Adoption of AMB and JJE

[2018] NSWSC 1609

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of AMB and JJE [2018] NSWSC 1609
Hearing dates:	22, 23, October 2018
Date of orders:	25 October 2018
Decision date:	25 October 2018
Jurisdiction:	Equity - Adoptions List
Before:	Sackar J
Decision:	see paras [86]-[89]
Catchwords:	EQUITY – adoption – whether adoption proposed will promote the best interests of the children – whether dispensing with birth parent consent is in the best interests of the child – whether the best interests of the child will be promoted by the making of an adoption order and preferable to any other action – whether court should order the surname change
Legislation Cited:	Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	Adoption of NG (No 2) [2014] NSWSC 680 Adoption of RCC and RZA [2015] NSWSC 813 In the matter of Campbell [2011] NSWSC 761 Re H (Adoption: Parental Agreement) (1982) 3 FLR 386 Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 Re Tanya [2016] NSWSC 794 Re W (A Child) [2017] 1 WLR 889; [2016] EWCA Civ 793
Texts Cited:	n/a
Category:	Principal judgment
Parties:	The Secretary, NSW Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia(Plaintiff) CMB (Defendant)
Representation:	Counsel: Ms R Dart (Plaintiff) D Russo (Solicitor for Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) D Russo (Solicitor for Defendant)
File Number(s):	A24/2018

Judgment

Proceedings

Parties’ submissions

Plaintiff

Defendant

Legal principles

Legislation and the best interests of the child

Disposing of consent

Restoration as opposed to adoption

Name change

Evidence

Plaintiff’s lay evidence

Ms Jenny Ulrika Norderyd

Ms Denise Kay Berry

Mr GPLP

Ms NMB

Referees

Plaintiff’s expert evidence

Ms Dianne Starkey

Defendant

Consideration

Assessment of the witnesses

Best interests of the children – restoration

Best interests of the children – adoption or otherwise

Conclusion

Judgment

Proceedings

1. By Summons filed 21 February 2018 the Secretary of the Department of Family and Community Services by his delegate the Principal Officer of Adoptions of Barnados Australia (the Plaintiff) sought orders for the adoption of the children AMB born 4 January 2010 and JJE born 18 February 2012 in favour of the proposed adoptive parents NMB and GPLP.

2. The Plaintiff also seeks an order dispensing with the consent of the birth parents namely:

1. CMB (the Defendant), the birth mother of both children;

2. MAM, the putative birth father of AMB; and

3. GJE, the birth father of JJE.

3. An order is further sought approving the proposed adoptive father’s surname as both children’s surname.

4. The birth mother has engaged in the contested proceedings and opposes adoption.

5. The birth father of AMB has not engaged in proceedings. The birth father of JJE has participated in mediation and an agreement has been reached with him and the Plaintiff (Exhibits P1 and P2) to the extent that he did not seek to be further heard with respect to the proposed adoption although he did not consent to the proposed adoption.

6. On 22 October 2018 the Plaintiff sought leave to file an Amended Summons which was not opposed seeking to give effect to adoption plans signed by the proposed adoptive parents and the birth father GJE.

Parties’ submissions

Plaintiff

7. The Plaintiff submits that the formal requirements of the Adoption Act 2000 (NSW) have been met or are uncontroversial with regard to the following matters (submissions [2.1]):

1. When the application was filed the children were present in the state of New South Wales (s 23(2)(a));

2. The children were less than 18 years of age when the Summons was filed (s 24(1)(a));

3. Notice of the adoption was given to the birth parents prior to an adoption order being made (ss 88(1)(a) and 72(1));

4. The proposed adoptive parents live in New South Wales (ss 23(2)(b) and 28(1)(a));

5. The proposed adoptive parents are of good repute and fit and proper persons to fulfil the responsibilities of parents as evinced by the materials (s 28(1)(b));

6. The proposed adoptive parents meet the age requirements (s 28(3));

7. The proposed adoptive parents have been a couple and living together for longer than 2 years having been married on 20 October 2007 (s 28(4));

8. The proposed adoptive parents have consented to the two adoption plans;

9. The application is made by the Plaintiff with the consent via delegate of the Minister for Family and Community Services pursuant to final orders of the Parramatta Children’s Court on 4 March 2015 (s 87);

10. The proposed adoptive parents are authorised carers who have the care and responsibility for the children under out of home care arrangements pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW);

11. The proposed adoptive parents unsurprisingly have consented to the proposed adoption however the birth parents have not given the required consent (s 88);

12. A copy of the Mandatory Written Information has been provided to the birth parents either in person or by post at provided addresses (s 59); and

13. Ms Norderyd has provided a report in writing concerning the proposed adoption (s 91(1)).

8. The Plaintiff further submits the requirements for dispensing with consent of the birth parents under s 67 of the Adoption Act 2000 (NSW) have been met (submissions [3]). The Plaintiff contends the children have an established and stable relationship with the proposed adoptive parents with whom they have lived since 2 July 2015, demonstrated by the expert report of Ms Dianne Starkey. The Plaintiff submits the adoption plan proposed and the course proposed by the Plaintiff would in all of the circumstances promote the best interests of the children (submissions [4]-[6]).

Defendant

9. The Defendant it seems accepts all of the relevant procedural statutory requirements have been satisfied as set out in paragraph [7] above.

10. The Defendant submits there are three alternatives for the Court: (a) restoration of the children to the birth mother; (b) granting the order for adoption; and (c) decline the adoption application in favour of long term care (submissions, T21/17-20).

11. The Defendant submits an adoption order to the proposed adoptive parents will not provide the children with long-term stability, as the adoptive parents have had prior relationships, the adoptive father is the primary carer for the children, and there is no submission by the adoptive parents that they cannot have children themselves (submissions [1]). The Defendant contents that an adoption order should not be made without a finding that the adoptive parents have a long-term commitment to the children and to each other (submissions [1]).

12. The Defendant contends that restoration is appropriate, as the birth mother has addressed the issues of abusive relationships, sought support and demonstrated a commitment to care long-term for the children (submissions [2]). The Defendant concedes she would not offer an affluent lifestyle but would offer long-term stability and restoration would restore the two children’s sense of belonging and bonding with a birth parent (submissions [2]).

13. The Defendant accepts the placement of the children is currently successful, and submits in the alternative that the application for adoption should be refused (submissions [3]).

Legal principles

Legislation and the best interests of the child

14. Sections 7 and 8 of the Adoption Act 2000 (NSW) provide:

7 What are the objects of this Act?

The objects of this Act are as follows:

(a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,

(b) to make it clear that adoption is to be regarded as a service for the child concerned,

(c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,

(d) to recognise the changing nature of practices of adoption,

(e) to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas,

(f) to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements,

(g) to encourage openness in adoption,

(h) to allow access to certain information relating to adoptions,

(i) to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents.

8 What principles are to be applied by persons making decisions about the adoption of a child?

(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles:

(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,

(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,

(f) if the child is Aboriginal—the Aboriginal child placement principles are to be applied,

(g) if the child is a Torres Strait Islander—the Torres Strait Islander child placement principles are to be applied.

(2) In determining the best interests of the child, the decision maker is to have regard to the following:

(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.

15. With respect to adoption plans s 46 of the Adoption Act 2000 (NSW) provides:

46 What is an adoption plan?

(1) An adoption plan is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to:

(a) the making of arrangements for the exchange of information between the parties in relation to any one or more of the following:

(i) the child’s medical background or condition,

(ii) the child’s development and important events in the child’s life,

(iii) the means and nature of contact between the parties and the child, and

(b) any other matter relating to the adoption of the child.

(2) Without limiting the matters for which an adoption plan may make provision:

(a) it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and

(b) it may provide for the giving of certain financial and other assistance as referred to in section 201.

(2A) A birth parent who has not consented to the adoption of a child (a non-consenting birth parent) is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child.

(2B) A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child.

(3) An adoption plan for an Aboriginal child or Torres Strait Islander child to be adopted by persons of whom neither is an Aboriginal or Torres Strait Islander, as the case may be, must make provision of the kind referred to in subsection (2) (a).

(4) If provisions of the kind referred to in subsection (2) (a) are proposed to be included in an adoption plan, those provisions should be made after consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation.

16. With respect to disposing of consent of birth parents to the adoption of a child, s 67 of the Adoption Act 2000 (NSW) provides:

67 When can Court dispense with consent of person other than the child?

(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that:

(a) the person cannot, after reasonable inquiry, be found or identified, or

(b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or

(c) if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or

(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child:

(i) the child has established a stable relationship with those carers, and

(ii) the adoption of the child by those carers will promote the child’s welfare, and

(iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.

(2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.

17. Section 90 of the Adoption Act 2000 (NSW) likewise provides:

90 Court to be satisfied as to certain matters

(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

(e) if the child is an Aboriginal child—that the Aboriginal child placement principles have been properly applied, and

(f) if the child is a Torres Strait Islander child—that the Torres Strait Islander child placement principles have been properly applied, and

(g) if the child is a non-citizen child from a Convention country or other country outside Australia—that the applicable requirements of this Act and any other relevant law have been satisfied, 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.

18. In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J described the principles applicable with respect to section 8 (at [14]-[17]):

In speaking of adoption being a "service to the child", the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met.

Adoption Act, s 90(3), provides that 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. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007]NSWSC 762;(2007) 37 Fam LR 595, [25]].

The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows:

• Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships;

• Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and

• Concerning to the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them.

In addition, all these are informed by the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption.

Disposing of consent

19. In Adoption of RCC and RZA [2015] NSWSC 813 Brereton J said (at [17]):

Because the birth mother has not given consent, an adoption order can be made only if her consent is dispensed with. Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child’s welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006), as enabling consent to be dispensed with where adoption would enhance a child’s sense of belonging and permanence in the carers’ family notwithstanding that there is no concern about the child’s current welfare (as distinct from the child’s welfare at the beginning of the placement). As the Court of Appeal observed in Re Sarah [2013] NSWCA 379, [68] – endorsing what Slattery J had said in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, [59] – the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child’s present situation. Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child.

Restoration as opposed to adoption

20. In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J said (at [69]-[72]):

The birth mother propounds restoration, in the future if not immediately, as an alternative. Moreover, because of the permanency of an adoption order, and the general preference based in human nature and experience that, where practicable, children are best raised by their birth parents, the Court must in any event consider that once an adoption order is made, the possibility of restoration is practically foreclosed, and future decision-making in respect of the children is vested in the adoptive parents. However, although I have previously suggested that the Court would not likely make an adoption order if there were a realistic prospect of restoration [see, for example, Adoption of NG (No 2) [2014] NSWSC 680, [83]], on reflection that overstates the position, which is more accurately stated as that the Court would not make an adoption order unless satisfied that the advantages of adoption clearly outweighed the benefits of preserving the possibility of restoration.

The concept of a “reasonable possibility of restoration” is one derived from the Care and Protection Act, s 83(1), which provides that on an application for a care order, the Secretary must assess whether there is a realistic possibility of a child being restored to his or her parents, having regard to the circumstances of the child and the evidence that the parents are likely to be able to satisfactorily address the issues that have led to the child’s removal. In In the matter of Campbell [2011] NSWSC 761, Slattery J (at [55]ff) explained that a possibility involved something less than a probability – that is, something that is not impossible; and that to be realistic, it had to be real or practical - not fanciful, sentimental or idealistic or based upon “unlikely hopes for the future”.

There is no equivalent statutory concept in the Adoption Act. Moreover, in a case such as the present, there will already be in place an order of the Children’s Court allocating parental responsibility to the Minister until the children attain 18 years of age, implicit in which is a conclusion that restoration is not a realistic possibility. While that conclusion does not bind this court - and between the time when a care order is made in the Children’s Court, and an adoption application is considered in this court, much can change (indeed, the Care and Protection Act itself admits, by s 90, of an application for restoration, by way of rescission of the care order, in the event of a change of circumstances, notwithstanding that a final order allocating parental responsibility to the Minister until 18 is in place) - nonetheless, there will have already been a judicial decision, by a specialist court, that the children cannot be satisfactorily cared for by the birth parents, such as to require long-term removal, and that restoration is not a realistic possibility.

If this Court were satisfied that restoration, now or in the future, was in the best interests of the children, it could not be satisfied that adoption was “clearly preferable”. But short of such a conclusion, while the Court should take into account, on the one hand, that an adoption order would practically preclude the possibility of restoration, that must be weighed on the other against any disadvantages of preserving that prospect, and the advantages of adoption. Typically, countervailing considerations will include the undesirability of uncertainty and associated instability and insecurity, the risks associated with disturbing an established and functional status quo, and the relative parenting capacities of the birth parents and the adoptive parents.

21. In Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 McColl JA said (at [42]-[44]):

If the Director-General applies to the Children’s Court for a care order (not being an emergency care and protection order) for the removal of a child, the Director-General must assess whether there is a realistic possibility of the child being restored to his or her parents, having regard, relevantly to, the circumstances of the child and the evidence, if any, that the child’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care: s 83(1). If the Director-General assesses that there is not a realistic possibility of restoration, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child and submit it to the Children’s Court for its consideration: s 83(3). The Children’s Court is to decide whether to accept the assessment of the Director-General: s 83(5). The Children’s Court must not make a final care order unless it expressly finds that permanency planning for the child has been appropriately and adequately addressed: s 83(7).

Insofar as the “realistic prospects of restoration” in s 83(7) that may result in an order approving a permanency plan involving restoration are concerned, the court takes into consideration in relation to the “circumstances of the child” (s 83(7)(b)(i)), “the whole of the child’s situation”, including “any aspects of the situation in which a child is placed, the setting in which he or she is living and the influences bearing upon his or her wellbeing” and “potential harm”: V V (at [67] – [69]).

The court must assess at the time the application is before it whether there is a “realistic possibility of restoration”, that is to say, whether the “possibility of restoration is real or practical [and not] … fanciful, sentimental or idealistic, or based upon ‘unlikely hopes for the future’”: In the matter of Campbell [2011] NSWSC 761 (at [55]).

22. See also Re Tanya [2016] NSWSC 794 per Rein J and In the matter of Campbell [2011] NSWSC 761 per Slattery J.

23. In Re H (Adoption: Parental Agreement) (1982) 3 FLR 386 Ormrod LJ, with Oliver LJ and Purchas J agreeing, said (at 388):

Mr Fordham poses two alternative questions which he says ought to be asked in these cases. The first is, 'What do the adoptive parents gain by an adoption order over and above what they have already got on a long-term fostering basis?' To that the answer is always the same –and it is always a good one – adoption gives us total security and makes the child part of our family, and places us in parental control of the child; long-term fostering leaves us exposed to changes of view of the local authority, it leaves us exposed to applications, and so on, by the natural parent. That is a perfectly sensible and reasonable approach; it is far from being only an emotive one.

The next question is, 'What will the mother lose?' Alas, the answer to that in this case is not easy to find. The situation has reached the point where she herself realizes that she has practically nothing to lose, except a feeling that the child is no longer hers. This is a very emotive state of affairs, and we are dealing with the intangible to a degree which I do not think sensible people, in the position of those who have to administer this difficult jurisdiction, can take account of. The sad fact is that this mother and this child could hardly be more estranged. In the present situation, as the mother recognizes, she can do nothing for the child and never will be able to. Therefore, the inevitable conclusion is that a reasonable mother in that sad situation would consent to the only proper course, namely adoption. I would dismiss the appeal.

24. More recently in Re W (A Child) [2017] 1 WLR 889; [2016] EWCA Civ 793 McFarlane LJ (with Jackson and Lindblom LJJ agreeing) said (at [64])

Placing a child for adoption is an act of altogether higher significance than arranging a foster home under the umbrella of a care order. Foster carers will seldom expect permanence and, indeed, will have been trained so as to be able to support the child moving on if required to do so in time. Whilst undoubtedly foster carers and fostered children may achieve a fondness for each other, the establishment of a firm and secure attachment is not one of the primary aims of the placement, in contrast with adoption. One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters.

Name change

25. Section 101 of the Adoption Act 2000 (NSW) provides:

101 Names of adopted children

(1) On the making of an adoption order:

(a) an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made, and

(b) an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.

(2) Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.

(3) If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname.

(4) An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change.

(5) The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless the Court is satisfied that the name change is in the best interests of the child.

(6) Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, under the law of New South Wales.

26. In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J said (at [104]-[105]):

Adoption Act, s 101, relevantly provides that on the making of an adoption order, an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents. Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes. The Court must not approve a change in the given name or names of a child who is more than one year old unless the Court is satisfied that the name change is in the best interests of the child. The adoption principles set out in s 8 include, in (e), that a child’s given name or names, and identity, should, as far as possible, be preserved.

Upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child’s family name accords with that of his or her legal family. Indeed, children see that outcome as one of the most significant indicia of the sense of “belonging” that adoption is intended to nurture, and not to do so would detract from the benefits of adoption. The proposed surname P accords with this approach, and will recognise the children’s place in the adoptive family and reinforce their sense of permanency and belonging, in that they will be in name as well as in law a member of the adoptive family. Moreover, the children have expressed a wish to have the surname P.

Evidence

Plaintiff’s lay evidence

Ms Jenny Ulrika Norderyd

27. Ms Norderyd affirmed two affidavits on 20 February 2018 and 19 September 2018.

28. In her affidavit Ms Norderyd advised she was a senior case manager Adoptions, Barnados Australia and is an authorised person for the purpose of s 91(2A) of the Adoption Act 2000 (NSW). She provided a report in which she concluded that both children in this proceeding have thrived since their placement in July 2015 with the proposed adoptive parents. She said the proposed adoptive parents have embraced their roles as parents of the children, demonstrating an advanced level of competency and commitment to loving and nurturing the children.

29. The report concluded that there has been a relationship of positive respect between the proposed adoptive parents and the birth family. It was her view an adoption order would be the most appropriate order, and that the proposed adoptive parents had demonstrated a commitment to supporting the children, with both children expressing a desire to live with them.

30. She affirmed a further affidavit on 19 September 2018, which included a description of the decision to reduce the number of contact visits for the children with the birth parents.

31. In cross-examination she confirmed that there had been concern for the birth mother’s mental health at the time of birth of AMB (T5/16-19) and that there was domestic violence recorded on the relevant records (T5/36-37). She accepted that no further concerns for the birth mother’s mental health had been recorded since that point (T7/4-25).

32. She said contact between the birth mother and the children was typically for two hours (T8/14-15) and expressed her concern that if AMB and JJE were restored to the birth mother there would be a danger of emotional harm, in that they would be uprooted from the proposed adoptive parents to whom they are emotionally attached (T8/30-43). She disagreed that the danger of emotional harm could be overcome by a gradual restoration to the birth mother (T9/32-40).

33. She said there is no indication that the proposed adoptive parents were going to separate or that their relationship would fail (T10/1-9). She said it had not been her role to assess the birth mother’s parenting capacity (T11/24-26).

Ms Denise Kay Berry

34. Ms Berry affirmed one affidavit on 21 February 2018.

35. Ms Berry described how she is a Principal Officer for Barnados Australia. She described how the children have been living with the proposed adoptive parents since 2 July 2015, and at the time of placement AMB was almost 5 years old and JJE was 3 years old.

36. She provided a comprehensive description of the various matters surrounding the placing of the two children into care, and noted that Barnados records indicate the children were removed from their mother’s care because of ongoing concerns regarding the birth mother’s failure to protect and disassociate from perpetrators of domestic violence in the household. Whilst in the birth mother’s care she said the children were exposed to family violence, and the birth mother has a history of drug use and post-natal depression.

37. She described how when asked about adoption AMB appeared confused as to the meaning of adoption however indicated she wanted to stay forever with the proposed adoptive parents.

38. Ms Berry was not required for cross-examination.

Mr GPLP

39. The proposed adoptive father swore an affidavit on 12 February 2018.

40. He provided an overview of their financial status similar to that of his wife and said their current mortgage amounts to $732,400, with his current assets totalling $300,000 not including personal effects or furniture. As with his wife he said neither children are being reared in a religious tradition, and would propose in the event that an adoption order is made 4 contact visits per year for birth family contact would be appropriate.

41. In cross-examination the proposed adoptive father said that he and his wife had given thought to having children of their own but that they have not made a decision either way (T12/50-T13/7). He confirmed he was the primary carer of the children (T13/45-46). He accepted he and his wife had both had relationships before they were married (T14/10-18) and said that in his view his relationship with his wife was very strong (T14/20-21).

Ms NMB

42. The proposed adoptive mother swore an affidavit on 25 January 2018.

43. She said she married her husband on 20 October 2007 and lives at the current address with her husband and the two children. Her present income is $1,730 per week. They have a mortgage for their home estimated at $1,100,000 requiring repayments of $1,600 per month. She gave evidence corroborating the financial information of her husband. The house is two storeys with a living room, dining room, family room, rumpus room, 4 bedrooms and 2 and a half bathrooms. It is 5 minutes’ walk from the local school, 2 minutes’ walk from the park and river and 10 minutes’ walk from the shops.

44. She described her efforts with her husband to allow the two children to know their birth history and legal status. She said in the event an adoption order was made she would perhaps seek private school for the children, would intend to remain in the current home and would facilitate their attending sports and outdoor activities.

45. In cross-examination the proposed adoptive mother said there was no medical reason why she could not have children, but that she had not conceived naturally and did not at the present time seek to go through IVF (T16/9-17). She said her intention was to only marry once in life (T16/23-27).

46. She described that two years ago at Christmas JJE had been given a PlayStation by the birth mother but she subsequently took it away, and said “he’s a smart kid. He didn’t forget that” (T17/33-44).

47. She said it was assumed between herself and the two children that they would be living with them for the long term (T18/21-23).

Referees

48. Three referees provided affidavits in which they vouched for the proposed adoptive parents’ stable relationship and care for the two children. The referees were not required for cross-examination.

Plaintiff’s expert evidence

Ms Dianne Starkey

49. Ms Starkey affirmed an affidavit on 15 September 2018 providing a report to the Court having undertaken extensive observations and interviews with the birth mother, the proposed adoptive parents and the two children.

50. Her conclusion as a result of these observations was that the two children presented as two lovely children who have had a very bad start to life being exposed to violence, substance abuse and being physically abused to the point of physical injury. She concluded the attachment histories of the two children differed from each other. She said AMB had been with her mother enough to develop a psychological attachment to her, although this is unlikely to be a secure attachment. AMB, when asked how she felt about coming to live with the proposed adoptive parents described it as “the greatest feeling in my life”. Her opinion was that it would cause AMB great distress for the bond with the adoptive parents to be disrupted.

51. Ms Starkey described how JJE is in a different position to his sister, and does not appear to have retained a conscious memory of what happened to him in terms of domestic violence. She said he does not appear to have a strong relationship with his birth mother.

52. She further said her observations of the birth mother during the assessment suggest her care of her current child M is not ideal, in that she attempted to hold him all day.

53. Her conclusion was that the most stable and secure of the environments available for the children is in their current home with the proposed adoptive parents. If they were separated it was her opinion the children would suffer emotional damage in the short term which could include the development of grief and depression.

54. In examination-in-chief Ms Starkey said that the reports before her were reflective of the birth mother’s history of choosing inappropriate partners, especially in relation to whether they should be exposed to children (T47/26-31).

55. In cross-examination Ms Starkey said she did not think the birth mother’s relationship with her third child M was a good one, because as she observed for instance she had to hold him all the time (T49/31-36). She denied there was a good prospect if the children were restored that they would form a positive relationship with the birth mother (T52/14-26). She said her concerns that the birth mother has made poor choices in respect of her partners was only one of her concerns (T53/34-36). She confirmed her concerns for the birth mother’s parenting capacity (T54/44-47).

Defendant

56. The birth mother affirmed one affidavit on 5 June 2018.

57. She said she has been in stable accommodation which she leases from the Department of Housing, and has been supported by the Benevolent Society for two years. She currently lives alone with her third child M born 24 February 2018.

58. She described her experience of domestic violence at the hands of the birth father of JJE who continued to harass her after she separated from him. She also said she was in a relationship with a further partner, who one day “lost his temper and assaulted both me and the children” wherein she determined never again to put herself in a situation of risk of domestic violence. She said she has the support of her father, and that her mother had passed away. She further says that she has a girlfriend who babysits her third child M on Friday nights to allow her to do some shopping and go out for the evening.

59. She said she desired all three of her children to live as a family unit and is confident she can maintain all three of them.

60. In examination-in-chief the birth mother said that at the time when the two children were taken away from her there were some Children’s Court proceedings. At this time her mother was very sick and eventually passed away (T19/37-T20/23). She said she has since done a beauty course at TAFE, did her RSA and has done some parenting courses and counselling (T20/19-23). She said she felt confident now about taking the children back (T20/25-30).

61. In cross-examination the birth mother said she saw one of the challenges of restoration as bonding as she did not have much of a close bond anymore between herself and the two children, although she felt she could be a good parent (T22/1-15). She said she had not made enquiries as to the availability of rental accommodation near the children’s school (T23/42-44).

62. She said that she had been in a relationship with K S who was the birth father of her third child M, she said he gave her the confidence to start getting her life back on track (T26/9-45). She said presently he was in long-term residential rehabilitation where he has been for some time (T27/11-33). She said however when she was with him she did not know about the extent of his gambling addiction, and denied he ever took money from her (T27/45-T28/1). She said at the present moment she had no plans to “get back together with him”, and if she did there would be conditions such as his complete rehabilitation (T28/3-16).

63. She said she currently works at S in Cronulla, only on Friday nights, when her best friend cares for M from Friday afternoon to Saturday morning (T29/29-39). She said she would propose to continue this arrangement if the other two children were returned to her care (T30/15-17). She said she currently has a savings account of $260, a goal saver of $2,000 and an account for her son with $600, with additional amounts held with a family solicitor (T31/1-16). She said she lives in a two bedroom unit, which was the unit where the two children were assaulted (T31/40-44).

64. The birth mother said she had been surprised to hear that Y A, with whom she had been in a relationship, was in a criminal group known as the “Brothers for Life”. She confirmed he went to rehabilitation after assaulting herself and the children (T33/32-T34/1). She said he lived with her for a year, but she was not aware of his criminal connections and did not know why he went to rehabilitation (T34/12-50). She said she did not take her children to the hospital after they had been assaulted for four hours because she was trying to get out of the house (T36/44-T37/1). She could not recall whether she did or did not tell the doctors at the hospital what had happened as it was “all a blur” (T37/4-8). She accepted she did not initially tell the police what had happened during the assault and initially lied to police about the children’s injuries because she was scared Y A would bash her (T38/40-T39/3).

Consideration

Assessment of the witnesses

65. I accept the evidence of Ms Norderyd as truthful and as the observations of an individual expert in her field and clearly knowledgeable of the current situation for the two children.

66. I likewise accept the expert evidence of Ms Starkey who was not seriously challenged on her evidence or report. Her views unsurprisingly have weighed heavily on my judgment.

67. I further accept the evidence of the other witnesses put forward by the Plaintiff as truthful, including and most importantly that of the proposed adoptive parents.

68. On the other hand, I have grave concerns about the birth mother’s evidence and her ability to care for the two children who are the subject of these proceedings in addition to her third child who currently lives with her. In particular, I am concerned at the birth mother’s apparent failure to appreciate the serious circumstances her previous partners have been in. In my view either she was not aware of their drug and gambling problems (which was her evidence in cross-examination), or she has been untruthful. Either way as a result I would have serious misgivings about restoring the two children to her care. She clearly through no fault of her own, perhaps, had no capacity to protect the children when domestic violence occurred.

69. It was not put to her that her evidence in relation to her knowledge of her previous partners’ habits was untruthful. However I am satisfied that it is entirely unrealistic she would not have had knowledge or at least suspicion of the drug and gambling problems of her former partners, or at the very least it goes to show her lack of observation and insight of those around her.

70. In addition, the birth mother in evidence sought to portray herself as having no debts and various savings for herself and her children, as well as $8,000 held on trust with her solicitor for each child. She made no reference to parking fines nor upkeep of her car. It was only when on perusal of Exhibit D2 from the Benevolent Society that these financial liabilities emerged. I am satisfied the birth mother was not entirely frank about her financial commitments.

Best interests of the children – restoration

71. Restoration is clearly to be assessed as at the current date according to the paramount consideration of what is in the best interests of the two children who are the subject of these proceedings.

72. In my view there is no realistic possibility of restoration to the birth mother on the facts. Her home environment would require a radical change as currently the environment is unsuitable for three children.

73. I accept the expert opinion and evidence of Ms Starkey that the birth mother’s care of her current child M is problematical in part because she attempts to nurse him all the time. As to how she could do this and still manage the various schooling, extra-curricular and emotional needs of AMB and JJE is beyond acceptance, suggesting that restoration of AMB and JJE to their birth mother is not open as a realistic possibility.

74. The birth mother clearly to me lacks judgment in choice of partners, lacks awareness as to their problems, and is a person who presently would not have the capacity to care for an extra two children in addition to her current child.

75. I understand her temptation to want someone else in her life, but in my view this would be a recipe for disaster if her previous experiences of domestic violence at the hands of her past partners are to be used as any guide.

76. In addition, the birth mother wants to continue to work on Friday nights. She says that on Friday nights presently her best friend cares for M. She has however provided no adequate description of the friend, such as her relationship to the birth mother, her financial status, where she lives, and importantly beyond the birth mother’s mere assertion whether the friend would be able to care for the three children.

77. The birth mother has let an application for restoration lapse for years, and this has allowed for the development of a strong psychological bond between AMB and JJE and the proposed adoptive parents who I am satisfied have done an excellent job in caring for the two children.

78. It is further troubling that it would appear unchallenged and uncontroversial that the birth mother witnessed an assault on both children at the hands of her then partner and subsequently delayed 4 hours before taking them to hospital. This is clear evidence that she is unable to proactively provide for their care.

79. Reliance was placed on a report of the Benevolent Society (Exhibit D2) which is a case closure summary in relation to the birth mother. I would give this report the weight it deserves in relation to the birth mother’s present child M in her care and that she is capable of caring for him. The Benevolent Society has however not made any assessment of the birth mother’s parenting capacity for three children.

80. This is not to diminish the birth mother’s undoubtedly extremely distressing experiences of domestic violence and her continued efforts to move on in her life from these experiences.

81. However on the evidence, in my view, restoration is not an option and the birth mother has not made out a case for such an order.

Best interests of the children – adoption or otherwise

82. Given that restoration is not an option it does not automatically follow that there should be an adoption order in favour of the children. I need to be satisfied that this proposed course is truly in the best interests of the children and clearly preferable.

83. Ms Starkey and Ms Norderyd both provided their opinion that adoption would indeed be what is best for the two children. This evidence of people expert in this field prima facie suggests to me that adoption would be preferable for AMB and JJE, without the stigma and uncertainty attached with the maintenance of the status quo, in which the proposed adoptive parents would continue to care for the two children but be faced with a potential application for restoration sometime in the future.

84. Having seen and assessed the proposed adoptive parents on both their affidavit evidence and in the witness box, they appeared to be loving, caring and entirely capable of providing for the two children both emotionally and financially. This has not been seriously challenged by the birth mother. The children have been in the care of the proposed adoptive parents since 2 July 2015, and this too has weighed heavily in my assessment of the bond they have with the two children.

85. The birth mother’s case is however that an adoption order should not be made as somehow the proposed adoptive parents would not provide a stable basis for the two children, including due to the risk in a potential breakdown in their relationship. There is simply no evidence before me to suggest there are any problems in the marital relationship of the two proposed adoptive parents. On the contrary, both have cared successfully for the two children who have had experiences of trauma and there is no question that their relationship has not been strong during this undoubtedly difficult period.

86. On balance I am of the view that adoption is in the best interests of the children now and for the future, and is the clearly preferable course to take above all others. Accordingly, I would also propose to approve the registration of the Adoption Plan in favour of the proposed adoptive parents.

87. Consistently I am satisfied that there should be a name change in favour of the proposed adoptive parents to create uniformity and in turn aid the stability of the proposed adoption.

88. In all of the circumstances I would dispense with the consent of the birth parents.

Conclusion

89. I would propose therefore to make orders in accordance with the Amended Summons.

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Decision last updated: 08 November 2018