The Adoption of Elijah (a pseudonym)

1. [1]

   The Secretary, New South Wales Department of Communities and Justice (“the Secretary”) seeks an order for the adoption of the child, who I will call “Elijah” (not his real name). Elijah was born in August 2011.

2. [2]

   For convenience, and without intending any disrespect, I will refer to the various persons involved in this application by given names. For reasons of confidentiality, none of these names are the persons’ real names.

3. [3]

   Elijah’s mother is Mia. His father is not known.

4. [4]

   The proposed adoptive parents are Mia’s sister, Sophia, and her husband, Ben.

5. [5]

   Elijah was taken into care on 1 September 2011, when he was less than one month old.

6. [6]

   On 16 February 2012, the Children’s Court of New South Wales made an order that parental responsibility for Elijah be allocated to the Minister for Families, Communities and Disability Services for a period of two years, with joint responsibility for contact then to be shared between the Minister and Elijah’s grandmother (and the mother of Mia and Sophia), Alice, and her then partner for a period of 12 months. Thereafter, for a further period of 12 months, the Children’s Court made an order that Alice and her then partner have sole parental responsibility, except in relation to the issue of contact with Mia, which was to be supervised by the Minister for a period of two years.

7. [7]

   Elijah lived with Alice until around June 2014, at which point Elijah was placed temporarily into foster care.

8. [8]

   Elijah was placed into the care of the proposed adoptive parents, Sophia and Ben, in June 2014. He was then almost three years of age.

9. [9]

   On 15 May 2015, the Children’s Court made final orders allocating parental responsibility for Elijah to the Minister for 12 months, followed by shared parental responsibility between the Minister, Sophia and Ben for a further 12 months, after which Sophia and Ben would have sole parental responsibility.

10. [10]

    Sophia and Ben have thus had sole parental responsibility for Elijah since 15 May 2017.

11. [11]

    Whilst Sophia and Ben have sole parental responsibility for Elijah, they are also “authorised carers” of Elijah for the purposes of, relevantly, the provisions in s 67(1)(d) of the Adoption Act 2000 (NSW) (“the Act”) dealing with the dispensing of consent. I return to this below.

12. [12]

    Sophia and Ben have a daughter, Melanie, who is now seven years of age.

13. [13]

    Mia has not formally given her consent to the proposed adoption but agrees to it and has signed the proposed Maternal Adoption Plan (“the Adoption Plan”).

14. [14]

    The maternal grandmother, Alice, has been joined as a defendant to the proceedings. She appeared before me on 30 November 2022 to make submissions in opposition to the proposed Adoption Plan.

15. [15]

    I turn now to that issue.

The proposed Adoption Plan

1. [16]

   The Adoption Plan was the subject of a mediation attended by Sophia, Ben, Mia and Alice.

2. [17]

   It provides that, relevantly, Elijah is to have face-to-face contact with Mia (and her two year old son, Louis) at least eight times a year and that, in addition, Mia is able to attend at least four of the visits to take place with Alice.

3. [18]

   The Adoption Plan makes the following provision for Elijah’s contact with Alice:

4. [19]

   Alice expressed concern with two aspects of the Adoption Plan. The first was the frequency of her contact with Elijah. The second was the proposal that Ben oversee their contact.

5. [20]

   The Adoption Plan provides for face-to-face contact between Elijah and Alice “at least” eight times per year.

6. [21]

   There is also to be telephone or video contact.

7. [22]

   Thus, in her affidavit dated 9 May 2022, Sophia said:

8. [23]

   As I have said, there has been a mediation concerning, amongst other things, the nature of Alice’s contact with Elijah. Thus, in his affidavit dated 16 September 2022, Ben said:

9. [24]

   As Dr Barnett SC, who appeared for the Secretary, submitted, in cases like this, it is necessary to balance a number of competing and not always reconcilable considerations when considering what formal arrangement should be settled upon in an adoption plan. This is particularly so in a busy household including young children such as Elijah and Melanie.

10. [25]

    Ben gave this evidence in that regard:

11. [26]

    As I have said, the Adoption Plan proposes a total of, at least, eight contact visits a year between Elijah and each Mia and Alice. Alice submitted that this involved, in effect, her having contact with Elijah once every six weeks or so and that her contact with Elijah should be at least monthly. I have no reason to doubt that, as Alice said to me, she loves Elijah and wishes to have regular contact with him so that a loving and appropriate grandmotherly relationship can continue to develop between them. However, I am unable to conclude that the frequency of contact proposed in the Adoption Plan is, at least for the moment, less than is necessary to promote Elijah’s best interests in relation to his relationship with Alice.

12. [27]

    There have been incidents, some years ago now, where Alice’s mental health has been challenged.

13. [28]

    These incidents played a role in the removal of Elijah from her care and his ultimate placement with Sophia and Ben.

14. [29]

    Contact between Elijah and Alice has been overseen by Ben.

15. [30]

    Thus, in his affidavit of 9 May 2022, Ben said:

16. [31]

    In his affidavit of 16 September 2022, Ben said:

17. [32]

    As to Ben’s latter point, Alice did inform me that she wished to speak to Elijah, in Ben’s absence, about the level of contact Elijah may wish to have with her; a topic which Sophia and Ben may well see as being inappropriate.

18. [33]

    In his most recent affidavit, made on 16 November 2022, Ben said:

19. [34]

    In relation to overnight visits, Ben deposed:

20. [35]

    This evidence persuades me that the contact proposed in the Adoption Plan between Elijah and Alice is, at least for the moment, appropriate, and acts to promote Elijah’s best interests.

21. [36]

    In oral submissions, Dr Barnett drew attention to information produced on subpoena by the Commissioner of Police which shows a number of interactions between Alice and the police, most recently relating to an Apprehended Domestic Violence Order made in relation to Mia’s former partner, the father of Louis. Dr Barnett submitted that these matters, the details of which it is unnecessary for me to recite, show that Alice is associated with an “unstable environment” and that there had been a “history of volatility”. I do not see that these matters add significantly to the factors which, in my opinion, emerge from the balanced evidence given by Ben to explain why he considers that his oversight is, at least for the moment, necessary.

22. [37]

    I am satisfied that I should approve the Adoption Plan in the form proposed.

23. [38]

    Alice has not signed the Adoption Plan.

24. [39]

    However, as I propose to approve the Adoption Plan, and because it will then be registered, Alice may care to give consideration to becoming a party to the Adoption Plan.

25. [40]

    The Adoption Plan records that Alice intends to seek extra time with Elijah at Easter, on Elijah’s birthday and at Christmas and, as Dr Barnett pointed out in a supplementary note, thus makes clear Alice’s wish for further time with Elijah than is provided for, at a minimum, within the Adoption Plan.

26. [41]

    By reason of s 50(4) of the Act, once an adoption plan is registered it has effect, on the making of an adoption order, as if it were a part of that order.

27. [42]

    Section 51(1) of the Act provides that the court can review an adoption plan, but only on the application of one or more parties to the plan. If Alice does not sign the Adoption Plan, she could not be an applicant to review the Adoption Plan. If Alice does sign the Adoption Plan, it may well be that she thereby becomes a party to it and thus entitled to seek a review of it. That is a matter about which Alice will need to take her own advice.

28. [43]

    Otherwise, if Alice is not a party to the Adoption Plan, her only ability to seek to vary it would be to move under the Uniform Civil Procedure Rules 2005 (NSW). The ability to vary an order of the Court under the relevant provisions of that Act is limited.

Dispensing with the consent of Sophia and Ben

1. [44]

   Sophia and Ben are “relatives” of Elijah for the purposes of the “Dictionary” in the Act.

2. [45]

   Section 29 of the Act provides that a court must not make an adoption order in favour of a relative unless that relative has given “specific consent” to the adoption. [1]

3. [46]

   Sophia and Ben have not formally given their consent to this adoption although, as they are the applicants for adoption, they plainly do consent to it.

4. [47]

   The Secretary submits, and I accept, that it is not appropriate in this case to require Sophia and Ben to take the formal steps required by the Act [2] for the giving of “specific consent”. The provisions in the Act relating to such consent are aimed at ensuring that a person who is relinquishing the child for adoption understands the nature and effect of the adoption process. I agree with the Secretary’s submission that compliance with these provisions is not necessary in this case.

5. [48]

   Under s 67 of the Act, I may dispense with Sophia’s and Ben’s consent to the adoption if they are “authorised carers” and the requirements of s 67 are otherwise satisfied (which they plainly are, as Elijah has established a stable relationship with Sophia and Ben and the adoption will promote his welfare).

6. [49]

   I am satisfied, for the reasons outlined by Dr Barnett in her careful submissions, that Sophia and Ben are “authorised carers” of Elijah. An “authorised carer” under the Act is a person who, relevantly, has care and responsibility for a child under an out-of-home arrangement made under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). Elijah was placed with Sophia and Ben under the Care Act and they clearly have care and responsibility for him. As to whether the arrangements in question constitute “out-of-home” care under the Care Act, such care means, by virtue of s 135 of the Care Act, residential care and control of a child provided by a person other than the child’s parents and at a place outside of the usual home of the child; but not care provided by a relative unless it is care in respect of which the Secretary is providing support under s 153 of the Care Act.

7. [50]

   For the reasons outlined in Dr Barnett’s submissions, I am satisfied that the Secretary is providing such support.

8. [51]

   I will therefore make an order dispensing with the consent of Sophia and Ben to this adoption.

Dispensing with the consent of Mia

1. [52]

   Mia has not, formally, consented to Elijah’s adoption by Sophia and Ben. However, Mia no longer actively contests the proceedings and, as I have said, has signed the Adoption Plan.

2. [53]

   Under s 67(1)(d)(i) of the Act, and because Sophia and Ben are “authorised carers” of Elijah, I may dispense with Mia’s consent if satisfied that Elijah has established a stable relationship with Sophia and Ben and the adoption will promote his welfare.

3. [54]

   I have no doubt that these requirements are satisfied here.

4. [55]

   As Dr Barnett submitted on behalf of the Secretary:

Whether Elijah’s best interests will be promoted by the adoption

1. [56]

   For the reasons set out in the preceding paragraph, there is no doubt that the making of an adoption order will be in Elijah’s best interests.

2. [57]

   Elijah is thriving in the care of Sophia and Ben, including at school, where he is achieving outstanding results of which he should be proud.

Proposed name

1. [58]

   Sophia and Ben propose that Elijah’s name be Elijah [redacted].

2. [59]

   This preserves Elijah’s current given names and incorporates Sophia’s and Ben’s surname as part of his name. This is both appropriate and, the evidence reveals, in accordance with Elijah’s wishes.

Conclusion

1. [60]

   As I am satisfied that the formalities of the Act are otherwise satisfied, I propose to make the orders sought by the Secretary.

2. [61]

   Those orders are:

   1. (1)

      that pursuant to Adoption Act 2000 (NSW), s 67(1)(d), the Court dispense with the consent of the child’s birth mother, Mia;

   2. (2)

      that pursuant to Adoption Act 2000 (NSW), ss 67(1)(a) and (d), the Court dispense with the consent of the child’s birth father;

   3. (3)

      that pursuant to Adoption Act 2000 (NSW), s 88(4), the Court dispense with the giving of notice of the application to the child’s birth father;

   4. (4)

      that pursuant to Adoption Act 2000 (NSW), s 67(1)(d), the consent of the proposed adoptive parents, Sophia and Ben, who have parental responsibility orders in favour of the child, be dispensed with;

   5. (5)

      that pursuant to Adoption Act 2000 (NSW), ss 50(1) and (3), the Adoption Plan signed by Mia on 1 September 2022, Sophia and Ben on 13 September 2022, and the Delegate of the Secretary on 19 September 2022, be registered;

   6. (6)

      an order for the adoption of the child Elijah in favour of the adopting parents Sophia and Ben; and

   7. (7)

      an order approving the name [redacted] as the surname and “Elijah [redacted]” as the given names of the child.

3. [62]

   Before making these orders, I will give Alice an opportunity to consider whether, despite her misgivings concerning the terms of the Adoption Plan, she is willing to sign, so as to preserve such entitlement as that may give her to make an application under s 51 of the Act to review the Adoption Plan.

4. [63]

   Unless I hear from Alice by 5pm on 16 December 2022 that she has taken that course, I will make the orders I have set out at [61] above.