Adoption of PRC

[2019] NSWSC 855

Supreme Court

New South Wales

Medium Neutral Citation:

Adoption of PRC [2019] NSWSC 855

Hearing dates:

29 May 2019

Decision date:

09 July 2019

Jurisdiction:

Equity - Applications List

Before:

Robb J

Decision:

See pars [107-111]

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

 

FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Whether consent of birth parents should be dispensed with

  FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Whether the child’s name should be changed

Legislation Cited:

Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Family Law Act 1975 (Cth)

Cases Cited:

Adoption of IEK [2019] NSWSC 171
Adoption of JLK and CRK [2017] NSWSC 7
Adoption of N and J [2017] NSWSC 662
Adoption of NG [2014] NSWSC 680
D v Director-General Department of Community Services [2005] NSWCA 474; (2005) 34 Fam LR 445
Director-General Department of Community Services v D [2007] NSWSC 762; (2007) 37 Fam LR 595
Re Campbell [2011] NSWSC 761

Category:

Principal judgment

Parties:

Secretary, New South Wales Department of Family and Community Services (Plaintiff)
RMM (Defendant)

Representation:

Counsel:
G Eldershaw (Plaintiff)
J Harris (Defendant)

  Solicitors:
Crown Solicitors’ Office (Plaintiff)
Legal Aid (Defendant)

File Number(s):

A140/2018

Judgment

1. The principal question in these proceedings is whether the Court should make an order for the adoption of a seven-year old child, who I will call PRC, in favour of proposed adoptive parents, GJH and AJH. The application was commenced by the Secretary of what I understand is now the New South Wales Department of Communities and Justice (the Secretary) on 26 July 2018.

2. The application is opposed by PRC's birth mother, RMM, who was joined as a party to the proceedings on 16 November 2018.

3. Consequently, the Court will not be able to make the adoption order sought by the Secretary, unless it makes an additional order sought, being an order pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) (the Act) that the consent of RMM be dispensed with.

4. The Secretary also seeks an order approving the surname of the proposed adoptive parents as the surname of PRC, and PRC as the given names of the child. Thus, PRC will retain her present surname as a given name, if the order sought is made.

5. RMM opposes the Court making the order changing the name of PRC.

6. If the Court does make the adoption order that is sought by the Secretary, the parties join in requesting the Court to register an amended adoption plan in relation to RMM and the child pursuant to s 50(1) and (3) of the Act. The maternal adoption plan has been signed by the proposed adoptive parents, RMM and a delegate of the Secretary, against the possibility that the Court will make an order for the adoption of PRC.

7. PRC's birth father, DVC, has executed a formal consent to the making of the adoption order. The Court has been informed that a paternal adoption plan has been agreed between the relevant parties, but the Court has not been asked to register that plan.

The legal framework

8. The Act contains a number of essential requirements which must be satisfied before the Court may consider whether the criteria contained in s 90 of the Act for the making of an adoption order have been satisfied. RMM has formally conceded that those requirements are satisfied in the present case, so the question is whether an adoption order should be made in accordance with the criteria in s 90. I am also satisfied that the prerequisites have been established in the present case, and it will not be necessary to set them out in detail.

9. Section 90 of the Act relevantly provides as follows:

90 Court to be satisfied as to certain matters

(1)   The Court must not make an adoption order in relation to a child unless the Court is satisfied:

(a)   that the best interests of the child will be promoted by the adoption, and

(b)   that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and

(c)   if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and

(d)   that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and

…

(h)   in the case of a child (other than an Aboriginal or Torres Strait Islander child)—that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.

(2)   The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.

(3)   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.

10. As s 90(1)(d) has the effect that the Court must not make an adoption order unless it is satisfied that consent to the adoption of the child has been given by every person whose consent is required under the Act, or that consent has been, or should be, dispensed with, the fact that RMM has declined to consent to the adoption order means that the Court will be prevented from making that order unless it is satisfied that RMM's consent should be dispensed with.

11. That is so because s 52 of the Act provides, relevantly, that the Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by each parent of the child. As PRC is less than 12 years’ old, the issue of the child giving consent to her adoption under s 55 of the Act does not arise.

12. Section 67 of the Act sets out a number of circumstances in which the Court may make an order dispensing with the consent to the adoption of a person whose consent is otherwise required by the Act. Relevantly, s 67(1)(d) provides:

67 When can Court dispense with consent of person other than the child?

(1)   The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that:

…

(d)   if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers or the guardians for the child:

(i)   the child has established a stable relationship with those carers or guardians, and

(ii)   the adoption of the child by those carers or guardians will promote the child’s welfare, and

…

(2)   The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.

…

13. GJH and AJH are authorised carers of PRC, as RMM properly accepts, so s 67(1)(d) may apply.

14. It is also clear on the evidence, and accepted by RMM, that PRC has established a stable relationship with GJH and AJH.

15. There is also no basis for disputing that the adoption of PRC by GJH and AJH would promote PRC's welfare. That is a different question to whether 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, as is required by s 90(3) of the Act.

16. However, s 67(2) of the Act also provides that the Court must not make a consent dispense order unless satisfied that to do so is in the best interests of the child.

17. Thus, the best interests of the child is the paramount criterion for deciding whether an order should be made dispensing with the consent of RMM, and also it is a condition under s 90 of the Act for the making of an adoption order in relation to the child. In a practical sense, the question of whether consent should be dispensed with, and whether an adoption order should be made, tend to be subsumed into each other, because, if the Court is satisfied that the best interests of the child will be promoted by the adoption, it is likely to follow that it is in the best interests of the child for parental consent to be dispensed with. As Brereton J said in Adoption of JLK and CRK [2017] NSWSC 7 (Adoption of JLK and CRK) at [16] (footnotes omitted):

…In 2006, however, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech, as enabling consent to be dispensed with where adoption would enhance a 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). As has been observed, the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child’s present situation. Essentially, this reflects a policy that once a child has, by judicial decision, been removed from his or [her] parents and placed in permanent out-of-home care, the rule that 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. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child. Where, as here, the proposed adoptive parents are authorised carers pursuant to a care order of the Children’s Court, and the children are in a well-established and stable relationship with them, the court’s reluctance to make a consent dispense order is much diminished, and the question is essentially subsumed into the issue whether adoption will serve the best interests of the children.

18. The Act contains a statement of its objects and the adoption principles that are to be applied by the Court, and these must be acknowledged. As stated in s 6, the provisions of Chapter 2 of the Act "…are intended to give guidance and direction in the administration of this Act…"

19. Section 7 of the Act provides, so far as is relevant to these proceedings:

7 What are the objects of this Act?

The objects of this Act are as follows:

(a)   to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,

(b)   to make it clear that adoption is to be regarded as a service for the child concerned,

(c)   to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,

(d)   to recognise the changing nature of practices of adoption,

…

(g)   to encourage openness in adoption,

…

20. Further, s 8 relevantly includes:

8    What principles are to be applied by persons making decisions about the adoption of a child?

(1)   In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles:

(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,

…

(2) In determining the best interests of the child, the decision maker is to have regard to the following:

(a)   any wishes expressed by the child,

(b)   the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,

(c)   the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,

(d)   any disability that the child has,

(e)   any wishes expressed by either or both of the parents of the child,

(f)   the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,

(g)   the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,

(h)   the nature of the relationship of the child with each proposed adoptive parent,

(i)   the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,

(j)   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 abuse, ill-treatment, violence or other behaviour,

(k)   the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.

21. Section 9 of the Act also makes provision to ensure that the child is able to participate in any decision made under the Act, but, as provided in sub-s (2), "…due regard must be had to the age and developmental capacity of the child." As PRC is only seven years’ old, and has the developmental difficulties that will be considered below, it is not feasible for her to participate meaningfully in any of the decisions that are required to be made in relation to the application for her adoption, and related matters. The author of the report required by s 91 of the Act reported that, in March 2018, PRC told her that she did not know what adoption was. The author also expressed the opinion that, given PRC’s age, development and learning difficulties, her capacity to understand the meaning of adoption independently is limited. The author said that PRC clearly identifies her current household as her family and that she sees her present home as her place of belonging.

22. The position that RMM has taken in these proceedings is that she accepts that it is in PRC's interests that her present placement with GJH and AJH continue indefinitely, and possibly until she reaches the age of 18, when any order for parental responsibility for her will lapse. While RMM believes, as she has stated in her evidence, that she now has a stable life, and has overcome the problems that led to PRC being taken into care, she accepts that it is unlikely into the indefinite future that she could regain parental responsibility for the child.

23. However, RMM opposes the making of an adoption order in respect of PRC, primarily on the ground set out in s 90(3) of the Act, that the making of an adoption order would not be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to her care.

24. In relation to what is meant by "clearly preferable" in s 90(3) of the Act, RMM's counsel made the following submission in his written submissions, which I accept:

38. The reference to "clearly preferable" does not require satisfaction "beyond reasonable doubt" but requires that adoption be "obviously, plainly or manifestly" preferable to any other action that could be taken by law: Re D, Application of A [2006] NSWSC 1056 at [53]; Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762 at [25] per Brereton J. This is "something more than a slight preponderance of considerations in favour of adoption over the alternatives": Adoption of RCC and RZA (supra) at [14] per Brereton J. It will require "a degree of conviction in favour of adoption which is commensurate with the gravity of the decision": Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926, Bergin CJ in Eq at [99].

25. I will return to a consideration of the application of s 90(3) of the Act in accordance with these principles below, after I have set out the facts that I consider to be most material to the question.

26. Although it is clear that the Court must comply with the restriction in s 90(3) of the Act regarding the circumstances in which it can make an adoption order, it may be observed that the combined effect of s 8(1)(a) and s 90(1)(a) of the Act is that the Court will not contemplate making an adoption order unless it is first satisfied that the adoption will be in the best interests of the child. However, once the Court is so satisfied, it will not be able to make the adoption order unless it is also satisfied that adoption is clearly preferable to any other action that could be taken by law. At this point, if adoption is not clearly preferable, then it may be presumed that the only course will be for one or other of the less preferable actions to be taken. It logically follows that the outcome may not be in the best interests of the child, as adoption can be preferable but not clearly preferable in the manner described in the authorities.

27. A consideration of the application of s 90(3) requires the Court and the parties to identify the other actions that could be taken by law, in relation to the care of the child, whose preferability must be compared to the making of an adoption order.

28. One problem, which arguably arises in the present case, is that, on 9 August 2012, the Children's Court made final orders under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act) allocating parental responsibility for PRC to the Minister until she attains the age of 18 years. That order remains in effect.

29. Section 92 of the Act provides:

92 Care of child after refusal of an application

If the Court refuses an application for an adoption order, the Court may make such orders in relation to the parental responsibility for the child concerned as it thinks fit, including, if the child is less than 18 years of age, an order declaring the child to be under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998.

30. On its face, s 92 empowers this Court, if it refuses an application for an adoption order, to make such orders in relation to the parental responsibility for the child as it thinks fit. If s 92 is considered in isolation, then the other actions that could be taken by law for the purposes of s 90(3) of the Act would include the Court refusing to make an adoption order, and then making an order for one or both birth parents, the proposed adoptive parents, or the Minister to have parental responsibility for the child.

30. RMM has submitted that s 92 of the Act empowers the Court to allocate parental responsibility for PRC to the proposed adoptive parents, if the Court declines to make an adoption order, and she urges the Court to take that course as one of two possible preferred options. I do not understand the Secretary to have challenged the power of the Court to make such a parental responsibility order, although the Secretary contends that an adoption order should be made.

31. I considered the meaning and effect of s 92 of the Act in Adoption of IEK [2019] NSWSC 171 (Adoption of IEK) at [113]-[156]. I considered a number of questions that appear to arise in relation to the application of s 92 of the Act, particularly in relation to the possibility that there may be subsisting, inconsistent orders made by this Court under the Act and the Children’s Court under the Care Act. I noted other matters that arguably give rise to inconsistencies between the way the Act and the Care Act may operate in relation to parental responsibility or other care orders.

32. In this case, if this Court were to make an order giving parental responsibility for PRC to the proposed adoptive parents, that order would be inconsistent with the order of the Children's Court granting parental responsibility for the child to the Minister that is still in effect.

33. This is not a mere technicality, as s 96(1)(a) of the Act specifically provides that, if this Court makes an adoption order, the existing parental responsibility for the adopted child, including the Minister's parental responsibility under the Care Act, ceases to have effect. There is no equivalent provision, if this Court makes an inconsistent parental responsibility order under s 92 of the Act.

34. In raising these difficulties, I have not meant to suggest that this Court should not have the power that appears clearly to be granted by s 92 of the Act. It is more that legislative steps should be taken to ensure that the Act and the Care Act work consistently, in the best interests of children. Indeed, so long as this Court is required by s 90(3) of the Act to make judgments as to the relative preferability of all actions that may be taken as alternatives to the making of an adoption order, then there is a case that either this Court should be given power to immediately make the most preferable alternative order, in place of whatever other orders are in effect, or alternatively some efficient means for another court, such as the Children's Court, should be put in place to ensure that the best outcome for the child is achieved as efficiently as possible. As I have noted in Adoption of IEK, if this Court cannot actually implement the alternative actions, then issues of delay and uncertainty logically affect the determination of relative preferability in a way that, in principle, could lead to a less than optimal outcome for the child.

35. I acknowledge that Brereton J in Adoption of JLK and CRK at [79]-[81], and Stevenson J in Adoption of N and J [2017] NSWSC 662 at [30]-[45], considered the possibility of making a parental responsibility order in favour of the proposed adoptive parents as if there were no impediment to the making of such an order under s 92 of the Act. In both cases, one or both of the birth parents opposed the making of an adoption order on the basis that, among other things, such an order was not clearly preferable in the best interests of the child than making a parental responsibility order in favour of the proposed adoptive parents. In both cases, there was a subsisting order placing the relevant children in the parental responsibility of the Minister until age 18.

36. As I acknowledged in Adoption of IEK at [152], and having regard to the decision of the Court of Appeal in D v Director-General Department of Community Services [2005] NSWCA 474; (2005) 34 Fam LR 445, the better view is that this Court is given full power in accordance with the literal wording of s 92. The case before the Court of Appeal did not, however, involve a situation where there was a parental responsibility order in favour of the Minister in effect.

37. The Court of Appeal set aside the adoption order that had been made at first instance in favour of the proposed adoptive parents in that case. The matter was remitted to the Equity Division and ultimately decided by Brereton J in Director-General Department of Community Services v D [2007] NSWSC 762; (2007) 37 Fam LR 595 (Director-General v D). His Honour decided, applying an earlier and slightly differently worded s 92 of the Act, that he should not make an adoption order in favour of the proposed adoptive parents, but instead should make an order allocating parental responsibility for the relevant child to them. The circumstances of the case were somewhat unusual, but that did not relevantly affect his Honour’s reasons or conclusion.

38. One unusual feature of the case was that the birth mother had given her consent to the adoption of the child soon after her birth. That consent was found by the Court to be invalid. A consequence was, however, that the child was placed in the care of the proposed adoptive parents, without proceedings in the Children’s Court leading to an order by that court allocating parental responsibility for the child to the Minister. Consequently, the practical and theoretical problems that arguably arise where there is a subsisting parental responsibility order in favour of the Minister did not require consideration by Brereton J.

39. Counsel for RMM submitted that it is significant that the Secretary has made the application for an adoption order in the present case. The Secretary, it is said, must be assumed to be acting in the interests of the Minister, to whom parental responsibility for PRC is presently allocated. By making the application, the Secretary has instituted a process that may lead to the Court declining to make an adoption order. In that event, it is submitted that the Secretary has, in a sense, invited the possibility that the Court will find it preferable to make an order under s 92 of the Act allocating parental responsibility to the proposed adoptive parents, rather than to make an adoption order. There is some logic in that submission in-so-far as giving parental responsibility to the proposed adoptive parents is akin to, but less definitive than, making an adoption order in their favour. The submission breaks down, however, where one or both of the birth parents ask the Court to make an order under s 92 of the Act returning parental responsibility for the child to them. The issue of the extent of the power granted to the Court by s 92 of the Act is, in my view, much more problematic where the Court is asked to return parental responsibility to the birth parents, in the face of a subsisting order made by the Children’s Court under the Care Act allocating parental responsibility to the Minister, where the birth parents are not permitted to apply for the order to be rescinded or varied unless leave is granted under s 90 of the Care Act. While this Court may take that matter into account in exercising its discretion under s 92 of the Act, problems are likely to arise where birth parents seek a de facto revision of the Children’s Court order, without this Court necessarily being in a position to fully understand the circumstances in which the Children’s Court made its decision, and without the gateway of obtaining leave under s 90 of the Care Act needing to be satisfied.

40. Slattery J, in Re Campbell [2011] NSWSC 761, appears to have accepted that there may be a limitation on what the Court can do under s 92 of the Act, although this was not an issue squarely raised in the case. His Honour dealt with an appeal from a decision of the President of the Children’s Court declining leave under s 90 of the Care Act. The birth parents argued that, if they were not given leave, they would lose forever their right to seek restoration of their child, because an application for the adoption of the child was imminent. Slattery J rejected that argument, on the ground that the birth parents could contest, at the adoption hearing, the making of an adoption order and the dispensation of their consent thereto: see [76]. His Honour said, at [84]:

It is clear that KC and SC will oppose the making of an order for Campbell’s adoption by his current authorised carers, who I understand wish to apply for such an order. That opposition is likely to generate a contested hearing. In that hearing the Court: will not be exercising jurisdiction under the Care Act, and will not have power on their application to order Campbell’s restoration to his parents. But at that hearing the Court may examine the possible scenario of Campbell being returned to the parents if they appear and advance that scenario.

42. Although Slattery J was not required to address the issue directly, his statement that this Court “will not have power on their application to order Campbell’s restoration to his parents” seems to echo the concern that I have about this Court’s power under s 92 of the Act to make orders that are inconsistent with care orders that are on foot under the Care Act.

43. The need for this Court to make orders allocating parental responsibility for children is dealt with in the Act in places other than s 92. Section 75 deals with the issue of parental responsibility for a child for whom general consent to the adoption of the child has been given by all relevant persons, or the requirement for consent has been dispensed with by the Court. Subsection (1) allocates parental responsibility for such a child to the Secretary, but sub-s (10) provides that that provision does not apply to a child who is under the parental responsibility of the Minister administering the Care Act. In this respect, the Act deals specifically with the possibility that a parental responsibility order in favour of the Minister is in place.

44. Section 78 of the Act requires the Secretary to make a report to the Court concerning any child for whom the Secretary has parental responsibility under Part 6 of the Act if the Secretary still has such parental responsibility after one year. Subsection (2) empowers the Court to make any order concerning the parental responsibility for the child that it thinks fit, including, under sub-s (3), an order declaring the child to be under the parental responsibility of the Minister. The power vested in the Court by this provision will not involve any inconsistency, because the effect of the section is to empower the Court to alter the parental responsibility vested in the Secretary.

45. Section 79 of the Act governs the duration of the parental responsibility allocated to the Secretary and, by s 79(1)(c) and (g), that duration may be governed by the Court respectively making any other provision for parental responsibility for the child, or placing the child under the parental responsibility of the Minister. As was the case for s 78, there is no scope for inconsistent parental responsibility orders, as the provision authorises the Court to vary the responsibility placed on the Secretary by the Act.

46. The Court is empowered to make interim orders in the course of any adoption proceedings, not limited to the circumstances where a general consent has been given or dispensed with. Under s 84(1) and (2) of the Act respectively, the Court may make an interim order for parental responsibility for the child in favour of the prospective adoptive parent or parents, or in favour of the Secretary or principal officer respectively. Under s 86 of the Act, the Court may at any time discharge any interim order, and then make any order concerning parental responsibility for the child that it thinks fit, including, if the child is less than 18 years of age, an order allocating parental responsibility to the Minister administering the Care Act. It is arguably strange that these provisions do not address the possibility, as was done in s 75(1), that there may already be a subsisting order allocating parental responsibility to the Minister made by the Children’s Court.

47. It is significant that s 84(1) of the Act specifically empowers the Court to make an interim order for parental responsibility for a child in favour of the prospective adoptive parents. That implicitly suggests that the Court may make an equivalent order on a final basis under s 92 of the Act. However, it should be remembered that the Act has to provide comprehensively for the adoption of children in circumstances divorced from the operation of the Care Act, and also in circumstances where the care for the child is in fact governed by orders made under the Care Act. There can be no doubt that the Court has power under s 92 of the Act to make any parental responsibility order it sees fit where there is no inconsistent care order under the Care Act. The issue is how s 92 of the Act is to be applied where there is such an inconsistent order.

48. The Court must apply these various provisions in accordance with their terms, but it is at least arguable that at least some of them do not satisfactorily address the situation where there is a subsisting order of the Children’s Court that is inconsistent with an order that this Court might contemplate making.

49. The complexities that may arise are illustrated by one feature of Brereton J’s decision in Director-General v D. As I have explained above, his Honour did not have to consider the effect of any subsisting order of the Children’s Court. However, as he explained at [27], his Honour was required to decide whether the Court could make a parental responsibility order in favour of the proposed adoptive parents under s 92 of the Act, or whether he was required instead to make a parenting order under the Family Law Act 1975 (Cth) (Family Law Act). Brereton J explained, at [33]-[40], why he reached the conclusion that this Court has power to do both, depending upon what seems to be the most appropriate course in the interests of the child. His Honour stated the conclusion at [37]:

The Supreme Court is invested with the jurisdiction of the Family Court under the Family Law Act [Mulhall v Hartnell (1988) 12 Fam LR 361; Young v Lalic [2006] NSWSC 18, [37]–[49]]. Thus if on declining to make an adoption order the Court did not make an order under s 92, it could make a parenting order under the Family Law Act.

50. It is not necessary for present purposes to explain the complex issue that was dealt with by his Honour concerning how this State’s power to control the exercise of parental responsibility for children was referred by the State to the Commonwealth, or the limitations on that referral. It is sufficient to note that, at [34], Brereton J referred to s 69ZK of the Family Law Act as having the effect that a court having jurisdiction under the Family Law Act must not make a relevant order under that Act, in relation to a child who is under the care of a person under a Child Welfare Law (as defined), unless the order is expressed to come into effect when the child ceases to be under that care. That meant that Brereton J had the choice to make a parental responsibility order under s 92 of the Act (in which case he could not exercise power under the Family Law Act to make a parenting order), or, if he declined to make an order under s 92, there would be no order placing a child in care under a Child Welfare Law, and he could then make a parenting order.

51. I respectfully agree with the conclusion reached by Brereton J, but I would suggest that it was only available because the Children’s Court had not made any order for the parental responsibility for the child. If it had, then the child would have been under the care of a person under a Child Welfare Law, and that result would not be affected by any power of this Court to make a parental responsibility order under s 92 of the Act. The only avenue available to this Court would be to make an order under that section. That conclusion assumes that s 92 empowers this Court to make an order inconsistent with a subsisting order of the Children’s Court that has the effect of extinguishing that order.

52. In the circumstances of the case now before the Court, however, following the earlier decisions of this Court referred to above, I will consider the possibility that this Court might make a parental responsibility order in favour of the proposed adoptive parents. It will only be necessary to address the difficulties that I have suggested may arise, if the Court comes to the conclusion that the making of an adoption order is not clearly preferable to the making of a parental responsibility order.

Relevant circumstances

53. A feature of this case that is of great importance is that PRC has lived in the home of the proposed adoptive parents since she was seven days’ old. PRC was born on 20 October 2011 and was taken into care at birth. She was immediately transferred to a special care nursery for monitoring, as her urine tested positive for opiates, benzodiazepines and amphetamines. PRC was diagnosed with Neonatal Abstinence Syndrome.

54. As a baby, PRC had difficulty tolerating feeding and settling. She exhibited high-pitched cries and jitters, sleep disturbance and tremors. Until she was about three years of age, PRC had gastrointestinal reactions to a number of foods, including milk and soy protein and needed a high level of care. The food intolerances were apparently associated with a family history of gastrointestinal sensitivity and not the matters that led to her being taken into care.

55. In 2013, PRC was noted to have some speech delays and underwent speech therapy. Since 2014, her limited attention span and difficulty maintaining focus has been identified. The treating paediatrician associated those behaviours with ADHD, for which she is medicated.

56. Medical advice has been given that PRC's food will always need to be prepared from a limited range of fresh ingredients, and will require the ability to cook at a fairly competent level. It is apparent that PRC will always have dietary intolerances.

57. On 12, 19 and 25 February 2019, PRC was examined in detail by a clinical neuropsychologist, who prepared a detailed report dated 26 March 2019. RMM made no challenge to the evidence in this report.

58. The clinical neuropsychologist expressed the following overall opinion concerning PRC's behaviour and mood: "…Strong consideration of diagnoses of ADHD-predominantly Hyperactive-Impulsive presentation, Major Depressive Episode, Generalised Anxiety, Separation Anxiety, Social Phobia and Obsessive Compulsive Disorder was indicated. Conduct and academic difficulties were also highlighted and panic attacks, phobias, tics and bullying were recommended for further investigation."

59. The clinical neuropsychologist also stated the following in her report:

…

In summary, [PRC's] current cognitive profile indicates that in general she functions intellectually between the Average and Low Average ranges for her age, which is adequate.

She shows a good capacity for quantitative fluid reasoning.

[PRC] shows marked problems manipulating information in her mind (working memory), particularly when there are real-life executive requirements (e.g. switching attention, tracking multiple elements).

[PRC] does not show specific "attentional" concerns per se, but behaviour shown and effort required in working memory tasks are consistent with her diagnosis of ADHD. The CBRS indicates a Hyperactive-Impulsive presentation, which is consistent with impulsivity in [PRC's] response style. Such a pattern of deficits and behaviour is evidence of an emerging executive dysfunction, and is consistent with reports about [PRC's] struggle working and learning in unstructured (group and family) contexts.

Word reading is significantly below expectations, and [PRC] has not yet developed automaticity in her early reading skills, despite intensive support. [PRC] meets criteria for Specific Learning Disorder in Reading.

Observations in this 1:1 setting include:

[PRC] is impulsive and disinhibited, which can be conceptualised as a problem with controlling or regulating her behaviour, and which is often observed in children with Executive Disturbance.

[PRC] manifests functional memory problems (forgets instructions quickly), social difficulties (poor judgments and difficulty following expected pragmatics) and fatigue.

Many features of [PRC's] presentation indicate a psychiatric component to her behaviour. She is self-conscious, has a fixation on pleasing others and a lot of her distraction appears to be generated by internal fears and worry. [AJH's] CBRS ratings flag elevated levels in Generalised Anxiety, Separation Anxiety, Social Phobia and Obsessive Compulsive Disorder and other mental health vulnerabilities including depression. It is impossible to rule out trauma experienced in utero. Anxiety and dysregulated behaviour often go hand in hand and are exacerbated by fatigue and reduced nutrition.

[PRC] meets criteria for Neurobehavioural disorder associated with prenatal alcohol exposure (PAE), and has been previously diagnosed with Foetal Alcohol Spectrum Disorder. In detail, [PRC] shows impaired Neurocognitive Functioning (executive and learning impairment), impairment in self-regulation (of attention, mood, behaviour & impulse control), and impairment in Adaptive Functioning (Social Communication and Interaction, Motor skills and Daily Living skills).

Neurocognitive Disability: Adaptive functioning interviews are consistent with significant impairment in Conceptual skills (Communication, Functional Academics, and Self-Direction). This is in line with [PRC's] emerging Executive Dysfunction, functional memory impairment and fatigue, and with her reported struggle to learn and keep up in class even with 1:1 support. The severity of [PRC's] conceptual difficulties and need for substantial support, in the context of a Neurobehavioural disorder associated with PAE, supports a diagnosis of Neurocognitive Disability.

…

60. The clinical neuropsychologist also discussed the consequences of PRC's low appetite and weight and the fatigue from which she suffers "which likely relates to poor sleep as well as mental and social overwhelm [sic] associated with her disability."

61. The clinical neuropsychologist made a long series of recommendations concerning PRC's continuing care and development.

62. An application has been made to the NDIS for funding to pay for PRC's special needs, and the present position is that Wesley Dalmar, which is responsible for supervising PRC's care on behalf of the Minister, is waiting for the necessary paperwork to be sent to its office.

63. Among other things, the clinical neuropsychologist recommended that NDIS early intervention funding will need to be fast-tracked. She said: "…This is a critical time in [PRC's] development, where she can catch up on social and adaptive skills or when issues can perpetuate and decline further. She has shown potential to learn in a calm and structured environment. [GJH and AJH] are going to need more time and training in how to support [PRC] learn practical skills, communication skills, life skills, community use, health and safety, motor skills, and social skills…"

64. In the face of all of the difficulties that stand in her way, the clinical neuropsychologist made the following observation about PRC:

[PRC’s] strengths are her friendly demeanour, generosity, sense of humour and her intellect. She likes playing games, and interacting in spaces where she knows what’s expected and things are clearly defined. Her caring family are another protective factor.

65. This observation is confirmed by the author of the independent report prepared in conformity with s 91 of the Act who noted, based upon PRC's 2017 school reports, that she was described as "a joyful member of the class with infectious enthusiasm", a "cheerful and bubbly student" who "has a flair for communication and expresses her ideas infectiously and with passion".

66. It is a sad fact that PRC has been damaged by the circumstances of her gestation and faces serious immediate and longer-term health, psychological and developmental problems. I infer that there is a likelihood that aspects of the deficits that PRC has experienced from birth will persist throughout her life, and, in any event, she will be likely to need special care including after she reaches the age of 18 years.

67. GJH and AJH have five biological children, three of whom are of an age that they live independently, and two aged 16 and 12 still live in the family home. In addition, the proposed adoptive parents are the authorised carers of BC, born on 28 April 2014, who was placed in their care on 7 May 2014. GJH and AJH have expressed a desire to adopt BC, but there are complexities to that occurring because BC is an indigenous Australian. There are no plans for BC to leave the care of the proposed adoptive parents before she attains 18 years of age.

68. The delegate of the Secretary expressed the view in her principal affidavit that PRC is thriving in the care of the proposed adoptive parents and she identifies with them as being her family. It is her opinion that there are distinct advantages in adoption for PRC, in that the permanence of an adoption order will create stability for the child, and provide her with a sense of belonging, which she cannot achieve in long-term foster care or under an order for parental responsibility to be allocated to the proposed adoptive parents.

69. Further, the author of the independent s 91 report gave the following opinion:

[AJH and GJH] are considered highly suitable to adopt [PRC] who has been with them since a few days of her birth. She strongly identifies [AJH] as her mother and [GJH] as her father and identifies [that] she is an integral member of their family. [AJH] and [GJH] have demonstrated resilience as individuals dealing with a number of issues in terms of the trauma experienced by [AJH] and the significant changes [GJH] endured growing up…They have a good understanding around the life story needs [PRC] has and will continue to have about not being raised by her birth family. They are active in seeking professional advice and intervention if required for themselves and their family members. They present as loving and supportive parents who prioritise the needs of their family first.

70. The author of the independent report also considered the relative preferability of maintaining the status quo, making an order allocating parental responsibility to the proposed adoptive parents, restoration to the birth parents, and the making of an adoption order. The reporter said as follows: "…[PRC] considers [AJH and GJH] to be her psychological parents, calling them "Mum and Dad" and they in turn see her as their daughter. During the visits, I observed the home environment being provided by the carers to be loving, supportive and nurturing and their interactions with [PRC] appearing natural and relaxed."

71. The author of the independent report concluded as follows:

Taking into consideration all the information collected for this report, it is my professional opinion that an adoption order is the most appropriate legal order for [PRC]. An adoption order will provide [AJH, GJH and PRC] with legal certainty and formal recognition of the relationships that already exist. Adoption will allow [AJH and GJH] the authority to raise [PRC] into adulthood, providing her with the knowledge that she will not be removed from their care and will be provided with a secure, stable and loving environment to grow up in.

13. RECOMMENDATION:

I recommend that [AJH and GJH] be considered as eligible adoptive parents for [PRC] and legal proceedings commence for [PRC] to be adopted by them, her authorised foster carers. I consider that an Order of Adoption will secure [PRC's] permanency within her foster family and legalise the strong parent-child relationship that already exists between [PRC, AJH and GJH].

Outcome sought by RMM

72. As I understand the position taken by RMM, her primary submission is that the making of an adoption order is not clearly preferable to the two viable alternatives, being the dismissal of the summons, so that parental responsibility will continue to reside in the Minister until PRC attains the age of 18, or an order is made pursuant to s 92 of the Act, allocating parental responsibility to GJH and AJH. Both options would preserve the legal relationship that PRC has with her birth mother and the rest of her birth family. Among other things, RMM is concerned that the making of an adoption order will damage the child's sense of identity in the long run because it will promote an erosion of her contact with her birth family.

73. PRC has eight maternal half-siblings. The only one of those half-siblings who is under the age of 18, MT, is now 14 years’ old. He is currently under the parental responsibility of the Minister, although he has self-placed with RMM, who is hopeful that an order will be made by the Children's Court restoring parental responsibility for MT to her.

74. PRC has had some limited contact with some of her maternal half-siblings through their attendance at face-to-face contact visits between PRC and RMM, and also other communications facilitated by the proposed adoptive parents.

75. PRC has had contact in a similar way with her maternal grandparents, which has continued with her maternal grandmother since the recent death of her maternal grandfather.

76. Since the order was made by the Children's Court allocating parental responsibility for PRC to the Minister, RMM has generally had face-to-face contact with PRC on a minimum of four times per year, but also recently arrangements were made for PRC to participate as a flower girl in RMM's wedding.

77. As appears from RMM's affidavit, she has experienced some disappointment with PRC's attitude towards her at face-to-face meetings, in that the child has insisted that AJH is her mother and has not always been ready to call RMM “mum”. PRC knows RMM to be her “tummy mummy”, but RMM has expressed some dissatisfaction with that concept. Otherwise, the face-to-face contact visits have been satisfactory, and PRC appears to enjoy the time that she spends with RMM.

78. It is reasonable to speculate that PRC's reaction to learning that she has a mother other than AJH may be influenced by the special circumstance that she has effectively lived with the proposed adoptive parents all her life, and so does not have any independent recollection of a relationship with RMM as her mother.

79. RMM has on a number of occasions expressed dissatisfaction with being limited to only having four face-to-face contact visits with PRC each year. The agreed amended maternal adoption plan provides for that number of face-to-face contact visits. However, in addition, it also provides for the proposed adoptive parents to invite RMM to a minimum of two school events occurring at PRC’s school per year, and also for RMM to participate in various special events that are identified. The maternal adoption plan also makes provision for contact between PRC and her maternal half-siblings and her maternal grandmother. Provision is also made for telephone and electronic communication, as well as the exchange of photographs, letters and gifts.

80. As I have explained above, PRC's birth father, DVC, has formally consented to the making of an adoption order. He has had no direct relationship with PRC since her birth. PRC apparently has four paternal half-siblings. She has had limited contact with one of her paternal half-siblings but no contact with the others.

81. In essence, RMM submits that maintaining the status quo would be better than making an adoption order because PRC would benefit from the continuing oversight and assistance of Wesley Dalmar on behalf of the Minister given her special needs. RMM submitted that PRC would still benefit from the day-to-day care of the proposed adoptive parents, and the possibility that she would suffer a stigma because she remains a child in out-of-home care will be reduced by the fact that she will continue to live with BC, who is likely to continue to be in the same position. On the other hand, RMM submitted that the making of an order for parental responsibility for the child in favour of the proposed adoptive parents would have the advantage of maintaining the legal link between PRC and her birth family, while providing autonomy to GJH and AJH to make all decisions that a parent could make for the child.

82. RMM supported this submission by saying that, because of her circumstances, she would be unlikely to succeed in obtaining an order under s 90 of the Care Act for restoration of PRC to her care, so that there is no real risk that the child will suffer from emotional uncertainty as a result of the possibility that a parental care order in favour of the proposed adoptive parents will not endure until PRC attains the age of 18 years.

Decision

83. The power of the Court to make an adoption order is derived from s 23 of the Act, but an adoption order cannot be made unless the conditions specified in ss 87 to 91 of the Act are satisfied. It is clear that the conditions in ss 87 to 89 and 91 are satisfied, and there was no issue between the parties about the satisfaction of those conditions. The dispute between the parties was as to whether the requirements of s 90 of the Act have been satisfied.

84. The first matter in issue was whether the best interests of PRC will be promoted by the making of an adoption order (s 90(1)(a)), which is related to the requirement in s 90(3) that the making of an adoption order must 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.

85. Secondly, RMM opposed the making of an order by the Court dispensing with her consent, as is required in the present case by s 90(1)(d) of the Act.

86. RMM properly did not suggest that s 90(1)(b) of the Act was not satisfied because the wishes and feelings of PRC have not been ascertained and due consideration given to them. I have explained above that PRC does not really understand the meaning of adoption, and in any event she sees her only real home as being the home of the proposed adoptive parents.

87. It is clear that GJH and AJH have been selected in accordance with the Act, as required by s 90(1)(c).

88. RMM has not suggested that any of the matters set out in s 90(1)(h) of the Act, such as the culture, religion and identity of PRC, have not been taken into account, and I am satisfied that those matters have been properly addressed in the decision to make the application for the adoption order, and in the preparation of the adoption plan.

89. In this case, the parties have agreed to the terms of the maternal adoption plan, and I am satisfied for the purposes of s 90(2) of the Act that the arrangements contained in the plan are in PRC’s best interests and are proper in the circumstances.

90. The paramount question is therefore whether the making of the adoption order will be in the best interests of PRC and whether such an order will be clearly preferable in the best interests of PRC than any other action that could be taken by law. For the reasons that I have explained above, the answer to that question is linked to that which arises under s 67(2) of the Act which precludes the Court from dispensing with RMM’s consent unless satisfied that to do so is in the best interests of PRC.

91. In addressing these questions, I have had regard to the objects of the Act listed in s 7, and all of the relevant matters specified in s 8 of the Act. I have already explained above why s 9 does not require PRC’s participation in the decision in this case as to whether an adoption order should be made.

92. In short, I have considered the arguments put forward by RMM carefully, but I am satisfied by the evidence that the opinions expressed by the delegate of the Secretary and the author of the independent report are correct, and that the making of an adoption order as sought will be clearly preferable to any other action that can realistically be taken at law.

93. First, on the particular facts of this case, the introductory submission made by counsel for the Secretary has great force. The home of the adoptive parents has been PRC's real home for the whole of her life. Yet, her legal status is that she is in an out-of-home placement. In this particular case, the making of an adoption order will make the child's legal status fully congruent with the true reality of her life as she perceives it.

94. Secondly, the simple fact that PRC has lived as part of the proposed adoptive parents’ family, with her adoptive siblings and extended family, on a day-to-day basis for effectively the whole of her life, militates strongly in favour of the making of an adoption order. Although the Act requires that the Court have regard to the relationship which the child has with her parents and siblings (see s 8(2)(f)), and it is desirable that PRC’s connection with her birth family be sustained, her contact with that family has been very limited from birth, and I am satisfied that the arrangements contained in the maternal adoption plan should be sufficient to maintain that connection, if implemented in the proper spirit, contrary to the fears expressed by RMM.

95. Thirdly, as RMM accepts, there is no realistic possibility of the restoration of PRC to the care of RMM. Consequently, the following benefits of adoption identified by Brereton J in Adoption of NG [2014] NSWSC 680 at [76]-[81] are, in my view, applicable to the present case:

[76] 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…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…

[77] 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.

[78] 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.

[79] 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.

[80] 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.

[81] 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.

96. Fourthly, PRC has all of the special needs that I have described in some detail above, which s 8(2)(d) of the Act makes material to the determination of what is in her best interests. The evidence satisfies me that the proposed adoptive parents have gained considerable experience in providing PRC with the care and nurturing that she needs. While I would hope that PRC will overcome her disadvantages, there must be a real possibility that she will need ongoing special care and support past attaining the age of 18. The making of an adoption order, whereby PRC will for all legal and practical purposes become a permanent member of the proposed adoptive parents’ family will facilitate the continuing availability to PRC of all of the support that she may need.

97. I consider that the making of an adoption order would be considerably more preferable than maintaining the status quo, because PRC’s emotional, psychological, and developmental concerns are likely to make her more susceptible to the possible detrimental consequences and stigma of remaining a child in care through her formative years than may have been the case if she was a completely healthy child. Subject to one matter that I will raise below, I am satisfied by the evidence that there is no longer any need for the Minister, or Wesley Dalmar on behalf of the Minister, to have any ongoing role in the making of important parental decisions for PRC. GJH and AJH have well demonstrated, by their success in bringing up their own children, and in the fostering of PRC and BC, that they are competent and capable of making all necessary parental decisions on behalf of PRC.

98. For similar reasons, I consider that the certainty that will come from the making of an adoption order makes that course clearly preferable to an order allocating parental responsibility for PRC to GJH and AJH.

99. I have borne in mind that one of the reasons why RMM opposes the making of the adoption order is that, on a number of occasions, PRC has made comments to RMM during contact visits that suggest that PRC does not recognise RMM as her mother. RMM has understandably found those comments to be hurtful. It is possible that PRC’s apparent difficulty in accepting that RMM is her birth mother is related to the fact that PRC has had no experience of living with RMM. I am satisfied that the proposed adoptive parents will foster PRC’s acceptance of having a birth and an adoptive family, and that the implementation of the maternal adoption plan will remedy RMM’s concerns over time.

100. Accordingly, I will make an order for the adoption of PRC by the proposed adoptive parents. All of the requirements of the Act are satisfied, although I have not seen the need to specifically refer to all of those requirements. That is in part because RMM has been legally represented, and only the issues in contention have been the subject of argument.

101. I will specifically note, as required by s 67(2) of the Act, that I am satisfied that it will be in the best interests of PRC to make an order dispensing with the consent of RMM to the adoption of the child. That follows from the same bases that found my satisfaction that the making of the adoption order is clearly preferable to any other action that is available.

102. As mentioned above, RMM also opposes the change of name of the child proposed by the Secretary and requested by the proposed adoptive parents. The change would give the child the same surname as the family with which she lives. She would retain her present surname as part of her given names.

103. Section 101(2) of the Act requires the Court, before changing the surname or given name or names of a child, to consider any wishes expressed by the child concerning the child’s names. In the present case, PRC is old enough for any wishes that she had expressed on this subject to be given some weight. However, the evidence does not disclose any detailed expression of PRC’s wishes, although there is reference to PRC being excited about having the surname “H”. The evidence does establish that PRC sees herself as being part of the proposed adoptive parents’ family.

104. RMM has taken the stance noted above on the ground that retaining her existing names will likely foster the continuing identification of PRC with her birth family. However, RMM acknowledges that the circumstances in which the child was given her birth father's surname were accidental, and that it was RMM's intention that the child have RMM's then surname. That surname was a different surname than RMM's present surname, following her recent marriage. Both the surname that the child now has, and the surname that the child would have had without the mistake that was made, is a different surname to all of PRC's maternal half-siblings.

105. In those circumstances, there is little to be gained by PRC retaining her present surname. Properly viewed, that surname does not foster the connection between PRC and her maternal birth family because of the birth family’s different surnames. It is a link between PRC and the birth father, with whom she has never established any relationship. It is in PRC’s best interests that she be given the surname of the proposed adoptive parents, and I will make an order to that effect.

106. Section 101(5) of the Act requires that the Court 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. This provision applies in the present case only insofar as PRC’s present surname will become part of her given names. In my view, this name change is in the best interests of PRC, as it preserves as part of her full name the surname that she was given at birth and by which she has been known to this time. The change will retain some continuity in PRC’s name.

107. I will not make the orders sought by the Secretary now, but I will do so in due course. I was advised during the hearing that, if I was prepared to make the adoption orders sought, the adoptive parents would prefer for that order to be pronounced in Court. Accordingly, I will publish these reasons for judgment, and my associate will make an arrangement through the Crown Solicitor for an appropriate date for orders to be made.

108. The only reservation that I have concerns the time when the adoption order should be made. I have referred above to the evidence that the clinical neuropsychologist advised that the child, who will now become known as PRCH, will need significant services to be provided through the NDIS. An application for that assistance is in a relatively early stage of prosecution through Wesley Dalmar. I am open to correction, but I would think that Wesley Dalmar may be in a better position to prosecute that application than the proposed adoptive parents. There is a question, therefore, of whether I should defer the making of an adoption order, and leave the status quo in place for a short time to enable Wesley Dalmar on behalf of the Minister to pursue the application that has been made to the NDIS.

109. I have raised this issue in part because of the information provided to the Court that Wesley Dalmar has commenced the NDIS application process, and it may be advantageous for the application not to be transferred to the proposed adoptive parents in midcourse. The NDIS is a new institution and it may be that Wesley Dalmar has more experience with the process than GJH and AJH will have. To some extent, this issue provides some support for RMM’s argument that the maintenance of the status quo, whereby the Secretary has ultimate responsibility for PRC, will be in the child’s best interests. However, I am satisfied that, in general, GJH and AJH will be able to make all necessary parental decisions in PRC’s best interests, and will be capable of undertaking all of the necessary administrative steps for her proper welfare. I consider the application for NDIS funding to be a special case because of the circumstances referred to above.

110. I will invite the Secretary to respond to the suggestion of a deferral of the making of an adoption order as outlined above, preferably within 14 days of the publication of these reasons for judgment. I will remain open to persuasion that the child's best interests will not be disadvantaged by the making of an adoption order before the fate of the application for NDIS assistance is known. However, I note the limited nature of the financial assistance that will be provided to the proposed adoptive parents that is disclosed in the maternal adoption plan. The child’s circumstances may require a greater financial expenditure for her well-being than is usually the case. I would like to be satisfied that the best outcome possible will be achieved to ensure her future well-being.

111. As GJH and AJH have requested that the orders be made in Court, an arrangement will be made in due course for the proceedings to be listed for the making of orders.

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Decision last updated: 09 July 2019