Re Y [2013] NSWSC 1477
Application of H & H, child JW [2011] NSWSC 93
Director-General, NSW Department of Family and Community Services
re D [2012] NSWSC 223
Director General Department of Family and Community Services
Re Stephen [2011] NSWSC 1521
Director General Department of Human Services
Source
Original judgment source is linked above.
Catchwords
Re Y [2013] NSWSC 1477
Application of H & H, child JW [2011] NSWSC 93
Director-General, NSW Department of Family and Community Servicesre D [2012] NSWSC 223
Director General Department of Family and Community ServicesRe Stephen [2011] NSWSC 1521
Director General Department of Human Services
Judgment (8 paragraphs)
[1]
Background Matters
A comprehensive account of the history is contained in the affidavits read by counsel for the Applicant. It is not necessary to repeat all of that history. The following facts are clearly established.
Mr Y was born in Wollongong, New South Wales, in August 1970, whilst Mrs Y was born, also in Wollongong, in November 1971.
Mr Y and Mrs Y were married in October 1997. They have two biological children, namely KBY, who was born in February 2003, and MKY, who was born in January 2005.
Almost at birth, J was placed under the care and responsibility of the then Director-General of Community Services, pursuant to s 49 of the Care Act. I have earlier stated that since January 2013, Barnardos has had delegated parental responsibility for J.
J was placed into the care of Mr Y and Mrs Y on 17 October 2012, five days after his birth. He has remained living with them since then.
Whilst Ms R was identified on J's Birth Certificate as J's mother, Mr P was not identified thereon as J's father. ln 2012, Ms R nominated Mr P as J's father.
J's three full siblings, whose parents are also Mr P and Ms R, are CR, who was born in March 2007, T R-P, who was born in April 2008, and JP, who was born in November 2009.
Mr P orally stated, in January 2015, that he did not doubt that J was his child. As they otherwise have three children, a paternity test report, dated 5 May 2015, from Genetic Testing Laboratories, was able to be been obtained, which, together with the other evidence established, on the balance of probabilities, that Mr P is J's father.
(There is a letter dated 3 September 2015 from the Registry of Births Deaths and Marriages to Ms Willick stating that the paternity test report "does not meet the requirements of the Family Law Act 1975 (Cth)." It was suggested that in lieu of obtaining a report that did meet those requirements, the same could be achieved by providing a court order or if "both parents complete the adding father form and provide 3 identifications".)
J has four maternal half-siblings (whose mother is Ms R), namely BS and KS, twins who were born in August 1998, GS, who was born in February 2000, and PS, who was born in September 2003.
Since coming into care, J's contact with Ms R has been sporadic, and with Mr P, non-existent. It has proven impossible to obtain confirmation from him of contact arrangements.
Other persons of significance in J's life are his maternal grandmother, his two maternal aunts, and his paternal grandparents. However, the evidence reveals that Ms R has little involvement with any of them.
[2]
Formal Matters
Next, I set out some of the formal factual matters that must be proved by the Applicant, which I am also satisfied have been established:
1. J was born in Wollongong and is an Australian citizen. When the application was filed, J was present in New South Wales: s 23(2)(a) of the Act.
2. Mr Y and Mrs Y live in New South Wales: s 23(2)(b) and s 28(1)(a) of the Act.
3. J was less than eighteen years of age at the time the Summons was filed: s 24(1)(a) of the Act. He has lived with Mr Y and Mrs Y, continuously, since 17 October 2012.
4. Mr Y and Mrs Y then, and now, are authorised Barnardos' carers, who have had care and responsibility for J under out-of-home care arrangements pursuant to the Care Act.
5. In December 2012, Mr Y and Mrs Y formally expressed interest in being approved as suitable, and being selected, to adopt a child.
6. Thereafter, Barnardos assessed the suitability of Mr Y and Mrs Y to adopt a child. In August 2013, following the assessment process, Mr Y and Mrs Y were approved as permanent carers and deemed as fit and proper persons to adopt a child pursuant to the Act. On 25 March 2014, Mr Y and Mrs Y signed an application form to adopt J: s 43 of the Act.
7. Mr Y and Mrs Y is each of good repute, and fit and proper: s 28(1)(b) of the Act. There are affidavits attesting to the good fame and character of each.
8. A National Police Certificate which was issued in respect of each of Mr and Mrs Y records "no disclosable court outcomes". According to advice provided by the Commission for Children and Young Peoples Working with Children Check and Screening Unit, each has no charges or convictions recorded against him and her respectively.
9. Mr Y and Mrs Y each meet the age requirement, as Mr Y is 45 years old and Mrs Y is 44 years old: s 28(3) of the Act. They are, and have been, in a long-term married relationship.
10. On 14 October 2013, Mr Y and Mrs Y attended a Transition to Adoption training seminar.
11. On 19 February 2014, the then CEO of Barnardos, a delegate of the Applicant, gave approval for the commencement of the adoption action in respect of J by Mr Y and Mrs Y. I am satisfied that they have been selected in accordance with the Act.
12. The Applicant, by its delegate, has consented to the adoption order being made in regard to J: s 87 of the Act.
13. Each of Mr P and Ms R has been provided with a copy of the Mandatory Written lnformation in regard to the adoption: s 59 of the Act.
[3]
Issue of Paternity
Section 7 of the Act specifically provides that one of the objects of the Act is to ensure that adoption law and practice assist a child to know and have access to his, or her, birth family and cultural heritage. It cannot be doubted that it is important for J to know his true identity and origins. The concept of identity must include the recognition of relationships between a child and his, or her, parents.
Inclusion of Mr P's name, as J's birth father, on the original Birth Certificate, would enable J to access that information under the adoption information provisions in due course. If that information is not included, the birth father would be a "putative birth father" under r 110 of the Adoption Regulation 2015 (NSW), and J would not be able to access information concerning him unless J signed an undertaking not to contact or attempt to contact him: Adoption of BS (No 3) [2013] NSWSC 2033, per Brereton J, at [100] (where his Honour dealt with the previous provision under the Adoption Regulation 2003).
J is, of course, entitled to know his parentage.
As was pointed out by Nicholson J in H, AM v L, L [2013] SASC 7, at [83]:
"... the effect of modern statutory approaches is such that very often a declaration of parentage, even though it may have the effect of establishing that a person had been born illegitimately, can be of great advantage to that person. It can be of great advantage financially such as would be the case in the present proceedings or following an application for maintenance under the Family Law Act. It also can be of significant benefit in other respects including providing the opportunity for a biological father and child to develop a close and rewarding relationship not necessarily in lieu of but often in addition to that which exists between that child and the person they believed, at first, to be their father…."
I do not have any doubt that it is in J's best interests for the Registrar of Births, Deaths and Marriages to be informed of the identity of J's birth father and for this to be reflected on J's original Birth Certificate and I shall so order.
[4]
The Legal Framework regarding Adoption - Statutory Framework and Principles
I have dealt with the statutory framework and the principles in another case in some detail: Director General Department of Human Services; Re M [2011] NSWSC 369. I shall not repeat all that I said there. However, in view of the importance of this case to the parties, and to Mr Y and Mrs Y, I shall repeat some of the matters that are particularly relevant to this case.
Adoption is purely a creature of statute. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues unchanged. New family ties are created which approximate blood ties.
Following adoption, the child ceases, in law, to be a child of his or her birth mother and birth father and the brother or sister of his or her siblings. He or she thereafter is regarded, in law, as the child of the adoptive parent or adoptive parents, and the adoptive parent, or adoptive parents, are regarded in law as the parents of the adopted child: s 95(2)(c) of the Act.
The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act.
Adoption will be an extremely important step in a child's life, which will determine his or her identity and family relationships throughout his or her remaining life. Thus, the making of an order must be considered, not as a means of determining with whom a child is to live, but as a way of making a child legally part of a new family and severing any legal relationship with his or her birth family.
As has recently been pointed out in regard to the effect of an adoption order, in Oxfordshire County Council v X [2010] EWCA Civ 581; [2010] Fam Law 790 at [4]:
"It is important to remember that this is not just some legal fiction. As Thorpe LJ said in Re J (Adoption: Non-patrial) [1998] INLR 424 at page 429, the result of adoption 'is the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences.'"
Under s 8(1)(a) of the Act, the "paramount consideration" in making a decision about the adoption of a child is the best interests of the child, both in childhood and in later life.
As I noted in Director General Department of Human Services; Re M at [89]-[90] (cited with approval by Bergin CJ in Eq in Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926 at [93]):
"Of course, and unsurprisingly, there is no definition of either of the terms "the best interests" or "the paramount consideration" in the Act. However, judicial statements as to the meaning of the latter term abound. The thrust of Australian authority is that "paramount" means "overriding": In the Marriage of Kress [1976] FLC 90-126; In the Marriage of H [1995] FLC 92-599 (at 81,974). The word does not indicate exclusivity.
The test to determine the best interests of the child cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. There must be a judicial evaluation and balancing of many factors from which an overall conclusion is reached on a concept that is inherently imprecise: Re B (A Minor) [2001] UKHL 70 at [16]; [2002] 1 All ER 641. The approach to be adopted is for the Court to weigh, and balance, those factors, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have."
Section 52 of the Act provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age and who has not been previously adopted unless consent has been given by each parent of the child. Consent is not required in a number of circumstances, including but not limited to where the Court has made a consent dispense order: s 54.
Section 56 of the Act also provides for the birth father to be given an opportunity to consent, through the Secretary giving notice to the putative birth father to inform him of the legal processes by which he can establish paternity (1) in relation to a child or be registered as the child's father and (2) in respect of his rights as a parent in relation to the adoption of the child.
There is no signed "instrument of consent" from either Ms R or Mr P (s 61 of the Act). Section 66 provides:
"A requirement for the consent of a child or any other person to the child's adoption under this Act can be dispensed with if the Court makes an order under this Division dispensing with the requirement (a consent dispense order)."
In certain circumstances, the Court can make a consent dispense order, dispensing with the requirement for consent to an adoption. Relevantly, s 67 of the Act confers a power on the Court to make a consent dispense order in relation to the requirement for consent by a parent if the Court is satisfied of certain matters.
White J explained in Re K & The Adoption Act 2000 [2005] NSWSC 858 at [21]:
"Before consent can be dispensed with under s 67, it is necessary, but it is not sufficient, that the Court is satisfied that dispensation of consent is in the best interests of the child. In order to dispense with the consent, one of the paragraphs in subs 67(1) must be satisfied."
With respect to dispensing with the consent of the birth parents, in this case, only s 67(1)(d) is relied upon. It provides that:
"(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"
The dictionary to the Act defines "authorised carer" as including any person who "has care and responsibility for a child under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act 1998". Section 135A(1) of the Care Act, relevantly, provides that "statutory out-of-home care is out-of-home care that is provided in respect of a child or young person for a period of more than 14 days, pursuant to a care order of the Children's Court". The reference to "those carers" is a reference to the persons who have been caring for J and who seek to adopt him, namely Mr Y and Mrs Y: Director-General, NSW Department of Family and Community Services; re D [2012] NSWSC 223, per Ball J, at [17].
Section 67(2) further provides that the Court must not make a consent dispense order unless satisfied that to do so is in the best interests of the child.
In Re Adoption of RCC [2015] NSWSC 813, Brereton J made the following remarks with respect to the history and rationale for s 67(1)(d):
" … Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child's welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006), as enabling consent to be dispensed with where adoption would enhance a child's sense of belonging and permanence in the carers' family notwithstanding that there is no concern about the child's current welfare (as distinct from the child's welfare at the beginning of the placement). As the Court of Appeal observed in Re Sarah [2013] NSWCA 379, [68] - endorsing what Slattery J had said in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, [59] - the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child's present situation. Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child."
In Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, Slattery J wrote at [72]:
"Consent dispense orders have also been made: where a birth parent does not seek to appear at a hearing, although the parent is clearly aware of the proceedings and chooses to play no part; where the views of the birth parent have changed throughout the adoption process; and where the parents are ambivalent about giving consent: cf Director General Department of Human Services; Re M [2011] NSWSC 369."
ln this case, Mr and Mrs Y are the authorised carers of J and he has been in their care for three and a half years and since he was five days old. It is clearly a stable relationship. The evidence establishes that J is developing into a healthy and happy child under their care. A reasonable amount of time has passed so that there is a level of secure and robust attachment between Mr Y and Mrs Y and J.
I accept the submission of the Applicant that J "has a sense of strong family identity, Mr Y and Mrs Y are committed and loving parents, and [that] J has his primary attachment" to them. There is no prospect of restoration. I also accept that the submission that an adoption order will "confirm and formalise J's status as a part of the only family he has ever known".
Thus, I am satisfied, on the evidence, that the adoption of J by Mr Y and Mrs Y will promote J's welfare. It is a case where I will make a consent dispense order, dispensing with the consent of Ms R and Mr P.
Section 70(1)(b) of the Act permits the Court to make a consent dispense order in conjunction with an adoption order. Notice of the intention to apply for an order dispensing with consent is required: s 72(1)). Such notice has been provided to both Ms R and Mr P within the relevant time period.
For the purposes of s 87 of the Act, the application is made by the Secretary. The Minister, who has parental responsibility, has, by an authorised delegate, consented. For the purposes of s 88, the only persons who are required to consent to the adoption and who have not given consent are the birth parents. I am satisfied that at least 14 days' notice of the application for the order, containing the prescribed particulars, has been given to them.
The Court may not make an order for the adoption of a child unless a report, in writing, concerning the proposed adoption has been provided to the Court: s 91 (1) of the Act. A Confidential Affidavit has been provided. (This report is not open to inspection by, or made available to, any person, including any party to the proceedings (s 194 of the Act), although s 91 permits the trial Judge hearing the adoption application to have access to the report, notwithstanding the restriction imposed by s 194(1). It also permits the trial Judge to accept the report.) The author of the report has the requisite delegation to prepare that report.
Under s 90(1)(a) of the Act, an adoption order cannot be made unless the Court is satisfied that the child's best interests will be promoted by the adoption. Section 90(3) provides that adoption must 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 Adoption of RCC and RZA [2015] NSWSC 813, Brereton J, at [14], stated that s 90(3) requires:
"… something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]]."
Brereton J, at [15], reiterated the principles that his Honour had previously expressed in Adoption of NG (No 2) [2014] NSWSC 680 at [16]-[17]:
"The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows:
- Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships;
- Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and
- Concerning the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them.
In addition, all these are informed by 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, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption."
In Re JLR, Bergin CJ in Eq similarly explained, at [99], that:
"The words 'clearly preferable' in s 90(3) do not require the court to be satisfied 'beyond reasonable doubt'. Rather "the word 'clearly' serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision": Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 at [53] (Palmer J) and that the order for adoption be "obviously, plainly or manifestly preferable" to any other alternative: Director-General, Department of Community Services NSW v D at [25] (Brereton J)."
In reaching the conclusion, "a global, holistic evaluation of the options available for the child's future before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare" should be undertaken: Re G [2013] EWCA Civ 965.
Adoption will provide J with the security of belonging, permanently, in the family who is committed to him and which is able to meet his needs. That is far preferable to the only realistic alternative, which is that he simply remain in the care of Mr Y and Mrs Y, without the security and sense of belonging that adoption will bring. J's legal status will be brought into conformity with what has been his reality almost since his birth. J identifies exclusively with Mr Y and Mrs Y as his family, given the role of each in his life to date. Their family provides a far greater component of his identity than his origins.
No doubt, J has the same general physical and emotional needs of children of his age, requiring a loving, stable and supportive home, where he is kept safe, and where these needs will be met. J will be a member of the Y family not only during childhood but for life, a situation which would not otherwise necessarily pertain.
For these, and the other reasons set out above, an adoption order should be made. (In coming to this conclusion, I have, of course, considered the affidavit of Ms R even though she did not appear.)
[5]
The Adoption Plan
As described in s 46 of the Act, an "adoption plan" is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to:
1. the making of arrangements for the exchange of information between the parties in relation to any one or more of the following:
1. the child's medical background or condition,
2. the child's development and important events in the child's life,
3. the means and nature of contact between the parties and the child, and
1. any other matter relating to the adoption of the child.
It has been said that "a significant element in meeting the identity needs of a child who does not reside with his or her birth family is birth parent contact": Adoption of NG (No 2) [2014] NSWSC 680, per Brereton J, at [59].
An Adoption Plan that outlines a proposal for post adoption family contact with Ms R and Mr P has been referred to. The Adoption Plan, in each case, has been signed by Mr Y and Mrs Y and by the Applicant's delegate. It is, therefore, an "adoption plan" within the meaning of the Act.
Where a birth parent does not consent to the adoption of the child, under s 46(2A), the birth parent must "as far as possible" be "given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child".
Section 50 of the Act provides that a Court may register an adoption plan if it is satisfied that the plan does not contravene the adoption principles, the parties to the adoption understand the provisions of the plan and have freely entered into it, and the provisions of the plan are in the child's best interests. (See also s 90(2) of the Act).
In Re JLR, Bergin CJ in Eq described the history of the legislation governing adoption plans as follows (at [116]-[119]):
"… In Director-General, NSW Department of Family and Community Services; Re JS [2013] NSWSC 306 Brereton J identified what his Honour regarded as a lacuna in the legislation in respect of adoption plans. His Honour said at [8]:
It will be apparent that it is only those parties to an adoption who have agreed to an Adoption Plan who may apply to the Court for registration of the plan. The parties to an adoption include the Director General, the adopting parents and any consenting birth parent, but do not include a non-consenting birth parent. This is a matter which, to my mind, is a lacuna in the current legislative structure and requires the attention of the Law Reform Commission or the Minister with a view to addressing the situation. There are many birth parents who, like the father in this case, feel unable to consent to an adoption while not formally opposing it. They would feel much less reticent if their rights of contact could be secured by an Adoption Plan.
The Act was amended on 29 October 2014 by the Child Protection Legislation Amendment Act 2014 No 8 to insert ss 46(2A) and (2B) into the Act (the 2014 amendment).
Also in that case, Brereton J said at [12]:
However, as a person having the benefit of a deemed order, as the plan becomes upon registration, even though not a party to the plan, as a result of s 50(4) would have standing to apply for enforcement of the deemed order arising from registration of the Adoption Plan, even if not for its review.
The proposed contact arrangements are detailed in two adoption plans; one in respect of Ms R and the other in respect of Mr P, agreed between the Applicant and Mr Y and Mrs Y. That they have signed each of the adoption plans attests to the fact that they will continue to be supportive of contact by Ms R and Mr P.
Neither Ms R nor Mr P has chosen to sign the relevant Adoption Plan and become a party to it.
The Maternal Adoption Plan provides for a minimum of two contact visits per year, increasing to three visits in 2017 if Ms R exercises such contact in 2016, and four visits in 2018 and thereafter if Ms R exercises such contact in 2017. The Plan also provides for contact between J and his maternal half-siblings as guided by the existing informal regime.
The Paternal Adoption Plan provides for contact between Mr P and J twice a year if Mr P should request such contact. The Plan further provides for contact between J and his three full siblings and paternal grandmother a minimum of four times per year, which the paternal grandfather may attend.
Arrangements for birth parent contact are relevant to whether an adoption order should be made, because they bear on whether the child's identity needs will be adequately met, and thus whether adoption is in the child's best interests: Adoption of KH [2015] NSWSC 274 at [41].
I am satisfied that the arrangements proposed in each Adoption Plan are in J's best interests and proper in the circumstances. As was submitted, each Adoption Plan is suitable "given the limited role that each of the birth parents has played in J's life" and each will ensure an appropriate minimum level of birth parent contact for J.
In any event, as Brereton J has pointed out many times, "adoption plans are not set in stone, and a birth parent retains the ability to apply to the court for contact or for a variation of the adoption plan, if that becomes necessary in the future": Adoption of KH, at [43].
[6]
Change of Name
Section 101(1)(b) of the Act provides that on the making of an adoption order, a child under 18 years of age is to have "as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents".
Under s 101(2) of the Act, 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.
It was submitted by the Applicant, and I accept, that in the present case, J is too young for the Court to give weight to his wishes.
However, as noted by Brereton J in Adoption of RCC and RZA at [104], the principles set out in s 8 should also be considered by the Court, including relevantly s 8(1)(e) which states that "the child's given name or names … should, as far as possible, be identified and preserved".
His Honour continued at [105]:
"Upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child's family name accords with that of his or her legal family. Indeed, children see that outcome as one of the most significant indicia of the sense of "belonging" that adoption is intended to nurture, and not to do so would detract from the benefits of adoption. The proposed surname P accords with this approach, and will recognise the children's place in the adoptive family and reinforce their sense of permanency and belonging, in that they will be in name as well as in law a member of the adoptive family. …"
The Court is prohibited from approving a change in the child's given name(s) unless it is satisfied that to do so is in the child's best interests: s 101(5). For these purposes, the addition of a further given name amounts to a change of name: Director-General, Department of Community Services v Adoptive Parents [2005] NSWCA 385, at [39]-[41]; Re KSE & Adoption Act 2000 [2006] NSWSC 92, at [17]; Adoption of GWL [2013] NSWSC 1527, at [34].
In Application of H & H, child JW [2011] NSWSC 93; (2011) 45 Fam LR 681, I wrote, at [38] - [42]:
"The court may only order a change of given name under s 101(5) if it "is satisfied that the name change is in the best interests of the child". Thus, the section, like others in the Act, contemplates individual justice. The decision maker is obliged to consider the best interests of the particular child in the particular circumstances of the case.
How the court determines what is in the best interests of that child is not prescribed. Of course, there is, in sub-s. (2), the requirement to 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.
However, the ultimate, and only, principle that guides the test under s 101(5) is what is in the best interest of the child. The test cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. The approach to be adopted is for the Court to weigh, and balance, the factors that are relevant, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have.
Importantly, the focus is on the best interests of the child, not the interests of the applicants as the adoptive parents. This does not mean that their legitimate interests and desires, or their views on what is in the best interest of the child, should be ignored. However, the touchstone for the Court's ultimate decision on whether to permit the change of a given name, remains the best interests of the child.
Thus, in deciding whether it would be satisfied, the Court should consider all of the circumstances of the particular case before it, and decide whether those circumstances, taken together, justify a name change in the best interests of the child."
What I said was followed by Ward J (as her Honour then was) in Application of AW and IW Re Children J and J [2011] NSWSC 1529 and by Robb J in Application D and D; Re Y [2013] NSWSC 1477.
The Applicant proposes that J have as his surname, the surname "Y" instead of his present surname and his given names "JJ".
In this case, J is too young to express any wishes, or considered views, as to the change of his name. He is also too young to have identified with his current surname. Accordingly, he will retain the first name given to him by Ms R, thereby retaining his own sense of personal identity as well as assisting in retaining the link to Ms R. Section 8(1)(e) of the Act requires a decision maker to have regard to the principle that the child's given name, or names, should, as far as possible, be identified and preserved. That objective is made subject, by the language of s 8(1) itself, to the "paramount consideration" of "the best interests of the child, both in childhood and in later life" as set out in s 101: Application of O and P [2005] NSWSC 1297 at [105].)
By the change of surname, he will share the same surname as Mr Y and Mrs Y and their children. This will provide him with a sense of security and stability and foster the family relationship and identity now and in the future. It will also demonstrate and reinforce the commitment of Mr Y and Mrs Y to J, which is likely to be of benefit to J.
J does not currently have a middle name. The addition of the middle name, "J", which has been in Mr Y's family for 3 generations, will also provide him with a sense of belonging.
The proposed name changes seem to me to be clearly desirable in J's best interests and accordingly, the orders sought in regard to the change of J's name will be made.
[7]
Conclusion
Although the declaration and orders, when entered, will refer to the names of the relevant persons with precision, and completely, the Court for the purposes of these reasons:
1. Declares pursuant to Status of Children Act 1996 (NSW), s 21(2), that Mr P is the father of J.
2. Orders pursuant to Births Deaths and Marriages Registration Act 1995 (NSW), s 19(2), that Mr P be included as the father of J in the Register of Births Deaths and Marriages.
3. Orders pursuant to Adoption Act 2000, s 67(1(d), that the consent of the child's natural mother, Ms R, be dispensed with.
4. Orders pursuant to Adoption Act, s 67(1)(d), that the consent of the child's natural father, Mr P, be dispensed with.
5. Orders for the adoption of the child, J, in favour of the adopting parents, Mr Y and Mrs Y, and approve the name "Y" as the surname and "JJ" as the given names of the child.
[8]
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: 11 August 2016
Legislation Cited (8)
Births Deaths and Marriages Registration Act 1995(NSW)
Children and Young Persons (Care and Protection Act 1998(NSW)
At the hearing, counsel for the Applicant read an affidavit affirmed 21 June 2016 of Deborah May Willick, the Program Manager, Adoptions, at Barnardos, who had also performed some of the casework in relation to J, of her attendance, by arrangement with Ms R on 17 June 2016, when she handed to her a number of documents, including a letter dated 15 June 2016 from the Crown Solicitor's Office.
The letter handed to Ms R, amongst other things, confirmed that the hearing of the application was listed before this Court on 14 July 2016; set out the nature of the orders that were to be sought; and identified the telephone number of the author of the letter in the event that Ms R wished to discuss any matter to do with the Proceedings.
Also included in the documents delivered to Ms R, was a copy of the Maternal Adoption Plan signed by Mr Y and Mrs Y on 4 May 2016 and by Ms L Vihtonen, the Principal Officer, Barnardos Australia, as Delegate of the Applicant on 28 April 2016 (a copy of which was tendered as Ex. C).
Ms Willick created a File Note dated 17 June 2016, a copy of which was tendered as Ex. A. In that File Note there is a reference to Ms R saying to Ms Willick that she "may attend on the day".
Despite being called at the commencement of the hearing, Ms R did not appear. She was called later in the proceedings, again, but she did not appear. On each occasion, Ms Willick looked outside the immediate precincts of the Courtroom but did not see Ms R.
I am satisfied that Ms R was given notice of the hearing date, and that she has chosen to play no part, or no further part, in the proceedings. However, she has not formally consented to the order for adoption, or to the other relief, that is sought. In the circumstances, the hearing proceeded as an ex parte application.
There was evidence that on 13 October 2015, Leighton Heald, a senior Community Corrections Officer employed by Wollongong Community Corrections, personally provided to Mr P a copy of the Summons; a document entitled "Notice to Dispense with Consent" and "Notice of Application for Adoptions Order"; a document entitled "Adoption Plan" signed by Mr Y and Mrs Y on 28 August 2015, by the parents of Mr P, on 28 August 2015, and by Ms Vihtonen on 9 September 2015; together with a letter dated 9 October 2015 addressed to Mr P from the Crown Solicitor's Office identifying the nature of the relief that was to be sought.
However, there was no specific evidence of service of notice of the hearing date upon Mr P. There is no specific requirement in the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), or in any other relevant regulation, for service - personal or otherwise - on the birth father of notice of the listing of the hearing date of an adoption. Similarly, there is no specific requirement for any particular notice to be provided to the birth father in regard to an application for a declaration for parentage, other than the requirement that the proceedings be commenced by Summons and that the Summons be served.
The UCPR set out the procedure for service on a defendant in civil proceedings in the Supreme Court. Specifically, UCPR r 10.20 establishes that an originating process must be personally served on a person in any proceedings. Mr P was personally served with the Summons on 13 October 2015.
The UCPR further prescribes that a defendant may enter an appearance in proceedings by filing a notice of appearance or filing a defence (UCPR r 6.9).
In the case of proceedings commenced by Summons, the time for a defendant to enter an appearance is on, or before, the return date stated in the Summons (UCPR r 6.10).
Whilst the Summons of 18 September 2015 filed in the proceedings did not list a return date, the document entitled "Notice to Dispense with Consent" and "Notice of Application for Adoptions Order", which was personally served on Mr P at the same time as the Summons, stipulated that he had 14 days in which to file a notice of appearance, failing which orders could be made in his absence. Thus, Mr P, who did not enter an appearance, and who has, thereafter, continued to play no part in these proceedings at all, is in default of appearance.
Relevantly, UCPR r 10.16 also provides that in any proceedings where a document is to be served on a person who is in default of appearance, the mere filing of the document is taken to have the same effect as service of the document on the person, unless the Court orders otherwise (except for any document which is required to be served personally).
UCPR r 29.7 relevantly provides:
"(1) This rule applies when a trial is called on.
(2) If any party is absent, the court:
(a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or
(b) may adjourn the trial.
...
(4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings.
(5) Sub-rules (3) and (4) do not limit the court's powers under sub-rule (2)."
In relation to UCPR, r 29.7, I wrote, in NSW Trustee and Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681 at [18]-[20]:
"The clear purpose of UCPR rule 29.7 is the efficient dispatch of court business. However, in dispatching court business, I cannot ignore the right of a defendant to be informed, or, at least, to be made aware, of a trial date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, in which Rich J said (at 589):
'It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside, and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside. ... In such a case there has been no valid trial at all.'
In the circumstances, the first issue to address is whether I am satisfied that it is appropriate to proceed in the absence of the Defendant or of anyone representing her.
A party is 'absent' within the meaning of the rule, when the trial is called on, only if it can be shown that he, or she, has knowledge, or notice, of the date of the trial, and is not physically present, or not represented. In other words, before the rule can be relied upon, there should be proof that the absent party has been given reasonable notice of, or has knowledge of, the date of the trial."
There is nothing to suggest that this rule does not apply to the trial of the proceedings currently before the Court.
Even though no application was made, I considered whether the trial should be adjourned to give Mr P an opportunity to appear. However, it seemed to me that there would be no utility in doing so for that purpose, in the absence of an explanation why he had not appeared at any time since the Summons was served upon him. There was simply no reason to believe that he would be more likely to appear on the date to which the trial might be adjourned than on any occasion the matter has been before the Court.
(Because I reserved my decision and because Mr Y and Mrs Y wished to be present at the time of the delivery of reasons, the matter was not concluded by the making of orders at the hearing.)
In this case, Mr P was properly served with the original Summons setting out the orders sought, including the declaration of parentage, and he has chosen not to participate in the proceedings at any time. There is no evidence that he has engaged, in any way, with the legal representatives of the Applicant or otherwise. Overall, I am satisfied that reasonable attempts have been made, fruitlessly, to have Mr P participate in the proceedings, and that he has made an active choice not to do so.
The Court is not required to indefinitely delay the completion of the hearing in the hope that a party might change his, or her, mind and appear: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 4. I am satisfied that Mr P was on notice of the proceedings, and that he had been afforded the opportunity to appear in the proceedings and to be heard. He has chosen not to do so. It followed that it was appropriate for the proceedings to be determined in his absence and the hearing proceeded.