Adoption of AGB [2014] NSWSC 405

Supreme Court New South Wales

Medium Neutral Citation: Adoption of AGB [2014] NSWSC 405 Hearing dates: In Chambers Decision date: 09 April 2014 Jurisdiction: Equity Division 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 Children (Care and Protection) Act 1987 Children and Young Persons (Care and Protection) Act 1998 Category: Principal judgment Parties: The Director-General, Department of Family and Community Services Representation: Solicitors: I V Knight, Crown Solicitor File Number(s): A161 of 2013 Publication restriction: Nil

Judgment 1By a Summons filed on 24 October 2013 by the Director-General of the Department of Family and Community Services on behalf of a prospective adoptive parent, JE, an order is sought for the adoption of a child, AGB, in favour of JE. An order approving a change in the child's name from AGB to AGE is also sought. 2The evidence in support of the Summons comprises an affidavit sworn by JE, the affidavits of two character referees, two affidavits sworn by a delegate of the Director-General, and an affidavit of service of notice of the application upon AGB's father. AGB's father has not appeared, or otherwise sought to participate in the proceedings. 3AGB was born on 10 August 1996. He is currently 17 years of age. On 15 April 1997, the Children's Court made an order under s 72 of the Children (Care and Protection) Act 1987 declaring AGB to be a ward. On 15 April 2008, the Children's Court made a final order under the Children and Young Persons (Care and Protection) Act 1998 that AGB be placed under the parental responsibility of the Minister until AGB attains the age of 18 years. In circumstances which are described in more detail below, AGB has been in the care of JE for almost all of his life. 4JE is 51 years of age. She is not married, and is not in a de facto relationship. JE does not have any biological children or adopted children. She is currently caring for AGB as well as for HMJ, a girl who is now 14 years old. An adoption application in respect of HMJ in favour of JE is also before the Court. 5A comprehensive account of AGB's history is contained in the two affidavits sworn by the delegate of the Director-General. The evidence reveals that AGB's mother was unable to care for him. Within two weeks of his birth, he was placed under the care of the Director-General. AGB's father, RM, together with RM's then partner, sought to be given care responsibility for AGB, but they were not considered suitable carers. 6AGB was placed with JE and her then husband in December 1996, initially on a short-term basis. In 2000, HMJ was taken into the care of JE and her then husband. JE and her husband separated in 2006, and were divorced in 2010. JE's former husband has ceased to be a carer of AGB and HMJ. However, regular contact has been maintained between the children and JE's former husband. 7In December 2006, JE and the children moved in to live with a friend of JE's, and the friend's two children. Later, JE and her friend began a relationship and her friend became a carer of AGB and HMJ. However, difficulties emerged between JE and her friend and they no longer live together. Since that time, AGB and HMJ have remained under the care of JE, living in a suburb of Sydney. 8AGB has, however, remained in contact with his father (and the father's three other children). He also remained in contact with his mother until her death in 2010. An adoption plan, made pursuant to Part 4 of Chapter 4 of the Act, provides for continued contact between AGB, his father and his father's three other children. 9There is no doubt that AGB falls within s 24(1) of the Adoption Act 2000 ("the Act") as a child in relation to whom an adoption order may be made. It is also clear that JE satisfies the requirements of s 27 of the Act which concerns the making of an adoption order in favour of one person only. JE is domiciled in New South Wales and she satisfies the relevant age requirements. Moreover, the evidence establishes that she is plainly of good repute and a fit and proper person to fulfil the responsibilities of a parent. There is no doubt that the Court has jurisdiction under s 23 of the Act to make an order for the adoption of AGB by JE. 10The Court cannot make an adoption order unless it is satisfied that the requirements set out in s 90(1) of the Act are fulfilled. These are, relevantly: (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 ... (h) the case of a child (other than an Aboriginal or Torres Strait Islander child) - that the culture, 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 plans in relation to the adoption. 11Section 8 of the Act outlines the principles to be applied when making decisions about the adoption of a child. By section 8(1) of the Act, the best interests of the child is expressed to be the paramount consideration. By section 8(2) of the Act, it is provided that in determining the best interests of the child, a decision maker is to have regard to various matters. In addition, section 32(1) of the Act provides that in placing a child (other than an Aboriginal or Torres Strait Islander child) for adoption, a decision maker must take into account certain matters including the principle that the child's given name, identity, language and cultural and religious ties should, as far as possible, be preserved. Finally, as AGB is under the age of 18, the Court may not make an order for his adoption unless a report which complies with s 91 of the Act has been provided to the Court. Such a report is annexed to one of the affidavits sworn by the delegate of the Director-General. 12Having considered the affidavit evidence referred to above, I am satisfied of the matters set forth in s 90(1) of the Act to the extent that they are relevant to this case. 13The proposed adoption appears to be clearly in the interests of AGB. He has spent almost all of his life under JE's care and their relationship is apparently close and strong. He relates to JE as his parent. JE provides a secure and supportive environment for AGB. AGB has also developed a strong sibling relationship with HMJ, despite some difficulties between them from time to time. AGB is in generally good health and is doing well at school. He participates in sporting activities, and has secured casual employment. 14AGB wants the adoption to proceed. He has held that view for quite some time. He sees the adoption as positive as it would legally recognise the role JE has played in his life as his mother, and make his place in the family "official". He regards adoption as preferable to a situation where JE obtains merely a sole parental responsibility order. AGB apparently understands that adoption would sever the legal relationships he has with his biological father and his three half brothers. He also understands the circumstances which led to JE becoming his carer when he was so young. 15There is no doubt that JE has been appropriately assessed, pursuant to s 45 of the Act, as a suitable person to adopt a child. There is no reason to doubt that she is capable of appropriately discharging the responsibilities of a parent. There is clear evidence that she takes seriously her responsibilities as a carer of AGB and HMJ, and will continue that attitude if the adoption proceeds. 16AGB has given his formal consent to the adoption. I am satisfied on the evidence that this consent satisfies s 54(2) of the Act and the other relevant provisions of the Act such that no further consent is required under s 52 of the Act. Notice of the application was given to AGB's father in November 2013. AGB's father has expressed support for the adoption going ahead (as has JE's former husband). 17There is obviously no need for any notice of the application to be given to the Director-General or JE, on whose behalf the application is made. Accordingly, I dispense with any requirement for such notice. I am therefore satisfied that the requirements of s 54(3) of the Act present no barrier to the making of an adoption order in this case. 18Further, to the extent that s 88(1)(b) of the Act would require notice of the application to be given to HMJ, I dispense with the need for the giving of such notice. 19I am also satisfied that in the making of the adoption plan, which provides for AGB to continue to have contact with AGB's father and his three other sons, the matters referred to in s 90(1)(h) of the Act have been taken into account. 20There is every reason to think that, if the adoption proceeds, AGB will continue to have contact with the families of his natural parents. JE has facilitated regular contact between AGB and his natural parents over the years. AGB's mother died in 2010 but AGB still has some contact with other members of his maternal family. AGB maintains contact with his father and his three half brothers. It is proposed that AGB will keep his given names. I also note that, at the request of AGB's mother, JE had AGB baptised as an Anglican. It is likely that AGB's cultural background and identity will be appropriately preserved if the adoption proceeds. 21Reference was made above to the alternative of a sole parenting order. However, I consider that the making of an adoption order is clearly preferable to meet AGB's needs. Apart from being something which AGB himself wishes, the proposed adoption is likely to enhance the familial relationship that currently exists between AGB, JE and HMJ, and foster a stronger family identity. 22For the above reasons, the Court will make an order for the adoption of AGB in favour of JE. 23An order is also sought pursuant to s 101(1)(b) of the Act approving a change in AGB's name. The proposed change is only to the surname so that AGB will have the same surname as JE. AGB has been enrolled in school under the surname E and is known socially by that surname. The surname E is also used socially by HMJ. AGB has, as part of his formal consent to the adoption, requested that upon the making of the adoption order, the proposed change in surname occur. The proposed change seems to me to be clearly desirable in AGB's interests. It complements his stated wish that his place in the family be recognised as "official", and will further foster the family identity. Accordingly, I approve the proposed change in the name of AGB to AGE. 24The Court makes an order for the adoption of the child AGB in favour of the adopting parent JE, and approves the name E as the surname, and AG as the given names, of the child.