A Child Proposed for Adoption - [2019] NSWSC 1653

Supreme Court

New South Wales

Medium Neutral Citation: A Child Proposed for Adoption [2019] NSWSC 1653
Hearing dates: 12, 13 and 29 November 2019
Date of orders: 13 December 2019
Decision date: 13 December 2019
Jurisdiction: Equity - Adoptions List
Before: Slattery J
Decision:
Order made dispensing with the consent of the birth parents. Order for adoption made. Adoption plan approved.

Catchwords: ADOPTION – contested adoption – Adoption Act 2000, ss 52, 67, 90 and 91 – application to dispense with the consent of the birth mother and birth father and for an adoption order – birth mother and birth father do not consent to adoption order – child has been with adoptive parents from the age of four weeks – child is now six years old – whether an adoption order is in the best interests of the child – consideration of the alternatives to an adoption order.
Legislation Cited: Adoption Act 2000, ss 50, 52, 67, 90, 91
Children and Young Persons (Care and Protection) Act 1998
Cases Cited: Adoption of NG (No 2) [2014] NSWSC 680
Adoption of RCC and RZA [2015] NSWSC 813
Adoption of SP [2018] NSWSC 391
Category: Principal judgment
Parties: Plaintiff: Secretary, New South Wales Department of Communities and Justice
First Defendant: the birth mother
Second Defendant: the birth father
Representation:
Counsel:
Plaintiff: C. McGorey
Solicitors:
Plaintiff: Karen Smith, Crown Solicitor for NSW First Defendant: no appearance
Second Defendant: in person

File Number(s): 2019/325610
Publication restriction: Yes

Judgment

The plaintiff, the Secretary (“the Secretary”) for the Department of Communities and Justice (“the Department”) seeks an order under Adoption Act 2000 ("the Adoption Act") for the adoption of the child in favour of the proposed adoptive parents.
The child’s birth mother and birth father are the first and second defendants. Neither has consented to the making of the adoption order. The birth father opposes the making of the order. The Secretary seeks an order under the Adoption Act, s 67(1)(d), dispensing with the consent of the child’s birth parents. Finally, the Secretary seeks an order under the Adoption Act, s 50 for the registration of an adoption plan.
This judgment sets out the Court’s reasons for determining that the orders proposed by the Secretary should be made.
In the proceedings, the Secretary was represented by Mr C McGorey, of counsel, instructed by the Crown Solicitor's Office. The birth mother did not appear at the main hearing of the proceedings on 12 and 13 November 2019; although she was present by audio link at the mention, which occurred on 29 November 2019.
The birth father represented himself. Contested adoptions can be difficult cases for all involved. The birth father faced the additional challenge of appearing without legal representation. The Court sought to inform the birth father at each stage of the proceedings of the process and of his rights. The birth father advanced the case that he wished to present to the best of his ability. That the Court has decided to make the orders the Secretary seeks is not the result of any lack of commitment on the birth father's part to advancing his case.
These reasons set out a narrative of relevant facts about the child, his birth parents and his proposed adoptive parents. The history provided in these reasons is necessarily less detailed than the material set out in the very extensive evidence filed in the proceedings. The Court only needs to narrate the facts essential to its decision.
The Court has had regard to all the evidence, including affidavits from the delegate of the Secretary, Mr Michael Buckley, and affidavits of Ms Diane Edwards annexing two Court reports for the purposes of the Adoption Act, s 91(2A): a principal report dated 23 February 2018 and an updating report dated 4 November 2019. Other affidavits are those of referees for the proposed adoptive parents, of the proposed adoptive parents themselves and of other delegates. Both the birth mother and the birth father filed affidavits. Only the birth father’s evidence was read, due to the birth mother’s non-appearance in the proceedings.
The plaintiff acknowledged in the opening of the proceedings the birth parents' love for the child. The plaintiff also submitted consistently with the objectives of the Adoption Act, that irrespective of the outcome of the proceedings, nothing would alter the fact that the birth mother and father are the child's birth parents, and his best interests are and will be promoted by his ongoing connection with them.

The Child, his Birth Parents and his Adoptive Parents – 2013 to 2019

The Child’s Birth and Early Years

The child was born in January 2013. Immediately after the child’s birth, the birth mother suffered a severe haemorrhage. She was admitted into the hospital’s intensive care unit and placed in a medically induced coma for six days.
Shortly after his birth, the child was treated for Neonatal Abstinence Syndrome. Newborns withdrawing from addictive substances, which have been absorbed during the pregnancy prior to their birth, will exhibit this syndrome. The child was placed in a special hospital nursery at birth, for treatment with slowly reducing doses of morphine. Gradually over about four months, including a period after his discharge from hospital, his morphine doses were lowered to zero.
Several risk of harm reports were received in relation to the birth parents prior to the child’s birth. These reports raised concerns about: the birth parents’ homelessness; the birth parents’ chronic substance abuse, especially by the birth mother while pregnant; some mental health issues of the birth mother; and a lack of antenatal care being accessed by the birth mother before the birth.
The Department conducted a safety assessment in relation to the child and initially assessed that he was “safe with plan” in his parents’ care. But by 19 February 2013, concerns arose about the birth parents’ ability to meet the child’s emerging high medical needs: the function of one of his kidneys was under scrutiny; he had urinary tract infections; and he had possible symptoms of cystic fibrosis. Issues also emerged about shortcomings in the birth mother’s care for the child, including her early failure to attend scheduled feeding times for him. Added to this, concerns existed about the volatility of the relationship between the birth parents, and the birth mother’s diagnosis of borderline/dependent personality disorder. Ultimately, lack of assurance that these various concerns were being mitigated led to Communities and Justice (formerly known as Family and Community Services) assuming the child’s care.
The child was assumed into care by the Secretary on 20 February 2013 under the powers conferred by the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”) just before his discharge from hospital on 22 February 2013. He was immediately placed with the proposed adoptive parents. He was then about four weeks old. He has been with the proposed adoptive parents ever since.
Immediately after the child being taken into care, supervised contact visits were scheduled for his birth parents several times a week. But within a few months difficulties arose in maintaining these contacts. By June 2013, a temporary separation between the birth parents intervened. The birth father was, for a period associated with the separation, not fully engaging with the Department’s officers. Contact visits for the child with the birth mother continued at the rate of one per week.
On 23 August 2013, the Children’s Court of New South Wales made final orders under the Care Act allocating parental responsibility for the child to the Minister. When these orders were made, both the adoptive parents and the birth parents lived in the same area of New South Wales.
By January 2014, contact arrangements were revised and became less frequent, partly as a result of low levels of friction developing in their implementation.

The Birth Parents Move Interstate

In 2014, the birth mother decided to move to, and live in, another State. The birth father joined her there. They both still reside in that State, although not together at the present time.
Since the birth parents’ move interstate, contact has been arranged to take place between both the birth parents and the child approximately twice a year, with some variations. This contact was irregular at times due to the birth of the birth parents’ later children, in another State.
The birth parents have travelled to New South Wales approximately once a year since 2014 to visit the child. Access has then taken place with the child twice during the same trip. This structure was created at the request of the birth parents, in part because it was more convenient for them. For about the last five years, the birth parents’ two contacts per year with the child have been quite close to one another within each year. The birth father complains that his contact with the child at these sessions is less than satisfactory. Issues about the frequency and the nature of the birth parents’ contact with the child have led to the modification of the adoption plan that is now being proposed for registration.
In 2014, the child began to attend family day care two days a week. He settled into this very well. His family day care expanded from two days a week in 2015.

The Child’s Health

As earlier recounted, shortly after birth, the child faced a number of specific health challenges that the expert medical opinion in evidence allows the Court to infer is related to his neonatal abstinence syndrome. He demonstrated low muscle tone, affecting his balance and motor skills. He was also prone to suffer from urinary tract infections. He overcame these medical issues within his first 18 months, in the care of the proposed adoptive parents.
In early 2014, the child was given tests to investigate a hand tremor. The tests came back showing no abnormality. In early 2015, the child’s hand tremor was still present and treatment options were discussed. By late 2015, the tremor had improved as a result of occupational therapy.
In September 2014, the child was diagnosed with delayed speech and language skills. This issue has been constantly monitored ever since. His later development has shown improvement in his comparative speech and language skill development.
In mid-2017, the child was investigated for a condition in which his right eye appeared to turn inwards. This condition appears to not be a continuing problem, as a result of the prescription of glasses for the child and keeping him under close observation.
The child is now in good physical health. His preference is for a diet of limited breadth. But monitoring of his nutritional needs is being undertaken. Any necessary dietary supplementation is provided to him. He has regular advice on his diet from a dietician. He is up-to-date with all required immunisations. But he has broader health issues, as may be seen from his most current paediatric assessment, which is detailed below.
Continuing concerns exist about the child’s overall rate of development against his peers. The proposed adoptive parents, in consultation with a paediatrician, arranged his involvement in an early intervention program. In 2016, the child commenced attending the preschool where the proposed adoptive mother works. He did not settle in straight away, and had trouble speaking and interacting in the first few weeks. By early 2016, the child was exhibiting significant anxiety around strangers in his preschool. The child attended counselling sessions and came under observation from a psychologist for his anxiety.
In October 2017, the proposed adoptive parents advised the child's paediatrician about the increased anxiety he exhibited, particularly in new settings. This anxiety had occurred at a time of some increased birth family contact. The child’s paediatrician considered that meeting new people may contribute to the child's increased anxiety, and recommended the child and the proposed adoptive parents’ access counselling to assist him to manage his anxiety symptoms.
Slowly, and under medical review, his anxiety around preschool improved. He ultimately no longer needed to see a counsellor. The proposed adoptive parents’ careful intervention and support helped overcome whatever the child’s underlying anxiety issue was at this time.
In May 2018, an individual learning plan was developed by the child’s preschool/intervention centre to assist him to improve his language, social and personal skills, and active learning processes.
The child qualifies to receive funding from National Disability Insurance Scheme (“NDIS”). In mid-2018, an NDIS plan was approved to fund interventions to assist the child with speech therapy and other support to strengthen his social interactions with peers.
During a review on 17 October 2018, the child's paediatrician noted that the child was at risk of Foetal Alcohol Spectrum Disorder (“FASD”) and recommended psychological support be sought for the child's behaviours; for example, his strong preference for routine and his restricted diet.
Between October and November 2018, the child attended eight sessions with a social worker through his preschool’s intervention centre to assist him to better articulate his feelings before commencing primary school. These sessions were provided for through funding under his NDIS plan.
In February 2019, the child commenced primary school. He continued though to access services, for example speech pathology sessions at his intervention centre, to assist with his transition.
In February 2019, the child commenced having sessions with a clinical psychologist to help manage his anxiety and also to investigate the possibility that he may have autism spectrum disorder. The proposed adoptive mother meets separately with the clinical psychologist to obtain advice on issues that have arisen in these sessions and to gain insight into his recent progress.
The child's clinical psychologist reported on 3 June 2019 that the child has not been diagnosed with an illness or disorder under DSM-V but may meet the criteria for Generalized Anxiety Disorder and historically may have met the criteria for Selective Mutism. The clinical psychologist also reported that a determination has yet to be made as to whether the child meets the criteria for Autism Spectrum Disorder due to other influencing factors which could account for his behaviour, such as FASD and drug use in utero resulting in Neonatal Abstinence Syndrome.
The proposed adoptive mother reported to the clinical psychologist that the child becomes overwhelmed easily and withdraws, hides, ceases speaking or becomes aggressive. This is especially triggered by new situations: being in crowds, being touched, not getting his own way, and being unable to complete tasks. The clinical psychologist has been helping the child and his family understand his anxiety and respond appropriately through developing emotional regulation skills.
The clinical psychologist who had been treating the child was cross-examined by audio link. The birth father questioned her about some of her assumptions in relation to the birth mother’s drug use and the child’s diagnosis of a Generalised Anxiety Disorder. She explained the need for the child to have a predictable and consistent environment to help him manage his anxiety. The Court accepts that evidence and regards the need for predictability and stability as of central importance in assessing the child’s welfare and best interests. The psychologist expects his progress to be slow. The child’s therapy continues with the clinical psychologist.
The child’s NDIS plan was updated in mid-2019 to provide funding to improve his speech clarity and other interventions to improve his independence with daily living tasks.
The child has been recently assessed by a paediatrician. The assessment, in October this year, presents a positive picture of his current progress and looks at a number of different aspects of his personality, cognition and dietary intake. These are summarised here to give an up-to-date picture of his welfare and needs relevant to the questions presently before the Court.
The paediatrician assesses the child as fulfilling the DSM5 criteria for a Generalised Anxiety Disorder. But the assessment records that the support the child has received at pre-school and primary school has helped him progress. The adoptive parents gave a history to the paediatrician that the child’s anxiety symptoms have been slowly reducing. They also reported that the child’s long standing history of anxiety has in the past impacted upon his functioning to the point of exhibiting Selective Mutism and high levels of social anxiety.
The paediatric review confirmed that the child continues to have anxiety symptoms in the school setting and generally when he is outside the home. For example, he continues to be anxious about public toilets, which he refuses to use, even when he is out for a full day.
The paediatric assessment concludes that given the long standing nature and persistence of his anxiety symptoms, despite multiple interventions over time, he fulfils the DSM-V criteria for a Generalised Anxiety Disorder.
The paediatrician addressed whether the child may be on the autistic spectrum. The paediatrician has treated the child since he was a baby and has had regular contact with him over that period. The paediatrician reports from this experience that the child has always had good eye contact, gesturing and reciprocity when in contact with others. At the most recent assessment in October 2019, the paediatrician thought the child exhibited good eye contact, engaged in joint imaginative play, smiled and gave responsive facial expressions directed at a play companion. The paediatrician believes these features are not consistent with the child being on the autistic spectrum. But the paediatrician’s opinion is that the child’s anxiety symptoms underpin the various social difficulties he still encounters. Yet the paediatrician does not hold a concluded view about the possibility of autistic spectrum placement for the child and says that further assessment of this could be explored.
Whether or not the child has FASD also remains uncertain in the paediatrician’s opinion. The paediatrician’s clinical findings are that the child has “the three sentinel facial features” of FASD. And the paediatrician assumes, what is elsewhere reported, that the child’s birth mother had heavy alcohol use during the pregnancy. To finally assess whether the child has FASD, further investigation would be required about his overall cognition, memory skills and attention.
This survey highlights the close work still required to holistically manage his cognitive and personality development and his academic progress, to best place him to lead a fulfilling life. The nature of these needs is relevant to the Court’s assessment of whether or not an adoption order should be made. The management of these issues, particularly at this time in the child’s life, and through into adolescence and early adulthood, are of critical importance to his long-term future.
In the October 2019 assessment the paediatrician confirmed the other medical evidence that the child’s diet was nutritionally safe. He is growing appropriately and his weight is within the healthy weight range for his age, as a result of good parental monitoring of his nutritional needs.
Finally, the paediatrician expressed gratitude for the quality of the care given by all those who are presently supporting the child, especially the proposed adoptive parents.

The Child’s Extended Biological Family

The child has a number of siblings and half siblings, both on the birth mother’s side and the birth father’s side. They have important relationships with the child that must be considered in any adoption plan.

The child’s closest siblings, the child’s two brothers, are full siblings who live with foster carers in another State. The child’s eldest brother is five and the child’s youngest brother is three. The child’s brothers were both assumed into care at birth by Child Safety Services in another State. They live together with foster carers. The birth father seeks, in care proceedings in the other State, to have them returned to his (and possibly the birth mother’s) care.
The birth father’s submissions and oral evidence repeatedly describe the close bond that exists between himself and the child’s brothers. He described the access arrangements that facilitate his contact with them to have resulted in a rich, happy and rewarding contact environment. He expressed regret that his experience of having access to the child was not as yet as open and satisfying.
The birth father’s long term objective is to see if he can re-establish a family unit based upon the child’s brothers returning to his household. But the child’s brothers are still with foster carers, in part as issues still exist in relation to the birth mother’s capacity to care for them.
The child has two other paternal half siblings who live in New South Wales: the child’s paternal half-sister, aged ten, and the child’s paternal half-brother, aged eight. They live with their mother, a former partner of the birth father.
The child has three maternal half siblings who were born in another State. The eldest is the child’s eldest maternal half-sister, aged 18, who lives with the birth mother’s mother, their maternal grandmother. The child’s youngest maternal half-sister, aged 17, resides with her maternal great aunt. Both the child’s maternal half-sisters reside in different parts of New South Wales.
The child’s maternal half-sisters were removed from their mother’s care in 2002. They are the subject of long term care orders made in June 2007 by the Magistrate’s Court of another State. The child welfare department of the other State became involved with the birth mother in 2002, due to concerns about her and her then partner’s ability to care for the child’s maternal half-sisters. These included concerns about: the birth mother’s mental health, including a preliminary diagnosis of borderline personality disorder with paranoia and a number of psychotic episodes; a history of significant domestic violence between the mother and her then partner; drug and alcohol abuse; self-harm and suicide attempts; and unproven allegations of child abuse.
The child’s eldest maternal half-sister was removed from the birth mother when she was 13 months old. The child’s youngest maternal half-sister was removed when she was six days old. Both are said to have significant developmental and mental health issues. The removal orders provided for the child’s eldest maternal half-sister to live with the maternal grandmother and the child’s youngest maternal half-sister to live with her maternal great aunt.
Supplementary care orders have been made in relation to the child’s youngest maternal half-sister at the Children’s Court of New South Wales. In February 2018, the Children’s Court gave final parental responsibility for the child’s youngest maternal half-sister to the Minister until the age of 18 years. The birth mother did not seek restoration of the child’s youngest maternal half-sister to her care during those proceedings.
The child also has a younger maternal half-brother, t who is presently aged 12, and who resides with a carer in another State. In September 2007, the child welfare department of that State made an application for a protection order in respect of the child’s maternal half-brother for a period of two years. When the birth mother was pregnant with the child’s maternal half-brother, the Department received reports of concerns about her mental health, her transient behaviour, and her drug and alcohol abuse while pregnant.
At birth the child’s maternal half-brother was deemed to be in immediate and substantial risk of harm. But he was ultimately returned to the birth mother’s care after she demonstrated a willingness to work with the Department. But that arrangement appears to have broken down and the child’s maternal half-brother was placed with a carer. In August 2010, final orders were made by the Children’s Court of that State, granting parental responsibility for the child’s maternal half-brother to his carer until he turned 18.

The January 2017 and June 2018 Assessments by another State

As earlier indicated in these reasons, the birth parents two children, the child’s brothers, are younger than the child, having been born in 2014 and 2016. They are each the subject of care and protection orders in another State under that State’s equivalent of the Care Act. For the care proceedings in that State, the birth parents were first assessed in January 2017 by a forensic and clinical psychologist with specific reference to their fitness to continue to parent the child’s brothers. They were assessed again in March 2018 and a second report on the assessment was given in June 2018. These assessments are in evidence and provide some assistance to the Court.
The picture presented by these assessments about the birth mother is generally consistent with the findings already made in these reasons and that have emerged from her experience of parenting her older children. The assessments conclude that the birth mother has a personal history with consistent themes of: mental health issues; a chaotic lifestyle; the experience of family violence; a demonstrated lack of insight into the care and needs of her children; and a history of drug and alcohol abuse, including during pregnancy. This Court accepts the findings of that assessment in part because of its consistency with other evidence. Those findings and the inferences from them are set out in more detail below.
The birth mother has an opioid dependency, which has been treated with methadone replacement therapy. She admits to a long history of alcohol abuse beginning in her teens.
The birth mother appears in the first assessment to have little insight into the effect of her drug and alcohol use during pregnancy. She has stated to medical personnel that she believes that her taking of drugs and alcohol may only have the effect of her giving birth to a smaller than average baby, and will have no other effects on her child.
The birth mother was diagnosed in a 2014 perinatal psychiatric report with a borderline personality disorder with polysubstance drug abuse/dependence. The perinatal report shows a history of unstable relationships and incapacity to care for herself, combined with problems of anger management and a lack of insight into these issues.
The birth mother has a history, in the medical system of the state in which the medical assessments were conducted, of having admitted herself to hospital, threatening self-harm. She is recorded as having expressed beliefs that others have assessed as probably paranoid; such as being in danger from the Russian mafia.
The birth mother has unstable mental health, which will continue to impact upon her capacity for parenting and her personal relationships. Her lack of proper insight into her own behaviour has been assessed as impairing her ability to provide a safe and appropriate care environment for the child’s brothers. She needs long term professional assistance to assist her in abstaining from alcohol and substance abuse.
The Court did not have the benefit of seeing the birth mother in the courtroom; although she appeared by audio link at the mention on 29 November 2019. The medical evidence from the proceedings in another State and these proceedings indicates that she has well-developed verbal skills and general knowledge, but her cognitive functioning has been compromised by long-term alcohol and drug use.
The birth mother’s precise mental state diagnosis is uncertain. Her symptoms are consistent with schizophrenia. She has from time to time presented with paranoid delusions during periods of assessment. She has had a diagnosis of borderline personality disorder.
A prime concern of psychologists and psychiatrists about the birth mother is the nature of her psychosis. She has been given conflicting opinions about its nature and origins over the years. The birth mother is capable of acquiring and presenting fixed delusions of a paranoid character. She has not always complied with her medication regime to manage her psychosis.
The first psychologist’s report also covers the birth father’s parenting capacity. The psychologist did not identify any evidence of the birth father having an anger management problem that poses a risk to the children, in the absence of any drug use on his part. But the psychologist in the first report noted that he does have a history of drug use and that he did not feel “it was right to try to control” the birth mother’s drug use, even during pregnancy. The psychologist described the birth father’s relationship with the birth mother as “complicated and unclear”. At the time of this first report the couple had decided to temporarily separate but they seemed to have resumed life together after the separation, until about three months ago. No evidence of any cognitive impairment was found in the birth father on the tests that were undertaken at the time of the first psychologist’s assessment. This was done in order to determine whether his prior drug use may have had any long-term effects on him.
In the end, the broader evidence and the first assessment present a picture of considerable uncertainty.
In his final submissions the birth father particularly relied upon parts of the psychologist’s updated second report which was given in June 2018. The second report was based on an assessment done in March of that year. At the time of that report the birth parents had relocated to another State and were living together. This second report records that the birth mother had made significant progress with her substance abuse rehabilitation and that her mental health had improved significantly, since she had been taking prescribed antipsychotic medication.
The psychologist at this stage was satisfied that the birth mother did not appear to have relapsed into substance abuse but acknowledged that “recreational substance use will be a temptation for the birth mother into the future”. She also recorded that the birth parents were then currently engaging in a therapeutic program to increase their coping skills and focusing on promoting a healthy lifestyle.
This second report reaffirmed the psychologist’s previous opinion that both birth parents were capable of undertaking the basic practical tasks of caring for the child’s brothers, who were comfortable with them and enjoyed their time with them. The psychologist’s June 2018 opinion was that the birth parents were observed to co-parent effectively and naturally together. The psychologist reaffirmed her initial opinion that, provided the birth mother complies with her antipsychotic medication regime and abstains from illicit drug use, the family “may be able to progress with a successful reunification in the longer term”.
To some extent this opinion is overtaken by the recent news of the separation between the birth parents.

The Birth Parents

The birth parents recently decided to separate. They had purchased a home in another State. They did so specifically for the purpose of attempting to provide a stable home for their children, which offers a quiet and healthy lifestyle. The birth father is proud of the fact that the home is well presented, welcoming and child-friendly. It has a children’s park next door. The land around the home is fully fenced. The birth father’s ambition is for the child’s brothers to be returned to his, and hopefully the birth mother’s, care at this home. In the long term he has a vision of the child potentially joining them there too.
The birth mother has gone to live elsewhere in that State, where she has more ready access to medical and other support services. The birth father says he is open to the birth mother and him resuming their relationship in the future; although he is cautious about this, as he is aware of its potential negative consequences.
In his own direct evidence in Court, and in reporting to medical professionals for the care proceedings underway in this other State, the birth father explains he has actively sought to discourage the birth mother from socialising with people who may lead her into reusing drugs.
The birth father presented to the Court, as he did to various medical professionals, as articulate and thoughtful. But at times, he lost concentration and the thread of argument. He has led at times an unconventional lifestyle but that is not a criticism. He has not been diagnosed with any major mental illness or personality disorder. He has the capacity to learn new skills and has worked even at times of stress in creative roles, including as a stand-up comedian, and has made documentaries. His past life shows a diverse range of employment skills, including in the hospitality industry, as a laboratory assistant, as a movie extra, as a storeman for the Navy and as a labourer. He is proud that he has never been dismissed from any workplace.
The birth father has declared to the Court that he is drug free. Recent evidence supports the conclusion that he is. But in the Court’s assessment, there is a degree of risk of him relapsing into drug use, particularly were he and the birth mother to reunite. This leads to a dilemma: at present the birth father can only offer a single parenting alternative to the adoption of the child. But to the extent that the birth mother might come back into the birth father’s life and offer the opportunity for joint parenting, that also brings with it a risk of drug abuse, not only for her but for him.
The birth father has been involved in domestic conflicts in the past with the birth mother. But in the Court’s view, these are largely the product of the birth mother’s and his past drug use. In the absence of drug taking, he does not seem especially prone to domestic conflict, or to have problems managing anger.
The birth father and the birth mother are both capable of undertaking the basic practical tasks of caring for the children, the child’s brothers. They have sufficient insight into the day-to-day needs of their children to demonstrate some fundamental parenting skills. But the birth mother’s personality will always be an uncertain risk and the birth father has difficulty in managing negative aspects of her behaviour. In the past he has not been able to constrain her drug use, despite his best efforts and intentions.
In the course of his submissions to the Court, the birth father spoke about the birth mother and the future as he saw it. He explained that he had broken up with her in the last three months. He described being “on and off” with her for about seven years. He explained that he felt that: “I get judged more harshly when I’m with the mother, when we’re as a unit” and that he feels somewhat freer since the separation. He feels the need to focus on his boys, who he describes also as his “mob”. He also says that the birth mother is part of his “mob” and that he has “concerns for her” and that he will “always be there to help her”. Then he added: “But I can’t foretell the future. But I think I’m in a better position without her, personally. It’s been a hard choice, because she is vulnerable”. His summary of recent progress with her was: “It doesn’t seem to be getting anywhere. So I’ve got to really do what I’ve got to do.” He sees as a priority getting restoration of his two boys and then: “get reunified with my other son one day”. But he is somewhat resigned and said: “I can’t tell what the future holds. So that’s me at the present moment.”

The Proposed Adoptive Parents

The proposed adoptive parents are the child’s authorised carers, who have had his care and responsibility since birth under out-of-home care arrangements under the Care Act. The proposed adoptive mother was born in 1968 and at the time of the hearing she was 51. The proposed adoptive father was born in 1959 and at the time of hearing was turning 60.
The proposed adoptive parents have other adopted children, who live with them. The eldest is approximately 19 years of age. The middle adopted child is approximately 15 years old. The youngest adopted child is approximately 11 years old. Each of the children were adopted by orders of this Court, respectively in 2003, 2005 and 2011.
Since May 2018, the proposed adoptive parents have also assumed the foster care of two other biologically related siblings, aged two and four. Thus, there are five under the age of 18 in the proposed adoptive parents’ home, together with the eldest adopted child.
The Court is satisfied that the proposed adoptive parents have seriously committed to ensuring the child has knowledge and appreciation of his birth family and the important place they have in his life.
The birth father to an extent doubts this, especially because of the controls placed upon his contact visits with the child. He resents being watched by the proposed adoptive parents during access. He feels slighted by the fact that contact takes place in a public environment, which is not conducive to developing closer bonds with the child. He feels hemmed in by the fact that he is not allowed to engage in a wider range of playful activities with the child, partly because of location restrictions; activities that he enjoys with his other children. He feels these are real constraints. In my view, they are negatively impacting upon his attitude to the proposed adoptive parents and a degree of softening of these restrictions over time is highly desirable at several levels. That is why, as will be seen, the fact that the birth parents have finally become parties to the adoption plan is significant.
The birth father cross-examined the proposed adoptive mother about his contact visits and why they had not taken place at the beach. The proposed adoptive mother satisfactorily explained that the beach had not been an option in the circumstances as either other family members were not interested in going for a swim, or it was thought best that the child should have the contact at a familiar location which until now had not been the beach, because of his attachment to routines.
Tensions may arise from the uncertainty of the pre-adoption period. But these should begin to subside after an adoption order has been made and the adoption plan is in operation.
The child has bonded well into the family, in which he is growing up. This is evident in many ways, not least of which is through his steady development despite initial medical challenges. It is also evident through the many activities the proposed adoptive family undertake together, including the holidays they take as a family. The proposed adoptive parents have shown real capacity to meld together children from a number of different family backgrounds into a cohesive family unit, based on respect, support and love. The child is benefiting from this rich environment.

The s 91 Reports

Ms Edwards’ principal and updated section 91 reports were in evidence. Their contents do not need to be separately summarised in these reasons, as much of the content has been referred to throughout this judgment and used in the Court’s reasoning. But the Court mentions at this point that in the principal report Ms Edwards refers to the proposed adoptive parents as “stable, nurturing, experienced, committed parents, who clearly cherish their relationship and the family they have created with their adopted children and the child”. The principal report also emphasises the proposed adoptive mother’s training as an early childhood educator, who attends ongoing professional development as part of her employment and that the proposed adoptive parents “approach parenting with maturity, patience and commitment”.

The updated section 91 report specifically addresses the question of the proposed adoptive parents’ capacity to care for an additional fostered child, and the child’s progress in light of the placement of the two fostered children (and a potential additional fostered child) in the home, and their capacity to meet the contact needs of all these children including the child’s birth family. Ms Edwards’ evidence on this matter satisfies the Court, that the proposed adoptive parents have these issues well in hand.
The birth father cross-examined Ms Edwards. He was particularly concerned to put to her questions about her having preconceived views and that she had “written him off”, and had rejected the idea of possible restoration of the child and only given him a limited amount of time for discussion. But the Court is satisfied from the quality of her answers to the cross-examination, her explanation of her method, and the reasoning in her report that she did not have any such preconceived views and that she gave the birth father adequate interview time. In the course of the cross-examination, the birth father acknowledged that he had conceded to Ms Edwards at one point that it was probably in the child’s best interests to remain where he was at present because of his sense of belonging in the proposed adoptive parents’ family.

Relevant Legal Principles and their Application

Adoption Act, s 8(1) directs decision makers upon the adoption of a child to have regard to the following principles which for present purposes relevantly include:

“(a)   the best interests of the child, both in childhood and in later life, must be the paramount consideration.
(b)   adoption is to be regarded as a service for the child; and
(c)   no adult has a right to adopt the child.
(d)   if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,
(e)   the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,
(e1)   undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare,”

The matters to be considered in determining what is in the child's best interests for the purposes of s 8(1)(a) are specified in s 8(2):

“(a)   any wishes expressed by the child,
(b)   the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,
(c)   the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity,
(d)   any disability that the child has,
(e)   any wishes expressed by either or both of the parents of the child,
(f)   the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,
(g)   the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,
(h)   the nature of the relationship of the child with each proposed adoptive parent,
(i)   the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,
(j)   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 abuse, ill-treatment, violence or other behaviour,
(k)   the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child's circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.”

Adoption Act, s 90 provides:

“(1)   The Court must not make an adoption order in relation to a child unless the Court is satisfied:
(a)   that the best interests of the child will be promoted by the adoption, and
(b)   that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and
(c)   if the prospective adoptive parent or parents are persons other than a step parent or relative of the child--that the prospective adoptive parent or parents have been selected in accordance with this Act, and
(d)   that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and

…
(h) in the case of a child (other than an Aboriginal or Torres Strait Islander child)--that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.

(2) The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances.
(3) The Court may not make an adoption order unless it 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.”

Adoption Act, s 91 prevents the Court from making an adoption order unless a written report is provided to the Court by the plaintiff. A s 91 principal report and an updated report have been provided from Ms Edwards.
It is now useful to analyse the case the birth father advanced and then the issues facing the Court by reference to some of the considerations set out in s 8(2) that are relevant to the Secretary’s application in relation to the child.

The Birth Father’s Case

The birth father put in his final submissions that he would like the Court “to keep the door open for me and give me a chance to reunite with my family in the near future”. He refers to a forensic and clinical psychologist report completed in another State (“the report from another State”), which concludes that the birth father is “not incapable of being a good father”.
The birth father says that he has never harmed a child in his life. He submits there is nothing in the police reports in evidence that indicates that he has ever harmed children. The Court has no reason to doubt the correctness of this submission. Moreover, the birth father cross-examined both proposed adoptive parents, drawing from them evidence that he, the birth father, appeared to the proposed adoptive parents to have a good relationship, and effective interactions, with the child. Their evidence was a little more tentative than that, but in substance that was a correct account of what they said.
The birth father relies upon the report from another State, which was provided to the Court of that State in June 2018 as part of care proceedings occurring in that State. The report does say that the birth father has: turned his life around since coming to that State; has purchased and cleaned up the house; has had no trouble with the police and is secure and stable; is now efficiently supported; and is going well in his life. The birth father has followed religious direction and only wants the best for his sons.
Much of this can be accepted. This case should be decided on the basis that the birth father has considerable day-to-day capability as a parent. In my view, he clearly does. But one of the important relevant considerations here is whether, given the various challenges he faces, the birth father is able to effectively manage the child’s as yet not fully understood health issues around his anxiety. The Court doubts that the birth father will be able to do that. And his capacity to do so will be even more placed at risk if the birth mother returns into his life.
The birth father acknowledged this very issue in his own submissions to the Court.
The Court had the benefit of an undated written reference from an Anglican minister. His insightful reference confirms much of what the birth father says to the Court about his parenting capacity. His reference is clearly based upon direct observation of the birth father’s interaction with the child’s brothers. He says that the birth father’s boys “quickly warmed to him” and “engaged easily” with him and showed no reservation in their relationship with him. His reference also refers to the birth father’s positive approach, his “constructive demeanour”, which is accounted for because of “his commitment to and love for his boys”. He is himself “committed” to do whatever he can to support the birth father being reunited with his boys. In addition to that reference, the birth father has tendered a certificate of completion of a positive lifestyle program conducted by the Salvation Army in July 2018.
In my view, this evidence can all be accepted. It is considerable testament to the birth father’s commitment not only to the child’s brothers but also to his objective of reuniting the child’s brothers with their only other full sibling, the child.
But consideration of this case in part comes down to a very difficult judgment about whether any further delay is warranted in deciding on the child’s adoption to keep open the possibility of the birth father’s vision of bringing his “mob” (as he describes the three full siblings) together again. The birth father is right in one sense. It is a tempting vision: having three full siblings brought up together again in the one household.
But the real-life difficulty with this vision is that it depends upon a series of uncertain events that turn out to be speculative, when compared with the real and present demands of the child’s welfare. The child having a stable foundation in his life, so he can develop, is an urgent consideration that must now be given its proper priority, despite these other competing considerations to which the birth father legitimately points.
Despite the birth father’s vision, the Court has decided that for the child’s welfare the adoption order being sought should be made now.
The birth father also tendered an affidavit from a senior pastor attesting to his: enthusiasm; engagement with his children; mentoring of other children; capacity to share life skills with younger people; and “heart’s desire” to be reunited with his children. The birth father very clearly conveyed to the Court his heartfelt commitment to be reunited with his children, and the Court has weighed that carefully with the other considerations concerning the child’s welfare and best interests.
The birth father also relied upon a letter from his mother, which speaks of her own great desire to see the child and to ensure that the birth father is treated fairly as he is “a good man”. She says that he has “been put through” much in the past. But she says that he is “strong and endeavouring to get through it”. Many of the birth father’s strengths, of which his mother speaks, came through in the way he addressed the Court and gave evidence during the hearing.

The Child's Physical, Emotional and Educational Needs and Disability: ss 8(2)(c) & (d)

In determining the best interests of the child for the purposes of making a decision about an adoption, the decision-maker must have regard to the child’s “physical, emotional and educational needs” including the child’s “sense of personal family and cultural identity” and including “any disability the child has”: Adoption Act, ss 8(2)(c) and (d).
In The child’s case, these considerations are particularly important. The child’s sense of personal and family identity is closely connected with the proposed adoptive parents’ household. Also, the capacity to manage his anxiety is a particularly important relevant consideration in deciding about his future and whether or not adoption is appropriate.
These considerations strongly favour the making of the adoption order sought in this case. An adoption order will strongly reinforce his sense of personal and family identity. The making of an adoption order is also the most reliable and satisfactory way to manage his continuing disability related to his anxiety. The Court is not confident that the child’s disability can be appropriately managed by the birth parents.
The child suffers anxiety and finds it difficult to cope with change, separation and meeting new people. An example of that anxiety was his difficulties in settling, when he commenced preschool. In 2016, the child attended two counselling sessions with a psychologist to address his anxiety and improve his confidence, social skills, diet and behavioural feeding issues.
Over time, as his confidence grew, the child showed significant improvement in all areas of development and in his engagement with peers in the preschool environment. He continues to experience high levels of anxiety owing to disruptions in his routines.

Wishes of the Birth Parents: s 8(2)(e)

The birth parents do not consent to the making of the Adoption Order. Their views are outlined in the principal s 91 report and the updating s 91 report. Despite their opposition to the making of an adoption order, both the birth mother and birth father participated in developing the adoption plan. The birth mother signed the original adoption plan in February 2018. But as will be discussed below, there were some difficulties about obtaining the mother’s signature on the amended adoption plan at the conclusion of the hearing.
The birth father initially declined to sign the adoption plan. But during the hearing after discussion about the advantages of signing, he changed his mind. Being a signatory, the adoption plan gave him beneficial review rights in respect of the plan: Adoption Act, s 51(2). The birth father signed the amended adoption plan during the hearing. But as will be explained below, the adoption plan needed to be amended further as a result of events taking place between the end of the hearing on 13 November and a further mention date on 29 November 2019.

Relationships with Birth Parents, Siblings and Significant Others: s 8(2)(f)

In determining the best interests of the child, the decision-maker should have regard to the relationship that the child has “with his or her parents and siblings…and any significant other people”: Adoption Act, s 8(2)(f). The relationship that the child has with the birth parents is a significant factor in determining his best interests. As is detailed earlier in these reasons, and summarised below, the child’s contact with his birth parents has been limited and is not at this time a factor which tends to incline the Court towards not a making an adoption order. Although the birth father regards the contact that has taken place as unsatisfactory due to reasons beyond his control, the fact is it is limited and does not provide a strong basis to argue for any disruption to the bond that has developed between the proposed adoptive parents and the child. This conclusion is reinforced to a degree by the recent contacts that are detailed below.
In my view, contact with biological siblings is not a factor to be taken into account against an adoption. The proposed adoptive parents have been quite assiduous in following up contact with biological siblings and half-siblings in a way that is clearly for the child’s benefit. This is not a case where it could be said that the making of an adoption order would impair the relationship with biological siblings. This is because the closest biological siblings are not with the birth parents at this time. Current arrangements are detailed below.
The Parents. The child has generally had two face to face visits with the birth parents each year for the last five years. These contact visits have mostly taken place in New South Wales. Both visits occur within the same seven days during the parents' travel to the area where the proposed adoptive parents reside. Maintaining consistency and predictability with this contact has been important, taking account of the child's anxiety. The resulting contact is considered positive for the child.
The birth father did not attend contact visits on 1 June 2019 and 29 October 2019. The birth mother did not attend the most recent contact visit on 29 October 2019 with the child and the child’s brothers.
Besides face to face contact with the child's birth parents, the proposed adoptive parents have agreed to facilitate phone contact between them and the child. They also provide the birth mother with text messages about the child's progress and send the birth parents photographs of the child at school and covering special events in his life.
Biological siblings. The proposed adoptive parents have sought face to face contact for the child with the child’s brothers. This was initially declined by the Child Safety Services of the State in which the brothers reside. But they were persistent in the child’s interests and, in November 2017, the proposed adoptive parents travelled to the State in which the child’s brothers reside with the child. There he had face to face contact with his siblings, together with his birth parents and with the child’s brothers’ carers. The child had a face to face contact with the child’s brothers on 29 October 2019, but on this visit the birth parents did not see the child.
The proposed adoptive parents regularly send photos and information about the child to the child’s brothers’ carers. Face to face contact is expected to occur from now on once every two years, whether by the child travelling to meet his brothers in the other state, or the child’s brothers traveling to New South Wales.
The child has met his maternal grandmother. He has also met his maternal half-sisters in October 2013. The Court is satisfied that the proposed adoptive parents have formed a good relationship with the maternal grandmother. Contact is now facilitated between them by mutual arrangement without the assistance of the Department. Face to face contact takes place every school holidays for several hours. This contact has also involved the child’s brothers, as it did in July 2018. This is expected to continue.
The child’s maternal half-brother visited New South Wales in 2013. The child had contact with his maternal half-brother during that visit. In mid-2017, the child’s maternal half-brother's carer informed the Department that his treating psychologist recommended against birth family contact for him, but contact with the child was suggested as possible for the child’s maternal half-brother at a future point. Financial provision has subsequently been made by the Department for the child and one of the proposed adoptive parents to travel to the State in which the maternal half-brother resides once every two years to have face to face contact with his half-brother.
In October 2019, the child’s maternal half-brother travelled with his carer to New South Wales and attended a joint contact visit with the child, the child’s eldest maternal half-sister and his maternal grandmother. The child should if possible have face-to-face contact with his maternal half-brother at least once every two years. But whether or not he does will in part depend upon decisions about the child’s maternal half-brother’s welfare.
As at October 2019, the child is yet to have face to face contact with his paternal half-siblings, the child’s paternal half-sister and the child’s paternal half-brother. Their mother has advised Ms Edwards that she will facilitate future contact between them. This will be arranged in stages given the child's anxiety with unfamiliar birth family and his recent meetings with his brothers.

Significant Others. The child lives with the proposed adoptive parents’ eldest adopted child, middle adopted child and youngest adopted child. Since May 2018, the two fostered children have been in the continuous foster care of the proposed adoptive parents. This is a long-term placement. The youngest fostered child has Global Development Delay, putting her about 12 to 18 months behind her peers. The eldest fostered child meets all his developmental milestones. The child is considered to have developed a typical sibling relationship with the two fostered children, including playing well with them and occasionally fighting. Ms Edwards observed in her updated s 91 report that the child enjoys his 'big brother' role with the fostered children.
In August 2019, the fostered children’s younger sibling looks likely to be transferred from her current placement, to being permanently with her siblings. The proposed adoptive parents want the additional foster child to be in their care, together with her two siblings. This issue is presently before the New South Wales Civil and Administrative Tribunal (“NCAT”) for consideration. If that transition occurs, then the additional foster child would become another significant person in the child's life.
Ms Edwards in her updated s 91 report notes that during the additional foster child's sibling contact with the two fostered children and in the proposed adoptive parents' home, the child has already become familiar with the additional foster child and built a sibling-like relationship with her. She describes the child to be gentle, caring and protective of the additional foster child.
The birth father questioned the proposed adoptive mother about whether the proposed adoptive parents would be able to handle the number of children in the household once the additional foster child had to join them. But the proposed adoptive mother’s answers indicated, consistently with the updated section 91 report, that she and the proposed adoptive father can handle their larger family well. The proposed adoptive father was cross-examined on similar matters and gave equally satisfactory answers.

Relationship with the Proposed Adoptive Parents: s 8(2)(h)

In determining the best interests of the child, a decision about the child’s adoption must have regard to the nature of the relationship of the child with each proposed adoptive parent: Adoption Act, s 8(2(h). In my view, this is a powerful factor in this case in favour of making an adoption order for the reasons which follow.
The child has a loving and supportive relationship with the proposed adoptive parents. The proposed adoptive parents describe in their affidavits their love for, and commitment to, the child. They both gave short oral evidence and their affection for the child and their commitment to his welfare came through clearly in their testimony.
Ms Edwards’ first s 91 report refers to the proposed adoptive parents' statements about the child being 'our son'. They psychologically identify with him as their child and wish to care for him in the long term as their child.
The strong attachment between the child and the proposed adoptive parents has also been commented on favourably by several medical professionals involved with the child.
The child has been observed by third parties to seek reassurance from the proposed adoptive parents in various situations, including when attending medical appointments or when he is not coping in a professional environment. And in home visits carried out by caseworkers, the child has been observed as content and comfortable in his home. Ms Edwards' observations during her s 91 assessment process confirm those observations.
The proposed adoptive parents have provided close support to the child in preparation for and during his contact with his birth family. They are protective of him at such a sensitive time, which does create uncertainty for him because he does not know his birth parents well. He had responded to that particular form of support from the proposed adoptive parents well, even though, as has been elsewhere observed, the birth father has often found the contact visits unsatisfactory.

Proposed Adoptive Parents' Attitudes and Capacities: s 8(2)(g) and (i)

The next relevant considerations for the decision-maker on the child’s adoption relates to the “attitude of each proposed adoptive parent to the child having responsibilities of parenthood” and the “suitability and capacity of each proposed adoptive parent” to provide for the child’s needs: Adoption Act, ss 8(2)(g) and (i). These are considerations which weigh heavily in favour of making an adoption order in this case. The proposed adoptive parents are well qualified to adopt the child when circumstances relevant to these considerations are evaluated.
The proposed adoptive parents have been authorised carers since October 1998. They have provided close support to the child in preparation for and during his respite care and foster care, as well as raising three older children, who were adopted under orders of this Court.
Ms Edwards' s 91 reports conclude that the proposed adoptive parents' relationship is stable, loving and respectful. Both have good communication and support each other. Ms Edwards observed in her home visits that the proposed adoptive parents were well attuned to all their children's needs.
The child has presented with special needs while in the proposed adoptive parents’ care. The proposed adoptive parents have demonstrated commitment and capacity to meet the child’s special needs, and to have done so with considerable success and demonstrable progress in his health and welfare.
There are many examples of this in the evidence. They have encouraged him in activities aimed at increasing his muscle tone and coordination. In their care he has successfully had long term interventions, including speech therapy, physiotherapy and occupational therapy. He has thrived in physical activities including swimming, which they commenced early. The proposed adoptive parents have also acted on the recommendations of dieticians and other professionals. They continue to take the child to regular ophthalmology appointments.
The proposed adoptive parents have consistently supported him when he has experienced anxiety and difficulties adjusting to new people or environments. They attended sessions with a child psychologist in 2016 to assist them address the child's social skills development and anxiety. The child has also attended psychological sessions while in their care to assist his management of mental health.
The Court agrees with the opinion that Ms Edwards expressed in her updating s 91 report:

"[The child]'s special developmental and psychological issues have been present since placement and during this time, [the proposed adoptive parents] have been alerted to the need for early intervention from a number of medical and developmental specialists. They have worked effectively with all of these professionals, followed treatments plans at home, and advocated for [the child]'s needs at preschool and school. They have provided a safe nurturing environment and consistent routines that have met his needs and contributed to his sound progress. [The child] is closely bonded with [the proposed adoptive parents] and views them as his parents. He demonstrates secure attachments to both [the proposed adoptive mother] and [the proposed adoptive father]."

The Court finds that the proposed adoptive parents have well proven capacity to provide a high level of care to the child and their other children. Should the additional foster child be placed in their care, the placement would be unlikely to compromise their capacity to meet the child's needs. Moreover, there is no basis for the Court to conclude that the child's anxiety is a product of his placement.
The child has made sound health progress during his placement with the proposed adoptive parents. The Court is satisfied they are well attuned to his special needs, manage them well and advocate strongly for his interests. They have worked well with all the child’s medical and allied health professionals.
The evidence well establishes the proposed adoptive parents’ commitment to ensuring the child receives the interventions he requires. They are ready to acquire strategies to deploy in the child’s home environment to help him.
The proposed adoptive parents have made the child aware of his birth family and background in an age appropriate manner. He has many photos provided by his birth parents. He knows about all his siblings. The proposed adoptive parents have made a large family tree with photographs of the child’s birth and foster family. They maintain a life story folder for him.

Need to Protect the Child from Physical or Psychological Harm: s 8(2)(j)

The child identifies with the proposed adoptive parents, as his parents. The Court accepts the evidence that strong attachments exist between the child and the other children in their family.
The child experienced disruption immediately upon birth following his removal from the care of his mother. The impact of that separation was significant. But in the Court’s view, the decision to remove the child was the appropriate one at the time. And any psychological harm resulting from it has been more than counter-balanced by the stable, protective and drug-free environment in which the child now lives.
The birth father’s good intentions towards caring for the child are undoubted. But protecting the child from physical or psychological harm cannot be guaranteed, if an adoption order were not made and, for example, parental responsibility for him was given to the birth parents. What might happen were the birth mother to resume a relationship with the birth father cannot readily be predicted. Even if restoration to the birth parents were being contemplated, one of the central unresolved issues about that scenario is the risk he might be exposed to the consequences of a relapse in addictive behaviour by those caring for him.
Making an order for adoption will support the child's sense of security with those with whom he psychologically identifies as his parents. Bringing his legal relationships with them into conformity with his actual relationships will promote and protect his psychological and emotional wellbeing.

Alternatives to Making an Adoption Order: s 8(2)(k)

For the child the possible alternatives to an adoption order, are: (a) maintaining the status quo; (b) making another type of order other than an adoption order in favour of the proposed adoptive parents, for example an order for parental responsibility; or (c) making another type of order in favour of one or both of the birth parents, for example an order for parental responsibility.
Alternative (c) is not in the child’s best interests. The plaintiff’s submissions on this issue are persuasive. The Secretary submits that moving the child from the proposed adoptive parents, who have cared for him his whole life, to the birth parents' full-time care would risk causing him significant emotional and psychological dislocation and disadvantage. The significant time the child has resided with the proposed adoptive parents and their children, the strong attachments he has formed with them and their response to his special needs, particularly his need for a consist and predictable environment, have created very strong ties that have become the only life that he knows.
The Court accepts the Secretary’s submissions that such a shift would not really constitute a restoration for the child, as he has never been in the birth parents' full-time care. Making an order to give parental responsibility to the birth parents would be like a removal from those with whom he identifies as his family, followed by a placement with the birth parents, with whom he has only had face-to-face contact approximately twice a year over the past five years. Such a change would almost certainly cause him distress, anxiety and tend to neutralise much of his very encouraging recent development.
Despite the birth father’s hopes, in my view, neither he nor the birth mother could assume the child’s full-time care, nor manage the unpredictable difficulties such a transition might pose.
The birth parents are not a couple at present. If they do become a couple again, the risk of other instability will arise. The child still has special psychological needs based around his anxiety. The Court is not convinced that those needs could be adequately addressed in the background of the instability in the birth parents’ lives. Whilst they (particularly the birth father) have done much to provide stable rural accommodation, a realistic capacity to deal in a stable predictable way with the child’s special needs is still lacking.
Moreover, as the Secretary submits, the possibility of parental responsibility for the child being given to either birth parent, by the Children's Court, is extremely remote. Maintaining the status quo to keep this option alive is not itself in the child's best interests. And it is to be remembered that the Adoption Act specifies that undue delay in making a decision in relation to adoption “is likely to prejudice the child’s welfare”: Adoption Act, s 8(1)(e1).
Alternative (a) is not in the child’s best interests. Maintaining the status quo would also leave the child in foster care under the parental responsibility of the Minister. The proposed adoptive parents would not be able to make significant decisions for the child and the family will be subject to oversight and ongoing involvement with caseworkers until the child reaches 18 years of age. Such close third party intervention in the child’s life on a long term basis is not desirable and has its own destabilising effect, which should be avoided if possible.
Making an adoption order would vest legal parenthood in those that have cared for the child continuously for nearly seven years. The legal status of parenthood is a fundamental foundation for the child’s life. To leave this ambiguous is to leave much of his life relationships unstable. Making a decision about his legal parenthood will also provide for the continuation of a clear legal relationship with the proposed adoptive parents beyond 18 years of age.
The importance of making a decision about legal parenthood was described in
Adoption of SP [2018] NSWSC 391, in which Sackar J said:

"[17]   Judges have long since recognised that a clear sense of identity is an important life foundation for children and this is particularly so against an early background of ambiguity or instability. It is also well recognised that anxiety and uncertainty on the part of the child and the carers due to the impermanence of their position and the lack of certainty can or in some cases can be a very stressful situation. It is also stressful, where relevant for the birth parents.
[18]   The practical effect of adoption does rule out for practical purposes restoration to birth parents. Equally however it does perfect the child's membership of the family in which in every other sense he or she is or has become a member and which is essentially the only family he or she has ever known. It has the effect of bringing the legal relationship of parentage into conformity with the reality of the situation.
[19]   It also means the child becomes a child of the adoptive parents, not just until he or she attains 18 years of age but for life. It also confirms his or her identification with the family with which he or she lives and which the child may sec both emotionally and psychologically as his or her family."

For a child with the child’s background anxiety, the need for the making of a formal adoption order is especially important as a stabilising factor. Medical and psychologists’ advice is that instability is inimical to his sound development. It can be expected that an order for adoption will help reduce his anxiety and uncertainty about his future.
Alternative (b) is not in the child’s best interests. An order allocating parental responsibility to the proposed adoptive parents would address some deficiencies arising with the alternative of maintaining the status quo. An order allocating parental responsibility to the proposed adoptive parents would allow them to make significant decisions about the child. But it still lacks the permanency of an adoption order: Adoption of NG (No 2) [2014] NSWSC 680, (at [75] - [82]). And a major disadvantage of this alternative is that when the child reaches 18 years of age he would lose his legal connection to the proposed adoptive parents and their children, despite the reality that the proposed adoptive parents have been acting in the role of his parents almost since his birth.
These alternatives must be compared and contrasted with the advantages of an adoption order. An adoption order will change the legal status of parenthood between the child and the birth family. But it will not end their relationship, nor will it alter the way the child relates to them. That connection will be present all his life, and is actively promoted through the adoption plan and the policy of the Adoption Act. The Court is satisfied that if the birth parents maintain contact with the child as regulated by the adoption plan, their relationship with the child will still be able to develop to the child’s advantage.
The Court is satisfied that the alternatives to adoption offer no practical advantage in maintaining the child's relationship with his birth family and instead present a number of clear disadvantages. The child’s best interests are not served by denying him the benefits that adoption will afford him in favour of an outcome that operates to preserve his legal relationship with his birth family.

The Child's Wishes and Selection of the Proposed Adoptive Parents: ss 90(1)(b) and (c)

The Court cannot make an adoption order unless it is satisfied that so far as practicable “the wishes and feelings of the child have been ascertained in due consideration given to them” and that the prospective adoptive parents have been selected in accordance the Adoption Act,s 90(1)(b) and (b).
The child was almost seven at the time the hearing. His age does not permit him to have a complete understanding of the adoption process. The proposed adoptive parents are the only family he has ever known. All that can really be inferred on this issue is that the child appears to be content to become bound more closely into the family in which he is now living.
The updating s 91 report observed that the child is aware of his proposed adoption and has a basic understanding of what an adoption means. The Court accepts Ms Edwards’ opinion that the child's understanding of his background is also developing at an age appropriate level and he is able to point out various birth family members.
The proposed adoptive parents were assessed by the Department as suitable for adoption under the Adoption Act, s 45F. And the Court is satisfied their selection has occurred in accordance with the Adoption Act.

The Birth Parents’ Consent: ss 90(1)(d) and 67(1)(d)

The Court is satisfied the birth parents were each served with a copy of the Mandatory Written Information required under the Adoption Act. The Court is also satisfied that both birth parents have received the prescribed notice of the application for the consent dispense order, as required by Adoption Act, s 72.
The Court cannot make an adoption order in relation to a child under 18 unless consent has been given by each parent of the child and any person "with parental responsibility for the child”: Adoption Act, s 52. A parent or person with parental responsibility for a child may consent to the adoption.
Here, a delegate of the Minister has given consent to the making of an adoption order for the child in favour of the proposed adoptive parents. The birth parents have not consented to the making of an adoption order. But it is not required to have the consent of the birth parents under s 52, if the Court has dispensed with that requirement: Adoption Act, s 54(1)(a).

The Secretary has applied for an order under Adoption Act, s 67(1)(d), dispensing with the birth parents’ consent. The Court will make that order. The elements of s 67(1)(d) are established here. The child’s adoption application is brought in favour of his authorised carers, the proposed adoptive parents, and he has an established stable relationship with those carers. The adoption will promote his welfare, and the Court is satisfied that making the consent dispense order is in his best interests: Adoption Act, ss 67(1)(d)(ii) and 67(2).

The Child’s Cultural, Language and Religious Ties: s 90(1)(h)

Adoption Act, s 90(1)(h) requires the Court to ascertain that “the child’s given names, identity, language and cultural and religious ties” have been taken into account in the “making of any adoption plan” in relation to the adoption. The Court is satisfied that these matters have been taken into account. They were well covered by Ms Edwards and are dealt with directly or indirectly in the adoption plan.
The birth parents share an Anglo-Australian cultural background. The proposed adoptive parents are Anglo-Australian. The child will experience Australian culture through everyday life, reinforced by his engagement with his community, school and his extra-curricular activities.
The birth mother describes herself as a Christian. The birth father also identifies as a Christian. They attend weekly services at church. The proposed adoptive parents are both Christian but not affiliated with a specific church and they do not attend church. The proposed adoptive parents wish for the child to be exposed to different religious beliefs and values. Their plan is to enrol him in a Catholic School where he will participate in religious education. The Court is satisfied that the proposed adoptive parents are raising the child with Christian values and are a supportive of the child attending religious education, when he commences primary school.
There have been some unsatisfactory discussions between the birth parents and adoptive parents about the child’s religious upbringing. But the Court is satisfied that the adoption plan is well crafted on this issue and that the proposed adoptive parents well recognise it.

The Adoption Plan: s 90(2)

The overall structure of an adoption plan has been agreed for some time. The proposed adoptive parents, the birth mother and the Secretary's authorised delegate agreed to an adoption plan in February and March 2018. The original summons sought registration of this plan.
Registration makes that plan part of the Court’s adoption order and permits the Court to review it in future on the application of one or more of the parties to the plan: Adoption Act, ss 50 and 51.
Following a mediation between the parties, the Secretary prepared a draft amended adoption plan. At the opening of the hearing the draft amended plan still required funding approval, which was being arranged by the Department. Funding to make the adoption plan work was approved just prior to commencement of the hearing. The Secretary then provided the amended adoption plan to the birth parents and to the Court.
The birth father signed the amended plan during the hearing, once the Court explained to him that unless he was a party to the plan he would only have a right to apply for a review of the adoption plan if he was one of the parties to the plan: Adoption Act, s 51(1). He wanted to have that involvement and so he signed the plan. It is far better that birth parents and their proposed adoptive parents all signed the plan, so they each have a right of review in case circumstances change and the plan becomes unsuitable and needs to be varied.
But there were some procedural difficulties with finalising the plan that should be shortly explained. The plan which the father signed was an amended adoption plan which took into account some recent adjustments which will be identified below. But the birth mother had not signed the amended plan by the conclusion of the hearing. So the Court adjourned the case until 29 November 2019 with a view to giving judgment but in the meantime to provide the opportunity for the birth mother to sign the amended plan.
Unfortunately by 29 November 2019, the birth mother had not provided the hard copy of the signed amended plan and not sent it back in a way that the whole plan as signed by her could be viewed. She appeared by audio link on 29 November and indicated to the Court that she had signed the plan. But when an electronic copy of the signed plan was sent through it was clear that she had made some alterations to the amended plan. The Court declined therefore to make any adoption orders or to register the plan because of uncertainty about the exact form of amended adoption plan that she had signed.
The matter was adjourned again so that the precise changes the birth mother was proposing to make to the plan could be understood and discussed with the other parties. That in due course occurred. As a result, the final form of plan which is identified below was agreed and was signed by all parties as verified by affidavit. The Court can now give a brief description of the final process by which this occurred and the form of agreed adoption plan.
By 29 November 2019, there was no signed and agreed adoption plan. The Court was reluctant in the child’s interests to make an adoption order without both the birth parents and the proposed adoptive parents signing the adoption plan so there was no doubt they were parties to it and had a right to review. So the Court indicated that day that a practical way forward, as the birth parents resided in another State, would probably be for the Department to arrange for an independent solicitor or other person in that State to meet them with the draft adoption plan and discuss their advice on whether they agreed with it, and, if they did, to request that they sign the adoption plan.
The Department arranged for a self-employed process server and assistant Bailiff to undertake this task. The Court’s preference was for an independent solicitor to perform the task but that being said, for the reasons which follow, the Court is of the view that a satisfactory outcome has been reached and that the birth parents and the proposed adoptive parents have signed in the first week of December 2019 a further amended adoption plan (which for convenience in these reasons will be called “the final adoption plan”). The Court is satisfied in all circumstances, from the detailed evidence Ms Williams has given and the obviously competent manner in which she has carried out the task and the careful nature of the changes that the birth parents have made that, although they have misgivings about signing, the birth parents have signed the final adoption plan and they are well aware of its contents. The final adoption plan has also been signed by the proposed adoptive parents.
After 29 November 2019, the Court received additional affidavits sworn 6 December 2019 from Ms Williams and an affidavit sworn on 11 December 2019 by Ms Morrison which the Court has permitted the plaintiff to read into evidence. These affidavits explain the circumstances of what happened between 2 and 6 December 2019 before the birth parents signed the final adoption plan.
The Court does not have to set out all the post 29 November 2019 events that are recounted in these affidavits. But the essential facts are that Ms Williams met the birth mother on 2 December 2019 with the birth father at a cafe. The Court is satisfied that Ms Williams was dealing with the birth parents. Ms Williams provided the draft adoption plan as it stood on 29 November 2019 to the birth parents but they were not prepared to sign without changes. The birth mother made some handwritten changes to the draft. The birth father was not present the whole time that Ms Williams was with the birth mother making these changes but some of the changes reflect concerns that he raised in oral submissions. Ms Williams conveyed the birth mother’s handwritten changes to the Department overnight to get instructions as to whether they were acceptable.
The changes of substance may be briefly summarised. There were a number of formal changes that need not be covered here. The birth parents wanted to change the period of notice that they would give the proposed adoptive parents for contact visits from one month’s notice to two weeks’ notice. As the birth father had indicated in his oral submissions, he wanted to add “beach” to the list of age-appropriate venues where contact visits could take place. The birth parents wanted the maternal grandmother and the child’s maternal half-sisters to have separate contact visits with the child which were not contingent on the other family members attending. The other change was for a contact visit with the child’s paternal grandmother to occur as soon as possible, this rather than if the proposed adoptive parents were travelling to Sydney.
Among the changes that the birth parents proposed, but were not agreed, were some proposed changes relating to the funding by the Department of the travel and accommodation expenses of the birth parents, on their visits to New South Wales to see the child. But the funding arrangements for travel and accommodation that are provided for in the final adoption plan as signed appear to the Court to be reasonable. They have been included under the discretionary power to make such financial provision under Adoption Act, s 46 (2)(b) and s 201. These amounts may vary over time.
The next day, Ms Williams and the birth parents met again, but she met them in different locations. It appears that the birth parents had a disagreement overnight and were not in a position to see Ms Williams together. Ms Williams had with her a form of adoption plan that showed which of the birth mother’s changes that have been made the previous day had been agreed to by the Secretary, and which the Secretary had not agreed to, together with a clean copy not showing the changes agreed and not agreed.
The birth father expressed misgivings about signing the final adoption plan but he decided he would sign it, saying “I don’t agree with some of this [indicating the final adoption plan before him] but I will sign it anyway. The judge said to sign it. I want this over and done with.” The birth father is correct that the Court did encourage him to sign it. But the circumstances objectively indicate that the birth father was apprised of what he was signing. He read the draft document the previous day and he read parts of it again before signing on this occasion. Many of the agreed changes in this final adoption plan coincided with the changes that the birth father had requested in the courtroom during hearing.
But the birth mother expressed that she was not in the right frame of mind to sign the document that day, 3 December 2019, as she had not been taking her antidepressant medication. Ms Williams decided to drive her home and they arranged to meet in the days following. They eventually met together at 1PM on 5 December, when the birth mother signed the final adoption plan, which was annexed to Ms Williams’ affidavit as “Annexure F”. That document has now been marked as an exhibit in the proceedings (“Exhibit C”). Ms Williams offered the birth mother the opportunity to speak with a solicitor but the birth mother indicated that she did not need to speak to anyone to clarify anything and went ahead and signed.
The content of the changes the birth mother made to the final adoption plan indicate that she was quite alert to the practical nuances of the document, and that she has a sound appreciation of how the document works and what the changes mean. She has been assessed in the report from another State as “articulate and knowledgeable” although her cognition is compromised. The Court is satisfied that although the birth mother may not be entirely happy with the final adoption plan, she has given her assent to it and signed it on 5 December.
One important feature of the final adoption plan is that it refers to two matters of heritage of the birth parents. The birth mother has Native American heritage, a matter not identified in previous versions of the adoption plan. And the final adoption plan also refers to the fact that the birth father grew up with Aboriginal people, a matter that he mentioned in his submissions during hearing.
The proposed adoptive parents have also signed the final adoption plan, Exhibit C. Ms Morrison arranged for them to sign once it was clear that the birth parents had signed. The proposed adoptive mother signed the final adoption plan on 5 December 2019 and the proposed adoptive father signed on 6 December 2019.

The Best Interests of the Child: s 90(3)

The Court concludes that the making of the adoption order is “clearly preferable in the best interests of the child than any other action that could be taken by law in relation to [him]”: Adoption Act, s 90(3). The Court’s analysis above, showing why adoption is the “clearly preferable” course here and why Adoption Act, s 8(2)(k) has been satisfied, also establishes that the requirements of s 90(3) have been met.

The Names of the Child and Other Additional Requirements

The Secretary seeks an order that the child's name be changed to reflect the surname of the proposed adoptive parents. His middle name would maintain the child's connection to his birth father, who has the same middle name.
But his surname will change. This change is well warranted. Adoption of the proposed adoptive family's surname is an important way to "recognise the children's place in the adoptive family and reinforce their sense of permanency and belonging, in that [the children] will be in name as well as in law a member of the adoptive family": Adoption of RCC and RZA [2015] NSWSC 813, (at [104]).
Adoption Act, s 90(1)(h) requires that the adoption plan take into account the child’s given names. The proposal discussed here to change the child’s name to reflect the surname of the proposed adoptive family is fully dealt with in the adoption plan in conformity with the Adoption Act, s 90(1)(h).
The other requirements of the Adoption Act are satisfied. The child was present in the State when the Summons was filed: Adoption Act, s 23(2). The proposed adoptive parents are presently resident or domiciled in this State: Adoption Act, s 28(1). The proposed adoptive parents are also of good repute and are fit and proper persons to fulfil the responsibilities of parents: Adoption Act, s 28(1). The child's emotional, physical, education and health needs are well met in their care. The detailed affidavit evidence of the referees for the proposed adoptive parents confirm that they are persons of good repute. The body of detailed medical and lay evidence before the Court shows the proposed adoptive parents are fully and constantly committed to the child's wellbeing.
Finally, the proposed adoptive parents are each over the age of 21 years and are more than 18 years older than the child: Adoption Act, s 28(3). The proposed adoptive parents have been living together for a continuous period of not less than two years immediately before the application for the adoption order was filed: Adoption Act, s 28(4).

Conclusion and Orders

Accordingly, for these reasons the Court is satisfied that an adoption order should be made and makes the following orders:

Order that the consent of the child’s birth father be dispensed with pursuant to Adoptions Act 2000, s 67(1)(d).

Order that the consent of the child’s birth mother be dispensed with pursuant to Adoptions Act 2000, s 67(1)(d).

Order for the adoption of the child in favour of the adopting parents and approves the adopting parents’ surname as the birth surname. The child’s first and middle names will remain the same.

Order that the adoption plan, which is Exhibit C in these proceedings, be registered pursuant to Adoptions Act 2000, ss 50(3).

Order that the original unanonymised version of these reasons may only be published to the parties to these proceedings and their immediate families.

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Decision last updated: 24 March 2020

Medium Neutral Citation:	A Child Proposed for Adoption [2019] NSWSC 1653
Hearing dates:	12, 13 and 29 November 2019
Date of orders:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Equity - Adoptions List
Before:	Slattery J
Decision:	Order made dispensing with the consent of the birth parents. Order for adoption made. Adoption plan approved.
Catchwords:	ADOPTION – contested adoption – Adoption Act 2000, ss 52, 67, 90 and 91 – application to dispense with the consent of the birth mother and birth father and for an adoption order – birth mother and birth father do not consent to adoption order – child has been with adoptive parents from the age of four weeks – child is now six years old – whether an adoption order is in the best interests of the child – consideration of the alternatives to an adoption order.
Legislation Cited:	Adoption Act 2000, ss 50, 52, 67, 90, 91 Children and Young Persons (Care and Protection) Act 1998
Cases Cited:	Adoption of NG (No 2) [2014] NSWSC 680 Adoption of RCC and RZA [2015] NSWSC 813 Adoption of SP [2018] NSWSC 391
Category:	Principal judgment
Parties:	Plaintiff: Secretary, New South Wales Department of Communities and Justice First Defendant: the birth mother Second Defendant: the birth father
Representation:	Counsel: Plaintiff: C. McGorey Solicitors: Plaintiff: Karen Smith, Crown Solicitor for NSW First Defendant: no appearance Second Defendant: in person
File Number(s):	2019/325610
Publication restriction:	Yes