Adoption of CCRS [2014] NSWSC 232

Supreme Court New South Wales

Medium Neutral Citation: Adoption of CCRS [2014] NSWSC 232 Hearing dates: In Chambers Decision date: 12 March 2014 Jurisdiction: Equity Division - Adoption List Before: Darke J Decision: Order made for adoption of child and approval of a change to child's surname. Catchwords: FAMILY LAW AND CHILD WELFARE - adoption - whether applicable requirements satisfied - whether adoption is in best interests of the child - adoption order made - application for approval of change in child's surname - whether change of name is in best interests of the child - approval for change of name given Legislation Cited: Adoption Act 2000 Immigration (Guardianship of Children) Act 1946 (Cth) Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) Cases Cited: Re S and the Adoption Act [2006] NSWSC 1436 Category: Principal judgment Parties: DJB (plaintiff) CCRS (child) Representation: Peacockes Solicitors (plaintiff) File Number(s): A012/2013 Publication restriction: None

Judgment 1By a Summons filed on 31 January 2013, the plaintiff, DJB, seeks an order for the adoption of CCRS ("the Child") pursuant to the Adoption Act 2000 ("the Act"). The plaintiff is a 48 year old single woman. 2The Child was born in New Zealand on 12 August 2007. She is a New Zealand citizen. When the Child was 19 days old she was placed into the permanent care of the Plaintiff. This was arranged between the Plaintiff and the Child's parents. The Plaintiff, despite living in New South Wales, had a close connection with the mother's family. 3On 26 November 2007, a Parenting Order was made in the Family Court of New Zealand that provided for the plaintiff to have exclusive responsibility for the care of the Child. The order further provided for the Child's parents to have supervised contact with the Child for one week at least once a year in New Zealand. On the same day, the Family Court of New Zealand appointed the plaintiff as guardian of the Child. Those orders were made with the consent of the Child's parents. 4The plaintiff brought the Child to Australia on 16 December 2007. Since that time they have resided in a regional centre in New South Wales. I am satisfied that the Court has jurisdiction under s 23 of the Act to make an order for the adoption of the Child by the plaintiff. 5There is no doubt that the Child falls within s 24(1) of the Act as a child in relation to whom an adoption order may be made. It is also clear that the plaintiff satisfies the requirements of s 27 of the Act which concern the making of an adoption order in favour of one person only. The evidence establishes that the plaintiff is domiciled in New South Wales, and that she is plainly of good repute and a fit and proper person to fulfil the responsibilities of a parent. The plaintiff also satisfies the age requirements, being 48 years of age, and the consent of a spouse is not relevant. 6The evidence in support of the application includes three affidavits sworn by the plaintiff, the affidavits of two character referees, and two affidavits sworn by a delegate of the Director-General of the Department of Family and Community Services. The Director-General has consented, pursuant to s 87 of the Act, to the making of the application by the plaintiff. Annexed to the delegate's principal affidavit is a report dated 28 October 2013 prepared by an approved adoption assessor. That report, which has been adopted by the delegate, satisfies the requirements of s 91 of the Act. The delegate has further expressed the view of the Department of Family and Community Services that an order for adoption of the Child by the plaintiff will promote the future welfare and best interests of the Child. 7The Child's mother has provided her consent to the adoption of the Child by the plaintiff. I am satisfied that mother's consent is a specific consent (within the meaning of s 53(1)(b)(iv) of the Act) to the adoption by a specified adoptive parent who is an authorised carer who has had care responsibility for the Child for two years or more. There is nothing to suggest that such consent is ineffective (see s 58 of the Act). The consent appears to have been an informed consent, and one which was given in accordance with the Act. The Child's mother was more than 18 years of age when the consent was given, and there is no suggestion of any subsequent revocation of the consent. The period within which the consent may be revoked has expired (see s 73(2) of the Act). 8The Child's father died on 2 June 2013. In those circumstances, his consent to the adoption of the Child is no longer required. It should be noted, however, that prior to the commencement of the proceedings, the Child's father did provide his consent to the adoption of the Child by the plaintiff, and such consent appears to satisfy all of the requirements of the Act for an effective consent. 9It appears that the Child is "a non-citizen child" within the meaning of the Act. The definition of "non-citizen child" provides that the expression has the same meaning as it does in the Immigration (Guardianship of Children) Act 1946 (Cth). In that Act, a "non-citizen child" is defined to mean a person who is a non-citizen child under s 4AAA (1) or (4) of that Act. Section 4AAA of that Act provides: (1) Subject to subsections (2) and (3), a person (the child) is a non-citizen child if the child: (a) has not turned 18; and (b) enters Australia as a non-citizen; and (c) intends, or is intended, to become a permanent resident of Australia. (2) Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of: (a) a parent of the child; or (b) a relative of the child who has turned 21; or (c) an intending adoptive parent of the child. (3) Subsection (1) does not apply if: (a) the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age (the adult); and (b) a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and (c) the adult intends to reside with the child in a declared State or Territory. (4) A person is a non-citizen child if: (a) the person has not turned 18; and (b) a direction under section 4AA is in force in relation to the person. 10The expression "non-citizen" is defined to mean a person who is not an Australian citizen. The Child is such a person. She would be a "non-citizen child" within the meaning of s 4AAA(1) unless either of sub-sections (2) or (3) applies. However, neither of those sub-sections operates in this case. Sub-section (2) does not apply because when the Child entered Australia, the plaintiff was neither a parent or relative of the Child, and could not be an "intending adoptive parent" because that status requires an intention to adopt under the laws of a declared State or Territory. New South Wales has never been a declared State for the purposes of that Act. That circumstance also has the consequence that sub-section (3) can have no application in this case even if it was otherwise satisfied. 11On the basis that the Child is "a non-citizen child", s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) operates to place her under the guardianship of the Minister for Immigration. A delegate of the Minister for Immigration has consented to the making of the order for adoption. All of the consent requirements of s 52 of the Act have thus been satisfied. 12Aside from the plaintiff, the Child resides with a 2 year old foster child who is being cared for by the plaintiff. To the extent that s 88 of the Act would require notice of the application to be given to that foster child, I dispense with the need for any such notice. 13The Court cannot make an order for adoption in relation to a Child unless the Court is satisfied of the matters set out in s 90 of the Act. Section 90 relevantly provides: (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 (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 ... (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. (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. 14Reference should also be made to s 8 of the Act which sets out the principles to be applied when making decisions about the adoption of a child. That section provides, amongst other things, that the paramount consideration is the best interests of the child. In addition to the matters set forth in s 8, s 32 provides: (1) In placing a child (other than an Aboriginal or Torres Strait Islander child) for adoption, the decision maker must take into account the culture, any disability, language and religion of the child and the principle that the child's given name, identity, language and cultural and religious ties should, as far as possible, be preserved. (2) Without limiting matters that may be taken into account, the decision maker must take into account whether a prospective adoptive parent of a different cultural heritage to that of the child has demonstrated the following: (a) the capacity to assist the child to develop a healthy and positive cultural identity, (b) knowledge of or a willingness to learn about, and teach the child about, the child's cultural heritage, (c) a willingness to foster links with that heritage in the child's upbringing, (d) the capacity to help the child if the child encounters racism or discrimination in school or the wider community. 15As mentioned earlier, the Child has, since shortly after she was born, been in the care of the plaintiff. It is apparent that, due to problems associated with mental illnesses, neither of the Child's parents was able to adequately care for her. This circumstance was recognised even before the Child was born, and the plaintiff, who had a close association with the mother's family (she was the best friend of an aunt of the mother), was requested to assume the role of permanent carer once the baby was born. Following discussions between the plaintiff and members of both the father's and mother's families, it was agreed that after the baby was born, the Child would be cared for, on a permanent basis, by the plaintiff, and would live with the plaintiff in New South Wales. 16The s 91 report and the affidavits of the character referees establish very plainly that the relationship between the plaintiff and the Child, and the environment in which the Child is being raised, is very satisfactory from the Child's point of view. The Child, who is now attending school, is doing well and is in good health. She is developing a good relationship with the 2 year old foster child. She regards him as her little brother. The Child is apparently very happy and secure in her present circumstances, and refers to the plaintiff as "mum". The Child is aware of her father's death, and she is also aware that her mother is unable to care for her. 17The plaintiff is of Anglo-Celtic background. The Child is of Maori descent. The evidence establishes that the plaintiff understands the desirability of maintaining contact between the Child and her mother and other relatives in New Zealand (including members of her late father's family) and she intends to continue the practice of regular visits to New Zealand in accordance with the terms of the Parenting Order made in New Zealand. That is also in accordance with the wishes of the Child, who has enjoyed such visits. The evidence leaves me in no doubt that the plaintiff, despite having a different cultural heritage to that of the Child, has demonstrated the matters set out in s 32(2) of the Act. It is intended that the Child be exposed to Christian values and beliefs, but there is every reason to think that the Child's cultural heritage (including traditional customs) will be preserved with the active assistance of the plaintiff. 18The evidence also clearly establishes that the plaintiff is eminently suitable for her role as carer and "mum" to the Child. The plaintiff is of excellent character and repute, and is employed in a position which involves significant responsibility. She is in a sound financial position. The plaintiff has been assessed, in a manner consistent with Part 3 of Chapter 4 of the Act, as a suitable person to adopt the Child. 19Having considered the evidence and, to the extent that they are relevant, the matters set forth in s 8(2) of the Act, I am satisfied that the best interests of the Child will be promoted by the proposed adoption (see s 90(1)(a)). I am also satisfied of the matters set forth in s 90(1)(b)-(d). 20I am also satisfied that the applicable requirements of the Act and any other relevant law have been satisfied as required by s 90(1)(g). The applicable requirements of the Act in relation to the making of an adoption order have been satisfied, and I am not aware of any applicable requirements of any other relevant law which have not been satisfied. The application is not for the adoption of a child "who is habitually resident in a Convention country" within the meaning of either Regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) or s 107 of the Act (see Re S and the Adoption Act [2006] NSWSC 1436 at [68] and [74] per White J). The application does not concern an adoption under either of those provisions in accordance with the Hague Convention on Intercountry Adoption. As the application does not involve the seeking of an order as referred to in Part 2 of Chapter 5 of the Act, the provisions of s 31 of the Act do not need to be satisfied. 21The s 91 report contains what is said to be an adoption plan, which is essentially to the effect that the current arrangements for contact between the Child and her mother and other relatives in New Zealand should continue. Those arrangements include an annual trip to New Zealand, and ongoing contact via telephone, mail and e-mail. The adoption plan does not seem to contain all of the particulars required by s 47(2) of the Act. In any event, I am satisfied that the matters set out in s 90(1)(h) have, to the extent they are relevant, been taken into account in the making of the adoption plan. I am also satisfied that the arrangements proposed in the adoption plan are in the Child's best interests and are proper in the circumstances (see s 90(2) of the Act). 22Finally, I consider that, in all the circumstances, the making of the adoption order as sought would be clearly preferable, in the best interests of the Child, than any other lawful action that could be taken in relation to the care of the Child (see s 90(3) of the Act). 23For the above reasons, I will make an order for the adoption of the Child by the plaintiff. 24The plaintiff further seeks an order (pursuant to s 101(1) of the Act) that the Court approve a change of the Child's name from CCRS to CCRB. That is, it is sought to change the Child's surname from S to B so that she has the same surname as the plaintiff. The Child's given names are proposed to remain unchanged. One of the given names is the same as the first name of the Child's mother. 25Relevantly, s 101 of the Act further provides: (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. ... (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.