Supreme Court New South Wales Medium Neutral Citation: The Adoption of Mardi (a pseudonym) [2024] NSWSC 733 Hearing dates: On the papers Date of orders: 17 June 2024 Decision date: 17 June 2024 Jurisdiction: Equity - Adoptions List Before: McGrath J Decision: Adoption order made (see [39]–[40]) Catchwords: FAMILY LAW — children — adoption — application by step-parent — where proposed adoptive parent is the child's step-mother — where child has lived with birth father and step-mother since she was three years old — where child has no meaningful relationship with birth mother — where child is now 15 years old and gives sole consent to own adoption — where adoption is clearly preferable in child's best interests Legislation Cited: Adoption Act 2000 (NSW), ss 8, 30, 51, 52, 54, 55, 58, 59, 61–63, 67, 90, 95. Adoption Regulation 2015 (NSW), div 4 Cases Cited: Adoption of BL [2018] NSWSC 391 Adoption of RCC and RZA [2015] NSWSC 813 Adoption of Taylor-Clay [2019] NSWSC 27 Application of A - re D [2006] NSWSC 1056 Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241 Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239; [1995] 3 All ER 333 Re the Adoption of CCS and FLS [2019] NSWSC 71 Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 Category: Principal judgment Parties: "Claudia" (a pseudonym) (Applicant) Representation: Solicitors: Coleman Greig Lawyers (Applicant) File Number(s): 2024/00070392 Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW) JUDGMENT INTRODUCTON AND FACTUAL BACKGROUND 1. These proceedings concern the proposed adoption of a child, who I will refer to as Mardi (a pseudonym), by her step-mother, who I will refer to as Claudia (a pseudonym). Claudia is married to Mardi's birth father, who I will call Jack (a pseudonym). 2. By summons filed by Claudia as the proposed adoptive parent on 21 February 2024, an order is sought for the adoption of Mardi by Claudia, a declaration that the making of the adoption order does not mean that Jack as Mardi's birth father has ceased to be regarded in law as the father of Mardi and a direction for the issuing of a new birth certificate showing her birth father, Jack, as Mardi's father and the adoptive mother, Claudia, as Mardi's mother. 3. Mardi is now 15 years of age. She lives with Jack and Claudia, who have been her primary care-givers since she was three years old. Prior to that, she was in the care of her birth mother, who I will call Nadine (a pseudonym). 4. Claudia and Jack have been in a relationship since around March 2011 and married in September 2014. As well as Mardi, Claudia and Jack currently live with their three biological children, Kate, Ian and Richard (not their real names), who are 11, 7 and 6 years old respectively. 5. Nadine and Jack, Mardi's birth parents, met through family friends in 1992. They subsequently entered into a relationship which Jack says was considered by him to be neither official nor monogamous. Mardi was born on 13 May 2009. She is the only child of that relationship. 6. In December 2012, Mardi was transferred from her birth mother's care into the care of Claudia and Jack pursuant to a decision of the Department of Communities and Justice (DCJ), who held concerns for Mardi's welfare. Those concerns related to the unsafe living conditions at Nadine's property. 7. From the time Mardi was transferred into the care of Claudia and Jack in December 2012, she has had very little contact with her birth mother. Mardi last saw her birth mother in approximately 2020. Apart from making a fortnightly child support payment, Nadine does not contribute financially to Mardi's care and has had and continues to have negligible involvement in Mardi's life. 8. On 6 February 2024, Nadine was notified of the present adoption application by email. To that email was attached a letter from the solicitors for Claudia enclosing the draft summons for adoption, minute of order, memorandum of adoption order and a factsheet about intra-family adoption. On 7 February 2024, Nadine responded by reply email, saying "[s]orry not signing them". 9. Nadine was formally served with a copy of the summons and supporting documents in these proceedings on 17 May 2024, at which time a field agent personally delivered the documents to a male person at the premises in Queensland where Nadine is believed to reside. That male person stated that he knew Nadine, accepted the documents and indicated that he would pass them on to Nadine. Nadine has not entered an appearance in these proceedings; the proposed adoption is not contested, nor is it consented to, by Nadine. CIRCUMSTANCES OF THIS CASE 1. The present application is for adoption by a step-parent, in whose care Mardi has been since she was three years old and whose partner is Mardi's birth father. The proposed adoptive parent, moreover, is the birth mother of Mardi's paternal half-siblings, who Mardi considers (without qualification) to be her siblings. The proposed adoptive parent is also the person who Mardi, in the ordinary way, calls "mum". Mardi does not have regular contact with or a meaningful relationship with her birth mother and her birth mother lives interstate. 2. Mardi is now over the age of 12, being the age at which a child may give sole consent to their own adoption pursuant to ss 54(2) and 55 of the Adoption Act 2000 (NSW). 3. A report dated 9 January 2024 and filed 21 February 2024 from a registered counsellor engaged to counsel Mardi and assess Mardi's capacity to give informed consent (pursuant to ss 55(1) and 63 of the Adoption Act) records that Mardi demonstrates sufficient capacity, understanding and maturity to consent to her own adoption. An instrument of consent dated 7 February 2024 and filed 21 February 2024 has been completed and signed by Mardi, and witnessed by an independent lawyer, in accordance with the requirements of ss 61–63 of the Adoption Act and div 4 of the Adoption Regulation 2015 (NSW). THE REQUIREMENTS FOR ADOPTION, PRINCIPLES AND CONSIDERATION 1. In respect of adoption orders generally, s 90(1) of the Adoption Act stipulates that the court must be satisfied as to certain matters, namely: (a) that the best interests of the child will be promoted by the adoption, and (b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and (c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and (d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and (e) if the child is an Aboriginal child—that the Aboriginal child placement principles have been properly applied, and (f) if the child is a Torres Strait Islander child—that the Torres Strait Islander child placement principles have been properly applied, and (g) if the child is a non-citizen child from a Convention country or other country outside Australia—that the applicable requirements of this Act and any other relevant law have been satisfied, and (h) in the case of a child (other than an Aboriginal or Torres Strait Islander child)—that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption. 1. Section 90(3) of the Adoption Act provides that no adoption order should be made unless the court considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. 2. In respect of an application for adoption by a step-parent, s 30(1) of the Adoption Act provides that: The Court must not make an adoption order in favour of a step parent of a child unless — (a) the child is at least 5 years old, and (b) the step parent has lived with the child and the child's birth or adoptive parent for a continuous period of not less than 2 years immediately before the application for the adoption order, and (c) specific consent to the adoption of the child by the step parent has been given in accordance with this Act by the appropriate persons, and (d) the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child. 1. I am satisfied that the requirements of s 30(1)(a) and (b) are met in the present case. Section 30(1)(c) and (d), and the balance of the factors in s 90 (as applicable), are addressed below. Adoption orders generally and the "best interests" principles under the Adoption Act 1. Determining adoption applications is an important aspect of the court's work. [1] An order for adoption is one of the most significant and far-reaching orders the court is empowered to make, [2] not least because adoption orders involve a particular degree of finality. [3] 2. The far-reaching nature of an adoption order has been described this way: An adoption order is status changing. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. The child becomes part of his, or her, adoptive parents' family, solely through operation of law, and there is no necessity for any actual blood relationship to exist between them. He, or she, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child: s 95(2) of the [Adoption] Act. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act. The effect of an adoption order is to extinguish any parental responsibility of the birth parents. They no longer qualify as parents for the purpose of taking part in any future proceedings about the child. Thus, the adoption order directly affects three parties, namely the child, the birth parents and the adoptive parents. [4] 1. In the present case, I note that the effect of the adoption order sought, being an adoption order in favour of a step-parent with whom a birth parent of the child is living, does not extend to extinguishing Jack's status in law as Mardi's parent. That is the result of s 95(3) of the Adoption Act, which states: … [A]n adopted child does not cease to be regarded in law as the child of a birth parent or adoptive parent, and the birth parent or adoptive parent does not cease to be regarded in law as the parent of the child, if an adoption order is made in relation to a step parent with whom the birth parent or adoptive parent is living. 1. Because of the seriousness and significance of the decision and in line with s 90(1)(a) and (b) of the Adoption Act, I must not make an adoption order unless I am satisfied that the best interests of Mardi will be promoted by the adoption and that, as far as practicable and having regard to Mardi's age and understanding, the wishes and feelings of Mardi have been ascertained and due consideration given to them. 2. I must have regard to the best interests of Mardi, both in childhood and later life, this being the paramount consideration as stated in s 8(1)(a) of the Adoption Act. I must also have regard to the principles that adoption is to be regarded as a service for the child (s 8(1)(b)) and that no adult has a right to adopt the child (s 8(1)(c)). 3. In determining the best interests of a child, I must take into account the matters set out in s 8(2), including: 1. any wishes expressed by the child; 2. the child's age, maturity and level of understanding; 3. the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity; 4. the wishes expressed by the parent; 5. the nature of the relationship that the child has with their parents and any siblings or significant other people; 6. the attitude of the proposed adoptive parents to the responsibilities of parenthood; 7. the nature of the relationship of the child with each proposed adoptive parent or parents; and 8. the suitability and capacity of the proposed adoptive parent(s) to provide for the needs of the child. 1. The question of what is in a child's best interests involves the making of a judicial evaluation and the balancing of many factors from which an overall conclusion must be reached. It will, inherently, be impressionistic and imprecise. [5] 2. Having regard to the matrix of factors listed above, I pay particular regard to the evidence before me that indicates the following: 1. Mardi has been clear and firm about her desire for the adoption to take place in communications with Claudia and Jack, with the registered counsellor by whom she was assessed, and with family and friends. 2. Mardi grasps the nature of this application and the orders sought, and understands the effect and consequences of those orders (should they be made). Mardi is not ambivalent and reports only positive feelings about the adoption. She feels that it is important for Claudia's name to appear on her birth certificate. 3. Mardi, at 15 years old, is at a critical point in the formation of her identity. Mardi considers that it makes sense for Claudia to adopt her, as Claudia raised her from the time she was three years old. The adoption has the potential to bring a sense of cohesion to Mardi's personal and family identity. 4. Jack, Mardi's birth father, is supportive of the proposed adoption and believes it to be in Mardi's best interests. 5. It would seem that Nadine, Mardi's birth mother, does not support the adoption but equally has taken no steps to contest it, such as by filing a notice of appearance in these proceedings. 6. Claudia considers Mardi to be, and treats Mardi as, her own daughter. Claudia has had an active and integral role in Mardi's care, development and upbringing since she was transferred to Claudia and Jack's care in 2012. Claudia and Mardi have a fairly typical mother-daughter relationship. That relationship is functional and loving. 7. Mardi is very much a part of the family unit constituted by Claudia, Jack, Kate, Ian and Richard. Mardi is treated no differently from Claudia's biological children. 8. There is no real question as to Claudia's capacity to meet Mardi's needs. Claudia has demonstrated such capacity over the 12 years that Mardi has resided with her and Jack. Family friends have witnessed and attested to Claudia's suitability to parent Mardi. Is adoption clearly preferable in the best interests of Mardi? 1. I may not make an adoption order unless satisfied that such an order is "clearly preferable" in the best interests of Mardi next to any other legal measure that could be taken in relation to Mardi's care: ss 30(1)(d) and 90(3) of the Adoption Act. 2. I must therefore be satisfied that the balance weighs more than slightly in favour of the proposed adoption over other alternatives. The making of an adoption order must be obviously, plainly or manifestly preferable to any other action that could be taken by law. [6] I must reach the degree of conviction in favour of the adoption commensurate with the gravity of the decision. [7] 3. Adoption serves the identity needs of the child in question, in circumstances where they are emotionally, psychologically and residentially 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. [8] I consider that this purpose has particular relevance and should be duly weighted in respect of Mardi's proposed adoption by Claudia. 4. I note that if I were to maintain the status quo and make no order, Mardi would remain, at law, the child of Nadine. This would mean that notwithstanding Claudia's assumption of the role of parent and the provision of care in kind to Mardi from the time she was a toddler, and Mardi's perception of Claudia as her mother, Claudia would not be legally recognised as Mardi's mother. An adoption order has the advantages of certainty and permanency, where making no order begets a risk that Mardi may experience stigma, or at least internal disquiet, arising, inter alia, from the fact she would continue to be Claudia's "step-daughter" rather than "daughter", so far as the law is concerned. 5. I note also that other alternatives — a guardianship order or an order allocating parental responsibility for Mardi to Claudia — while achieving some of the functional aims served by an adoption order, lack the symbolic and expressive value of a formal adoption order. An order allocating parental responsibility for Mardi to Claudia, expressly allowing Claudia to make significant decisions about Mardi and Mardi's life and care, would, moreover, lack any real practical utility in the circumstances, in light of Claudia's ongoing and undisputed role in parenting Mardi. Such shortcomings have been remarked upon as follows: An order allocating parental responsibility to the proposed adoptive parents would address some deficiencies arising with the alternative of maintaining the status quo. An order allocating parental responsibility to the proposed adoptive parents would allow them to make significant decisions about the child. But it still lacks the permanency of an adoption order: Adoption of NG (No 2) [2014] NSWSC 680, (at [75]–[82]). And a major disadvantage of this alternative is that when the child reaches 18 years of age [they] would lose [their] legal connection to the proposed adoptive parents and their children, despite the reality that the proposed adoptive parents have been acting in the role of [their] parents almost since [their] birth. [9] 1. For these reasons, I am persuaded that Mardi's best interests are best served by an adoption order in favour of Claudia, and that such a course is clearly preferable to the alternatives to adoption. Requirements — consent 1. Pursuant to s 52, in conjunction with ss 30(1)(c) and 90(1)(d), of the Adoption Act, the consent of each of a child's birth parents to the proposed adoption is needed unless, as here, the child has provided sole consent to their own adoption (s 54). 2. Sections 54, 55 and 63 of the Adoption Act relevantly provide as follows: 54 When consent of parent or person who has parental responsibility not required (1) Consent is not required under section 52 if — … (c) the child gives sole consent to his or her adoption in accordance with subsection (2) … (2) A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years. (3) However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless — (a) the Court is satisfied that at least 14 days' notice of the application for the adoption order has been given by the Secretary or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or (b) the Court dispenses with the giving of notice. 55 Consent of child (1) The Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless — (a) the child has been counselled as required by section 63, and (b) the counsellor has certified that the child understands the effect of signing the instrument of consent (as required by section 61), and (c) the child consents to his or her adoption by the prospective adoptive parent or parents or the Court dispenses with the requirement for consent. … 63 Child or other person consenting to be counselled (1) A child or other person giving consent must be counselled in accordance with this section within the period prescribed by the regulations before he or she signs the instrument of consent to an adoption. (2) A person is counselled in accordance with this section if a counsellor — (a) accurately explains to the person, in a way that the counsellor thinks will be understood by the person — (i) the legal effect of signing the instrument of consent and the procedure for revoking consent, and (ii) the effect of the mandatory written information, and (b) counsels the person on the emotional effects of the adoption and alternatives to adoption (including, in the case of birth parents, the feasibility of keeping the child). … 1. Also relevant are ss 58(1), 59, 61 and 62 of the Adoption Act, applicable parts of which provide: 58 When is consent ineffective? (1) Consent to a child's adoption is not effective unless it is — (a) informed consent, and (b) given in accordance with this Act. … 59 Mandatory written information (1) The Secretary or appropriate principal officer must ensure that a person whose consent to an adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption. (2) In the case of the adoption of a child by a step parent or relative of the child — (a) the applicant (and not the Secretary or appropriate principal officer) must ensure that a person whose consent to the adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption, and (b) the requirement to give that information is satisfied if the information given is information in a form approved by the Secretary for the purposes of compliance with this subsection. … 61 Form of consent (1) Consent is to be given by an instrument (an instrument of consent) that is in a form that contains the information prescribed by the regulations. (2) A separate instrument of consent must be signed by the child and by each other person whose consent is required by this Act. (3) Before the instrument is signed, a counsellor must sign a statement on it certifying that — (a) the child or other person giving the consent has been counselled by the counsellor, and (b) that the counsellor is of the opinion that the child or other person understands the effect of signing the instrument. 62 Consent must be witnessed by person independent of counsellor (1) The signing of the instrument of consent must be witnessed, in accordance with the regulations, by a person other than the counsellor and who is independent of the counsellor. (2) Before witnessing the signing of the instrument of consent by a child or other person, the witness is to sign a statement on it certifying that he or she is not aware of any mental, emotional or physical unfitness of that person to give consent. (3) The witness must be a person of a class or description prescribed by the regulations. 1. As detailed above, Mardi is old enough and has been assessed as sufficiently mature to provide sole consent to her own adoption, and has done so. 2. I am satisfied, moreover, that Mardi's consent (as given) is informed consent and therefore is effective: s 58(1) of the Adoption Act. Mardi was counselled in accordance with s 63 of the Adoption Act by a registered counsellor engaged by the DCJ, who also discussed with her the mandatory written information. 3. Nadine has received at least 14 days' notice of the application, in line with s 54(3)(a) of the Adoption Act. 4. Accordingly, neither parental consent nor an order dispensing with parental consent pursuant to s 67(1)(d) of the Adoption Act is required. Proposed name (no change) 1. It is proposed that, on the making of the adoption order, Mardi will retain her full legal name including Jack's surname, as recorded on her original birth certificate. That is in line with Mardi's express wishes. CONCLUSION 1. For the reasons set out above, I am satisfied that an adoption order in the proposed terms is in the best interests of Mardi and should be made. 2. I make the order, declaration and direction as sought. ********** Endnotes 1. Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9] (Sackar J). 2. Re the Adoption of CCS and FLS [2019] NSWSC 71 at [157] (Hallen J). 3. Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239; [1995] 3 All ER 333 at 251G-H (Sir Thomas Bingham). 4. Re the Adoption of CCS and FLS (supra) at [150] (Hallen J). 5. Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241 at [16] (Lord Nicholls of Birkenhead), cited with approval in Re the Adoption of CCS and FLS (supra) at [164] (Hallen J). 6. Adoption of RCC and RZA [2015] NSWSC 813 at [14] (Brereton J, as his Honour then was). 7. Application of A - re D [2006] NSWSC 1056 at [53] (Palmer J); Adoption of BL [2018] NSWSC 391 at [13] (Sackar J). 8. Adoption of Taylor-Clay [2019] NSWSC 27 at [58] (Brereton J, as his Honour then was). 9. A Child Proposed for Adoption [2019] NSWSC 1653 at [165] (Slattery J). 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: 17 June 2024