Adoption of Taylor-Clay - [2019] NSWSC 27

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adoption of Taylor-Clay [2019] NSWSC 27
Hearing dates: 16 August 2018
Date of orders: 31 January 2019
Decision date: 31 January 2019
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
Adoption would promote best interests of children and is clearly preferable to any other action that can be taken by law. Maternal adoption plan is proper in the circumstances, but not satisfied that paternal adoption plan is proper in the circumstances, which precludes making an adoption order unless remedied. Upon adoption children should retain as additional middle names their current surname.

Catchwords:
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether adoption clearly preferable to any other order that could be made with respect to care of children – respective advantages and disadvantages of restoration, adoption, parental responsibility to carer and parental responsibility to Minister – relative advantages of adoption vis-à-vis long term foster care – held, benefits of adoption outweigh benefits of preserving opportunity for future restoration – held, adoption would promote children’s best interests and is clearly preferable to any other order that could be made with respect to care of children.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plans – where plan provides inadequate opportunities for child to know and develop relationship with birth father, including in event of his incarceration – held, plan not proper in the circumstances.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent – dispensing with consent – where adoptive applicants are approved carer with whom children have an established relationship – where Children’s Court has allocated parental responsibility to Minister to age 18 – where adoption would promote children’s best interests and is clearly preferable to any other order that could be made with respect to care of children – held, in children’s best interests to make consent dispense order so as to permit adoption orders to be made.
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names – assumption of adoptive family’s’ surname is a fundamental feature of adoption and a manifestation of its benefits – inclusion of former hyphenated surname as two additional middle names is in child’s interests as means of preserving the child’s identity.
Legislation Cited: (NSW) Adoption Act 2000, s 4, s 8, s 23, s 24, s 28, s 46, s 50, s 59, s 67, s 72, s 87, s 88, s 90
Cases Cited: D, Re; Application of A [2006] NSWSC 1056
Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595
EDH, JSH and KJH, Adoption of [2017] NSWSC 1861
Hogarth, Adoption of [2019] NSWSC 9
JLK and CRK, Adoption of [2017] NSWSC 7
JS, Re; Director-General, NSW Department of Family and Community Services [2013] NSWSC 306
KH, Adoption of [2015] NSWSC 274
Hampton-Morgan, Adoption of [2018] NSWSC 2007
NG (No 2), Adoption of [2014] NSWSC 680
RCC & RZA, Adoption of [2015] NSWSC 813
Sarah, Re [2013] NSWCA 379
Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6
SRB, CJB and RDB, Adoption of [2014] NSWSC 138
Stephen, Re; Director-General of Family and Community Services [2011] NSWSC 1521
Texts Cited: Bohman M & Sigvardsson S (1990) ‘Outcome in Adoption: Lessons from Longitudinal Studies’ in The Psychology of Adoption, eds Brodzinksy D M & Schechter M D, pp 93-106
Brodzinksy D M (1993), ‘Long-Term Outcomes in Adoption’, The Future of Children, 3(1): 153‑166
Holloway J S (1997), ‘Outcome in Placements for Adoption or Long Term Fostering’, Archives of Disease in Childhood, 76(3): 227-230
Rushton A, Treseder J & Quinton D (1995), ‘An Eight‑Year Prospective Study of Older Boys Placed in Permanent Substitute Families: A Research Note’, Journal of Child Psychology and Psychiatry, 36(4): 687‑695
Triseliotis J (2002), ‘Long-Term Foster Care or Adoption? The Evidence Examined’, Child and Family Social Work, 7(1): 23-33
Vinnerljung B & Hjern A (2011), ‘Cognitive, Educational and Self-Support Outcomes of Long-Term Foster Care Versus Adoption: A Swedish National Cohort Study’, Children and Youth Services Review, 33(10): 1902-1910
Category: Principal judgment
Parties: Secretary for the Department of Family and Community Services (P)
Natalie Jillian Ronald-Taylor (1D)
Lane Mark Clay (2D)
Representation:
Counsel:
C McGorey (P)
1D in person
2D in person
Solicitors:
Crown Solicitor (P)

File Number(s): A76/2017

Judgment

By summons filed on 24 May 2017, the Secretary of the NSW Department of Family and Community Services, by his delegate the Principal Officer, Barnardos, seeks orders for the adoption of the children Colin Daryl Taylor-Clay and Kiera Jillian Taylor-Clay by the adoptive applicants Donald Song and Andrew Colosomi, a same sex couple. The children’s birth parents Ms Natalie Jillian Ronald-Taylor and Mr Lane Mark Clay have, on their application, been joined as first and second defendant respectively, and oppose the application. In this judgment I refer to the birth parents and the applicants by their first names, as they were generally referred to in evidence, for convenience and without intending the slightest disrespect. [1]
1. In the published version of this judgment, in order to protect the privacy of the parties and their children, pseudonyms which will be recognisable to the parties have been substituted for their names.
Colin, who was born on 8 December 2008, is now aged 10, and Kiera, who was born on 9 November 2009, is now 9. The domestic relationship between their parents Lane and Natalie ended in late 2010 or early 2011. Lane was imprisoned for a term of six years from 12 February 2011, when the children were respectively 2 years and 1 year of age, for an offence of assault occasioning grievous bodily harm (on a third party), and remained incarcerated (with the exception of two short periods of parole which were, for various reasons, revoked) until 11 February 2017; he had previously been imprisoned for other offences of violence.
Between 6 January 2011 and 26 September 2012, Family and Community Services (FACS) received five risk of harm reports in relation to the children, including exposure to domestic violence, neglect and lack of supervision, and drug and alcohol misuse by the parents. From about November 2012, FACS engaged with Natalie in respect of child protection concerns relating to neglect and domestic violence. After these endeavours proved unsatisfactory, Natalie entered into a temporary care arrangement on 1 May 2013, placing the children in the care of their maternal great-grandmother Ms Petra Taylor for a period of three months, to allow Natalie an opportunity to attend a detoxification and residential rehabilitation program. However, on 3 May 2013, FACS assessed that the children were at risk of serious harm and in need of care and protection due to Natalie’s failure to enter into a rehabilitation facility in accordance with the temporary care arrangement, and they were assumed into care that day, aged 4½ and 3½ respectively, and placed with their maternal great-grandmother Petra, with whom they resided for the next seven months. An application was filed in the Children’s Court on 8 May 2013, and interim orders placing them under the parental responsibility of the Minister until further order were made on 9 May 2013. A finding that the children were in need of care and protection was made on 19 June 2013. A care plan was filed on 27 August 2013, recommending that the Minister have parental responsibility for the children until they attain 18 years of age, and that they remain in the care of Petra until a long-term family placement was found. However, amended care plans were filed on 17 December 2013, recommending placement with authorised carers once the Court had determined that there was no possibility of restoration, due to concerns of Petra’s age and health, and the impact on family relations of her having the children in her care. On 16 January 2014, the children left their placement with Petra, and were placed with short-term Barnardos carers, with whom they stayed for 6 months.
On 10 April 2014, the Children’s Court at Campbelltown found that there was no realistic prospect of restoration of the children to either parent, and made final orders allocating parental responsibility for both children to the Minister until they attain the age of 18. On 29 August 2014 – at the ages of 5 and 4 respectively – following a matching process undertaken by Barnardos, the children were placed with Donald and Andrew, with a view to adoption, and case management responsibility was transferred to Barnardos.
Natalie has since re-partnered and had two further children: one born on 30 September 2014; and another on 24 February 2016. Both are in the parental responsibility of their paternal grandmother, who is unrelated to the children the subject of these proceedings, pursuant to final orders of the Children’s Court made on 11 February 2015 and 22 June 2016 respectively.
Lane was released from gaol in early 2017, and on 3 July 2017 the children had contact with him for the first time since coming into care. He is now in a relationship with Valerie, who has two children of a prior relationship; their child Robin was born on 3 January 2018, and (as at the hearing) all three remained in their care.
No formal contact orders are in place, but the amended care plans of 17 January 2014 provided for the children to have contact with their mother (and other members of her family) six times per year for a period of 2 hours. Provision was also made for contact with their father six times a year for 2 hours, and also with Petra. Contact between the children, their mother, maternal aunt Danielle Ronald-Taylor and maternal grandmother Jillian Ronald, has continued on a second-monthly basis for 2 hours. Initially these visits were facilitated by a Barnardos caseworker with the applicants; they are now supervised by the applicants alone. These contacts are generally for a period of 1.5 hours, but on occasion have been extended for up to 3 to 5 hours. Natalie and the applicants have developed a good working relationship; she enjoys her contacts and the applicants have been proactive in identifying appropriate opportunities for additional contact (including attending the children’s school concert). While contact has occasionally provided stressors for the children, overall it has been a positive experience for all. Likewise, contact with Petra has been positive.
After they came into the adoption program, the children did not have face-to-face contact with their father while he was incarcerated, although they had visited him in prison at an earlier stage. They also had telephone contact with him on an occasion in 2015. An attempt to arrange a gaol visit in 2016 failed, as Lane had been moved to a different prison. Following his release, arrangements have been made for contact four times per year, and have progressed well, with the children enjoying getting to know their father.
The children do not currently have regular contact with their maternal half-siblings, who are in the parental responsibility of their paternal grandmother, who is unrelated to the children. Their paternal half-brother Robin is but one year of age.

The parties’ positions and proposals

The Secretary proposes that the children continue to reside with Andrew and Donald; that an adoption order be made in their favour, and the consents of Lane and Natalie be dispensed with; that the children have the surname “Colosomi-Song”, and the forenames “Colin Daryl” and “Kiera Jillian” respectively; and that they have contact with Lane and Natalie in accordance with proposed adoption plans agreed between the Principal Officer Barnardos and the applicants (but not the non-consenting birth parents), which are proposed to be registered. [2]
2. Under (NSW) Adoption Act 2000, s 50.
The birth parents oppose adoption. However, while they hold longer-term aspirations for restoration of the children to one or other of them, they do not strenuously oppose the children remaining in the care of the applicants. Nor did they seriously contest the terms of the proposed adoption plans. Both, however, oppose the proposed change of the children’s names.

Formal requirements

The formal legal requirements for the making of adoption orders – and consent dispense orders – are satisfied. In particular, for the purposes of s 23(2)(a), when the application was filed, both children were present in New South Wales. For the purposes of s 24(1)(a), both children were less than 18 years of age when the summons was filed. For the purposes of s 23(2)(b) and s 28(1)(a), both applicants, though born abroad, are resident and domiciled in New South Wales, where they have resided together as a couple at their present address since 2012, for well in excess of the two-year minimum referred to in s 28(4). The evidence, of their referees and of caseworkers, establishes, for the purposes of s 28(1)(b), that they are of good repute and fit and proper to fulfil the responsibilities of parents, and there was no suggestion to the contrary. They have been approved as authorised carers. According to advice provided by the Commission for Children and Young People’s Working with Children Check and Screening Unit, there is no information to suggest that they pose any risk to children, and a National Police Check revealed “no disclosable court outcomes” in respect of them. Each is over the age of 21 and more than 18 years older than both children, as required by s 28(3)(a). Neither of them is a step-parent, as referred to in s 28(2). For the purposes of s 90(1)(c), I am satisfied that they have been selected in accordance with the Act.
For the purposes of s 87, the application is made by the Secretary. For the purposes of s 59, the birth mother Natalie was provided with a copy of the Mandatory Written Information on 10 April 2015 and again on 2 October 2015, and the updated version on 1 June 2016 and again on 12 July 2016; the birth father Lane was provided with a copy of the Mandatory Written Information on 20 February 2015, and the updated version on 1 June 2016. For the purposes of sections 72 and 88, the only persons whose consent to the adoption is required and has not been given are the birth parents, and I am satisfied that at least 14 days’ notice of the intention to seek a consent dispense order and adoption order, containing the prescribed particulars, has been given to each of them; they have appeared in the proceedings, to oppose the application: notice was served on Natalie on 2 June 2017 and on Lane on 5 June 2017. As I have mentioned, both have appeared in the proceedings. For the purposes of s 90(1)(d), I am satisfied that consent to the adoption of the child has been given by every person whose consent is required under the Act, other than the birth parents: the Minister, who has parental responsibility, has, by an authorised delegate, consented to the adoption of both children, on 17 August 2016.
There have been suggestions that Lane may have an element of Aboriginal heritage. FACS had explored this before the referral to Barnardos, and Lane was not able to provide documentation evidencing Aboriginality, and his sister Mandy stated that she was not Aboriginal. Barnardos then (in 2016) made further inquiries, including a referral to Link-Up NSW, an Aboriginal agency which assists children and youth in or at risk of entering out of home care, by finding family; the result was “no evidence of Aboriginality found … however this is not to say there is no Aboriginality”. Corrective Services records in respect of Lane noted him as not Aboriginal. Barnardos received no evidence probative of Aboriginality, nor that Lane identified as Aboriginal or was accepted by any Aboriginal community. Moreover, in response to a query of him, Lane stated that he does not identify as Aboriginal, although he believes he has some Aboriginal ancestry.
In his oral evidence, Lane said that he had been told by his parents that his maternal great-grandparents were Aboriginal and of the Stolen Generation. He said that he had full blood nieces and nephews, and people with whom he had grown up, that were somehow his aunties and uncles and Aboriginal elders in Campsie, but did not know through what line. He said that these elders had stated that, at an Aboriginal meeting or rally, his children would be accepted as Aboriginal.
For relevant purposes, an Aboriginal person is one who is a member of the Aboriginal race of Australia, and identifies as an Aboriginal person, and is accepted by the Aboriginal community as an Aboriginal person. [3] The evidence does not satisfy me that Lane identifies, or has ever identified, as an Aboriginal, and indeed he has stated that he does not identify as Aboriginal. He is therefore not shown to be an “Aboriginal person” – nor the children to be Aboriginal children. The Aboriginal child placement principles therefore do not apply. I am satisfied that the Principal Officer has in the circumstances made reasonable inquiries to ascertain whether the children are Aboriginal children.
3. (NSW) Adoption Act 2000, s 4 incorporates the following definition from the (NSW) Aboriginal Land Rights Act 1983: Aboriginal person means a person who: (a) is a member of the Aboriginal race of Australia, and (b) identifies as an Aboriginal person, and (c) is accepted by the Aboriginal community as an Aboriginal person.

General principles

The principles which govern whether and when an adoption order should be made are now well established. The Court cannot make an adoption order in respect of a child unless satisfied that it 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. [4] The stipulation that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction “beyond reasonable doubt”,[5] the requirement that the Court consider that an adoption order be “clearly preferable” is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law. [6]
4. (NSW) Adoption Act 2000, s 90(3).
5. Re D; Application of A [2006] NSWSC 1056 at [53].
6. Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 at [25].
In considering that question, the best interests of the child, both in childhood and in later life, are the paramount consideration. [7] This means that the inquiry is child and future focussed: as the best interests of the child, both in childhood and in later life, must be the paramount consideration, so it is necessary to evaluate the competing proposals (and any viable alternatives to them) so as to ascertain which will best serve the interests of the child now and in the future, given what has already happened, rather than revisiting the actual or perceived rights and wrongs of the past (save insofar as they may be indicative of the future).
7. (NSW) Adoption Act 2000, s 8(1)(a).
In determining what is in these children's best interests, the Court must take into account, where they are relevant and applicable, a number of mandatory considerations,[8] which include any wishes expressed by the children; their age, maturity, level of understanding, gender, background and family relationships and any other relevant characteristics; their physical, emotional and educational needs; any wishes expressed by their birth parents; the children's relationship with their birth parents and siblings and other significant people; the attitude of the proposed adoptive parents to the children and to the responsibilities of parenthood, and the nature of the child's relationship with them; the suitability and capacity of the proposed adoptive parents to provide for the needs of the children, including their emotional and intellectual needs; the need to protect the children from physical or psychological harm that may be caused by being subjected or exposed to abuse, ill-treatment, violence or other behaviour; and the alternatives to the making of an adoption order, in the light of the short and long term effects of adoption. Not all those factors are relevant in every case; nor in this case.
8. Referred to in (NSW) Adoption Act 2000, s 8(2).

Further, the court must apply the principles[9] that adoption is to be regarded as a service for the child; that no adult has a right to adopt the child; that 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; that the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved; and that undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare. In speaking of adoption being a “service to the child”, the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. It does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met.
9. Stated in (NSW) Adoption Act 2000, s 8(1).

The children

The children had a very disrupted early childhood, with disrupted living arrangements and attachments and multiple placements. This predisposes them to difficulties in forming trusting relationships, and in bonding to others. Colin was 5 and Kiera was 4 when they were placed with Donald and Andrew; they are now 9 and 8 respectively. Early in their placement with the applicants, they expressed concerns that they would be moved again, and that nobody wanted them; this is entirely understandable in light of their history to that point.
Paediatric reports prepared on 23 February 2015 – about six months after placement – noted them to be “settling in well”. Reports prepared a year later, on 15 February 2016, described them as making “good progress in the placement”.
In her report of 18 January 2017, the case manager and s 91 reporter, Ms Murrell, wrote:

Colin and Kiera have been in the care of the proposed adoptive parents for 2½ years and have made great progress during this time. When they arrived they were anxious and traumatised by their previous experiences and the many moves that had occurred. They reported feeling that “no one wanted them”.
During this time they have settled into their safe, calm and predictable environment, and benefitted from the loving and consistent care provided by the proposed adoptive parents. They have a full and active life which they are clearly enjoying.

Colin has now completed Year 4 and Kiera Year 3. Both children are physically healthy, meeting their developmental milestones, progressing at school, and engaged in a variety of appropriate extra-curricular activities.
They have been observed to interact affectionately with the applicants, with a growing attachment to them. According to Barnardos Program Manager Adoptions, Ms Geddes, following a home visit on 23 April 2018:

Colin is generally a happy, sensitive and affectionate boy. He has continued to make good progress at school and at home and he is proud of his achievements. He is comfortable speaking about his feelings, seeking reassurance and is becoming increasingly capable of articulating and managing his emotions. He disassociates and retreats into himself when faced with difficult emotions, but he is getting better at recognising this is happening and being able to talk about how he is feeling / what is bothering him. He still has the same fear of the dark.
…
Kiera is a determined, sensitive and compassionate girl who is eager to please. She has started off her school year very strong and has already achieved her bronze award by the end of Term 1 – this is an achievement she is very proud of.

Both children have developed good, loving and supportive relationships with Donald and Andrew, and appear happy and settled in their care. Their feelings are illustrated by Colin’s use at school of their names, and Kiera’s preparedness now to seek their reassurance and cry in their presence when upset. The children have also developed significant relationships with Donald’s brother and sister-in-law, who have lived with the applicants since before the children were placed with them. The s 91 reporter Ms Murrell observed that both children “are very clear that they wish to remain in the care of the applicants”.
While the children are generally happy and healthy, they have had some behavioural issues, including at school, for which they require personal and professional support. Both are now medicated with stimulant medication, apparently with beneficial effect; I return to this issue later.
Both children have a significant relationship with Natalie, which has been sustained through contact, and they know that she is their birth mother. They have meaningful relationships with their maternal grandmother, their maternal aunt, and their maternal great-grandmother Petra, with whom they also have contact. And they also are developing a relationship with Lane, whom the children have enjoyed getting to know better since his release – although they had also visited him once in prison while in the care of FACS before the transition to Barnardos, and on 23 September 2014 Kiera asked to see her father, and subsequently an attempt was made to visit him in prison again, although it proved unsuccessful due to his having been moved.
While the children – particularly Kiera – have sometimes exhibited some anxious and unsettled behaviour before and after contact, this is unsurprising given their history, and the necessary internal conflicts of loyalty that such a situation produces. While Natalie may have on one occasion raised inappropriate issues about their future with them, the birth parents have generally behaved appropriately and with sensitivity to the applicants and the children, and vice versa. On any view, contact is generally a positive experience for all, and there is no suggestion that birth family contact has not generally been enjoyed by, and been beneficial for, both children. The significance for the children of their birth family relationships is indicated by Colin’s expressed concern – despite his strongly stated wishes to be adopted – at the hurt that adoption and a change of name would cause his birth parents.
Despite their disrupted early years, the children have attached to the applicants, with whom they are settled, and are progressing well, though not without occasional challenges. They also have relationships with their birth parents, which are important to them. In the light of the disruptions of their early years, these children have an accentuated need for security and stability now.

The birth parents

Lane (who was born on 11 February 1986) is almost 33, and Natalie (who was born on 29 December 1987) is 31. Both have an Anglo-Australian cultural background. Their domestic relationship ended in late 2010 or early 2011, not long before Lane was incarcerated.
The risk of harm reports which led to the intervention of FACS date from December 2011 onwards, and may reflect the position after Lane’s departure from the household. Lane described a good relationship with the children before he was imprisoned; in answer to questions by Natalie, he said:

Q. How do you remember our kids being, personality wise and emotionally wise, when we were together at Ingleburn and we all lived together, before any of this happened? And how do, as the character how, what were they like as characters, their personalities? What sort of kids were they? Like were they happy, sad? A. Well, as a parent you, you can't fault your own child. But looking from an outside, giving an outsider's view, perfect. There was, like any household, of course there was, there was issues, just in aspect of like sleepless nights, headaches.
Q. But were they happy kids? A. But – yeah, they were beautiful, happy. Kiera was very intrigued to learn everything because Colin learnt it first and they were so close. Colin would always, "My Susu(?)," always cuddles, love. There was a lot of love and it was a strong, very strong bond between them. There was a strong bond between you and the kids. Yeah, there was no issues. They were good kids, good parent.
Q. Well, did they, did you have a good bond with them? A. Yeah, of course I did. I had them, I was like a stay at home dad. You went to work, like, you know.

Lane pointed out that the children were not removed from his care, and that he was in custody, and not a candidate to care for them, when they were assumed into care, and had some ongoing contact with them when in gaol, until the children transitioned into the care of Barnardos and he was moved to a different prison:

My mum just passed away so they couldn't go there. My sister has a large family, my brother has a large family. There was a lot of bad blood due to the break-up between me and my ex-partner so our families were clashing. There was a lot of stuff going on. Due to that none of my family could take them. I was in custody. That's why they got passed onto to Petra I think it was, and there was a hiccup there. Everything was going smoothly at that point. I was getting visits whilst I was in custody. Still had a beautiful relationship with them. I was working with FACS. Upon my release get the children and be looked at as, what's it called, a primary carer I think it is.
In that process they were moved onto Barnardos and before I was released adoption agency was lodged and now we're here. Since being released I work full-time. I've been out two years. I'm off parole, haven't offended in a long time. I work full-time. Raising two stepchildren. I have a six month old child. Life's good.

As has been noted, Lane has since re-partnered, with Valerie, who has two children from another relationship, and they have a child, Robin, now one year old. That they remain in their care, after scrutiny by FACS, is indicative that they do not lack parenting capacity. [10]
10. On 26 November 2018, the Court was informed by the Crown Solicitor, having given prior notice to Lane and Natalie, that the plaintiff had received information that Lane was in custody on charges that had not been finalised. No application was made that the proceedings be reopened, nor further evidence adduced, about this issue, and I have found it unnecessary for present purposes to verify it. However, it may prove relevant to consideration of the paternal adoption plan, below.
At the preliminary hearing, Lane said that he was opposed to adoption, and desired that both children be restored to his care. Subsequently, he gave consideration to consenting to adoption and attended registered counselling, but did not formally consent. At the final hearing, he said that having considered all the options:

I would not like the adoption to go ahead. I would not like the name to be changed, and I'm seeking restoration on the grounds that I was in custody when they were removed.

In respect of restoration, he gave this evidence:

Q. Where would they live? A. With me at my house. I'm currently – if this goes ahead I'm currently looking to move to a bigger house.
Q. Yes? A. The house that I'm in is, has a big yard and stuff like that, just inside it's only three bedrooms, it's a bit small. Obviously I need a bigger house, but that's no problem.
Q. So in terms of their care, if they were restored, who would be involved in their care on a day to day basis? A. Me and my partner.
Q. That's Val is it? A. Yeah. I have a lot of family support. I have sisters, stuff like that.
Q. And Val has two children of her own plus your recent child? A. Yeah. I think I read an affidavit or something, I got emailed, I don't know what they call it, affidavit or whatever, I got emailed a thing stating that one of the main concerns is that I wouldn't be able to provide for the children and give them as much attention or something like that, but I come from a big family, I’m a family of 11, my partner's a family of six. My sister has six children. I know what it's like to come from a big family and I know what it takes to provide for a big family financially and lovingly.
Q. If I decided that restoration wasn't the way to go, what would you propose them? A. I wouldn't want them to be removed from Don and Andy's, if they can't come to me or the mother, not at all.

He realistically recognised that restoration would pose significant challenges, frankly acknowledging the bond between the children and the applicants:

Q. So if restoration were to happen, how would that work in your life? A. Well it's going to be hard because Don and Andy have been in their life a long time. They're a big part of their life. I see it as – it’s not really – it’s going to be very hard due to the fact that I would still want Don and Andy in their lives as they have played a big role in my kids' lives, I know, I see the bond that they have between my children. I will just hope that they can just start slowly. More often visits, more often play dates, more contact with my other children, and then eventually just like a natural thing, like a come home sort of thing.

Natalie has consistently attended contact visits with the children, who know her and relate to her, and has consistently expressed opposition to their adoption. She emphasised that she had never consented to the removal, let alone adoption, of the children, and has always wanted them back. She has recently completed studying for a Certificate III in Business Management. Asked about her plans for the future, she said:

For the last few years it's just been about this, just waiting for all this to sort of finalise and that, and then I'll go from there with myself. Basically that's – yeah. I live from visit to visit, from court date to court date really, at the moment.

While firmly opposed to the adoption of the children, and prepared to countenance the possibility of restoration to Lane (with Valerie), she did not herself advance any clear proposal for restoration:

Q. So far as the children are concerned, what are your proposals for them? A. I don't want them adopted at all. I don't want their names changed whatsoever. I'm pretty much in the same boat as Lane. If they're not going to come back to one of us, I don't want them to be taken from Andy and Don. But I said last time that I was here that if they weren't going to come to me specifically, that I wanted them to go just there. But since, since that last meeting I've had, me and Lane have – and Val as, as well. I've spent a lot of time with them, seeing how they interact together. Like we've sort of built a relationship, the three of us, just a friendship, do you know what I mean, and I see how they work together. That's good, they work well together. So I would support him if he was to – do you know what I mean – to seek restoration. I would support him. But yeah, if that wasn't going to happen.
Q. You no longer have a problem with the children having – or being exposed to Val? A. No. It was probably a jealousy thing at first more, more than anything. And but once I've sort of come to know her – I’ve known her a long time as well but I don't know, since I started interacting with her more now, do you know what I mean, she's all right. She's cool. I know she's a good mum too. I've seen her with her own kids and that, so I don't have issues with that.
Q. Now, your other children, what relationship do you have with them? A. None whatsoever. I'm supposed to like – there’s orders. Like I'm supposed to get visits and what not, but the carer is, I don't know, on another planet and just doesn't – like with Don and Andy, she just doesn't want to like – I don't know, what's the word? She just wants them kids to herself, do you know what I mean? She doesn't want any bar of anything. She moved away, she moved away secretly and everything, trying to hide them and stuff. But I was – once all this is finished, then I'll take the other lot to court and get my visits enforced then that way and that. It was just too much all at once, at the moment.

Moreover, she also deposed:

I do however support that my children continue living in their current arrangements unless being returned to myself or their birth father Lane Clay. If they were not to be returned to myself or Lane I would support and sign guardianship of my children for Donald and Andrew.

Reference has already been made to Natalie’s more recent children, both of whom are in care, albeit in a family placement with their paternal grandmother.
It is significant that this is a case in which the children know their birth family, spent some time in their birth parents’ care before removal, and have ongoing relationships with them, which the children appear to value. However, there is no evidence that the shortcomings in Natalie’s parenting capacity that led to the removal of the children have been remediated, and she did not advance a coherent proposal for restoration to her. Lane did not have care responsibility for the children when they were removed as he was in custody, and it is not without significance that, after scrutiny by FACS, Robin remains in his (and Valerie’s) care, together with Valerie’s other children. Lane, with Valerie’s support, may well have the capacity to parent the children; however, the proposal for how that might work is inchoate, and, notwithstanding that he may be from a large family, restoration of the children would test his parenting to the limits when superadded to his existing responsibilities for Robin and for Valerie’s two older children.

The proposed adoptive parents

Andrew was born on 3 August 1974 in Italy, and Donald on 15 November 1984 in Singapore. They have both lived in Australia for more than ten years. Donald was granted Australian citizenship on 19 July 1988, and Andrew on 26 January 2001. They have lived together as a couple in a domestic relationship since 2010.
In 2013, they submitted an expression of interest to adopt to Barnardos, expressing interest in adopting a sibling group, and following an assessment process, were approved as fit and proper to adopt two children. On 5 June 2014, they signed an application for adoption, and on 10 November 2014 attended a “transition to Adoption” training seminar, which covers (amongst other topics) open adoption and its benefits as distinct from “closed” adoption, and adoption plans and birth parent contact.
The applicants have cared continuously for the children since their placement with them on 29 August 2014 – a period of four years – and have more than appropriately supported and managed their needs. The quality of the care and affection they afford the children is undisputed; both Lane and Natalie have indicated that while they oppose adoption, they are very happy with the placement. This is reflected even in the qualification more recently expressed by Natalie in her affidavit:

Although I am extremely happy with the love and care they receive I am not always in agreement with some of the parenting decisions made by the carers. Both my children are now medicated for minor behavioural incidents.

The issue of medication was explored during the hearing. It was commenced on the recommendation of a paediatric specialist, who upon review has reported that both have responded well; Dr Gill says that they are making positive progress on it. Feedback from the children’s schools also suggests that it has produced an improvement in their concentration and behaviours.
In response to questions from the bench, Andrew gave the following evidence:

Q. What's your view about the medication regime – I know you're not a doctor, but I'm just interested in your view as a parent as to the desirability of the children being medicated in the way they are. A. I'm, I'm not at all a fan. I came into this process thinking that kids that are medicated for ADHD are generally a result of their upbringing and it's taken quite a lot of discovery for me to accept the fact that with the kids being, with the kids having ADHD you are forced to make a decision that is not going to be an ideal for anybody, and that is never going to be the perfect outcome. It is, what we were looking at, was the kids beginning to see themselves as not particularly bright.

Second, to be made fun of and also having social issues, and we know that they are actually extraordinarily bright children. So we accepted the fact that ADHD medications were a necessity, and in the beginning took the paediatricians and doctor's advice in that it would improve their situation and we did so on a trial basis. We did, however, immediately realise that there was a massive benefit to them, and particularly for Kiera who was really struggling at school. The change in her was extraordinary and for both kids they are achieving incredibly well without their character being impacted or, you know, their behaviour being radically changed, or their emotions is what I should say, being radically changed.
So I entered the process not being a fan and I now see it as a necessity, but we are certainly, I can speak for the both of us, we are always on the lookout for learning experiences for the kids to begin to understand their behaviours, which they don't quite yet and also then find ways around medication. We're also resisting the potential for an increase in dosage. I know that Colin has had a growth spurt since and would seem the effect of the medication be reduced, but at the moment as long as we are able to ensure that they're focused at school, and they're not creating a social issue, we're essentially trying to keep the meds to a minimum.

While minds of good parents might differ on the desirability of resort to medication in this context, and the birth parents’ reservations are – especially in the context of their own experience with the consequence of reliance on drugs – entirely understandable, here the medication was introduced with the approval of Barnardos, on the recommendation of an appropriate specialist, and is continued under specialist supervision and review. It appears to have produced positive results. There is nothing to suggest that in this respect the applicants have acted other than entirely appropriately in the interests of the children. Andrew’s evidence is a convincing explanation of the rationale and caution of the applicants in this respect.
Natalie has expressed concerns about the possibility of the applicants relocating overseas with the children, and reducing contact. Notwithstanding the applicants’ overseas origins and connections, I am entirely satisfied, based on their longstanding presence in and connections with Australia, where all their property is situated, and their assumption of Australian citizenship, that there is no elevated risk of their relocating overseas.
The applicants acknowledge that the children have a positive relationship with their birth parents, and recognise the importance of maintaining those connections. They have facilitated contact with Natalie and her family since 6 November 2015, and with Lane since 3 July 2017, in the course of which they have developed good working relationships with both birth parents. They have also maintained life story books for the children. In light of some of the unsettled behaviour of the children in connection with contact, they have proposed ways in which the contact experience might be improved, rather than reduced. They are also supportive of the children having contact with their half-siblings in the future. At the preliminary hearing, Andrew gave evidence that he understood that the frequency of contact as outlined in the adoption plans was a “bare bones minimum”, continuing:

We are very committed and we know that it is imperative for the kids to have that ongoing contact. We understand the benefits of it. We know that there is – that it is going to be at times a difficult thing to maintain as people's lives change, but we are committed to making sure that it's ongoing.

The applicants’ approach to contact to date provides great confidence that these statements are of genuine sentiments and commitments.
Notwithstanding their overseas origins, both applicants have resided in Australia for more than a decade, and have acquired Australian citizenship, and English is the language primarily spoken in the family home. The children are also able to experience their Anglo-Australian cultural heritage through their everyday life in the Australian community, school attendance, and extra-curricular activities.
Ms Murrell, in her report of 18 January 2017, wrote:

The proposed adoptive parents are very familiar with Colin and Kiera and have a good understanding of their behaviours and needs. The proposed adoptive parents have developed a positive relationship with the maternal birth family and overall contact is relaxed and predominantly respectful by all parties. The exceptions to this are occasional inappropriate comments by birth family members and attempts made by [the maternal aunt] to have Colin and Kiera speak to family members, who are prohibited from attending contact visits, on her mobile telephone. I feel confident that Colin and Kiera’s identity has been thoroughly explored and that the proposed adoptive parents have the ability to assist both children in understanding where they have come from as they grow and develop.

Barnardos’ Program Manager Adoptions, Ms Geddes, wrote:

During my meetings with the proposed adoptive parents and in conversations with Ms Murrell I have witnessed first-hand their love and commitment towards the children and they have expressed both verbally and demonstrated inn their actions, showing clearly how much Colin and Kiera mean to them. Their nurturing, calm loving demeanours have provided both children an environment where they have made significant gains.
The proposed adoptive parents’ extended family members have warmly embraced the children as part of the family and they have enjoyed yearly trips together celebrating significant events.
The proposed adoptive parents have shown insight and understanding in their support of ongoing positive contact for the children, with all their immediate and extended birth family. They supervise all visits for Colin and Kiera and additionally provide updates and photographs of the children. I have no doubt the proposed adoptive parents will continue to support ongoing contact for Colin and Kiera, to further assist them knowing their family of origin and the development of their identity and positive sense of self.

The applicants plainly have great capacity to parent these children, to meet all their needs – including their needs for an ongoing relationship with their birth family – and to respond to such challenges as the children may from time to time pose. They have done so, to very good effect, for more than four years. They are committed to supporting birth family contact, and to preserving the identities of the children. They have shown a considerable degree of sensitivity to and respect for the birth parents. The children have developed bonds of attachment to them, as the birth parents have frankly, to their great credit, acknowledged.

Is adoption clearly preferable?

I turn then to the central question, which is whether adoption is clearly preferable to any other action that can be taken by law in relation to the children’s care, having regard to their best interests. Consideration of whether adoption is clearly preferable to any other action that could be taken requires identification of the likely effects of adoption, and of the various available alternatives, weighing their comparative benefits and detriments from the perspective of the best interests of the children, and concluding whether in that light adoption appears to be “clearly preferable”, in the children’s interests, to the alternatives.
The alternatives to adoption that require consideration in this case – some in greater depth than others – are (1) restoring the children to the care of their birth parents; (2) a parental responsibility order in favour of Donald and Andrew; (3) maintaining the status quo, with the Minister having parental responsibility and the children in foster care, albeit residing with Donald and Andrew; and (4) deferring making a decision about adoption.
The relevant effects of adoption include:[11]
11. Adoption of JLK and CRK [2017] NSWSC 7 at [76]-[78]. For a more extensive discussion of the benefits of adoption summarised below, see, for example, Adoption of NG (No 2) [2014] NSWSC 680 at [75]-[81], [88]-[98]; Adoption of RCC and RZA [2015] NSWSC 813 at [63]-[87]; Adoption of SRB, CJB and RDB [2014] NSWSC 138 at [54]-[59]; see also Adoption of Hogarth [2019] NSWSC 9 at [50]‑[76], [114].

First, adoption contributes to providing, for children who cannot be raised by their birth family, the stability, security and certainty that they need. It provides certainty and permanence for children, both directly, and indirectly through the additional certainty it affords their adoptive parents. The possibility of further changes, disruptions and separations are minimised. Aspirations to restoration expressed by birth parents are practically foreclosed. In this way, the security afforded by an adoption order is in the interests of the child as much as the adoptive parents.

Secondly, adoption serves the identity needs of such children – in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family – by bringing their legal status into conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own (and – because it is not limited to age 18 – not only during childhood, but for life). Adoption also places the children on an equivalent basis, with equivalent rights, as any biological children of the adoptive parents. While adoption legally severs the parental relationship between the children, the birth parents, and any biological siblings, that is typically in circumstances where the legal parental relationship has, in reality, been devoid of practical parental responsibility, and the opportunity for the children to know and have some relationship with their birth family is preserved, in the context of an open adoption, through contact. The security and certainty provided by an adoption order may provide a firmer basis for the adoptive parents to be supportive of contact between the child and the birth parents.

Thirdly, adopted children are raised in a legally recognised family, rather than remaining “State wards” for the duration of their childhood; “out-of-home” care is thus replaced by in “in-home” care. The need for departmental intervention, and departmental approval for significant decisions of the carers, is removed, along with the stigma potentially associated with being a “State ward”. [12] One aspect of this is that, where their legal name corresponds with that of the family with which they live and identify, they are enabled to choose for themselves whom they tell of their status, without it being self-evident from their different surnames. Children who do not live with their birth families tend to control knowledge of that circumstance closely, and the assumption of the adopters’ surname which is an ordinary concomitant of adoption facilitates this. [13]

Fourthly, although adoption carries a risk that the child may feel unwanted or abandoned, and may encounter “identity issues” in later life – in particular in adolescence – that risk is incidental more to the circumstance that the child does not reside with his or her birth parents, than to adoption per se, and may arise whether the child is in foster care, or under a parental responsibility order, or adopted, as there is the same potential for the question, “why do I not live with my birth parents?”, and the risk of a sense of loss or abandonment. And that risk can be mitigated if the child knows the birth parents and can continue to have a relationship with them.
12. As to stigma, see Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6 at [49]-[51].
13. See Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6 at [49]‑[51].

A parental responsibility order would vest the responsibilities and authorities of parenthood in the carers, until the children attain 18 years of age. Like adoption, it removes the need for departmental involvement. Unlike adoption, it would not sever the legal relationship with their parents, and might reduce the sense of loss of birth family and mitigate the risk or magnitude of the identity issues that they may encounter, particularly in adolescence. Unlike adoption, it does not render the child a permanent member of the carers’ family, and expires at age 18. And unlike adoption, it is amenable to variation, although ordinarily that would require a significant change of circumstances.
Maintenance of the status quo would involve the children continuing to reside with the applicants as their foster parents, under the parental responsibility of the Minister. The responsibilities and authorities of parenthood would remain vested in the Minister, and the children would remain foster children, in “out‑of-home” care, and their status as that of wards of the Minister, with the stigma that that status bears, and the consequence that departmental approval would be required of significant decisions concerning her care and welfare.
Deferring consideration would allow the children to make their own decision, upon attaining 12 years of age when they can consent to their own adoption.
As has been noted, there is no evidence that the shortcomings in Natalie’s parenting capacity that led to the removal of the children have been remediated, and she did not advance a coherent proposal for restoration to her, although she contemplated the possibility of restoration to Lane, supported by Valerie. And as I have also observed, while Lane may well, with the support of Valerie, have the capacity to parent the children, that capacity would be stretched to its limits if responsibility for these children is superimposed on his existing responsibilities in respect of Robin and his two step-children. Moreover, his proposals in respect of restoration are inchoate: there is no specific evidence of arrangements to meet the children’s needs, and balance them with the needs of the three other children who would be in their care; nor any evidence from Valerie. As Lane recognised, restoration would be very difficult given the bonds that the children have developed with the applicants. Severing established bonds of attachment has well-known risks for the ability to sustain future relationships, and for depression in the long term, and severing the bonds of attachment which these children have at last been able to establish with Donald and Andrew would be deleterious to their short and long-term welfare and development. Given that the children, having had a very disrupted early few years, are now in a settled and stable situation with carers who are devoted to them and to whom they have become attached, and are progressing well in that placement, the benefits of restoration – to be raised in a family constituted by one of their two birth parents – are manifestly outweighed by the benefits of their stable current placement and the risks associated with fracturing their attachment to the applicants, and that restoration might not be successful.
Once restoration in the short term is excluded, the remaining options are adoption, or long-term foster care with the applicants, with either the Minister, or the applicants, having parental responsibility. In selecting the optimal course for the children, general background is provided by the social science and the decided cases.
The concept of permanency planning in the care of children who cannot be cared for by their birth parents was developed as a response to problems encountered by problem in out-of-home care and addressed, in particular, three interrelated issues – relationships, identity and sense of belonging – in order to promote two essential and related elements of personal wellbeing, the first being a sense of permanence and stability and the second a sense of personal and cultural identity.
I have frequently referred to the advantages of adoption when compared to long-term foster care, and in particular that researchers have consistently found significant benefits in adoption over long-term placements, [14] with higher rates of placement breakdown in long-term foster placements than in adoption; [15] that adopted children report a greater sense of security and belonging, less uncertainty about the impermanence of their situation, and less ambiguity of their position and less anxiety; [16] and that in a large-scale Swedish study of 900 adoptees and 3,100 children who grew up in foster care, it was found that fostered children fell short of adoptees on all outcomes – namely school performance at 15, cognitive competence at 18, education achievement and self-support capabilities in young adulthood; [17] while children who were in foster care had two to three times more maladjustment at age 18 than a control group and an adoption group. [18] In Adoption of SRB, CJB and RDB,[19] aided by the expert evidence in that case and drawing on the social science literature to which I have referred, I concluded that adoptive parents tend to persevere more than foster parents when difficulties arise; that adopted children experience an increased sense of belonging and family ownership, which in turn enhances their security and self-esteem; and that, taking those strands together, adoption enhanced the commitment of the foster parents and the security of the child, together contributing to the development of stronger and more enduring bonds of attachment. As I then said,[20] these are not conclusions to be applied willy-nilly to every case; but they provide a firm basis for supposing that where the choice is between adoption and long-term foster care, in general adoption may be regarded as offering positive advantages for a child over long-term foster care – even where long-term fostering is successful in the sense of being stable and continuing until the child attains her or his majority – being associated with superior outcomes in all domains. [21] As I have previously surmised, the explanation for that is likely to be found in the circumstance that however stable a foster care relationship may be, the child is not a full or complete member of the foster family, and is not a member of that family for life; whereas, if adopted, the child becomes legally a full and complete member of the family with which she or he is living, and does so forever.
14. For example, Triseliotis J (2002), ‘Long-Term Foster Care or Adoption? The Evidence Examined’, Child and Family Social Work, 7(1): 23-33; Brodzinksy D M (1993), ‘Long-Term Outcomes in Adoption’, The Future of Children, 3(1): 153‑166.
15. See, for example, Rushton A, Treseder J & Quinton D (1995), ‘An Eight‑Year Prospective Study of Older Boys Placed in Permanent Substitute Families: A Research Note’, Journal of Child Psychology and Psychiatry, 36(4): 687‑695; Holloway J S (1997), ‘Outcome in Placements for Adoption or Long Term Fostering’, Archives of Disease in Childhood, 76(3): 227-230.
16. Triseliotis J (2002), ‘Long-Term Foster Care or Adoption? The Evidence Examined’, Child and Family Social Work, 7(1): 23-33.
17. Vinnerljung B & Hjern A (2011), ‘Cognitive, Educational and Self-Support Outcomes of Long-Term Foster Care Versus Adoption: A Swedish National Cohort Study’, Children and Youth Services Review, 33(10): 1902-1910.
18. Bohman M & Sigvardsson S (1990) ‘Outcome in Adoption: Lessons from Longitudinal Studies’ in The Psychology of Adoption, eds Brodzinksy D M & Schechter M D, pp 93-106.
19. [2014] NSWSC 138 at [54]-[59].
20. Adoption of SRB, CJB and RDB [2014] NSWSC 138 at [59]; see also Adoption of EDH, JSH and KJH [2017] NSWSC 1861 at [15]-[18].
21. Adoption of EDH, JSH and KJH [2017] NSWSC 1861 at [16].

Because of the permanency of an adoption order, and the general preference based in human nature and experience that, where practicable, children are best raised by their birth parents, the Court must take into account that making an adoption order will practically foreclose the possibility of restoration. The status quo, or a parental responsibility order in favour of the applicants, would afford flexibility, which an adoption order does not permit. Either would preserve the possibility of restoration in the future. Thus, the Court would not make an adoption order unless satisfied that the advantages of adoption clearly outweighed the benefits of preserving the possibility of restoration. [22] If the Court were satisfied that restoration, now or in the future, was in the best interests of a child, it could not be satisfied that adoption was “clearly preferable”. But short of such a conclusion, while it must be taken into account that an adoption order would practically preclude the possibility of restoration, that must be weighed against the disadvantages of preserving that prospect, and the advantages of adoption. If restoration is not in the best interests of a child, then the advantages of flexibility in preserving the possibility of restoration in the future are often outweighed by the disadvantages of not extinguishing any remaining uncertainty about the permanency of the child’s placement, and the concomitant instability and insecurity. [23]
22. Although I once suggested that the Court would not likely make an adoption order if there were a realistic prospect of restoration [see, for example, Adoption of NG (No 2) [2014] NSWSC 680 at [83]], on reflection that overstates the position: see Adoption of RCC and RZA [2015] NSWSC 813 at [69]‑[72].
23. See Adoption of RCC and RZA [2015] NSWSC 813 at [69]-[72].
In the context of this case, adoption offers the advantages that it will bring the children's legal relationship and status into conformity with the practical realities of the situation: those who are, in fact, performing the role and functions of parenting them – namely, Andrew and Donald – would be their legal parents. The children would no longer be in so called out‑of‑home care – or in the older terminology, which sometimes still carries a stigma, have the status of State wards – but in “in‑home” care, in a family. The Department would have no further involvement, and Andrew and Donald would have the ability to make all necessary decisions about their welfare – and they plainly have the capacity and are the best positioned persons to be making those decisions. Adoption will give the children a sense of permanence and certainty which, in the light of their early disrupted attachments, are of great significance. It will give them full membership of the family in which they live, for life, an outcome which no other measure that can be taken by law in respect of their care can achieve. It will afford them the general benefits of adoption illustrated by the literature and the research to which I have referred.
Against that, the principle disadvantage is that adoption will sever the legal connection with their family. While declining to make an adoption order, in favour of one of the alternatives, might reduce the sense of loss of birth family and mitigate the risk or magnitude of the identity issues that the children may encounter, particularly in adolescence, the force of this consideration is diminished by several factors. First, the legal parental relationship would be without practical substance, as parental responsibility would not reside with the birth parents. Secondly, even in their teens, the children’s actual residential and psychological relationship with the applicants would seem almost as likely to trigger such issues as if legal parentage had been transferred to them. Thirdly, a parental responsibility order would expire at age 18 and would not have the life-time duration, and permanence, of adoption; it would not make the children full members of their carers’ family. Fourthly, the risk of identity issues and loss is mitigated by the children’s knowledge of and relationships with their birth family, which will be sustained through ongoing contact. Adoption will not sever the biological and emotional relationship, and in this case, the continuation of that connection – to which Andrew and Donald have demonstrated a strong commitment – will be underwritten by a registered adoption plan.
The wishes of the birth parents are relevant considerations, but they must yield to the best interests of the children. Natalie’s evidence that if the children were not to be returned to herself or Lane, she would “support and sign guardianship” of the children to Donald and Andrew, effectively amounts to qualified support for a parental responsibility order in favour of the applicants. While Lane’s position was perhaps not expressed quite so clearly, it is clear that he too would prefer that the applicants have parental responsibility rather than that the children be adopted by them.
Natalie has also observed that, in a couple of years, the children will be old enough to make their own decision. This refers to the position that, at age 12, children can consent to their own adoption. However, one of the principles on which the Court must act is that stated in s 8(1)(e1) of the Act, which provides that ‘undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare’. Moreover, this would effectively cede to the children responsibility for making the decision that the Court is charged with making,[24] and would place the children in an invidious and stressful position – given their ongoing relationship with their birth family – of being responsible for the decision. In the meantime, it would deny the children the certainty, stability, security and permanence provided by adoption. And it would be contrary to the expressed wishes of the children.
24. See Adoption of KH [2015] NSWSC 274 at [58].
In the present case, the early disrupted history of these children is a very significant consideration; that history of early fractured relationships already places them at elevated risk of difficulties in forming trusting relationships, and depression, in the future. Cementing their current placement is an important step in providing them with the assured stability and security that they have so far been denied. It is not that there is any proposal or risk of their being removed from their current placement, but their need to feel entirely secure in it – the need for a sense of permanent belonging with the applicants. The maintenance of the status quo, or a parental responsibility order in favour of the applicants, would deny the children the additional stability, security and permanence that is provided by adoption.
In my judgment, those considerations provide very important context for considering the views of the children, which as has been noted are to be given due weight in accordance with their developmental capacity and the circumstances. [25] According to Donald, in January 2018, Colin told him, in one conversation, that he was “thankful” that he was being adopted, and in another that “if I could demand [adoption], I would”. Also according to Donald, Kiera has commented that the adoption has taken a long time, and that she hopes that it happens “this year” (being 2018). When interviewed by the s 91 reporter Ms Murrell, both children expressed a wish to be adopted. During a home visit on 23 April 2018, the caseworker Ms Geddes asked the children whether they wished to be adopted, and both said that they did. Colin said that he did not want to be a “foster kid forever” – although he also expressed concern about upsetting his birth family. Kiera said that she wished to be “Kiera Colosomi-Song”.
25. (NSW) Adoption Act 2000, s 8(1)(d).
Moreover, during the hearing, evidence was adduced of notes written by Colin for a speech delivered by him at school, which Donald found in his notebook when attending an open day:

My biggest concern for the future is …
Good afternoon 4A today I am going to talk to you about my biggest concern for the future.
My biggest concern for the future is growing up! I have sooo many questions like what am I going to do when my parents pass away, will I get a job, will I catch a disease and die, will I be happy or sad, will I be able to afford a house.
But worst of all, will I stay a foster child for the rest of my life! I really need to convince the judge to let Kiera and I to get adopted. Getting adopted can change my concerns into something greater than I can think of.
Growing up is one of the toughest things you can think of. When I grow up I don’t know what I’m going to have to do or if a war will suddenly occur. I can’t know exactly but what I can do is change my act.

Although in some respects this reveals a troubling pessimism for one of his age, it also contains a clear expression of a wish to be adopted, and a view that its consequences for him will be beneficial and considerable.
Natalie has expressed concerns that the children do not fully understand the concept and implications of adoption. It may be accepted that at their ages they do not have a full understanding of the legal concepts involved. Nonetheless there are powerful indicators that their wishes are not merely to remain in the care of Andrew and Donald, but to become permanent members of their family. Those indicators include Colin’s statement that he does not want to be a “foster kid forever”; his expressed concern that adoption would be upsetting for his birth family; and Kiera’s statement that she wished to be “Kiera Colosomi-Song”. In the context of the children’s early experiences and history of disrupted placements, these expressions of a yearning for the security and permanence offered by adoption is entirely understandable.
The case manager and s 91 reporter, Ms Murrell, in her report of 18 January 2017, wrote:

I believe that the continuation of the existing Children’s Court Order granting Parental Responsibility to the Minister will not afford Colin and Kiera the security of an Adoption Order, nor will it provide Colin and Kiera with lifelong membership of the Colosomi-Song family. The absence of a permanent and binding order leaves them vulnerable to insecurity in the placement and the threat of removal. An Adoption Order will provide security in the placement and allow the proposed adoptive parents to advocate for Colin and Kiera and make decisions on their behalf, which I believe they are best placed to do. Colin and Kiera are excited by the prospect of a legal order that will secure their placement with the proposed adoptive parents.
I believe that the making of an Adoption Order is in Colin and Kiera’s best interest as it provides them with a greater sense of permanency, stability and legal security than any other can provide. This will maximise Colin and Kiera’s opportunities to become emotionally secure, achieve their academic potential, form healthy relationships, be loved and nurtured and to be given many opportunities for positive and enriching experiences. I therefore believe that Adoption is preferable to any other order and recommend that an Adoption Order be granted.

Ms Murrell’s report was accepted and adopted by the Program Manager Adoptions, Ms Geddes, who wrote:

I believe that adoption offers Colin and Kiera the best opportunity to continue to develop and grow in a stable, nurturing and secure environment and gives legal recognition to the relationship that has been built since they have been placed with the proposed adoptive parents. No other order allows for the sense of permanency that the making of an Adoption Order allows and as such, I believe that this is the best outcome for Colin and Kiera. I support Ms Murrell’s recommendation that the Court grant an Adoption Order in respect of Colin and Kiera.

Save to note that any risk of removal, as referred to by Ms Murrell, is theoretical and hypothetical, and not real – though it may nonetheless be perceived or sensed by the children, especially given their history of multiple placements – I agree with their conclusions. The most influential factors are:

the children’s disrupted early years which accentuates the need for permanence security and stability now;

the excellent quality of the parenting of the applicants and their care for and nurturing of the children;

the children’s expressed wishes to be adopted; and

my confidence that the applicants will sustain a positive relationship between the children and their birth family.

Restoration in the short term is not in the children’s best interests, given their well-established and beneficial placement with the applicants in which they are happy, safe and making good progress; the applicants’ superior parenting capacity; their bonds of attachment to the applicants; and the risks associated with severing those bonds in order to “restore” them to the care of one of their birth parents. A parental responsibility order in favour of the applicants, or maintenance of the status quo, while preserving the possibility of restoration in the future, would deny the children the security afforded by adoption, the need for which is accentuated by their early disrupted history. Nor would a parental responsibility order provide complete and permanent membership of the family in which the children reside and with which they wish to be identified, or bring their legal status into alignment with the reality of their lives in which, on any view, it will be the applicants who are primarily performing the functions of their parents. Adoption is superior to all alternatives in respect of the provision of certainty, stability and security for the children during childhood, conformity of the legal parental relationship with the factual situation that the applicants – and not the birth parents or either of them – practically have and exercise the functions and responsibilities of parenthood, and a permanent life-long membership of their carers’ family. While adoption would sever the legal relationship with their birth parents, links can be maintained in other ways, including through birth parent contact, which I have every confidence the applicants will promote. Only adoption offers the assured sense of stability and security, and permanent membership of the family forever, that these children need, and for which they yearn; benefits which in my view clearly outweigh any benefit in maintaining a possibility of restoration in the future. Adoption will also remove the need for the involvement in their upbringing of FACS and Barnardos, and in that way normalise their situation. It will accord with the clearly expressed wishes of the children to be permanent members of the Colosomi-Song family. Though it will be contrary to the wishes of the birth parents, their wishes must yield to the best interests of the children.
Accordingly, for the purposes of s 90(1)(a), I am satisfied that the children’s best interests will be promoted by adoption by the applicants, and for the purposes of s 90(3), I am satisfied that adoption is, in the circumstances, clearly preferable in their best interests to any other action that could be taken by law in relation to their care.

Birth parent contact and the adoption plan

As I have elsewhere recorded,[26] a good knowledge of their biological family is a critical issue for children to feel secure in their identity, and birth parent contact is an important aspect of satisfying the identity needs of children who do not reside with their birth family, and mitigating the risks of later identity issues. It is clear that, although sometimes productive of stress – perhaps due to so much being crammed into one day – the children enjoy contact with their birth parents, and that it is beneficial for them.
26. See, for example, Adoption of Hogarth [2019] NSWSC 9 at [120].
The applicants and Barnardos have agreed to amended maternal and paternal Adoption Plans, both dated 30 May 2018. As the parties to the adoption (being in the circumstances the Principal Officer and the applicants)[27] have agreed to adoption plans, the Court may not make an adoption order unless satisfied that the arrangements proposed in the plans are in the child’s best interests and proper in the circumstances. [28] Whether the arrangements are proper in the circumstances requires consideration of all the circumstances relevant to the arrangements, and in particular the purpose of “open adoption” – being one in which the child will know and have contact with their birth family. And although it may be observed that if there is no adoption plan providing for contact there is no such statutory hurdle, nonetheless the arrangements for birth parent contact are relevant to whether an adoption order should be made, regardless of whether or not there is an adoption plan, because they bear on whether the children’s identity needs will be adequately addressed, and thus whether adoption is in their best interests.
27. Although a non-consenting birth parent is not otherwise a party to the adoption, under (NSW) Adoption Act 2000, s 46(2B), a non-consenting birth parent who agrees to an adoption plan is to be treated as if he or she were a party to the adoption for the purposes of the making, registration and review of the adoption plan. Here, however, the birth parents have not agreed to the adoption plan; so the only parties to it are the Principal Officer and the applicants.
28. (NSW) Adoption Act 2000, s 90(2).
The parties to the plans have agreed to seek registration, and the Secretary by an amended summons filed at the hearing seeks that the adoption plans be registered. Registration provides an additional measure of assurance to birth parents in respect of contact, as a registered plan is enforceable as if it were an order of the Court,[29] and, even if they are not parties to the plan, they have standing to enforce the deemed order in their favour. [30] Although I am very satisfied that the applicants are in any event committed to birth parent contact, nonetheless in order to ensure that the birth parents have legally enforceable rights in that respect – which might also moderate their concerns, though I think them unfounded, about relocation – I would register the plan were I satisfied, for the purposes of s 50(3)(c), that its provisions were in the children's best interests and proper in the circumstances.
29. (NSW) Adoption Act 2000, s 50(4).
30. Director-General, NSW Department of Family and Community Services; Re JS [2013] NSWSC 306.
The proposed maternal adoption plan provides for the children to have face‑to-face contact with Natalie six times per year, for at least 2 hours duration. Four of those occasions may include the maternal grandmother Jillian and aunt Danielle, and two with Natalie exclusively. It also provides (separately) for contact four times annually with Petra, for at least 1.5 hours.
When asked about contact, Natalie said:

Q. If the children continue to live with Dom and Andy what do you say about the contact? A. I want more – no matter what I think it will never be enough and he’s right, an hour – they, they spend more time in out of school care in one week than what we do with them in a whole year, like that’s, that’s ridiculous. So, yeah, I want more visits, a hundred per cent. I sort of want to look at the – I want to explore having an unsupervised visit once a year or something too. I haven’t been with my kids, with just my kids, since they’ve been taken off me. There’s always hovering around or like he said and they’re like robots. It’s not them. But, yeah, no, it will never be enough. No visit will ever be enough. But they’re good when I do get them.

The adoption plan stipulates a minimum and contemplates more, having regard to the interests of the children, and their wishes as they mature. Given my confidence in the applicants’ support for birth family contact, I am satisfied that these arrangements are in the children's best interests and proper in the circumstances.

The proposed paternal adoption plan, which was revised following his release from prison, provides for contact four times per year, for 1.5 hours. It also provides that should Lane again be incarcerated, Andrew and Donald would determine whether it is appropriate for any visits to occur, having regard to the children’s age and wishes, the arrangements that can be made by the relevant correctional centre, and the recommendations of any relevant professionals.
Lane has submitted that four visits per year, of 1.5 hours each, would barely sustain any relationship with him, and I agree. While the children’s competing commitments will, as they enter secondary school, impose additional constraints, in the meantime I think they should have contact with him – if he is at liberty – six times per annum, for 1.5 hours. Upon the younger entering secondary school the frequency might decrease, but the duration commensurately increase. And despite my confidence in the applicants, I am also concerned that in the event of Lane’s returning to prison – which may have occurred – contact is left entirely to their discretion, with Lane having no rights. In these respects, I am not satisfied that the arrangements proposed in the paternal adoption plan are proper in the circumstances. That conclusion precludes me from making an adoption order, until those shortcomings be addressed.

Consent dispense order

Because the birth parents have not given consent, adoption orders can be made only if their consents are dispensed with.
Dispensing with consent is a grave step, not lightly to be taken, and the law permits the consent of birth parents to be dispensed with only in limited circumstances. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child’s welfare. In 2006, however, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where the Court is satisfied that the adoption application is made on behalf of persons who are authorised carers for the children, that the children have established a stable relationship with them, that the adoption of the children by those carers will promote the children's welfare, and that it is in the best interests of the children that a consent dispense order be made. This was explained, in the second reading speech, [31] 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). Section 67(1)(d) is concerned not with the capacity or quality of the birth parents, but with the child’s present situation. [32] The policy that underlies s 67(1)(d) is that once a child has 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 clearly best be served by adoption.
31. Hansard, Legislative Council, 25 October 2006.
32. Re Sarah [2013] NSWCA 379 at [68], approving Re Stephen [2011] NSWSC 1521 at [59] (Slattery J).
The final orders of the Children’s Court of 10 April 2014, finding that there was no realistic prospect of restoration of the children to either parent, and allocating parental responsibility for both children to the Minister until they attain the age of 18, represent a judgment by a specialist Court of competent jurisdiction that it was necessary in the children’s interests for them to be placed permanently elsewhere than with their biological parents. It is clear that the relevant preconditions under s 67(1)(d) of the Adoption Act – in terms of the application being made by authorised carers, with whom the children have established a stable relationship – are satisfied, and the only issues are whether their adoption by the applicants will promote the children's welfare,[33] and whether it is in their best interests that a consent dispense order be made. [34] Because a consent dispense order is a necessary precondition to making an adoption order, these questions are usually if not invariably interwoven with consideration of the ultimate issue posed by s 90(3), whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child: if adoption is clearly preferable, then it must be in the child’s best interests that a consent dispense order be made, to permit the adoption order to be made; whereas if adoption is not clearly preferable, then there is no point or utility in making a consent dispense order.
33. (NSW) Adoption Act 2000, s 67(1)(d)(ii).
34. (NSW) Adoption Act 2000, s 67(2).
As I have concluded that making an adoption order would promote the children’s welfare and be in their best interests, it would also necessarily be in their best interests and promote their welfare to make a consent dispense order, so as to allow adoption orders to be made notwithstanding that the birth parents do not consent. Accordingly, upon the paternal adoption plan being amended as I have indicated, I would make orders pursuant to s 67(1)(d) dispensing with the consents of the birth parents.

Names

The Secretary proposes that the children have the surname “Colosomi-Song”, and the forenames “Colin Daryl” and “Kiera Jillian” respectively. This would involve changing their surnames from “Taylor-Clay” to “Colosomi-Song”, with no change to their forenames.
Adoption Act, s 101, relevantly provides that on the making of an adoption order, an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents. Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.
Both birth parents oppose the children’s names being changed, and the children are aware of at least the opposition of their maternal family. The evidence of the applicants is that Colin has indicated that he wishes to share the name of the applicants, and while Kiera has generally seemed more ambivalent, during a home visit on 23 April 2018, when Ms Geddes asked the children about changing their names, both told her that they wanted their names to be the same as the applicants, and were able to articulate reasons why, including a desire to be identified with their proposed adoptive parents.
“Colosomi-Song” is, self-evidently, a concatenation of the surnames of the applicants. They intend to marry and, in doing so, to combine their names in that way.
Upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child’s family name accords with that of his or her legal family. Thus, one of the features of adoption, at least in the case of a child under 18, and – just as assumption of the same surname is usually a feature of marriage – so one of the most obvious indicators of permanent membership of the adoptive family, is the assumption of its family name. If it is a benefit of adoption that it makes a child a permanent and full member of the adoptive family, then it would detract from that benefit if it were not accompanied by a change of surname. Adopting the surnames of the proposed adoptive parents is a way to “recognise the children’s place in the adoptive family and reinforce their sense of permanency and belonging, in that they will be in name as well as in law a member of the adoptive family”. [35] Indeed, children see that outcome as one of the most significant manifestations of the sense of “belonging” that adoption is intended to nurture. Not to do so would detract from one of the fundamental and practical benefits and hallmarks of adoption. It would be an extraordinary, if not inconceivable, case in which one could conclude that adoption is in a child’s best interests because it cements his or her membership of the adoptive family, yet the child should not acquire the surname of the adoptive family. Thus, it would be nonsensical in this context to make an adoption order without conferring on the children the surname of their adoptive parents.
35. Adoption of RCC and RZA [2015] NSWSC 813 at [104].
As to forenames, the Court must not approve a change in the given name or names of a child who is more than one year old unless the Court is satisfied that the name change is in the best interests of the child. The adoption principles set out in s 8 include that a child’s given name or names, and identity, should, as far as possible, be preserved. [36]
36. (NSW) Adoption Act 2000, s 8(e).
There has developed a fairly well-established practice in the context of open adoptions of the birth family name being retained as an additional middle name. This serves to preserve, in a very clear way, the connection with the birth family, and contributes to meeting a child’s identity needs and mitigating the risk of identity issues associated with adoption.
In this case, this course was not proposed by the Secretary, nor supported by the applicants, who however canvassed (but ultimately did not propose) the possibility of incorporating the father’s forename Lane, and the mother’s forename Natalie, as additional forenames for Colin and Kiera respectively. In any event it was emphasised by the birth parents that it was their family names, not their forenames, which reflected their family of origin – which had been an issue for them when the children were born, resulting in their having the double name Taylor-Clay.
Opposition to inclusion of “Taylor-Clay” was founded on the complexity of the name which would result, particularly with two hyphenated names in it. I have sympathy with this: it is easy for parents, and courts, to visit complex names on children, and I am not so sure that children necessarily welcome them. However, it will always be open to the children to decide which of their names they actually use in practice in what situations.
In my view, consistently with an approach that has been previously taken,[37] the complexity can be somewhat reduced by de-hyphenating Taylor-Clark, but otherwise including it, as additional middle names. Though the result is lengthy, it preserves for the children the ability to choose for themselves in the future what they disclose and what they use. Importantly, that course preserves that aspect of their identity and heritage which derives from their birth parents. It does not detract from preservation of their existing given names, and promotes rather than detracts from preservation of their identity. I am satisfied that its inclusion is in her best interests. The Secretary accepted that this was not an inappropriate course.
37. Adoption of Hampton-Morgan [2018] NSWSC 2007 at [57]-[59].
Accordingly, should an adoption order be made, I would order that upon adoption, the children have the surname “Colosomi-Song”, and the forenames “Colin Daryl Taylor Clay” and “Kiera Jillian Taylor Clay” respectively.

Conclusion

The overarching issue in these proceedings is whether, having regard to the best interests of the children, their adoption by the proposed adopting parents – with whom they have resided since 29 August 2014 – is clearly preferable to any other action that can be taken by law in relation to their care. All those involved in these proceedings – the birth parents and the applicants – want the best for the children and are acting in what they perceive to be the children’s best interests. Unsurprisingly, they differ to some extent on how their interests would best be served. The Court’s function is to resolve those differences, keeping at the forefront the paramount consideration of the children’s best interests, now and in the future; and bearing in mind that an adoption order may be made only if satisfied that it is clearly preferable to any other action that can be taken by law in relation to their care.
In my judgment, restoration in the short term is not in the children’s best interests, given their well-established and beneficial placement with the applicants in which they are happy, safe and making good progress; the applicants’ superior parenting capacity; their bonds of attachment to the applicants; and the risks associated with severing those bonds in order to “restore” them to the care of one of their birth parents. A parental responsibility order in favour of the applicants, or maintenance of the status quo, while preserving the possibility of restoration in the future, would deny the children the felt security afforded by adoption, the need for which is accentuated by their early disrupted history. Nor would a parental responsibility order provide complete and permanent membership of the family in which the children reside and with which they wish to be identified, or bring their legal status into alignment with the reality of their lives in which, on any view, it will be the applicants who are primarily performing the functions of their parents. Adoption is superior to all alternatives in respect of the provision of certainty, stability and security for the children during childhood, conformity of the legal parental relationship with the factual situation that the applicants – and not the birth parents or either of them – practically have and exercise the functions and responsibilities of parenthood, and a permanent life-long membership of their carers’ family. While adoption would sever the legal relationship with their birth parents, links can be maintained in other ways, including through birth parent contact, which I have every confidence the applicants will promote. Only adoption offers the assured sense of stability and security, and permanent membership of the family forever, that these children need, and for which they yearn; benefits which in my view clearly outweigh any benefit in maintaining a possibility of restoration in the future. Adoption will also remove the need for the involvement in their upbringing of FACS and Barnardos, and in that way normalise their situation. It will accord with the clearly expressed wishes of the children to be permanent members of the Colosomi-Song family. Though it will be contrary to the wishes of the birth parents, their wishes must yield to the best interests of the children. I am, therefore, satisfied that the children’s best interests will be promoted by adoption by the applicants, and that the making of an adoption order would be clearly preferable in their best interests to any other action that could be taken by law in relation to their care.
I am satisfied that the arrangements proposed in the maternal adoption plan are in the children's best interests and proper in the circumstances, and that upon adoption orders being made that plan should be registered. However, I am not at this stage satisfied that the arrangements proposed in the paternal adoption plan are proper in the circumstances, because four visits per year of 1.5 hours each are inadequate to develop and sustain the children’s relationship with their birth father, and the question of contact if he return to gaol – which he may already have done – is left entirely discretionary. In my view, proper arrangements would involve six 1.5 hour visits per year until Kiera commences secondary school, and thereafter four 2 hour visits per year, so long as Lane is at liberty; and if he is incarcerated there should be provision for at least two gaol visits per year, subject to appropriate arrangements being able to be made, unless a professional reports that it would be contrary to the children’s interests. The conclusion, that I am not at this stage satisfied that the arrangements proposed in the paternal adoption plan are proper in the circumstances, precludes me from making an adoption order, unless and until it be addressed.
As I have concluded that making adoption orders would promote the children’s welfare and be in their best interests, it would also necessarily be in their best interests and promote their welfare to make consent dispense orders, so as to allow adoption orders to be made notwithstanding that the birth parents do not consent. Upon amendment of the paternal adoption plan as I have indicated, I would make orders pursuant to s 67(1)(d) dispensing with the consent of the birth parents.
To make an adoption order without conferring on the children the surname of their adoptive parents would detract from the benefits and hallmarks of adoption. However, inclusion of “Taylor” and “Clay” as additional forenames would serve to preserve the connection with the birth family, and contribute to meeting the children’s identity needs and mitigating the risk of identity issues. While the result is complex, the children will have the ability to choose for themselves in the future what they disclose and what they use. Accordingly, upon making adoption orders, I would approve “Colosomi-Song” as their surname, and “Colin Daryl Taylor Clay” and “Kiera Jillian Taylor Clay” as their respective forenames.
I will adjourn the proceedings to a date to be fixed, to enable the parties to give consideration to these reasons and amend the paternal adoption plan.

**********

Endnotes

Amendments

05 February 2019 - Jurisdiction amended

Decision last updated: 05 February 2019

Medium Neutral Citation:	Adoption of Taylor-Clay [2019] NSWSC 27
Hearing dates:	16 August 2018
Date of orders:	31 January 2019
Decision date:	31 January 2019
Jurisdiction:	Equity - Adoptions List
Before:	Brereton J
Decision:	Adoption would promote best interests of children and is clearly preferable to any other action that can be taken by law. Maternal adoption plan is proper in the circumstances, but not satisfied that paternal adoption plan is proper in the circumstances, which precludes making an adoption order unless remedied. Upon adoption children should retain as additional middle names their current surname.
Catchwords:	FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether adoption clearly preferable to any other order that could be made with respect to care of children – respective advantages and disadvantages of restoration, adoption, parental responsibility to carer and parental responsibility to Minister – relative advantages of adoption vis-à-vis long term foster care – held, benefits of adoption outweigh benefits of preserving opportunity for future restoration – held, adoption would promote children’s best interests and is clearly preferable to any other order that could be made with respect to care of children. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plans – where plan provides inadequate opportunities for child to know and develop relationship with birth father, including in event of his incarceration – held, plan not proper in the circumstances. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent – dispensing with consent – where adoptive applicants are approved carer with whom children have an established relationship – where Children’s Court has allocated parental responsibility to Minister to age 18 – where adoption would promote children’s best interests and is clearly preferable to any other order that could be made with respect to care of children – held, in children’s best interests to make consent dispense order so as to permit adoption orders to be made. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names – assumption of adoptive family’s’ surname is a fundamental feature of adoption and a manifestation of its benefits – inclusion of former hyphenated surname as two additional middle names is in child’s interests as means of preserving the child’s identity.
Legislation Cited:	(NSW) Adoption Act 2000, s 4, s 8, s 23, s 24, s 28, s 46, s 50, s 59, s 67, s 72, s 87, s 88, s 90
Cases Cited:	D, Re; Application of A [2006] NSWSC 1056 Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 EDH, JSH and KJH, Adoption of [2017] NSWSC 1861 Hogarth, Adoption of [2019] NSWSC 9 JLK and CRK, Adoption of [2017] NSWSC 7 JS, Re; Director-General, NSW Department of Family and Community Services [2013] NSWSC 306 KH, Adoption of [2015] NSWSC 274 Hampton-Morgan, Adoption of [2018] NSWSC 2007 NG (No 2), Adoption of [2014] NSWSC 680 RCC & RZA, Adoption of [2015] NSWSC 813 Sarah, Re [2013] NSWCA 379 Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6 SRB, CJB and RDB, Adoption of [2014] NSWSC 138 Stephen, Re; Director-General of Family and Community Services [2011] NSWSC 1521
Texts Cited:	Bohman M & Sigvardsson S (1990) ‘Outcome in Adoption: Lessons from Longitudinal Studies’ in The Psychology of Adoption, eds Brodzinksy D M & Schechter M D, pp 93-106 Brodzinksy D M (1993), ‘Long-Term Outcomes in Adoption’, The Future of Children, 3(1): 153‑166 Holloway J S (1997), ‘Outcome in Placements for Adoption or Long Term Fostering’, Archives of Disease in Childhood, 76(3): 227-230 Rushton A, Treseder J & Quinton D (1995), ‘An Eight‑Year Prospective Study of Older Boys Placed in Permanent Substitute Families: A Research Note’, Journal of Child Psychology and Psychiatry, 36(4): 687‑695 Triseliotis J (2002), ‘Long-Term Foster Care or Adoption? The Evidence Examined’, Child and Family Social Work, 7(1): 23-33 Vinnerljung B & Hjern A (2011), ‘Cognitive, Educational and Self-Support Outcomes of Long-Term Foster Care Versus Adoption: A Swedish National Cohort Study’, Children and Youth Services Review, 33(10): 1902-1910
Category:	Principal judgment
Parties:	Secretary for the Department of Family and Community Services (P) Natalie Jillian Ronald-Taylor (1D) Lane Mark Clay (2D)
Representation:	Counsel: C McGorey (P) 1D in person 2D in person Solicitors: Crown Solicitor (P)
File Number(s):	A76/2017