Adoption of ESF [2014] NSWSC 687

Supreme Court New South Wales

Medium Neutral Citation: Adoption of ESF [2014] NSWSC 687 Hearing dates: In Chambers Decision date: 29 May 2014 Jurisdiction: Equity Division Before: Darke J Decision: Order for adoption made in favour of the step father of the child. Declaration that adoption order does not mean that child's mother ceases to be regarded in law as the mother of the child. Direction given in relation to the content of a new birth certificate for the child. Catchwords: FAMILY LAW AND CHILD WELFARE - adoption - whether adoption by step father of adult child is in the best interests of child - adoption order made - declaration that order does not have effect that child's mother ceases to be so regarded in law Legislation Cited: Adoption Act 2000 (NSW) ss 24(1)(b), 30, 95(3) Cases Cited: Re D [2006] NSWSC 808 Category: Principal judgment Parties: ESF (first plaintiff) RCL (second plaintiff) Representation: Finn Roache Lawyers (plaintiffs) File Number(s): A040/2014 Publication restriction: None

Judgment 1ESF is a 27 year old woman. She is currently living with her mother, MF, and her mother's de facto partner, RCL. By a Summons filed on 21 March 2014, ESF and RCL seek an order under the Adoption Act 2000 (NSW) ("the Act") for the adoption of ESF in favour of RCL. 2The application is supported by affidavits sworn by ESF, RCL and MF, as well as affidavits sworn by two character referees. 3The jurisdictional requirements of s 23 of the Act are satisfied in this case. The evidence shows that when the Summons was filed, ESF was present in New South Wales (or may be presumed to have been pursuant to s 23(3) of the Act) and RCL was domiciled in New South Wales (or may be presumed to have been pursuant to s 23(3) of the Act). 4Section 24(1)(b) of the Act provides that an adoption order may be made in relation to a child who was 18 or more years of age on the date on which the application for the order was made if the child "was cared for by the applicant or applicants for the order". Section 24(2)(a) of the Act provides that for the purposes of s 24(1)(b), a child was cared for if the child has been cared for by the applicant or applicants as his or their child prior to reaching the age of 18 years. 5The evidence discloses that ESF's father died in 1994 when ESF was only seven years of age, and, further, that ESF's mother commenced a de facto relationship with RCL about two years later. The evidence further establishes that, since that time, RCL has cared for ESF as his child. In my view, s 24(1)(b) of the Act is satisfied in these circumstances. Although ESF is herself a plaintiff, it is appropriate to regard RCL alone as the applicant for the adoption order for the purposes of s 24(1)(b) of the Act. A child in respect of whom an adoption order is sought cannot be an applicant for the order within the meaning of the provision. Accordingly, I am satisfied that ESF is a child in relation to whom an adoption order may be made. 6I am also satisfied that RCL meets the requirements of s 27 of the Act which concern the making of an adoption order in favour of one person only. He is domiciled in New South Wales. He is plainly of good repute, and a fit and proper person to fulfil the responsibilities of a parent. He has apparently discharged those responsibilities very capably in relation to both ESF and her elder brother. RCL is more than 18 years older than ESF, and his de facto partner, MF, has consented in writing to the application for the adoption order. 7As ESF is more than 18 years of age, no consents to the proposed adoption are required under s 52 of the Act (and therefore no consents are required by s 30(1)(c) of the Act). In any event, as noted earlier, MF has given her consent to the proposed adoption. Neither is there any need for the consent of the Director-General pursuant to s 87 of the Act. The only persons with whom ESF resides are RCL and MF. As both of them have notice of the application, and as RCL is an applicant for the adoption order, there is no requirement under s 88 of the Act for the giving of any notice. 8RCL, as MF's de facto partner, is a step parent to ESF within the meaning of the Act. Section 30 of the Act provides that the Court must not make an adoption order in favour of a step parent unless: (a)the child is at least five years old, and (b)the step parent has lived with the child and the child's birth or adoptive parent for a continuous period of not less than two years immediately before the application for the adoption order, and (c)specific consent to the adoption of the child by the step parent has been given in accordance with this Act by the appropriate persons, and (d)the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child. 9Section 30(1)(a) of the Act is satisfied in this case. By s 30(2) of the Act, s 30(1)(b) does not apply in this case because it concerns the adoption of a child who is 18 years of age or more at the time of the making of the application. As noted above, no consents are required under s 30(1)(c) of the Act. However, the Court must be satisfied of the matter set out in s 30(1)(d) of the Act. 10The Court must also be satisfied of the matters set out in s 90 of the Act, to the extent that they are applicable, before an adoption order can be made. One such matter is that the Court must be satisfied that the best interests of the child will be promoted by the adoption. Section 8 of the Act lays down principles and matters to which regard must be had in making decisions about adoption and in determining the best interests of the child. Reference should also be made to s 32 of the Act, which requires that certain matters, such as the child's culture, language, and any religion, be taken into account. 11Having read and considered the evidence in support of the application, I have no doubt that the best interests of ESF will be promoted by the adoption. I am satisfied, moreover, that the making of the adoption order is clearly preferable in the best interests of ESF to any other action that could be taken by law in relation to her. As she is a fully capable adult, I do not consider that there are any such actions. 12ESF herself has formally consented to the adoption order. She has had the benefit of information about adoption, and has had the opportunity through a counselling session to raise any questions. ESF has firmly expressed the wish to have RCL, who has cared for her since she was nine years of age, formally acknowledged as her father. RCL, for his part, and MF, also want that to occur. 13The evidence discloses that RCL has, for many years, assumed the role of father to ESF. ESF has lived with RCL and MF almost continuously since 1996. Her older brother also lived with RCL and MF until about 2004. They are together recognised by others as a family. An adoption order would serve to reinforce that situation. 14The proposed adoption would in no way affect ESF insofar as her culture, language or any religion is concerned. ESF is to retain her existing names. 15For the above reasons, the Court will make the adoption order as sought. 16As ESF has not decided otherwise, on the making of the order, ESF will continue to have the same surname and given names she currently uses (see s 101(1)(a) of the Act). 17By s 95(3) of the Act, the adoption order does not have the effect that ESF is no longer regarded in law as the child of MF, or the effect that MF is no longer regarded in law as the mother of ESF (see Re D [2006] NSWSC 808 at [4] per White J). Nevertheless, a declaration to the effect that the making of the adoption order does not mean that MF has ceased to be regarded in law as the mother of ESF is sought. Whilst such a declaration is not in my view essential, I am prepared to make it so that there is no doubt about the matter. A similar declaration was recently made by White J in matter A021 of 2014. 18Finally, a direction is sought that a new birth certificate for ESF which may be issued in consequence of the adoption order show RCL as her father and MF as her mother. The Court will also give a direction to that effect.