Director-General, Department of Family & Community Services; Re CDM [2015] NSWSC 1573

Supreme Court New South Wales

Medium Neutral Citation: Director-General, Department of Family & Community Services; Re CDM [2015] NSWSC 1573 Hearing dates: 21 October 2015 Date of orders: 21 October 2015 Decision date: 21 October 2015 Jurisdiction: Equity Before: Hallen J Decision: Order in terms of Paragraph 1 of the document headed Order signed, dated and placed with the court papers Catchwords: ADOPTION - Child over 18 years - Adoption Act 2000 (NSW) - Section 101(1)(a) - Whether with child's consent the court can change the child's name in making an adoption order Legislation Cited: Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Category: Principal judgment Parties: Secretary, New South Wales Department of Family and Community Services (Plaintiff) KJA and DKA (Applicants) CDM (Child) Representation: Solicitors: NSW Crown Solicitor (Plaintiff) File Number(s): A092/2015

Judgment –EX TEMPORE 1. HIS HONOUR: Before the Court is a Summons, filed on 4 September 2015, by the Secretary, the New South Wales Department of Family and Community Services ("the Secretary") for an order of adoption and a related order in respect of CDM, who was born 25 September 1995. Even though s 104 of the Adoption Act 2000 (NSW) ("the Act") states that "'child' means a person who is less than 18 years of age", with no disrespect intended, I shall refer to CDM as "the child" for convenience. The proposed adoptive parents are KJA and DKA. The related order concerns the change of the middle name from "D" to "J" and the surname from "M" to "A". 2. (In accordance with the requirements of s 180 of the Act I shall refer to the persons affected by the adoption application in a manner which will not identify them, or make it reasonably likely that they may be identified.) 3. Included in the Summons is a request by the Plaintiff that "the application be dealt with in the absence of the public but in the presence of the plaintiff, applicants and child". I have abided that request and the matter was listed before me today by arrangement. CDM, KJA and DKA are present in court. Appearing for the Plaintiff is Ms N Hailstone, a Senior Solicitor with the Crown Solicitor's Office. 4. So as to avoid suspense, I am entirely satisfied, on all of the evidence that it is plainly in the interests of CDM that an adoption order be made. 5. Adoption is purely a creature of statute. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. Following adoption, the child ceases, in law, to be a child of his, or her, birth mother and birth father and the brother or sister of his or her siblings. He, or she, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child: s 95(2)(c) of the Act. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act. 6. For this reason, and other reasons, adoption will be an extremely important step in a child's life, which will determine his, or her, identity and family relationships throughout his, or her, remaining life. Thus, the making of an order must be considered, not as a means of determining with whom a child is to live, but as a way of making a child legally part of a new family and severing any legal relationship with his, or her, birth family. 7. Before an adoption order can be made, the court must be satisfied that a number of procedural safeguards required by the Act have been met. 8. Relevantly, s 87 of the Act provides that the Court may make an adoption order only on application made by the prospective adoptive parent or parents with the consent of the Director-General (now the Secretary) (except in certain cases), or by the Director-General or by a principal officer on behalf of the prospective adoptive parent or parents or by a child who is 18 or more years of age for his or her adoption. Accordingly, the proceedings are able to be brought. 9. Because CDM is over the age of 18 years, under s 24 of the Act, I must be satisfied, that he was cared for by the applicants for the adoption order. An adult child is taken to have been cared for by the applicants if, as a person under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998 (NSW), he has been in the proposed adoptive parents' care and they have had responsibility for him. 10. CDM was born in Queensland and is an Australian citizen. Whilst the identity of his birth mother is known, she has had no contact with CDM since late June 1996. 11. On 20 December 1995, the Children's Court at Emerald, Queensland, with the consent of his birth mother, made an order that CDM be admitted to the care and protection of the Director-General of the Queensland Department of Family Services and Aboriginal Islander Affairs. On 14 July 2008, a representative of the Queensland Department of Child Safety requested the transfer of Guardianship administratively to the NSW Department of Community Services. 12. On 1 February 2010, the Director-General, Department of Community Services (NSW), (as the Secretary was then known), by delegate, consented to a transfer of CDM's guardianship and parental responsibility until CDM attained the age of 18 years. 13. CDM has lived with KJA, who was born in June 1947, and DKA, who was born in September 1957, continuously, since 31 May 1996. They have been since 1994 authorised carers. CDM was placed with them whilst they lived in Queensland and he moved with them to NSW. 14. KJA and DKA signed an application form to adopt CDM in April 2013 pursuant to s 43 of the Act following which they attended a "preparation to adoption" seminar organised by the Department. (Approval to commence adoption action was given by a Delegate of the Secretary on 29 May 2013.) 15. KJA and DKA have been in a de facto relationship continuously since May 1986 and remain in a committed and stable relationship as de facto partners. They, with CDM, are currently living in New South Wales and were at the time of the filing of the Summons. They have all lived in New South Wales since at least December 2001. 16. Accordingly, CDM is eligible to be adopted under s 24. 17. There are affidavits attesting to the good fame and character of each of KJA and DKA. They have been appropriately assessed to determine their suitability to be approved to adopt pursuant to s 45 of the Act. As part of that process, National Police Certificates have been issued with "no disclosable court outcomes" or outstanding matters recorded against either. 18. A report in writing, concerning the proposed adoption, has been provided to the Court (s 91(1) of the Act). (This report is not open to inspection by, or made available to, any person, including any party to the proceedings (s 194 of the Act).) The author of the report is a Contracted Adoption Assessor. (Section 91 permits the trial Judge hearing the adoption application to have access to the report, notwithstanding the restriction imposed by s 194(1). It also permits the trial Judge to accept the report, which, in this case, I do.) 19. On 5 March 2013, CDM was provided with a copy of Mandatory Written Information on Adoption. On 28 June 2013, he spoke with a registered counsellor employed by the Department of Family and Community Services, for counselling and was assessed regarding his capacity to understand the effect of signing a consent to his adoption. 20. On 8 July 2013, whilst under the age of 18 years, and in accordance with s 55 of the Act and cl 34 of the Regulation, CDM signed the instrument of consent to his adoption by the proposed adoptive parents. 21. Again, because CDM is over 18 years of age, s 54(1)(d) of the Act has the consequence that the consent of the birth parents is not required. Furthermore, because the birth parents' consent is not required, and because the child does not reside with either of them, notice is not required under s 88(1) of the Act. It follows that neither an order dispensing with the consent of the birth parents, nor one dispensing with notice to each, is necessary. 22. I am satisfied that the prospective adoptive parents, KJA and DKA, have been selected in accordance with the Act, that they are fit and proper persons to adopt CDM pursuant to the Act, and that consent to his adoption has been given by every person whose consent is required under the Act. The Secretary has assessed their suitability to adopt a child. 23. Taking into account all relevant matters referred to in s 8 of the Act, and in particular, the attitude of each proposed adoptive parent to CDM, 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 CDM, including his emotional and intellectual needs, I am satisfied that the best interests of CDM, in later life (as he is no longer a child), would be promoted by adoption by the proposed adoptive parents. Importantly, KJA and DKA wish to have the adoption order made so as to give legal effect to what they regard as a real family relationship. 24. As important a consideration is CDM's views on the matters concerning his adoption. He has been given an opportunity to express those views freely and those views are to be given due weight in accordance with his developmental capacity and the circumstances. I am satisfied that, as far as practicable, and having regard to his age and understanding, the wishes and feelings of CDM have been ascertained and I have given due consideration to them. 25. In this regard, as CDM is child who is more than 12 years of age and of sufficient maturity to understand the effect of giving consent, he may give sole consent to his adoption by the proposed adoptive parents, particularly since he has been cared for them for more than 2 years. 26. I am also satisfied that it is in CDM's best interests, and proper, to make an adoption order, and that the making of an adoption order would be clearly preferable, in his best interests, than any other action that could be taken by law in relation to his care. In this regard, an adoption order is obviously, plainly, and manifestly preferable to any other action that could be taken by law. 27. As CDM is over the age of 18 years, an Adoption Plan is not required and has not been prepared. 28. Section 89 of the Act provides that the Court must not make an adoption order, if the child to be adopted has consented to the adoption, until a period of 30 days, beginning on the day on which the instrument of consent to the adoption was signed, has expired. In the present case, CDM's consent was given more than 30 days ago. 29. Accordingly, I will make an order for the adoption of CDM by the proposed adoptive parents KJA and DKA. 30. The Court has received written Submissions from the Plaintiff concerning the application for a name change to which reference has been made. Those submissions have been read and will remain with the Court papers. 31. Section 101 of the Act deals with the names of an adopted child. Section 101(1)(a) provides, in effect, that where an adoption order is made in respect of a child 18 or more years of age, the child is to have the same surname and given name or names as he used immediately before the order is made, unless the child otherwise decides. Importantly, s 101(2) provides that 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. 32. In this case, CDM, in July 2013, when 17 years of age, consented to the adoption, and expressed the wish that following the adoption he be known as "CJA", "J" being the middle name and "A" being the surname of the proposed adoptive parents. He wishes, however, to preserve his original first name. 33. The question for the court is whether in making the adoption order, I can treat that as a "decision" of CDM for the purposes of s 101(1)(a), and reflect it in the order, thereby dispensing with the requirement for a further name change by Deed Poll. 34. Having regard to the remaining provisions of s 101, which seem to contemplate a number of factors that the Court can take into account in making an order changing a child's name, and having regard to the express provision for an exception in s 101(1)(a) of the Act, it seems to me the Court can, and should, take into account his wishes, and make an order in accordance with CDM's decision that, upon the adoption order being made, he have the names he wishes and requested that he have. 35. In making an order, I have expressly considered his wishes and factors such as his maturity and level of understanding that are relevant to the weight to be given to those wishes, and necessarily to his own consent to the change of name. I also have regard to the evidence of the adoptive parents that CDM has used the surname "A", "informally for his entire childhood". 36. Accordingly, I propose also to make the order that he have the first name "C", the middle name "J" and the surname "A". 37. Thus, I make an order in terms of Paragraph 1 of the document headed Order, which I shall sign, date and place with the Court papers.