Application of Director-General, Department of Family and Community Services; Re CK [2013] NSWSC 1242

Supreme Court New South Wales

Medium Neutral Citation: Application of Director-General, Department of Family and Community Services; Re CK [2013] NSWSC 1242 Hearing dates: Tuesday 20 August 2013 Decision date: 20 August 2013 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Adoption order made Catchwords: ADOPTIONS - whether adoption in best interests of child - whether natural mother's consent should be dispensed with - whether adoption plan should be registered Legislation Cited: (NSW) Adoption Act 2000, s 67, s 72, s 88 Category: Principal judgment Parties: Director-General, Family and Community Services (plaintiff) BK (defendant) Representation: Counsel: Ms M Neville (plaintiff) Mr D Kennard (defendant - solicitor) Solicitors: Crown Solicitor's Office (plaintiff) Legal Aid (defendant) File Number(s): A60/2013

Judgment (ex tempore) 1HIS HONOUR: By summons filed on 22 April 2013 and amended on 3 May 2013, the Director-General of the Department of Family and Community Services, by its delegate the Principal Officer of Adoptions for Barnardo's Australia, seeks an order for the adoption of the child CK born 7 August 2009 in favour of RMH and KAH and associated orders. 2CK is the child of the defendant BK from whose care she was removed, in circumstances that do not now require consideration, at birth. She was placed with the proposed adopting parents at the age of about 12 months and has, accordingly, been in their care for about three years, having just attained four years of age. She has plainly done well in their care. 3The proposed adoptive parents have been able to sustain a relationship with the birth mother to the extent that the birth mother is confident that she can work with them to provide CK with a happy and wonderful life where she can know and love them as "mum" and "dad" and also to know and love her as "mummy B". In her affidavit she explains the circumstances which affected her at the time of CK's birth, and the steps she has taken since to get her life together and to have much greater optimism in respect of her the future. 4In what has no doubt been an exceptionally difficult decision for her, while of the view that she might be able to make and succeed on an application for restoration of CK to her care, she recognises that that would not be in CK's best interests. This demonstrates a substantial degree of insight, judgment and the ability to put CK's interests before her own. While she feels unable as CK's birth mother to consent to the adoption, she does not wish to make submissions in opposition to it but to leave the decision to the court. This is also, quite understandably, part of her strategy for her future relationship with CK, including how she would deal with any concerns raised or questions asked by CK about the circumstances of the adoption. 5I am satisfied that adoption will bring to CK the critical foundations of security and stability. It will bring the legal relationships of her life and family into alignment with the practical reality of those relationships, and it will avoid her remaining in out-of-home care status by making her part, legally, of the family in which she lives. 6There are four main issues that need to be considered. 7The first is the consent of CK's birth father to the adoption. The evidence establishes that he can not be identified. 8The second is the consent of the birth mother. As I have said, she, for very understandable reasons, feels unable to consent, but it is clear on the evidence as a whole that she also recognises that CK's interests are likely to be served by adoption. While not giving consent, she has not made submissions that her consent should not be dispensed with. 9The third is contact. Initially, there was controversy as to the extent of contact that CK would have with her birth mother. The parties have been able to resolve that in an amended adoption plan. The birth mother is not able to be a party to the adoption plan because, as a non-consenting parent, she is not a party to the adoption. However, as I have pointed out on previous occasions, the adoption plan, if registered, has effect as an order of the court and in my view, although not a party to the adoption plan, a birth parent for contact with whom provision is made in an adoption plan is likely to have standing to enforce it, if necessary. There is, of course, no suggestion that it would be necessary in this case. 10The adoption plan provides for a minimum of five occasions of physical contact for a period of three hours per annum, with the possibility for that to be extended, and various provision for other forms of contact. I am satisfied that it is in the best interests of CK and proper in the circumstances. 11Finally, there was, initially, controversy as to name. The parties have, once again, been able to accommodate and resolve that by including the birth mother's surname as one of the child's forenames. 12I am satisfied that notice of the application for consent dispense order has been given to the birth mother at least 14 days before the order is to be made. I am satisfied that notice to the birth father of the application for a consent dispense order need not be given because s 72(1) does not apply because he can not, after reasonable inquiry, be identified. Being satisfied that the child's birth father cannot after reasonable inquiry be identified and that to make a consent dispense order is in the best interests of the child, I will make an order pursuant to s 67(1)(a) that the consent of the child's natural father be dispensed with. 13The application for adoption having been made by persons who are authorised carers for the child, and CK having established a stable relationship with them, and being satisfied that adoption by those carers will promote CK's welfare and that to make a consent dispense order is in her best interests, I will make an order pursuant 67(1)(d) that the consent of the child's natural mother be dispensed with. 14I am satisfied that at least 14 days notice of the application for the adoption order has been given to the birth mother. Pursuant to s 88(4) I will dispense with the giving of notice under s 88(1) to the child's natural father. 15I am satisfied that, taking into account all relevant matters referred to in s 8 and in particular the attitude of each proposed adopting parent to the child and to the responsibilities of parenthood, the nature of the relationship of the child with each proposed adoptive parent, and the suitability and capacity of each proposed adoptive parent to provide for the needs of the child including her emotional and intellectual needs, CK's bests interests will be promoted by adoption by the proposed adoptive parents. 16I am satisfied that as far as practicable, having regard to her age and understanding, CK's wishes and feelings have been ascertained and due consideration given to them. I am satisfied that the respective adoptive parents have been selected in accordance with the Act. I am satisfied that consent to the adoption has been given by every person whose consent is required under the Act, or that such consent has been or is to be dispensed with. 17I am satisfied that, the parties to the adoption having agreed to an adoption plan, the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances. I am further satisfied that the plan does not contravene the adoption principles and that the parties to the adoption understand its provisions and have freely entered into it. Accordingly, I will register the plan. 18I consider that the making of an adoption order will be clearly preferable in the best interests of CK than any other action that could be taken by law in relation to her care. Accordingly, I will make an order for CK's adoption by the proposed adoptive parents. 19CK being less than 18 years of age is to have the surname H and the given names CEAK. 20I am satisfied that so changing the given names of CK is in her best interests and is not inconsistent with the principle referred to s 8 that a child's given names and identity should, as far as possible, be identified and preserved; to the contrary, the changes proposed will assist in preserving her names and identity. 21Accordingly: (1)By order pursuant to Adoption Act, s 67(1)(d) I dispense with the consent of the child's natural mother. (2)By order pursuant to s 67(1)(a) I dispense with the consent of the child's natural father. (3)By order pursuant to s 88(4) I dispense with notice of the application for an adoption to the child's natural father. (4)I make an order for the adoption of the child CK in favour of the adoptive parents RAH and KAH and approve the names K as a surname and CEAK as the given names of the child. (5)I make an order that the amended adoption plan contained in exhibit A be registered in the court. (6)I direct that the Director-General lodge with my associate a minute of this order for signing and sealing.