The Adoption of Joy and Sophia

1. [1]

   The Secretary of the NSW Department of Communities and Justice seeks an order that “Joy” and “Sophia” (not their real names), now seven and four years of age respectively, be adopted by “Cath” (not her real name).

2. [2]

   The birth parents of the children are aware of these proceedings but have not consented to the adoption. The Secretary therefore seeks an order that the Court dispense with the requirement of consent pursuant to s 67(1)(d) of the Adoption Act 2000. The Secretary also seeks orders in relation to the children’s names. In each case, the Secretary proposes that the children adopt the surname of the proposed adoptive parent. In Sophia’s case, the Secretary also proposes an additional given name.

3. [3]

   Joy has lived with Cath continuously since 23 October 2017, when she was about five months old. Sophia has lived continuously with Cath since 21 February 2020, when she was one day old.

4. [4]

   The children are sisters. Their birth parents were served with the Notice of Application for Adoption Orders, but neither parent has entered an appearance.

5. [5]

   The children are presently under the parental responsibility of the Minister for Families and Communities until each attains the age of 18 years, pursuant to orders made by the Children’s Court of New South Wales at Parramatta on 19 December 2017 (in the case of Joy) and 25 May 2021 (in the case of Sophia). Those orders remain in effect.

6. [6]

   I have determined to make the orders sought and to register the adoption plan. These are my reasons for doing so.

The circumstances of this case

1. [7]

   It is not necessary to set out the reasons why the children are presently under the parental responsibility of the Minister. Neither birth parent has expressed the view that it is appropriate for the children to be restored to their care and I am satisfied that restoration is not a realistic possibility.

2. [8]

   Cath is 44 years old and is currently single. She has one adopted child, “Patrick” (not his real name) who is eight years old and was adopted on 4 October 2019 pursuant to orders of the Court.

3. [9]

   Cath has a tertiary qualification in counselling and family therapy, although she is not currently employed. She does however have the financial capacity to meet the care needs of the children as well as the needs of Patrick and her own needs. She is also able to count on the support of her brother and his wife, who support this application.

4. [10]

   I have read the affidavit of the proposed adoptive parent and those of her referees.

5. [11]

   Both children have very high care needs. Both have been diagnosed with a number of medical conditions and disabilities. However, all the evidence before me suggests that Joy and Sophia have been very well cared for and that their complex needs have been met. Cath maintains a loving home in a suburb of Sydney with plenty of room for all of the children to explore and grow. The environment in which the children now reside seems to me to be conducive to their wellbeing, which is borne out by the various reports in evidence.

6. [12]

   Cath owns her home together with her brother and his wife. They are currently doing some renovations to the property to allow both families to live there. Once complete, Cath, Patrick, Joy and Sophia will live in one part of the premises and Cath’s brother, wife and two young sons will live in another part of the premises.

The formal requirements for adoption

1. [13]

   I am satisfied that the formal requirements of the Adoption Act have been met.

2. [14]

   Pursuant to s 87 of the Adoption Act, this application is brought by the Secretary of the Department of Communities and Justice. At the time the application was filed, the children were present within NSW: ss 23(2)(a) and 24(1)(a). The proposed adoptive parent, Cath is resident and domiciled in NSW: ss 23(2)(b) and 27(1)(a).

3. [15]

   A report concerning the proposed adoption authored by an “approved assessor” has been provided to me as part of the application: ss 91(1) and 91(2A)(s). The proposed adoptive parent is of good repute and is a fit and proper person and meets the age requirement: ss 27(1)(b) and 27(2). The proposed adoptive parent has also been assessed as a suitable person and has been selected in accordance with the Adoption Act: ss 45F and 90(1)(c).

4. [16]

   Finally, notice was given to the birth parents more than 14 days before the date of the orders contained in this Judgment: ss 72(1) and 88(1)(a), and, the birth parents have been provided with a copy of the Mandatory Written Information: s 59.

Consent

1. [17]

   The Court may not make an order for adoption unless both parents consent: s 52(a), or unless the requirement for consent has been dispensed with: s 54(1)(a). The circumstances in which the Court may dispense with the requirement for consent are set out in Part 5, Division 3 of the Adoption Act. In this case, the Secretary seeks an order dispensing with consent on the basis of s 67(1)(d), which is relevantly as follows:

2. [18]

   Section 67(2) provides:

3. [19]

   There was evidence the birth parents are aware of the proposed adoption and that they do not oppose it. Both parents have a good, positive relationship with Cath. They consider her to be caring.

4. [20]

   The evidence suggests that both birth parents are resigned to the proposed adoption and feel that there is not much they can do about it because it is a foregone conclusion. However, I respectfully acknowledge that they have not consented to the proposed adoption. I do not treat the question of whether the adoption order should be made as being a foregone conclusion.

5. [21]

   I am however satisfied that it is appropriate to make an order dispensing with the consent requirement. That is for the following reasons.

6. [22]

   As to s 67(1)(d)(i), the evidence demonstrates that the children have established a stable relationship with Cath. They have lived with her virtually their entire lives. She has a strong and loving bond with each child. The children have strong psychological bonds with Cath and Patrick.

7. [23]

   As to s 67(1)(d)(ii), I note that Cath has met the complex and demanding care needs of both children for, essentially, their entire lives. This includes their health, developmental, educational and social needs. I have every confidence that Cath will continue to meet these needs in the future.

8. [24]

   As to s 67(2), I am also satisfied that it is in the best interests of both children that the consent requirement is dispensed with. My reasons for being satisfied of this requirement are, essentially, the same as my reasons for being satisfied that it is in the best interests of the children for the adoption orders to be made, which I address below. Having formed the view that it is in the best interests of the children to make the adoption orders, and in the light of the supportive attitude of the birth parents to the children remaining in Cath’s care, I am satisfied that it is appropriate to dispense with the requirement of their consent.

Adoption orders generally and the “best interests” principles” under the Adoption Act

1. [25]

   Section 8 of the Adoption Act provides:

2. [26]

   Section 90 of the Adoption Act further provides:

3. [27]

   I note the paramount consideration in s 8(1)(a). Of this principle, and adoptions more generally, Brereton J said in Adoption of SVS [2015] NSWSC 2043 at [9]:

4. [28]

   Sackar J pointed out in Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9] that “arguably the most important work at least in this Division of the court by a very large margin in my view is determining applications for adoption. It is one of the most profound and important decisions a judge can be called upon to make.”

5. [29]

   Brereton J further summarised the principles applicable to the interaction of ss 8(2) and 90 of the Adoption Act in Adoption of NG (No 2) [2014] NSWSC 680 at [15]-[16]:

6. [30]

   His Honour continued at [74]:

7. [31]

   The question of what is in a child’s best interests involves the making of a judicial evaluation and the balancing of many factors from which an overall conclusion must be reached which will be inherently imprecise: Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241 at [16] (Lord Nicholls of Birkenhead), cited with approval in Re the Adoption of CCS and FLS [2019] NSWSC 71 at [164].

Is adoption clearly preferable in the best interests of Joy and Sophia?

1. [32]

   I am comfortably satisfied that adoption is clearly preferable and in the best interests of both Joy and Sophia. There is no other option available that I consider is better for their long-term best interests, having regard to the factors in s 8(2), and I consider this to be the case overwhelmingly.

2. [33]

   Cath supports contact with Joy and Sophia’s birth family, as appropriate. She is mindful of their relationship with their birth parents and with their extended family. She has made an effort to foster these relationships. She has a thorough and responsible attitude to parenting.

3. [34]

   The adoption of Joy and Sophia will be an excellent example of what was described as one of the “principal benefits of adoption”, namely “to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters”: In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793 at [64].

4. [35]

   I am therefore satisfied that this adoption is in the best interests of both Joy and Sophia.

5. [36]

   It is also necessary for me to be satisfied that the adoption is clearly preferable in the best interests of the children to any alternative care order. As matters stand, both Joy and Sophia are in the care of the Minister and have been living with Cath in foster care for almost their whole lives. The only alternative to adoption would be to maintain the status quo. However, the status quo offers no practical advantages over an adoption. To the contrary, the maintenance of the status quo is likely to stymie their positive bonds with, and attachment to, both Cath and their foster sibling, Patrick. Adoption will provide additional certainty and permanence for both Joy and Sophia in what is already a very healthy environment for them. It will also help to avoid any stigma that may be associated with being a “foster child.” In my view, it is clearly preferable to any other course.

6. [37]

   I will therefore make the order sought for the adoption of both Joy and Sophia, subject to the below, having satisfied myself to a degree commensurate with the gravity of this decision: Application of A – re D [2006] NSWSC 1056 at [53].

The Adoption Plan

1. [38]

   I may not make an adoption order, where the parties to the adoption have agreed to an adoption plan, unless I am satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances: Adoption Act s 90(2).

2. [39]

   The proposed adoption plan essentially maintains the arrangements for contact with the children’s birth family which Cath, to her credit, has already had in place for some time. It has not been agreed to by the birth parents, but the mother has indicated that she was happy with the plan following the implementation of some changes which she suggested. The father’s views have been sought but he has not to date indicated his attitude to the plan.

3. [40]

   The proposed adoption plan provides, in summary, for the following:

4. [41]

   I am well satisfied that the adoption plan is in the best interests of Joy and Sophia and that it is proper in the circumstances. It a sensible plan which reflects well on Cath’s approach to parenting.

5. [42]

   Accordingly, I will make an order for the adoption plan to be registered, such that it will have effect as an order of the Court: Adoption Act s 50(4). I note that, should it be necessary, the Court can review an adoption plan on the application of one or more parties to the plan and make such changes, if any, to the provisions of the adoption plan as it considers appropriate, although I hope that, given the good sense underlying this plan, this will not be necessary: Adoption Act ss 51(1) and (3).

Proposed name change

1. [43]

   The orders sought in relation to the names of the children differ slightly. Both children currently have their parents’ names, separated by a hyphen, as their surname. The Secretary seeks an order that both children take Cath’s surname as their new surname, but that they keep their parents’ names as additional given names. In Sophia’s case, the Secretary also seeks an order that she take an additional given name that has particular significance for her.

2. [44]

   Before changing the children’s names, I must consider any wishes expressed by them and any factors relevant to the weight that should be given to those wishes: Adoption Act s 101(2). Given their age, it is not necessary that the children consent to the change: s 101(4).

3. [45]

   The evidence suggests that the children have responded positively to the proposed name changes.

4. [46]

   Cath’s position is that she would prefer the children to take her surname in lieu of their current hyphenated surname. She has some concern about the overall length of their names if they keep their parents’ names, which is understandable given the age of the children. However, she is not opposed to the children retaining their parents’ names as middle names.

5. [47]

   The Secretary submits that it is in the best interests of the children to keep their parents’ names in addition to their new surname. The Secretary submitted that this will allow the children to retain a connection with their birth family, life story and identity, whilst also being formally recognised as part of Cath’s adoptive family.

6. [48]

   I accept the Secretary’s submission on this point. The children’s birth parents are part of their lives and the adoption plan will ensure that this continues to be the case. It is appropriate in these circumstances for the children to retain their parents’ names, albeit as middle names.

7. [49]

   I am also satisfied that is in Sophia’s best interests to take an additional middle name. The chosen name has particular significance for Cath and Sophia has responded very positively to the suggestion that she take it. Joy already has one additional middle name. If Sophia’s name is changed in the manner proposed, she will have the same number of names as her big sister, which will be a small but precious token of their connection to one another.

8. [50]

   Once the adoption order is made, Integrated Birth Certificates will be created for each child which will include details of their birth parents. These will be an important part of their life story.

Conclusion

1. [51]

   I am grateful to all concerned for their approach to this matter. The orders of the Court will be:

   1. (1)

      Pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the Court dispenses with the requirement for the consent of the children’s birth mother and father.

   2. (2)

      The Court makes an order for the adoption of the child Joy in favour of the adopting parent Cath and approves the proposed name changes.

   3. (3)

      The Court makes an order for the adoption of the child Sophia in favour of the adopting parent Cath and approves the proposed name changes.

   4. (4)

      Pursuant to s 194(2) of the Adoption Act 2000 (NSW), leave is granted to provide a of copy of the Adoption Plans, which the Court has found to be in the children’s best interests, to the children’s birth mother and father.

   5. (5)

      Note that the Court is satisfied that the arrangements proposed in both adoption plans are in the children’s best interests and are proper in the circumstances.