Adoption of KH - [2015] NSWSC 274

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of KH [2015] NSWSC 274
Hearing dates: 3 February 2015
Date of orders: 03 February 2015
Decision date: 03 February 2015
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Declaration of paternity; amendment to birth certificate to include birth father ordered; consent dispense orders made; adoption order made; adoption plans registered.

Catchwords:
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – where no realistic prospect of restoration of child to care of birth parents – where preserving the possibility of restoration would thus contravene the spirit of adoption principle (e1) – where proposed adoptive parents in a better position to facilitate contact with birth parents than the Department – where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them – held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child.
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether consent of birth parents ought to be dispensed with – as the making of an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made.
Legislation Cited: (NSW) Adoption Act 2000, s 8(1), s 8(1)(e1), s 8(2), s 23(2)(a), s 23(2)(b), s 24(1)(a), s 28(1)(a), s 28(1)(b), s 28(3), s 28(4), s 50(3), s 59, s 67(1)(d), s 87, s 88, s 90(3), s 91, s 91(1)
(NSW) Births, Deaths and Marriages Registration Act 1995, s 19(2)
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
(NSW) Status of Children Act 1996, s 21(2)
Cases Cited: Adoption of BS (No 3) [2013] NSWSC 2033
Adoption of NG (No 2) [2014] NSWSC 680
Director-General v Department of Community Services and D [2007] NSWSC 762; (2007) 37 FamLR 595
Category: Principal judgment
Parties: Secretary, NSW Department of Family and Community Services (plaintiff)
M (first defendant)
D (second defendant)
Representation:
Counsel:
T Stevens (crown)
M Fallon (first defendant)
D (in person) (second defendant)
Solicitors:
Crown Solicitor’s Office (crown)
Rowley and Associates (first defendant)

File Number(s): A42/2014

Judgment (ex tempore)

HIS HONOUR: K, the child the subject of these proceedings, was born on 11 December 2007, the child of the first defendant M and the second defendant D, who had been in an occasional relationship but did not cohabit. In these proceedings, the Secretary as plaintiff seeks a declaration that the second defendant D is K's father and an order that he be included as such on K's original birth certificate, no father presently being recorded on it; and an order for K's adoption by the adoptive applicants CF and AR, a married couple in whose care he has been for the last six years. For the sake of clarity and while preserving anonymity albeit at the risk of impersonality, I shall usually refer to the protagonists as the child, the birth parents and the applicants, although on occasion the context will require that I refer to them by their initials.
Community Services first became involved with K on the day of his birth, 11 December 2007, having received a risk of harm report which stated that the birth mother had received no antenatal care, having been unaware that she was pregnant until 34 weeks; that her home was "filthy"; and that she had limited supports. The birth mother agreed that upon discharge from hospital she would live with her sister in Queensland, so that she would have some assistance in caring for the child. However, she did not do so, and instead returned to her apartment.
The child was assumed into care on 18 December 2007 at one week of age on account of concerns about the health, hygiene and safety of the birth mother's accommodation, following a home visit and concern about her possible mental health problems and use of alcohol which she attributed to not being aware that she was pregnant. K was temporarily re-admitted to the special care nursery at the hospital where he had been born, and then placed with short term foster carers arranged through Barnardos on 20 December 2007.
Care proceedings were commenced on 19 December 2007. The birth mother was represented in those proceedings. On 3 April 2008, the Children's Court at Bidura made final orders allocating parental responsibility to the birth mother's sister in Queensland. K moved to reside with her and her husband on or about 5 April 2008. Unfortunately, the relationship between K's maternal aunt and uncle broke down, and the mother's sister informed Community Services that she was no longer able to care for K. As a result, the Director-General resumed care of K on 17 September 2008 and made an application under the (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90, for variation of the orders of 3 April 2008.
On 18 September 2008, K was placed with short term carers in the Sydney area, being the same short term carers with whom he had been placed in late 2007.
In the s 90 proceedings, the Director-General contended that restoration was unrealistic. The possibility of a placement with K's maternal grandmother was explored, but she was unable to care for K. A care plan of 9 October 2008 proposed a long term out of home placement with a view to adoption.
By 10 November 2008, the adoptive applicants had been identified as potential long term carers. On 13 November 2008, the Children's Court at Bidura made final orders allocating parental responsibility for K to the Minister until 18 years of age and also requiring that he have supervised contact with his birth mother at least four times per year and with his maternal aunt when she visited Sydney twice a year.
K transitioned to the care of the adoptive applicants on 11 December 2008, his first birthday, and he has resided with them ever since.
The birth mother filed an application under s 90 in the Children's Court for rescission of the final orders, relying on changes she said she had made to her lifestyle and accommodation, maintenance of regular contact with K, stable employment, and completion of parenting courses. The Director-General opposed her application, retaining concerns as to the mother's ability to care appropriately for K, and observing his positive progress in his placement with the adoptive applicants. In the course of those proceedings, it emerged that D was K's birth father, and he filed an affidavit providing some history of his relationship with the mother. The mother's s 90 application was dismissed on 18 December 2012. Accordingly, the final orders of 13 November 2008 remain in force.
It is noteworthy that this child had a very disruptive first year: a week with his birth mother; about four months with temporary foster carers; about five months with his maternal aunt in Queensland; about three months again with temporary carers; eventually moving, on his first birthday, to the adoptive applicants. For a child with so disrupted a start to life, K has made great progress in the care of the applicants, with whom he has now lived for more than six years, notably by far the longest period of stability of placement he has ever experienced.
He is now in year 2 at school. By all accounts, he is well settled in a good quality K-12 private school and progressing well, both academically and socially. K considers the adoptive applicants to be his family. In reality, he has known no other. No party seriously suggests that this placement should now be disturbed.
Following his placement with the adoptive applicants, K had contact with his birth mother four times per year, increasing to six times in 2012, but returning to four in 2013 once K commenced school, in accordance with the recommendation of a case worker. Contact is arranged informally between the birth mother and adoptive applicants. At present, it occurs on Saturday mornings for about an hour at a park not far from his home. Save that the venue may be becoming boring for K and that contact is sometimes truncated by M's commitments to be elsewhere, it appears to have been entirely satisfactory.
K has had only one or two occasions of contact with his birth father, who was not identified until K was about five years of age. Attempts have been made to arrange further contact, but it has proven difficult to obtain confirmation from the birth father. There has been little contact with K's maternal grandmother or aunt, but this is not attributable to any lack of support for it from the adoptive applicants or Community Services. So far as the evidence reveals, K has no natural siblings.
The Secretary proposes that the child continue to reside with the applicants, that an adoption order be made in their favour, that the child have the name KJF (where K and J are his current first and middle names and F is the family name of the male applicant), and that he have contact with his birth mother six times a year and his birth father twice a year in accordance with adoption plans.
The birth mother does not now propose that K be removed from his current placement, but opposes the legal severance of her parental tie with her child, which would be an inevitable incident of adoption. The case advanced on her behalf was primarily that a parental responsibility order should be made in favour of the applicants rather than an adoption order, and that she should perhaps have contact more frequently than six times a year.
The birth father has not formally consented to the adoption, but did not seek to be joined as a defendant, although he was ultimately joined when the summons was amended to seek a declaration of paternity. He appeared at the hearing in person, although he gave no evidence and made no submissions. However, the documentary evidence indicates that, although he does not formally consent, he recognises benefits in adoption from the perspective of K's interests, and he did not suggest that the current placement should be disturbed; nor did he expressly oppose the making of a consent dispense order or an adoption order.
The main issues for determination are, first, whether adoption would promote the child's best interests and is clearly preferable to any other order that could be made with respect to the care of the child; secondly, whether the arrangements proposed for birth parent contact are proper in the circumstances; thirdly, whether the consent of the birth parents should be dispensed with; fourthly, if so, what name should be approved for the child upon adoption; and, finally, whether the declaration of paternity should be made.
It is worth emphasising, as I must, that these enquiries in an adoption case are concerned much more with the future than with the past. At their core is the best interest and welfare of the child now and in the future, and not the rights or wrongs of past conduct and decisions, whether of the birth parents, the adoptive parents or Community Services. While the removal of K from his birth mother at an early age forms part of the necessary history, the rights and wrongs of the decisions then made are of very limited relevance when it comes to the decision that this Court now has to make as to what are K's best interests in the future.
In making decisions about adoption, the Court must apply the principles listed in the (NSW) Adoption Act 2000, s 8(1), of which the following are relevant in this case:

The best interests of the child both in childhood and in later life must be the paramount consideration;

Adoption is to be regarded as a service for the child;

No adult has a right to adopt a child;

If the child is able to form his or her 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 given due weight in accordance with the developmental capacity of the child in the circumstances;

The child’s given name or names, identity, language and cultural and religious ties should as far as possible be identified and preserved.

Undue delay in making a decision in relation to the adoption of the child is likely prejudice the child's welfare.

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 adequately being 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 interest 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 the considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction beyond reasonable doubt, the requirement that the Court considers 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 [Director-General v Department of Community Services and D [2007] NSWSC 762; (2007) 37 FamLR 595, [25]].
The answer to the question whether adoption is clearly preferable is informed by various other considerations referred to in section 8(2) which may generally be summarised as follows: first, considerations concerning the child, such as his physical, emotional and educational needs, including sense of personal, family and cultural identity and any disabilities, his wishes and other relevant characteristics including age, maturity, level of understanding, gender, background and family relationships; secondly, considerations pertaining to the birth parents, their wishes, the nature of the child's relationship with them, their parental capacity and their attitude to the child and to the responsibilities of parenthood; and thirdly, concerning the proposed adoptive parents, their suitability and capacity to provide for the child's needs, their attitude to the child and to the responsibilities of parenthood and the nature and quality of the child's relationship with them.
These are all also informed by the need to protect the child from physical or psychological harm caused by being subjected or exposed to abuse, ill-treatment, violence or other behaviour or being present while a third person is subjected or exposed to ill-treatment, violence or other behaviour, and, finally, by the alternatives to adoption in the light of the short and long term effects of adoption.
The extent to which it is necessary to consider all of the factors to which I have referred is confined by the cases as conducted and the issues as presented. In this case, when no party has suggested, at least seriously, that the present placement with the adoptive parents should be disturbed, and where the issue really reduces to whether that placement should continue as it is as a foster placement, or under a parental responsibility order, or by way of adoption, there is little need to scrutinise in great detail the comparative parenting capacities of the birth parents and the proposed adoptive parents.
For the purposes of section 23(2)(a), when the application was filed the child was present in the state and for the purposes of section 24(1)(a) the child was less than 18 years of age when the summons for adoption was filed. He is now seven years of age. He has been described as a handsome little boy of four and a half years of age, as he then was, who presents as confident, active, inquisitive and responsive with a rich vocabulary who loves to talk and has advanced verbal skills for his age, accurate in his ability in descriptions of things with excellent receptive language, excellent gross motor skills and hand/eye co-ordination, very good at playing ball games, sporty and athletic, confident in his physical skills and with good fine motor skills.
He has had some serious allergies, but has almost grown out of them. He is in generally good health, although he has asthma; of average height and weight; and strong and healthy, and perhaps as one would expect with a foster mother who is a medical practitioner, up-to-date with his immunisations.
K sees the adoptive applicants who, as I have said, are the only family he has ever really known, as his psychological parents. The section 91 reporter observed:

[K] and his carers present as having a close and loving relationship. Mr [CF] and Dr [AR] were aware that attachment parenting and purposefully worked on assisting [K] to build secure and healthy attachments to them. They were keenly aware of the effects of a number of transitions in his first year and sought to provide a secure and consistent environment for him.
They are loving and affectionate parents and acknowledge [K] with happiness and delight. They really love him and are proud and positive in their parenting approach. Both are very involved with him and have strong connections with him. Mr [CF] and Dr [AR] say that [K] approaches Dr [AR] for nurturing, comfort and to have his needs met. He approaches Mr [CF] more for fun and play but Mr [CF] also takes a nurturing role and Dr [AR] also takes a playful role…[K] was observed to expect positive acknowledgement, comfort and physical nurturing from both Mr [CF] and Dr [AR]. He approached both confident in the knowledge that they would stop to listen to him and that they would understand what he needed. I noticed the care with which both Mr [CF] and Dr R communicated with him, explaining things clearly, listening to his point of view but still providing clear boundaries for his behaviour.
Both were relaxed with him and the family environment is relaxed, warm and responsive. There is no doubt that [K] sees Mr [CF] and Dr [AR] as his parents and is secure and sure in their care. He identifies strongly as part of the family with his close relationships to Mr [CF] and Dr [AR] as well as the Dr [AR's] mother and Mr [CF's] parents...

The child clearly identifies primarily – indeed exclusively – with the adoptive applicants as his family, given their roles in his life to date. The applicant’s family provides a far greater component of his identity than his origins.
The birth father, due to no fault of his own, was not known or identified until about 2012, essentially because the birth mother was reluctant to identify him. Since he has been identified, he has willingly undergone DNA testing which has confirmed his paternity, which he willingly accepts. Since then, he has seen the child, as I have said, once or perhaps twice, but it has proven difficult to obtain confirmation from him of further contact arrangements. As I have also said, he does not suggest that the current placement should be disturbed.
The birth mother opposes the adoption, though she does not seek to disturb the current placement, and proposes that the foster parents have parental responsibility for the child, or that the status quo remain.
Although in the past she has had casual employment as a masseuse and a receptionist, M is presently unemployed. She continues to live in a Housing Commission bed-sitter. Although she has at times in the past expressed ambitions to achieve a restoration of K, reflected in her s 90 application in 2012, in her evidence today she was adamant that she did not propose to remove K from his current placement. I think the true position is that she very much loves K and very much wishes she could have him in her care, but the pragmatic part of her recognises that to change the current arrangements for K in that way would not be in his interests, and that she is not really presently in a position to care for him.

Since December 2008, she has, as I have mentioned, had contact with K four or six times a year for a period of about an hour. She has never exercised parental responsibility for the child. Nonetheless, she has remained very committed to the child, and has been entirely reliable and appropriate in connection with contact, to which she brings appropriate gifts. No criticism has been offered of her attitude to or her conduct in connection with contact, and no complaint has been made that she has sought to undermine the placement in anyway. It is clear that she and the birth parents are quite comfortable in dealing with each other about contact, and about that contact itself.
M has made commendable efforts to improve her parenting capacity, including completing a number of courses in that respect. No doubt the outcome of this is partly reflected in her mature and realistic acceptance that it would not be in the child’s interests to remove him from his current placement.
For the purposes of s 23(2)(b) and 28(1)(a), the adoptive applicants are domiciled in New South Wales, and for the purposes of s 28(1)(b) they are of good repute, fit and proper. According to advice provided by the Commission for Children and Young Peoples 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 on 4 March 2006. I am satisfied that they have been selected in accordance with the Act.
Dr AR completed her Higher School Certificate, holds the degree of Bachelor of Science with Honours in Psychology, and medical degrees and post-graduate medical qualifications, and is a Member of the Royal College of Physicians of the United Kingdom. She has considerable experience as a medical practitioner and, more recently, as a medical advisor for a major pharmaceutical company. Mr CF has completed his Higher School Certificate and holds the degree of Bachelor of Engineering, and has worked as an engineer in the United Kingdom, and as a distribution centre manager in Australia.
Both the adoptive applicants are educated, intelligent and presented as sensitive in their approach to parenting. They have proven by their record over the last several years that they are supportive and indeed proactive in respect of birth parent contact. They have a proven ability to meet the needs of K. This is perhaps most clearly demonstrated by the circumstance that he has settled and flourished as well as he has, despite a very disruptive crucial first year of life.
The evidence addressed an incident occurring late last year in which K, returning from school, communicated that he wanted to kill himself. While, I suppose understandably, a fair bit of attention was given to this in the course of the evidence, not too much weight should be given to the fact that a child has one isolated occasion made such a statement. It is far from unknown for a child, distressed by matters at school, to make statements of that kind. In any event, the evidence demonstrated a sensitive, proactive and thoughtful response, involving discussions with the child’s teacher, and the school counsellor, to provide strategies for K to cope with similar stresses in the future.
Although questions of K's cultural background do not loom large in this case, his birth mother has a Romanian and Austrian heritage, and his birth father a New Zealand heritage. The adoptive applicants are aware of and sensitive to this, and intend to ensure that K learns of his cultural origins. Indeed, they have already made a couple of visits to New Zealand.
The birth mother acknowledges that K is safe in their care. They have the financial resources and appropriate accommodation to provide for K now and until he is independent. Their home is a two storey property, with four bedrooms, two bathrooms, a study, family area, lounge, dining, kitchen, laundry and play area, on a large block, with a garage and fenced swimming fool, in which K has his own room. It seems to me that there is not the slightest doubt that the adoptive applicants are very well positioned to, and have the proven capacity to provide for, K's physical, intellectual and emotional needs.
A significant element in meeting the identity needs of a child who does not reside with his or her birth family is birth parent contact. As I have said, I am satisfied that the adoptive applicants have been and would continue to be supportive of birth parent contact. The proposed contact arrangements are detailed in two adoption plans; one in respect of the birth mother and the other in respect of the birth father, agreed between the secretary and the adoptive applicants.
Although, under amendments made last year to the Adoption Act, non-consenting birth parents can now be parties to an adoption plan, neither in this case has chosen to sign and become a party to the adoption plan. However, regardless of whether they have agreed to the plan, if there is an adoption plan, the court may not make an adoption order unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and proper in the circumstances. Moreover, the arrangements for birth parent contact are relevant to whether an adoption order should be made, because they bear on whether the child's identity needs will be adequately met, and thus whether adoption is in the child's best interests.
The proposed maternal adoption plan provides for a minimum of six occasions of contact annually. That is an increase from the current four, to which contact was reduced when K commenced attending school. The adoptive applicants have indicated that they are prepared to consider more than six, but perhaps more particularly, that they are not only prepared but keen that the six episodes of contact that are fixed would be for longer than they presently are. The birth mother tentatively suggested that perhaps there may be eight occasions per year, but it was, I think, reasonably argued that eight would be a double on the present four, and while that position might be reached, a minimum of six was a reasonable middle ground at this stage.
As I have pointed out on many occasions, adoption plans are not set in stone, and a birth parent retains the ability to apply to the court for contact or for a variation of the adoption plan, if that becomes necessary in the future.
So far as the paternal adoption plan is concerned, it provides for a minimum of two occasions of physical contact per annum. The birth father had nothing to say in opposition to that plan. However, as there has been so little contact to this point, the Secretary did not propose its registration, nor did the father need it.
I am satisfied that the arrangements proposed in the adoption plans are proper in the circumstances, and in the child's best interests, and that they will secure an appropriate minimum level of birth parent contact for K.
I turn then to the central issue, which is whether an adoption order is clearly preferable in the child's best interests to any other order that could be made. This requires identification of the likely effects of adoption, and of the various available alternatives, and their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is or is not clearly preferable to all the others.
In light of the proposals of the parties, the alternatives to adoption that require consideration in this case are allocating parental responsibility in favour of the applicants, or maintaining the status quo with the Minister having parental responsibility and the child in foster care.
It is true, as was submitted on behalf of the birth mother, that an adoption order will probably not affect any overt improvement in respect of the arrangements for the child's residence, education, and care, but that does not mean that it will have no beneficial impact. An adoption order provides certainty and permanence for the child, both directly and indirectly, through the additional certainty it affords the adoptive parents. The possibility of further changes, disruptions and separations is minimised. In these ways, and others, adoption contributes to providing for the child’s stability, security and certainty, and mitigating insecurity. In cases where there has been past turbulence, this can be a particularly telling factor.
Secondly, the child would be raised in a legally recognised family, rather than remaining a state ward for the duration of childhood. He would no longer be in “out-of-home” care but in “in-home” care. The need for departmental involvement and departmental approval for significant decisions such as decisions relating to medical treatment, education and travel would be removed, as would be the stigma potentially associated with being a state ward.
Thirdly, the child's legal status is brought into conformity with reality. Psychologically and residentially, this child is a member of the proposed adoptive family. An adoption order would bring the legal position into line with that. His membership of the family that he regards as his own will be perfected, providing him a sense of security and permanent belonging in that family. Importantly, the child will be a member of that family not only during childhood but for life, a situation which would not pertain under a parental responsibility order.
Fourthly, his legal name would correspond with that of the family with which he lives and identifies, and he is enabled to choose for himself whom he tells of his status, without it being self-evident from his name. True it is that he appears to be known at school at present by the name of the adoptive applicants, but he is registered at the school by his birth name, and unless there is a formal change of name there are many occasions in the course of the years to come in which it will be necessary for him to provide evidence of his identity and legal name, which can lead to difficulty and confusion.
An adoption order would legally sever the parental relationship between the child and the birth parents. However, they are relationships which have been, to date, essentially devoid of parental responsibility, in the legal sense. An adoption order will confirm the child's identity needs, or will fulfil the child's identity needs, by perfecting the membership of the family with which he identifies.
It is true that adoption may carry a risk that a child feels unwanted or abandoned, but that risk is one incidental more to the circumstance that he does not reside with his birth parents than to adoption per se, and arises whether he is in foster care or under a parental responsibility order or adopted. Declining to make an adoption order in favour of some other solution short of a restoration does not remove the risk of a sense of loss or abandonment. What does mitigate that risk is an ongoing relationship with the birth parents, and that the child knows his birth parents, has an understanding of their situations and why they have been unable to care for him, and continues to have a relationship with them. That is addressed, in this case, by the adoption plans.
It is important to recognise that a child's relationship with his birth parents does not cease upon the making of an adoption order. All that ceases is the legal parental relationship, which is effectively transferred to those who are exercising and discharging the legal responsibilities of parenthood. Nothing can take away the biological link that exists, and the emotional and psychological ties, such as they are, will be sustained by birth parent contact.
For the purposes of s 91(1), a report in writing concerning the proposed adoption was provided to the court by GG, dated 30 May 2012, and an updating report by KS on 2 September 2013. GG said:

[K] needs the security and stability of an adoption. He had many changes in the first year of his life, but Mr [CF] and Dr [AR] have worked hard to offset any negative effects and to create a warm and secure environment where he could safely form healthy attachments, and become part of a loving family.
He still has some anxiety about his situation. Any other orders would not provide the security that [K] would be part of Mr [CF] and Dr [AR’s] family for the rest of his life.

KS said that K was placed with Mr CF and Dr AR on his first birthday, and has remained continuously in their care since that time:

I understand that [K] considers Mr [CF] and Dr [AR] to be his family, and the making of an adoption order would legally recognise this.
Whilst [K’s] ties with his biological family will be legally severed, the open relationship Mr [CF] and Dr [AR] have fostered with [M], along with the relationship they endeavour building with [D] will continue building on [K’s] sense of personal identity, and forging a positive view of his birth family.
[K[ would benefit from the making of an adoption order, providing him with the stability and the security for the rest of his life. No other order will afford [K] the security an adoption order would provide.
I hereby recommend that Mr [CF] and Dr [AR] be approved to adopt [K].

In circumstances where there is not a realistic prospect or proposal of restoration, the permanence of an adoption order is not a disadvantage, for the reasons I explained in Adoption of NG (No 2) [2014] NSWSC 680, 83-87. While a parental responsibility order might offer greater flexibility, and the possibility of restoration in the future would be preserved, as there is no realistic proposal or possibility of restoration there is little advantage in preserving that flexibility. Moreover, a parental responsibility order does not offer the other benefits of adoption to which I have referred. I have previously described the status that results as being like living together but not married [Adoption of BS (No 3) [2013] NSWSC 2033, [75]]. Moreover, such an arrangement confers no rights on or responsibilities in respect of the child after he reaches adulthood.
Maintaining the status quo suffers from the same disadvantages as a parental responsibility order, and has no additional advantages. It was suggested by the birth mother that preserving the status quo or making a parental responsibility order did not mean that that would necessarily remain the situation until 18 years of age, because at the age of 12 K could give sole consent to his adoption. But it seems to me that to take that approach, and effectively leave it to K to decide whether or not he wished to be adopted in five years’ time, would contravene the principle in s 8(1)(e1) of the Act, which provides that undue delay in making a decision in respect of the adoption of a child is likely to prejudice the child's welfare, and also that it is not in the interests of K effectively to cede responsibility for making a decision that the court is charged with making about his best interests to him – and potentially place him, who may well then have developed a very good relationship with his birth parents, as well as the adoptive applicants – in the invidious position of having to risk offending one or the other by making a choice.
Accordingly, it seems to me that a parental responsibility order would still leave the child an incomplete member of the household, and where restoration is not a desirable outcome, the preservation of the possibility is more a disadvantage than an advantage. This is in no way to demean the significance of M's ongoing commitment to and contact with the child, but to recognise that it is in K's interests that his legal parents should be those with whom he identifies as his psychological parents, and who are practically discharging the responsibilities of parenthood, without having the associated legal rights of parenthood.
Accordingly, I am satisfied that adoption is clearly preferable, in the best interests of the child, than any other action that could be taken by law in relation to his care, and that the best interests of the child will be promoted by adoption by the proposed adoption parents. It follows that, subject to satisfaction of the formal requirements, and dispensing with the consent of the birth parents, I would make an adoption order in favour of the adoptive applicants.
For the purposes of s 87, the application is made by the Secretary. The Minister, who has parental responsibility, has, by an authorised delegate, consented. For the purposes of s 88, the only persons whose consent to the adoption is required and has not been given are the birth parents. I am satisfied that the requisite notice of the application for the order containing the prescribed particulars has been given to them. Both have been joined as defendants to the proceedings, and are before the court.
An adoption order can be made only if their consent, not having been given, is dispensed with. Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited circumstances. 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 reflects a policy decision that once a child has, by judicial decision, been removed from his or her parents and placed in permanent out-of-home care, the rule that legal parental relationships are 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 [Adoption of NG (No 2), [105]].
For the purposed of s 59, the birth parents have been provided with a copy of the mandatory written information, and have been given the requisite notice of the application for a consent dispense order. Both have been joined as a defendant, and appeared in the proceedings. For the purposes of s 67(1)(d), the applicants are authorised carers and the child, plainly, has established a stable relationship with them. As I have concluded that making an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child 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. The conditions for making a consent dispense order in respect of each birth parent are therefore satisfied, and accordingly I will make an order pursuant to s 67(1)(d) that the consents of the birth father and mother be dispensed with.
The adoptive applicants propose that upon an adoption order being made the child be known, as I have said, as KJF. Neither the birth mother nor the birth father oppose such an order being made, in the event of an adoption order being made, and I am satisfied that it is plainly in the child's interests that his surname accord with the name of what will be his legal family, and by which he is already in many quarters known.
That leaves the question of paternity. The Secretary seeks a declaration, pursuant to (NSW) Status of Children Act 1996, s 21(2), that D is the biological father of K, and an order pursuant to (NSW) Births, Deaths and Marriages Registration Act 1995, s 19(2), for the inclusion of those details in the register. DNA evidence plainly establishes that D is K's father. D, as I have said, accepts that, and informed the court that he did not oppose the declaration of paternity being made. Accordingly, I will make a declaration and order to the effect sought. This will enable K, in the future, to trace his heritage, should he wish to do so.

The Court therefore declares that:

Pursuant to (NSW) Status of Children Act 1996, s 21(2), D is the father of K;

The Court orders:

Pursuant to (NSW) Births, Deaths and Marriages Registration Act 1995, s 19(2), it be included in the register of births, deaths and marriages that D is the father of K;

Pursuant to (NSW) Adoption Act 2000, s 67(1)(d), the consent of the first defendant, M, be dispensed with; and

Pursuant to (NSW) Adoption Act 2000, s 67(1)(d), the consent of the second defendant, D, be dispensed with.

The adoption of the child K in favour of the adoptive parents, Mr CF and Dr AR, and approves the name F as the surname and KJ as the given names of the child.

Pursuant to (NSW) Adoption Act 2000, s 50(3), the amended maternal adoption plan dated 10 November 2014 be, and is hereby, registered.

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Decision last updated: 20 March 2015

Medium Neutral Citation:	Adoption of KH [2015] NSWSC 274
Hearing dates:	3 February 2015
Date of orders:	03 February 2015
Decision date:	03 February 2015
Jurisdiction:	Equity Division - Adoption List
Before:	Brereton J
Decision:	Declaration of paternity; amendment to birth certificate to include birth father ordered; consent dispense orders made; adoption order made; adoption plans registered.
Catchwords:	FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – where no realistic prospect of restoration of child to care of birth parents – where preserving the possibility of restoration would thus contravene the spirit of adoption principle (e1) – where proposed adoptive parents in a better position to facilitate contact with birth parents than the Department – where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them – held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether consent of birth parents ought to be dispensed with – as the making of an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made.
Legislation Cited:	(NSW) Adoption Act 2000, s 8(1), s 8(1)(e1), s 8(2), s 23(2)(a), s 23(2)(b), s 24(1)(a), s 28(1)(a), s 28(1)(b), s 28(3), s 28(4), s 50(3), s 59, s 67(1)(d), s 87, s 88, s 90(3), s 91, s 91(1) (NSW) Births, Deaths and Marriages Registration Act 1995, s 19(2) (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90 (NSW) Status of Children Act 1996, s 21(2)
Cases Cited:	Adoption of BS (No 3) [2013] NSWSC 2033 Adoption of NG (No 2) [2014] NSWSC 680 Director-General v Department of Community Services and D [2007] NSWSC 762; (2007) 37 FamLR 595
Category:	Principal judgment
Parties:	Secretary, NSW Department of Family and Community Services (plaintiff) M (first defendant) D (second defendant)
Representation:	Counsel: T Stevens (crown) M Fallon (first defendant) D (in person) (second defendant) Solicitors: Crown Solicitor’s Office (crown) Rowley and Associates (first defendant)
File Number(s):	A42/2014