Adoption of AT

[2015] NSWSC 1666

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of AT [2015] NSWSC 1666
Hearing dates:	7-9 April, 20-22 July 2015
Date of orders:	22 July 2015
Decision date:	22 July 2015
Jurisdiction:	Equity - Adoptions List
Before:	Brereton J
Decision:	Adoption order made; consent dispense order made.
Catchwords:	FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – where child settled in placement with proposed adoptive parents and has developed familial and psychological ties with adoptive parents and siblings – whether adoptive mother’s depressive illness undermines her parenting capacity – where adoptive parents have experienced difficulty in supporting contact with birth parents – where adoptive parents committed to supporting birth parent contact – where adoptive parents not ideally placed to meet child’s cultural needs – where adoptive mother’s cultural heritage sufficiently similar to child’s to mitigate deficit in child’s cultural and identity needs – parenting capacity of birth parents – where realistic prospect of restoration of child to care of birth parents remote – where preserving the possibility of restoration would contravene the spirit of adoption principle (e1) – held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child.
Legislation Cited:	(NSW) Adoption Act 2000, s 8(1), s 8(2), s 23(2), s 24(1), s 28(1), s 28(3), s 28(4), s 67(1), s 90, s 90(3), s 91 (NSW) Children and Young Persons (Care and Protection) Act 1988, s 44, s 90
Cases Cited:	Adoption of NG [2014] NSWSC 680 Adoption of RCC & RZA [2015] NSWSC 813 Adoption of SRB, CJB & RDB [2014] NSWSC 138 Director-General, Department of Community Services v D [2007] NSWSC 762; (2007) 37 Fam LR 595 Re D; Application of A [2006] NSWSC 1056
Texts Cited:	Robert Epstein, ‘What Makes a Good Parent?’ (2010) 21 Scientific American Mind 46
Category:	Principal judgment
Parties:	Secretary, NSW Department of Family and Community Services by its delegate, The Principal Officer Adoption, Barnardos (plaintiff) T (natural mother) C (natural father)
Representation:	Counsel: S Christie (plaintiff) S Gardiner (natural mother) G Winn (natural father)   Solicitors:    Crown Solicitors (plaintiff) VL Hall Lawyer (natural mother) Winn Legal (natural father)
File Number(s):	A57/2014

Judgment (ex tempore) (EDITED 27 OCTOBER 2015)

1. HIS HONOUR: Austin (not his real name), the child the subject of these proceedings, was born on 29 December 2011, the child of the first defendant Tamara and the second defendant Colin. In these proceedings, the Secretary, by his delegate the Principal Officer, Adoptions, Barnardos, as plaintiff seeks an order for his adoption by proposed adoptive parents, whom I shall call Simon and Jean, a married couple in whose care Austin has been since 29 June 2011 when he was but six months old.

2. For the sake of preserving anonymity, in this edited version of the judgment pseudonyms are used for the names of the protagonists and children. Austin was his birth parents' eighth child. He was preceded by Bernice, born 6 March 1999 (now 16 years of age); Brent, born 6 March 2000 (now 15 years of age); Jennifer, born 1 May 2001 (now 14 years of age); Clarence, born 21 September 2002 (now 12 years of age); Laurence, born 13 December 2005 (now aged nine); Neville, born 15 June 2007 (now aged eight); and Candice, born 14 July 2010 (now aged four).

3. Austin was assumed into the care of the Minister on 30 December 2011 when he was one day old, pursuant to (NSW) Children and Young Persons (Care and Protection) Act 1988, s 44.

4. That occurred against the background that between 2002 and 2008, the Department of Family and Community Services had received a report of domestic violence – described as "verbal argument" – between the birth parents; a report that they had separated; a report that the children were not being supervised; a report that Brent was frequently absent from school and when present was dirty and inadequately clothed; a report of inadequate supervision of Laurence, who, at the age of about two, had been found wandering in the street; reports that the house was messy with clothing, flies and fruit flies; a report that the family was homeless and then living in a motel; a report that Laurence was unsupervised; a report that Jennifer had prolonged absences from school, a report that the home was "filthy"; and a report that the children were unsupervised.

5. On 30 October 2008, the birth mother was arrested for driving offences. Bernice, Brent, Jennifer, Clarence and Laurence were in her car unrestrained, and Neville, then 16 months of age, was located at home asleep, with the house unlocked and him unsupervised alone.

6. It is only fair to the birth parents to point out that significant aspects of these reports do not find further support in the evidence. For example, I am not satisfied that there was any domestic violence beyond a verbal argument between them. It is also only fair to point out that, unlike many of these cases, there is no history of substance abuse in their background, nor of any criminal behaviour.

7. On 17 July 2009, final orders were made in the Children’s Court in respect of Neville and Laurence allocating parental responsibility to the Minister until age 18. On 14 July 2010, Candice was born. On 30 December 2011, the Director-General, as the Secretary was then known, commenced care proceedings in the Children’s Court and Candice was assumed into care. Candice was placed with an aunt, Ms Ennis. On 23 March 2011, the Children's Court made final orders in respect of Candice, allocating parental responsibility to Ms Ennis.

8. On 30 April 2012, Brent self-restored to his birth parents. An order under Children and Young Persons (Care and Protection) Act, s 90, was made in respect of him on 21 September 2012. On 21 May 2013, Jennifer self-restored to her birth parents and on 27 September 2013, a s 90 order was made in respect of her.

9. Austin was placed with Simon and Jean on 29 June 2012 and has resided with them ever since. There is no doubt that he has formed a stable relationship with them and is securely attached to them and has a strong relationship with their birth children, Richard, Geoffrey and more recently, Julian.

10. On 24 July 2012, the Children's Court made final orders allocating parental responsibility for Austin to the Minister until 18 years of age. While those orders do not bind this Court – and, as has happened in respect of some of Austin's siblings, things may change and orders may be rescinded – those orders represent a final judgment of a specialist Court that there is no realistic prospect of restoration of Austin to the care of his birth parents, and that Austin should be permanently in care until 18 years of age. As I say, that does not conclude the matter from this Court's perspective, but it is, nonetheless, an important step along the way.

11. On 1 March 2014, Clarence self-restored to his birth parents and on 8 August 2014, a s 90 order was made in respect of him. The present position in respect of the birth parents' children then is that Bernice and Candice reside permanently with Ms Ennis, a first cousin by marriage of Tamara, her husband Mr Harvey, and their three biological children. Neville and Laurence reside in a permanent placement with Barnardos carers under an order allocating parental responsibility to the Minister until 18 years of age. Brent resides with the birth parents, having self-restored on 13 April 2012 following a breakdown of his relationship with Ms Ennis and Mr Harvey. Jennifer resides with the birth parents, having self-restored on 21 May 2013, and Clarence resides with the birth parents, having self-restored on 1 March 2014.

12. Austin has had contact with the birth parents twice yearly, although in earlier times it was more frequent than that. That contact is supervised and takes place usually in a contact centre, although there are now occasions which involve other siblings at other places.

13. The Secretary proposes that Austin continue to reside with Simon and Jean, that an adoption order be made in their favour and that their surname be approved as his surname. The Secretary proposes also that Austin have contact with his birth parents twice per annum in accordance with an adoption plan made between Barnardos and the proposed adopting parents. The birth mother and birth father do not consent to the proposed adoption, oppose the making of a consent dispense order and seek primarily that Austin be restored immediately to their care and, alternatively, that if that course is not adopted, the status quo be maintained with Austin continuing to reside with Simon and Jean, the Minister retaining parental responsibility.

Issues

14. The essential issues are: first, whether it is in the best interests of Austin that an adoption order be made, and whether such an order is clearly preferable to any other action that could be taken by law in respect of his care; secondly, and in connection with that, what are the practical alternatives to an adoption order, including the viability of restoration; thirdly, if an adoption order is to be made, whether the arrangements proposed for birth parent contact are proper; fourthly, whether the consent of the birth parents should be dispensed with; fifthly, if an adoption order is made, whether the proposed change of Austin’s surname should be approved; and sixthly, if an adoption order is not to be made, what alternative arrangements should be established.

15. The applicable principles in cases of this kind are now well established,[1] but it is appropriate to restate some of them. As has been said many times, these inquiries are not concerned, in large part, with the past; they are concerned chiefly with the future and the present. The Court is concerned to determine what will be in the best interests of Austin and his welfare, now and in the future, and not with the rights and wrongs of past conduct and decisions – whether of the birth parents, the adoptive applicants or the Department. That said, of course in some respects past conduct provides a guide to what may be expected in the future.

    1. See, for example, Adoption of NG [2014] NSWSC 680 at [12]-[17].

16. In making decisions about adoption, the Court must apply the principles listed in Adoption Act, s 8(1), of which the following are relevant in this case:

1. the best interests of the child, both in childhood and in later life, must be the paramount consideration (s 8(1)(a));

2. adoption is to be regarded as a service for the child (s 8(1)(b));

3. no adult has a right to adopt the child (s 8(1)(c));

4. 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 in the circumstances (s 8(1)(d));

5. the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved (s 8(1)(e)); and

6. undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare (s 8(1)(e1)).

Is adoption clearly preferable?

17. 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 can 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,[2] the condition that the Court consider that an adoption order be clearly preferable requires that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law. [3]

    2. Re D; Application of A [2006] NSWSC 1056 at [53].

    3. Director-General, Department of Community Services v D [2007] NSWSC 762; (2007) 37 Fam LR 595 at [25].

18. 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:

1. Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity [s 8(2)(c)], any disabilities [s 8(2)(d)], his wishes [s 8(2)(a)] and other relevant characteristics, including age, maturity, level of understanding, gender, background and family relationships [s 8(2)(b)];

2. Concerning the birth parents: their wishes [s 8(2)(e)], the nature of the child's relationship with them [s 8(2)(f)], their parenting capacity, and their attitude to the child and to the responsibilities of parenthood [s 8(2)(g)]; and

3. Concerning the proposed adoptive parents: their suitability and capacity to provide for the child's needs [s 8(2)(i)], their attitude to the child and to the responsibilities of parenthood [s 8(2)(g)], and the nature and quality of the child's relationship with them [s 8(2)(h)].

19. 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 [s 8(2)(j)], as well as the alternatives to adoption, in the light of the short and long term effects of adoption [s 8(2)(k)].

The child

20. For the purposes of s 23(2)(a), when the application was filed, Austin was present in the State. For the purposes of s 24(1)(a), he was less than 18 years of age when the summons was filed.

21. He is now three and a half years of age. When he was two, he was described by the s 91 reporter as a:

Typical two year old little boy who presents as inquisitive, happy and energetic. He regularly smiles and laughs and is starting to speak his first words including Dadda, wow, no, Mumma, and car, and forms simple sentences. He continues to progress at an age-appropriate level with his development. He loves looking at books and having his carers read to him, enjoys playing with inactive toys.

22. He was described as in generally good overall health, and emotionally and socially a happy and settled little boy, generally full of smiles and very chatty. It was noted that he had formed a strong attachment to the prospective adoptive parents, and was developing a strong bond with their son, Richard. He would actively seek out Simon and Jean for direction and comfort, and if he became scared and upset he would look to them for comfort. He willingly received and sought affection from them, and seemed to be happiest when in their company. While too young to attend formal education, and at that stage at home fulltime, he regularly attended play dates with family and friends who had younger children.

23. It is very clear, and not seriously in issue in the proceedings, that Austin is settled in his placement with Simon and Jean, securely attached to them, comfortable in their care, and doing well and demonstrating absolutely nothing of concern. His needs are those of any three-and-a-half year old child or toddler. Having been removed from his birth parents, his future identity needs may be accentuated, as will be his need for security and stability. That is moderated to some extent by the circumstance that he has formed a secure attachment with the only parents he has ever known, indicating that his capacity to reattach is on a surer base than for a child who has had a particularly disrupted early childhood. In addition, because Austin is the child of parents who are Cook Islanders and Mormons, his cultural needs are accentuated, particularly as he is in a placement which is not with Cook Islander carers.

24. Essentially, the Secretary's case is that Austin is settled where he is and is securely attached to Simon and Jean, that he is thriving in that placement, that there is no question about the parenting capacity of the proposed adoptive parents, and that his cultural and identity needs can be addressed through contact and other measures, while there are serious concerns about the parenting capacity of the birth parents and serious risks associated with disrupting the present secure placement. The case for the birth parents is essentially that concerns pertaining to their parenting capacity have been addressed – as is said to be evidenced by the circumstance that three of their children have self-restored and continue to reside with them, apparently without any objection or concern on the part of the authorities – and that Austin’s cultural and identity needs will be best supported by his household and family of origin rather than in a placement with others, let alone others who are not Cook Islanders.

The proposed adoptive parents

25. The proposed adoptive father, Simon, is of Anglo-Australian background, and the proposed adoptive mother, Jean, is of Maori background. They are domiciled in New South Wales for the purposes of s 23(2)(b) and s 28(1)(a). I am satisfied that for the purposes of s 28(1)(b) they are of good repute and are fit and proper; that was not seriously, if at all, contested. They meet the age requirements of s 28(3). For the purposes of s 28(4), they have been a couple and living together for longer than two years. They were married in 2002, some 13 years ago. As has been mentioned, they have three biological children: Richard, born in 2005; Geoffrey, born in 2013, and Julian, born on 10 April 2015.

26. In the joint affidavit of the proposed adoptive parents – which is largely in the pro-forma style of such affidavits – Jean deposed (at paragraph 21):

I suffer from depression and have taken antidepressant medication regularly since 2008 which I find to be very effective.

27. An affidavit was also provided by her treating general practitioner, Dr Torrance, of 20 October 2014, which set out a history of depression, diagnosed initially in September 2003, it would seem with a recurrence after the birth of Richard in 2005. The report referred to the medication which Jean had been prescribed and was still taking. Dr Torrance was of the opinion that Jean was an excellent mother and did not believe her depression had adversely affected her ability to be a good parent. She expressed the view that her prognosis was excellent, and that Jean had gained great insight into her emotions and depression since initially diagnosed in 2003:

She has identified triggers (mainly adversities in life). She has proven to herself that she can manage her depression well. She takes her medication regularly. She attends myself regularly. She attends not only for her depression but for any health issues concerning her children which resolves her worry and enables her to better deal with the situation at hand. [Jean] is a mature young woman who manages her depression well, parents with love, caring and good principles, has good family friend support and seeks professional help on a regular basis.

28. In the course of the evidence, it emerged that Jean had, for a period during 2008/2009, consulted a counsellor in connection with her depression, perhaps precipitated by marital difficulties that she and Simon were then experiencing. It needs to be borne in mind, lest too much be made of it, that in this case there has been an extraordinary exploration of the most inner and deepest thoughts and private secrets of both Jean and Simon, because of the production of the notes of the counsellor and to a lesser extent those of the doctor. These notes were made in a context where the counsellor was plainly endeavouring to elicit what might have been triggers and historical issues, with which the counsellor thought Jean might benefit from dealing, in addressing the issues then confronting her. The important fact, it seems to me, is that whatever difficulties there might then have been in the marriage five years ago, they did not begin to approach a separation. Five years later, they are still together, having married the year after Jean left school. They have had yet another child. They are plainly committed to each other and to their children, and in the context where their family has been under a relatively close degree of supervision by the Department and/or Barnardos, while Austin has been in their care, there has been not the slightest suggestion of any difficulty or defect in the care they have provided, for Austin or any other of their children.

28. There was at least a hint, in some of the submissions made, of criticism of Jean for not having disclosed matters of history when she was, in some cases, not yet a teenager and still at primary school, and in another instance, that took place while she was in high school. While it may well be that the first of those matters and what she was subjected to while a young girl does have a role to play in explaining her depression, I see no ground for criticism in not having disclosed it to every professional with whom she came into contact, nor in not disclosing it at the outset of these proceedings. While there is undoubtedly an obligation to be full and frank in proceedings of this kind where a child's welfare is in question, what happened to a person when under the age of 12, and/or relatively minor misconduct as a teenager between the ages of 13 and 17, is of very slight relevance to the decision the Court now has to make.

29. It is true that in the course of her consultations with the counsellor, Jean said that she was concerned that she was "checking out" as a parent from time to time, and the evidence supports the view that when experiencing a depressive episode she does the bare minimum as a parent, rather than going the extra yard. However, this does not give rise to any serious risk or reservation concerning the parenting capacity of the adoptive applicants. That is for, at least, these reasons.

30. First, the depressive illness is controlled and medicated. If anything were likely to trigger a relapse, it would have been the first instalment of this litigation in April, followed immediately by premature labour, pre-eclampsia and a very premature birth of Julian. However, Jean was alert to the risk of postnatal depression. There is no indication that there has been any recurrence of that. There has been no requirement to vary her medication – for example, to increase it to deal with a crisis – for several years, and perhaps more importantly, in the witness box, neither in April, nor when she gave evidence again on this occasion, did she appear to be depressed. It seems to me that she has a relatively low grade – though persistent – depression, which is controlled by the medication she takes.

31. Secondly, although it was submitted that she was not proactive because she had not told her treating practitioners all the historical matters to which I have adverted, it seems to me that she is proactive in attending to her health care – both her mental health and her general health – and that of her children. The very fact that she went to the counsellor when she did, because she was concerned that she was "checking out", is testament to that.

32. Thirdly, she has the support of a husband, who is at least currently working only three days a week, so that if it ever appears that her condition is deteriorating or that she is not coping, as unlikely as I think that is, there is an inbuilt safety net of a second parent to recognise that and promote steps to address it.

33. So far as the ability of the prospective adoptive parents to support birth parent contact is concerned, Jean acknowledges that she has found it difficult to establish a relationship with the birth parents. From her perspective, there has been little acknowledgment from them of her presence or existence. She commented that eye contact was rare, and that it was “difficult to maintain a conversation or exchange pleasantries with people who would not look at you or ask questions or respond”. She suggested that the situation could easily be defused with an acknowledgment and pleasantries.

34. In circumstances where they have been committed to achieving the restoration of Austin and where they do not accept that it is appropriate that he be anywhere other than in their care, the birth parents, for their part, have found it difficult to make a real effort to develop a relationship with Jean and Simon. Both sets of parents will need to recognise that it is in Austin’s interests, if he is not to reside with his birth family, and regardless of whether or not an adoption order is made, that they cooperate so that he is able to feel that he has four parents, all of whom love him.

35. Notwithstanding that contact does not appear to have been a particularly enjoyable experience for Austin, it seems that those occasions where other of his siblings are present have progressed better than the one-on-one occasions in a contact centre. I accept that Jean and Simon are committed to supporting birth parent contact and understand the importance of it, despite the difficulties that have been experienced to this point, and I accept that they have the capacity to do so.

36. The defendants rightly submit that Simon and Jean, not being Cook Islanders, let alone not being Austin’s family of origin, are not ideally placed to meet his cultural needs, and that the potential for identity issues is exacerbated by this transcultural aspect of his placement. That said, Jean and Simon have been proactive in respect of endeavouring to expose Austin to Cook Islander culture as far as they can. They attend a Cook Islander religious service. They have enrolled Austin in a Maori preschool, which is also attended by some other Raratongans from the Cook Islands, and they aspire to visit the Cook Islands with Austin in due course.

37. While it is important to appreciate that there are differences – and not insignificant differences – between Maori culture and Cook Islander culture, the role of Jean in this respect is very important and makes the case a much less confronting one from the cultural perspective than Director-General, Department of Community Services v D. The circumstance that there are both physical similarities and cultural similarities, though I do not suggest for a moment anything approaching identity, significantly mitigates the features that often attend a transcultural (or transracial) adoption. Austin will not be nearly so obviously different from Richard, Geoffrey and Julian as is often the situation in this type of case.

38. Ultimately, I am satisfied that the proposed adoptive parents have excellent parenting capacity, which they have demonstrated through their care of Austin and their other children, including two very premature births, over the last 10 years; that they are attuned and sensitive to the needs of Austin; and that while there will be a deficit in terms of his cultural identity needs, that deficit can to an extent be mitigated by contact and by the other measures that they propose to undertake.

The birth parents

40. The birth mother presents as a genuine, warm, soft-hearted individual who exhibits some parenting skills and, under the division of responsibilities in their family, has primary responsibility for parenting matters. It has to be said, I think, that the birth father seemed somewhat disengaged from the hands-on parenting tasks. That is not to say for a moment that he does not love and care for his children, but he was certainly not aware yesterday whether Clarence had gone to school, and where the children were spending the night.

41. I think it useful in this context to adopt the approach suggested by Dr Anjoul, the expert called by the birth parents, in identifying the tasks of parenting for the assessment of parenting capacity. While I am inclined to think that he placed rather too much weight on the study to which he referred [Robert Epstein, ‘What Makes a Good Parent?’ (2010) 21 Scientific American Mind 46] – which appears to be an online survey reported in Scientific America, not the subject of peer review, seeking to ascertain the views of parents as to the key tasks of parenting – nonetheless there is some utility in the list of parenting tasks that it identified.

42. Dr Anjoul referred to the "…nefarious, obtuse concept that we want to try and measure parenting capacity", and said that by reference to the article to which I have referred, the better measure of parenting capacity is the direct observation of the parents in their role as parents and in situ in the actual environment in which the parenting actually occurs. As I understand it, that means that the best way of assessing whether people are capable parents is to see how they actually parent and the results that produces in terms of performing the “tasks of parenting”. In this case, the Court is able to do that because of the self-restoration of Brent, Jennifer and Clarence. On the one hand, it seems to me that their self-restoration is in itself a strong indication that those children feel loved and wanted by their birth parents; it is hardly likely they would have self-restored otherwise.

43. But I think too much weight can be given, and that Dr Anjoul gave too much weight, to "Love your children" as the first and foremost of the “tasks of parenting” he identifies. Regrettably, the experience of our society and of the Court is that there are many parents who love their children, but do not have the capacity to parent them effectively.

44. When it comes to examining parenting capacity from the perspective of the outcomes produced with the children who have self-restored, there are, I am afraid, some serious issues.

45. One of the tasks of parenting is to educate and ensure the education of one's children. It is unnecessary to go into enormous detail, but there are very grave concerns on this front. Brent, when at kindergarten, was diagnosed as affected by selective mutism; in other words, he does not speak except to those very close to him. He has had this diagnosis for years. When placed with Ms Ennis, Brent was attending school and making some progress. Since he returned to the care of his birth parents, he refuses to attend school, and has not attended school now for something like nine months. At least over the last six months, Jennifer has manifested increasing late attendance or absenteeism from school. Clarence’s performance at school deteriorated in the middle of the first semester of 2014, concurrently with the time he self-restored to his birth parents' care. These are important objective indicators of the influence of their parenting on the children.

46. Another task of parenting is to attend to one's children's health and well-being. Brent's selective mutism cries out for professional intervention. The birth mother deposed in an affidavit sworn eight months ago to her intention to seek such assistance, but so far as can be ascertained, nothing has been done to get professional help for Brent.

47. A third task of parenting is providing accommodation – and security in accommodation – for one's children. Although it seems that the situation has improved, with the family retaining one abode for the last six months, so far as I can tell from reviewing the evidence, during the period 2010-2014 they had 18 different places of abode. In the present accommodation there are three bedrooms: Jennifer occupies one, Brent another and Clarence the third, although there is some conflict in the evidence as to whether or not Clarence shares with Brent and whether or not the birth mother sometimes shares with Jennifer. The birth father sleeps on a mattress in the lounge room, and the birth mother sometimes sleeps there or on the sofa. This is hardly a model of life to be set for the children.

48. Fourthly, and more generically and perhaps more fundamentally, there are concerns about the ability of these parents to organise and coordinate the activities of daily life. This is manifested in Colin's apparent inability to maintain routine attendances on his medical practitioner, Dr Hamburger; their inability to have the children attend punctually at school; the inaccessibility referred to in notes of Family and Community Services and Burnside, and the school’s difficulty in achieving contact with the parents; and their apparent reluctance to engage with support services. There remain some concerns about supervision of the children, as evidenced by the circumstance that no one seemed to be able to be sure yesterday whether or not Clarence was at school or still at home.

49. When one looks at these matters in accumulation, it has to be said that although the birth parents have undoubtedly made considerable efforts to address the issues that resulted in the removal of the children, there are still concerns about their parenting capacity in more than minor respects.

Alternatives to adoption

50. In the way the case has developed, the principal alternative to adoption that requires consideration is restoration. A secondary alternative is leaving in place the status quo.

51. So far as restoration is concerned, its advantages are that Austin would reside with his family of origin in a setting that was better equipped to meet his cultural needs and might well minimise, if not entirely avoid, identity issues. The disadvantages are that it would involve severing a stable and secure status quo and attachment. It is common ground between the experts, Ms Howell and Dr Anjoul, that this would occasion short-term distress to Austin of the type associated with bereavement. Essentially, Austin would lose the only parents he has ever known – and both of them at the same time – as well as the environment and the de facto siblings to which he is accustomed.

52. The enormity of that needs to be appreciated. If the loss of a spouse or a parent for a young person is one of the most significant life events and stressors that one can experience, this prospect needs to be seen in the context that it would be the concurrent loss of both parents, being the only parents the child had ever known, and it would be accompanied by the loss of the environment, the house, the surrounds and the other significant persons in Austin’s life – his de facto siblings. This would represent an entire world change in Austin’s comprehension, of a type that even a person who loses a partner does not experience.

53. What was more controversial was the longer term effect on Austin of severance of his attachment to Simon and Jean. Ms Howell and Dr Anjoul were more or less agreed that because Austin has experienced a secure attachment with Jean and Simon, he is relatively well-positioned to re-attach and form new attachments. There is certainly significant support in the social science for that view. In other words, there is a fair chance that with “good enough” parenting, Austin could attach to his birth parents after severance of the attachment with Jean and Simon. But there are other risks. Each of the experts was asked to comment on the following opinion of an expert, referred to in Director-General v D (at [108]):

Even if the child is able to attach to D, she will experience bereavement. She will lose her primary attachment figures (adoptive mother and father), friends, neighbourhood – everything she knows. There is a large literature on the effects of childhood bereavement. Children who lose a parent before the age of ten have approximately double the risk of developing a depressive disorder in later childhood or adult life compared with children who remain with their primary carers. The risk for children under four years of age is approximately four to five times higher (Black, 2000). Since this child has known no other parents, but her adoptive parents, she would fall into the high risk category for developing a depressive disorder.

54. When that was put to Ms Howell, she said:

I'd agree. What we know is that children – and that's exactly what I believe in terms of [A] – what he knows is what he knows and that's all he knows. We're then saying, well, you know this, but we're going to put you here and we're going to hope that the same kind of things happen here. Even if they did, [A] would still lose those relationships that sustain him daily that he absolutely relies on every single day. I think from that perspective that is a description of bereavement and so I agree with what you've read.

55. Dr Anjoul, on the other hand, accepted that while there would be some kind of emotional response, the question was its duration and transience. He opined:

There is no reason to believe that that's going to be permanent, whatever the response is going to be, be it depression, bereavement, distress, anxiety, acute anxiety or whatever, it's going to pass. It's going to resolve itself. This is what the human condition does.

56. To my mind, Dr Anjoul's answer did not really grapple with the proposition that such cases were very high risk cases for developing a depressive order in later childhood or adult life. In my judgment, one would accept that risk only if one were very certain that the benefits of the change were such as to justify so significant a risk. That means one would want to be very sure of the quality of parenting that Austin would receive if restored, and that the deficits in terms of identity needs and cultural needs, if not restored, were so great that the risk had to be taken.

57. For the reasons I have given, I am not satisfied that the quality of parenting that Austin would receive would be equivalent, let alone superior, to that which he is currently receiving. Nor do I think that the jeopardy to his identity and cultural needs is so grave as to dictate so risky a step – including because the risks associated with his identity and cultural needs can be mitigated in the ways that I have mentioned.

58. Thus, although Dr Anjoul did not embrace the same view, in my judgment there is significantly greater risk of long term psychological damage to Austin from severing the current bonds than there is from leaving him in his current placement, bearing in mind that he will be able to learn about his culture and his identity in that setting. Ultimately, restoration would involve the certainty of great short-term distress, a significant risk of long-term psychological damage, and a quality of parenting that is not likely to match that which he is currently receiving. While it would potentially better address his cultural needs and resolve potential identity issues, those needs and issues can be addressed through contact and other measures in his current placement. In my view, the benefits of restoration are very clearly outweighed by the risks associated with it.

59. Once it is decided that at present restoration is not appropriate, the question then is whether there is nonetheless an advantage in preserving the possibility of restoration in the future by leaving the status quo in place, rather than foreclosing it by making an adoption order. To do so would be contrary to the spirit of adoption principle (e1), which includes delay in making a decision about adoption is likely to prejudice the child’s welfare. Although it is harsh to say so, in my view the possibility that these birth parents could ever offer the quality of parenting that Austin is presently receiving from the proposed adoptive parents is a very remote one. I cannot, however, exclude the possibility that in his teens, searching for his identity, Austin might search out and desire to live with his birth parents. It was just such a concern, in the rather different circumstances of Director-General v D, that deterred me from making an adoption order in that case. But it needs to be recognised that in Director-General v D, not only did the placement of a Sudanese in a white Anglo-Saxon family present a very much more confronting cultural challenge than this case, but also no Court had ever decided (as the Children’s Court has in this case) that a parental responsibility order until 18 in favour of the Minister ought to be made; nor had the mother ever given a valid and effective consent.

60. Once it is decided that the prospect of restoration is a remote one, then the advantages of bringing legality into line with reality by making an adoption order are very significant. [4] The strong probabilities are that Austin will grow up regarding Simon and Jean as his psychological parents and Richard, Geoffrey and Julian as his psychological siblings. He will be part of that family psychologically and residentially and, in those circumstances, it it is by far preferable that he also be part of that family legally. That will make him a part of that family forever and not until just 18, and place him on the same legal footing as those that he will regard, and already regards, as his brothers. It will provide certainty and stability, and the sense of “felt security” that the social scientists hypothesise explains the superior performance of adoptees compared with those in long-term foster care. To do so will never deny that Tamara and Colin are his birth parents, and it is very important that he knows that that is the case, and very desirable that he establish a relationship with them so that he can learn his culture and history from them.

    4. For a more extensive discussion of this, see, for example, Adoption of NG [2014] NSWSC 680 at [75]-[81], [88]-[98]; Adoption of RCC & RZA [2015] NSWSC 813 at [63]-[87]; Adoption of SRB, CJB & RDB [2014] NSWSC 138 at [54]-[59].

56. For those reasons, I am satisfied that adoption is clearly preferable to any alternative course that could be taken by law for Austin’s care. Being so satisfied, and being satisfied that it is in Austin’s best interests that an adoption order be made, it follows that it is also in his interests that a consent dispense order be made. The conditions for such an order under s 67(1)(d) – namely, that the application is made by persons who are authorised carers and that he has developed an established relationship with them – are plainly satisfied.

57. Barnardos and the proposed adoptive parents have executed an adoption plan. As I have mentioned, it provides at this stage for contact with the birth parents on two occasions per year. It also provides for contact with Austin’s siblings in his family of origin. Contact on only two occasions a year has the difficulty, first, that it is so infrequent, especially for a young child, that each occasion presents for him as a new challenge and a new stress, and that the learning and experience gained from one will have been practically lost by the next one six months later. In the life of a four year old, three months, let alone six months, is a very long time. Secondly, the episodes of what have been effectively individual contact for Austin with his birth parents are challenging and stressful for Austin and for others, and artificial because of their very nature and location. Thirdly, two hours twice a year is insufficient for Austin to learn about his culture and family background from his birth parents.

58. Without increasing the burden and disruption of contact, these issues can be remediated by including the birth parents in the two other sibling contact occasions with Laurence and Neville from which they are presently excluded. The Secretary and the proposed adoptive parents have indicated that they are amenable to that course, and would amend the adoption plan, if I came to that conclusion, accordingly. On that basis, I am satisfied that the proposed amended adoption plan would be in Austin's interests and proper in the circumstances.

59. For those reasons, I will make a consent dispense order, and I will make an adoption order.

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Endnotes

Decision last updated: 10 November 2015