Supreme Court New South Wales Medium Neutral Citation: Adoption of P [2017] NSWSC 1537 Hearing dates: 23 September 2017 Date of orders: 11 December 2017 Decision date: 23 November 2017 Jurisdiction: Equity - Adoptions List Before: Robb J Decision: See paragraphs 50-51. Catchwords: ADOPTION — Application for adoption — Whether consent of birth parents should be dispensed with — Whether adoption order should be made — Whether order changing name of the child should be made — Whether maternal and paternal adoption plans should be registered. Legislation Cited: Adoption Act 2000 (NSW). Category: Principal judgment Parties: Secretary, Department of Family and Community Services (plaintiff) [The child's birth father] (defendant) Representation: Counsel: Ms M Barnett (plaintiff) Solicitors: Crown Solicitors (plaintiff) File Number(s): A008/2017 Judgment 1. On 31 January 2017, the Secretary of the Department of Family and Community Services (the Secretary) filed a summons seeking an adoption order in respect of a seven year old child who I will refer to in this judgment as 'P'. The Secretary sought that the order be made in favour of P's proposed adopted parents, a couple with whom P has lived since she was seven months old. 2. The Secretary also sought, in addition to an adoption order: 1. A declaration pursuant s 21(2) to the Status of Children Act 1996 (NSW) that P's birth father is the father of P. 2. An order pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) that P's birth father be included as P's father in the Register of Births, Deaths and Marriages. 3. An order pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) that the consent of P's birth mother be dispensed with. 4. An order pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) that the consent of P's birth father be dispensed with. 5. An order that P's surname be changed and that P be given a new middle name. 1. On 23 February 2017, P's birth father filed an appearance in which he indicated that he opposed the making of an adoption order. As a result, the matter was set down for hearing before me on 14 September 2017. Background 1. P was born in December 2009. It appears from the evidence that P's birth parents commenced a relationship in around 2005 and lived with each other until P's birth father was incarcerated in 2009. P's birth father was incarcerated at the time of her birth and apparently did not sign the application form to complete the registration of P's birth. For this reason his name was not included on P's birth certificate. 2. P was transferred into the care of Anglicare in February 2010 following proceedings in the Children's Court. 3. On 27 July 2010, P was placed into the care of her proposed adoptive parents. P's proposed adoptive parents are authorised carers who have care and responsibility for P pursuant to the out of home care arrangements contained in the Children and Young Persons (Care and Protection) Act 1998 (NSW). 4. P's proposed adoptive parents have two biological children, boys aged twelve and sixteen. P has lived with her proposed adoptive parents and her two proposed adoptive older brothers since she was placed into their care. P also has four biological siblings of her own. She has a ten year old sister, a fourteen year old maternal half-sister, a six year old maternal half-brother and a twenty four year old paternal half-sister. 5. P's maternal siblings were removed from the care of her birth mother and father due to concerns for their welfare. P herself was assumed into the care of Family and Community Services shortly after her birth on the basis of pre-natal reports which raised concerns about her future wellbeing and on the basis of the history of the welfare of each of her siblings. P's birth mother has a long history of heavy drug use, as does P's birth father, who has served multiple prison sentences for both personal and property related offences. There is also evidence of allegations in relation to P's birth father's conduct towards children, including P's half-sister. 6. P has met her birth mother only a few times, and has had some contact with her material siblings, but has never met her birth father. She has spent her entire childhood as the youngest member of the family of her proposed adoptive parents. The evidence presents P as a happy seven year old girl, doing the things that one would expect a seven year old girl to be doing—going to school, learning to swim, learning to dance and sometimes annoying her older brothers. The hearing on 14 September 2017 1. P's birth father appeared in person at the hearing. He indicated that he consented to the court making a declaration that he is P's birth father and an order that he be included as P's father in the Register of Births, Deaths and Marriages. Counsel for the Secretary then stated the four remaining issues: whether the court should dispense with the birth parents' consent; whether an adoption order is in P's best interests; whether P should be known by the names contained in the summons; and whether the court should approve of the Secretary's proposed adoption plan. 2. P's birth father agreed that these were the issues in dispute. 3. Counsel for the Secretary read into evidence an affidavit of a delegate of the Secretary, an affidavit annexing a court report made pursuant to s 91 of the Adoption Act, affidavits of two referees for P's proposed adoptive parents, affidavits of each of P's proposed adoptive parents, and an affidavit of the program manager from Anglicare who oversaw the adoption work undertaken in relation to P's proposed adoption. She also tendered some documents as evidence of P's birth father's continued drug use. 4. Following the tender of the evidence, P's birth father conducted a short cross examination of each of P's proposed adoptive parents before reading his own affidavit into evidence. Counsel for the secretary did not cross examine P's birth father. 5. Each party then made submissions and I reserved my judgment. Whether the consent of P's birth mother and father should be dispensed with 1. Section 52(a)(i) of the Act states that the court must not make an adoption order unless each parent of the child consents to its doing so. However, pursuant to s 54(1)(a), consent is not required under s 52 if the requirement for consent has been dispensed with by the court. 2. In this case, P's birth mother and father have not consented to an adoption order being made and the Secretary has applied for an order dispensing with their consent. 3. The power of the court to dispense with the consent of a child's birth parent is contained in s 67 of the Act, which states: (1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that: (a) the person cannot, after reasonable inquiry, be found or identified, or (b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or (c) if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or (d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child: (i) the child has established a stable relationship with those carers, and (ii) the adoption of the child by those carers will promote the child's welfare, and (iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36. (2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child. 1. The Secretary has applied for an order dispensing with the consent of P's birth mother and father under s 67(1)(d) of the Act. This means that, as P's proposed adoptive parents are her authorised carers, the court may make an adoption order if it is satisfied that P has established a stable relationship with them, that adoption will promote her welfare, and that making the consent dispense order is in her best interests. The Secretary has not sought an order under s 67(1)(c). This means that the court has not been asked to find that there would be a serious cause for concern for P's welfare if she were placed in the care of either of her birth parents. However, that matter may still be relevant to the question of whether or not dispensing with the consent of her birth parents, and making an adoption order, is in P's best interests. 2. It is clear from the evidence that P has formed a stable relationship with each of her proposed adoptive parents and that adoption of P by her proposed adoptive parents will promote her welfare. P has lived with them and her two proposed adoptive brothers since she was seven months old. The evidence given by each of her proposed adoptive parents, by their two referees, by the program manager from Anglicare, and the evidence contained in the court Report, establishes that P's proposed adoptive parents are loving and caring parents who are devoted to P and have consistently acted in her best interests. 3. I conclude in the next part of this judgment that an adoption order is in P's best interests. That order can only be made with her birth parents' consent unless the court makes an order dispensing with their consent. To allow P's birth parents to withhold their consent would deny P the chance to formally and legally join the family she has lived with all of her life. For this reason, it is in P's best interests to order that the consent of her birth parents be dispensed with. Whether an adoption order should be made in favour of P's proposed adoptive parents 1. The Secretary filed the summons seeking an adoption order on 31 January 2017. At that time, P was present and her proposed adoptive parents were residing in New South Wales. This means that the court has jurisdiction under s 23 of the Act to make an adoption order. 2. As P was less than 18 years of age when the application for an adoption order was made, under s 24(1)(a) of the Act she is someone who can be adopted. 3. P's adoptive parents are more than 21 years of age and more than 18 years older than P. This means that, in accordance with s 27 of the Act, they can adopt a child if the court considers each of them to be 'of good repute and a fit and proper person to fulfil the responsibilities of a parent'. On the basis of the evidence, namely the evidence given by P's proposed adoptive parents, by their two referees, by P's Anglicare Program Manager, and contained in the Court Report, I am satisfied that P's proposed adoptive parents are of good repute and are fit and proper persons to fulfil the responsibilities of a parent. 4. As the court has jurisdiction, P is a person who may be adopted, and her proposed adoptive parents are persons who may adopt a child, the court may make the adoption order if it is appropriate to do so. Determining whether or not it is appropriate to make an adoption order involves consideration of several of provisions of the Act. 5. Section 8(1)(a) of the Act states that the 'best interests of the child, both in childhood and in later life, must be the paramount consideration' when making a decision about the adoption of a child. 6. Section 8(2) states that: In determining the best interests of the child, the decision maker is to have regard to the following: (a) any wishes expressed by the child, (b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant, (c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity, (d) any disability that the child has, (e) any wishes expressed by either or both of the parents of the child, (f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant, (g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, (h) the nature of the relationship of the child with each proposed adoptive parent, (i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child, (j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour, (k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child's circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child. 1. Section 90 of the Act states that: (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 … (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. 1. When all of these considerations are taken together the relevant facts are simple. P has been part of the family of her proposed adoptive parents for her entire life. They love her and care for her. They have provided her with support and have raised her as if she was one of their own children. P has a strong relationship with her proposed adoptive parents and her two proposed adoptive brothers. They are her family and she has expressed a desire to be adopted and become legally part of their family. P has said that she wants to take their surname and abandon the surname that she was given at birth. There is evidence of her being excited at the prospect of attending a formal adoption ceremony at the court. 2. The only factor that weighs against making an adoption order is the fact that neither of P's birth parents have consented to the making of an order. P does not have a strong relationship with either of her birth parents. Her relationship with her birth mother has not progressed beyond a few visits and correspondence from time to time and she has never met her birth father. Furthermore, there is no prospect of her being placed into the care of either of her birth parents if the adoption order is not made. If the order is not made, P will remain with her proposed adoptive family, not as their adopted child but as a ward of the State in their care. 3. In circumstances where there is no real prospect of P being returned to the care of her birth parents, it is in P's best interests to make an adoption order despite her birth parents not consenting to the making of the order. An adoption order will give P certainty and permanence by bringing to an end the time she has spent as a ward of the State and by bringing her legal status into conformity with reality. P is part of the family of her proposed adoptive parents and it is in her best interests to legally recognise her place within their family. Whether an order should be made to change P's names 1. The Secretary sought an order changing P's surname to the surname of her proposed adoptive parents and giving her a middle name which is a combination of the names of each of her proposed adoptive grandmothers. P's proposed adoptive mother stated in her affidavit that P had expressed her belief that it was strange for her to have a different surname to her parents and brothers. P's proposed adoptive mother said that changing P's surname was in her best interests because it would allow P to feel more connected to her family and recognise herself as a valued and equal sibling. 2. P's birth father opposed the order sought by the Secretary. He did not explain why in his affidavit beyond stating that: '[P's] name is [P]. She was named by her parents and that should not be changed'. The underlying reason as to why P's birth father opposed the order became clear throughout the course of his cross examination of P's proposed adoptive mother and father. 3. P's birth father questioned each of P's proposed adoptive parents about the possible consequences of changing P's name and obtaining a new birth certificate. It was clear from his questions that he was concerned that, if P's name was changed on her birth certificate, she might not be able to find her birth parents in the future. He is recorded as expressing a similar concern in the Court Report. Both of P's proposed adoptive parents said that P will always have the two birth certificates and confirmed that they had been and intended to continue to be open and honest with P about the identity of her natural parents. 4. The making of an order changing P's name and her obtaining a new birth certificate are unlikely to impact upon her ability to identify and contact her birth parents. It is clear from the evidence that P is aware that her proposed adoptive parents are not her birth parents. P's proposed adoptive father said that P refers to her birth parents as 'Mummy [birth mother's first name]' and 'Daddy [birth father's first name]'. P's proposed adoptive mother explained the steps that have been taken to ensure that P has contact with her birth family. For example, she gave evidence that P met her maternal grandmother for the first time in June 2016. Each of P's proposed adoptive parents gave evidence during cross examination that P will always have her original birth certificate and that they will always be open and honest with her about the identity of her natural parents. I accept their evidence. 5. The power of the court to change the name of child who is being adopted is contained in s 101 of the Act. 6. Subsection 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. 1. Subsection 101(5) provides that: 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. 1. The evidence establishes that P wishes to have the same surname as her proposed adoptive parents and brothers. During his cross examination of P's proposed adoptive parents, P's birth father questioned P's ability to make such a decision at only seven years of age. His concern was legitimate and is reflected in the requirement in sub-s 101(2) that the court consider the wishes expressed by the child as well as factors such as the child's maturity and level of understanding. 2. The decision in this case is a relatively simple one: should P keep the surname that she currently has or should she take the same surname as the people she knows as her parents and the boys she knows as her brothers? In my view, a seven year old child would be likely to have the maturity to make that decision, and would be likely to understand the decision if its ramifications were explained. The evidence establishes that P has been asked about the proposed change to her name by her Anglicare Case Manager and has discussed the change more than once with her proposed adoptive parents. I am satisfied that she understands it and that full weight should be given to her wish to share the same name as her proposed adoptive family. I therefore consider it to be in P's best interests to order that P's surname be changed to match the surname of her proposed adoptive parents. 3. In respect of her proposed new middle name, the evidence does not appear to disclose whether or not P wishes to have the middle name proposed by the Secretary. P currently does not have a middle name and, as mentioned earlier, the name that her proposed adoptive parents wish her to have is a combination of the names of each of her proposed adoptive grandmothers. I agree with the evidence given by P's Case Manager that her taking this name will increase her sense of belonging and attachment to her proposed adoptive family. I therefore consider it to be in P's best interests to order that she be given the new middle name proposed in the summons. Proposed adoption plan 1. The relief sought by the Secretary in the summons did not seek a court order approving of the proposed maternal and paternal adoption plans. The issue was raised for the first time by counsel for the Secretary during opening submissions and P's birth father agreed that it was an issue to be determined at the hearing. I consider it appropriate in the circumstances to make an order with respect to the proposed adoption plans despite there being no formal prayer for such an order in the summons. The matter was squarely before the court and the court has all of the material necessary to make a decision. 2. Section 46 of the Act states that an adoption plan is a plan agreed to by two or more of the parties to an adoption of a child that includes provisions relating to various aspects of the child's adoption, such as, for example, the child's contact with her or his birth parents. Under section 50 of the Act, the parties to an adoption plan may apply to the court for registration of the plan. If an adoption plan is registered then, pursuant to sub-s 50(4), it has effect as if it were part of the court order for adoption. 3. In this case, the Secretary and P's proposed adoptive parents have agreed to maternal and paternal adoption plans but P's birth parents have not. The Secretary and each of P's proposed adoptive parents are 'parties' to P's adoption pursuant to the definition of 'parties to an adoption' in the dictionary of the Act. This means that the court may register the adoption plans if it is satisfied that the plans meet the criteria set out in sub-s 50(3). These criteria are that: (a) the plan does not contravene the adoption principles; (b) the parties to the adoption understand the provisions of the plan and have freely entered into it; and (c) the provisions of the plan are in the child's best interests and is proper in the circumstances. 4. I am satisfied that each of these criteria have been met and that it is appropriate to make an order for registration of the plans. 5. The maternal adoption plan makes provision for P to make contact with her birth mother and relatives of her birth mother four times a year as well as contact between P and her maternal siblings. 6. The paternal adoption plan notes that there is currently no contact between P and her birth father but makes provision for the commencement of contact. It requires P's birth father to undergo a risk assessment prior to any contact with P. If there is found to be a significant risk to P then no contact will occur between P and her birth father until she is older or there is a change in circumstances. If there is no risk or the risk is manageable then the plan sets out the steps necessary to establish contact and makes provision for P to make contact with her birth father at least twice a year. I accept the evidence given by the delegate of the Department of Family and Community Services that the contact regime included in the paternal adoption plan is proper in the circumstances. 7. At the hearing, counsel for the Secretary indicated that P's birth father had refused to undertake the risk assessment. It appears from the Court Report that P's birth father took issue with some of the information upon which the adoption plan was based. Nevertheless, he stated at the hearing that he was willing to undertake a risk assessment. This was the correct approach for him to take. 8. P's birth father acknowledged in his final submissions that he had a chequered history but said that he was making changes. He said that he had recently completed a two year drug rehabilitation program and was attending support group meetings almost every day. I note that the Secretary provided evidence of P's birth father using drugs as recently as July of this year. But I also note that the case note from the rehabilitation clinic that discloses his recent drug use also records his remorse and feelings of shame about his relapse. 9. I believe P's birth father when he says that he is making changes and wants to be a responsible person. I also hope that he understands why, when his record is considered objectively, or from the position of P's proposed adoptive parents, there appears to be a genuine basis for concern that P could be at risk in his care. Whilst his opportunity to be P's father may have passed, the chance to meet her and know her has not. The best course for him to take if he wants the opportunity to meet and know his daughter—which from the evidence and his participation in the proceedings appears to be his primary concern—is to keep on with his rehabilitation and to cooperate with Anglicare, the Department and P's parents as best he can. Conclusion 1. It is appropriate to grant the following relief: 1. Declare pursuant s 21(2) to the Status of Children Act 1996 (NSW) that P's birth father is the father of P. 2. Order pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) that P's birth father be included as P's father in the Register of Births, Deaths and Marriages. 3. Order pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) that the consent of P's birth mother be dispensed with. 4. Order pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) that the consent of P's birth father be dispensed with. 5. Order the adoption of P in favour of her proposed adoptive parents. 6. Order that P's surname be changed and that P be given a new middle name in accordance with the relief sought in the summons. 7. Order pursuant to s 50 of the Adoption Act 2000 (NSW) that the paternal and maternal adoption plans be registered. 1. However, I noted earlier that the evidence indicates that P is excited about attending an adoption ceremony at the court. For that reason, I will not make the declaration and orders listed above immediately. P and her family are welcome to attend the court so that P can witness and take part in the making of the order for her adoption. I invite the Secretary to contact my Associate to arrange a time for P and her family to attend court, or if they decide not to attend court, to contact my Associate to arrange for the declaration and orders to be made in chambers. ********** Amendments 13 December 2017 - Date of orders amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2018