The Adoption of Mardi (a pseudonym)

These proceedings concern the proposed adoption of a child, who I will refer to as Mardi (a pseudonym), by her step-mother, who I will refer to as Claudia (a pseudonym). Claudia is married to Mardi’s birth father, who I will call Jack (a pseudonym).

By summons filed by Claudia as the proposed adoptive parent on 21 February 2024, an order is sought for the adoption of Mardi by Claudia, a declaration that the making of the adoption order does not mean that Jack as Mardi’s birth father has ceased to be regarded in law as the father of Mardi and a direction for the issuing of a new birth certificate showing her birth father, Jack, as Mardi’s father and the adoptive mother, Claudia, as Mardi’s mother.

Mardi is now 15 years of age. She lives with Jack and Claudia, who have been her primary care-givers since she was three years old. Prior to that, she was in the care of her birth mother, who I will call Nadine (a pseudonym).

Claudia and Jack have been in a relationship since around March 2011 and married in September 2014. As well as Mardi, Claudia and Jack currently live with their three biological children, Kate, Ian and Richard (not their real names), who are 11, 7 and 6 years old respectively.

Nadine and Jack, Mardi’s birth parents, met through family friends in 1992. They subsequently entered into a relationship which Jack says was considered by him to be neither official nor monogamous. Mardi was born on 13 May 2009. She is the only child of that relationship.

In December 2012, Mardi was transferred from her birth mother’s care into the care of Claudia and Jack pursuant to a decision of the Department of Communities and Justice (DCJ), who held concerns for Mardi’s welfare. Those concerns related to the unsafe living conditions at Nadine’s property.

From the time Mardi was transferred into the care of Claudia and Jack in December 2012, she has had very little contact with her birth mother. Mardi last saw her birth mother in approximately 2020. Apart from making a fortnightly child support payment, Nadine does not contribute financially to Mardi’s care and has had and continues to have negligible involvement in Mardi’s life.

On 6 February 2024, Nadine was notified of the present adoption application by email. To that email was attached a letter from the solicitors for Claudia enclosing the draft summons for adoption, minute of order, memorandum of adoption order and a factsheet about intra-family adoption. On 7 February 2024, Nadine responded by reply email, saying “[s]orry not signing them”.

Nadine was formally served with a copy of the summons and supporting documents in these proceedings on 17 May 2024, at which time a field agent personally delivered the documents to a male person at the premises in Queensland where Nadine is believed to reside. That male person stated that he knew Nadine, accepted the documents and indicated that he would pass them on to Nadine. Nadine has not entered an appearance in these proceedings; the proposed adoption is not contested, nor is it consented to, by Nadine.

The present application is for adoption by a step-parent, in whose care Mardi has been since she was three years old and whose partner is Mardi’s birth father. The proposed adoptive parent, moreover, is the birth mother of Mardi’s paternal half-siblings, who Mardi considers (without qualification) to be her siblings. The proposed adoptive parent is also the person who Mardi, in the ordinary way, calls “mum”. Mardi does not have regular contact with or a meaningful relationship with her birth mother and her birth mother lives interstate.

Mardi is now over the age of 12, being the age at which a child may give sole consent to their own adoption pursuant to ss 54(2) and 55 of the Adoption Act 2000 (NSW).

A report dated 9 January 2024 and filed 21 February 2024 from a registered counsellor engaged to counsel Mardi and assess Mardi’s capacity to give informed consent (pursuant to ss 55(1) and 63 of the Adoption Act) records that Mardi demonstrates sufficient capacity, understanding and maturity to consent to her own adoption. An instrument of consent dated 7 February 2024 and filed 21 February 2024 has been completed and signed by Mardi, and witnessed by an independent lawyer, in accordance with the requirements of ss 61–63 of the Adoption Act and div 4 of the Adoption Regulation 2015 (NSW).

In respect of adoption orders generally, s 90(1) of the Adoption Act stipulates that the court must be satisfied as to certain matters, namely:

Section 90(3) of the Adoption Act provides that no adoption order should be made unless the court 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.

In respect of an application for adoption by a step-parent, s 30(1) of the Adoption Act provides that:

I am satisfied that the requirements of s 30(1)(a) and (b) are met in the present case. Section 30(1)(c) and (d), and the balance of the factors in s 90 (as applicable), are addressed below.

Determining adoption applications is an important aspect of the court’s work. [1] An order for adoption is one of the most significant and far-reaching orders the court is empowered to make, [2] not least because adoption orders involve a particular degree of finality. [3]

The far-reaching nature of an adoption order has been described this way:

In the present case, I note that the effect of the adoption order sought, being an adoption order in favour of a step-parent with whom a birth parent of the child is living, does not extend to extinguishing Jack’s status in law as Mardi’s parent. That is the result of s 95(3) of the Adoption Act, which states:

Because of the seriousness and significance of the decision and in line with s 90(1)(a) and (b) of the Adoption Act, I must not make an adoption order unless I am satisfied that the best interests of Mardi will be promoted by the adoption and that, as far as practicable and having regard to Mardi’s age and understanding, the wishes and feelings of Mardi have been ascertained and due consideration given to them.

I must have regard to the best interests of Mardi, both in childhood and later life, this being the paramount consideration as stated in s 8(1)(a) of the Adoption Act. I must also have regard to the principles that adoption is to be regarded as a service for the child (s 8(1)(b)) and that no adult has a right to adopt the child (s 8(1)(c)).

In determining the best interests of a child, I must take into account the matters set out in s 8(2), including:

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. It will, inherently, be impressionistic and imprecise. [5]

Having regard to the matrix of factors listed above, I pay particular regard to the evidence before me that indicates the following:

I may not make an adoption order unless satisfied that such an order is “clearly preferable” in the best interests of Mardi next to any other legal measure that could be taken in relation to Mardi’s care: ss 30(1)(d) and 90(3) of the Adoption Act.

I must therefore be satisfied that the balance weighs more than slightly in favour of the proposed adoption over other alternatives. The making of an adoption order must be obviously, plainly or manifestly preferable to any other action that could be taken by law. [6] I must reach the degree of conviction in favour of the adoption commensurate with the gravity of the decision. [7]

Adoption serves the identity needs of the child in question, in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family, bringing their legal status into conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own, not only during childhood but for life. [8] I consider that this purpose has particular relevance and should be duly weighted in respect of Mardi’s proposed adoption by Claudia.

I note that if I were to maintain the status quo and make no order, Mardi would remain, at law, the child of Nadine. This would mean that notwithstanding Claudia’s assumption of the role of parent and the provision of care in kind to Mardi from the time she was a toddler, and Mardi’s perception of Claudia as her mother, Claudia would not be legally recognised as Mardi’s mother. An adoption order has the advantages of certainty and permanency, where making no order begets a risk that Mardi may experience stigma, or at least internal disquiet, arising, inter alia, from the fact she would continue to be Claudia’s “step-daughter” rather than “daughter”, so far as the law is concerned.

I note also that other alternatives — a guardianship order or an order allocating parental responsibility for Mardi to Claudia — while achieving some of the functional aims served by an adoption order, lack the symbolic and expressive value of a formal adoption order. An order allocating parental responsibility for Mardi to Claudia, expressly allowing Claudia to make significant decisions about Mardi and Mardi’s life and care, would, moreover, lack any real practical utility in the circumstances, in light of Claudia’s ongoing and undisputed role in parenting Mardi. Such shortcomings have been remarked upon as follows:

For these reasons, I am persuaded that Mardi’s best interests are best served by an adoption order in favour of Claudia, and that such a course is clearly preferable to the alternatives to adoption.

Pursuant to s 52, in conjunction with ss 30(1)(c) and 90(1)(d), of the Adoption Act, the consent of each of a child’s birth parents to the proposed adoption is needed unless, as here, the child has provided sole consent to their own adoption (s 54).

Sections 54, 55 and 63 of the Adoption Act relevantly provide as follows:

Also relevant are ss 58(1), 59, 61 and 62 of the Adoption Act, applicable parts of which provide:

As detailed above, Mardi is old enough and has been assessed as sufficiently mature to provide sole consent to her own adoption, and has done so.

I am satisfied, moreover, that Mardi’s consent (as given) is informed consent and therefore is effective: s 58(1) of the Adoption Act. Mardi was counselled in accordance with s 63 of the Adoption Act by a registered counsellor engaged by the DCJ, who also discussed with her the mandatory written information.

Nadine has received at least 14 days’ notice of the application, in line with s 54(3)(a) of the Adoption Act.

Accordingly, neither parental consent nor an order dispensing with parental consent pursuant to s 67(1)(d) of the Adoption Act is required.

It is proposed that, on the making of the adoption order, Mardi will retain her full legal name including Jack’s surname, as recorded on her original birth certificate. That is in line with Mardi’s express wishes.

For the reasons set out above, I am satisfied that an adoption order in the proposed terms is in the best interests of Mardi and should be made.

I make the order, declaration and direction as sought.