Re the Adoption of AM [2019] NSWSC 220

Jurisdictional Basis

1. Before turning to additional specific facts of the present case, I should note the jurisdictional basis for the application.
2. The Act does not show any signs of a policy adverse to an adoption by relatives. Indeed, as will be read, it specifically permits such an adoption. However, whilst such an application is not considered with any sense that an unusual degree of scrutiny is required, as in all applications for adoption, the Court must be satisfied that the making of the adoption order is clearly preferable and in the best interests of the child to any other action that could be taken by law in relation to the child.
3. Section 23 of the Act, relevantly, provides: "(2) The Court must not make an adoption order unless, when the application for the order is filed: (a) the child is present in the State, and (b) the applicant, or if the application is a joint application, each of the applicants, resides, or is domiciled, in the State. (3) For the purposes of this section, if the Court is satisfied that the child was present in the State, or that the applicant or each applicant was resident or domiciled in the State, for a period of 3 months immediately before the day on which the application was filed, the Court may, in the absence of evidence to the contrary, presume that: (a) the child was present in, or (b) that the applicant or each applicant was resident or domiciled in, the State when the application was filed."
4. As at 14 November 2018, the date of the filing of the Summons, both VM and SM were resident, and domiciled, in New South Wales. Also, it is clear that AM was present in the State at the same time.
5. Section 24 of the Act, relevantly, provides that an adoption order may be made in relation to a child who was less than 18 years of age on the date on which the application for the order was made. Again, as AM is now 7 years old, this requirement is established.
6. Section 28(1)(a) of the Act, which relates to the basic requirements for adoption by a couple, relevantly provides that "[T]wo persons who are a couple may, subject to this Act, adopt a child only if (a) both of them are resident or domiciled in the State …". As is clear from the sub-section, there is no specific reference as to when the couple must be either resident, or domiciled, in New South Wales. However, at the date of the filing of the Summons, and currently, both remain resident and domiciled in New South Wales.
7. For the purposes of s 28(1)(b) of the Act, both VM and SM are of good repute, fit and proper. According to advice provided by the New South Wales Office of the Children's Guardian, each of VM and SM has a current Working with Children Check, as well as a National Police Certificate, which states no "disclosable court outcomes" are recorded against them.
8. For the purposes of s 28(4) of the Act, VM and SM have been a couple, and have been living together continuously, for longer than two years. AM has been living with them since his birth.
9. VM and SM are related to AM but have not made, or given, or received, a payment or reward for, or in consideration of, his proposed adoption: s 177 of the Act.
10. Section 29 of the Act provides: "The Court must not make an adoption order in favour of a relative of a child unless: (a) specific consent to the adoption of the child by the relative has been given in accordance with this Act by the appropriate person or persons specified in section 53(b), and (b) the child has established a relationship of at least 2 years' duration with the relative, and (c) the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child."
11. In the present case, in accordance with s 53(1)(b)(ii) of the Act, there is evidence of the specific consent of VM and SM, two specified adoptive persons, both of whom are a relative of the child, AM.
12. There is also the specific consent of SN and GN, the parents of AM. The consent of each is attached to a Statement of Counsellor, Ms J Wyles, dated 9 May 2018, given in accordance with s 61(3) and s 63 of the Act. Ms Wyles has been contracted by the Department of Family and Community Services as an adoption assessor for many years and she is also an approved registered adoption counsellor pursuant to s 63 of the Act.
13. Section 59(2) of the Act requires, in the case of the adoption of a child by a relative of the child: "(a) the applicant (and not the Secretary or appropriate principal officer) must ensure that a person whose consent to the adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption, and (b) the requirement to give that information is satisfied if the information given is information in a form approved by the Secretary for the purposes of compliance with this subsection."
14. There is evidence from Ms C A Pirina, an independent lawyer, that she was satisfied that each of SN and GN was provided with a copy of the instrument of consent and the mandatory written information at least 14 days before the consent by each was signed; that each was given ample opportunity to read the instrument of consent and mandatory written information, and that each understood the effect of signing the consent; that each had been counselled within the prescribed period and understood the effects of giving consent; and that the consent was signed by each, free from threat, inducement or influence of any kind, as set out in s 184 of the Act.
15. There is no doubt, on the evidence, that there is a warm and loving relationship between all the members of AM's family and there is a firm commitment to the promotion of his best interests and welfare. Clearly, both VM and SM are devoted to those interests.
16. I should mention, even though it is not part of the law of Australia, that Article 3 of the 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) (also known as the UN Declaration on Child Placement) provides that "[t]he first priority for a child is to be cared for by his or her own parents." Failing that option, Article 4 provides: "When care by the child's own parents is unavailable or inappropriate, care by relatives of the child's parents, by another substitute - foster or adoptive - family or, if necessary, by an appropriate institution should be considered."

The Uncontested Facts

1. VM was born in January 1971 in India. In 1975, his family moved to Australia and he has lived here since then, growing up in Newcastle. In 1979, his father, BMM, was granted Australian citizenship. That citizenship included his two children, VM and GM.
2. VM completed high school in Newcastle in 1988 and subsequently completed a Diploma in Computing Studies at the University of Newcastle in 1993. He is currently self-employed as the Owner/Operator of a takeaway restaurant. He earns a good income and is financially sound.
3. SM was born in July 1975 in India. In 2007, she moved to Sydney. She currently holds a permanent resident visa, although she intends to apply for Australian citizenship. She completed her secondary education in India and obtained tertiary qualifications, being a Bachelor of Commerce at the University of Delhi in 1995, a Graduate Program in Cloud and Mobile Software Engineering in New Delhi in 1997 and the SAP Business Warehouse Certifications at SAP (Systems Applications and Products) Training in December 2010. She is currently employed as an IT professional. She earns a good income and is financially sound.
4. VM and SM married in February 2007, following Hindu rituals, under a traditional ceremony. Neither was previously married. They have no children. They currently reside in Merewether, a suburb of Newcastle, having purchased a home there in 2018.
5. In 2008, SM was diagnosed with third degree endometriosis. She has undergone various procedures, in Australia and in India, to assist in having a child, but all of these have not proved to be successful. Her doctors have indicated that her prospects of falling pregnant, even with IVF treatments, are small.
6. GN was born in August 1977 in India. SN was born in March 1980, also in India. GN is the younger brother of SM. Nowadays, they see VM, SM and AM "every couple of months during school terms, given that [our two children] have school studies and sporting activities on the weekends. We see each other more frequently during the school holidays and when we have family from overseas visiting". (The arrangements made between the adults, to date, have not militated against flexible and regular access between AM and his parents.)
7. GN and SN both hold Australian citizenship, through naturalisation. They live in Campbelltown, a suburb of Sydney. They have two other children, SaN, who was born in 2010, and RN, who was born in 2014. Whilst separated from them by living arrangements, all remain in close contact with AM.
8. In about 2010, SN offered to be an egg donor in order to enable SM to continue IVF. She was advised that she should lose weight. Both couples attended counselling together in relation to the egg donor process and the implications thereof. Whilst SN was dieting to get ready for the egg donor process, in late November or early December 2010, she accidentally fell pregnant.
9. In their affidavit, VM and SM stated that, when SN told them she had become pregnant, they: "suggested to them [SN and GN] that they should discontinue the egg donor plans and focus on their second pregnancy. [GN] said words to the effect: 'We have financial constraints that will not allow me to support a second child yet. [SN] had also been on extended maternity leave. We would like to offer you our second child for adoption'".
10. Apparently, at around that time, GN checked the Family and Community Services' website, and found that intra-family adoption was a feasible option. She and SN discussed their plan with their respective families, and then confirmed with VM and SM that they would like them to adopt the child when he, or she, was born.
11. VM and SM advised they were "overjoyed with [GN and SN's] offer". Shortly afterwards, VM moved into GN and SN's home to assist taking care of SN and SaN during SN's pregnancy.
12. Both GN and SN acknowledge that he and she, respectively, were provided with the mandatory information and that each met Ms Wyles who provided him and her with counselling. Each agreed that a consent was signed for the adoption. Each specifically states that they "are very happy that VM and SM have been able to bring AM up as their own child and are now to adopt him".

Conclusion

1. I have considered all of evidence now available to me in order to reach my conclusion. I have considered, amongst other things, the motivation of the applicants; the motivation and conditions of the birth parents; the authority of the applicants over AM since his birth; the viability, stability and composition of the applicants' family; the supplanting of the authority of the birth parents by that of the applicants over AM; the likely relationship of AM with his birth parents after an adoption; but, as the paramount consideration, AM's welfare throughout his life. I have also considered the alternatives to adoption, including maintaining the status quo.
2. There is no opposition to the adoption. Not only do GN and SN consent to the application, they support it as being a method by which the long standing state of affairs between all concerned will be given legal status.
3. In this regard, and as stated, shortly after AM was conceived, they approached VM and SM about adopting AV because the family simply did not feel able to cope with another child. There followed much family, and other, discussion and planning, and, after AM's birth, the proposed adoptive parents assumed responsibility for his care. He has an established relationship of some years' duration with the applicants.
4. This is not a case in which AM is likely to suffer significant psychological and/or emotional harm arising from confusion, amounting to a crisis of identity. Nor is there any suggestion that he could suffer confusion, or distress, from a perception of discriminatory treatment by relatives or friends, who are aware of his true status, or from the perception that an air of secrecy and deception is being maintained within the family regarding his origins: Re A & B and the Adoption of Children Act (1965) [2003] NSWSC 595, per Palmer J, at [13].
5. In the present case, there are no such risks caused by the concealment, and later discovery, that his biological relationships are different from his psychological relationships. AM's true parentage is not being concealed and there is no prevailing atmosphere of secrecy regarding his parentage within the family or otherwise. This is demonstrated by the supporting affidavit from two different referees, each of whom refers to the close connection of the proposed adoptive parents with the birth parents.
6. AM has knowledge of, and contact with, his non-custodial birth parents and family and it appears that he has an understanding, commensurate with his age, of the reasons why the adoption might take place. When interviewed by Ms Wyles, AM said that, if adopted by VM and SM, he would become "just as if he had been born to Mum and Dad" (referring to VM and SM). He also told Ms Wyles this would be a good thing, as it would mean VM and SM were "in charge" and would not have to ask SN and GN to give permission for various activities. (The conversations support the view that adoption makes the child a permanent part of the adoptive family to which he, or she, fully belongs and alters routine life. The child is likely, therefore, to 'feel' different once an adoption order is made: Re V (Children) [2013] EWCA Civ 913, at [96].)
7. Yet, I remember that even with the possibility of an open adoption and direct contact with his birth parents and siblings, family life for AM will change in the most fundamental way for the rest of his life.
8. The factors in favour of the granting of the application far outweigh those counting against it. Indeed, if an adoption order is not made it may be that a positively harmful result will flow in that AM may perceive that his own view of his position within the family is not shared by the world at large. The making of the adoption order will confirm the status of AM and the applicants as a family unit.
9. Further, I am satisfied that leaving the applicants with any less rights of custody would be contrary to the best interests of AM. This conclusion is supported by the fact that AM's emotional and other links, as well as his familial attachments to, and with, VN and SN (and their other children, his blood siblings) will continue to be maintained. There is no doubt at all that AM has grown up with attachments to both families and that these attachments will continue. There appears to be a strong family nexus and I am satisfied, from the evidence, that the familial bonds will be maintained. The applicants have amply demonstrated that they are fully committed to fulfilling their legal and parental responsibilities for AM. They have in the past exercised, and, in the future, intend to exercise, their parental responsibility for AM.
10. An adoption order is necessary to safeguard, now and into the future, the established and central relationship that has existed for the last 7 years. It is manifestly in AM's best interests, now and throughout his life, that I make the adoption order the applicants seek. His lifelong prospects, in terms of emotional and psychological impact, having a stable home, nationality, succession and inheritance, will all be secured by the making of an adoption order.
11. Taking into account the best interests of AM, which is the paramount consideration, and whilst other considerations are not excluded, I am of the view that this is a case justifying an intra-family adoption order.
12. The Court: 1. Makes an order for the adoption of the child, AM, in favour of the applicants, VM and SM. 2. Makes an order that the name "M" remain as the surname and "A" remain as the given name of the child. 3. Directs that the nominated officer for the purpose of s 130 of the Act give a record, containing the information prescribed by the regulations of the adoption order to the Registrar of Births, Deaths and Marriages pursuant to that section that would show the parents of the child after the adoption as being VM and SM.

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: 07 March 2019