Adoption of Ng (No 2) - [2014] NSWSC 680

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of NG (No 2) [2014] NSWSC 680
Hearing dates: 13, 14, 15 May 2014
Decision date: 28 May 2014
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Consent dispense orders made; adoption order made; adoption plans registered.

Catchwords: FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether adoption order clearly preferable to any other order that could be made with respect to care of child - where no realistic prospect of restoration - where preserving possibility of restoration would contravene spirit of adoption principle (e1) - where due to history of prior placement instability child has accentuated needs of security and permanency - where adoption would serve child's identity needs better than any potential alternative as it would confirm child's identity with psychological family while preserving opportunity to know birth parents and to understand why does not live with them - where adoption plans make inadequate provision for birth parent contact - held, that making of an adoption order, in conjunction with orders securing birth parent contact, is clearly preferable to any other order that could be made with respect to care of child
FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether consent of birth parents should be dispensed with - as making adoption order would promote child's welfare, necessarily also in child's best interests to make consent dispense order so as to allow the adoption order to be made
Legislation Cited: (Cth) Family Law Act 1975, s 64B
(NSW) Adoption Act 2000, s 8(1), s 8(2), 23(2), s 24(1)(a), s 28, s 50, s 59, s 67(1)(d), s 72, s 87, s 88, s 90(1), s 90(2), s 90(3), s 91, s 101.
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
Cases Cited: Adoption of BS (No 3) [2013] NSWSC 2033
Adoption of SRB, CJB and RDB [2014] NSWSC 138
Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595
Re D; Application of A [2006] NSWSC 1056
Re TVK [2012] NSWSC 1629
Category: Principal judgment
Parties: Secretary, Department of Family and Community Services (plaintiff)
MLC (defendant)
Representation: Counsel:
Ms E Lawson (plaintiff)
Ms E Pender (defendant)
Solicitors:
Crown Solicitor's Office (plaintiff)
Winn Legal (defendant)

File Number(s): A122/2013

Judgment

N, the child the subject of the proceedings, was born on 15 November 2007, the child of the defendant MLC and her then partner CG. In these proceedings, the Secretary as plaintiff seeks an order for his adoption by the adoptive applicants JAB and REP. For the sake of clarity, while preserving anonymity, albeit at the risk of impersonality, I shall generally refer to the protagonists as the child, the birth parents, and the applicants, where the context requires, I refer to them by their initials.

Background:

The child was assumed into care on 16 November 2007 (the day following his birth) on account of concerns about domestic violence between the birth parents, including escalating violence by the father towards the mother; the mother's mental and emotional health (depression, anxiety, and inability to extract from an abusive relationship with the father); excessive consumption of alcohol by the father; neglect of the child's elder siblings J and W; and some acts of violence by the father towards them. Care proceedings were commenced on 19 November 2007.

On 12 August 2008 the Children's Court at Parramatta found - contrary to the Department's case - that there was a realistic possibility of the children being restored to the mother's care. Subsequently, on 3 October 2008, that court made orders allocating parental responsibility for the child to the Minister for a period of 2 years, with parental responsibility thereafter reverting to the mother, who gave a number of undertakings to the court in connection with the restoration of the child (and his siblings), including not to permit the father to have contact with the children except as approved by the Department. These undertakings were intended to ensure the protection of the children from exposure to the domestic violence which had characterised the relationship between the mother and the father.

From when he was four days old until 10 September 2009, the child was in a foster placement but had extensive contact - initially for one hour, three times a week, increasing to four times a week - with the mother. On 10 September 2009, the child was restored to the care of the mother, with J and W following on 27 November 2009. However, the child was again removed on 7 December 2009, because of concerns - which were in due course substantiated - that the mother continued to remain in contact with the father, was allowing him unauthorised contact with the children, and was thereby in breach of her undertakings. Care proceedings were recommenced on 8 December 2009, and on 19 October 2010 the Children's Court found that there was no realistic possibility of restoration to the mother's care, and made a final care order placing the child in the parental responsibility of the Minister until he attains the age of 18.

Following this second removal the child was initially returned to his previous foster carers, but his behaviour deteriorated dramatically and he was violent to other children in the home. He thereafter moved through eight short term or crisis placements, during which he displayed aggression and was unmanageable by his carers, until he was accepted into the Barnardos Find-a-Family program on 15 December 2010 and moved into an intake placement on 17 December 2010. He remained there until 24 April 2011, when he was placed in the care of the applicants, with whom he has since remained. It is an important feature of this case that until then his so far short life had involved about ten temporary placements and less than three months in the care of his mother, during the attempted restoration. The child's two siblings, W and J, are also in the care of the Minister until they attain the age of 18 years, and have been placed with Barnardos foster carers.

The child has made quite good progress in the care of the applicants, with whom he has now lived for three years - notably, by far, the longest period of stability of placement he has ever experienced. Despite the behavioural difficulties manifested in previous placements, he has responded well to their caring and consistent approach to parenting and now presents as a confident child with good peer relationships. The expert evidence establishes that he has developed a positive and secure attachment to the applicants, who have shown themselves to be committed carers who put his needs above their own. The s 91 reporter observed that the relationship had progressed into a loving and caring one, in which feelings towards each other were reciprocated, and that the child had made enormous gains since being placed with them, which had been noted by the reporter but also by other professionals and birth family members. While, as will become apparent, there remain some concerns about his behaviour, peer interactions, and his academic performance, these are not surprising given his turbulent history, and are not attributable to any deficiency in the quality of the care provided by the applicants.

From October 2010 until 2013, the child had contact with his birth parents, separately, but on the same day, four times each year. In 2013, this was reduced to twice a year, on expert advice, in response to the impact of contact on the child. The child also has developed a good relationship with his siblings W and J, and has contact with them, arranged between the applicants and W and J's foster carers, approximately every six weeks, as well as on the occasions when all three children have contact with their birth parents.

Proposals and issues:

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 NAGB (where N is his current first name, A is a traditional name in the proposed adoptive father's family, G his current family name, and B the family name of the applicants), and that he have contact with his birth parents twice a year in accordance with adoption plans.

The birth mother aspires to have all three children restored to her care, and in any event opposes the legal severance of her parental ties with the child which would be an incident of adoption. The case advanced on her behalf was that a parental responsibility order should be made in favour of the applicants rather than an adoption order, and that she should have supervised contact four times annually until the child attains seven years of age, and thereafter twelve times annually.

The birth father has not consented to the adoption, but did not seek to be joined as a defendant and has not participated in the proceedings. It may be accepted, on the basis of such evidence of his views as is available, that he opposes adoption, and he has at least once expressed the view that the child should live with him, but he has advanced no specific proposals in the context of the present application.

The main issues are:

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;

whether the arrangements proposed for birth parent contact are proper in the circumstances;

whether the consents of the birth parents should be dispensed with;

if so, what name should be approved for the child upon adoption;

It is worth recording that these inquires are concerned much more with the future than with the past: at their core is the best interests 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 the Department.

In making decisions about adoption, the court must apply the principles listed in Adoption Act, s 8(1), of which the following are relevant in this case:

(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,

(b) adoption is to be regarded as a service for the child,

(c) no adult has a right to adopt the child,

(d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

(e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,

(e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare.

In speaking of adoption being a "service to the child", the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met.

Adoption Act, s 90(3), provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [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 and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]].

The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows:

Concerning the child: 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;

Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and

Concerning to 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.

In addition, all these are informed by the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption.

The child:

For the purposes of s 23(2)(a), when the application was filed, the child was present in the state. For the purposes of s 24(1)(a), the child was less than eighteen (18) years of age when the Summons was filed.

The child is now six years of age. He has been described by the s 91 reporter as an "animated, boisterous and energetic boy who enjoys the attention of those around him". He is generally physically healthy. He is presently in Year 1 at school; his 2013 Semester 2 school report (kindergarten) states that he has a good sense of humour and an outgoing nature, but has experienced difficulties throughout the year, is challenged by trying to formulate words and simple sentences, and needs to identify and make correct behaviour choices. (This, it seems to me, somewhat understates the position: the circumstance that in the last term of 2013 the foster mother was summonsed to the school once or twice each week, that the following year steps were taken to separate him from others in his peer group, and that he has been assigned an individual teacher's aide in the playground on Thursdays to assist him with appropriate social behaviour, are impressive achievements for a boy of his age). Special arrangements have been put in place by the school, in liaison with the proposed adoptive mother, to support him in connection with these issues.

Neuropsychological assessment indicates that he is highly intelligent, in the 93rd percentile. However, his academic performance, particularly in literacy, is markedly discrepant with this, being only in the 1st percentile. He is of course only in Year 1 and these are very early days, but in light of his apparent ability, this low level of achievement is troubling. So too are aspects of his behaviour, especially at school, towards his birth mother and birth father, and consultants (particularly, the "masterful avoidance strategies" demonstrated to the speech pathologist Ms Simmonds).

In 2009, a paediatrician (Dr Kearney) diagnosed the child with Autistic Spectrum Disorder, probably Asperger's type, in reliance upon his described obsessive and repetitive behaviours: that he was a solitary child, continued to have tantrums, be extremely active, have no sense of danger and wake repeatedly during the night. During 2009 to 2011, he received multiple interventions, including speech therapy, occupational therapy and music therapy. On 28 January 2011, another paediatrician (Dr Tait) assessed him to be in good health, with normal social interaction, and reported that "there is no doubt that his social interaction appears quite appropriate and healthy which does put paid to the idea that he is significantly Autistic at this stage. He does continue to display a range of obsessive preoccupations and habits and is very fussy with tidiness and order in his life". At a further paediatric assessment on 3 July 2012, Dr Feller did not observe any symptoms that would suggest that he had features of the autistic spectrum of disorders.

He was assessed on 28 March 2014 by a speech pathologist (Ms Simmonds), who reported that he has moderate literacy difficulties which affect his ability to demonstrate his knowledge and learning, as well as anxiety issues around literacy and learning. (I interpose that on my reading of her report, the difficulties are more than moderate, especially when contrasted with the child's apparent high intelligence). Ms Simmonds recommended a block of regular speech therapy.

Security and stability are important life foundations for children, all the more so against an early background of instability. The child's turbulent first three years, during which he was deprived of the opportunity to develop secure attachments, positions him as a very emotionally vulnerable child who requires understanding, support and above all stability and security, the ages of two to seven years being the most important from that perspective so that he can develop secure attachments while the opportunity remains to do so. As Ms Lindfield, child psychologist, reported:

N impresses as a young child who is making relatively pleasing progress when taking into account his quite disastrous start to life. He is nevertheless remains an extremely vulnerable child who, in my opinion, remains at risk of tenuous interpersonal relationships and fragile emotional health because of underlying anxiety issues that are easily triggered.

As the birth mother (and perhaps also the birth father, given some statements attributed to him) harbour aspirations of restoration, there remains a doubt as to the permanence of his placement. The child has expressed a wish to remain living with the applicants. When asked by Ms Lindfield about contact with his birth mother, he ran off to his bedroom and said that he did not want to talk about that: "She wants to take me away and I don't want to go away from here." His resistance to contact with his birth mother is, I think, sourced in a profound fear that the security of his present placement may be in jeopardy. As Ms Lindfield reported:

As concluded in 2012, N's impulsivity and oppositional tendencies are just below the surface and they are easily activated in times of perceived anxiety and insecurity. He is very threatened by perceptions that his placement might be changed or disrupted.

A clear sense of identity is also an important life foundation for children, particularly against an early background of ambiguity or instability. One important aspect of a child's identity needs to know his or her origins. Children who do not live with their birth parents may well embark on a search or inquiry in respect of birth family, and lack of satisfactory answers may result in a sense of being "abandoned" or "unwanted". This child therefore has a need for knowledge of his origins, of his birth parents, and the reasons why he is not in their care. That said, he knows his birth parents. According to Ms Lindfield, he has quite a clear knowledge of his origins and is able to give a good account of both his birth mother's and his birth father's family situation.

Moreover, origins comprise only one aspect of this child's identity. The s 91 reporter observed that, while not yet of an age at which he fully appreciates the effect and consequences of adoption, the child:

... does however identify strongly with his foster carers as his parental figures and appears secure and happy within the placement...N understands that a 'Judge' will make a decision about whether or not he is adopted and that if he is adopted, his surname will legally change to B. N also understands that should an Adoption Order be granted there would be changes to his birth certificate and a new certificate would be given to him listing Ms P and Mr B as his parents. N understands that his siblings' names would not be listed on a new birth certificate as they would remain having G as their surname and would not legally be tied to him.

The child clearly identifies primarily with the proposed adoptive family. As already observed, his placement with the applicants represents by far the longest period of continuous stability that he has experienced to date. He sees the applicants as his psychological parents. Indeed, the birth mother acknowledged that it is likely that he would now see the applicants as his primary attachment. Given their respective roles in his life to date, the applicants' family provides a far greater component of his identity than his origins.

This child will require ongoing support in relation to his education, learning and speech to ensure that he can reach his potential. He requires more than usually sensitive, attentive, tolerant and perseverant parenting. The express and implied wishes of the child are that he wishes to be secure in his current placement. Above all, given the history of early instability, he needs stability and security in his placement.

The birth father:

The birth father has made clear in discussions with Barnardos that he does not consent to the adoption application, refused to sign the Adoption Plan, and has at least once suggested that the child should live with him. He has also expressed opposition to the reduction in contact from four times to twice a year, and expressed a wish for increased contact. However, he has not sought to be joined as a defendant, nor adduced any evidence in the proceedings.

The birth father has a history of domestic violence (towards the mother, and some acts of violence towards the child's siblings), drug and alcohol abuse, and depression (for which he has been medicated).

The child has never been in the care of his birth father, and has had only very limited contact with him. It is not conceivable that he could have developed a bond of attachment to him. Nonetheless, the child has spoken positively of him following recent contact, including that he loves him and plays with him, and that he is his "friend". He appears relatively comfortable in interacting with the father - in contrast to his relationship with the mother.

Accordingly, the child has an affectionate but relatively shallow relationship with his birth father, with whom he has had very little contact. The birth father has not demonstrated that he has the capacity to parent this child.

The birth mother:

The birth mother opposes adoption and has aspirations of having the child (and her other children) restored to her care, pursuant to an application under Children and Young Persons (Care and Protection) Act 1998, s 90. However, she did not seek restoration in these proceedings, but proposed that the foster parents be given parental responsibility. No case was developed as to how restoration might be implemented.

The birth mother has a most unfortunate history, by no means exclusively her own fault, of childhood abuse, mental health issues (depression, borderline personality disorder and dependent personality disorder), substance abuse (cannabis), and domestic violence. She was socially isolated, and unable for many years to extricate herself from the abusive relationship with the father. As has been mentioned, her two other children W and J have also been removed from her care and are in long-term foster care with parental responsibility to the Minister until age 18.

This child was removed from her care upon birth because of concerns about the risk of exposure to domestic violence, her mental health, and neglect; and although subsequently restored to her care in September 2009, he was again removed from her care in December 2009 because of her failure to adhere to measures incorporated in undertakings to the Children's Court that were seen as essential to protecting him from exposure to the father and domestic violence. During the ensuing proceedings, the President of the Children's Court observed that "given the mother's demonstrated continued inability to renounce her destructive relationship with the father it cannot be said that she has achieved any success let alone significant success in ensuring, in the event that the children are restored to her care, that the father will have no unauthorised contact with herself or the children."

The child was in the care of his birth mother for a period of less than three months, from 10 September 2009 to 7 December 2009, during the attempted restoration process. Since 19 October 2010, the child he has had only limited identity contact with her: between October 2010 and 2013, for two hours on four occasions each year, and from 2013 twice a year. With the exception of the period of the attempted restoration in late 2009, she has never exercised parental responsibility for the child.

In more recent times, the birth mother appears to have made considerable progress. She has remained away from the father. Away from his influence, she has ceased using cannabis. She has obtained regular part-time employment. She is apparently in a stable relationship (although she was, perhaps understandably, somewhat secretive about this). She has undertaken an impressive array of courses and interventions to enhance her resilience and her ability to resist the choices that have previously ill-served her, and to improve her parenting capacity; this indicates an improvement in her commitment to the responsibilities of parenthood.

However, during contact she has displayed inconsistency in her engagement with the children. For example, on the most recent occasion on 16 April 2014, she appeared to be making determined efforts at engagement for the first hour, but to be disengaged during the second. She now brings appropriate gifts and food to contact, and is learning to adopt a less intrusive and demanding, and a more conciliatory and patient, approach to engaging with the child. However, it is evident that she still has difficulties in subordinating her maternal needs and instincts to the child's interests. Her attitude to the responsibilities of parenthood and her parenting capacity is reflected in an admitted mention to W on one contact occasion of her wish that the children reside with her. In such circumstances it ought to have been apparent that W would likely convey that to the child. More importantly, she was unable to recognise the potential risk that he would do so and the potential effect on W as well as on the child.

In court, she presented as of somewhat flat affect. Although the case presented on her behalf downplayed it, her oral evidence made clear that she was committed to having all her children restored to her care. While she has learned not to be overtly critical of foster carers, it was, I thought, with a degree of reluctance that she personally in the course of her evidence acknowledged that the applicants had cared well for the child - as distinct from the more effusive expressions of appreciation by her counsel. Although she acknowledged that the child would see them as her primary attachment, she maintained that it would not be contrary to the child's interests to be removed from that environment, as "a child can bond with anyone". From her maternal perspective such a view is understandable, but it reveals a lack of insight into the vulnerability of this child, and the undesirability of further disruption.

The child demonstrates significant apparent antipathy towards his birth mother. As already mentioned, when asked by Ms Lindfield about contact with his birth mother, he ran off to his bedroom and said that he did not want to talk about it, attributing to her a wish to take him away. Whether or not she told him so, and however unrealistic it might be, he correctly perceived it to be her wish that he live with her. On another occasion, he told the female applicant, in connection with imminent contact with the birth mother, "I don't want to go... I hate M... I want to punch her in the head". During contact, he does not engage with her. There are also consistent reports that following contact, he becomes emotional and clingy, requires constant reassurance, has wet himself, has disrupted sleep, and his speech and articulation regresses. Such behaviour will persist for a couple of weeks, though by December 2013 it was said to be for a shorter period. This contrasts with contact with the birth father, which appears more relaxed.

I do not find that the child's manifestations of hostility towards the birth mother are somehow her responsibility, in the sense that she has done anything to deserve them. In particular, I am not only unpersuaded that she has ever directly told the child that she wants him to live with her (although she has told his elder brother W), but I am satisfied that at least once (during contact in December 2013) the child has falsely attributed such a statement to her. The child's attitude is, I think, in part a manifestation of his great underlying vulnerability and insecurity: he sees the birth mother as a threat to his security in his present placement. I suspect there is also an element of guilt: while anxiety before contact would be explicable by fear, distress and disturbance after a period of contact which on its face was short and unremarkable seems more likely to be attributable to sadness occasioned by the exposure to the mother. His emotive statements do not reflect the absence of a relationship, but a relationship that is a very difficult one for him.

Ms Lindfield reported, in October 2012, after interviewing all the protagonists and observing a contact visit, that:

N's birth parents both lack insight into N's attachment needs and they have extremely limited understanding of him. He has no bonds to them at all, yet both parents hold on to unrealistic hopes that he can easily be restored, without any adverse effects on his welfare. In my opinion, both parents impress as emotionally unstable and without the resources for comprehending N's real needs. It is also of concern that both parents display strange thought patterns that are potentially very anxiety-provoking and confusing for N, and M causes him a level of distress at his contact visits which is unnecessary. Criticism of carers only makes young children anxious and clingy.

Subsequently (on 5 May 2014, following her observations of the contact of 16 April 2014) Ms Lindfield reported that all the adults were respectful and congenial and obviously endeavouring to make the occasion an enjoyable one for the children, but that contact with his birth mother continued to unsettle the child, although there were signs that his coping skills were improving, and that:

Although M appears to have made gains in her own personal life, she continues to show a lack of understanding regarding N and his needs. She has also not had any children in her care for the best part of six and a half years, and therefore has been free of parenting responsibilities and stresses. There is no information about her relationship with her current partner.

The birth mother engaged an expert, a social worker (Ms Sue Foley) who observed the contact between the birth mother and the child on 16 April 2014. Her report was not served or tendered, and it can only be inferred that her evidence would not have assisted the mother's case as to the quality of the relationship between her and the child, or as to her parenting capacity.

I conclude that the birth mother's parenting capacity, though improved, remains limited. While she has, in recent years, demonstrated an improving attitude to the responsibilities of parenthood, her role in the child's life has in reality been a very minor one. Continued deficiencies of parenting capacity are illustrated by her lack of insight into the risks for N associated with displacing him yet again, her apparent withdrawal from engagement with the children during the second half of the contact on 16 April 2014, and her difficulty in subordinating her maternal needs to the interests of the child. While I note that she consistently supported the child through attendance at medical and speech therapy appointments in 2009, I do not think she has the requisite capacity to support him on a sustained basis through the not insignificant behavioural and learning challenges that he faces.

The proposed adoptive parents:

For the purposes of s 23(2)(b) and s 28(1)(a), the applicants are domiciled in the state. 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 People's Working with Children Check and Screening Unit, they have no charges or convictions recorded against them. They meet the age requirements of s 28(3). For the purposes of s 28(4), they have been a couple and living together for longer than 2 years; they were married on 28 December 2007. I am satisfied that the prospective adoptive parents have been selected in accordance with the Act.

REP has the Higher School Certificate, a Diploma in Community Welfare (Social Science) and a Bachelor of Counselling. She has worked in the community welfare sector since 1995, has worked with families who have had children removed from their care, and has supervised contact in correctional facilities. JAB studied to college level in the United Kingdom and after leaving school worked as a carpenter, in the UK and then Australia. They live in a two-bedroom unit, in which the child has his own room, close to a park. They are both in good health, and have the financial resources to support the child to independence.

The applicants have demonstrated their commitment to the responsibilities of parenthood by caring for the child since April 2011. While he does not remain without significant challenges, he has progressed significantly in their care, when contrasted with his behaviour when originally placed with them. As Ms Lindfield reported, he "has been fortunate to have been placed as an only child with parents who are highly intuitive and appropriately responsive to his many needs." The birth mother does not take issue with the quality of care provided by the applicants, and acknowledges that they have provided a home for the child and are looking after him in a suitable way, and her counsel was somewhat more fulsome on her behalf.

The child enjoys a secure relationship with the applicants. As noted by Ms Lindfield: "There is no question that R and J have now become N's psychological parents and any further disruption to his young life will have damaging consequences for his long term future". As I have observed, his placement and relationship with them is, by far, the longest period of stability he has ever enjoyed. The child demonstrates behaviours in his interactions with them that manifest a secure attachment. They are sensitive to his needs, and proactive in seeking appropriate support and advice. He has also developed positive relationships with their extended families.

The applicants have the capacity to meet the child's needs, now and in the future. This is particularly so, not only in respect of his basic needs, but his emotional and intellectual needs, including the provision of support through the significant learning and behavioural issues that presently confront him. They have demonstrated this for three years, through ensuring his attendance at preschool and then school, and at medical and specialist appointments, and in identifying and seeking appropriate assistance in respect of his behavioural issues and engaging with his school to address them. No child with such issues could expect better support than he has received.

I have, however, had some reservations in respect of their willingness proactively to support contact with the birth mother. This is an understandably difficult task for them, in circumstances where the birth mother has not been well disposed to them, and where the child is overtly reluctant and distressed. I accept that the applicants support birth parent contact in principle, and that they would not stand in the way of increased contact should the child express a wish for it. But whether in the face of opposition from the child they will endeavour to inculcate a positive attitude in him is another matter. At the preliminary hearing, when asked what role she saw the birth parents having in the child's life if an adoption order were made, the female applicant initially responded:

Well, at the moment, your Honour, we have had a psychologist do an evaluation on N after him having had a very hard time with his access visits so they are at a limited capacity. I think that for him - I think, you know, it is really important to know who his parents are and to have a relationship with them as it be somewhat limited but at the moment N really suffers before contact and after contact.

At the final hearing, when asked her attitude to increasing the amount of contact in the event that an adoption order was made, as hopefully the security provided by the order might reduce the child's issues about contact, she said:

Your Honour, my, my only concern, and I'm very open to that happening, my only concern is right now I'm worried that I'm setting N up for, you know, more behavioural problems. And the thing is, his, his issue isn't really, like he is, um, the access, he does, you know, try and move away and things like that. It's the after, afterwards, after the visits that his behaviour really, you know, goes downhill, so to speak. And I'm, I'm just, um, hopeful that he will get more confident and, as he gets older, he will be able to manage that better. But at the moment I'm fearful of setting him up. To say, you know, to increase the access and then, you know, he has such behavioural problems afterwards that it affects his school, it affects his sporting and he's a kid that already has behavioural issues. But it's something that I am open to.

The male applicant, when asked at the preliminary hearing what contact he proposed, answered:

Proposing at the minute, it is twice a year but at the moment he is traumatised prior and after the visitation. I mean, we don't want to cut it back, we are quite open to another arrangement but really - yet it is N's interests again at heart and it does seem to upset him through what has happened in the past so, yeah, we are quite happy to go on as we are.

At the final hearing, in cross-examination, he gave this evidence:

Q. You don't want him to have contact - you don't want him to have much contact at all with his biological parents, do you?

A. At the minute, we find the way things are are enough. But as N grows older, I'll support him in any way which way I can. If he wants to have - and when he's ready for more visitations, I'll stand by him all the way. He can have as many as he wants.

Being prepared to accede to requests of the child for increased birth mother contact does not equate to proactively encouraging it, particularly when, at present, such requests seem unlikely. Using contact with siblings as a carrot, while not inappropriately part of the strategy for inducing the child to participate, does not equate to explaining to him that he needs to show some respect for, and make an effort to engage with, his birth mother. I was also concerned that during contact, the child has demonstrated quite inappropriate and disrespectful behaviour towards his birth father, as well as more or less ignoring his birth mother, and it was not apparent from the evidence that he was appropriately reprimanded, nor appropriately encouraged to engage with the mother.

However, although the evidence does not address it, it may be that the applicants did take appropriate action, and because the question was not distinctly raised with them, I could not be satisfied that they did not. Moreover, when Ms Lindfield when was asked, in 2012, to review the frequency of contact, and recommended a reduction from 2 hours four times per year, to two hours twice per year, on account of the distress it was apparently occasioning the child, she reported:

In discussions with N he has always demonstrated a good understanding of his biological history for a child his age. I have also observed his foster carers to talk about his family history with appropriate respect and they encourage him to accept his birth family as a meaningful part of his life. They are accepting of birth family contact and are fully aware of the significance of birth family to N's developing identity. In my opinion, R and J are very open to facilitating N's relationships with his birth family; they simply want to ensure that his needs are prioritised over those of the adults involved.

These observations, which were not challenged, are important in indicating that the applicants do discuss the child's family history "with appropriate respect" and encourage the child to accept his birth parents "as a meaningful part of his life". While I would emphasise the importance of their being proactive and, where necessary, firmly encouraging the child to interact with and respect his birth parents, I do not think that they have failed to demonstrate an appropriate attitude to their parental responsibilities, nor lack the capacity to support birth parent contact.

The child is attached to the applicants and they are now his psychological parents. Their role in his life to date overwhelms that of his birth parents. They have demonstrated a proper attitude to the responsibilities of parenthood, and that they have the requisite parenting capacity to meet his needs, some of which are challenging; indeed, their capacity to parent this child is distinctly superior to that of the birth mother. They are willing and capable to take full responsibility for making decisions about his welfare. I do not doubt that they will comply with such obligations in respect of birth parent contact as may be imposed by any adoption plan or order, though I have some reservations as to whether, in the absence of a request from the child they would go the extra yards in this respect.

The adoption plans:

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. The proposed contact arrangements are detailed in two adoption plans - one making provision for contact with the birth mother and the other with the birth father - agreed between the Principal Officer of Barnardos and the applicants. As non-consenting birth parents are not parties to the adoption, they cannot be parties to the adoption plan, and in any event they have not agreed to the plans. However, if the parties to the adoption have agreed to an adoption plan - as they have - 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 are proper in the circumstances [Adoption Act, s 90(2)]. Further, 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 addressed, and thus whether adoption is in the child's best interests.

The plans provide appropriately for sibling contact. Two issues arise, however, in respect of birth parent contact.

The first is frequency. The plans provide for contact for two hours, twice per annum. It is proposed that the contact with each birth parent will continue to take place separately, but on the same day and at the same place. Historically, contact has been supervised by a caseworker from Barnardos. The birth mother proposed that there should be contact four times per annum until the child attains seven years of age, and thereafter twelve times per annum, supervised at a contact centre.

While the application for twelve visits per annum is unrealistic, the question whether there should be more than two occasions per annum is a very real one. By any view, two hours twice a year is minimalist. However, a review of the contact reports and the evidence of the applicants provides significant support for the view that contact with the birth mother has occasioned significant distress to the child, particularly after contact. The plans reflect the contact arrangements presently in place, which accord with the recommendations of Ms Lindfield made after she was retained in 2012 to review the contact arrangements in the light of the distress that the child was displaying. Ms Lindfield reported (on 29 October 2012) as follows:

N needs ongoing contact with his birth parents so that his later identity needs are met, and so that he grows up knowing his biological history. As noted in this report, there are ongoing concerns about the quality of N's contact and he has displayed emotional reactivity which shows that his core insecurity is easily triggered, and N then regresses. Ongoing stressful contact hinders development and also makes it less likely that N will want to confidently explore his roots when he is older. As he grows older, inappropriate behaviours and comments at contact will be more damaging to N, and potentially destabilising. In my opinion, the recent deterioration in N's behaviour and adaptive functioning after his contact visits is occurring because he is now four years old and has an increased awareness and understanding of what is being said at the visits, and he would be more attuned to his birth parents' animosity towards his carers. ... The current pattern of contact does not appear to be working very well for N and may, in fact, be now undermining his continued progress because he is more aware of this, and his anxieties are so easily triggered.

Due to his very young age, and the fact that N is still in his critical attachment-forming years after a very traumatic first three years, I believe there needs to be some reduction to N's frequency of contact with his birth parents, who both struggle to relate appropriately. In my opinion, contact twice a year is sufficient for identity purposes, and it also gives N sufficient time between contact visits to grow and develop without his security being so markedly undermined. ... I would suggest that N's birth parent contact is reviewed independently after he has been at school for two full years (ie end of 2014) to ensure that his contact needs are adequately met. He will then be seven years of age, and have a much better grounding and sense of belonging within his foster family and school community.

More recently, Ms Lindfield has reported (on 5 May 2014) that contact (on 14 April) seemed less awkward than previously, and that the child's unsettled reactions had reportedly decreased since access was reduced but have not disappeared, with the child continuing to show symptoms of high anxiety and insecurity which impact on his social and emotional functioning at home and school, as well as his learning, but "There have nevertheless been gains since contact has been reduced". She concluded:

In my opinion, N's contact visits with his birth mother continue to unsettle him, although there are signs that his coping skills are slowly improving. He copes much better with his visits to his birth father, who does not try to force interaction.

...

In my experience, many children with a history such as N's often fail to form compensatory attachments at all. It is testimony to the parenting skills of R and J that N has been able to establish the foundations of a trusting relationship with them and this, in turn, has enabled him to make emotional and developmental gains that would otherwise not be anticipated. Therefore it is vital that the bonds he has been fortunate enough to form with R and J are now afforded maximum protection and security.

Ms Lindfield's recommendations were essentially unchanged. She observed that "enforced participation in contact activities that children find stressful is usually counterproductive in the longer term", and suggested that the possibility of contact increasing to four times per year (as his elder siblings have) be considered at a time when his school adjustment is normal and in accordance with his capabilities, proposing a formal review at the end of 2015. In cross-examination, Ms Lindfield said that it was likely that as he became more confident and secure, he would want more contact.

From Ms Lindfield's evidence I derive the following essential propositions. First, the child needs ongoing contact with his birth mother, to meet his identity needs, but contact twice a year is sufficient (though minimal) for that purpose. Secondly, stressful contact hinders development and makes it less likely that the child will want to explore his roots with confidence when he is older; and enforced participation in contact that children find stressful is usually counterproductive in the longer term. Thirdly, given his vulnerability, it is vital that the bonds he has established with the applicants be now afforded maximum protection and security. Fourthly, while N's contact with his birth mother continues to unsettle him, there are signs that his coping skills are slowly improving. Fifthly, it is likely that as he becomes more confident and secure, he will want more contact.

To Ms Lindfield's conclusions, I would add the following observations. First, while one cannot be certain, the additional security provided by an adoption order is likely to mitigate the insecurity the child experiences in connection with contact. While Ms Lindfield suggested that this concept of legal permanence through adoption was an adult construct not understood by a six-year-old, it seems to me that both indirectly (through the greater security the adoptive parents will feel), and directly (through the knowledge that he has been legally confirmed by a judge to be a member of their family and that the possibility of that changing is now precluded), it will to a significant extent be understood by the child as cementing and securing his placement.

Secondly, as I have concluded above, the child finds his relationship with his birth mother very difficult, destabilising and distressing. However, there is nothing to suggest that contact poses any physical danger, nor any actual risk, as distinct from fear, of abduction. The solution is not to avoid the distress by ceasing contact; as severing the relationship with the birth mother in that way is likely to exacerbate identity issues in later years, but to persevere in working through it.

Thirdly, not only does the evidence indicate that the child's tolerance of contact is improving, though he is still distressed; in addition, while there remain concerns about the quality of contact, the birth mother is displaying improved insight: she has listened to advice, and is behaving more appropriately.

All these matters point to the probability that an increase in the frequency of contact will be appropriate, once the situation has stabilised. Ms Lindfield suggested that she would want to see that the child did not regress after contact, was happy to discuss contact in a normal way, and was functioning at expected capacity and developing normally before increasing contact. She recommended that the contact plan be formally reviewed: originally, at the end of 2014 and now, at the end of 2015, when the child has had an opportunity to settle at school.

However, if an adoption order is made, the adoptive parents will be in control, and another occasion for independent review of the contact arrangements will not readily present itself, as it can readily be foreseen that the birth mother is unlikely to have the requisite resources and support to bring the matter back to the court. For that reason, it is preferable to make orders now, based on the best judgment one can make as to the probable course of events, leaving to those who may wish to argue that when the time arrives an increase in contact is no longer appropriate the burden of bringing the matter back to the court.

More or less in conformity with Ms Lindfield's prognostication, in my view, provision should be made for contact to increase to four times a year at the end of 2015. This will allow another 18 months for the position to stabilise. While there is a level of distrust between the parental camps, nothing has happened on contact which convinces me that independent supervision should be necessary: the presence of the adoptive parents, or one of them, should suffice, and should be acceptable to the birth mother. Contact in locations of her choice, such as those which she has so far selected, seems much preferable to the artificial setting of a "contact centre".

The second issue is that the plans provide that "contact will occur only with N's agreement". This effectively places in the child's hands the ability to veto contact. I do not consider that it is appropriate to give a child of six or so years of age the ability to veto contact. Ms Lindfield's evidence did not support the view that the child should have such a veto: in cross-examination, she said that while it was important to listen to the child, "I mean, if we - at this stage, you know, you'd say cut out all contact altogether if we listened to him. He would say, "I don't want to go, ever". But we're not saying that ...".

I am therefore not satisfied that, in respect of birth parent contact, the arrangements proposed in the adoption plans are in the child's best interests and proper in the circumstances. It follows that I cannot register the plans [s 50(3)(c)]. As I propose to make orders for contact - on the basis that if, when the increased contact for which they provide takes effect, it is considered inappropriate, or its proves unsustainable, the matter may then be returned to the court for further review - those orders will effectively supercede the provisions of the plans in respect of birth parent contact. The other provisions of the plans (in particular, in relation to sibling contact) are unobjectionable, and I am therefore satisfied that those provisions of the plans that will be effective (given that those in respect of birth parent contact will be superceded by the contact orders) are in the child's best interests and proper in the circumstances.

Is adoption clearly preferable in the child's best interests?

Consideration of whether adoption would promote the child's best interests, and whether it is clearly preferable to any other order that could be made, involves identification of the likely effects of adoption, and of the various available alternatives, and examining their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is, or is not, clearly preferable to all the others. In the light of the proposals of the parties, the alternatives to adoption that require consideration in this case are:

restoring the child to the care of the birth mother;
allocating parental responsibility in favour of the applicants;
maintaining the status quo, with the Minister having parental responsibility and the child in foster care; and
deferring determination of the question until the child is older, either maintaining the status quo or making a parental responsibility order in the meantime.

The effects of adoption:

While an adoption order would not effect any overt improvement in respect of the arrangements for the child's residence, education, and care, that does not mean that it would have no beneficial impact.

First, an adoption order will provide certainty and permanence for the child, both directly, and indirectly through the additional certainty it will afford the adoptive parents. The possibility of further changes, disruptions and separations will be minimised. The aspirations to restoration expressed by both birth parents, and re-affirmed by the mother in her oral evidence, however improbable as an outcome, will be practically foreclosed. An adoption order is also likely to minimise any remaining temptation for the birth mother to make comments or suggestions that the child will be returning to her care. In these ways, and others, adoption will contribute to providing for the child the stability, security and certainty that he plainly needs, and will be an important aspect of mitigating his current insecurity. In a case such as the present, where there has been extensive past turbulence and associated vulnerability, and where the child harbours fears of insecurity, this is a telling factor.

Secondly, the child would be raised in a legally recognised family, rather than remaining a State ward for the duration of his childhood. He would no longer be in "out-of-home" care, but in "in-home" care. The need for departmental intervention in his care, and departmental approval for significant decisions of the applicants, would be removed, as would be the stigma potentially associated with being a State ward.

Thirdly, the child's legal status would be brought into conformity with reality. Psychologically and residentially, he is a member of the proposed adoptive 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 a sense of security and permanent belonging in that family. And the child would be a member of the family not only during childhood, but for life.

Fourthly, his legal name would correspond with that of the family with which he lives and identifies. He would be enabled to choose for himself whom he tells of his status, without it being self-evident from his name.

While an adoption order would, of course, legally sever the parental relationship between the child and the birth parents, they are relationships which, in reality, have been practically devoid of parental responsibility. An adoption order would in fact serve the child's identity needs by perfecting his membership of the family with which he identifies, while providing a more secure foundation for an ongoing relationship with the birth parents through contact, which the applicants will be better able to support and facilitate when relieved of the insecurity or doubt that might attend it if some prospect of restoration remained open.

Adoption carries a risk that the child may feel unwanted or abandoned. However, this risk is incidental more to the circumstance that he does not reside with his birth parents, than to an adoption order per se: whether he is in foster care, or under a parental responsibility order, or adopted, there is the same potential for the question, "why do I not live with my birth parents?". Thus, declining to make an adoption order in favour of some other solution, short of restoration, does not remove the risk of a sense of loss or abandonment. However, the risk is mitigated by the circumstances that the child knows his birth parents, has an understanding of their situations, and will continue to have a relationship with them. While the legal relationship with the birth parents would be severed, they would not cease to be his birth parents; the relationship with them will be maintained through contact, and legal parenthood would appropriately reside with those who are discharging the responsibilities of parenthood.

For the purposes of s 91(1), a report in writing concerning the proposed adoption was provided to the Court on 15 August 2013. The reporter recommended that adoption be approved as preferable to any other order that could be made with respect to the child, particularly as is would provide stability, security and a life-long family. In addition, Ms Lindfield recommended that the child be afforded "the legal protection and increased security" of an adoption order. As has been noted, Ms Foley, who was retained as an expert by the birth mother, was not called to give evidence, nor was her report served.

Is there a realistic prospect of restoration?

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].

The starting point for consideration of whether there is a realistic prospect of restoration is that there is in place an order of the Children's Court allocating parental responsibility to the Minister until the child attains 18 years of age. Implicit in that order is a conclusion that restoration is improbable. That conclusion does not bind this court, and between the time when a care order is made in the Children's Court, and an adoption application is considered in this court, much can change. The Children and Young Persons (Care and Protection) Act 1998 (NSW) itself admits, by s 90, of an application for restoration (by way of rescission of the care order) in the event of a change of circumstances, notwithstanding that a final order allocating parental responsibility to the Minister until 18 is in place. Nonetheless, in this type of case, there has already been a judicial decision, by a specialist court, that the child cannot be satisfactorily cared for by the birth parents, such as to require long-term removal.

Now, more than three years later, restoration would involve a move from the residence, the family, the school, the connections and the environment which has provided this child's longest by far period of stability. It would disrupt current well-established, stable, secure and supportive arrangements. It would move the child to an uncertain alternative, without the safety nets available in the present context. Critically, it would still further jeopardise this child's already compromised ability to form and establish secure attachments.

Moreover, the applicants' parenting capacity, in the context of this child's special needs for ongoing support in connection with his education, socialisation and speech, is superior to that of the birth mother, especially in respect of meeting the child's intellectual and emotional needs. As has been recorded, although the birth mother expressed aspirations for restoration, no case was developed as to the arrangements that might obtain in such an event. While the birth mother has made significant endeavours to improve her parenting capacity, restoration would still involve unknowns and risks, which are absent from the status quo.

However, even if it were demonstrated that the birth mother could provide care for the child of a quality equivalent to that provided by the applicants, that would be insufficient to make a change desirable now. In my judgment, restoration would not be in the interests of the child, and preserving the possibility of restoration is inimical to the security of his placement.

Parental responsibility order in favour of proposed adoptive parents?

The mother submitted that rather than an adoption order, there should be a parental responsibility order in favour of the applicants. Such an order would have the benefit of alleviating the requirement for the intervention of the Department in significant decisions about the child, while avoiding the irrevocability of an adoption order.

The chief perceived advantage of this arrangement is its greater flexibility, in that the possibility of restoration in the future is preserved, as an application for restoration under s 90 of the Children and Young Persons (Care and Protection) Act, would still be possible. But as I have concluded that restoration would not be in the interests of the child, this is of little moment, and is outweighed by the disadvantages of not extinguishing the remaining doubt about the permanency of the child's placement. Whilst to date there has been no attempt by either birth parent to make such an application, the birth mother has expressed a resolute position that she intends to seek the return of the child to her care, which leaves this open as a real possibility in the minds of the child and the applicants, thus causing unnecessary anxiety and contributing to insecurity. To preserve this possibility, when it is not a desirable or realistic one, would contravene the spirit of adoption principle s 8(1)(e1), that undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare - a principle that reflects, in the context of adoption, that there should be as much certainty as possible about a care plan for a child as early as possible, and that uncertainty is adverse to children's interests.

Otherwise, such an outcome does not offer the other benefits of adoption, referred to above. I have elsewhere accepted a description of the status that would result as being like living together but not married [Adoption of BS (No 3) [2013] NSWSC 2033, [75]]. Further, such an arrangement would confer no rights or responsibilities in respect of the child after he reaches adulthood.

Moreover, neither the Secretary nor the applicants seek such an order, even as an alternative, because the adoptive parents do not wish to assume the burden of parental responsibility, without the security of an adoption order - including, in particular, the burden of opposing any future s 90 application. It would not be fair to foist on them that responsibility upon terms which they have never accepted [cf Adoption of SRB, CJB and RDB [2014] NSWSC 138, [52]].

Maintain the status quo?

Accordingly, the only realistic alternative to adoption is maintenance of the status quo, with the child in "out-of-home" care under the responsibility of the Minister and residing with the applicants as foster parents.

This maintains uncertainty and insecurity for the child. Given the conclusion that restoration is unrealistic, the "benefit" of impermanence is more a detriment.

In addition, this proposal has the significant further disadvantage of leaving the child a ward of the Minister, with the consequence that departmental approval of significant decisions concerning his care and welfare is required. The prospective adoptive parents are well able to exercise decision-making responsibility for the child and have demonstrated this since the child came into their care.

As with a parental responsibility order, such an arrangement would confer no rights or responsibilities in respect of the child after he reaches adulthood.

The desirability of a more permanent solution, and one under which decision-making about the child's welfare is entrusted to parents who love him, who have demonstrated clearly the ability and intention to care for him very well, and who know him far better than responsible departmental officers ever could, tell against this option.

Defer consideration?

Theoretically, the Court could defer final determination of the adoption question until the child is older. The birth mother's submissions included the proposition that an adoption order should not be made until the child was old enough to express a meaningful and informed view.

However, it is not in the child's interests to defer making a decision, given his clear need for certainty, stability and security in respect of his placement. To do so would contravene the principle in s. 8(1)(e1) of the Act, which provides that 'undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare'. Nor is it in the child's interests effectively to cede responsibility for making a decision about his best interests to him, and potentially to place him in an invidious position of having to choose.

Is adoption clearly preferable?

In the context of this child's turbulent past and manifest need for security and stability, the possibility of restoration - involving yet another disruption, for uncertain benefit - should not be preserved.

A parental responsibility order would still leave the child an incomplete member of the household, nor exclude doubt as to the permanence of his placement, and in any event is not sought by the Secretary or the adoptive parents. Where restoration is not a desirable outcome, the preservation of the possibility is more a disadvantage than an advantage.

The child is doing reasonably well in the care of the applicants, given his unfortunate past. They are plainly taking all proper steps for his welfare. No criticism of their care of him has been suggested. The only real issue with adoption is whether it would inappropriately sever all links with the birth parents. In fact, because there will on any view be some ongoing contact with them, adoption will not sever all such links. In any event, this child's identity needs are such that the permanent securing of his identification and placement with his psychological family is more important. Adoption is superior to all alternatives in respect of the provision of a sense of security and stability to the child, because it would provide him with assured security in that family, and resolve any outstanding concerns that the child might not be a permanent member of it. In doing that, it would also provide a sound and secure basis for the child to explore and develop his relationship with his birth parents.

Both the s 91 reporter, and Ms Lindfield, recommend adoption; no contrary opinion was adduced from Ms Foley.

In my judgment, subject to securing appropriate birth parent contact, the making of an adoption 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. I am therefore also satisfied that the best interests of the child will be promoted by adoption by the proposed adopting parents. Subject to (1) satisfaction of the formal requirements, and (2) dispensing with the consents of the birth parents, I will make an adoption order in favour of the applicants.

Formal requirements:

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 at least 14 days' notice of the application for the order, containing the prescribed particulars, has been given to them.

Consent dispense order:

The birth parents do not consent to an adoption order. Accordingly, the order can be made only if their consent 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 cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child's welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (New South Wales Legislative Council, Adoption Amendment Bill (Hansard), 25 October 2006), as enabling consent to be dispensed with where adoption would enhance the child's sense of belonging and permanence in the carers' family notwithstanding that there is no concern about the child's current welfare (as distinct from the child's welfare at the beginning of the placement). Essentially, this reflects a policy decision that once a chid has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced, if the court is satisfied that the interests of the child will be best served by adoption.

For the purposes of s 59, the birth parents were provided with a copy of the Mandatory Written Information on or about 15 June 2012 and 19 June 2012. For the purposes of s 72, at least 14 days' notice of the application for a consent dispense order has been given to both birth parents. The birth mother has been joined as a defendant and has appeared to oppose the orders. The birth father has not sought to participate in the proceedings, although it may be assumed that he opposes adoption. 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 interest, 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.

Accordingly, I will make an order pursuant to s 67(1)(d) that the consent of the birth father and mother be dispensed with.

Name:

The Secretary seeks that an order that the child be known by the given names "NAG" and the surname "B".

Adoption Act, s 101, relevantly provides that on the making of an adoption order, an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents. Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's wishes. The Court must not approve a change in the given name or names of a child who is more than one year old unless the Court is satisfied that the name change is in the best interests of the child. The adoption principles set out in s 8 include, in (e), the principle that a child's given name or names, and identity, should, as far as possible, be preserved.

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.

The proposed surname B accords with this approach, and will recognise the child's place in the adoptive family and reinforce his sense of permanency and belonging: he will be in name as well as in law a member of the adoptive family. The child is to have the surname B.

The proposed second name A is a traditional name in Mr B's family: each of the male members of the family has A as a middle name. This will reinforce the child's identification with and membership of his adoptive family. The retention of G as a middle name maintains and preserves a nominal connection with the child's origins. I am satisfied that to change the given names of the child by adding A as a second given name and G as a third given name, while preserving N as the first given name, is in the best interests of the child, as it will preserve the child's first name, while adding an additional nominal link to the adoptive family and preserving a nominal link to his birth family. This is entirely consistent with adoption principle (e), as the child's extant given name will be preserved, but the link to his birth family also sustained.

Conclusion and orders:

For the purposes of s 90(1)(a), the best interests of the child will be promoted by adoption by the proposed adopting parents. For the purposes of s 90(1)(b), so far as practicable having regard to the age and understanding of the child, I have, as recorded above, ascertained and given due consideration to his wishes and feelings. For the purposes of s 90(1)(c), I am satisfied that the prospective adoptive parents have been selected in accordance with the Act. For the purposes of s 90(1)(d), I am satisfied that consent to the adoption of the child has been given by every person whose consent is required under the Act other than the birth parents. In my judgment, the making of an adoption 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.

I am not satisfied that, in respect of birth parent contact, the arrangements proposed in the adoption plans are in the child's best interests and proper in the circumstances, as they provide for what on the evidence will probably be insufficiently frequent contact, and because they place a power of veto in the hands of the child. I instead propose to make orders for contact, increasing to four times per year from the end of 2015, on the basis that if, when the increased contact for which they provide takes effect, it is considered inappropriate or proves unsustainable, the matter may then be returned to the court for further review. Those orders will effectively override the birth parent contact provisions of the adoption plans. I am satisfied that the remaining provisions of the plans, that will take effect, are in the child's best interests and proper in the circumstances.

For the purposes of s 67(1)(d), the applicants are authorised carers and the child has established a stable relationship with them. I am satisfied that it is 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 satisfied.

The child is to have the surname B, reflecting his membership of the adoptive family. I am satisfied that to change the given names of the child by adding A as a second given name and G as a third given name, while preserving N as the first given name, is in the best interests of the child, as to do so will preserve his first name, while adding an additional nominal link to the adoptive family and preserving a nominal link to his birth family.

According, I propose to make orders to the following effect; however, as the detail of the "spend time with" order has not been the subject of submissions, I shall afford an opportunity to address its terms before formally making the orders:

(1) That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child's natural mother MLC be dispensed with.

(2) That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child's natural father CG be dispensed with.

(3) The adoption of the child NG by the adopting parents JAB and REP, and approves the name 'B' as the surname and NAG as the given names of the child.

(4) That pursuant to the (Cth) Family Law Act 1975, s 64B(2)(b) the child spend time with each of MLC and CG, separately, for at least two hours twice each year until and including 2015 and thereafter for at least two hours four times each year, in default of such agreement:

(a) on the first Monday of the April, July, October and Christmas school holidays (and until and including 2015, the July and Christmas school holidays);

(b) with MLC from 1000 until 1200, and with CG from 1300 until 1500;

(c) at XXXX; and

(d) supervised by Mr B and/or Ms P, who are to convey the child to and from the place of contact.

(5) There be liberty to apply to vary order (4).

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Decision last updated: 28 May 2014

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Citations

Adoption of NG (No 2) [2014] NSWSC 680

Most Recent Citation

In the matter of an adoption of QS [2019] ACTSC 357

Cases Citing This Decision

67

Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83

OA v Secretary, Department of Communities and Justice [2019] NSWCA 322

The Adoption of Grace (a pseudonym) [2025] NSWSC 1247

Cases Cited

5

Statutory Material Cited

3

Re D; Application of A [2006] NSWSC 1056

Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762

Re TVK [2012] NSWSC 1629

Medium Neutral Citation:	Adoption of NG (No 2) [2014] NSWSC 680
Hearing dates:	13, 14, 15 May 2014
Decision date:	28 May 2014
Jurisdiction:	Equity Division - Adoption List
Before:	Brereton J
Decision:	Consent dispense orders made; adoption order made; adoption plans registered.
Catchwords:	FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether adoption order clearly preferable to any other order that could be made with respect to care of child - where no realistic prospect of restoration - where preserving possibility of restoration would contravene spirit of adoption principle (e1) - where due to history of prior placement instability child has accentuated needs of security and permanency - where adoption would serve child's identity needs better than any potential alternative as it would confirm child's identity with psychological family while preserving opportunity to know birth parents and to understand why does not live with them - where adoption plans make inadequate provision for birth parent contact - held, that making of an adoption order, in conjunction with orders securing birth parent contact, is clearly preferable to any other order that could be made with respect to care of child FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether consent of birth parents should be dispensed with - as making adoption order would promote child's welfare, necessarily also in child's best interests to make consent dispense order so as to allow the adoption order to be made
Legislation Cited:	(Cth) Family Law Act 1975, s 64B (NSW) Adoption Act 2000, s 8(1), s 8(2), 23(2), s 24(1)(a), s 28, s 50, s 59, s 67(1)(d), s 72, s 87, s 88, s 90(1), s 90(2), s 90(3), s 91, s 101. (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
Cases Cited:	Adoption of BS (No 3) [2013] NSWSC 2033 Adoption of SRB, CJB and RDB [2014] NSWSC 138 Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 Re D; Application of A [2006] NSWSC 1056 Re TVK [2012] NSWSC 1629
Category:	Principal judgment
Parties:	Secretary, Department of Family and Community Services (plaintiff) MLC (defendant)
Representation:	Counsel: Ms E Lawson (plaintiff) Ms E Pender (defendant) Solicitors: Crown Solicitor's Office (plaintiff) Winn Legal (defendant)
File Number(s):	A122/2013