Adoption of N and J

[2017] NSWSC 662

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of N and J [2017] NSWSC 662
Hearing dates:	23 May 2017
Date of orders:	23 May 2017
Decision date:	26 May 2017
Jurisdiction:	Equity - Adoptions List
Before:	Stevenson J
Decision:	Consent dispense orders made; adoption orders made; adoption plan registered
Catchwords:	ADOPTION – application for adoption by foster carers – where birth mother opposed adoption – where birth mother did not seek to disturb current placement of children – where birth mother contended that an order for permanent placement of children with applicants sufficient to promote children’s interests – where birth mother anticipated possible restoration of children to her care – where no realistic prospect of restoration – where children have expressed wish to be adopted
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 Re TVK [2012] NSWSC 1629
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services (Plaintiff) O’D (Defendant)
Representation:	Counsel: T Stevens (Plaintiff) R Lee (Defendant)   Solicitors: Crown Solicitor’s Office NSW (Plaintiff) CBD Legal (Defendant)
File Number(s):	A100/2016

Judgment

1. On 23 May 2017, on the application of the Secretary, NSW Department of Family and Community Services, I made orders concerning the adoption by a married couple, who I will identify as Mr and Mrs J, of two children who I will identify as N and J.

2. Those orders were to the effect that:

1. pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) (“the Act”), the consent of the children’s birth mother, (who l will refer to as Ms O’D, and who opposed the making of an adoption order), N’s birth father (who did not), and J’s birth father (who has died) be dispensed with;

2. pursuant to s 72(2) of the Act, the requirement to give notice of the application for the adoption order and the consent dispense order to J’s birth father be dispensed with;

3. the children be adopted by Mr and Mrs J;

4. Mr and Mrs J’s surname be approved as the surname of each child and that particular given names (which include their birth surname) be approved as their given names; and

5. pursuant to s 50 of the Act, a Maternal Adoption Plan (signed earlier on 23 May 2017 by each of the adopting parents) be registered.

3. I said that I would give my reasons later. These are those reasons.

Background

4. N was born on 24 July 2006 and is now 10 (almost 11).

5. J was born on 30 April 2008 and has just turned nine.

6. N and J were removed from the care of Ms O’D in December 2009 following receipt by the Department of Family and Community Services of risk of harm reports arising from, amongst other things, Ms O’D’s reported alcohol abuse.

7. In November 2010, following a number of temporary placements, the children were placed into the care of Mr and Mrs J, as authorised carers. N was then four and J was two.

8. The children have been under the care of Mr and Mrs J since then.

9. On 16 November 2011, the Children’s Court made final orders allocating parental responsibility to the Minister until the children turned 18.

10. By summons filed on 4 August 2016, the Secretary sought orders to the effect of those that I made on 23 May 2017.

11. Ms O’D appeared by counsel to oppose the making of the orders.

The formal requirements under the Act

12. It was common ground that the formal requirements of the Act have been met, and in particular that:

1. notice of the adoption application was served on the birth parents (s 88(1)(a) and s 72(1));

2. the children were present in NSW when the application was filed (s 23(2)(a));

3. the proposed adoptive parents live in NSW (s 23(2)(b) and s 28(1)(a));

4. the children were less than 18 years of age at the time that the summons was filed (s 24(1)(a));

5. the proposed adoptive parents are of good repute and are fit and proper persons (s 28(1)(b));

6. the proposed adoptive parents meet the age requirements, as both Mr and Mrs J are 46 years old (s 28(3));

7. the proposed adoptive parents have been in a committed relationship since 2008 and have thus lived together for more than two years (s 28(4));

8. the Secretary consents to the adoption order being made (s 87);

9. Ms O’D and the surviving birth father have both been provided with the mandatory written information in regard to the adoption (s 59); and

10. a report in writing concerning the proposed adoption (by a Contracted Adoption Assessor, Ms Penny Haskins) has been provided to the Court (s 91(1)).

The nature of an adoption

13. The nature of adoption has been described in the “Mandatory Information on Adoption” prepared by the Department as follows:

“Adoption is legal process whereby the legal rights and responsibilities of being a parent/s, usually biological parents, are transferred to another parent/s, that is adoptive parents.”

14. Adoption is a process by which a child’s legal relationship with his or her natural parents is extinguished and replaced by a similar relationship with another adult or adults. It has been described by the Royal Commission on Human Relationships as “a process by which society provides a substitute family for a child whose natural parents are unable or unwilling to care for the child”.

The applicable legal principles

15. The paramount consideration is “the best interests of the child concerned” (ss 7(a) and 8(1)(a) of the Act). The Court must not make an adoption order unless “the best interests of the child will be promoted by the adoption” (s 90(1)).

16. The Act makes clear that adoption is to be regarded as a service for the child concerned and to ensure that adoption law and practice assists the child to know and have access to his or her birth family and cultural heritage (s 7(b) and (c)).

17. Section 8 of the Act sets out the principles to be applied when making an adoption order. They include, in addition to the above matters, the requirement that the child be given an opportunity to express his or her own views about the matter (s 8(1)(d)) and:

1. the child’s age, maturity, level of understanding, background and family relationships (s 8(2)(b));

2. the child’s emotional needs including the child’s sense of personal, family and cultural identity (s 8(2)(c)); and

3. the relationship the child has with his or her parents and siblings (s 8(2)(f)).

18. An adoption order must not be made unless such an order is “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)).

Uncontroversial matters

19. There was no dispute before me that, following their placement with Mr and Mrs J in 2010, the physical, emotional and physiological needs of N and J have been well met.

20. Thus, in her s 91 report, Ms Haskins gave the following evidence, which was not challenged:

“[Mr and Mrs J] are loving and nurturing parents who have always shared parental tasks. For instance, [Mr J] does all the cooking for the family, while [Mrs J] manages their school and extra curricular activities, although [Mr J] helps with drop-offs and pick-ups. [Mr J] is a gentle and nurturing father, while [Mrs J] is less affectionate but is very funny, active and interested in the boys’ thoughts and activities. Both have demonstrated their ability to be flexible and sensitive and to set appropriate guidelines for [N] and [J]’s behaviour and activities that take into account their previous experiences and current diagnosis of ADHD. They demonstrate the capacity to individualise [N] and [J] and they do not appear to hold unrealistic expectations of them. For instance, they have been very active in supporting [N] and [J] at school and have worked in conjunction with their teachers to encourage them to develop social skills and appropriate independence. [Mrs J] has sourced extra tuition to help [N] with spelling and reading and she also sets aside extra time herself to help him in these areas.

[Mr and Mrs J] have the capacity to take delight in even very small improvements in behaviour or in schoolwork; and they always emphasise the positive rather than concentrate on any gaps. [Mr and Mrs J] are conscious that both boys can act impulsively and they have developed suitably strict but benevolent behavioural boundaries that are consistently re-enforced at home.

[Mr and Mrs J] have an understanding that [N] and [J] have a range of behaviours that are influenced by their genetic make-up as well as by their early life experiences. This has meant that they have had to develop a range of parental responses to suit, for instance, [N’s] anxiety as well as both boys need for consistency and routine. [N] in particular has been a guarded little boy and securing his trust has been a long journey for [Mr and Mrs J]. They have though had the advantage of [Mrs J’s] professional experiences and training, which has provided them with both an informed context within which to understand the boys’, and particularly [N’s], behaviours and reactions.

…

In conclusion, [Mr and Mrs J] are mature, intelligent, insightful and compassionate individuals with tolerant general attitudes. While [Mr J] is relaxed and easy, [Mrs J] is a more guarded and complex personality but she is also very funny, warm and interested and engaged in a wide range of contemporary social issues. They share a strong Christian ethos that guides their thoughts, behaviours and responsibilities. Their marriage is strong and committed and characterised by open communication, respect and an understanding and respect for the other’s strengths and vulnerabilities. They have a demonstrated ability to be resourceful and adaptable and they are experienced parents who have very positive parenting ideas derived from their own backgrounds, their understanding of child development and childhood trauma, as well as a demonstrated capacity to understand the point of view of children.”

21. Ms Haskins also said:

“[I]t is my professional opinion that [Mr and Mrs J] have demonstrated a wonderfully robust capacity to parent [N] and [J] in a nurturing and positive manner and they are certainly developing into affectionate, warm, funny and happy little boys in their care. [Mr and Mrs J] are incredibly proud of the boys’ achievements during the last five years and they have the capacity to take great pleasure in even the smallest improvement in behaviour or new skill gained. They have demonstrated their capacity to meet all of [N] and [J]’s health, social and educational needs within their family unit as well as their commitment to maintaining contact with their birth families.

[N] and [J] demonstrate an easy and affectionate relationship with [Mr and Mrs J] and they are able to be gently guided and disciplined by them and they are truly comfortable in their care.

[Mr and Mrs J] have built a wonderfully supportive and warm relationship with the boys’ birth mother…and they are willing to re-connect with other birth family members if and when they receive any request to do so.”

22. Ms O’D did not dispute any of these matters.

23. Indeed, she said in her affidavit:

“I do not want to upset the current placement of the children.

I understand that they are stable and happy in their current placement. I do not wish and nor do I support a change of foster care placement. I do not believe that this will occur if the adoption does not go through. The children do not seem to feel insecure in their current placement.”

24. In cross-examination, the last thing that Ms O’D said was:

“They are happy where they are at the moment. I don’t want to change that…”.

Ms O’D’s opposition to an adoption order

25. Nonetheless, Ms O’D opposed the making of an adoption order.

26. At the preliminary hearing on 29 March 2017, Ms O’D told me that she believed that “adoption is just pushing it too far” because “it’s very final”.

27. She said that Mr and Mrs J are “strangers to my children” and that “they may be looking after them but they are not blood”.

28. I am not able to accept that this is a fair view of the reality here. Of course, Mr and Mrs J are not of the same “blood” as N and J; but they are most certainly not “strangers” to them.

29. In her affidavit sworn just before the final hearing, and at the hearing, Ms O’D explained her opposition to the making of an adoption order by reference to three matters.

Parental responsibility order

30. First, Ms O’D contended that, although she accepted that the children should remain in the care of Mr and Mrs J, there should not be an adoption order but, rather, an order allocating to Mr and Mrs J the parental responsibility of the children under s 92 of the Act.

31. Thus, in the written submissions made on behalf of Ms O’D it was stated:

“Making a parental responsibility order, is favourable [sic] to an adoption order, as there are already vulnerable relationships at present between the children and their birth family, and in particular with no current contact occurring between the children and their sibling, [D]. It is noted that [D] also has a child of his own, and in addition that [D] and [J] are full siblings.

It is further submitted that in making of [sic] a parental responsibility order rather than an adoption order would ensure that the sibling relationship between the children and their brother [D] was considered important and not severed. Making an adoption order rather than a parental responsibility order or no order, may jeopardise the children’s birth family relationships in particular where the maternal grandparents and [D] have not been exercising contact due to the proposed adoption. If the adoption order was made, it is submitted that it will cement and bind the current ‘no contact’ between members of the maternal family, other than the mother, with the children.”

32. Implicit in this submission was the proposition (made explicit elsewhere in submissions) that “the proposed adoptive parents are not committed to birth family contact”.

33. I do not accept this.

34. Ms O’D met Mr and Mrs J in 2014 (by which time N and J had been in Mr and Mrs J’s care for over three years). One reason for the delay in contact between then and the removal of N and J from Ms O’D’s care in 2009, was that Ms O’D had been serving a time of imprisonment.

35. Since then, Mr and Mrs J have arranged for N and J to ring Ms O’D regularly on significant occasions (such as birthdays and mother’s day) and for N and J to have face-to-face contact with Ms O’D four times a year.

36. Ms O’D accepted that, although she would wish to see the boys more often, and for greater periods of time, these arrangements had always occurred on schedule and never been cancelled.

37. Mr and Mrs J live in Wagga Wagga. Ms O’D lives in Junee. In recent years, Ms O’D has not owned a car. This has meant that Mr and Mrs J have travelled from Wagga Wagga to Junee (with the boys) so that Ms O’D could see the boys in Junee or, more often (because, I was told, there are few age appropriate entertainment venues in Junee) back in Wagga Wagga; necessitating Mr and Mrs J driving Ms O’D to Wagga Wagga and then back to Junee: a round trip of some 200 kilometres.

38. There have been some difficulties with some aspects of this contact. Some of these difficulties have been due to issues that Ms O’D has with alcohol consumption (I will return to this below) and because of other challenges that Ms O’D presents; no doubt born of the troubled circumstances of her life (the details of which I need not set out) that have led to her now no longer having the care of her children.

39. Overall, I am comfortably satisfied that Mr and Mrs J are (as Ms Stevens, who appeared for the Secretary, submitted) wholly committed to maintaining a connection between the children and Ms O’D.

40. Ms O’D expressed to me her concern that her contact with N and J will be “nullified” if an adoption order is made.

41. I do not doubt that this is a genuine apprehension that she has. But I am confident that there is no basis for it.

42. In any event, the Maternal Adoption Plan that Mr and Mrs J signed on 23 May 2017, and which has now been registered (see [2(5)] above) makes very specific provision for ongoing contact.

43. It is true that the children do not currently have any contact with their sibling D (who is the full brother of N and the half-brother of J) or their maternal grandparents (that is Ms O’D’s parents). But that is because of decisions that those parties have made not to have contact with N and J. It is not necessary for me to go into details of the circumstances that have led to those parties making those decisions. I hope that they will, in time, reconsider.

44. But it is clear that this circumstance has not come about because of any want of effort by Mr and Mrs J; nor of any wish of N and J not to see D or their maternal grandparents.

45. It is clear to me that Ms O’D loves N and J, and that they love her. It is also clear that Mr and Mrs J recognise this and have done, and will continue to do, all they can to promote and preserve this vital relationship.

Defer final adoption question until children are older

46. Second, in the written submissions made on behalf of Ms O’D, it was stated:

“The [birth] mother also puts forward another option, that is to 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.”

47. Mr Lee, who appeared for Ms O’D, referred to s 55 of the Act which provides that the Court must not make an adoption order in relation to a child who is 12 years or more, and who is capable of giving consent, unless, amongst other things, such consent is given.

48. I did not see this as a reason to defer making a decision about the question of adoption.

49. Both N and J have expressed a firm view that they wish to be adopted by Mr and Mrs J.

50. Thus, Ms Haskins reported that both N and J had told her that they wanted to be adopted so that “we can stay here forever”.

51. Ms Haskins concluded that she was “absolutely satisfied” that both N and J “have an age appropriate understanding of why they were removed from [Ms O’D’s] care” and that they both have a “basic understanding of adoption”.

52. Ms O’D gave evidence that very recently, N had said to her that he did not wish to be adopted.

53. In relation to that incident, Mrs J said in her recent affidavit :

“At the conclusion of the contact visit [of 21 April 2017] I observed [Ms O’D] put her arm around [N’s] neck and she whispered something into his ears. [N] told [Mr J] and myself later that [Ms O’D] said to him ‘you don’t want to be adopted do you [N]?’. Following the visit and after we drove [Ms O’D] back to her house, [N] said to me words to the effect ‘I don’t want to upset anyone about the adoption’ and he also said words the effect ‘That’s why you don’t let kids decide’.”

54. I accept this evidence.

55. I am satisfied that, despite what N said to Ms O’D (perhaps in an endeavour to avoid a confrontation with someone he loves) both he and his younger brother do wish to be adopted by Mr and Mrs J.

56. N’s observation that “[t]hat’s why you don’t let kids decide” showed remarkable insight on his part.

57. I saw no reason to defer consideration of the question of adoption until N or J turn 12.

Possible restoration

58. The final reason given by Ms O’D for not making an adoption order now was her hope, which I am sure she holds genuinely, that one day N and J may be restored to her care.

59. Thus, Ms O’D said in her affidavit:

“I anticipate and would like to make a section 90 application [under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)] to show a change of circumstances. I understand that I cannot make this application in light of the proceedings.

I am currently half way through completing a community service order, which requires me to work with the Salvation Army. I enjoy my community work thoroughly. I am keeping out of trouble and taking appropriate steps in rehabilitation.

I am hopeful that in the future I will be making a section 90 application to get my children home. I have now had a section 90 explained to me and I understand that I can attend to collating my own evidence to show change of circumstances, including attending on my own accord and providing drug and alcohol urinalysis screening.”

60. To demonstrate her commitment to that goal, Ms O’D told me that she has undertaken a number of parenting courses.

61. In her evidence before me, Ms O’D said that she expected that “they will eventually come home to their mum”.

62. I do not see this as a realistic possibility.

63. For various reasons, not all of which are necessary for me to set out, Ms O’D faces many challenges in her life.

64. One of those challenges relates to her consumption of alcohol.

65. Ms O’D accepts that, since the death of her son, R, in infancy, several years before the birth of N and J, she has had significant alcohol problems.

66. Ms Haskins reported that Ms O’D had said to her “on many occasions that she is an alcoholic and that she really is not particularly interested in rehabilitation”.

67. There have been incidents, during, and leading to contact between Ms O’D and the children where Ms O’D’s use of alcohol has caused difficulties.

68. In cross-examination before me, Ms O’D agreed that her history with alcohol consumption was a relevant matter to the question of adoption.

69. But Ms O’D did not agree that her alcohol history was relevant to her parental capacity. She said “I was always a good mother whether I had had a drink or not”.

70. In the same context, she stated that the boys “should never have been removed” from her care.

71. This evidence indicates to me that Ms O’D (perhaps like many others who use alcohol to mediate the problems they encounter) lacks insight as to the effect her use of alcohol may have on her ability effectively to attend to the needs of her children, to care for them and to protect them during the times she uses alcohol.

72. Nonetheless, Ms O’D appeared to acknowledged the reality of her situation in this passage from her affidavit:

“I understand that at present, restoration may not be an immediate option, as I have to show a significant change of circumstances to satisfy the high threshold of Department of Family and Community Services. But I want the option and the door left open for restoration in the near future. I would like my children to be at home with me. My children have always been much loved and protected. At present, I cannot offer them ‘nannies’ and ‘private school’, but I can offer them a safe environment, stability, security, family and love. I have not abandoned my children. I do not want them to feel abandoned by an adoption order.”

73. Earlier, at the preliminary hearing on 29 March 2017, Ms O’D agreed that it was in the best interests of N and J that they stay with Mr and Mrs J and then said:

“Yes. Look, I’d love for them to come home but I don’t see that happening. I’ve got too much against me.”

74. In my opinion, the latter comment reflects the reality of the situation in which Ms O’D finds herself.

75. I accept the submissions of Ms Stevens that, in these circumstances, there is no realistic prospect that Ms O’D will be in a position to have the children restored to her care.

76. I see the situation as akin to that described by Brereton J in Adoption of NG (No 2) [2014] NSWSC 680 at [83]:

Once an adoption order is made, the possibility of restoration is practically foreclosed, and future decision-making in respect of the child is vested in the adoptive parents. Because of the permanency of an adoption order, and the general preference based in human nature and experience that, where practicable, children are best raised by their birth parents, the Court would not likely make an adoption order if there were a realistic prospect of the child being restored to the care of one or both of his birth parents. However, if there is no real prospect of restoration, then the disadvantages of the permanent nature of an adoption order are minimal, and no greater than those of natural legal parenthood; and the advantages of permanency are considerable. Future contingencies in relation to contact can still be addressed and accommodated after an adoption order is made [Re TVK [2012] NSWSC 1629].”

Conclusion concerning Ms O’D’s suggested course of action

77. For these reasons, I was not persuaded that any of the matters advanced on behalf of Ms O’D provided a reason to not make an adoption order, were such an order otherwise appropriate.

Whether the making of an adoption order is clearly preferable in the best interests of each of the children than any other action that could be taken

78. The conclusion to which I came was that the making of an adoption order was not only appropriate, but clearly preferable, in the interests of N and J, to any other action that could be taken.

79. This was Ms Haskins’ conclusion, and I agree with it.

80. Ms Haskins said:

“I have concluded that an adoption order is the only order that offers [N] and [J] the absolute security that they need to grow up and make sense themselves, of their past experiences and very difficult family dynamics, without being made to feel guilty about, or responsible for, past events or adults feelings. It is the only order that gives [Mr and Mrs J] the complete security to support [N] and [J] to do this, as it protects them from future legal challenges to their right to parent these boys. While I do not doubt that any legal challenge would be ultimately unsuccessful, the disruption it would bring could potentially be devastating for [N] and [J], particularly if a challenge were to coincide with what we know can be very challenging ages for children with their histories – mid teens for example. At these times, legal uncertainty is an important parental tool as they seek to navigate a return to a more stable future.”

Name change

81. The Secretary sought an order that I approve changing N’s and J’s name so that the surname would be the same as that of Mr and Mrs J; but that their birth surname would be retained as one of their given names.

82. In Adoption of NG Brereton J observed at [110]:

“Upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child's family name accords with that of his or her legal family. Indeed, children see that outcome as one of the most significant indicia of the sense of ‘belonging’ that adoption is intended to nurture, and not to do so would detract from the benefits of adoption.”

83. The evidence before me established that both N and J wish to have the same surname as their adoptive parents so as to avoid difficulties which they said they had experienced at school in explaining to their school friends why their name was different from that of their “parents”.

84. Ms O’D opposed such a name change.

85. The written submissions made on behalf of Ms O’D stated:

“The [birth] mother opposes the name change. The mother states that the children are known as ‘[O’D]’. It is submitted that in today’s society, it is common to see children and their parents having different surnames. There is a high percentage of children at school who have different names to at least one of their parents, for example a primary carer who is a single parent.”

86. I do not know that a “high percentage” of children at school have different surnames than one of their parents (there is certainly no evidence before me that this is so). Even if it is the case, there would doubtless be numerous and differing reasons to explain why it is so.

87. What is clear is that N and J have expressed a clear wish (including to Ms Haskins) that they have the same surname as Mr and Mrs J.

88. In any event, as I have stated, the names proposed, and which I have approved, continue to incorporate their birth surname.

89. Ms Stevens submitted, and I accept, that Mr and Mrs J’s proposal that N and J be so named, is an emblem of Mr and Mrs J’s commitment to preserving the original and essential connection between the children and Ms O’D and (hopefully), through her, to their birth family. It shows that Mr and Mrs J are not only supporting the expressed wishes of N and J; they are also seeking symbolically to maintain the birth-family ties of the children.

Dispensing with the consent of the birth parents

90. 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 (s 90(1)(d)).

91. The Court may dispense with consent if, relevantly, application has been made to the Court for the adoption of a child by the persons who are authorised carers of the child and the child has established a stable relationship with those carers and the adoption of the child by those carers will promote the child’s welfare (s 67(1)(d)).

92. I was satisfied that those matters had been established in this case and that I should make the adoption order, despite Ms O’D’s objection to it. Accordingly I made an order dispensing with her consent.

93. As N’s birth father did not oppose the adoption, and as J’s birth father has died, I also dispensed with their consent.

Conclusion

94. For those reasons, on 23 May 2017 I made orders to the effect set out at [2] above.

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Decision last updated: 26 May 2017