Adoption of BJW, JWW, CMW and LW

[2015] NSWSC 2084

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of BJW, JWW, CMW and LW [2015] NSWSC 2084
Hearing dates:	14 July 2015
Date of orders:	14 July 2015
Decision date:	14 July 2015
Jurisdiction:	Equity - Adoptions List
Before:	Brereton J
Decision:	Adoption orders made; proposed names approved.
Catchwords:	FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – where children have given sole consent – availability of adoption order without consent of natural parents – where requisite notice given to natural parents – 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 children – where restoration of child to birth parents not proposed – no requirement to dispense with consent of natural parents – weight to be given to children’s wishes – where adoption would serve children's identity needs as it would confirm the children's identity with their psychological family and as the children have no desire for contact with natural parents – where adoption plans do not provide for contact with natural parents – where s 91 reporter confirmed that contact with natural parents would not be in children’s best interests – 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 children.   FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names of children – where children seek change to second forename to accord with adoptive mother’s family – where given names should, as far as practicable, be preserved – where regard is to be given to children’s wishes – where desire for name change is well-considered and founded on rational reasons – where name change is in best interests of children – held, changes to children’s second forenames ordered.
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 54(3), s 55, s 72, s 88, s 91, s 101(2), s 101(4), s 101(5)
Category:	Principal judgment
Parties:	Secretary, NSW Department of Family and Community Services (plaintiff) JJJW (defendant birth father) RGE and SE (proposed adoptive parents)
Representation:	Counsel: T Stevens (plaintiff)   Solicitors: NSW Crown Solicitor (plaintiff)
File Number(s):	A68 of 2014

Judgment (ex tempore)

1. HIS HONOUR: Pursuant to a further amended summons filed today 14 July 2015, the Secretary of the New South Wales Department of Family and Community Services as plaintiff claims orders for the adoption of four children – BJW born 17 July 1997, JWW born 13 November 1999, CMW born 8 March 2001, and LW born 25 March 2003 – in favour of the proposed adopting parents RGE and SE, a married couple. The Secretary also seeks consequential orders, if necessary, dispensing with the giving of notice and approving, in connection with the adoption order, a change of surname to the adoptive parents' surname and also a change of the second forename of each child (or, in the case of LW, the provision of a second forename).

2. All four children are now over the age of 12, and BJW will attain 18 years of age later this week. All four children have now given their sole consent for the purposes of (NSW) Adoption Act 2000, s 54(1)(c) and (2). Each of the children has been in the care of the proposed adoptive parents for in excess of the two year period referred to in s 54(2), having been placed with them since 2004. In those circumstances, the consent of the children's birth parents is not required, and it is not necessary to dispense with their consent.

Notice to birth parents

3. The proceedings were instituted at a time when LW had not attained 12 years of age. The birth mother, TB, consented to LW's adoption, but the birth father JJJW did not; he was, on his application, joined as a defendant and appeared at the initial directions hearing, and at the preliminary hearing when the matter was set down for hearing on 10 June this year in his presence.

4. It became necessary to change the appointed days for hearing. The evidence establishes that on 5 June, a solicitor from the Crown Solicitor’s Office spoke to the birth father, who said that he would be away between 14 and 30 June, but "any time in July and August is fine." He was informed that, as soon as the new dates were confirmed, he would be told of them. On 15 June, a secretary in the Crown Solicitor's Office spoke with him and told him that the dates for the hearing were 14 and 15 July, and that a letter would be sent to him advising of those dates. On 15 June, he was sent a letter of that date stating that the matter was listed for hearing on 14 and 15 July at 10am in Court 7C. On 9 July, a secretary in the Crown Solicitor's Office telephoned him to inquire whether he would like to receive the court books by post, or have it delivered at Court, to which he answered that he wanted them posted, and was then informed, "I will send them to you today by express post today. The hearing is 14 and 15 July and it is in the same courtroom, which is called 7C", to which he responded, "Okay, thanks". On 9 July, a letter was sent to him, again advising that the matter was listed for hearing on 14 and 15 July, and enclosing the two volumes that comprised the court book.

5. When the matter was called on for hearing today, there was no appearance by JJJW. He was called three times outside the Court, and did not appear. The Court was informed that some attempts had been made by the Crown Solicitor's Office to establish contact with him, without success. Inquiries have been made to ascertain whether he is in custody, and so far as appears from those inquiries, he is not. I am satisfied that he had proper notice of the hearing today, and in the absence of his appearance, the Court is at liberty to proceed.

6. Adoption Act, s 54(3), provides that the Court must not make an adoption order in relation to a child who gives sole consent to his adoption unless satisfied that at least 14 days’ notice of the application for the adoption order has been given to the parent whose consent would otherwise be required (unless, under subparagraph (b), the Court dispenses with the giving of such notice). It is plain that JJJW was given notice of the application for the adoption order. Although the notice in respect of LW was framed as one under ss 72 and 88 of intention to seek a consent dispense order, and of an application for an adoption order, rather than under s 54, nonetheless, that notice amounted to notice that an application was filed on 22 May seeking an order of adoption in respect of LW. Notice expressed to be under s 54 was given of the application in respect of the three older children. The notice that was given in respect of LW constitutes at least 14 days’ notice of the application for the adoption order, and that further notice under s 54(3) merely because LW has attained 12 years of age and has given his sole consent is not necessary. On any view, the purpose of the section in requiring the parent whose consent would otherwise be required to be given notice of the application has been achieved. In my view, s 54(3)(a) has been sufficiently complied with, and it is not necessary to make an order dispensing with the giving of such notice under s 54(3)(b).

7. Notice has been given to the birth mother in respect of the three older children and also in respect of LW – in the latter case, explicitly under s 88 – but, for the same reason, that in my view was adequate notice for the purposes of section of s 54(3). As I have said, the birth mother at that stage had consented to the adoption of LW.

8. Although he has not appeared at the hearing, JJJW lodged a statutory declaration, which was received in evidence as an exhibit of the Court, and I have had regard to its contents, notwithstanding his absence. I have also had regard to the evidence that he gave at the preliminary hearing, which is also before the Court on this occasion.

Adoption order

9. All four children were assumed into care on 3 April 2004 on account of concerns about exposure to drug and alcohol abuse, including the use of heroin and ice by the birth parents; exposure to domestic violence, including knives and physical assault; inadequate supervision; neglect of their physical and emotional needs; exposure to self-harming behaviours; threats of abduction by the birth father; and the birth father's significant criminal history, including periods of incarceration. On 6 May 2004, the three younger children were placed with the proposed adoptive parents. An interim care order in respect of all four children was made in favour of the Secretary on 11 May 2004. The eldest child was placed with the proposed adoptive parents on 2 August 2004, and on 19 October 2004 the Children's Court made a final order in respect of all four children, allocating parental responsibility to the Minister until the age of 18.

10. The Children's Court made no order in respect of birth parent contact, but there was, over the ensuing four years, some contact with the birth parents. Between 2004 and 2007, the children appear to have had contact with their birth mother about four times a year. Their birth father was in custody during 2004 and 2005, but there was some limited contact during that period, then two-monthly contact later in 2005. The proposed adoptive parents obtained an apprehended domestic violence order in respect of the birth father in 2006 for a period of two years, but there was still some supervised contact in 2007. The last contact with the birth father appears to have occurred in April 2008.

11. On 6 November 2008, the children's paternal grandmother made a s 90 application to the Children's Court, which was ultimately withdrawn on 20 May 2009.

12. As will be apparent from that short history, the children have now resided with the proposed adoptive parents for more than a decade. At least for the younger children, they are really the only parents these children have ever known. The children and the proposed adoptive parents have plainly developed a strong relationship with each other, and the proposed adoptive parents are plainly the psychological parents of these children. There are clearly well-developed bonds of attachment between the children and the proposed adoptive parents, and none with their birth parents.

13. The children obviously identify the proposed adoptive parents as their parents, addressing them as "Mum" and "Dad", and identifying them as the most significant figures in their lives. Their needs are being well-provided for, and that is reflected in the considerable progress the children have made since their placement. The s 91 reporter firmly supports adoption as the preferable course.

14. The children are, generally speaking, able academically, but, at least in the case of the second child JWW, present very significant parenting challenges. The third child CMW also has some disabilities. Because of the perceived inadequacies of the public schools available in the local area to address and cope with the challenges posed by some of the children, the adoptive parents have determined that they should be schooled at home by distance education. The children appear to have responded well to this and to be performing relatively well academically against the standards and schedules expected by the distance education authorities. I have been concerned that this involves a significant detriment, in removing the children from the environment of the classroom and schoolyard in which they learn to rub shoulders and interact with others, and the necessary acquisition of life skills that accompanies that. I retain a measure of concern as to what will happen when, ultimately, the children are of an age where they can take themselves to where they may wish to go free of parental supervision. It will present considerable challenges for the proposed adoptive parents to manage this aspect of their raising over the next several years, and it is a matter which warrants their closest concern. I am not convinced that attending Little Athletics once a week for some months of the year, and an hour or so at a bowling alley once a week, really meets that need.

15. On the other hand, all this has to been seen in the context that no one suggests that any change in the children's residential arrangements is desirable. On any view of the case, these children are going to remain in the primary care of the adoptive applicants for the remainder of their childhood. The only real question is whether that should be as their legal children pursuant to an adoption order, or in foster care. As it seems that the education arrangements for these children are supported by the Secretary, it would not appear that leaving the children in a foster care arrangement would make any difference to how they are schooled – even if I thought it preferable that they not be home schooled.

16. Moreover, the detriments of the distance education have to be weighed against its apparent benefits. The updating evidence given by SE this morning indicates that the children have responded very well to the program. The Secretary puts forward nothing to cast any doubt in that respect. There is evidence that there have been no further troubling behavioural incidents on the part of JWW. While that may be attributable in large part to the fact that he has been in a closely-supervised environment with minimal opportunity to transgress, there is nonetheless more than a little to be said for the view that that is to be preferred to leaving him in an environment in which he can rub shoulders with others but also do harm.

17. In my view, it cannot be said that, in the special and challenging circumstances of this case, the disadvantages of distance education outweigh its advantages. Ultimately, that is a judgment which the Court has to entrust to whomever is to have parental responsibility for these children.

18. As Ms Stevens submitted, the only realistic alternative to adoption in this case – in circumstances where no one suggests that the children should be restored to the care of either birth parent, and no one seeks that (including, for that matter, the birth father, who at the preliminary hearing made clear that he did not suggest that the children's residential arrangements should be disturbed) – is for the children to remain in the status quo of foster care with the adoptive applicants.

19. The circumstance that this is a case in which all of the children have attained 12 years of age and all have given their sole consents means that the wishes of the children, while always relevant, are of much greater weight than in a case in which such a consent has not been given. One reason for that is that no question of dispensing with the birth parents' consent arises. The law recognises that having attained 12 years of age, so long as they are judged competent for the purpose, a child is entitled to choose to be adopted. In this case, the children have articulated very clear wishes to that effect, and have expressed sound reasons for those wishes. Adoption would accord with the wishes of the children, bring their legal status into conformity with the reality of the situation that in all practical and psychological senses they are children of the applicants, and provide for the adoptive applicants a measure of security and certainty, the lack of which the evidence suggests may have troubled them in the past.

20. As always, the significant countervailing consideration is the impact that an adoption order might have on the identity needs of the children. But their identity needs are by no means unequivocal. As it is, they know who they are and what their origins are. They plainly identify with the proposed adoptive family rather than with their birth family, and although this is not a case in which the identity issues are likely to be mitigated by birth parent contact for reasons to which I shall come, nonetheless it is also not a case in which they are deprived of knowledge about their origins. Nor is this a case in which anything is to be gained by the flexibility of an order other than an order for adoption. As I have said, no one suggests that their residential arrangements should be changed, and there is no prospect of the children being restored to the care of either birth parent. In those circumstances, I am satisfied that, even in the absence of birth parent contact, adoption is clearly preferable in the interests of the children to any other order that could be made by law.

21. As to the formal requirements, for the purposes of s 23(2)(a), when the application was filed the children were present in the State. For the purposes of s 24(1)(a), they were less than 18 years of age when the summons was filed. For the purposes of s 23(2)(b) and s 28(1)(a), the adoptive applicants are domiciled in the State. For the purposes of s 28(1)(b), they are of good repute, fit and proper. According to advice provided by the Commission for Children and Young Persons Working with Children Check and Screening Unit, they have no relevant conviction or charges recorded against them. They meet the age requirements of s 28(3). For the purposes of s 28(4), they have been a couple and have lived together for longer than two years; indeed, they have been married for 27 years. I am satisfied that the adoptive applicants have been selected in accordance with the Act.

22. In circumstances where there is no contest as to where these children should reside in the future, it is unnecessary to go into any further detail about their qualities, save to record that from the responses of the children to their care, and the bonds that have developed, it is very plain that the children have been very well cared for and are very much loved in their placement. Nor can it have been easy for the adoptive parents to deal, at times, with the attitudes of the birth father, and the challenges presented by some of the children would have been trying for any parents.

Adoptions plan

23. So far as birth parent contact is concerned, adoption plans have been prepared, both maternal and paternal. The maternal plan has been agreed with the birth mother. It provides for no face-to-face contact or contact by other means with her unless the children change their current position of resisting contact, although it does provide for some information to be provided to her. Similarly, the paternal plan provides only for the provision of some limited information to the birth father via the Adoption Information Unit.

24. Generally speaking, I am not favourably disposed to adoption plans that leave to the children the determination of whether contact is to take place. Such arrangements too easily provide an excuse for adoptive parents not to pursue the question of contact because the children do not express any interest, whereas in my view it is an obligation of adoptive parents, in the long term interests of the children, to encourage the maintenance of a connection with their birth parents.

25. But in this case, the children have expressed very clear and not irrational views on the question. At SE's prompting, the eldest child BJW agreed to an episode of contact with the birth mother about 12 months ago, which was by no means unsuccessful, but not something which he has wished to repeat.

26. Although, perhaps initially, I had some reservations about the adoptive applicants' willingness to support contact, I have been persuaded that in principle they are supportive of birth parent contact and realise its benefits for the children. They have made some notable efforts to foster such contact, first with the birth mother, secondly with the father of a fifth child who is also in their care, and more recently by attempting to open communications with the birth father, albeit without success.

27. The children were separately interviewed by the s 91 reporter for the purposes of a supplementary report dealing with birth parent contact. She said:

B, J, C and L are intelligent, insightful and clear minded and I have never assessed a sibling group with such eloquent, considered opinions. They were all individuals, evidenced by their different expressions of thoughts and feelings. Indeed, B commented to me, when we were all together after our individual conversations and I was making some general concluding comments to them, that 'L blew me out of the water with his statement about contact being an act of caring, didn't he'. B's remark was greeted by much laughter and gentle ribbing from his brothers about being 'bowled over by the littlest brother’.

Clearly, all four boys do not want any form of contact with JJJW and their reasons are clear and considered. While it may be tempting for the Court to consider an order for some alternate form of contact in this case, I have considered this matter deeply, and in the context of my well documented professional record of promoting contact between young people and their birth families in the over 100 current cases I have, I have concluded that to force any form of contact in the face of such considered statements to the contrary by these boys would be to minimise their feelings and concerns in a potentially damaging manner as it could be seen by them as prioritising the requests of JJJW over their own heartfelt requests.

In my opinion, contact with JJJW would not be in the best interests of any of the children at this time. Further, I am convinced of the commitment of S and R to open adoption principles and I find no evidence that they have influenced any of the boys in their desire for no contact. On the contrary, both B and J have clearly told me that they knew that S and R would support whatever they wanted with regard to contact.

28. I do not think I should endeavour to second guess that report, particularly in circumstances where the matter has ultimately not been opposed. I have read closely and taken into account not just the reporter's conclusion, but also her summary of her conversations with each of the children. While some were totally antagonistic to the idea of contact, others – for example L – were a little more open. He said that if JJJW wrote to him he would read the letter, but not reply. When told that perhaps the Court may want him to see JJJW, he replied, "I would question why the judge would want me to see him", and then, "I would judge by his answer if maybe I should see him" but, "the thing is ... I wouldn't want to see him".

29. The answer that the judge would give to L is that it may not seem to L or the other children now that it is important to have a relationship with their birth parents, but that these are views that plainly are now known to change and evolve over the years; and that in later years, adults who have been separated from their birth parents often come to regret that fact. It is for that reason, to avoid grief in later years, and to ensure the children have as whole a sense of their identity as possible, that birth parent contact is usually supported. The issue that has troubled me most in this case is the perception that, at least at present, these children see adoption, while largely in a positive sense as completing their membership of the family of the applicants, also in a negative sense of extinguishing their relationship with their birth family. However attractive that might seem to them right now, I am not at all sure that it is ultimately in their best interests. Interestingly, the eldest child B, who is in his last year at school and by all accounts is academically able and doing well, and can be expected to complete his HSC at the end of the year, is contemplating a career in the electrical trades. His birth father's occupation was an auto-electrician.

30. All that said, it is clear enough from the Act that significant weight is to be given to the wishes of children, particularly once they are over the age of 12. As I have said, I do not think I can second guess what the s 91 reporter said, and in those circumstances I am satisfied that the arrangements proposed in the adoption plans are appropriate in the circumstances.

Names

31. The final issue which, for similar reasons, is also troubling, is the names of the children. It is proposed that their surnames should be changed to accord with the name of the adoptive applicants, which is the orthodox and usual outcome of an adoption order and indeed one of the chief perceived benefits of adoption from the child's perspective, in that it identifies them with the adoptive family. There is no suggestion that the children's first names should be changed. However, it is proposed that the existing middle name of the three elder children be replaced with a name connected with SE's family, and that the fourth child be given a middle name, also connected with SE's family. The children have all, in their s 55 consents, expressed their desire to have those names. They have also explained to the s 91 reporter their rationale for that wish; namely, that their new surname would reflect the connection with RE's family, and that they desire to have a name that reflects their connection also with SE's family, she being a most significant person in their lives.

32. Adoption Act, s 101, relevantly provides (by subsection (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.

33. Subsection (4) provides:

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.

34. Subsection (5) provides:

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.

35. A note directs attention to s 8, which sets out the principles to be applied by persons making decisions about adoption, including s 8(1)(e) which is to the effect that a decision-maker is to have regard, as far as is practicable or appropriate, to the principle that the child's given name or names should, as far as possible, be identified and preserved. Reference might also be made to s 8(2)(a) and (b), which respectively direct the decision-maker to have regard to any wishes expressed by the child, and to the child's age, maturity and level of understanding.

36. On the one hand, the principle is relevantly clear: as far as is practicable or appropriate, the child's given names should be preserved, meaning not changed. On the other, it is also clear enough that in determining a child's best interests, one has to have regard to the wishes expressed by the child, informed by the child's age, maturity and level of understanding; and that the given names can be changed if satisfied that the name change is in the best interests of the child. Section 101(4) prohibits the Court from approving a change in the given names of a child over the age of 12 unless the child has consented, though it does not require the Court to change the names if the child has consented to the change.

37. I have considered the strongly held wishes of these children and their reasons, which are rational, for those wishes (including the circumstance that, after counselling, each of the child has confirmed those wishes in a s 55 consent); and the overall policy of the Act that weight is to be given to the wishes of children, especially those who are mature enough to express rational and sensible wishes. On any view, the children will retain the first names by which they are commonly known. In my view, it is clear that they should have the family name of the family of which, upon adoption, they will become legal as well as de facto members. They have expressed a clearly-articulated desire to have their adoptive mother's name or family recognised in their name in place of the second names that they were given at birth. If that be done, they will continue to bear and be known by the first names which their birth parents gave them. Though there is some evidence from the birth father at the preliminary hearing that all the children were named after members of his family, it is not clear whether that was a reference to the first or second forenames, or to both of them. In any event, as I have said, they will retain the first names that their birth parents gave them.

38. Ultimately, although I am acutely conscious of the principle that a child's given names should, as far as possible, be preserved, that yields to circumstances where that is not appropriate and where a name change is in the best interests of the child. Those best interests are informed by the children's wishes. Here, their wishes are firm and rational, and give effect to how the children see their identity, rather than forcing them to have a different perception of that identity. In those circumstances, I will approve the change of the second forenames as sought.

Orders

39. The Court orders that:

1. the child BJW born 17 July 1997, be adopted by the adopting parents RGE and SE, and approves the name E as the surname, and BH as the given names of the child.

2. the child JWW born 30 November 1999, be adopted by the adopting parents RGE and SE, and approves the name E as the surname and JK as the given names of the said child.

3. the child CMW born 8 March 2001, be adopted by the adopting parents RGE and SE, and approves the name E as the surname and CG as the given names of the said child.

4. the child LW born 25 March 2003, be adopted by the adopting parents RGE and SE, and approves the name E as the surname, and LA as the given names of the said child.

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Decision last updated: 18 August 2016