Adoption of A

[2019] NSWSC 1780

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of A [2019] NSWSC 1780
Hearing dates:	3 December 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Equity - Adoptions List
Before:	Sackar J
Decision:	Adoption Orders Made
Catchwords:	ADOPTION – whether adoption is in the best interests of the child – adoption clearly preferable
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	Adoption of Hogarth (No 2) [2019] NSWSC 9
Texts Cited:	n/a
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Communities & Justice (plaintiff) Birth mother (defendant)
Representation:	Counsel: Ms R Dart (plaintiff) No representation (birth mother)   Solicitors: NSW Crown Solicitors (plaintiff) Birth mother (on phone, self represented)
File Number(s):	2019/33762

Judgment

1. This matter concerns the adoption of E A born September 2015.

2. By Summons filed 31 January 2012, the Secretary, NSW Department of Communities and Justice seeks the following:

1. That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child’s birth mother, S A, be dispensed with;

2. That pursuant to Adoption Act 2000, s 67(1)(a), the consent of the child’s birth father be dispensed with;

3. That pursuant to Adoption Act 2000, s 88(4), the court dispense with the giving of the notice on the child’s birth father;

4. An order for the adoption of the child E A in favour of the adopting parents X B and Y B;

5. An order approving the name “B” as the surname and “E F” as the given names of the child.

3. The matter was listed for hearing on 3 December 2019. Counsel appeared for the Secretary and the birth mother appeared by telephone.

4. Having heard the matter and carefully considered the materials as well as having heard from the birth mother I made orders for the adoption of E. As is my practice in this type of matter, I now publish my reasons in full amplifying my ex tempore reasons.

Background facts

5. E was born in September 2015 to Ms S A (birth mother), E’s birth father is unknown. E has two older siblings, M born November 2005 and N born May 2007.

6. Three putative fathers were initially identified by the birth mother. Mr H, the birth father of N, has submitted to DNA testing which confirms that he is not E’s birth father. Mr C, another partner of the birth mother, previously agreed to undertake DNA testing but has not undertaken any DNA test and has asked the Department to cease contacting him. The mother further identified a “J K” as a potential birth father, but she has been unable to provide the Department with sufficient information to identify him.

7. The Department first became involved with Ms A in 2006, due to concerns about her homelessness, mental health and incidents of domestic violence between herself and Mr H. In particular N and M experienced and witnessed episodes of family violence perpetrated by the birth mother and her partners whilst in her care. In 2008, the birth mother signed a Parental Responsibility Contract with the aim of ensuring M and N’s safety. As part of the contract, the birth mother was required to attend medical appointments, participate in early intervention programs and agree that Mr H was not allowed to reside with her, M and N. In the year following the end of the contract, there were no risk of harm reports received in relation to M and N, however in 2011 the Department again started to receive reports in relation to the children. In February 2015, M and N were removed from the birth mother’s care following an incident of physical assault upon M by the birth mother. The mother was subsequently convicted of assaulting M. In July 2015, an AVO was issued naming M and N as protected persons and the birth mother as the defendant.

8. In September 2015, E was born, and based on the child protection concerns in relation to M and N, was assumed into the care of the Minister when he was 1 day old.

9. In April 2016, Final Orders were made allocating Parental Responsibility for M, N and E to the Minister until each child reached the age of 18 years.

10. E, M and N were initially in the same foster care placement. In August 2016, this placement broke down due to an unforseen medical issue of one of the carers. The children were subsequently all placed together in another long-term placement. This placement broke down at the end of November 2016 due to changes in employment of one of the carers.

11. E was placed with X and Y (proposed adoptive parents) on 1 December 2016. He has lived with them continually since this time. The proposed adoptive parents have been authorised carers for over 15 years, initially providing short-term and respite care. They still maintain a strong relationship with one young man they provided respite care to for over ten years. The proposed adoptive parents also have one adoptive daughter; W, born 5 July 2010. W was placed with the proposed adoptive parents in 2010 and an adoption order for W was granted in September 2015. The proposed adoptive parents were previously the authorised carers of Z. Z died of natural causes in September 2015.

12. M and N were placed in separate long term placements and have had numerous moves in foster care. There has been some friction between the proposed adoptive parents and M and N’s carers regarding contact visits, particularly since M and N have been placed about a two hour drive away.

13. There are currently nine contact visits a year between E and the birth mother, M and N. In the event of an adoption order, it is proposed that E will have a minimum of six contact visits with the birth mother with additional sibling contact visits to occur a minimum of two times per year.

Legal principles

14. By s 8(1) of the Adoption Act 2005 (NSW) (‘the Act’), the Court is to have regard to specified principles when making a decision about the adoption of a child, including the best interests of the child both in childhood and in later life, which must be the paramount consideration. Adoption is to be regarded as a service for the child and that no adult has a right to adopt a child. The focus in any proceedings must be in the best interests of the child and how making an adoption order would benefit the child rather than how the order would benefit others.

15. In determining what is in the child’s best interests, the matters contained in s 8(2) are to be taken into account, for example any wishes expressed by the child, the child’s physical, emotional and educational needs and the nature of the relationship of the child with the proposed adoptive parents.

16. Section 90 of the Act reinforces those considerations but in addition the child’s age and understanding and wishes if they can be ascertained should be taken into account. The proposed adoptive parents must be regarded as appropriate and those persons who may give consent, in particular the birth parents have either done so or their consent has been dispensed with (s 67). Consent can be dispensed with the person cannot, after reasonable inquiry, be found or identified (s 67(1)(d)). The Court must not dispense with consent of the birth parents unless, among other things, it is satisfied that it is in the child’s best interests (s 67(2)).

17. Due consideration should be given to cultural issues, language, and religion in making any order for adoption. In particular s 7 provides that one of the objectives of the Act is to ensure that adoption law and practice assist a child to know and have access to his or her family and cultural heritage.

18. Further the Court should not make any order for an adoption if the parties to the adoption have agreed to an adoption plan unless the Court is satisfied that the arrangements proposed are again in the best interests of the child and are proper in the circumstances (s 50(3)).

19. Importantly the Court may not make an order for adoption unless it considers that the making of the order would be clearly preferable and in the best interests of the child over any other order that could be taken by law in relation to the care of the child (s 90(3)).

20. A Court must not order a name change for the child unless satisfied that the name change is in the best interests of the child (s 101(5)).

21. Recently in Adoption of Hogarth (No 2) [2019] NSWSC 9, Brereton J considered the benefits of adoption (at [51]-[52]):

In other cases in which the effects of adoption have been considered, there has been a tendency to emphasise the beneficial effects of adoption in comparison to long-term foster care. That has been because, in many of those cases, restoration has not been a realistic option, and the contest has been between adoption on the one hand, and ongoing foster care with either the Minister or the foster carers having parental responsibility on the other. In that context, the effects of adoption have been identified as including:

(1)   First, adoption contributes to providing, for children who cannot be raised by their birth family, the stability, security and certainty that they need. It provides certainty and permanence for children, both directly, and indirectly through the additional certainty it affords their adoptive parents. The possibility of further changes, disruptions and separations are minimised. Aspirations to restoration expressed by birth parents are practically foreclosed. In this way, the security afforded by an adoption order is in the interests of the child as much as the adoptive parents.

(2)   Secondly, adoption serves the identity needs of such children – in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family – by bringing their legal status into conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own (and – because it is not limited to age 18 – not only during childhood, but for life). Adoption also places the children on an equivalent basis, with equivalent rights, as any biological children of the adoptive parents. While adoption legally severs the parental relationship between the children, the birth parents, and any biological siblings, that is typically in circumstances where the legal parental relationship has, in reality, been devoid of practical parental responsibility, and the opportunity for the children to know and have some relationship with their birth family is preserved, in the context of an open adoption, through contact. The security and certainty provided by an adoption order may provide a firmer basis for the adoptive parents to be supportive of contact between the child and the birth parents.

(3)   Thirdly, adopted children are raised in a legally recognised family, rather than remaining “State wards” for the duration of their childhood; “out-of-home” care is thus replaced by in “in-home” care. The need for departmental intervention, and departmental approval for significant decisions of the carers, is removed, along with the stigma potentially associated with being a “State ward”. One aspect of this is that, where their legal name corresponds with that of the family with which they live and identify, they are enabled to choose for themselves whom they tell of their status, without it being self-evident from their different surnames. Children who do not live with their birth families tend to control knowledge of that circumstance closely, and the assumption of the adopters’ surname which is an ordinary concomitant of adoption facilitates this.

Although it has invariably been acknowledged in those cases that adoption carries a risk that the child may feel unwanted or abandoned, and may encounter “identity issues” in later life – in particular in adolescence – it has been observed that such risk is incidental more to the circumstance that the child does not reside with his or her birth parents, than to adoption per se, and that whether in foster care, or under a parental responsibility order, or adopted, there is the same potential for the question, “why do I not live with my birth parents?”, and the risk of a sense of loss or abandonment. However, it has been observed that that risk can be mitigated if the child knows the birth parents and can continue to have a relationship with them, and that while the legal parental relationship with the birth parents is severed, they do not cease to be the birth parents and the relationship with them can be maintained through contact, while legal parenthood appropriately resides with those who are discharging the responsibilities of parenthood.

Evidence

22. Various affidavits were relied upon by the Secretary, of particular note was the s 91 report of Diane Edwards dated 31 January 2019. Ms Edward notes that she is of the view that the proposed adoptive parents have more than adequately been able to meet E’s needs and have provided a loving and stable home for him and W. Ms Edwards indicated that the proposed adoptive parents had demonstrated a commitment to birth family contact and maintaining a positive relationship with both E and W’s birth family. She notes that it is in her opinion that an adoption order would be in E’s best interests and clearly preferable, as he has lived with the proposed adoptive parents since he was one year old and an adoption would secure E a permanent, legal place in the family.

23. I further note the evidence of the Secretary (in particular the affidavits of delegate Mr Higson, and the affidavit of service of Mr Shaw) which summarise the repeated attempts to identify E’s birth father and engage with Mr C about DNA testing.

24. I further note the affidavits of the proposed adoptive parents and their referees.

25. There was no evidence filed by the birth mother in the proceedings. On the day of hearing the birth mother appeared by telephone and indicated that she opposed adoption. She stated that all of the problems identified by the Department related to the older children and not to E. She stated that E had been removed from her care when they were at hospital and this was unfair.

Submissions

26. Counsel provided detailed written submissions on behalf of the Secretary. The Secretary submits that in all the circumstances an order for adoption would be in E’s best interests and clearly preferable to any other action taken at law. In particular E has a strong attachment to the proposed adoptive parents having lived with them for the majority of his life, and would benefit from the security and permanency of an adoption order. The Secretary further submits that after reasonable inquiries the birth father of E cannot be identified and consent should be dispensed with. The Secretary notes that out of the three putative birth fathers, one has been ruled out due to DNA testing, one has refused repeated requests for DNA testing and one cannot be identified or contacted by the Department due to a lack of information.

27. On the day of hearing Ms A made submissions that she opposed the adoption.

Consideration

28. I consider that in all the circumstances of the case I should make the orders for adoption.

29. I am satisfied that an adoption is clearly preferable under s 90 and in E’s best interests taking into account the matters in s 8.

30. I am further satisfied that the formal requirements are satisfied.

31. E is described as an active young boy who enjoys playing outside, kicking balls and riding his bike. He loves playing with the family dog and playing with his sister W. He has clearly thrived in the care of the proposed adoptive parents.

32. The proposed adoptive parents have demonstrated a commitment to caring for E, they have a warm, patient approach to parenting and have sought to educate themselves through attending a variety of parenting courses and working with a variety of health professionals to meet the needs of the children in their care. Although E has experienced slight communicative delay, the proposed adoptive parents have shown dedication in working with speech pathologists to ensure that E meets his developmental milestones. It is clear that the proposed adoptive parents have more than adequately met all of E’s emotional, educational and psychological needs.

33. There is no doubt that E’s primary attachment is with the proposed adoptive parents, he calls them ‘Mum’ and ‘Dad’ and seeks them out for comfort. The proposed adoptive parents have been able to successfully care for and go on to adopt, W, and have clearly provided a warm and nurturing home for the children.

34. I note that there was some concern apparent from the materials about the proposed adoptive parents’ commitment to birth family contact. However I note that Ms Edwards was firmly of the belief that the proposed adoptive parents had demonstrated a commitment to birth family contact and had a nuanced understanding of the importance of a child’s birth family. I am of the view that the proposed adoptive parent’s recognise the importance of birth family contact to a child’s identity and have demonstrated an ongoing commitment to regular visits with E’s birth family. They have given the birth mother their phone number and have been responsible for arranging visits by themselves for some time and regularly send the birth mother messages providing photos and updates. The Maternal Adoption Plan provides for six, two-hourly contact visits per year with the birth mother and an additional two sibling visits. I believe that this is appropriate given E’s age and the length of time he has spent with the proposed adoptive parents.

35. I am of the view that it would be best to cement the psychological bonds that have clearly been established between E and the proposed adoptive family. In my view it is clearly preferable for E to have a legal place in the family, along with W, and experience a legal bond that will endure beyond the age of 18. An adoption order can create a sense of permanency and stability which will provide E with a forever family.

36. I would further make orders dispensing with the consent of the birth mother pursuant to s 67(1)(d). Although this is a serious step, I am of the view that it is in E’s best interests to do so. I note that the birth mother has expressed her love for her children and I encourage her to work with the proposed adoptive parents to form a positive relationship for E’s benefit. I am further of the view that it is appropriate to dispense with the consent of the birth father, I am satisfied that after reasonable inquiries he cannot be identified. I would further make orders dispensing with the requirement to give notice under s 88(4).

37. I make orders registering the adoption plan and further for E’s name change.

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Decision last updated: 16 December 2019