the moment, necessary. 3. I am satisfied that I should approve the Adoption Plan in the form proposed. Alice is not a party to the Adoption Plan 1. Alice has not signed the Adoption Plan. 2. However, as I propose to approve the Adoption Plan, and because it will then be registered, Alice may care to give consideration to becoming a party to the Adoption Plan. 3. The Adoption Plan records that Alice intends to seek extra time with Elijah at Easter, on Elijah's birthday and at Christmas and, as Dr Barnett pointed out in a supplementary note, thus makes clear Alice's wish for further time with Elijah than is provided for, at a minimum, within the Adoption Plan. 4. By reason of s 50(4) of the Act, once an adoption plan is registered it has effect, on the making of an adoption order, as if it were a part of that order. 5. Section 51(1) of the Act provides that the court can review an adoption plan, but only on the application of one or more parties to the plan. If Alice does not sign the Adoption Plan, she could not be an applicant to review the Adoption Plan. If Alice does sign the Adoption Plan, it may well be that she thereby becomes a party to it and thus entitled to seek a review of it. That is a matter about which Alice will need to take her own advice. 6. Otherwise, if Alice is not a party to the Adoption Plan, her only ability to seek to vary it would be to move under the Uniform Civil Procedure Rules 2005 (NSW). The ability to vary an order of the Court under the relevant provisions of that Act is limited. Dispensing with the consent of Sophia and Ben 1. Sophia and Ben are "relatives" of Elijah for the purposes of the "Dictionary" in the Act. 2. Section 29 of the Act provides that a court must not make an adoption order in favour of a relative unless that relative has given "specific consent" to the adoption. [1] 3. Sophia and Ben have not formally given their consent to this adoption although, as they are the applicants for adoption, they plainly do consent to it. 4. The Secretary submits, and I accept, that it is not appropriate in this case to require Sophia and Ben to take the formal steps required by the Act [2] for the giving of "specific consent". The provisions in the Act relating to such consent are aimed at ensuring that a person who is relinquishing the child for adoption understands the nature and effect of the adoption process. I agree with the Secretary's submission that compliance with these provisions is not necessary in this case. 5. Under s 67 of the Act, I may dispense with Sophia's and Ben's consent to the adoption if they are "authorised carers" and the requirements of s 67 are otherwise satisfied (which they plainly are, as Elijah has established a stable relationship with Sophia and Ben and the adoption will promote his welfare). 6. I am satisfied, for the reasons outlined by Dr Barnett in her careful submissions, that Sophia and Ben are "authorised carers" of Elijah. An "authorised carer" under the Act is a person who, relevantly, has care and responsibility for a child under an out-of-home arrangement made under the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act"). Elijah was placed with Sophia and Ben under the Care Act and they clearly have care and responsibility for him. As to whether the arrangements in question constitute "out-of-home" care under the Care Act, such care means, by virtue of s 135 of the Care Act, residential care and control of a child provided by a person other than the child's parents and at a place outside of the usual home of the child; but not care provided by a relative unless it is care in respect of which the Secretary is providing support under s 153 of the Care Act. 7. For the reasons outlined in Dr Barnett's submissions, I am satisfied that the Secretary is providing such support. 8. I will therefore make an order dispensing with the consent of Sophia and Ben to this adoption. Dispensing with the consent of Mia 1. Mia has not, formally, consented to Elijah's adoption by Sophia and Ben. However, Mia no longer actively contests the proceedings and, as I have said, has signed the Adoption Plan. 2. Under s 67(1)(d)(i) of the Act, and because Sophia and Ben are "authorised carers" of Elijah, I may dispense with Mia's consent if satisfied that Elijah has established a stable relationship with Sophia and Ben and the adoption will promote his welfare. 3. I have no doubt that these requirements are satisfied here. 4. As Dr Barnett submitted on behalf of the Secretary: "… Elijah has established a stable and loving relationship with the proposed adoptive parents. He has been in the continuous care of the proposed adoptive parents since he was two years old. Elijah has thrived in the care of the proposed adoptive parents and presents as comfortable and secure with them. Ms Bonnici [3] reported that Elijah refers to both proposed adoptive parents as 'Mum' and 'Dad'. … [A]n adoption order will promote Elijah's welfare as it will provide certainty for Elijah. It will bring his legal status in line with his lived experience and cement the relationship between Elijah and his carers, changing the relationship at law from maternal aunt and uncle by marriage, to his parents. Both proposed adoptive parents indicated they love Elijah and see him as their son. It will, both in the short and long term, provide Elijah with a sense of security and Ms Bonnici is of the opinion that the benefits for Elijah far outweigh the somewhat complex familial relationships that will be made by an adoption order. An adoption order would also bring Elijah's legal status in line with his lived experience and cement the relationship between Elijah and the proposed adoptive parents' biological daughter, Melanie. Ms Bonnici reports that Elijah views Melanie as his sister. It is contended that given the open nature of adoption, the ability of the proposed adoptive parents to explain the different biological and legal family relationships to Elijah, and the support of many members of Elijah's extended family to the adoption the concerns regarding 'intra-family' adoption do not loom large in this case. Elijah, for example, is aware that he has a tummy mummy and refers to his biological mother as such. Thus, the view that the biological titles of sibling, grandmother and mother will continue to be maintained by the proposed adoptive parents, supports the contention that this is not a situation where the child will suffer 'significant psychological and emotional harm arising from generational confusion, amounting to a crisis of identity, if his or her true parentage is concealed and then discovered by the child later in life' as this is an open adoption where Elijah will grow up understanding his biological relationships. Likewise, the adoption plan makes it clear that the birth mother will not be cut from the child's life. It is contended that what Elijah will receive with an adoption order is to have, at law, parents, who he already calls 'Mum' and 'Dad'. Overwhelmingly, the permanency that adoption brings to Elijah appears to be in his best interest." (Footnotes omitted.) Whether Elijah's best interests will be promoted by the adoption 1. For the reasons set out in the preceding paragraph, there is no doubt that the making of an adoption order will be in Elijah's best interests. 2. Elijah is thriving in the care of Sophia and Ben, including at school, where he is achieving outstanding results of which he should be proud. Proposed name 1. Sophia and Ben propose that Elijah's name be Elijah [redacted]. 2. This preserves Elijah's current given names and incorporates Sophia's and Ben's surname as part of his name. This is both appropriate and, the evidence reveals, in accordance with Elijah's wishes. Conclusion 1. As I am satisfied that the formalities of the Act are otherwise satisfied, I propose to make the orders sought by the Secretary. 2. Those orders are: 1. that pursuant to Adoption Act 2000 (NSW), s 67(1)(d), the Court dispense with the consent of the child's birth mother, Mia; 2. that pursuant to Adoption Act 2000 (NSW), ss 67(1)(a) and (d), the Court dispense with the consent of the child's birth father; 3. that pursuant to Adoption Act 2000 (NSW), s 88(4), the Court dispense with the giving of notice of the application to the child's birth father; 4. that pursuant to Adoption Act 2000 (NSW), s 67(1)(d), the consent of the proposed adoptive parents, Sophia and Ben, who have parental responsibility orders in favour of the child, be dispensed with; 5. that pursuant to Adoption Act 2000 (NSW), ss 50(1) and (3), the Adoption Plan signed by Mia on 1 September 2022, Sophia and Ben on 13 September 2022, and the Delegate of the Secretary on 19 September 2022, be registered; 6. an order for the adoption of the child Elijah in favour of the adopting parents Sophia and Ben; and 7. an order approving the name [redacted] as the surname and "Elijah [redacted]" as the given names of the child. 1. Before making these orders, I will give Alice an opportunity to consider whether, despite her misgivings concerning the terms of the Adoption Plan, she is willing to sign, so as to preserve such entitlement as that may give her to make an application under s 51 of the Act to review the Adoption Plan. 2. Unless I hear from Alice by 5pm on 16 December 2022 that she has taken that course, I will make the orders I have set out at [61] above. ********** Endnotes 1. Also that Elijah has established a relationship of at least two years' duration with the relative and that the making of the adoption order is clearly preferable in his best interests, both of which have plainly been satisfied here. 2. See ss 59-62 of the Act. 3. Who prepared the report required by s 91 of the Act. Amendments 21 December 2022 - Amendment to date in [7] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2022