Adoption of K

[2019] NSWSC 866

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of K [2019] NSWSC 866
Hearing dates:	4 July 2019
Date of orders:	04 July 2019
Decision date:	10 July 2019
Before:	Stevenson J
Decision:	Order for adoption made
Catchwords:	CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether adoption plan should be approved
Legislation Cited:	Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	Adoption of NG (No 2) [2014] NSWSC 680 Adoption of RCC and RZA [2015] NSWSC 813 Director-General, Dept of Community Services v D (2007) 37 Fam LR 595; [2007] NSWSC 762 Application of A; Re D (2006) 36 Fam LR 142; [2006] NSWSC 1056
Category:	Principal judgment
Parties:	Secretary, NSW Department of Family and Community Services (Plaintiff) HC (Defendant)
Representation:	Counsel: T Stevens (Plaintiff)   Solicitors: Crown Solicitors (Plaintiff) Legal Aid (Defendant)
File Number(s):	A028/2018

Judgment

1. K was born in 2010. He has recently turned 9.

2. In September 2010, when K was only six months old, the Children’s Court made orders under the Children and Young Persons (Care and Protection) Act 1998 (NSW) placing K under the parental responsibility of the Minister for Family and Community Services.

3. Several weeks later, in October 2010, K was placed with TJ and CJ. K has lived with them ever since.

4. On 4 July 2019 I made an order that K be adopted by TJ and CJ.

5. These are my reasons for making that order.

6. K’s birth parents are HC and GD.

7. GD died in 2014.

8. For convenience, and without intending any disrespect, I will refer to the adoptive and surviving birth parent by their given names.

9. K has not had contact with HC since 2011.

10. On 8 October 2018 I made an order under s 124(1)(a) of the Adoption Act 2000 (NSW) appointing Mr Stephen Stuart as the Guardian Ad Litem for HC.

11. I made that order on the basis of the evidence of Dr Sathish Dayalan, a Forensic Psychiatrist, that HC did not have the capacity to understand legal advice or give instructions.

12. I will return to the question of HC’s future contact with K later in these reasons.

13. The formal requirements for adoption under the Adoption Act have been complied with. There is no need for me to set out the details of those matters here.

K’s best interests

14. An adoption order must not be made unless the Court is satisfied that the proposed adoption will promote the child’s best interests: s 90(1)(a) of the Adoptions Act.

15. I had no doubt that K’s best interests would be served by the making of an adoption order.

16. The principles to be applied by the Court in making a decision about the adoption of a child are set out in s 8 of the Adoption Act. The specific matters to which I am required to have regard are set out in s 8(2).

17. I will deal with each of those matters as relevant, adopting, with gratitude, the careful submissions made by Ms Stevens, who appeared for the Secretary and the Crown Solicitor on behalf of the Secretary.

K’s expressed wishes, age, maturity and level of understanding

18. Due to his age, and some developmental difficulties, K has not been able to express a clear view about his adoption.

19. K has an age appropriate understanding of his birth family and is reported to have told other children that he has “brother and another mummy”.

20. In September 2017, when he was 7, K told CJ that he thought that to be adopted would mean that he would be “safe and able to stay with [TJ and CJ] forever”.

K’s physical, emotional and educational needs

21. The adoption order will have the effect of aligning K’s legal status with his personal and family identity.

22. K has lived with TJ and CJ for the vast majority of his life, and all of his remembered life. He refers to TJ and CJ as “Mum” and “Dad” and, the evidence shows, has formed a stable and positive relationship with them and their extended family.

23. In her report, prepared for the purpose of s 91 of the Adoption Act, Ms Melissa Chin, a Contracted Adoptions Assessor, has reported that:

“K regards TJ and CJ as his Mum and Dad, and has been embraced as a member of their extended families. Due to the limited birth family contact he has had, he views himself as a fully integrated member of TJ and CJ’s family. He is the only child in their home and they have dedicated their time, resources and family life to meeting his needs and nurturing him. They are committed to doing so until he attains adulthood and beyond.”

24. TJ and CJ have facilitated face to face contact between K and his maternal half sibling, Z (most recently in March of this year) and between K and his extended family. They have also agreed to facilitate face to face contact with HC in the future should Anglicare assess that the associated risks of contact can be managed. I will return to this when discussing the Maternal Adoption Plan.

25. K has been diagnosed with Attention Deficit Hyperactivity Disorder and has some speech difficulties. In February 2019 K was assessed by a speech pathologist who recommended that he be reviewed in six months to determine whether he fulfils the criteria for a diagnosis of Dyslexia.

26. K is currently enrolled in Year 3 at a local public school. This school has implemented a range of learning supports for K, including a literacy small group program and a daily school learning support officer. Outside school, K also attends fortnightly tutoring in Maths and English.

27. K’s most recent school reports indicate that he is making progress; his focus in class is improving, and he is showing initiative and working hard with support staff to develop self-esteem and confidence.

28. TJ and CJ have been proactive in putting in place supports for K, including occupational therapy, speech therapy and tutoring. CJ works part-time so that she can volunteer at K’s school and support his extra-curricular activities and appointments.

29. K has, from time to time, exhibited some challenging behaviours. TJ and CJ are both qualified teachers and have demonstrated an ability to manage these behaviours, as well as insight into K’s ongoing need for support in his social and emotional development.

HC’s wishes

30. On 23 May 2017, in a case conference for K, HC was advised that the proposed adoption would change K’s legal status.

31. She replied: “so he’ll be staying, excellent”. In the same conference, HC also said “I want to adopt him out myself, but I don’t know what I would say”.

32. HC also indicated that she wished to have contact with K: “I’d like visitation rights in person, I’d like to speak to him”.

K’s relationship with his parents and siblings and any other significant people

33. K has had no contact with HC since infancy. As I have mentioned, K’s birth father has died.

34. Over the years, K has had infrequent but positive face to face contact with members of his extended birth family, including his maternal half-sibling Z (currently aged 30), his maternal grandfather, and his paternal grandmother and aunt (who reside in Western Australia).

35. Apart from Z (who has expressed no opinion), K’s extended birth family support the proposed adoption. In 2015, his paternal grandmother stated that “[both] my daughter and I hope the adoption will go through soon which will give K a stable life with parents who love him very much”.

Attitude of TJ and CJ to K and to the responsibilities of parenthood, and the nature of K’s relationship with each of them

36. TJ has described his approach to parenting as “tough with love”. CJ agrees that K needs boundaries, and also recognises that when K “gets wound up…all he wants is a cuddle and a pat”. Both describe being demonstrably affectionate with K and giving him praise “at the right time”.

37. TJ and CJ consider K to be their son, and refer to him with great affection and understanding.

Suitability and capacity of TJ and CJ to provide for K’s needs, including his emotional and intellectual needs

38. As I have mentioned, TJ and CJ have demonstrated insight into K’s needs and a commitment and ability to support him.

An adoption order is clearly preferable

39. 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: s 90(3) of the Adoption Act.

40. In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J, at [14] stated that s 90(3) 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’ [Application of A; Re D (2006) 36 Fam LR 142; [2006] NSWSC 1056 at [53]], the requirement that the Court consider that an adoption order be ‘clearly preferable’ is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D (2007) 37 Fam LR 595; [2007] NSWSC 762 at [25]].”

41. In this case, restoration to HC is not a realistic possibility. Accordingly, the alternatives to making an adoption order are to make:

1. no order and maintain the status quo: K is presently placed in the parental responsibility of the Minister until he is 18; or

2. an order allocating parental responsibility to the proposed adoptive parents under s 92 of the Adoption Act.

42. In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J explained, at [74], and then at [83]-[84], that consideration of whether adoption would promote the best interests of the child, and whether it is clearly preferable to any other order, involves identification of the likely effects of adoption and examining the benefits and detriments of each alternative.

43. Maintaining the status quo would leave K as a ward of the state until he is 18. It would also mean that TJ and CJ are unable to make significant decisions regarding K without the approval of the Minister’s delegate.

44. An order allocating parental responsibility to TJ and CJ would alleviate some of the disadvantages to maintaining the status quo but would remain a temporary order that would expire when K attains 18 years of age. It would therefore lack the permanency of an adoption order and would result in K losing his legal connection to his psychological family when he reaches adulthood.

45. I accepted the submissions of the Secretary that an adoption order would bring K stability and security that other orders could not provide.

46. To adopt the words of Brereton J in Adoption of NG at [77]-[78] (with adjustments to reflect the circumstances here), in addition to providing certainty and permanence for K, an adoption order will have the result that:

1. K will be raised in a legally recognised family, rather than remaining a state ward for the duration of his childhood. He will no longer be in “out of home care”, but be in “in home care”. The need for departmental intervention in his care and departmental approval for significant decisions will be removed as will any stigma associated with being a state ward;

2. K’s legal status will be brought into conformity with reality. Psychologically and residentially, he is a member of TJ and CJ’s family. An adoption order would bring the legal position into line with this. His membership of the family that he regards as his own would be perfected, providing him with a sense of security and permanent belonging in that family. K will be a member of that family, not only during his childhood but for life; and

3. K’s legal name will correspond to that of the family which he lives and identifies. He will be enabled to choose for himself whom he tells of this status, without it being self-evident from his name.

47. For these reasons, I concluded that the making of an adoption order was clearly preferable to any other course.

Dispensing with the requirement of HC’s consent

48. The Court must not make an adoption order unless satisfied that consent to the adoption has been given by every person whose consent is required or that consent has been or should be dispensed with.

49. Unless dispensed with, HC’s consent is required under s 52(1)(a) of the Adoption Act. Division 3 of that Act deals with the dispensing of consent.

50. The Court may dispense with consent in circumstances where the proposed adoptive parents are authorised carers of a child and the child has established a stable relationship with the carers and the adoption will promote the child’s welfare: s 67(1)(d) of the Adoption Act. Consent must not be dispensed with unless it is in K’s best interests to do so: s 67(2) of the Adoption Act.

51. TJ and CJ are “authorised carers” because they have care and responsibility for K under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act.

52. There is clear evidence that J has established a “stable relationship” with TJ and CJ.

53. For the reasons I have set out above, I was satisfied that the adoption of K would promote his welfare.

54. I was satisfied that a consent dispense order was in K’s best interests.

Adoption plans

55. The Court may not make an adoption order unless it is satisfied that the arrangements proposed in the agreed adoption plans are in the child’s best interests and are proper in the circumstances: s 90(2) of the Adoption Act.

Paternal Adoption Plan

56. TJ and CJ and the Secretary have agreed to a Paternal Adoption Plan which provides for contact between K, his paternal grandmother and his paternal aunt.

57. I was satisfied that this plan is in K’s best interests and proper because it sets out contact arrangements for K and his paternal grandmother and aunt which have been in place and working well for a number of years.

Maternal Adoption Plan

58. The Secretary and HC’s Guardian Ad Litem, Mr Stuart, have engaged in extensive discussions to agree to an appropriate Maternal Adoption Plan.

59. As Ms Maitland, who appeared for Mr Stuart, submitted:

“The parties have worked hard to try and agree an adoption plan that meets the requirements of the Act and in particular how the contact between K and HC can re-started when it is safe to do so and HC is ready. Involving Ms Kenny from the treatment centre will support this, as well as being the contact person for TJ and CJ providing regular updates on K’s progress to HC.”

60. The Secretary and HC, through her Guardian Ad Litem, agree that face to face visits between HC and K are not presently appropriate.

61. The Secretary and HC, through her Guardian Ad Litem, have agreed on a detailed and nuanced program that, hopefully, will bring about a situation where, consistently with K’s best interests, face to face contact between K and HC can be arranged.

62. The parties are to be commended for the time and effort taken to develop this Maternal Adoption Plan which I had no hesitation in approving on 4 July 2019.

63. Time will tell whether contact can be arranged. What can be clearly said at this stage is that every effort has been taken to maximise the possibility of contact between K and HC consistently with K’s best interests and HC’s reasonable expectations.

Conclusion

64. It is for those reasons that I made the following orders on 4 July 2019:

1. The consent of the child's birth mother, HC, be dispensed with pursuant to s 67(1)(d) of the Adoption Act.

2. The Maternal Adoption Plan agreed between the parties today and marked as Exhibit A, be registered pursuant to ss 50(1) and (3) of the Adoption Act.

3. Direct the plaintiff to file, by 5.00pm on 12 July 2019, the Maternal Adoption Plan, in the form of Exhibit A, signed by the adoptive parents, TJ and CJ; Manager Client Services, Anna Marshall; A/Principal Officer, Foster Care and Adoption, Anglicare Out Of Home Care Services, Gillian de Vries; and Guardian Ad Litem, Stephen Stuart.

4. Order for the adoption of the child K in favour of the adoptive parents TJ and CJ and approving the name "J" as the surname and "KCD" as the given names of the child.

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Decision last updated: 15 July 2019