Application of Director-General Department of Human Services; re AJC [2010] NSWSC 1282

New South Wales Supreme Court

CITATION : Application of Director-General Department of Human Services; re AJC [2010] NSWSC 1282

HEARING DATE(S) : In Chambers

JUDGMENT DATE : 16 September 2010

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : Make orders substantially in accordance with claims 1 and 2 in the summons

CATCHWORDS : FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Adoption – Application for orders – relevant considerations – whether adoptive parents fit and proper parents – where application made under (NSW) Adoption Act 2000, s 101 – where child over eighteen years of age – whether natural father's consent necessary – whether notice to natural father pursuant to s 88 required.

LEGISLATION CITED : (NSW) Adoption Act 2000, s 54, s 88, s 101

CATEGORY : Principal judgment

FILE NUMBER(S) : SC 2010/84

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

Brereton J

Thursday, 16 September 2010

2010/84 Application of Director-General Department of Human Services; re AJC JUDGMENT 1 HIS HONOUR: In this adoption application, the child AJC is eighteen years of age and has been cared for by the proposed adopting parents PNN and SDN full-time since August 2003 as a foster child while she has been under the parental responsibility of the Minister pursuant to a care order made by the Children's Court; she had earlier been in their care from time to time for respite purposes. AJC initiated the proposal for adoption, has signed an instrument of consent, and plainly wishes to be adopted. Subject to one matter, the evidence plainly establishes that it would be in the interests of the child to make an adoption order as sought. 2 That matter is that the proposed female adopting parent SDN was on 12 December 2006 convicted of assault causing bodily harm on the child's sibling, who was also placed with the proposed adopting parents. The assault was a hit on the legs with a strap. The victim and AJC remained in the care of PNN and SDN, and a carer review undertaken by an external psychologist in August 2007 found that the assault was an isolated event related to an accumulation of stressors in SDN's life, and difficulty in managing the victim's defiant and aggressive behaviour. Although the victim's placement subsequently broke down, AJC is aware of the events, is confident that SDN would never hurt her, and maintains her wish to be adopted. PNN and SDN have engaged well with supporting services, and the Department is very confident that there will be no repetition. There is no other known instance of physical discipline by either PNN or SDN in their 15-year history as foster carers of multiple children. In my view, having regard to the whole of this evidence, the age and independence of AJC, and the history of PNN and SDN as foster carers, an isolated loss of control to the extent of the assault in question, in the context of serious accumulated stressors and challenging and provocative conduct on the part of the sibling, does not disqualify them as fit adopting parents. 3 The Summons seeks an order that the child's name be her existing first names, and a hyphenated surname combining her current (natural mother's) surname and her adoptive parents' surname. That accords with the child's expressed wish, and reflects an appropriate combination of her birth heritage, her real living arrangements, and her adoptive family. Had the application been dealt with before the child attained eighteen years of age, there would have been no difficulty in approving the names proposed. However, (NSW) Adoption Act 2000, s 101, relevantly provides as follows (emphasis added): 101 Names of adopted children (cf AC Act s 38) (1) On the making of an adoption order: (a) an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made , and (b) an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents. (2) Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's wishes. (3) If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname. (4) An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change. (5) The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless the Court is satisfied that the name change is in the best interests of the child. (6) Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, under the law of New South Wales.