Application of A - re D [2006] NSWSC 1056

New South Wales Supreme Court

CITATION : Application of A - re D [2006] NSWSC 1056

HEARING DATE(S) : 25 August 2006

JUDGMENT DATE : 11 October 2006

JURISDICTION : Equity Division Adoption List

JUDGMENT OF : Palmer J

DECISION : Consent of birth mother dispensed with; adoption orders made.

CATCHWORDS : ADOPTION – whether children should be adopted or left in foster care – whether any general rule that adoption is preferable to foster care – relationship between Adoption Act and Children and Young Persons (Care and Protection) Act – whether adoption clearly preferable to long term fostering in the present case – whether consent of birth mother to adoption should be dispensed with.

- Adoption Act 2000 (NSW) – Chapter 2 s.6, s.7, s.8, Pt 9, s.23, s.51, s.52(1), s.67(1), s.70(1), s.90, s.128, s.129, s.180 LEGISLATION CITED : - Children (Care and Protection) Act 1987 (NSW) – s.62A - Children and Young Persons (Care and Protection) Act 1998 (NSW) – s.9, s.61, s.62, s.78(1), s.79, s.81, s.83.

CASES CITED : D v Director General Department of Community Services [2005] NSWCA 474

PARTIES : Mr and Mrs A, Barnardos – Applicants Ms D – Natural mother

FILE NUMBER(S) : SC 0047/06

COUNSEL : R.S. Angyal SC – Applicants H.I. Ginges (Sol) – Respondent

SOLICITORS : Mallesons Stephen Jaques – Applicants Hal Ginges & Co – Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTION LIST

PALMER J.

0047/06 Application of A: re D

JUDGMENT 11 October, 2006

Introduction and Issues

1 This is an application for the adoption of two girls, aged ten and nine, who are sisters. The children's natural father has consented to the adoption but their natural mother opposes it and refuses to give her consent, as required by s.52(1)(a)(i) of the Adoption Act 2000 (NSW) ("the Act"). Accordingly, there are two parts of this proceeding: an application by the Principal Officer of Barnardos for an order dispensing with the consent of the natural mother, under s.67(1) of the Act, and an application by the proposed adoptive parents for adoption orders under s.23 and Pt 9 of the Act. 2 The two applications are being heard in conjunction, as is permitted by s.70(1)(b) of the Act. As the natural mother's reason for refusing her consent to the adoptions is the same as her reason for opposing the making of the adoption orders, in this particular case it is appropriate for the two parts of the proceeding to be heard together rather than in stages: the fate of the first application will bear directly upon the fate of the second. 3 For the sake of preserving the anonymity of the parties, as is required by s.180 of Act, I will refer to the proposed adoptive parents as Mr and Mrs A, to the elder child as B, to the younger as C, to the natural mother as Ms D, and to the natural father as Mr E. 4 Mr. Angyal SC has appeared for the Applicants and Mr H. Ginges, solicitor, has appeared for Ms D. I should acknowledge at the outset that I am greatly indebted to both Mr Angyal and Mr Ginges for their careful, thorough and helpful submissions. 5 Ms D does not oppose the application for adoption because she wishes to resume parental care and responsibility of the children herself. On the contrary, Ms D freely concedes that the children have been living happily with Mr and Mrs A for six years, that they love Mr and Mrs A and have formed a strong attachment to them, that they are doing well in their care, and that she herself could not look after them as well as can Mr and Mrs A. Rather, Ms D opposes an adoption order because she says that the children's interests can just as well be served by leaving them in the care of Mr and Mrs A as foster parents, rather than as adoptive parents. That being so, she says, the Court cannot be satisfied – as it must be, according to s.90(3) of the Act – that to make an adoption order is "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". 6 Ms D does not wish an adoption order to be made because she wants the children to know that she loves them and "because it would feel like I have abandoned them and I haven't": T46.7-.48, 48.51-.55, T49.29-.32; affidavit 3 August 2006, paras 7,8. These motives, very understandable in any mother, are concerned primarily with how Ms D's feelings are affected by the proposed adoptions rather than with what is in the best interests of the children themselves. 7 Nevertheless, whatever the motives of Ms D in refusing her consent, the Court must still be satisfied that: