Adoption of JLK and CRK - [2017] NSWSC 7

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of JLK and CRK [2017] NSWSC 7
Hearing dates: 27, 28, 29 April 2016
Date of orders: 25 January 2017
Decision date: 25 January 2017
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
Consent dispense orders and adoption orders made

Catchwords:
FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether adoption clearly preferable to any other order that could be made with respect to care of children – where restoration not proposed - where placement with applicants well-established and beneficial – where one child has history of disrupted attachments and insecurity – where children identify with proposed adoptive family – where real potential for beneficial relationship with birth family including siblings – whether adoption would involve unacceptable risk to relationship with siblings - held, risk can be mitigated by registered adoption plan and is acceptable in light of benefits of adoption - adoption is clearly preferable to any other order that could be made with respect to their care

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption – whether consent of birth parents should be dispensed with - where children in care of approved carers with whom they have established relationship – where adoption would promote children's welfare – held, necessarily also in children's best interests to make consent dispense order so as to allow adoption order to be made
FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption – adoption plans - registration – where provisions are agreed between all parties - where registration would mitigate residual risk in respect of birth family contact – held, plan registered.
Legislation Cited: (NSW) Adoption Act 2000, s 8(1), s 8(2), s 50, s 67(1)(d), s 90(1), s 90(2), s 90(3), s 91, s 92
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
Cases Cited: D, Re; Application of A [2006] NSWSC 1056
Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595
JS, Re [2013] NSWSC 306
NG, Adoption of [2014] NSWSC 680
RCC & RZA, Adoption of [2015] NSWSC 813
Rice & Asplund, In the marriage of (1978) 6 Fam LR 570; (1979) FLC ¶90-725
Sarah, Re [2013] NSWCA 379
Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6
SRB, CJB & RDB, Adoption of [2014] NSWSC 138
Stephen, Re [2011] NSWSC 1521
Category: Principal judgment
Parties: Secretary, NSW Department of Family and Community Services, by his delegate, Principal Officer, Adoptions, Barnardos Australia (plaintiff)
JHK and MHK (defendants)
Representation:
Counsel:
D. Ward (plaintiff)
R. Dart (defendants)
Solicitors:
Crown Solicitor (plaintiff)
Johnson Horsley (defendants)

File Number(s): A54/2014
Publication restriction: This version is for publication and uses pseudonyms for the children, their siblings, the proposed adoptive parents and the birth parents.

Judgment

In these proceedings the plaintiff Secretary of the Department of Family and Community Services applies, by his delegate the Principal Officer Adoptions of Barnardos Australia (“Barnardos”), for adoption orders in respect of two siblings, Janet and Catherine Keith (together, “the children”). [1] Janet and Catherine were born respectively on 1 August 2008 and 25 June 2010, to the defendants Joseph Hamilton-Keith (now aged 38) and Marian Hamilton-Keith (now aged 31)(together, “the birth parents”). Joseph and Marian have three older children: Ronald Keith aged 12, Colin Hamilton aged 11 and Paul Hamilton aged 10. The proposed adoptive parents are Lawrence Dorset (now aged 48) and Thalia Dorset (now aged 44), who have been married since 1997, having been in a relationship for four years before their marriage. They have three children together, now aged 24, 20 and 17, and 1 grandchild aged 3. In addition, Lawrence has two children of a previous relationship, now aged 26 and 24.
1. Generally, for convenience, I refer to the parties and the children by their first names, which is consistent with the approach adopted in most of the evidence; I do not thereby intend any lack of respect or undue familiarity. In the published version of this judgment, pseudonyms which will be recognisable by those familiar with the facts, but maintain anonymity with others, have been substituted for the names of the children, their siblings, the proposed adoptive parents and the birth parents.

History

There appear to have been concerns for the welfare of Ronald (then aged 3), Colin (then aged less than 2) and Paul (then aged 6 months) from at least mid-2007. On 18 September 2007 they were removed from their parents and placed in foster care, and the Children’s Court made an Emergency Care and Protection Order the following day. Thus at the time of Janet’s birth on 1 August 2008, her three brothers were already in foster care. In November 2008, when Janet was only three months old, the Children’s Court made orders placing Ronald, Colin and Paul in the parental responsibility of their maternal grandmother Sara Hamilton until 18. However, Sara found the care of Ronald, who was developmentally delayed with significant autistic features, very challenging, and in February 2009 he was placed in foster care; ultimately an order was made on 20 November 2009 allocating parental responsibility for him to the Minister to age 18.
Meanwhile, Janet remained in her parents’ care, but there were ongoing concerns that she appeared small, pale and underweight (in November 2009, she was below the 3rd percentile), and that living conditions in their home were unhygienic and unsafe. Although Marian completed a program at the QE2 Family Centre in December 2009, Janet still failed to thrive and on 23 December 2009 she was assumed into care by the Director-General. An interim order placing her in the parental responsibility of the Minister was made on 30 December 2009, and on 7 January 2010 she was placed with Sara, where she rapidly made gains. However, Sara’s health was not good, and the challenges of caring for Janet in addition to the two boys who remained in her care caused her to relinquish care of Janet on 24 May 2010 whereupon, at the age of 21 months, she was placed with Lawrence and Thalia. Although this placement was originally intended to be a temporary one, Janet has remained with them ever since.
Catherine was assumed into the care of the Director-General upon her birth on 25 June 2010, and placed with Lawrence and Thalia when she was 3 days old. She was restored to her parents’ care under interim orders upon certain undertakings when she was one week of age. However, this trial was not considered successful and after a month, the Children’s Court made an interim order on 6 August 2010 placing Catherine, who was then 6 weeks of age, in the parental responsibility of the Minister and in the care of Lawrence and Thalia, with whom she too has resided ever since.
After an episode in which Sara had, due to illness, allowed Colin and Paul to be in their birth parents’ care unsupervised for three days, final orders were made in the Children’s Court on 1 February 2011 that the Minister have parental responsibility for them until 18, although they continued to reside with Sara. Upon an application made by Sara, those orders were varied on 23 March 2012, when parental responsibility for Colin and Paul until age 18 was once again allocated to her.
Meanwhile, on 6 April 2011, orders were made placing Janet and Catherine in the parental responsibility of the Minister until age 18. Sara also made an application for variation or rescission of those orders, but withdrew it on 11 May 2012. Then, on 17 July 2012, Joseph and Marian made an application for variation or rescission of those orders, which was refused on 9 December 2012.
Barnardos approved commencement of adoption proceedings in respect of Janet and Catherine in March 2013. At the preliminary hearing on 7 October 2014 it was identified that there was an issue pertaining to the impact of an adoption order on the relationship between the children and their birth siblings, and it was indicated that the court would be assisted by further evidence of the views and attitudes of Colin and Paul. The proceedings were set down for hearing to commence on 25 March 2015. However, Ms Haskins, the social worker retained to ascertain and evaluate the views of Colin and Paul, identified a number of issues – including the absence of a “common narrative” as to why the children were not living with their birth parents, the inadequacy of work to date to assist them to understand their joint story and their differences, and the then fractured relationship between Thalia and Sara - and a requirement for reparative casework, and as a result the hearing dates were vacated. The reparative casework was undertaken during 2015 by Ms Williams of Warehouse One7, a child and family psychological service with expertise in therapeutic work with children who have experienced trauma within their family of origin, and led to the discovery, in August 2015, that the children had never been told that Marian and Joseph were their biological parents. Further casework was then undertaken to address this, and thus the proceedings did not come on for hearing until 27 April 2016.

The parties’ positions and proposals

Barnardos proposes that the children continue to reside with Lawrence and Thalia, that adoption orders be made in their favour, and that the children have the surname Dorset. Although at earlier stages they had harboured aspirations of restoration, by the time of the final hearing Joseph and Marian, while opposing an adoption order, did not suggest that the children’s placement with the Dorsets be disrupted. They proposed that Lawrence and Thalia have parental responsibility for the children, and were content for the children to use Dorset as a surname. And while there was initially a difference of opinion in this respect between Barnardos on the one hand, and Lawrence and Thalia on the other, it was ultimately agreed by all that the children should, in the event of an adoption order being made, retain Keith as an additional middle name.
Barnardos proposed that the children have contact with their birth parents and siblings in accordance with an adoption plan which was to be registered. While, again, at the commencement of the hearing there were disputes about the frequency of birth family contact, the parties were able to agree on a regime for contact on the basis that if an adoption order were made, an adoption plan would be registered - and otherwise, consent orders would be made – providing for (1) contact for a minimum of two hours, at least six times per year, of which three occasions would be with the birth parents alone; two would be with the birth parents for the first hour, joined by Sara, Colin and Paul for the second hour, and one (each December) would be a whole family occasion including Ronald; and (2) in addition, at least six further contacts per year with Sara, Colin and Paul, with the possibility of overnight visits being considered as the children become older or request it.
Thus the remaining controversy is essentially, under what arrangements are the children to continue to reside with Lawrence and Thalia: adoption, parental responsibility, or the status quo. This requires consideration of the overlapping issues (1) whether adoption would promote the children’s best interests and is clearly preferable to any other order that could be made with respect to the care of the children; and (2) whether the consent of the birth parents should be dispensed with.
In making decisions about adoption, the court must apply the principles stated in Adoption Act, s 8(1), of which the following are relevant in this case:

(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,

(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.

The “paramountcy principle” contained in par (a) means that the inquiry is child and future focussed: as the best interests of the children, both in childhood and in later life, must be the paramount consideration, so it is necessary to evaluate the competing proposals (and any viable alternatives) so as to ascertain which will best serve the interests of these children now and in the future, given what has already happened, rather than revisiting the actual or perceived rights and wrongs of the past (save insofar as they may be indicative of the future). In speaking of adoption being a “service to the child”, the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met.
Adoption Act, s 90(3), provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction “beyond reasonable doubt”,[2] 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. [3]
2. Re D; Application of A [2006] NSWSC 1056 at [53].
3. Cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 at [25].
The answer to the question whether adoption is “clearly preferable” is informed by various relevant considerations, referred to in s 8(2), which may generally be summarised as follows, but the relevance and significance of which vary according to the circumstances of and competing proposals advanced in each case:

Concerning the children: their physical, emotional and educational needs, including their sense of personal, family and cultural identity, and any disabilities; their 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 children’s relationship with them; their parenting capacity; and their attitude to the children and to the responsibilities of parenthood; and

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

All these are informed by the need to protect the children 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)); and the alternatives to adoption, in the light of the short and long term effects of adoption (s 8(2)(k)).
Because the birth parents have not given consent, an adoption order can be made only if their consent is dispensed with. Dispensing with consent is a grave step, not lightly to be taken, and 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, however, 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, [4] 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 has been observed,[5] 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 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. Where, as here, the proposed adoptive parents are authorised carers pursuant to a care order of the Children’s Court, and the children are in a well-established and stable relationship with them, the court’s reluctance to make a consent dispense order is much diminished, and the question is essentially subsumed into the issue whether adoption will serve the best interests of the children.
4. Hansard, Legislative Council, 25 October 2006.
5. Re Sarah [2013] NSWCA 379 at [68], approving Re Stephen [2011] NSWSC 1521 at [59] (Slattery J).

The children

For the purposes of s 23(2)(a), when the application was filed (on 7 April 2014), the children were present in the state. For the purposes of s 24(1)(a), the children were then less than 18 years of age: Janet was 5 and Catherine was 3.
By the time of the hearing, Janet was 7 and Catherine 5, and had been in the care of Lawrence and Thalia for 5 years 11 months, and 5 years and 8 months, respectively; they are now aged 8 and 6. In 2016, Janet was in year 2 and Catherine in kindergarten.
As has been noted, Janet inexplicably did not thrive for her first 15 months, while in her parents’ care. Although she made significant progress once placed with Sara, she also experienced disrupted attachments, first through removal from her parents, and again six months later when transferred from Sara to Lawrence and Thalia. These early setbacks and disrupted attachments have had lasting consequences for Janet.
Thalia gave evidence that Janet “questions where she belongs every other day … There’s been three homes in Janet’s life, so she needs to know where she belongs”; and “Janet’s got special needs. She’s a very confused little girl”. At the preliminary hearing on 7 October 2014, Lawrence said that Janet definitely had special needs, and described her somewhat obsessive and inflexible behaviours, her anxiety on separation from them, and her need for reassurance; these are indicative of her insecurity.

Ms Willick, who has had casework responsibility for the children since April 2015, provided an updating s 91 report dated 29 March 2016, in which she observed that Janet interacts in a loving nature with the proposed adoptive parents (to whom she refers as “Mum” and “Dad”), and seeks them out for comfort and reassurance when distressed, and to meet her needs. She appears to be relaxed and to feel safe in their presence. Even when playing and interacting with others, she checks in with them regularly. She can still be very anxious on separation from Thalia. She also interacts in a positive and loving manner with the proposed adoptive parents’ biological children.
In her oral evidence, Ms Willick provided the following description of Janet:

Janet has a number of difficulties. She is a seven year old, nearly eight year old little girl who experiences social difficulties within her school environment and also within her extracurricular activities such as she was attending physical culture last year and that had to be ceased because she wasn’t able to be part of a group environment as you would see other seven year old girls be able to be part of a group environment, she’d become quite anxious and quite heightened around some of the other children and not be able to follow instructions as what we would hope to see for another seven year old in that environment. The school talks about Janet having difficulties with boundaries and consistency around rules within not only the playground but the classroom and her ability to cope with any sort of change needs very gradual instruction and support. She recently has had disrupted sleep patterns which have been ongoing but definitely since September to October of last year, she’s had difficulty both falling asleep and remaining asleep and also in terms of she has had some incidents which have been ongoing around wetting herself, wetting her pants, both at school and sometimes at home. She displays overall clingy behaviours and what I would expect to see in my role – in this role around her attachments to the proposed adoptive parents, so she’s overly clingy at times to the point where she wouldn’t like to see Mrs D for example be out of her sight for any amount of time, and she checks in with Mr or Mrs D to make sure that everything’s okay.

In May 2014, a school counsellor reported that while Janet’s intelligence appeared to be in the average range, in the school environment her adaptive behaviour was consistent with moderate intellectual disability, and in the home environment with mild intellectual disability, with practical everyday skills in the “extremely low” range. Following a full paediatric health review on 1 July 2014, Dr Kristidis, paediatrician, opined that blank staring episodes noted of Janet were, in the absence of other symptoms, most likely “mental timeout”, when she made herself unresponsive to external stimuli. This diagnosis was subsequently confirmed by a negative EEG, excluding seizures.
Dr Evans, child psychiatrist, tentatively diagnosed Reactive Attachment Disorder, and possibly a form of Attention Deficit Disorder. He reported on 2 August 2014:

In summary Janet has a subtle but significant neurodevelopmental vulnerability understandable given the very difficult circumstances of her life and environment before coming into care with Thalia. These disturbances do not fit easily into any one diagnostic category. Perhaps the diagnostic label of best fit is Reactive Attachment Disorder. Her behaviours are similar to those seen in children with Autism Spectrum Disorder. Janet will need to be closely monitored for specific learning difficulties. Finally Janet’s ability to focus and concentrate seems a definite weakness and I also wonder whether she has a form of Attention Deficit Disorder.
As regards management I have discussed the diagnostic scenario at length with carers at the meeting on 5th June. It will be important to proceed with a pragmatic and problem focused approach. … Rather careful attention to support and guidance in the wider environment is likely to be the mainstay of management.

A year later, on 17 July 2015, Dr Evans was of the same view. He reported:

Notwithstanding today’s positive presentation I share concerns for Janet’s development. Janet continues to qualify for a diagnosis of Reactive Attachment Disorder. I continue to wonder whether there might be an additional and underlying Attention Deficit Disorder. I have undertaken to get some extra information from the school … if information from the school supports the Attention Deficit Disorder diagnosis a trial of a stimulant medication such as Ritalin could be considered.

On 4 August 2015, Dr Evans confirmed a diagnosis of ADHD:

Reports confirm significant concerns regarding impulsive and inattentive behaviour consistent with diagnosis of ADHD which is compromising Janet’s education.

He proposed a trial of Ritalin, which was subsequently commenced on 29 September.
At a meeting between Barnardos, Lawrence and Thalia and Janet’s school on 1 September 2015, it was said that Janet was having trouble staying on task and absorbing information, and that she had declined over the last six months, though “considering she has mild developmental delay” her teacher was pleasantly surprised at her progress that year. “Socially she does not understand personal boundaries and will be impulsive touching other children”.
On 27 November, Dr Evans recommended that Janet continue on Ritalin. By the time of the hearing, she had been on Ritalin for about six months. Thalia’s perception, based on communications with the school, was that it assisted her to concentrate at school; they did not administer it when she was at home. Janet’s school report for the second semester of 2015 suggests that the medication was beneficial, reporting:

Janet has become a more confident, capable student making gains in all areas of the curriculum this semester. She has made pleasing improvements in her reading and writing, performing at a sound level. Janet tries hard to present neat, organised work and she has become more confident in participating in class discussions. She is developing skills in working independently but at times still becomes easily distracted by others within the classroom. Janet is developing skills in following directions in and out of the classroom, with a tendency to act impulsively rather than listening carefully and consider the consequences of her actions. She is still requiring gentle reminders to use whole body listening during group discussions. Janet is developing skills in working cooperatively during group activities and listening attentively to others. She has started to develop friendships with other students in the class, improving her communications with others. … Janet has developed a more confident approach towards school which has assisted her learning.

At that time of the hearing, Dr Evans was considering switching her to an alternative medication.
Although Janet has made quite good progress in recent times with her schooling and social relationships – which may be attributed in no small part to the care, commitment and dedication of her carers, at home and in supporting her to attend appointments with doctors, occupational therapists, school counsellors and so on – she still has a diagnosis of Reactive Attachment Disorder and Attention Deficit Hyperactivity Disorder, probably as a result of the adversity she faced in infancy. While the placement with Lawrence and Thalia has provided a stable and secure environment of love and care in which she has made considerable progress, she still has challenges: her early setbacks and disrupted attachments have compromised her ability to establish secure relationships, and created a particular need for stability and security. Security and stability are important life foundations for children. A background of early disruption and instability, such as that experienced by Janet, who experienced sub-optimal parenting until removed from her parents at the age of 15 months, and then a relatively short term placement with Sara, before she commenced to reside with the applicants, is a well-established risk factor for difficulty in establishing and sustaining relationships later in life. Janet’s behaviour and diagnosis is indicative that she is insecure and vulnerable, and accentuates the need in her case for stability and security now.
Somewhat in contrast, Catherine – who was placed with Lawrence and Thalia at a very young age – is more flexible and robust; in Thalia’s words Catherine is “more understanding … she’s very easy going, so she’s happy, she feels content, she doesn’t know any different”. Her early placement meant that she did not experience multiple placements with disrupted attachments, but has known no other environment than life with the Dorsets. As a result, she has – in comparison to her sister – a substantially greater sense of stability and security, and a concomitant ability to attach or reattach and develop secure bonds.
According to Ms Willick’s updated s 91 report, Catherine also interacts in an affectionate manner with the proposed adoptive parents and refers to them as “Mum” and “Dad”. She appears settled, relaxed and open with all their family members. She seeks out the proposed adoptive parents to meet her needs, and for comfort when upset. She is very affectionate with them and shows signs of a secure attachment with them. She also interacts in a positive and affectionate manner with the Dorsets’ biological children and grandchild.
A clear sense of identity is an important life foundation for children, particularly against an early background of ambiguity or instability. One important aspect of a child’s identity needs is the need to know his or her origins. Children who do not live with their birth parents may well embark on a search or inquiry in respect of birth family, and lack of satisfactory answers may result in a sense of being “abandoned” or “unwanted”. These children therefore have a need to know their origins, their birth family, and the reasons why they do not live with them.
Although the children had been told that they had a “tummy mummy”, and although they had contact with Marian and Joseph, they were informed that Marian and Joseph were their biological parents only in late 2015. In October 2013, due to what was said to be confusion on the part of Janet, upon advice of Barnardos, the children were encouraged to call the birth mother “Marian” (ostensibly, until better able to understand who she was). As a result of the intervention of Ms Haskins in late 2014, “reparative casework” was undertaken during 2015 to strengthen the connection and bond between the children and their birth siblings and to increase their sense of belonging as a sibling-unit. According to Ms Willick:

It was identified throughout the course of this work that Janet and Catherine did not have a thorough or solid understanding of their birth family. … The lack of understanding was a surprise to Barnardos as it was thought that these conversations were already in place for their Life Story work. My understanding was that Janet and Catherine had been referring to their birth parents as ‘Marian’ and ‘Joseph’ but that they did have an understanding that they were in fact their birth parents. Discussions have occurred with the proposed adoptive parents who stated that they had not intentionally withheld this information but had been previously told that the girls were too young to understand about their birth family and to wait until they started asking questions. This would then demonstrate a growing awareness of readiness to be able to have open discussions with them. They were also both concerned that Janet’s developmental issues would inhabit her ability to understand this fully. Also, Thalia felt that she was protecting the girls and was also unsure as to whether they could fully process the information.

Ultimately, on 25 September 2015, Ms Willick visited the Dorset home, and assisted Lawrence to explain the family arrangements to Janet and Catherine.
Thereafter, on 29 September, Ms Willick accompanied Thalia and the two girls to an appointment with Dr Evans, and while Thalia was speaking to Dr Evans had a conversation with the girls in the waiting room, while they were playing happily. Janet said “You know I have two families”, to which Ms Willick responded “Yes I know”. Janet said “I grew in Marian’s tummy” and Catherine added “and Joseph’s”. Ms Willick responded “That’s right, you both had Marian and Joseph as your first mummy and daddy, and now you have Thalia and Lawrence for your mum and dad, that’s very special”. Janet asked “Will I ever go to live at their house?”, to which Ms Willick responded “No you will stay living with your mum and dad but you will visit with Marian and Joseph”. Janet smiled. Ms Willick said “Were you feeling worried that might happen Janet?”, to which she looked back and gave a little nod.
In November and December 2015 the children, with guidance from Ms Willick, and using material provided by Marian, Joseph and Sara, prepared separate and joint life story books, recording their births and times with Marian, Joseph and (in Janet’s case) Sara when they were very young.
Ms Willick reported that Janet had a developing understanding of her birth identity and her birth parents and that she came from “Marian’s tummy”. At times she has appeared confused about where she would live, and has asked why she could not live with her birth parents. With increasing knowledge of her birth family over the six months prior to the hearing, she has made some challenging statements, such as (to Thalia) “You’re not my mother”. Concurrently with the life history work she has had an increased level of nightmares, waking, calling out, “clinginess”, and other signs of insecurity. Janet has become quite open in telling others that she has “another mum and dad”, and that she was born “in Marian’s tummy”. Lawrence said that since being informed of her biological parentage, Janet has asked questions about “whose tummy she was in” (to which they answer, “Marian’s”), and why they were not living with Joseph and Marian (to which they answer that they could not keep them safe when they were younger).
Catherine has expressed understanding that her birth parents could not look after her, and that that was why she lived with the proposed adoptive parents. According to Lawrence, Catherine, who is “pretty easy going”, listens to the conversations instigated by Janet, but does not ask many questions.
Both girls now speak of having “two mums and dads”.
According to Ms Willick, Janet and Catherine appear to be happy with and interested in their birth family at contact. That they enjoy contact with their birth parents and brothers is confirmed by Thalia’s evidence at the preliminary hearing that within a fortnight or so after a visit, they ask when they are next going to see them.
The Court is required, so far as practicable having regard to the age and understanding of the children, to ascertain and give due consideration to the wishes and feelings of the children. [6] The children are too young to express wishes concerning adoption to which any weight could be attached. However, as Ms Willick reported, and as the evidence referred to above illustrates, Janet and Catherine have a positive, healthy and secure attachment to the proposed adoptive parents. They seek them out above all others, display natural affection and expressions of love for them, and refer to them as “mummy” and “daddy” naturally. Both Joseph and Marian agreed that the children regarded Lawrence and Thalia as their emotional parents. The Dorset home and household is their home and household. Both children plainly consider Lawrence and Thalia, emotionally and psychologically, as their parents. The children plainly identify themselves as members of Lawrence and Thalia’s family.
6. Adoption Act, s 90(1)(b).
Thus the children are well-attached to the proposed adoptive parents, whom they clearly identify as their parents. While no-one now suggests that that bond should be disrupted, the need for security and stability is accentuated, particularly in the case of Janet, by the history of early disruption and Janet’s manifestations of insecurity. The children also need to know their origins, their birth parents and siblings, and understand the reasons why they do not live with them. But this must be balanced with the fact that they primarily identify themselves as members of the family of the proposed adoptive parents, with whom they have lived for almost all their lives.

Birth family

The birth parents have made significant achievements in improving their circumstances. They have demonstrated an ongoing commitment to the children, and to each other. They have the maturity and insight to recognise the benefits which the placement with the Lawrence and Thalia has brought to the children, and they do not wish to disturb that placement. They would only wish to resume parental responsibility for the children if Lawrence and Thalia became incapable of caring for them, or the children desired it. They have developed considerable insight, and demonstrated sensitivity and the ability to place the interests of the children ahead of their own.
At a case review on 23 July 2014, Marian said that she would like the option for restoration sometime in the future, but that she and Joseph were not then in a position to have the girls back in their care: “We want them to stay with you but we also want the option of restoration later on in the future”. At the preliminary hearing on 7 October 2014, Joseph said:

Well, ultimately I would love for my children to be at home with myself and my wife and go to the schools that she went to as a child. But as they haven’t lived with me for a fair amount of time, it is hard to say. The fact that they have been brought up rather well with Lawrence and Thalia and go to school and have their daily needs met, I would like to, in the future, have a door left open to be able to have my children restored to me. But my main concern is all of my children, not just Janet and Catherine, where they all see each other fit together.

At the preliminary hearing, Joseph expressed opposition to an adoption order, mainly in order to keep open the possibility of restoration in the future, and to keep all five siblings as close as possible. His perception was that contact with the children, then occurring six times per year, was working well: “It’s been really positive between ourselves, the carers and our children”. Marian said that, for her, family was a bond that should never be broken, and that she wanted the children to grow up knowing that the family would always be there. She had herself been in care from age 12 until 18, separately from her siblings, and experienced considerable disruption, with up to 20 placements. From her perspective also birth parent contact was working well, though she would like more of it, and would like it to move to unsupervised as the children grown older and they become more secure.
In affidavits made only three weeks before the hearing, Marian and Joseph both confirmed that their first preference would be to have the children restored to their care. However, as has been mentioned, by the time of the hearing that was no longer their position, and they proposed that parental responsibility for the children be allocated to Lawrence and Thalia, in lieu of the status quo of parental responsibility to the Minister.
Joseph’s evidence at the final hearing demonstrated impressive maturity and insight. He accepted that Lawrence and Thalia are the children’s emotional parents. He said that he would not want to destabilise the children’s current placement, as “they have a loving home”. Thus he no longer advanced a case for restoration, in respect of which he said “It would have to be right for the girls, and at the moment it’s not right. … It would have to be the girls’ choice”. He supported the allocation of parental responsibility to Lawrence and Thalia because it would minimise disruption, and give the carers all necessary decision-making authority, without legally severing the sibling bond between the children and their brothers. He was also content for the children to use the surname Dorset.

Marian said that if there was one gift she could give the children, it would be to have the Department (FACS) out of their lives. She acknowledged that, from Lawrence and Thalia, “The girls have received the love I can’t be there to give”. She said that the only circumstances in which she would seek to disturb the current placement would be if Lawrence and Thalia became incapacitated or unsafe.
The birth parents’ remaining opposition to adoption was founded on the impact it would have on the relationship between the children and their siblings Ronald, Colin and Paul. Joseph was concerned about the impact on Colin’s and Paul’s emotional well-being, and wondered how it could satisfactorily be explained to them that while legally they were no longer brothers and sisters, biologically they remained so, and how that was going to affect them – when, on the evening before he gave his evidence, it had taken more than an hour on the telephone to calm them after a pet dog had attacked a teddy bear. Marian was also concerned at the impact on Colin and Paul; she referred to the preservation of the ties between siblings, and said “I’ve seen the effects of closed adoption”. In this respect she was influenced by loyalty to Colin and Paul; and by the circumstance that she does not want it to be able to be said of them that they gave up. Her own experience as a child in care has contributed to her stance. She could see the force of the argument that adoption would provide the benefits of permanent membership of the Dorset family for life, but could not agree to adoption: as she said, “I cannot not fight”.
The children now understand that Marian and Joseph are their biological parents, and Ronald, Colin and Paul their brothers. The reports of contact, taken together, establish that the children have a good relationship with the members of their birth family, and look forward to contact with them. In respect of contact, the birth parents have been consistent in attendance, and well-prepared and planned, despite the challenges posed by the differing needs of Ronald, Colin and Paul, and the girls. They have been conspicuously and punctiliously compliant with the wishes of Thalia and Lawrence, even acceding to demands that they not refer to themselves as mother or father or the boys as brothers of the children, and in referring Janet to Thalia when she asked Marian why she did not live with them. Though they are not exercising parental responsibility, and although there is no proposal that they would do so, these birth parents have a role to play in these children’s lives, moreso than is usual in this kind of case.
It is clear enough that sustenance of the sibling bond between the children and their brothers is in their interests. And because the brothers are closer in age to the girls than the Dorset children (who are now adults), live in close geographical proximity to them, participate in some of the same activities as them, and get on well with and have obvious affection for them (which is reciprocated), many of the challenges that are sometimes associated with contact are absent. Thus there is real potential for beneficial relationships between them to develop.
Ms Penelope Haskins was engaged to report on their understanding of adoption, and the impact an adoption order may have on the relationship between the children and their birth siblings. Colin and Paul do not want their sisters to be adopted. Colin powerfully asserted to Ms Haskins “We are the original brothers Penny”. Paul said “I don’t feel good about them living with other kids”. Colin also said “I would feel better about adoption if I saw them more often, but I still don’t want them to be adopted”.
Ms Haskins undertook some relationship building, and on her recommendation, Warehouse One7 was retained to undertake reparative family story and identity work with Sara, Colin, Paul, Janet, Catherine, Thalia and Lawrence. Ms Willick’s updating s 91 report included:

Colin and Paul have been developing their sibling relationship with Janet and Catherine in informal visits and the shared Life Story sessions during 2015. At times, Colin has appeared to have difficulty with the girls being with the proposed adoptive parents. He did display some anger in the shared Life Story work and has required some time to understand about why the children are separated. Paul has seemed to embrace the opportunity to spend time with his siblings and seems more accepting of this being the arrangement.

While the boys – especially Colin - continue to oppose adoption of their sisters, the reparative casework has reduced the stridency of their opposition. After the reparative casework had been undertaken, Colin was less fixed in his opposition to adoption and more open to seeing that it could be okay for the girls. Ms Haskins concluded that Colin and Paul had an age appropriate understanding of adoption, but that it was difficult for them to understand that contemporary adoption practice was open and that they should expect to continue to have a strong relationship with their sisters; that the reparative casework had supported the children to build closer relationships, and that Colin had twice expressed to her the view that he would feel happier about adoption for his sisters if he saw them more, and had also supported the beginnings of a common narrative which identifies their shared history but acknowledges and accepts the differences; and that Thalia and Sara were committed to their own relationship which would facilitate relaxed family contact between the siblings. As will be elaborated below, Ms Haskins suggested that if an adoption order were made, it would be beneficial to have a registered adoption plan providing for birth family contact.
The maternal grandmother Sara is a significant person in the children’s lives. She was originally opposed to adoption, but more recently has developed a respectful and trusting relationship with Thalia, in which the main focus is on maintaining a sibling relationship between Janet, Catherine, Paul and Colin, and it appears that she now recognises benefits for the children in adoption by the proposed adoptive parents, and considers it the “best option” for the children.
This is not a case in which birth family contact – whether with Joseph and Marian, or with Sara, Colin and Paul, is fraught. Nor is it suggested that it poses any risk to the children. To the contrary, contact is a positive experience for them, which they enjoy and to which they look forward. This is a case in which there is real potential for the children to have and sustain meaningful relationships with their birth family, more than ordinarily so in a case of this kind.

Proposed adoptive parents:

For the purposes of s 23(2)(b) and s 28(1)(a), the proposed adoptive parents are domiciled in the state. For the purposes of s 28(1)(b), they are of good repute, fit and proper, and there was no suggestion to the contrary. According to advice provided by the Commission for Children and Young People’s Working with Children Check and Screening Unit, they have no charges or convictions 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 living together for longer than two years; they were married in 1997, having commenced to cohabit in 1993. For the purposes of s 90(1)(c), I am satisfied that the proposed adoptive parents have been selected in accordance with the Act.
Lawrence is 48 years of age, and of French heritage. He completed his Higher School Certificate. Other than his three children with Thalia, he has two sons (born in 1990 and 1992 respectively) of a prior relationship. He is now employed by RailCorp as a train driver.
Thalia is 44 years of age, of Anglo-Australian heritage. She left school at age 17 to undertake a TAFE certificate course for year 11. She is primarily engaged in home duties, although she currently does some part-time work from home as a beautician; she does not propose to return to full-time employment until the children have completed their primary schooling.
Thalia and Lawrence met through a common workplace when he was 21 and she was 18, and were in a relationship for four years before they were married on 17 May 1997. They have raised three biological children, of whom one now has a child. They are an obviously compatible couple whose relationship is strong and durable. Both are in good physical health. They have an adequate income and resources to support their family, including the children, and suitable accommodation for them. In circumstances where there is no suggestion that the placement should be disrupted, and restoration is not proposed as an alternative, it is unnecessary to examine these matters any further.
The proposed adoptive parents have manifested a strong commitment to the girls and to the responsibilities of parenthood, through their care for the children since May and August 2010 respectively. The progress made by Janet in the light of her early setbacks, and the satisfactory development of Catherine, evidences the quality of care they have received. They plainly recognise and accommodate Janet’s special needs. They have appropriately accessed and attended on support services, including medical practitioners, occupational therapy (for Janet) and school counsellors, and more recently the shared life support story sessions with Warehouse One7. Ms Willick attested to their commitment, and the security and stability that they had provided for the children. However perhaps the most eloquent testimony of their commitment to the children, and the quality of care they have provided for them, came from Marian, who when asked in chief to comment on the quality of care and parenting provided for the children by them, said “Their care has been impeccable. … Those girls have received the love that I can’t be there to give”.
By all appearances, they are willing and able to assume full responsibility for making decisions about the children’s welfare. It was therefore somewhat surprising that, despite indications at the preliminary hearing that their next preferred alternative to adoption was parental responsibility, at the final hearing they expressed a preference for the status quo (that is, foster care with the Minister retaining parental responsibility) over themselves having parental responsibility. Neither was able to explain any rational basis for this position, or why it would be preferable for the Department rather than themselves to be responsible for making decisions about the children’s upbringing. Ultimately, it was suggested that they would like to keep Barnardos involved for support if Marian and Joseph were to decide that they wanted the girls back, but this seemed to be an afterthought. While I suspect that this position was a tactical one adopted for the purposes of the proceedings, it does not detract from the conclusion that they have demonstrated the capacity to assume full responsibility for the welfare of the children.
However, there is a question as to the capacity and commitment of the proposed adoptive parents to support the children’s identity needs in respect of their origins, particularly through contact with the birth parents, and with their brothers. Concern as to the capacity of the proposed adoptive parents to support the children’s relationships with members of their birth family is founded in (a) the concealment from the children until quite recently that Marian and Joseph were their birth parents; (b) the proposed adoptive parents’ opposition to retention by the children of ‘Keith” as an additional middle name, notwithstanding Barnardos’ support for that course; and (c) apparent lack of commitment to birth family contact.
At the preliminary hearing, Lawrence did not appear to have a clear view of the role the birth parents would have in the children’s lives, or about the frequency of contact with them, although he indicated that he was open to an increase in contact for “special occasions”. Thalia seemed reluctant to commit to any particular level of birth parent contact, but ultimately indicated that the six visits per annum then occurring was manageable. Significantly, she said that the children would ask to see Joseph and Marian again within a week or two of having had contact, indicating that they enjoyed contact with them. It was not then revealed that the children had not been told that Marian and Joseph were their birth parents.
While the concealment of the true parentage of the girls is troubling, it appears to have been borne of concern at the impact on them of and their ability to cope with knowledge of the true position, and reflected advice earlier given to them. I have the impression that, misguidedly, they sought to “protect” the girls from a perceived risk of confusion arising from having “two families”, and that Thalia may have felt threatened by the notion that they might realise that they had another mother. As Ms Haskins thought, while it was absolutely unacceptable that the girls did not know their true parentage, Thalia and Lawrence had not been deliberately evasive but were concerned not to “rock the boat” with regard to, in particular, Janet’s emotional stability.
Moreover, until quite recently, their understanding and expectations in respect of open adoption and birth family contact were sub-optimal, and they have belatedly come to appreciate the concept of open adoption and the importance of maintaining birth family relationships. This is by no means solely their responsibility. It is partly a consequence of their initial involvement being as temporary carers rather than as prospective adopters, so that their preparation and training would not have covered open adoption. Ms Vihtonen, who is Barnardos’ Principal Officer, Adoptions, accepted that, with the benefit of hindsight, there was more that could have been done by Barnardos.
The “reparative casework” undertaken during 2015 has made considerable advances in improving the relationships and understanding between the carers and the birth parents. Thalia now wishes that things had been different from the beginning, and that the girls had been told of their parentage much earlier; she feels relief that they now know. Ms Haskins observed:

Even considering Janet’s recent regressed behaviours, Thalia reported to me that she and Lawrence are very pleased that she and Catherine now know “the truth” and that “I wish we had told them from the first”. Thalia also acknowledged that she feels “so much more relaxed at contact now” as she isn’t watching and listening for any “slip-up” that may alert the girls to “the truth”. I put it to Thalia that her relaxed feelings around contact would have been noticed by Janet and Catherine and would contribute in a positive way to their enjoyment of contact.

Ms Haskins concluded that, in a case which she said presented unique challenges, requiring very significant basic casework in the context of contested proceedings with attendant high emotions and anxieties, significant and positive changes had been achieved during the last year, with the active involvement of all parties demonstrating that Sara, Thalia, Lawrence, Marian and Joseph all wanted to support the children to have a good sibling relationship and a robust understanding of their shared history; and that Thalia and Sara were committed to their own relationship which would facilitate relaxed family contact between the siblings. (Unsurprisingly – given that contact must have occasioned anxiety for Thalia, who would have had to be vigilant for any hint that might have identified Marian and Joseph as the children’s parents – Marian had formerly found Thalia blunt, and had sometimes felt intimidated and unrespected).
The proposed adoptive parents have said that they will continue to be open and honest with the children when explaining their adoption as they grow and develop, and answer any questions with careful consideration and compassion. Ms Willick reported:

In my conversation with the proposed adoptive parents, there appeared to be some hesitancy to embrace openness with Janet and Catherine and their birth family in the past. The couple reported that they were uncertain of when to commence these conversations as they had been offered different opinions as to when it was appropriate taking into account the girls’ ages and stages of development. There appeared to be a degree of anxiety of how to respond to questions that they might have following these discussions. I have had conversations with the previous Program Manager, Ms Hatzisavvas … who confirmed that the couple had tried to increase the girls’ awareness of their birth family by encouraging them to use the terms “Mummy Marian” and “Daddy Joseph”. Ms Hatzisavvas said that the proposed adoptive parents reported to her that this was confusing for the children and given this they reverted to using the birth parents’ first names. There were particular concerns with Janet given she had difficulty recalling the names of the family members that she lived with and they wanted to develop her understanding of the people in the home first before trying to explain relationships with birth family members.
During my involvement with the proposed adoptive parents I have observed them become increasingly more aware of the need to be open with Janet and Catherine in regards to their birth family. I believe that the proposed adoptive parents will encourage Janet and Catherine to develop a healthy identity and be inclusive of their birth history as they become older.

Ms Haskins expressed continuing concerns that (1) the positive changes were in their infancy and had not been tested by time; and (2) Thalia and Lawrence’s demonstrated commitment to the importance of maintaining sibling relationships – as distinct from an intellectual understanding of their importance – was not robust, with no casual contact having taken place for four months (as at April 2016). These are valid grounds for holding reservations about the sustainability of the recent developments. However, in my judgment there is reason for cautious optimism in this respect. First, at a review of arrangements meeting on 6 January 2016, in which the proposed adoptive parents and the birth parents participated, a more positive relationship between the parties and deeper mutual understanding was established. Secondly, the maturing of this improved relationship continued, even during the hearing, when the enhanced mutual empathy between the birth parents and the proposed adoptive parents was very evident and at times palpable. Thirdly, while it is true that between the conclusion in early December 2015 of the Warehouse One7 intervention, and late April 2016 shortly before the hearing commenced, casual contact between the children and their brothers did not take place, Thalia and Lawrence plausibly and convincingly explained that this was connected with the occurrence of a tragedy touching the Dorset family, involving the suicide of a friend in front of a train, on the line Lawrence drives. Fourthly, while the initial opposition to retention of ‘Keith” as a middle name was concerning (as it suggested a lack of recognition of the importance of the birth family connection - Lawrence explained that their initial opposition to the girls retaining Keith as an additional middle name was that having two surnames rather than one might later make them question where they really belong), the withdrawal of that opposition is indicative of the proposed adopting parents’ improved appreciation of the significance to the children’s identity of their origins and the importance of maintaining this symbolic link.
Thus in my judgment, the proposed adoptive parents now have the capacity and will to sustain birth family relationships. Nonetheless, it must be acknowledged that there remains an element of risk in this respect, at least that birth family relationships may suffer where there are competing demands.

The proposed adoptive parents are unquestionably committed to the welfare of the children and embrace the responsibilities of parenthood. I am satisfied that they are willing and able to assume full responsibility for making decisions about the children’s welfare. The children regard them as their parents, and they have the capacity to meet the children’s physical and emotional needs, now and in the future. Despite their ambivalent past attitude to fostering the children’s knowledge of and connection with their birth parents and siblings, the recent interventions and the course of these proceedings support the conclusion that the proposed adoptive parents now appreciate their significance and have the will to embrace it, although there remains an element of risk that they may not prioritise it.

Would adoption promote the children’s best interests, in the light of the alternatives?

Consideration of whether adoption would promote the children’s best interests, and whether it is clearly preferable to any other order that could be made, involves identification of the likely effects of adoption, and of the various available alternatives, and examining their respective benefits and detriments from the perspective of the best interests of the children, so as to conclude whether adoption is, or is not, clearly preferable to all the others. As restoration of the children to the birth parents is not proposed by any party, the alternatives to adoption that require consideration in this case are (1) a parental responsibility order in favour of the applicants; (2) maintaining the status quo, with the Minister having parental responsibility and the children in foster care, albeit residing with the applicants; and (3) deferring making a decision about adoption.

The effects of adoption

Given that the children are already residing with the applicants, an adoption order may not effect any immediate or overt improvement in respect of the arrangements for their residence, education, and care. However, that does not mean that it would have no beneficial impact. [7] First, an adoption order would provide certainty and permanence for the children. It would perfect 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. Secondly, the children would be raised in a legally recognised family, rather than remaining State wards for the duration of their childhood; they would no longer be in “out-of-home” care, but in “in-home” care. The need for departmental intervention, and departmental approval for significant decisions of the applicants, would be removed, along with the stigma of being a State ward. [8] Thirdly, the children’s legal status would be brought into conformity with the practical realities of their lives, and would serve their identity needs by perfecting their membership of the family with which they primarily identify and of which they are emotionally, psychologically and residentially already members. Adoption would place the children on an equivalent basis, with equivalent rights, as the three biological children of the proposed adoptive parents. Fourthly, by reason of their legal name corresponding with that of the family with which they live and identify, the children would be enabled to choose for themselves whom they tell of their status, without it being self-evident from their different surnames. Children who do not live with their birth families tend to control knowledge of that circumstance closely, and the assumption of the adopters’ surname which is an ordinary concomitant of adoption facilitates this. [9]
7. For a more extensive discussion of the benefits of adoption summarised below, 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].
8. As to stigma, see Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6 at [49]-[51].
9. See Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6 at [49]-[51].
An adoption order would, of course, sever the legal relationships between the children and their birth family – not just the birth parents but also their three biological brothers. While it does not sever the biological and personal relationships, and the opportunity for the children to know and have a relationship with their birth family can be maintained through contact, the extant physical separation of the girls and their brothers between two households, which already tests their relationship, will be compounded by legal severance. And (as Ms Haskins reported), the commitment of the proposed adoptive parents to maintaining birth family relationships is not demonstrably robust, so that there remains a risk in respect of their sustainability after adoption.
Adoption also carries a risk that the children may feel unwanted or abandoned (by their birth family). However, such risk is incidental more to the circumstance that they do not reside with their birth family, than to an adoption order per se: whether in foster care, or under a parental responsibility order, or adopted, there is the same potential for the question, “why do we not live with our birth parents?”. That question has of course already arisen. Thus, declining to make an adoption order in favour of some other solution, short of restoration, does not remove the risk of a sense of loss or abandonment. However, the risk is mitigated if the children know their birth family, and can continue to have a relationship with them.

Parental responsibility order in favour of applicants?

A parental responsibility order in favour of the proposed adoptive parents would also provide a number of the benefits of adoption. It would alleviate the requirement for the intervention of the Department in significant decisions about the children. As the children would no longer be in the parental responsibility of the Minister, they would in that sense no longer be “wards of the State”, and as the birth parents agree that under a parental responsibility order the children could nonetheless use the surname of the proposed adoptive parents, it would not be obvious to outsiders that they were not living with their family of origin.
A parental responsibility order in favour of the proposed adoptive parents would avoid severing the legal relationship between the children and their birth family, thus maintaining the legal status of the birth parents, albeit without parental responsibility. It would also maintain the legal relationship between the children and their brothers.
However, such an order would not provide the same absolute sense of stability, security and permanence as a member of the adopters’ family forever that would be provided by adoption: such an arrangement would last only until 18 years of age and would not provide a lifetime family for the children. Nor would it give the children equivalent status to the other children of the proposed adoptive parents, as adoption would. And such an order is, at least in theory, amenable to variation, whereas an adoption order is not. While, as Ms Dart rightly submitted, an order allocating parental responsibility to the proposed adoptive parents under Adoption Act, s 92, would not be amenable to an application (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90, which is confined to “care orders” under that Act, a parental responsibility order under s 92 of the Adoption Act, could be re-opened in the event of a significant change of circumstances. [10]
10. Cf Rice & Asplund, In the marriage of (1978) 6 Fam LR 570; (1979) FLC ¶90-725.

Maintain the status quo?

Leaving the children in “out-of-home” care, under the parental responsibility of the Minister and residing with the applicants as foster parents, would maintain a situation in which the children were less than complete members of the family of which they are de facto members. It would also leave the children as wards of the Minister, with the consequence that departmental approval would be required for significant decisions concerning their care and welfare. As with a parental responsibility order, such an arrangement would not give the children a family for life. And the order would be amenable to variation or rescission under Care and Protection Act, s 90

Defer consideration?

The Court could defer final determination of the adoption question until the children are older, for example aged 12, when they could themselves decide whether or not to consent to adoption. Deferral would also allow Thalia and Lawrence’s commitment to the maintenance of the children’s relationship with their birth family to be tested by time.

Is adoption clearly preferable?

Maintaining the status quo offers no apparent advantages for the children over the alternatives. No-one was able to articulate any sensible rationale for preferring it. The applicants are well able to exercise decision-making responsibility for the children, and it is preferable that decisions in respect of their welfare be entrusted to those who know and love the children, who have demonstrated clearly the ability and intention to care for them, and who know them far better than responsible departmental officers ever could, however well-intentioned. It is preferable that the children be in “in-home”, rather than “out-of-home”, care, liberated from the status of “state wards”.
As between adoption and a parental responsibility order in favour of the proposed adoptive parents, adoption offers significant benefits which would not be provided by a parental responsibility order.
First and foremost, it is the best legal support that can be given to shore up the children’s attachments to their emotional parents, and the best underpinning of security, stability and permanence that the law can give. Barnardos’ submissions tended to emphasise the supposed risk that absent an adoption order the placement would remain vulnerable to further applications for restoration. In my view, the practical risk is in fact remote. There have to date been two applications under Care and Protection Act, s 90: one by Sara, which was abandoned; and one by the birth parents. Both occurred in 2012, and there has been none since. The birth parents are respectful and supportive of the children’s relationship with the Dorsets, and insightful. While it is true that they formally abandoned the aspiration of restoration only shortly before the hearing, it was more a dream to which they clung than an intention, and these proceedings have, as is not uncommonly the case, served an educative role in bringing home to them the realisation of advantages the children have gained from their placement with the Dorsets. There is no real prospect of them seeking to disturb the placement, absent a radical change in circumstances.
However, that is not to say that an adoption order will not enhance the children’s sense of felt security, stability and permanence. It would provide a degree of stability and security in a life-long family, that no alternative can offer. A parental responsibility order would still leave the children less than complete members of the household and the family with which they identify, and leave some residual doubt as to the permanence of their placement. It would not place the children on an equal footing with the other Dorset children, nor make them members of the family for life, but would expire at age 18. Although I do not consider that there is a significant risk of the placement otherwise being disrupted, adoption would nonetheless resolve any lingering doubts as to the permanency of the placement, and provide for the children the “felt security” of permanent membership, for life, of the Dorset family; they will know that they belong there, forever. As well as the direct impact of this on the children, there is also a “flow on” effect, via the adoptive parents, through the legal reinforcement of their status and concomitant responsibilities. In these ways, and others, adoption will contribute to providing for the children the stability, security and certainty that they need. This is of particular significance in this case, because of Janet’s insecurity and vulnerability, and accentuated need for certainty, security and stability.
Secondly, an adoption order would bring the legal position into line with the practical realities of the children’s lives, whereas the alternatives would leave a disconformity, with parental responsibility being separated from legal parentage. A parental responsibility order would leave legal parentage residing elsewhere than with those fulfilling the real functions of parenthood. So far as practicable, legal relationships should accord with practical relationships, and adoption would achieve that end.
Thirdly, an adoption order will best support the adoptive parents to sustain the children’s relationship with their birth parents, as it should dissolve any perception that a good relationship between the children and the birth parents may pose some threat to their own parental status.
Against those considerations, the significant countervailing factor, which operates in favour of a parental responsibility order, is the potential impact of adoption on the already vulnerable relationships between the children and their birth family, most particularly their siblings. Adoption would superimpose a legal severance on the extant physical separation, and diminish the legal standing of the birth parents and siblings in the children’s lives. As Ms Dart submitted, making a parental responsibility order rather than adoption order would convey a clear message to all that the sibling relationship is important, whereas making an adoption order may jeopardise the children’s birth family relationships, in a case in which those relationships have more than usual value and potential (for a case of this kind).
I accept that there is substantial benefit for Janet and Catherine in having good relationships with their birth parents and siblings. However, without underplaying the importance of the children maintaining a relationship with their brothers, the reality needs to be recognised. The children have barely lived in the same residence as their brothers, who were in care before Janet was born; although Janet lived with Sara for a period of about four months following her removal from her parents, at a time when Colin and Paul were also living with Sara. The girls share a surname only with Ronald – Sara has had Colin and Paul’s changed to Hamilton. The children’s origins comprise only one aspect of their identity; they identify primarily as members of the family of the proposed adoptive parents.
Making an adoption order is not inconsistent with sustaining the children’s birth family relationships. Children cope with all manner of different families, and multiple families. In the context of an open adoption, the personal relationship between siblings can continue regardless of the severance of the legal relationship, and can be underwritten by an adoption plan. These siblings can still grow up with those personal relationships intact, though they are in different care situations. While Colin and Paul remain opposed to adoption, they understand that the biological relationship would continue regardless, and the reparative casework has moderated their opposition and increased their understanding. Contact will continue, underwritten by a registered adoption plan. Additionally, the girls’ life history books provide an enduring reminder for them of their origins. Thus the impact of adoption on the ability or opportunity for these children to sustain and nurture a relationship with their birth family is likely to be slight, so long as the personal relationships are sustained by ongoing contact.
As has been explained, there is reason for cautious optimism that the proposed adopting parents, notwithstanding their earlier apparent ambivalence, will now, with their significantly enhanced appreciation of and commitment to birth family contact, and a much improved relationship with Joseph, Marian and Sara, support and nurture those relationships, and continue to do so after an adoption order was made. While the reservations which Ms Haskins entertained (referred to above) mean that there is a residual risk that the proposed adoptive parents might not adequately and appropriately nurture and support the relationships between the children and their birth family, she did not suggest that the adoption should not proceed on account of the boys’ views or its impact on the girls’ relationship with them. The risk can be significantly mitigated by binding contact obligations, such as Ms Haskins suggested:

If the Court were to make an Adoption Order at this time, it may consider making Contact Orders or registering an Adoption Plan that details very regular contacts between Colin, Paul, Janet and Catherine. In this way perhaps, Colin and Paul and Janet and Catherine may be best supported to build attachments to each other and thus avoid repeating the history of separation from siblings that is a powerful thread running through their maternal family.

The proposed adoptive parents, Barnardos, and the birth parents have agreed upon the terms of an adoption plan providing for birth family contact in the event of adoption, and that in the event of an adoption order being made it is to be registered. Sara also appears to be reasonably content with its terms. A registered adoption plan is a significant mitigating factor in respect of any residual concern about the capacity of the proposed adoptive parents to sustain birth family contact because, even though not executed by the birth parents, they have standing to enforce its provisions, which have effect as if an order of the court. [11] This provides considerable comfort as to the continuation of the children’s relationship with their birth family.
11. Director-General, NSW Department of Family and Community Services; Re JS [2013] NSWSC 306 at [12].
In those circumstances, I do not accept that making an adoption order involves an “unacceptably high risk” that the sibling bond between the children and their brothers would not be sustained. The risk is significantly mitigated by the registration of an adoption plan providing for birth family contact, and is acceptable in view of the significant benefits of adoption, particularly in the context of Janet’s obvious need for security.
In addition, Warehouse One7 recommended the ongoing provision of a “frame of support”, via a consultant or an allied health professional, as a scaffold for the adults to support active problem oriented responses to any future ruptures in the relationships. A format of bi-monthly meetings of about 1½ hours involving Thalia, Lawrence and Sara was suggested. Although Ms Vihtonen, did not have authority to commit to this, she indicated that she supported and recommended the provision of the resources to enable it, and expected that it would be approved. This is an important additional support for the sustenance of the relationships – although it would be preferable if Marian and Joseph were also engaged – and I expect Barnardos to resource it.
In light of the foregoing, to defer making a decision would not merely preserve but exacerbate uncertainty and promote instability. To do so would also contravene the principle in s 8(1)(e1) of the Act, which provides that ‘undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare’. It would, at best, defer providing to the children – and in particular Janet – the reinforcement of her present attachments, perhaps at a time when the benefits of doing so would be at their highest. Nor is it in the children’s interests effectively to cede responsibility to them for making the decision, and potentially to place them in the invidious position of having to choose.

For the purposes of s 91(1), two reports concerning the proposed adoption was provided to the Court: the first dated 24 March 2014 by Lauren Paul, who had casework responsibility for the children between late 2010 and 2014; and an updating report dated 29 March 2016 by Deborah Willick, who had casework responsibility for the children from April 2015. Ms Paul referred to the proposed adoptive parents’ high level of commitment and competence as parents, their proven resourcefulness and proficiency in parenting, the development of strong stable and significant attachments between the children and them, and concluded:

I believe that adoption is the most appropriate plan for Janet and Catherine. The proposed adoptive parents have provided both girls with a loving, nurturing and supportive environment which can only be enhanced by adoption. The permanence of an adoption order will promote Janet and Catherine’s welfare and well-being and ensure stability and certainty about their future. An adoption order will give legal effect to what Janet and Catherine already feel; that the proposed adoptive parents are their “mum and dad”.
Adoption will also remove the ongoing threat of another application being brought by the birth parents to have Janet and Catherine restored to their care. The birth parents filed a s. 90 application in 2012 and although it was unsuccessful, there remains the possibility that at some point in the future they will attempt to file another application. It is a prospect that looms large in the minds of the proposed adoptive parents and causes anxiety for them.
Adoption will offer Janet and Catherine a full sense of belonging and the benefit of long term security and stability in the care of the proposed adoptive parents. Both of the girls have developed secure relationships with the proposed adoptive parents and I believe that adoption over any other order will best promote their long term welfare and well-being

The recommendation was supported by the relevant regional manager of Barnardos' Find-a-Family program, Ms Villa.
Ms Willick referred to the proposed adoptive parents’ strong connection and bond with the girls, their insight into their developmental needs and preparedness to access additional supports as appropriate, and concluded:

It is very apparent that the proposed adoptive parents have an enduring and lifelong commitment to the children, referring to themselves as a family unit, being truly accepted and loved by their biological children and extended family. The couple are clear in their desire to offer the children the permanency and belonging throughout their childhood into adulthood through adoption.
It is my opinion that an Adoption Order is in Janet and Catherine’s best interests as it will afford them the long term permanency and security above any other order that could be made by the Court. The proposed adoptive parents have already demonstrated an enduring commitment to provide the children with a loving, stable and nurturing family and adoption will recognise the existing long term relationships for them within this carer family.

In her oral evidence, Ms Willick, who has seen Janet and Catherine in numerous settings, attested to the commitment of and stability provided by the proposed adoptive parents, which led her to believe that adoption was the best possible outcome for the children, as a parental responsibility order did not involve the lifelong commitment and sense of belonging associated with adoption, and still left an element of insecurity and anxiety, particularly for Janet.
Those opinions are consistent with, and support, the view I have independently reached, for the reasons expressed above. In short, in my view, adoption is clearly preferable in this case, because (a) it is superior to all alternatives in respect of the provision of certainty and security, and perfection of the children’s relationship with the family with which they identify, considerations which have accentuated significance in the context of Janet’s insecurity and vulnerability; (b) it alone would bring the legal relationships into line with the practical realities of the children’s lives; (c) it will best support the adoptive parents to sustain the children’s relationship with their birth parents; and (d) its impact on the ability or opportunity for these children to sustain and nurture a relationship with their birth family is likely to be slight, so long as the personal relationships are sustained by ongoing contact, and while there is some residual risk in that respect, such risk is significantly mitigated by the registration of an adoption plan providing for birth family contact, and is acceptable in view of the significant benefits of adoption.
In my judgment, therefore, for the purposes of s 90(1)(a), the best interests of the children will be promoted by adoption by the proposed adopting parents, accompanied by registration of an adoption plan securing birth family contact, and the making of an adoption order would be clearly preferable in the best interests of the children than any other action that could be taken by law in relation to the care of the children.

Ancillary matters

The ancillary issues which require attention are:

The making of a consent dispense order, without which an adoption order cannot, in the absence of the birth parents’ consents, be made;

The provisions and registration of the adoption plan; and

The names which the children are to have.

Consent dispense order

As the proposed adoptive parents are authorised carers pursuant to a care order of the Children’s Court, and the children are in a well-established and stable relationship with them, it follows, from the conclusion that adoption would promote the children’s best interests and is clearly preferable to any other order that could be made, that the conditions for a consent dispense order under s 67(1)(d) are satisfied, and that it is appropriate as a matter of discretion to make such an order, in order to enable the optimal arrangements for the children’s welfare, namely adoption, to be established. For the purposes of s 90(1)(d), I am satisfied that consent to the adoption of the children has been given by every person whose consent is required under the Act, other than the birth parents, whose consent should be dispensed with.

Adoption plan

Although initially there was an issue as to the amount and frequency of contact the children should have with their birth parents and siblings, to the great credit of all those involved – in particular the birth parents, the proposed adoptive parents, and their respective lawyers, this was resolved and reflected in an amended Adoption Plan, the effect of which has already been described, to which the birth parents indicated their agreement, although they did not execute it because they did not agree to adoption. For the purposes of s 90(2), I am satisfied that the arrangements proposed in the plan are in each child’s best interests, and are proper in the circumstances.
It was common ground that, as Ms Haskins suggested, the plan should be registered, and it will be apparent that I consider this an important factor in making an adoption order. For the purposes of s 50(3), I am satisfied that the plan does not contravene the adoption principles; that the parties to the adoption understand the provisions of the plan and have freely entered into it, and that the provisions of the plan are in each child’s best interests and proper in the circumstances.

Name

As has been mentioned, although, despite Barnardos’ support for the children retaining “Keith” as an additional middle name, the proposed adoptive parents initially opposed it, they came during the hearing to accept it. Moreover, the birth parents volunteered that children could use surname of Dorset, even if there were no adoption and a parental responsibility order only were made. Thus it was effectively accepted by all that the children should have Dorset as their surname, reflecting the family with which they live and primarily identify, but retain Keith as a middle name, reflecting their heritage. In my judgment this is plainly appropriate and in the interests of the children.

Conclusion

My conclusions may be summarised as follows:
All formal requirements for making a consent dispense order and an adoption order in respect of both children are satisfied.
There is no proposal for restoration. Nor is it in doubt that the children will in any event continue to have contact with their birth family. The essential controversy is whether the legal construct for their ongoing residence with and care by Lawrence and Thalia will be adoption, parental responsibility, or foster care (with the Minister retaining parental responsibility).
Adoption is superior to all alternatives in respect of the provision of certainty and security, and perfection of the children’s relationship with the family with which they identify, considerations which have accentuated significance in the context of Janet’s insecurity and vulnerability. Adoption alone of the alternatives would bring the legal relationships into line with the practical realities of the children’s lives. Adoption will best support the adoptive parents to sustain the children’s relationship with their birth parents. The impact of adoption on the ability or opportunity for these children to sustain and nurture a relationship with their birth family is likely to be slight, so long as the personal relationships are sustained by ongoing contact, and while there is some residual risk in that respect, such risk is significantly mitigated by the registration of an adoption plan providing for birth family contact, and the ongoing professional support to consolidate the children’s birth family relationships (which I expect Barnardos to resource), and is acceptable in view of the significant benefits of adoption. Accordingly, the best interests of the children will be promoted by adoption by the proposed adopting parents, accompanied by registration of an adoption plan securing birth family contact, and the making of an adoption order would be clearly preferable in the best interests of the children than any other action that could be taken by law in relation to the care of the children.
Because it is in the best interest of the children that an adoption order be made, it is also in their best interests to make a consent dispense order, so as to allow the adoption order to be made, notwithstanding that the birth parents do not consent to it.
Upon adoption, the children are to have the surname “Dorset”, and the forenames “Janet Leigh Keith” and “Catherine Rose Keith” respectively, thus reflecting both their origins in the Keith family and their membership of the Dorset family.
According, the Court orders that:
A. In respect of the child Janet Leigh Keith:

pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child's natural father Joseph Hamilton-Keith and mother Marian Hamilton-Keith be dispensed with.

the child be adopted by the adopting parents Lawrence Robert Andrew Dorset and Thalia Lee Dorset, and approves the name 'Dorset' as the surname and ‘Janet Leigh Keith’ as the forenames of the child.

pursuant to Adoption Act 2000, s 50(3), the adoption plan dated 29 April 2016, being exhibit PX07 herein, be and is hereby registered.

B. In respect of the child Catherine Rose Keith:

pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child's natural father Joseph Hamilton-Keith and mother Marian Hamilton-Keith be dispensed with.

the child be adopted by the adopting parents Lawrence Robert Andrew Dorset and Thalia Lee Dorset, and approves the name 'Dorset' as the surname and ‘Catherine Rose Keith’ as the forenames of the child.

pursuant to Adoption Act 2000, s 50(3), the adoption plan dated 29 April 2016, being exhibit PX07 herein, be and is hereby registered.

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Endnotes

Decision last updated: 25 January 2017

Medium Neutral Citation:	Adoption of JLK and CRK [2017] NSWSC 7
Hearing dates:	27, 28, 29 April 2016
Date of orders:	25 January 2017
Decision date:	25 January 2017
Jurisdiction:	Equity - Adoptions List
Before:	Brereton J
Decision:	Consent dispense orders and adoption orders made
Catchwords:	FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether adoption clearly preferable to any other order that could be made with respect to care of children – where restoration not proposed - where placement with applicants well-established and beneficial – where one child has history of disrupted attachments and insecurity – where children identify with proposed adoptive family – where real potential for beneficial relationship with birth family including siblings – whether adoption would involve unacceptable risk to relationship with siblings - held, risk can be mitigated by registered adoption plan and is acceptable in light of benefits of adoption - adoption is clearly preferable to any other order that could be made with respect to their care FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption – whether consent of birth parents should be dispensed with - where children in care of approved carers with whom they have established relationship – where adoption would promote children's welfare – held, necessarily also in children's best interests to make consent dispense order so as to allow adoption order to be made FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption – adoption plans - registration – where provisions are agreed between all parties - where registration would mitigate residual risk in respect of birth family contact – held, plan registered.
Legislation Cited:	(NSW) Adoption Act 2000, s 8(1), s 8(2), s 50, s 67(1)(d), s 90(1), s 90(2), s 90(3), s 91, s 92 (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
Cases Cited:	D, Re; Application of A [2006] NSWSC 1056 Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 JS, Re [2013] NSWSC 306 NG, Adoption of [2014] NSWSC 680 RCC & RZA, Adoption of [2015] NSWSC 813 Rice & Asplund, In the marriage of (1978) 6 Fam LR 570; (1979) FLC ¶90-725 Sarah, Re [2013] NSWCA 379 Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6 SRB, CJB & RDB, Adoption of [2014] NSWSC 138 Stephen, Re [2011] NSWSC 1521
Category:	Principal judgment
Parties:	Secretary, NSW Department of Family and Community Services, by his delegate, Principal Officer, Adoptions, Barnardos Australia (plaintiff) JHK and MHK (defendants)
Representation:	Counsel: D. Ward (plaintiff) R. Dart (defendants) Solicitors: Crown Solicitor (plaintiff) Johnson Horsley (defendants)
File Number(s):	A54/2014
Publication restriction:	This version is for publication and uses pseudonyms for the children, their siblings, the proposed adoptive parents and the birth parents.