Adoption of SVS

[2015] NSWSC 2043

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of SVS [2015] NSWSC 2043
Hearing dates:	9 December 2014, 31 March 2015, 1 April 2015
Date of orders:	01 April 2015
Decision date:	01 April 2015
Jurisdiction:	Equity - Adoptions List
Before:	Brereton J
Decision:	Adoption order made; consent dispense order made; adoption plan approved.
Catchwords:	FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – where restoration of child to birth parent not proposed – where removing child from adoptive parents’ care would disrupt child’s development – whether long term foster care preferable – whether age of adoptive parents militates against adoption order – impact of order on relationship with biological siblings – where proposed adoptive parents in a better position to facilitate contact with birth parents than the Department – where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them – held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child; FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether consent of birth parents ought to be dispensed with – as the making of an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made; FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adequacy of adoption plan – whether sufficient contact with birth mother – whether contact with birth mother should be permitted in presence of birth mother’s partner – whether contact with birth mother should be permitted in absence of one or both adoptive parents.
Legislation Cited:	(Cth) Family Law Act 1975 (NSW) Adoption Act 2000, s 8(1), s 23(2), s 24(1), s 28(1), s 28(3), s 28(4), s 67(1), s 87, s 88, s 90(3), s 91 (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90(4)
Cases Cited:	Director-General, Dept of Community Services v D [2007] NSWSC 762; (2007) 37 Fam LR 595
Texts Cited:	J Triselotis, ‘Long-Term Fostering or Adoption: the Evidence Examined’ (2002) Child and Family Social Work 7 M Bohman and S Sigvardson, ‘Outcome in Adoption: Lessons from Longitudinal Studies’ in D M Brodzinsky & M D Schecter (eds), The Psychology of Adoption (1990, Oxford University Press)
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services (plaintiff) KF (defendant) SVS (child)
Representation:	Counsel: M Neville (plaintiff) R Dart (defendant)   Solicitors: Crown Solicitor (plaintiff) Louise Coady Family Lawyers Pty Ltd (defendant)
File Number(s):	A119/2013

Judgment (ex tempore)

1. HIS HONOUR: SVS, the child the subject of these proceedings, was born on 17 September 2009, the child of the first defendant KF and SS. In these proceedings, the Secretary by his delegate the Principal Officer (Adoptions) of Barnardos, seeks orders for the adoption of SVS by the adoptive applicants, BAP and PML (a same-sex couple), a consent dispense order in respect of KF, and an order approving SVS's name on adoption. For the sake of confidentiality, and without intending undue informality or indicating any lack of respect, I shall refer to the parties by their initials.

2. SVS was born very prematurely at, what the evidence suggests, was either 24 or perhaps 26 weeks of gestational age. Not long after her birth, she contracted an infection, was critically ill, and for a time was not expected to live. On 11 December 2009, she was assumed into care by Community Services, along with her older maternal half-brothers AS and KS, for what were then said to be concerns that included that the children might be at risk of exposure to neglect, physical and sexual harm, domestic violence and parental drug use. In relation to SVS, there was a concern that neither KF nor SS had demonstrated an ability to meet her care needs, particularly in light of her serious illness.

3. SVS remained in hospital until 24 December 2009, when she was placed with PML and BAP as foster carers. AS and KS were placed with a community services temporary foster carer. After nine months with foster carers, they too were placed with PML and BAP, but they remained for a period of only ten days, and were then placed elsewhere. On 20 September 2010, the Childrens Court made final orders allocating parental responsibility for all three children to the Minister until 18 years of age.

4. KF made an application under (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90(4), for leave to re-open that question on 25 September 2012, but withdrew that application on 26 November 2012. She has recently made a further such application in respect of AS and KS. Leave has been granted, and the application to rescind or vary the parental responsibility order in respect of AS and KS is now to be heard in the Childrens Court.

5. The Secretary's delegate proposes that SVS continue to reside with PML and BAP, as she has for more than five years now; that a consent dispense order be made in respect of KF's consent; that an adoption order be made in favour of PML and BAP; and that SVS's surname be changed to accord with that of one of the proposed adoptive parents. The Secretary also proposes that SVS have contact with KF six times per year, in accordance with an adoption plan.

6. The birth mother KF opposes the making of a consent dispense order and an adoption order, but does not seek restoration of SVS to her care. She proposes, as an alternative, that a parental responsibility order be made in favour of BAP and PML until SVS attains 18 years of age, and that she have contact eight times per annum pursuant to a "spend time with" order under (Cth) Family Law Act 1975. She does not oppose the proposed change of name, regardless of whether or not an adoption order is made.

7. The delegate and the proposed adoptive parents do not seek or support a parental responsibility order, so that in a practical sense the alternative to an adoption order is leaving the status quo in place. The birth father has consented to an adoption order, and an adoption plan makes provision in respect of contact with him if he seeks it in the future.

8. Essentially, the issues for consideration are:

1. Whether adoption would promote the child's interests and is clearly preferable to any other order that could be made in respect of SVS's care;

2. What provision should be made for contact with KF; and

3. Whether KF’s consent should be dispensed with.

9. As I have said on many occasions in the past, it is worth remembering that these inquiries are concerned with the future rather than with the past. At their centre is ascertaining the best interests and welfare of the child, now and in the future, and not the rights and wrongs of past conduct and decisions – whether of the birth parents, the adoptive parents or the Department. The principles to be applied in making decisions about adoption are well established and set out in (NSW) Adoption Act 2000, 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;

…

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

…

(e)(1) undue delay in making a decision in relation to the adoption of the child is likely to prejudice the child's welfare.

10. 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 or 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, but does not amount to a requirement for satisfaction "beyond reasonable doubt". The requirement 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 [see Director-General, Dept of Community Services v D [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]].

11. For the purposes of Adoption Act, s 23(2)(a), I am satisfied that when the application was filed, SVS was present in the state of New South Wales and that, for the purposes of s 24(1)(a), she was then less than 18 years of age, as she still is.

12. SVS is now five and a half years of age. She has four biological siblings: GS, born 14 January 1980 who is her maternal half-sibling; A, born 4 March 1992, a full sibling; and AS and KS, to whom I have referred, both maternal half-siblings born respectively on 2 June 2004 and 18 February 2007.

13. Despite her perilous start to life, SVS now presents as a healthy, alert and active little girl. She has commenced her education and has done well in the care of the adoptive applicants. The s 91 report describes that they have included SVS into their family, and she identifies as one of their children. She is included in all family activities and celebrations and looks forward to those events. The adoptive applicants' grandchildren identify SVS as being part of their family and she identifies them as her family. SVS is aware that she has two families, and the adoptive applicants talk with her in an age-appropriate way about both families and are open with SVS about KF being her birth mother.

14. There is no doubt that SVS has a confident relationship with BAP and PML, that she feels accepted by them, and that she is strongly and securely attached to them and comfortable with them. Her relationship with KF is necessarily entirely different. She has never lived with KF, and her ability to get to know her has been limited to the occasions of contact that have taken place over the years. Likewise, her relationship with her biological siblings has been limited to occasions of contact and the ten days or so, at a very young age, when they too were in the care of BAP and PML. Her contact with her full sibling A, and with GS, has regrettably been even less; so far as the evidence discloses, they last had contact about three years ago in 2012. Nonetheless, the reality is that by far the predominant influence in her life in terms of a family connection has been PML and BAP.

15. The adoptive applicants have reported that in recent times, to some extent, SVS has demonstrated some temper problems which they did not experience with their own children. Concerns expressed by an early reporter, Ms Lindfield, who prepared a report in 2012 at a time before adoption had been selected as the plan for SVS and which chiefly considered whether all three children should be placed together, expressed concerns that there was a risk of SVS becoming socially isolated. That has not been manifested, with SVS interacting with other members of the adoptive applicants' family and now attending school.

16. It is fair to say that it is difficult to think of anything that could be more calculated to disrupt SVS's development and progress than removing her from her present placement. KF recognises that and does not seek it as an outcome. That means that, in this case, the essential issue is not whether SVS should remain in the care of BAP and PML, but the legal basis on which she should do so, and consequent upon that, what contact she should have with KF.

17. So far as the birth father is concerned, SVS has had no significant relationship with him, although he consents to the adoption because, in his words, "the carers are doing a really good job," and he wants to avoid any further risk to SVS's welfare. KF, on the other hand, opposes an adoption order and a consent dispense order. Although entirely understandably she would wish to mother SVS, she does not seek restoration. She recognises that SVS is well cared for where she is, settled, and that it is not in her interests to be moved or disrupted from that placement.

18. KF has made considerable efforts since the removal of the children more than five years ago to improve her parenting capacity, having attended and completed a number of courses. She has displayed an ongoing and strong commitment to SVS's welfare through her involvement in case conferences relating to SVS. It should also be observed that in respect of contact with SVS, KF's conduct has been entirely appropriate. She attends well-prepared and conducts herself in an entirely appropriate manner, although on one or two occasions in the past some concerns were identified in respect of her ability to focus attention on the children, largely in the context where there were several competing for attention at one time. In Court, she presented as a sensitive, insightful and intelligent woman who has made tremendous strides in implementing changes in her life over the last five years. Indeed, I found her one of the most impressive witnesses so far as birth parents go that I have seen in one of these cases. Although it is not my judgment to make and although I have not seen all of the evidence that would be relevant in such a case, it seems to me that there is a realistic prospect of AS and KS being restored to her care. But she recognises herself that there is a massive difference between their cases – as they have resided in her care for a sustained period in the past – and that of SVS, who has never been in her care.

19. Because restoration is not proposed as an alternative in this case, it is not necessary to engage in any comparison of the parenting capacities of the birth mother and the proposed adoptive parents. That said, because of the time that has passed, and the secure bonds that have been established between SVS, on the one hand, and BAP and PML on the other, it would require more than an equivalence of parenting capacities to justify disrupting that now settled placement.

20. So far as the adoptive applicants are concerned, for the purposes of s 23(2)(b) and s 28(1)(a), they are domiciled in this state. For the purposes of s 28(1)(b), they are of good repute, fit and proper. The evidence indicates that they have no disclosable court outcomes. They meet the age requirements of s 28(3), and for the purposes of s 28(4), they have been a couple and living together for longer than two years, having been living together for in excess of 30 years. I am satisfied that the proposed adoptive parents have been selected in accordance with the Act. Both of them are trained nurses.

21. Both adoptive applicants are approaching their 61st year of age. BAP has two biological children conceived by IVF, and PML has one natural child. They have raised those children successfully to parenthood, and to the point that those children, or at least some of them, are themselves parents. Although one of them has high blood pressure, generally they are fit and healthy, live active lifestyles and eat a healthy diet. They are of healthy habits, perhaps unsurprising for trained nurses. They have demonstrated that they are capable parents, and that they are committed to discharging the responsibilities of parenthood. Their successful raising of their biological children, and their successful raising over the last five years or more of SVS, in proof of that. There is no question but that they are committed to SVS for life.

22. I have had concerns about their capacity and willingness to support birth parent contact. I do have the sense that they are somewhat over-protective of SVS, perhaps unsurprisingly so given her traumatic early months, and that to some extent they are insecure in their relationship with KF, in that they feel some doubt as to the permanent security of their relationship with SVS. They have been slow to embrace contact with SVS's birth mother as a crucial element of SVS's upbringing and welfare, and some aspects of their evidence which indicated a reticence about that cause me no little concern. On the other hand, they have always been compliant with contact arrangements, though perhaps not enthusiastic about it. I am entirely satisfied that they will comply with whatever contact arrangements might be put in place as a result of this case. It is also encouraging to note that the most recent occasion of contact before Christmas 2014 was reported by all parties as by far the most enjoyable and successful to date and perhaps that reflects, amongst other things, a growing recognition on their part of the importance that the relationship with KF must play in SVS's development if she is to be a rounded and robust human being.

23. As I have said, the critical question in this case is whether adoption will promote SVS's best interests and whether it is clearly preferable to any other order that could be made with respect to her welfare. Answering that question essentially requires considering the likely effects of adoption, and comparing them with the various available alternatives, and considering their respective benefits and detriments from the perspective of SVS's best interests. At the end of that exercise, one must ask whether adoption is clearly preferable to the alternatives.

24. In this case, I have not excluded from consideration the possibility of making a parental responsibility order, notwithstanding the attitude expressed by the delegate and the adoptive applicants. The comparison is essentially between maintaining the status quo of SVS residing with PML and BAP as foster carers and as a ward of the Minister in out-of-home care, or residing in exactly the same house with the exactly the same people under practically exactly the same physical circumstances, but legally as their child.

25. Consideration of this question, as usual, commences with the generalities. The best resort the Court can have to understand the respective benefits of long term foster care and adoption is to what the social science, soft as it may be, tells us, and it was deployed in this case through the evidence of the parties’ single expert Jenny Howell, forensic psychologist. She referred to the works of Triseliotis and of Bohman & Sigvardsson, which are commonly referred to in this area, and said:

Research examining outcomes connected to adoption and long term fostering found as the key differences between the two forms of substitute parenting high levels of emotional security and the sense of belonging and general wellbeing in children who were adopted (Triseliotis 2002).

Attention has been drawn to the sometimes ambiguous position of children in long term foster care, suggesting that, unlike adoption, many children in long term care feel unusually insecure and lack a strong sense of belonging (Bohman and Sigvardsson 1990).

26. Studies have identified that the insecurities were concentrated in two areas: anxiety and uncertainty on the part of the child and carers due to the impermanence of their position, and the lack of certainty in their position.

27. The practical effect of adoption in a case such as the present is to perfect the child's membership of the family of which in every other sense she is a member, and which is essentially the only family she has ever known. It brings the legal relationship of parentage into conformity with the reality of the situation. It also means that the child becomes a child of the adoptive parents, not just until she attains 18 years of age, but for life. It confirms her identification with the family with which she lives and which she sees emotionally and psychologically, as well as physically, as her family. It ends her status as a ward of the Minister and means that she is no longer in "out-of-home care" but in "in home care". It removes any residual doubts, remote as they may be, as to the future security of her placement.

26. On the negative side, adoption severs the legal relationship with her birth family. But it has to be said that that has been a very limited relationship. She has had no relationship, so to speak, with her birth father, whose surname she bears. Her relationship with her birth mother has been limited to occasions of contact. Severing the legal relationship will not sever the biological relationship, nor will it detract from the potential for developing a meaningful relationship through ongoing contact. In terms of developing and sustaining a relationship between SVS and KF, I do not see that adoption has significant detriment as distinct from the status quo.

27. Adoption can undoubtedly carry a risk that a child may feel unwanted or abandoned. So far as KF’s position is concerned, I am sure that the sense of not wanting to give SVS that feeling has contributed to KF's position in resisting adoption. The risk of a sense of abandonment is much greater if the child does not know why she is not living with her biological parents, or does not know who they are. In this case, SVS knows who her birth mother is, has and will continue to have an ongoing relationship with her – one that, as I will indicate, I hope can develop and prosper in the future – and in those circumstances the risk of a sense of abandonment is much mitigated, as is the concern that a child's identity will be compromised through adoption. If a child knows who her birth parents are, the reasons why she does not live with then, and has an ongoing relationship with them, the risk of identity issues in teenage years and later in life is, I think, significantly mitigated.

28. The considerations to which I have so far referred are those which pertain not just in this case but in most cases of this kind. However, Ms Dart for the birth mother in her capable submissions advanced three additional reasons specific to this case against making an adoption order.

29. The first was the considerable age gap between the adoptive parents and SVS – a gap of some 55 years – the consequences of which include that both BAP and PML will be in their seventies when SVS is a teenager, and will be 76 when she attains 18 years of age. This, it was submitted, casts doubt on their ability to manage the challenges that SVS may well present during adolescence, and would increase the risk that she would lose either of her parents at a young age, and could result in her becoming responsible, as a teenager, for the care of one or other of the adoptive parents.

30. In addition, it was said that the age gap would increase the risk of placement breakdown, particularly during the teenage years. As to this, there is no evidence – certainly, none was adduced in this case – that an age gap or an increased age gap between child and parents is a risk factor for relationship breakdown or placement breakdown. In our aging society, it is becoming increasingly common for parents to be older relative to a child than once they were. It is of course not uncommon for children for one reason or another to be raised by their grandparents or one of them. It seems to me that if an increased age gap is a risk factor for relationship or placement breakdown, of which as I have said there is not in this case and I am not aware otherwise of any evidence, it must nonetheless be a highly idiosyncratic one which would depend very highly on the personalities involved in each particular case.

31. I do not think that I can predict that this placement is any more likely to break down because of the age factor than otherwise. I do not accept that it is a matter for legitimate criticism of the adoptive applicants that they have not thought through their responses to the challenges with which they may well be presented during SVS's teenage years. I doubt that most parents think through when their child is five or six how they are going to cope with the challenges that may be presented when that child is 15 or 16. It is very difficult to foresee precisely what those challenges will be so as to develop coherent responses to them until much closer to, if not at the time of, the event.

32. Against that, BAP and PML are experienced parents with a good track record of success with their children to date. I do not think that there is any sound reason to suppose that they will be any less capable of dealing with the challenges that SVS may present in her teenage years. Moreover, their biological children provide them with a reference point and connection in the age/time continuum closer to SVS, and persons closer to SVS's age to whom she will have an opportunity to relate – as too, I hope, the birth mother KF will. If there is an increased risk of SVS becoming responsible as a teenager for the care of one or the other of the adoptive parents, I see that only as a very marginally increased risk. Each of them has the other in the first instance to look to for a carer, and then their adult children, before any such responsibility might be visited on SVS. I do not see either of them as the type who would seek to take advantage of SVS in that manner.

33. Finally, in this respect, if there is a risk of relationship or placement breakdown because of the age factor, that is a risk that exists regardless of whether or not an adoption order is made. It seems to me that, if anything, cementing and securing the relationship by an adoption order will minimise, rather than increase, that risk.

34. The next matter raised by Ms Dart was that SVS, as distinct from many of the children one sees in these cases, has been fortunate enough to have known only one placement – with the adoptive applicants – rather to have had a highly disrupted early few years through a number of placements which would have jeopardised her ability to form secure attachments in the future, and in addition that it is unlikely, given KF's attitude, that that placement will be challenged, so that there should be less concern about threats to its security. There is no doubt that in this respect SVS has been fortunate, and credit is due to KF for her mature and sensitive approach in this respect, which has contributed to it. I accept that some of the risk factors associated with long term fostering are not present in this case. But the absence of factors which sometimes accentuate the desirability of an adoption order does not equate to the presence of factors telling against an adoption order. The benefits of adoption are not reserved for the most compromised or the most vulnerable children. If those benefits exist, then they ought to be available, notwithstanding that a child is not in the most compromised or vulnerable category.

35. The third specific matter raised by Ms Dart, although it is not unique to this case, is the impact of adoption on SVS's relationship with her siblings. Again, it is true it will sever the legal relationship of brother and sister with the four siblings who I have mentioned. But as I have said, in a practical sense, she has had very little to do with the two elder siblings, GS and A; and although she has ongoing contact with AS and KS, she will continue to do so; she will continue to know them as her biological brothers, and the quality of that relationship is unlikely to be affected by the making of an adoption order.

36. For those reasons, I see no significant advantage in the status quo over an adoption order, and many advantages in the other direction; that is to say in favour of adoption over the status quo. While that is my own conclusion, it is consistent with the expert evidence before the Court. Thus, Ms Lindfield in the report prepared in January 2012 observed:

[SVS] has now been in her current placement for over two years, nearly all of her life to date and she is exclusively bonded to [BAP] and [PML]. She has made essentially good developmental progress and on balance I believe that the window of opportunity for the children being together has now passed and the risks of moving her probably outweigh potential benefits. It would therefore seem that the least damaging alternative and the alternative that is less risky overall is for [SVS] to remain with [BAP] and [PML] (who are undeniably bonded to her and committed to her) and for a suitable long term family to be found for [AS] and [KS].

39. Ms Lindfield recommended that SVS remain in the long term care of BAP and PML and that they be fully assessed for the long term parenting of SVS. Although adoption was not then under consideration, those recommendations are consistent with the views to which I have come.

40. The s 91 reporter observed that BAP and PML had parented SVS for the majority of her young life and were most significant people in her life; and that they love and care for SVS without reservation and are committed to caring for her until she attains maturity. The s 91 report recommends that SVS should remain with them unless a suitable placement for SVS with AS and KS could be found within a very short time frame. Given that there were no suitable families immediately available that would be able to cope with the demands of the three siblings, it was decided that SVS should remain with BAP and PML with a view to adoption and permanency within their family, which would be in SVS's best interests as she had formed strong attachments to BAP and PML, and removal from them would be to her detriment.

41. More recently, the Court expert Ms Howell said:

There are a number of benefits to [SVS] in the making of an adoption order with respect to her physical, emotionally and educational needs. These are related to her sense of security within the family, the continuity of relationship and the permanence of her role in the family. Core considerations that underpin attachment and resilience theory encapsulate key messages about what belonging and family membership means in childhood and adult life. Developing loving relationships requires the taking of risks and these risks are tolerable by the belief based on experience that other people can be trusted not to hurt and abandon. This experience of predictable and sensitive care leads to the core attachment concept of felt security.

42. Ms Howell went on to observe that SVS identified as belonging to the family unit comprised of BAP, PML and herself, and to a larger extended family unit of older brothers, an older sister and cousins. When asked about her family, SVS did not identify KF and AS or KS as part of her family, her response focusing only on BAP and PML and their extended family. Ms Howell concluded:

In my opinion there are no significant disadvantages for an adoption order while there are significant advantages. [SVS] identifies BAP and PML as her psychological parents and feels secure in their love for her and wants to live with them.

43. I am therefore satisfied that adoption is in SVS's best interest, and is preferable to any other order that could be made by law with respect to SVS's welfare.

44. So far as concerns the formal requirements for an adoption order to be made: for the purposes of s 87 the application is made by the Secretary, by his delegate, and the Minister who has parental responsibly has by an authorised delegate consented. For the purposes of s 88, the only person whose consent to the adoption is required and has not been given is the birth mother KF. I am satisfied that at least 14 days’ notice of the application for the order containing the prescribed particulars, has been given to her and she, of course, is a defendant and has appeared in the proceedings. As I have said, KF has not consented to an adoption order and the order can be made only if her consent is dispensed with. That is a grave step, not lightly to be taken; however, the enactment of s 67(1)(d) in 2006 reflects a policy decision that once a child has, by judicial decision, been removed from his or her parents and placed in permanent out of home care, the rule that 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 67(1)(d), the proposed adoptive parents are authorised carers and SVS plainly has established a stable relationship with them. As I have concluded that making an adoption order would promote her welfare and be in her best interests, it is necessarily also in her best interests to make a consent dispense order so as to allow the adoption order to be made, notwithstanding that the birth mother does not consent to it. The conditions for making a dispense consent order in respect of the birth mother are therefore satisfied.

45. As I have recorded, KF did not oppose the proposed change in SVS's name regardless of whether an adoption order is made, recognising that SVS had no real connection with her birth father's surname.

46. That leaves the question of contact. So far as the birth father is concerned, an adoption plan has been agreed that provides that in the event that he wishes to have contact in the future, he would first need to establish some familiarity with SVS by writing letters and sending photographs and following that, face to face contact could occur, perhaps once per year, initially supervised by Barnardos and thereafter by the proposed adoptive parents. Regrettably this seems unlikely at present. In any event, I am satisfied that what is proposed in the paternal adoption plan is proper in the circumstances having regard to the history of no contact between SVS and her biological father.

47. So far as contact with KF is concerned, the Secretary proposes an adoption plan which was amended in the course of the proceedings and now provides for SVS to have contact with KS and AS six times a year, and with KF on those same six occasions for a minimum period of two hours, extendable by mutual arrangement, with provision that the contact involving KF and SVS may commence half an hour before KS and AS's contact.

48. I have some concerns about the adequacy of the adoption plan in a number of respects. First, I think it is important that KF have the security of a Court order in her favour in respect of contact, rather than proposals that are expressed in rather broad terms with a number of qualifications and conditions written into them. Secondly, although the adoption plan approaches an appropriate level of contact, some additional provision, at least as to the duration of contact, is appropriate.

49. The evidence establishes that contact, at least in more recent times, has generally worked quite well, although it is clear that the adoptive applicants and SVS to some extent experience some tensions in connection with it. As I have said, KF has been well prepared and entirely appropriate in respect of contact, and the progress made in December 2014 is significant and encouraging. I cannot over-emphasise the importance of SVS's ongoing contact with KF. Adopted children suffer when they are denied the prospect of knowing where they have come from and establishing a relationship and continuing a relationship with their birth family. They do best when they understand who their birth parents are and they can enjoy a relationship with them, but most importantly where they feel comfortable in having that relationship, knowing that they are not acting contrary to the wishes of those who are closest to them, namely their adoptive parents. So it is critical that SVS feels that her relationship with KF is one that is supported by those who will be her adopted parents. Particularly given the age gap to which I have referred, it would be in SVS's interests that KF become the third significant adult in her life, and also that she develop a strong relationship with her biological siblings. It is with that in mind that I have framed the orders for contact that I propose to make, but I will make a few further observations about them. What these orders endeavour to do is to establish the conditions in which the prospects of SVS and KF having a good, lasting relationship may be maximised. In that way, they necessarily focus on what is going to be most comfortable and reassuring for SVS. SVS will be most comfortable if her adoptive parents are also comfortable about the arrangements.

50. KF's partner – now fiancé – BC, has become a complicating factor in respect of contact. I feel an enormous amount of sympathy for him, because I do not think it is his fault at all, and he, like KF, has made enormous strides in recent years to turn around his life. However, I must focus on what is going to give SVS the best chance of developing a relationship with KF, and not on my considerable sympathy for BC’s position. I think that is achieved by providing an opportunity for there to be more one on one time between SVS and KF than there has been; by ensuring that SVS feels safe and secure – and I emphasise ‘feels’ as a perception, because I do not think there is the slightest actual threat to her safety in contact – which also involves enabling the adoptive parents to feel that she will be safe and secure, and I am afraid that that will be jeopardised, albeit as a matter of perception only, if BC is involved. Likewise, I think it will be jeopardised if neither of the adoptive parents is present, at least for the time being.

51. I have given consideration to whether the travel burden could be shared more equitably, so that for example a couple of occasions of contact a year could be in the southern highlands, a couple in the Sydney metropolitan area, and a couple on the central coast; but I also recognise that KS and AS's carers have to be accommodated in the considerable logistic complexity of organising contact in a case like this. So for that reason I will adhere to the proposal for six occasions of contact a year, because I think the quality and perhaps the duration of contact – given the age that SVS is now approaching – are more important than mere frequency; and to provide for one or other – but not both – of the adoptive parents to be present – as I think it may be overbearing for KF if both are present, but there is a reasonable equilibrium if only one is present. But in saying that, I would hope that BAP or PML, as time passes, will be able to withdraw from immediate presence, so as to allow some decent one on one time between SVS and KF.

52. For those reasons, I propose to make orders that:

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

2. there be an order for the adoption of the child SVS in favour of the adopting parents BAP and PML and approving the name P as the surname of SV as the given names of the child.

3. the child spend time with KF, in default of agreement otherwise as follows:

1. on six occasions per annum for a period of four hours on each occasion;

2. so far as can be arranged, two of those four hours on each occasion be in conjunction with contact with KS and AS;

3. so far as practicable, two of those occasions be on the Central Coast, two in the Sydney Metropolitan area and two in the Southern Highlands;

4. for the purposes of facilitating such contact, the adoptive parents provide to KF a proposed contact plan for the following year by 30 October each year, and KF indicate any alternative proposal by 14 November following, and unless the Court otherwise orders, or the parties otherwise agree, the proposed plan as amended by KF’s alternative proposal be the contact plan for the ensuing year;

5. until further order or agreement, one or other but not both of the adoptive parents may be present at contact, and BC may not be present at contact; and

6. there be liberty to apply in the event of any difficulty arising in the implementation of these orders.

53. I should say that in terms of formulating the plan for each year, I have effectively left the veto power with KF, essentially because the adopters are in the position of power and control, and I think it is appropriate that she have the last word on the adoption plan, provided obviously that, if it is unreasonable or otherwise problematic, the matter may be brought back to the Court.

53. I formally make the orders I have just indicated.

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Decision last updated: 25 February 2016