Re the Adoption of AM [2019] NSWSC 220

Supreme Court New South Wales

Medium Neutral Citation: Re the Adoption of AM [2019] NSWSC 220 Hearing dates: In Chambers Date of orders: 07 March 2019 Decision date: 07 March 2019 Jurisdiction: Equity Before: Hallen J Decision: See paragraph 47 Catchwords: FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – adoption – adoption by relatives – whether adoption clearly preferable to any other order that could be made with respect to care of child Legislation Cited: Adoption Act 2000 (NSW) Cases Cited: Application of M [1999] NSWSC 497 Re A & B and the Adoption of Children Act (1965) [2003] NSWSC 595 Re V (Children) [2013] EWCA Civ 913 Texts Cited: United Nations' Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (General Assembly Resolution 41/85, of 3 December 1986) Category: Principal judgment Parties: VM (proposed adoptive father) SM (proposed adoptive mother) Representation: Solicitors: Emil Ford Lawyers (Plaintiffs) File Number(s): A203/2018

Judgment 1. HIS HONOUR: This is a private application under the Adoption Act 2000 (NSW) ("the Act"), for the adoption of a male child, born in September 2011, by his aunt and uncle. As will be read, the biological father of the child is the brother of the proposed adoptive mother, and the biological mother is her sister-in-law. 2. For the sake of preserving the anonymity of the parties, as is required by s 180 of the Act, I shall refer to the child, somewhat impersonally, as "AM"; to the married couple in whose favour the adoption order is sought, as "VM" and "SM"; to the mother of the child, as "SN"; and to the father of the child, as "GN". The medium neutral citation has been anonymised accordingly. 3. Even though I have dealt with the matter in Chambers, because this is what is called an "intra-family" adoption, and the consent of the birth parents has been given, I have considered it necessary to provide written reasons for the orders that I shall make. The existence of a natural family relationship between the child and the proposed adopting parents "suggests that it is possible that there may be confusion for the child about relationships and family roles if the adopting parent[s] and other relatives have several family ties to the child. There are sources of confusion which do not arise in the lives of children generally": Application of M [1999] NSWSC 497, per Bryson J, at [2]. (For example, when a paternal aunt adopts her nephew the child's birth parents become his uncle and aunt.) 4. Of course, it would be erroneous to assume that an intra-family adoption always means a distortion of relationships. In this case, the applicants are able to show a close, and established, relationship with the child. They have lived together for the whole of AM's life. 5. The determination of the matter has been delayed, in part, because of the intervening Law vacation and partly because, when I read the affidavits on the Court file, there was no affidavit from either of the birth parents. I considered it necessary to have evidence from each of them. Those affidavits were recently filed. 6. The Dictionary to the Act, relevantly, defines the expression "parties to an adoption" to mean: (a) the child; (b) the birth parent or birth parents who have consented to the child's adoption; (c) the person or persons selected to be the prospective adoptive parents of the child; (d) the Secretary (referring to the Secretary, Department of Family and Community Services ("the Secretary")); (e) the appropriate principal officer. It is also pertinent to note that the Dictionary defines "relative" to include uncle or aunt of a person and whether the relationship is of the whole blood, or half blood, or by marriage. 7. (The Secretary is not engaged in intra-family adoptions of this kind. Similarly, an application for adoption by relatives is exempted from the requirement that adoption applications can be made only by, or with the consent of, the Secretary.)