Adoption of C and E R

[2020] NSWSC 527

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of C and E R [2020] NSWSC 527
Hearing dates:	29 April 2020
Date of orders:	30 April 2020
Decision date:	30 April 2020
Jurisdiction:	Equity - Adoptions List
Before:	Sackar J
Decision:	Adoption orders made
Catchwords:	FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether consent of birth mother ought to be dispensed with — Registration of amended maternal adoption plan — Change of name
Legislation Cited:	Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	Adoption of BS (No 3) [2013] NSWSC 2033 Adoption of KH [2015] NSWSC 274 Adoption of NG (No 2) [2014] NSWSC 680 Adoption of RCC and RZA [2015] NSWSC 813 Adoption of Taylor-Clay [2019] NSWSC 27 Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 OA v Secretary, Department of Communities and Justice [2019] NSWCA 322 Re: the Adoption of A (anonymised) [2020] NSWSC 124
Texts Cited:	n/a
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Communities and Justice, by his delegate, Principal Officer, Adoptions, Barnardos Australia (plaintiff) M R (defendant)
Representation:	Counsel: Ms T Stevens (plaintiff)   Solicitors: Ms K Smith, Crown Solicitor for NSW (plaintiff) Self represented (defendant)
File Number(s):	2019/48753

Judgment

1. These proceedings concern the adoption of E R (‘E’) and C R (‘C’) in favour of H and J (‘the proposed adoptive parents’).

2. By Further Amended Summons filed 21 April 2020, the Secretary, Department of Communities and Justice (‘the Secretary’) seeks the following orders:

That, pursuant to Adoption Act 2000, s 67(1)(d), the consent of the children’s birth mother, M N R, be dispensed with.

That pursuant to Adoption Act 2000, ss 50(1) and (3), the Adoption Plan signed by the proposed adoptive parents on 16 April 2020 and by the plaintiff’s delegate on 17 April 2020, be registered.

An order for the adoption of the child E R in favour of the adopting parents J K and H I.

An order for the adoption of the child C F G R in favour of the adopting parents J K and H I.

An order approving the name L as the surname and “E” as the given name of the child E R.

An order approving the name L as the surname and “C F G” as the given names of the child C F G R.

3. Orders were made on 12 September 2019 dispensing with the consent of E’s birth father and C’s birth father and dispensing with the requirement to give notice to them.

4. The children’s birth mother was joined to the proceedings and she opposed the adoption.

5. The proceedings were conducted before me on 29 April 2020 via Microsoft Teams. The Secretary was represented by Ms Stevens of counsel and the birth mother appeared in person.

6. I gave brief reasons and made the final orders sought by the Secretary on 30 April 2020. I now publish my reasons in full.

Background

7. E and C have lived with the proposed adoptive parents continuously since December 2016. At the time the children were placed in the proposed adoptive parents’ care, E was three and a half years of age and C was one and a half years of age. At the time of hearing, E was almost seven years of age and C was almost five years of age.

8. The proposed adoptive parents are authorised carers who have had the care and responsibility for E and C under out-of-care home arrangements pursuant to the Children and Young Persons (Care and Protection) Act 1998 (‘the Care Act’).

9. The children were removed from their birth mother’s care in August 2015 after a series of risk of harm and risk of significant harm (‘ROSH’) reports were received in relation to E and C concerning exposure to drug use, drug dealing and criminal activity in the home, as well as neglect and inadequate supervision. Family and Community Services case managers and police officers and detectives attended the birth mother’s home on 31 August 2015. Fifteen unknown adults were escorted from the property. Some of those adults were drug affected and there was evidence of drug use.

10. Between August 2015 and December 2016, E and C had two short term placements with Barnardos Temporary Family Care foster carers.

11. In October 2016, the Children’s Court of New South Wales made final orders providing for E and C to be placed under the parental responsibility of the Minister until they attained the age of 18 years. These orders remain in effect.

12. The children have four maternal half siblings, O (adult), P (adult), Q (adult) and D (aged 16). D is under the parental responsibility of the Minister and resides with the children’s birth mother.

E and C’s development in the care of the proposed adoptive parents

13. E and C are both reported to enjoy overall good health and their behavioural development is reported to be as expected for their ages. In May 2017, E was referred to a speech therapist due to a mild to moderate speech sound impairment. E attended seven sessions of speech therapy at the conclusion of which it was reported that he had made significant progress and could correct his sound production in response to cues. In February 2018, E attended a speech pathology review and it was reported that his speech skills were appropriate for his age and stage of development and that no further speech therapy was recommended.

14. In April 2017, C was reported to have delayed language, attention, listening and play skills. As a result, C attended speech therapy until March 2018, when he was assessed to have age appropriate language skills. He was recommended to remain on the wait list for individual speech therapy sessions. Barnardos records indicate that C is no longer on the waitlist and that the proposed adoptive parents have advised that they will take him for a further speech assessment should his speech be raised as an issue at preschool.

15. The children are enrolled in and enjoy school. In 2020, E commenced Year One at his local primary school and C commenced preschool for three days per week. The children also enjoy swimming, rugby and playing mixed sports.

16. The proposed adoptive parents have taken steps to assist E and C to develop a positive sense of identity. They display photographs of the children’s birth mother in their home, engage the children in regular discussions about their birth family, assist the children to create artwork, photographs and letters which are sent to their birth mother, and undertake Life Story work.

17. E and C’s birth families are Anglo-Australian. The proposed adoptive parents are Greek Australian and of the Greek Orthodox faith (proposed adoptive father) and Anglo-Australian and of the Anglican faith (the proposed adoptive mother). The birth mother identifies with the Uniting Church faith. The proposed adoptive parents have advised that the children are currently being exposed to themes and values of the Christian faith relevant to each of the Anglican, Uniting and Greek Orthodox Churches. The birth mother has advised that in the long term she wants the children to identify with whatever faith they choose and confirmed she was happy for the children to be exposed to as many different faiths as possible.

E and C’s relationship and contact with their birth families

18. The children refer to the birth mother as “Mummy M” and E is aware that he has “two mummies and a daddy who love him very much.”

19. The proposed adoptive parents supervise contact with the mother, which is generally positive. In 2018, only two contact visits took place between the mother and the children as the mother was incarcerated, and the visits occurred at Emu Plains Correctional Centre. Since the birth mother was released from prison in March 2019, she has had four contact visits with the children: in April 2019; June 2019; November 2019 and February 2020.

20. There has been limited, though positive, contact between the children and three of their maternal half siblings, O (adult), P (adult) and D (16 years). No contact has occurred with their other sibling, Q (adult).

21. The proposed amended maternal adoption plan provides for contact between E and C and the birth mother on six occasions per year. It provides for further consultation between the birth mother and the proposed adoptive parents and an ongoing exchange of information throughout the year. It also makes provision for continued engagement between E and C and their maternal half siblings if and when their siblings are in a position to attend contact with the birth mother.

22. Due to difficulties in locating E and C’s birth fathers and their lack of any response to requests for contact with the children, there has been no contact with them. The paternal adoption plan for E makes provision for contact with the birth father in the event that his paternity is confirmed. There is no paternal adoption plan for C because his putative father has not acknowledged paternity.

Legal principles

The best interests of the child

23. When considering the potential adoption of a child, the best interests of that child is to be the paramount consideration at all times. Relevantly, ss 7 and 8 of the Act 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.

Clearly preferable

24. The Court must not make an adoption order unless the requirements in s 90 of the Act have been complied with:

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.

25. In accordance with s 90(3), the Court cannot make an adoption order unless it is clearly preferable to any other action that could be taken (for example, a long-term parenting order, restoration, etc.). Brereton J said of the section, in Adoption of KH [2015] NSWSC 274 (at [46]):

This requires identification of the likely effects of adoption, and of the various available alternatives, and their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is or is not clearly preferable to all others.

26. In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J described the principles applicable with respect to s 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 of 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.

27. Later at [76]-[80]:

First, an adoption order will provide certainty and permanence for the child, both directly, and indirectly through the additional certainty it will afford the adoptive parents. The possibility of further changes, disruptions and separations will be minimised. The aspirations to restoration expressed by both birth parents, and re-affirmed by the mother in her oral evidence, however improbable as an outcome, will be practically foreclosed. An adoption order is also likely to minimise any remaining temptation for the birth mother to make comments or suggestions that the child will be returning to her care. In these ways, and others, adoption will contribute to providing for the child the stability, security and certainty that he plainly needs, and will be an important aspect of mitigating his current insecurity. In a case such as the present, where there has been extensive past turbulence and associated vulnerability, and where the child harbours fears of insecurity, this is a telling factor.

Secondly, the child would be raised in a legally recognised family, rather than remaining a State ward for the duration of his childhood. He would no longer be in "out-of-home" care, but in "in-home" care. The need for departmental intervention in his care, and departmental approval for significant decisions of the applicants, would be removed, as would be the stigma potentially associated with being a State ward.

Thirdly, the child's legal status would be brought into conformity with reality. Psychologically and residentially, he is a member of the proposed adoptive family. An adoption order would bring the legal position into line with this. His membership of the family that he regards as his own would be perfected, providing him a sense of security and permanent belonging in that family. And the child would be a member of the family not only during childhood, but for life.

Fourthly, his legal name would correspond with that of the family with which he lives and identifies. He would be enabled to choose for himself whom he tells of his status, without it being self-evident from his name.

While an adoption order would, of course, legally sever the parental relationship between the child and the birth parents, they are relationships which, in reality, have been practically devoid of parental responsibility. An adoption order would in fact serve the child's identity needs by perfecting his membership of the family with which he identifies, while providing a more secure foundation for an ongoing relationship with the birth parents through contact, which the applicants will be better able to support and facilitate when relieved of the insecurity or doubt that might attend it if some prospect of restoration remained open.

28. See also Adoption of Taylor-Clay [2019] NSWSC 27 at [58], in particular where Brereton J observed that:

[A]doption serves the identity needs of such children – in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family – by bringing their legal status in conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own (and – because it is not limited to age 18 – not only during childhood, but for life). Adoption also places the children on an equivalent basis, with equivalent rights, as any biological children of the adoptive parents.

29. This approach to the application of s 90(3) was most recently approved by the Court of Appeal in OA v Secretary, Department of Communities and Justice [2019] NSWCA 322 at [57] (White JA, Macfarlan and Brereton JJA agreeing):

Whilst it is true that if an adoption order were not made the stability of the placement of the children and the support and care the adoptive parents would give them would in all probability continue unchanged. That does not mean that adoption would not be beneficial. The primary judge cited and applied the observations of Brereton J in Adoption of NG (No 2) and Adoption of Taylor-Clay quoted above in concluding that in most situations an adoption order that brings the child’s legal relationship and status quo into conformity with the practical realities of the situation enhances stability for all concerned, in particular the children. The primary judge considered the financial consequences of the adoption order and concluded that adoption would be in the best interests of the children. There was no error in that finding. Indeed, it was clearly correct.

Consent

30. As noted above, s 90(1)(d) prevents the Court from making an adoption order if consent to the adoption has not been given by every person whose consent is required under the Act.

31. Relevantly, section 52 prevents the Court from making an adoption order in relation to a child who is less than 18 years of age unless the consent of each birth parent is obtained.

32. However, s 54 provides for certain circumstances where consent is not required:

1. When consent of parent or person who has parental responsibility not required:

(1)   Consent is not required under section 52 if:

(a)   the requirement for the consent has been dispensed with by the Court, or

(b)   the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or

(c)   the child gives sole consent to his or her adoption in accordance with subsection (2), or

(d)   the child is 18 or more years of age.

(2)   A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years.

(3)   However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless:

(a)   the Court is satisfied that at least 14 days’ notice of the application for the adoption order has been given by the Secretary or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or

(b)   the Court dispenses with the giving of notice.

(4)   The regulations may prescribe the particulars to be contained in a notice under this section.

33. If consent to an adoption is not obtained, the court may make a consent dispense order under s 67:

1. 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 or the guardians for the child:

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

(ii)   the adoption of the child by those carers or guardians 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.

34. As I have noted previously (see e.g. [2020] NSWSC 124), several cases have considered the issue of when consent ought to be dispensed with, noting the gravity of taking such action. In Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, Brereton J said (at [193]):

Although the interests of the child are paramount, the Adoption Act does not entirely disregard the parental rights of the birth parents, as is evident from the requirement for their consent. The amendment made in the course of the Parliamentary debate to s 67(1)(c) is an illustration of this, representing a withdrawal from the position under s 32(1)(e) of the former Act - under which it was sufficient to authorise a dispensation with consent that to do so in order that an adoption order might be made would promote the interests and welfare of the child - by superadding the requirement that there be serious cause for concern as to the welfare of the child.

35. Similarly, in Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142, Palmer J noted (at [52]):

An adoption order is not to be made lightly. The relationship between a child and its natural parents is to be preserved unless the Court is satisfied that the child’s best interests dictate otherwise

36. In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J also 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.

37. In addition, notice of the application to make a consent dispense order must be given to the person whose consent is sought to be dispensed with at least 14 days before the order is made (s 72), unless one of the exceptions in s 72(2) applies.

Notice of application for adoption orders

38. Importantly, section 88 of the Act also provides:

1. Notice of application for adoption orders

(1)   The Court may not make an adoption order unless at least 14 days’ notice of the application for the order (containing the particulars, if any, prescribed by the regulations) has been given:

(a)   to any person whose consent to the adoption of the child concerned is required under this Act and has not been given (or the requirement for which has been dispensed with by the Court), and

(b)   to any person (not being a person whose consent is so required) with whom the child resides or who has parental responsibility for the child.

(2)   Except as the Court may otherwise determine, nothing in subsection (1) requires a notice referred to in that subsection to be given to a person referred to in subsection (1) (b) if that person is:

(a)   an applicant for the adoption order, or

(b)   a person with whom the child resides only as a patient or inmate of a hospital of which that person is in charge or a person who has parental responsibility for a child only as the person in charge of a hospital.

(3)   The notice must not specify the name of, or identify, any applicant.

(4)   The Court may dispense with the giving of the notice.

(5)   If it appears to the Court to be necessary in the interests of justice so to do, the Court may direct that notice of an application for an adoption order be given to any specified person.

39. The Uniform Civil Procedure Rules apply to adoption proceedings and provide detail of when service is taken to be effected, informal service, etc. (see in particular r 10.14).

Who can adopt

40. Part 1 of Chapter 4 of the Act places certain restrictions on who can adopt a child in New South Wales which differ according to whether the persons seeking to adopt be an individual, couple, relative or step parent.

41. Relevantly, section 28 sets out the following requirements in relation to adoption by a couple:

28 Adoption by couple

(1) Basic requirements Two persons who are a couple may, subject to this Act, adopt a child only if—

(a) both of them are resident or domiciled in the State, and

(b) both of them are of good repute and are fit and proper persons to fulfil the responsibilities of parents.

(2) Requirements for step parent The Court must not make an order in favour of a couple if one of them is a step parent unless section 30 is complied with.

(3) Age requirements The Court must not make an adoption order in favour of a couple if neither of them is a birth parent or relative of the child unless—

(a) each of them is 21 or more years of age and 18 or more years older than the child, or

(b) the Court considers that in the particular circumstances of the case it is desirable to make the order even though one or both of them do not fulfil the age requirements.

(4) Length of relationship requirement The Court must not make an adoption order in favour of a couple unless the couple have been living together for a continuous period of not less than 2 years immediately before the application for the adoption order.

(5) The Court may make an adoption order in favour of a couple jointly even if one of them is a birth parent, or they are the birth parents, of the child.

42. ‘Couple’ is defined in the Dictionary to the Act:

couple means 2 persons who—

(a) are married to each other, or

(b) are de facto partners of each other.

Change of Name

43. Section 101(1) 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.

44. Before changing a child’s name, 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 (s 101(2)). However, the Court must not order a name change unless satisfied that the name change is in the best interests of the child (s 101(5)) and, where the child is over the age of 12, the child has provided their consent to the change (s 101(4)).

45. As Brereton J acknowledged in Adoption of RCC and RZA [2015] NSWSC 813 at [104], re-iterating his own comments in Adoption of NG (No 2) [2014] NSWSC 680 at [109] and Adoption of BS (No 3) [2013] NSWSC 2033 at [86], ‘[t]he adoption principles set out in s 8 include, in (e), the principle that a child's given name or names, and identity, should, as far as possible, be preserved.’ However, at [105], his Honour also explained:

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.1

Registration of adoption plan

46. Section 50 relevantly provides:

50   Registration of adoption plans

(1)  The parties to an adoption who have agreed to an adoption plan may apply to the Court for registration of the plan.

(2)  The regulations may make provision for or with respect to such an application.

(3)  The Court may register an adoption plan if it is satisfied that—

(a)  the plan does not contravene the adoption principles, and

(b)  the parties to the adoption understand the provisions of the plan and have freely entered into it, and

(c)  the provisions of the plan are in the child’s best interests and is proper in the circumstances.

(4)  An adoption plan that is registered has effect, on the making of the relevant adoption order, as if it were part of the order.

Evidence

The Secretary’s evidence

47. The Secretary relied on several affidavits. In particular, I note the affidavit annexing the s 91 Court Report of Ms Eliza Edwards, affirmed on 23 August 2018. Ms Edwards is a Senior Case Manager at Adoptions at Barnardos Find-A-Family. She described E as ‘a curious, happy, affectionate and energetic young boy who loves to explore’ and C as ‘a bubbly, happy and adventurous little boy.’ She stated that:

E and C do not have an understanding of adoption given their very young ages thus they are unable to express opinions. However, they are aware that their placement with the proposed adoptive parents is permanent and E knows it as his ‘forever home’. E and C have age appropriate understandings about their histories as the proposed adoptive parents have been very proactive in talking to them about their birth family members and where they come from. The children understand that they don’t live with their birth family as their birth mother, Ms R, couldn’t keep them safe but they are very much loved by her.

…

E and C both appear to be very settled and comfortable in the care of the proposed adoptive parents and to be well connected to them. I have observed E and C at home visits and contact visits to use the proposed adoptive parents as a safe base and to seek them out to have all their physical and emotional needs met… E and C have consistently presented as displaying a clear preference for the proposed adoptive parents over any other person, and they are easily comforted and satisfied by them.

…

The proposed adoptive parents have fully embraced E and C into their family unit with a strong sense of commitment… The proposed adoptive parents always appear to be closely attuned to E and C’s differing needs according to their ages, stage of development and early childhood experiences, and to prioritise E and C’s needs above their own. The proposed adoptive parents have consistently demonstrated a child focussed approach and authoritative parenting style, which provide E and C with optimum environment for growth and development.

48. Ms Edwards concluded that:

An adoption order for E and C by the proposed adoptive parents will provide them with the greatest sense of permanency, stability and security that they need to grow and develop into healthy adults. It would offer E and C the ultimate sense of belonging to the proposed adoptive parents’ family well beyond 18 years of age whilst still maintaining important connections to their birth family. It would also safe guard them from being subject to Section 90 applications… Furthermore, E and C’s sense of identity would be greatly supported through legal recognition as a permanent part of the proposed adoptive parents’ family allowing them to develop even deeper connections with each other. It is for these reasons that an Adoption Order over any other order is the preferred option for them and as such, I respectfully recommend that an Adoption Order be granted for them.

49. I note the two affidavits of the Delegate, Denise Kay Berry, affirmed 13 February 2019 and 11 March 2020, and the exhibits annexed thereto,

50. I note the affidavits of the proposed adoptive parents, both affirmed on 13 February 2019. In his affidavit, the proposed adoptive father stated that:

E appears to be fully aware that he is very lucky to have two Mummy’s and Daddy that love him. From midway through 2018 E started to ask when he can be a L like J and I. I told E that hopefully one day he will be a L too as we are his forever family, and Mummy M will also be a part of his life.

… In December (Christmas 2017) E asked me if we are his “forever family” and J and I assured him that this is absolutely the case. We have started reading some story books that are about open adoption and forever families…

I plan to develop very open, transparent and positive relationships with E and C’s birth family…

I wish to adopt E and C because over the past 25 months J and I have built a very strong bond with E and C. J and I see them as our children and family. I believe open adoption will give them both security and sense of belonging to our family. Both E and C deserve the love and security that we can provide for them.

51. The proposed adoptive mother similarly stated that:

I wish to adopt E and C because over the past 25 months that we have been together as a family we have built a really strong and comfortable bond. Adopting the boys will provide them with the security and sense of belonging to a loving family forever. We know we have provided the boys with a warm and nurturing home environment full of love, but what they have given to us is amazing. The joy and love they bring to us each day is indescribable.

52. I also note the affidavits of the referees and the affidavits of service and attempted service.

The birth mother’s evidence

53. The birth mother affirmed one affidavit on 14 January 2020. The birth mother stated that she was released from custody in March 2019 and currently lives with her son, D. She has a partner, S U, with whom she has been in a relationship since mid-2019. She said that she is clean from all drugs and does not drink, and that she is focussed on getting her life “back on track” and providing a stable home for D and being the “best mum I can be” for all of her children, including E and C.

54. The birth mother stated that she opposed the making of an adoption order because she is concerned about the impact that adoption may have on the children’s sense of identity and family relationships and does not wish to sever the legal relationship between her and the children. She also opposed the original adoption plan (which provided for four contact visits per year between her and the children), stating that it will reduce contact and cause the children to lose important connections with their birth family.

55. The birth mother also stated that while she loves E and C very much and wishes that they could be returned to her care, she acknowledges that they are safe and happy where they now live, and it would be hard for them to return to her care. She said that she thinks the proposed adoptive parents take good care of the children and no longer intends to make an application for restoration.

Submissions

The Secretary’s submissions

56. The Secretary provided written submissions to the Court and further oral submissions were made during the hearing.

57. The Secretary submits that an adoption order is in the best interests of E and C and clearly preferable to any other action that could be taken at law. The Secretary submits that E and C’s needs are very well met by the proposed adoptive parents. In relation to the alternatives to adoption, the Secretary further submits that restoration is not a realistic possibility as the birth mother has not effectively dealt with the circumstances that led to the removal of E and C from her care. The Secretary submits that maintenance of the status quo would leave E and C wards of the state until they are 18 and mean that the proposed adoptive parents are unable to make significant decisions regarding E and C without the approval of the Minister’s delegate. The Secretary further submits that an order allocating parental responsibility to the proposed adoptive parents would alleviate some of the disadvantages to maintaining the status quo but remains a temporary order that would expire when E and C attain 18 years of age. The Secretary therefore submits that an adoption order would bring E and C stability and security that other orders would be unable to provide, and is suitably child and future focused in that it will reflect the day to day reality of the current family circumstances and provide the children with a sense of belonging.

58. In relation to the consent dispense order, the Secretary submits that the requirements in s 67(1)(d) are met.

59. In relation to contact, the Secretary submits that there has been extensive negotiation with the birth mother and the amended maternal adoption plan now reflects the need for the children to maintain contact with their birth mother as they grow older. The Secretary further submits that the plan should be registered to ensure that contact will occur as agreed.

60. In relation to the proposed change of surname, the Secretary submits that the change will enhance the children’s sense of security and stability and is in accordance with the wishes of the older child, E.

The birth mother’s submissions

61. The birth mother did not provide written submissions to the Court but made oral submissions during the hearing, which I have taken into account.

62. The birth mother submits that she does not agree with the proposed change of surname. She does not agree that E would have asked for his name to be changed and submits that he has liked having the same name as his older half- brother, D.

63. In relation to contact, the birth mother submits that while she is not entirely happy with the amended adoption plan, six visits per year are better than four. At the hearing, the birth mother also raised concerns about a shift in her relationship with the proposed adoptive parents that she has felt since the application for adoption was made and she read the evidence. She raised concerns about two occasions where the proposed adoptive parents had been upset because she had brought someone to contact with her. She said that these people were her good family friend, T, who knows E and C quite well, and her partner, S, who had both driven her to contact because she does not currently have a licence. In response, the Secretary noted that the amended maternal adoption plan provides for such situations in that the birth mother need only inform the proposed adoptive parents in advance if she wishes to bring somebody to contact with her.

Consideration

64. It goes without saying that the Court’s paramount concern in any adoption case is the welfare of the child, or in this case, the children, not only now but into the future. Having carefully considered all of the materials and what was said in the course of the hearing, I am of the view that an adoption order is clearly preferable to any other action that could be taken in this case and is in the best interests of both E and C now and into the future.

65. E and C have been living with the proposed adoptive parents since December 2016. The children and the proposed adoptive parents have formed a loving, stable and secure bond in that family unit. It is a family unit which, in my view, should not be disturbed, although that is not on the agenda at the present time. The birth mother has acknowledged that the children are safe and happy with the proposed adoptive parents and stated in her affidavit that she no longer intends to make an application for restoration. I recognise that it would have taken a lot of courage for the birth mother to acknowledge that and I believe it shows that she is looking out for the children’s best interests, as each of the adults involved in this case are obliged to do.

66. I agree with the Secretary’s submission that an adoption order will provide E and C with a sense of belonging, permanency and stability that other orders cannot. It appears that E has already expressed some desire for his placement with the proposed adoptive parents to become his ‘forever home’, although he and C are both still too young to understand the meaning of adoption.

67. The proposed adoptive parents have demonstrated their commitment to meeting E and C’s physical, emotional and intellectual needs, and I am satisfied that they are also committed to assisting the children to maintain a connection to their birth family. I note that the birth mother has sensed some change in attitude recently. However, having looked over all of the evidence, I am not convinced that it is material and I am certainly not convinced that it will have any impact on what otherwise appears to be a very harmonious and cooperative arrangement between the birth mother and the proposed adoptive parents into the future, now that the adoption orders are being made.

68. I am satisfied that the consent of the birth mother ought to be dispensed with. The proposed adoptive parents are authorised carers who have the care and responsibility for E and C under out-of-home arrangements made under the Care Act. As I have already stated, the children have clearly established a stable and loving relationship with them, and the adoption will promote their welfare and best interests, being clearly preferable to any other action that could be taken. I am therefore also of the view that a consent dispense order is in their best interests.

69. In relation to the proposed amended maternal adoption plan, I am satisfied that the arrangements, which have been agreed following extensive negotiations between the parties, are in the children’s best interests and appropriate in the circumstances. They accord with the adoption principles, reflecting E and C’s need to maintain their connection to their birth mother and maternal half-siblings, and now better reflect the birth mother’s wishes. I am of the view that the plan ought to be registered and that this will provide some certainty to the parties with respect to contact. I sincerely hope that the parties can communicate and cooperate with each other in relation to who brings the birth mother to contact visits and note that the adoption plan provides a road map for dealing with this so that any future anxiety or concern can be avoided. I note that there is a paternal adoption plan for E, although I also note that E and C are not presently in contact with either of their birth fathers.

70. I am also satisfied that all of the formal requirements under the Act are satisfied. E and C were both present in the State when the adoption application was filed (s 23(2)(a)) and less than 18 years of age when the summons was filed (s 24(1)(a)). The appropriate notice was given to the birth mother (s 88(1)(a) and s 72) and the requirement to provide notice to the children’s birth fathers has already been dispensed with. The birth mother was provided with copies of the Mandatory Written Information on 17 May 2017 and 19 December 2017 (s 59).

71. The proposed adoptive parents are domiciled in the State (ss 23(2)(b) and 28(1)(a)), meet the relevant age requirement (s 28(3)) and have been living together for the requisite period (s 28(4)). I am also entirely satisfied that the proposed adoptive parents are of good repute and are fit and proper persons to fulfil the responsibilities of parents, particularly having regard to the quality of care they have provided to E and C to date. This is also supported by the evidence of the referees. The Secretary’s delegate has consented to the adoption order.

72. Finally, the Secretary seeks orders approving a change in the children’s surname to that of the proposed adoptive parents. The birth mother expressed concern about this and I understand that. However, the boys will maintain at all times, unless they choose otherwise going forward, the Christian names their birth mother chose for them. In my view, a change of surname is important, particularly because the children are so young. It will consolidate their sense of being, their sense of confidence going forward, and the sense of security and stability, and I am therefore of the view that it is in their best interests.

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Decision last updated: 02 June 2020