Supreme Court New South Wales Medium Neutral Citation: Re Fiona [2013] NSWSC 593 Hearing dates: 16 April 2013 Decision date: 16 April 2013 Jurisdiction: Equity Division Before: Rein J Decision: Orders the adoption of the child in favour of the adopting parent. Orders the surname of the child changes to the surname of the adopting parent. Orders that pursuant to Adoption Act 2000, s 67(1)(a) the consent of the child's natural mother be dispensed with. Catchwords: ADOPTION - whether an adoption order should be made when the natural mother opposes adoption. Legislation Cited: Adoption Act 2000 (NSW) Category: Principal judgment Parties: Department of Community Services (plaintiff) Birth mother of the child (defendant) Representation: Counsel: Ms Neville (plaintiff) No appearance (defendant) Solicitors: NSW Crown Solicitor's Office (plaintiff) No appearance (defendant) File Number(s): A121/2012 Judgment 1REIN J: These proceedings concern a child who is now fifteen years and eight months years of age whose name I shall anonymise by referring to her as "Fiona". 2By way of summons filed on 21 August 2011, the Director General of the New South Wales Department of Family and Community Services, to whom I shall refer as the "Director General" and to which department I shall refer to as "the Department", seeks orders under the Adoption Act 2000 (NSW), ("the Act") in relation to Fiona who was born in 1997. 3Fiona is the natural daughter of the defendant, the birth mother. So far as her father is concerned, the birth certificate does not record the details of her paternity although a person, to whom I shall refer to as "Brett", did at one stage act as if he was the birth father because of his involvement in proceedings in the Children's Court. I shall say something more about his position in a moment. 4Fiona was removed from the care of the defendant and Brett on 26 September 1997. On 13 July 1998, the Children's Court of New South Wales at Port Kembla made final orders allocating parental responsibility for Fiona to the Minister for Community Services. She was placed with the person who is now the proposed adoptive mother (and who first had contact with the client as a supervisor of contact) whose application to be the adoptive parent has the support of the Department is before the Court. Fiona has continuously resided with the proposed adoptive parent since 13 July 1998. For a number of years the proposed adoptive mother lived in a relationship with another woman who assisted in Fiona's upbringing but the relationship ended in 2006 and, although there was some contact between that person and Fiona, contact appears to have ceased long ago. The defendant's last contact with Fiona was when Fiona was four years old. 5The Director General seeks orders as follows: (1)the requirement for service of notice of the application for an adoption order on the child's natural father be dispensed with pursuant to section 54(3)(b), (2)an order for the adoption of Fiona in favour of the proposed adoptive parent, and (3)an order approving Fiona's names as it currently appears on her amended birth certificate. 6Extensive evidence has been filed by the Department in support of the application. Ms Neville of counsel has appeared and ably assisted me by both written and oral submissions in relation to the matter. 7When the proceedings were launched, they first came before the Court on 2 November 2012 before Brereton J. On that occasion the defendant appeared and was joined as a defendant to the proceedings. The defendant, as birth mother, indicated her opposition to the adoption orders sought by the Department in favour of the proposed adoptive parent. His Honour made orders for the filing and service of evidence by the defendant, which orders were not complied with. 8When the matter came before his Honour at the set hearing date of 8 February of this year the defendant did not appear. His Honour directed that the Director General advise the defendant, both by letter and by email, of the fact that the matter will proceed to final hearing today and that the Court would be asked to make an order for Fiona's adoption without hearing further from the defendant: see Exhibit A, tab 12. 9The matter was called today in Court, outside Court on this level and also, as an additional precaution, on level 7 which is the level on which Brereton J's Court is located and there was no appearance by the defendant. 10An important matter, that is required to be considered under the Act, is that Fiona has signed a consent to the adoption of her by the proposed adoptive mother: see tab 6, pp 97 to 98, Exhibit A. There is evidence from Ms Maria Hanks who gave the counselling required by s 63 of the Act and I am satisfied that Fiona does consent on an informed basis to the adoption. Indeed, there is a clear indication that she is enthusiastic about it and would like the orders to be made as soon as possible. The fact that a child over twelve has consented means that it is not necessary to have the consent of the birth mother or birth father to the adoption, but there is a requirement under the Act that those persons be notified of the proceedings. 11Before I turn to that, I should mention that s 59 of the Act requires that mandatory written information, defined in s 57, be sent to a person whose consent of the adoption is needed. Section 60 of the Act requires, whenever consent to an adoption of a child is given, that it must be given within a particular time period and that includes reference to the consenting person receiving the mandatory written information. It would follow that a child of twelve years or older must be given that information. 12There is an affidavit of the proposed adoptive mother of 16 April 2013 which I grant leave to be filed in Court today which gives details of the mandatory information provided to Fiona and as to its timing of receipt. 13I must now consider, as a formal matter, whether or not the birth mother and birth father had been notified of the adoption proposed. Clearly, the birth mother has been, and she has been made a defendant in the proceedings. So far as the birth father is concerned, there is a difficulty which is that Brett has never admitted to being the biological father of Fiona, although, as I noted earlier, he did take an active part in proceedings in the Children's Court. His basis for not admitting that he is the birth father seems to be that the birth mother has asserted that she was sexually assaulted and that Brett is not the biological father. Brett has been advised that he can have a paternity test which will clarify whether or not he is the birth father, but he has indicated that he does not want to undertake any such test and he has also indicated that he does not wish to maintain contact with Fiona, his last parental contact being when she was eighteen months old. 14The birth mother says that Brett is not the birth father but she will not say who is, although she has indicated that she knows who it is. There is considerable reason to doubt the truth of the contention that Brett is not Fiona's birth father, but it is difficult to be confident that he is and, in circumstances where neither he, nor the birth mother, nor the Department contends that he is the birth father. I proceed on the basis that he is not and it follows that the birth father's identity has not been determined and is hence unknown, with the consequence that the birth father's consent cannot be obtained and he cannot be served with appropriate information relating to the adoption. 15In those circumstances, it is appropriate to dispense with the requirement that the birth father be served with the papers relating to this proposed adoption. I should note, however, that Brett has indicated his attitude to the adoption. There is a file note (see Exhibit A, tab 6, Attachment C to the affidavit of Elaine Thompson dated 6 August 2012, p 4) in which Brett has indicated, not only that he was aware that the process of adoption was under way for Fiona, but that "he was delighted" that this was happening for Fiona. In this conversation Brett referred to Fiona as his "child by marriage" to Fiona's mother. According to the note Brett also stated that, "he is very happy with the care [that the proposed adoptive apparent has provided Fiona] and feels the adoption should continue to progress as this is what [Fiona] wants". 16Under s 90 of the Act the Court must be satisfied as to certain matters before making an adoption order. Section 90, omitting irrelevant matters, is in the following terms: 90 Court to be satisfied as to certain matters (cf AC Act s 21) (1) The Court must not make an adoption order in relation to a child unless the Court is satisfied: (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 Note. Sections 127-129 contain provisions about ascertainment of the wishes of a child by the Court. (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 Note. See Part 3 of this Chapter. 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 ... (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. (2) The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances. (3) The Court may not make an adoption order unless it 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. Note. Other action that could be taken in relation to a child includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the Children and Young Persons (Care and Protection) Act 1998. Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt. 17Importantly, the Court is not permitted to make an adoption order unless it 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". Section 8 of the Act provides guidance in relation to what is in the best interests of the child and s 8(1) sets out the principles to which the Court is to have regard. Section 8 (omitting irrelevant subparagraphs) states: 8 What principles are to be applied by persons making decisions about the adoption of a child? (cf AC Act s 17, AC Reg cl 35) (1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles: (a) the best interests of the child, both in childhood and in later life, must be the paramount consideration, (b) adoption is to be regarded as a service for the child, (c) no adult has a right to adopt the child, (d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, (e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare, ... (2) In determining the best interests of the child, the decision maker is to have regard to the following: (a) any wishes expressed by the child, (b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant, (c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity, (d) any disability that the child has, (e) any wishes expressed by either or both of the parents of the child, (f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant, (g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, (h) the nature of the relationship of the child with each proposed adoptive parent, (i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child, (j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour, (k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child's circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child. 18So far as s 8(2)(a) is concerned, clearly Fiona has expressed her wishes. She clearly is of a level of maturity that enables the Court to have confidence that she has made an informed decision about her adoption. 19Fiona does have a disability in that she has been diagnosed with aspects of Asperger's Syndrome (s 8(2)(d)). 20One of the matters to which I have to have regard, are the wishes expressed by both the parents of the child: see s 8(2)(e). Having regard to the defendant's position, I think that can only be summarised as being that she is opposed to the adoption although she has not, either in Court or by any documents filed since the Court orders were made, indicated what it is she proposes should occur in relation to Fiona or on what her opposition to the proposed adoption is based. I take her to be strongly opposed to the adoption for reasons that have not been stated by her in Court, but may from comments she has made in the past be related to the proposed adoptive parent's sexuality. If Brett's attitude to the adoption were relevant, it is positive as I have recounted. 21The proposed adoptive parent does not have any other children, either natural children or adopted or children in care other than Fiona. Accordingly, there is no relationship to be considered under s 8(2)(f). 22So far as the suitability and capacity of the adoptive parent is concerned (s 8(2)(i), the relevant criminal checks have been undertaken and it has been established that the proposed adoptive parent does not have any criminal record. There are three references from referees for the proposed adoptive parent which are very positive about her and her ability to parent Fiona. 23So far as ss 8(2)(c), (g), (h) and (j) are concerned, which deals with the need to protect the child from physical or psychological harm, there can be no doubt that Fiona has received, for the past fifteen years, care and attention and has had her educational, emotional and physical needs met by the proposed adoptive parent. She appears to have a very good relationship with the proposed adoptive parent and to regard her as her mother, reflecting the positive attitude of the proposed adoptive parent to Fiona. 24There are no other matters of the type referred to in s 8(2)(b) that have not been addressed. 25So far as the alternatives to the proposed adoption order (s 8(2)(k)), Ms Neville has identified two. One is leaving matters where they are, that is with the proposed adoptive parent as carer and Fiona in care of the Minister and responsibility of the Minister until she turns eighteen. The second alternative is with Fiona staying with the proposed adoptive parent but the proposed adoptive parent being given parental control but overall responsibility remaining with the Minister until Fiona turns eighteen. 26Adoption is, in my view, clearly a preferable outcome than the other alternatives. Adoption will enhance the stability and permanency of the relationship to the benefit of Fiona and grant to her all legal rights as a child of the proposed adoptive mother. It will resolve any doubt or ambiguity about Fiona's status and confirm the position, which for 15 years currently has and which pertains, namely that the proposed adoptive parents undertakes all the responsibilities of a mother and Fiona is treated and sees herself as the child of the proposed adoptive parent. 27In coming to this view, I should emphasise that I regard it as particularly significantly that Fiona, who is fifteen years and nine months of age, regards the adoption as the desirable outcome from her point of view. It is a significant matter and, although I take into account the birth mother's opposition to the adoption, I do not think that that opposition is proffered in the best interests of Fiona and accordingly in my view the orders sought should be made. 28There is an adoption plan in place (see pp 83 to 85 of the affidavit of Ms Thompson at tab 6, Exhibit A) and I am satisfied that the arrangements in the proposed plan are in Fiona's best interests and proper in the circumstances. I have no doubt that, following on from my conclusion that the adoption order should be made, that it is appropriate that the names, first and surname, under which she is currently known and which are reflected in her birth certificate should be recognised as the names by which she is to be known. ********** 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: 20 May 2013