"Kelly" (not her real name), the plaintiff in these proceedings, applies to have an order made for the adoption by her of the "child" who is now aged 38 years, who was born with one name but is known now by a different name, who I will call "Louis" (not his real name).
Kelly and her former husband, who I will call "Peter" (not his real name), adopted Louis in another country pursuant to an adoption order made by the District Court of that country in 1986. That adoption order stated that the name by which Louis is now known was conferred on him and was made under the relevant law of that country.
Louis's birth mother was named on Louis's birth certificate; no person was named as his father.
Kelly and her first husband had already adopted two children in Australia. With Peter, Kelly has adopted two other children from that other country, one of whom is in Court at the moment.
In earlier proceedings in this Court, Kelly and Peter sought a declaration that the adoption order was valid. Those proceedings were discontinued. This was because the adoption order made in the other country is not able to be recognised in New South Wales because Kelly and her then husband had not been resident in that country for 12 months or more nor domiciled in that country. [2]
It is for that reason that, on 29 August 2023, Kelly and Peter applied for an order that they adopt Louis.
I invited the Secretary of the Department of Communities and Justice to assist me by intervening to ensure that all of the requirements of the Adoption Act 2000 (NSW) were or could be complied with. I am very grateful for the intervention of the Secretary, in particular Ms Hailstone, who has pointed out to Kelly a number of matters that needed to be dealt with in order to ensure that the adoption application could be dealt with in accordance with the requirements of the Adoption Act.
One of matters that had to be dealt with was that the application be made by Kelly alone, due to circumstances concerning Peter's current medical state, and that Kelly and Peter did not satisfy the definition of a "couple" in the Adoption Act. [3]
The result was that by an Amended Summons filed on 23 January 2024 Kelly has sought to make the adoption order herself. I am very grateful for the assistance from Ms Hailstone and the Secretary in that regard.
In addition to the evidence before me from Kelly and from Louis, and from various referees, I have been greatly assisted by a comprehensive report from Mr Penny Haskins, an experienced practitioner in this field who has provided a sensitive and comprehensive report that I found to be of great value.
One thing that Ms Haskins has said is that Kelly has told her that "I think adoption has been well-lived in our family", and that one thing that Kelly would like to do is to ensure that Louis's status as her adopted son "needs to be put right before I die".
In conclusion to her report Ms Haskins said:
"[Louis] was placed with [Kelly] and [Peter] at the age of 13 months. He is youngest of five adopted siblings from [Kelly's] two marriages. [Louis] was undernourished and unwell at placement, but he has matured with no ongoing health issues. He has completed his School Certificate, has always been employed and has been in a stable and enduring relationship since the age of 21 years. He has two children with his wife and parents, with her, two children from an earlier relationship.
It is my view that [Kelly] is an intelligent, forthright, warm and engaging woman who is intentional and compassionate in all her relationships, and particularly in her parenting. This view was supported by the affidavits prepared by her referees as part of this application."
I add that I have read those reports myself and I agree with Ms Haskins' assessment.
Continuing with what Ms Haskins said:
"[Kelly] demonstrates a long-standing and exemplary commitment to open adoption practices, many years before that became so widely accepted. She has given all her children information about their birth stories and the emotional tools to understand and integrate their adoption as part of their larger sense of themselves. Against my view that [Kelly's] statement to me, 'adoption is well lived in our family', is an excellent summation of the open, honest and communicative family life that [Kelly] has provided for all her children in respect of their adoptive identities.
[Kelly] worked until the age of 75 years, and she has a life-long love of learning, reflected in her Bachelor and Masters Degrees, Graduate Diplomas and her PhD. She is of good repute with no court convictions recorded against her name. She is the legal guardian of [Louis's] father, [Peter], and she sees him, often daily, in his care facility in Taree.
I am sympathetic to the circumstances that [Kelly] found herself in when she and [Peter] returned from [the other country], when they did not have the funds to apply for legal recognition of [Louis's] … adoption order in the New South Wales Supreme Court.
In light of all the information contained in this report it is my professional opinion that confirming [Louis's] … adoption order in the New South Wales jurisdiction is clearly in [Louis's] best long-term interests. A New South Wales adoption order will confirm [Louis's] status as the legally adopted child of [Kelly] and the legal sibling of [Kelly's other children]. A New South Wales adoption order will also fulfill the last remaining parental obligation [Kelly] knows she has yet to complete. She is, quite naturally, concerned to complete this before she dies.
I therefore recommend that an adoption order be made in favour of [Kelly] in respect of [Louis]."
I completely understand Kelly's heartfelt wish to ensure that Louis's status as her adoptive son is confirmed. My focus must be a little different. I must focus on whether it would promote Louis's best interests that an adoption be made, and whether to make an order would be clearly preferable to any other course that I could take.
In that regard, in his affidavit Louis said:
"I was brought up at an early age to be aware of my adoption and of my … culture. This was openly discussed within the family and we had regular social events with other families who had adopted from [the same country].
…
I wish to be legally adopted by [Kelly] and [Peter] with whom I have a close and loving relationship, and whom I consider to be my parents."
Louis is present today via AVL and said to me that, although the making of an adoption order would, as a practical matter, make no difference to the love and affection he has for Kelly, nonetheless there is an importance in making an order for the reasons that I will return to in a moment.
In her affidavit, Kelly said this:
"I first decided that I wished to adopt [Louis] in order to make legal his adoption circumstances.
I believe that adoption is in [Louis's] best interests, and is the preferred order above any other because I have considered him to be by legally adopted child since we went to Court in [the other country] in 1986 and now that I have discovered he is not legally adopted under New South Wales law as my husband and I did not fulfill the residency requirements in [the other country] in 1986, I need to rectify the situation prior to my demise so he receives his share of my estate."
I pause there to say that Kelly has since made a will which makes it clear that Louis is one of her beneficiaries.
Kelly continued:
"He will also then be entitled to a New South Wales birth certificate as an Australian and Australian passport, as my two daughters also adopted from [the same country]."
I am satisfied that an order for adoption will promote Louis's best interests and should be made.
For all of his remembered life Louis has understood that he has been adopted by Kelly and also by Peter. It turns out, under New South Wales law, that this is not the case. Under the law of New South Wales, at the moment, Louis has no special status in relation to the person he has always regarded as his mother.
It is time to put that right.
Louis has expressed the wish, as I have said, to be legally adopted by Kelly who he obviously considers as his mother. They have a close and loving relationship, and Louis has flourished in her and Peter's care.
I am also satisfied that an adoption order is clearly preferable and in the best interests of Louis to any other action that could be taken. Indeed, I cannot see what other action I could possibly take in the circumstances.
Louis wishes to have the names by which he is now known approved as his surname and given names. I must be satisfied under the Adoption Act that this is clearly in his best interests. I have no doubt that that is so.
I make an order for the adoption of the child, Louis, in favour of the adopting parent, Kelly.
I make an order approving the names by which Louis is now known as the surname and the given names of the child.
[2]
Endnotes
Including to anonymise the parties, pursuant to s 180 of the Adoption Act 2000 (NSW).
See Adoption Act, s 116(1)(b).
See Adoption Act, s 28, Dictionary.
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Decision last updated: 02 August 2024