Adoption of M (Anonymised)
[2021] NSWSC 354
•14 April 2021
Supreme Court
New South Wales
Medium Neutral Citation: Adoption of M (Anonymised) [2021] NSWSC 354 Hearing dates: 23, 24 March 2021 Date of orders: 26 March 2021 Decision date: 14 April 2021 Jurisdiction: Equity - Adoptions List Before: Sackar J Decision: See paras [25], [31]
Adoption orders made
Catchwords: FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether consent of birth parents ought to be dispensed with — Change of name
Legislation Cited: Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: n/a
Category: Principal judgment Parties: The Secretary, NSW Department of Communities and Justice by his delegate Principal Officer, Adoptions, Barnardos Australia (plaintiff)
G K W (first defendant)
S C J (second defendant)Representation: Counsel:
Solicitors:
R Harper (plaintiff)
NSW Crown Solicitors (plaintiff)
Birth mother (self represented)
Birth father (self represented)
File Number(s): 2020/04218 Publication restriction: Nothing which will identify the parties
Judgment
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These proceedings concern M who was born on 1 November 2012.
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Application was made for orders under the Adoption Act 2000 (NSW) (“Adoption Act”), by the Secretary, NSW Department of Communities and Justice by his delegate, the principal officer of Barnardos Australia in relation to the child in favour of the proposed adoptive parents.
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The birth parents oppose the making of the orders sought.
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The matter was originally fixed for hearing before me for two days on 15 and 16 March 2021. However upon the birth parents’ application I adjourned the hearing to the following week to 23 and 24 March 2021.
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On 26 March, having heard the evidence and submissions, I made the orders requested. I indicated I would subsequently publish my reasons. These are they.
Background facts:
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Community Services first became involved with the birth family on 18 December 2003 after a risk of harm report was received in relation to the daughter of the birth mother who was born on 24 December 2001.
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A further 11 risk of serious harm reports were received between December 2003 and October 2016. The reports concerned drug use and domestic violence between the parents.
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Both birth parents have criminal records. Recently the birth father was released from his most recent incarceration on 8 March 2021.
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On 28 October 2016 the birth mother attended Wollongong Police Station and reported that M had been sexually assaulted by the birth father. M is reported as having made certain statements to police consistent with such assault.
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On 29 October 2016 M was taken into care.
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On 16 December 2016 the Children’s Court made a finding that M was a child in need of care and protection pursuant to s.72 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
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On 28 July 2017, the Secretary filed a Care Plan which assessed there was no realistic possibility of restoration to either of the birth parents.
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An assessment made at the time by Dr Dee Neveling, a psychologist, did not recommend M be restored to the care of the mother.
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During 2017, M had been in the care of her maternal uncle and aunt.
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M was placed (for a second time) with the proposed adoptive parents on 16 January 2018 and M has lived continuously with them since that date.
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On 28 September the Children’s Court made a final order that M be placed under the parental responsibility of the Minister until she attains the age of 18 years.
The Evidence:
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There was a good deal of evidence filed in the proceedings. In particular detailed reports were received from Ms Deborah Willick 16 December 2020 of the Delegate, Ms Lauren Hutchinson and the proposed adoptive parents.
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The birth father filed an affidavit and the birth mother submitted a bundle of materials which contained many handwritten notes of hers and an unsworn affidavit.
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The Secretary was represented by counsel. The birth parents appeared in person.
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One or other of the birth parents cross examined Ms Willick and the proposed adoptive mother. No other person (including the birth parents) gave oral evidence or was required for cross examination.
Consideration:
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The first question for consideration is whether adoption is clearly preferable in the best interests of the child than any other option that might be taken. In my view adoption is the clearly preferable course here.
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First, restoration is not a viable option here. Neither parent in my view (leaving aside the absence of any formal application for restoration), by reason of their background and behaviour, has the requisite parenting skills to care for M and as I have said neither parent alone or in combination has ever made a formal application for restoration. For those and other matters I will come to in due course restoration is not in M’s best interests.
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The proposed adoptive parents have had M continuously in their care this time since January 2018 (they of course also had her in their care for about a year from 2016 to 2017). They have, I am satisfied, created a trusting, loving, stable and safe environment in which M can grow up. I am satisfied they as adoptive parents have the necessary skills and commitment required. They have demonstrated a capacity to care for M in all relevant respects. I accept the evidence of Ms Willick in particular that M is both happy and thriving in the care of the adoptive parents.
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Although she is very young, M, I am satisfied, has some understanding of and is entirely in agreement with the notion of adoption by the adoptive parents.
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I should indicate, having carefully considered the materials filed, that all formal requirements of the Adoption Act have been met in relation to the adoptive parents and otherwise. In all of the circumstances I should dispense (although a serious step) with the consent of the birth parents to the orders proposed and I also consider the proposed change of name appropriate.
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In the materials before the Court there are numerous references to allegations the birth father had in the past sexually assaulted or abused M. The detail of those allegations is set out at [26] to [42] (of the submissions). In those paragraphs it is clear that M has made these allegations over the years to the proposed adoptive mother, in the presence of the maternal grandmother (who has not filed any evidence in the proceedings) and to police officers in Wollongong on perhaps two occasions.
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I should note that I have not been asked to make any findings about such allegations and the birth father strenuously denies such conduct. The birth mother supported or appeared to support the birth father in his denial of the allegations. It is an understatement to describe the allegations as extremely serious. I am mindful of s.126 of the Adoption Act but equally of the appropriately exacting requirements of s.140 of the Evidence Act 1995 (NSW), however it is clear that M has over the years made statements which if true support the truth of the allegations. I also accept that these statements have informed the structure and scope of the proposed adoption plans. In my view her concerns and anxieties are entirely legitimate matters to be taken into account especially in terms of her wishes about non-engagement with her father.
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I should mention in particular one of the incidents referred to in the materials in relation to this matter. On 28 October 2016, the birth mother attended Wollongong Police Station and reported concerns that M had been sexually assaulted by the birth father. This is referred to in the affidavit of Ms Hutchinson at [4].
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In the materials tendered by the birth mother in the proceedings to which reference has already been made there are some handwritten statements. There are a number entitled “Affadavit” and although undated one expressly refers to an occasion in 2016 at Wollongong Hospital. It records “I voluntarily took M there to be examined. My request was that M have a rape kit done. The examination was not performed. The examination performed was a general examination”. As I have already commented neither birth parent was cross examined but it is not unimportant that the mother herself appears to have made the particular request.
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That said although I do not propose to make any positive findings about the allegations, on all of the materials I have seen I am not prepared to find the allegations untrue.
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In my view therefore I believe that the Adoption plans are entirely appropriate and I would approve them.
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Decision last updated: 15 April 2021
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