Adoption of VEP (anonymised)

[2019] NSWSC 1553

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of VEP (anonymised) [2019] NSWSC 1553
Hearing dates:	17 October 2019
Date of orders:	17 October 2019
Decision date:	17 October 2019
Jurisdiction:	Equity - Adoptions List
Before:	Sackar J
Decision:	Adoption Orders Made
Catchwords:	ADOPTION - FAMILY LAW AND CHILD WELFARE –Adoption- whether adoption in the child’s best interests- whether adoption clearly preferable – shared parenting arrangement
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	Adoption of Hogarth (No 2) [2019] NSWSC 9, Adoption of RCC and RZA [2015] NSWSC 813 Re K & the Adoption Act 2000 [2005] NSWSC 858 Re KN and The Adoption Act 2000 [2005] NSWSC 896 Re KSE & The Adoption Act 2000 [2006] NSWSC 92 Re WJP and the Adoption Act 2000 [2014] NSWSC 783 Secretary, Dept of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007
Texts Cited:	n/a
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services (plaintiff) VEP (child)
Representation:	Counsel:   Solicitors: NSW Crown Solicitor (plaintiff) Ms N Hailstone (plaintiff) No other appearances
File Number(s):	2019/86716

Judgment

Procedural background

1. The proceedings before me concern the adoption of VEP born August 2011.

2. By summons filed March 2019, the Secretary, Department of Family and Community Services sought the following orders:

1. That, pursuant to Adoption Act 2000 s 67(1)(d), the consent of the child’s birth mother, AP be dispensed with;

2. That pursuant to Adoption Act 2000, s 67(1)(a) and s 67(1)(d), the court dispense with the consent of the child’s birth father;

3. That pursuant to Adoption Act 2000, s 88(4) the Court dispense with the giving of notice on the child’s birth father; and

4. An order for the adoption of the child VEP in favour of the adopting parent ND.

3. The matter was initially brought as an uncontested matter before Justice Parker in chambers. However, it appeared that the birth mother, while incarcerated, had informally objected to the adoption. The matter was then referred to me to give the birth mother an opportunity to formally contest the orders sought.

4. The matter first came before me in the Adoptions list on 11 September 2019. On that date, the Court’s attempt to reach the birth mother by phone was unsuccessful. Ms Hailstone for the Secretary informed me that she had been unable to make contact with the birth mother, who had not answered her repeated emails or phone calls I stood the matter over to allow the birth mother further time to respond to the Secretary.

5. The matter was then listed on 27 September 2019. Again, the Court attempted to reach the birth mother by phone but there was no response. The Secretary informed me that they had continually tried to contact the birth mother but she was declining to respond. I was informed that the birth mother had been in contact with the proposed adoptive parent, and that the Secretary had formed the view that she was receiving their communications but deciding not to participate.

6. The Secretary then sought to have the orders for adoption made in chambers. I declined the request and informed them I would list the matter for hearing in Court on 16 October to give the birth mother a final opportunity to respond.

7. The matter then came before me for hearing on 16 October. On that morning it became apparent that the birth mother did not want to participate, and the matter was to proceed uncontested. In Court I informed Ms Hailstone for the Secretary that I had some problems with the evidence. I noted that I was satisfied with the Secretary’s efforts to contact and communicate with the birth mother and that she had been given sufficient opportunity to respond and in fact had no intention of engaging with the process. I noted that my primary concern was the lack of evidence in the file about the proposed adoptive parent’s new partner S. I adjourned the matter to give the Secretary the opportunity to provide further information to the Court.

8. The matter returned on 17 October. The Secretary provided me with a bundle of documents including a carer assessment for S, interviews with S and O, and further file notes of the s 91 report writer.

9. I made the orders as sought on 17 October.

10. I now publish my reasons in full.

Background facts

11. The child was born in August 2011. He was born with Foetal Alcohol spectrum disorder. In October 2011, the birth mother consented to a Temporary Care Agreement, and the child was placed with the proposed adoptive parent and her then husband O for a short period before returning to the birth mother. In December 2011, the birth mother again consented to a Temporary Care Agreement and the child was placed with the proposed adoptive parent and O for three months. The child returned to the care of the birth mother in March 2012.

12. The child was then removed in April 2012 due to concerns about the birth mother’s excessive consumption of alcohol and illicit drugs while caring for the child, a history of criminality, homelessness and transience on the part of the birth mother and the birth mother’s reluctance to engage in ante-natal care while pregnant. The child was placed in the care of the proposed adoptive parent and O. At the time of placement, the child was eight months old. In December 2012 the Children’s Court of NSW made Final Orders for the child to remain under the parental responsibility of the Minister until he attains the age of 18.

13. There is no father listed on the child’s birth certificate. A Mr HH was identified by the birth mother as the child’s putative father at the child’s birth. It appears that Mr H informed caseworkers at the time of the child’s conception that he was not in a relationship with the birth mother. He later advised the s 91 report writer that he was unsure whether he was the child’s father. Attempts were made to have Mr H take a DNA test to confirm paternity. Although he agreed to this in December 2018, subsequent attempts to contact Mr H and arrange testing have been unsuccessful. At the time of hearing Mr H’s location was unknown.

14. The child has five maternal half siblings, who are all in out of home care. The children are all placed with different carers, two of the children are placed with the same carer.

15. At the time of placement, the child was placed into the care of the proposed adoptive parent and her then partner O. The pair separated in late 2015 however O remained living in the home until October 2017 to help V settle with the change in their relationship. In July 2016, the proposed adoptive parent’s new partner, S, moved into the home. S has remained together with the proposed adoptive parent and in January 2019 provided spousal consent to the adoption. Both O and S are authorised carers under the Act, however the adoption is only sought in favour of ND. The child now lives in a shared care arrangement with the proposed adoptive parent and O. He previously lived one week on and one week off with each of them. O has since recently relocated and is now about an hours drive away. The child now spends every second weekend with O and half of the school holidays and the remaining time with the proposed adoptive parent.

16. There has been inconsistent contact between the child and the birth mother since his removal, due primarily to her ongoing incarceration. There has been telephone and written communication since 2018. The proposed adoptive parent has confirmed monthly telephone contact with the birth mother but she would like to increase this when the mother is released from gaol.

17. In 2013 and 2014, the child attended formal contact with three of his siblings and later the fourth. In 2015 through until 2018, the carers of three of the siblings, and T (fifth sibling) organised contact informally. At the beginning of 2018, conflict arose between the other carers. In August 2018 all the carers attended a mediation to try to resolve the issues. During this time, the child continued having informal contact with T (fifth sibling). Formal contact has been resumed with three siblings. Contact with the fifth sibling is to be arranged in the coming months.

Legal principles

18. Under ss 7 and 8 of the Adoption Act, all decisions in the adoption context, including the decision to make an adoption order, should be made with the child’s best interests as the paramount consideration. Section 8 provides for certain factors to consider when keeping the child’s best interests in mind including the wishes of the child (s 8(2)(a)), the child’s physical, emotional and educational needs (s 8(2)(c)), the relationship the child has with the proposed adoptive parent/s (s 8(2)(h)), the child’s relationship with their birth family (s 8(2)(f)) and the need to protect the child from physical or psychological harm (s 8(2)(j)).

19. The Act further requires that an adoption order be clearly preferable in the bests interest of the child than any other action that could be taken by law (s 90(3)).

20. In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J stated that the phrase, ‘clearly preferable’ required ‘something more than a slight preponderance of considerations in favour of adoption over the alternatives (at [14]).

21. Recently in Adoption of Hogarth (No 2) [2019] NSWSC 9, Brereton J considered the benefits of adoption (at [51]-[52]):

In other cases in which the effects of adoption have been considered, there has been a tendency to emphasise the beneficial effects of adoption in comparison to long-term foster care. That has been because, in many of those cases, restoration has not been a realistic option, and the contest has been between adoption on the one hand, and ongoing foster care with either the Minister or the foster carers having parental responsibility on the other. In that context, the effects of adoption have been identified as including:

(1)   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.

(2)   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.

(3)   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”. 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.

Although it has invariably been acknowledged in those cases that adoption carries a risk that the child may feel unwanted or abandoned, and may encounter “identity issues” in later life – in particular in adolescence – it has been observed that such 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 that whether in foster care, or under a parental responsibility order, or adopted, there is the same potential for the question, “why do I not live with my birth parents?”, and the risk of a sense of loss or abandonment. However, it has been observed that that risk can be mitigated if the child knows the birth parents and can continue to have a relationship with them, and that while the legal parental relationship with the birth parents is severed, they do not cease to be the birth parents and the relationship with them can be maintained through contact, while legal parenthood appropriately resides with those who are discharging the responsibilities of parenthood.

22. Under s 52, consent of the birth parents is required prior to making an adoption order.

23. The Court is able under s 67, in certain circumstances, to make a consent dispense order. Section 67 states:

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

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

(a)   the person cannot, after reasonable inquiry, be found or identified, or

(b)   the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or

(c)   if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or

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

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

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

(iii)   in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.

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

24. There are a series of cases involving dispensing with consent, after a birth parent in an overseas adoption could not be found as under s 67. White J in Re K & the Adoption Act 2000 [2005] NSWSC 858 considered a ‘reasonable inquiry’ under s 67(1)(a) in this context, he states (at [22]):

Whether an inquiry is reasonable is to be evaluated from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made.

25. This decision has subsequently been endorsed in the following: Re WJP and the Adoption Act 2000 [2014] NSWSC 783; Re KSE & The Adoption Act 2000 [2006] NSWSC 92; Re KN and The Adoption Act 2000 [2005] NSWSC 896; Secretary, Dept of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007.

26. Section 72 requires notice to be given before a consent dispense order is made in certain circumstances:

72   Notice of consent dispense order

(1)   The Court must not make a consent dispense order on the application of any person unless notice of the application has been given to the person whose consent is sought to be dispensed with at least 14 days before the order is made.

(2)   Subsection (1) does not apply if:

(a)   the person cannot, after reasonable inquiry, be found or identified, or

(b)   the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent and his or her physical or mental health would, in the opinion of the Court, be detrimentally affected if he or she were to receive notice of the application, or

(c)   the Court considers that in the particular circumstances of the case it is desirable to make an order without notice of the application having been given.

(3)   The Court must not revoke any consent dispense order on application of a person unless not less than 14 days’ notice of the application has been given:

(a)   in the case of an application for revocation made by a person other than the Secretary—to the Secretary, and

(b)   in the case of an application for revocation made by a person other than the principal officer who applied for the consent dispense order—to the principal officer, or

(c)   if an application has been made to the Court for the adoption of the child by the parent (including the mother or father) or a relative of the child (whether alone or jointly with another person)—to the applicant or applicants.

27. Section 88 requires that notice be given before an adoption order is made in certain circumstances:

88   Notice of application for adoption orders

(1)   The Court may not make an adoption order unless at least 14 days’ notice of the application for the order (containing the particulars, if any, prescribed by the regulations) has been given:

(a)   to any person whose consent to the adoption of the child concerned is required under this Act and has not been given (or the requirement for which has been dispensed with by the Court), and

(b)   to any person (not being a person whose consent is so required) with whom the child resides or who has parental responsibility for the child.

(2)   Except as the Court may otherwise determine, nothing in subsection (1) requires a notice referred to in that subsection to be given to a person referred to in subsection (1) (b) if that person is:

(a)   an applicant for the adoption order, or

(b)   a person with whom the child resides only as a patient or inmate of a hospital of which that person is in charge or a person who has parental responsibility for a child only as the person in charge of a hospital.

(3)   The notice must not specify the name of, or identify, any applicant.

(4)   The Court may dispense with the giving of the notice.

(5)   If it appears to the Court to be necessary in the interests of justice so to do, the Court may direct that notice of an application for an adoption order be given to any specified person.

Evidence

28. The Secretary relied on various affidavits in particular the affidavit of the proposed adoptive parent and referees and the s 91 report.

29. The author of the s 91 report, Ms Morgan, notes that the proposed adoptive parent, S and O are all committed to the care of the child and making sure all of his needs are adequately met. She notes that the child has foetal alcohol syndrome disorder and a range of challenging behaviours. These have been improving through the care and support of the proposed adoptive parent, who remains committed to learning about the child’s diagnosis and implementing appropriate behaviour management strategies including de-escalation techniques and a reward chart. Ms Morgan recommends an adoption order as it is clear the child’s primary attachment is to the proposed adoptive parent, and this would provide the child a sense of security going forward and allow the proposed adoptive parent to be a better and more effective advocate for the child.

28. Further the Secretary tendered additional documents including a carer’s assessment report for S, an OOHC Adoption Assessment, several file notes, a working with children check for the proposed adoptive parent, S and O and a national police check for S.

Submissions

31. The Secretary submitted that it was clearly preferable and in the child’s best interest to make an adoption order in this case. It is clear that the proposed adoptive parent has provided beyond adequate support for the child, including managing his high needs and consistently being a strong advocate for him. The child and the proposed adoptive parent have a strong and close bond and are affectionate towards each other. The child identifies the proposed adoptive parent as ‘Mum’ and it is clear his primary psychological bond is with her. The proposed adoptive parent is committed to facilitating and engaging in birth family contact and has taken the initiative in keeping contact with the birth mother. It is appropriate to dispense with the consent and notice requirements for the putative birth father in this case, as after making reasonable inquiries he cannot be located and has not undergone a DNA test to confirm parentage. An adoption order would give the child a sense of permanency and stability going forward and allow his legal status to match his lived reality.

32. This matter was not contested and there were no submissions from the birth mother.

Consideration

33. I am satisfied that an adoption order would be in the child’s best interests and clearly preferable in all the circumstances.

34. I am satisfied that all the formal requirements of the Act have been satisfied. In particular I am satisfied that the proposed adoptive parent is resident in NSW and is of good repute and fit and proper to adoption (s 27). On the evidence it is clear that the proposed adoptive parent is dedicated to the child and has continued to inform herself about the child’s ongoing developmental needs. I am moreover satisfied that the consent of spouse has been provided under s 27(3).

35. I will first deal with the dispensing of consent of the birth parents. I am able to make a consent dispense order under s 67 if I am satisfied as to certain factors. Further, I must not make a dispense consent order unless notice is given to the birth parents (s 72), although this requirement does not apply in certain circumstances, for example if the person cannot after reasonable inquiry be found (s 72(1)(a). I am further able to make an order under s 88(4) to dispense with the giving of notice on a child’s birth parents.

36. I am satisfied that the birth mother has been provided with the notice and has chosen not to participate in proceedings. I would consider it appropriate to dispense with consent of the birth mother under s 67(1)(d) in all the circumstances of this case. It is clear that the child has a strong and stable connection with the proposed adoptive parent and I am further satisfied that the adoption would promote the child’s welfare.

37. There is no birth father listed on the child’s birth certificate, the putative father of the child has never confirmed that he is the child’s birth father. In December 2018 the putative birth father agreed to undergo DNA testing to confirm paternity. Since that time numerous attempts have been made to arrange DNA testing, these have been unsuccessful. In January and February 2019, further attempts were made to contact the putative birth father by telephone and text message, but these were left unanswered. The location of the putative birth father remains unknown, he is not currently incarcerated, and has had no recent police interaction. Attempts have been made to locate him through contacting a local soup kitchen he has been known to frequent as well as through both NSW and QLD police. I am satisfied that it is appropriate to make a consent dispense order under s 67(1)(a), it is clear to me that reasonable attempts have been made to locate the birth father and that these have been unsuccessful. I am further satisfied that under s 72(2)(a) the provision of notice of a consent dispense application is not required in this case as the birth parents cannot be found or identified by reasonable inquiry. I would likewise make an order under s 88(4) dispensing with the requirement to give notice of the adoption application to the putative birth father.

38. I am satisfied that under s 90 an adoption order is clearly preferable and in the child’s best interests taking into account that factor under s 8.

39. The child is described as an affectionate boy who enjoys playing soccer and board games. The child has a close relationship with the proposed adoptive parent and has expressed that he wants her to adopt him and become his “real Mum”. The child feels comfortable in his home, and secure in his relationship with the proposed adoptive parent, S and O.

40. The proposed adoptive parent has been able to meet all of the child’s emotional, developmental and physical needs. In particular it is clear that the proposed adoptive parent has provided beyond adequate care for the child including caring for his high needs with little support from caseworkers. The proposed adoptive parent has continued to educate herself about the child’s foetal alcohol syndrome and the appropriate strategies to use to ensure the child meets his full potential. She has been a strong advocate for the child, particularly at school, where she has continuously worked with the school to try and provide the best possible care for the child, including implementing appropriate de-escalation strategies and ensuring that his needs are properly met.

41. It is clear also, that the proposed adoptive parent has shown an ongoing commitment to maintaining the child’s identity. She has been explaining the child’s background and identity in an age appropriate way and has been incorporating Life Story Work into the child’s life. The proposed adoptive parent has no intention of changing the child’s surname at this time and this will remain an important link to his birth family. The child has an age appropriate understanding of adoption and is able to identify that he has two families.

42. Moreover, the proposed adoptive parent has remained committed to facilitating contact with the birth mother notwithstanding her incarceration. It became apparent over the course of the proceedings that the proposed adoptive parent was in contact with the birth mother, and has been able to arrange ongoing telephone contact between her and the child notwithstanding the birth mother’s on going incarceration. The proposed adoptive parent has further been able to facilitate ongoing contact with the child’s sibling’s. Although there has been some recent issues with the relationship with the other carer’s it appears on the evidence that the proposed adoptive parent and O have been able to continue to facilitate contact visits for the benefit of the child.

43. It is clear that the child’s primary psychological bond is with the proposed adoptive parent. The two share a close and loving relationship and are clearly strongly attached. The child has expressed the view that he wants to be adopted and refers to the proposed adoptive parent as “the best Mum in the world”.

44. Turning now briefly to the slightly unusual parenting arrangement which is in place. The care of the child going forward will be shared, with O looking after the child every other weekend and half the school holidays, and the proposed adoptive parent and S caring for him the remainder of the time. Although only one person is going to be the child’s legal parent, it is clear that all three people will have an important and essential role in the child’s life going forward. I am therefore of the view, that it is entirely appropriate and in fact necessary to consider these other people when considering whether an adoption order would in fact be in the child’s best interests. It cannot be gainsaid that in Australia, there is a great deal of variation within families and family structures, it is clear that an arrangement that does not fit into the traditional nuclear family is not reason in and of itself to prevent the making of an adoption.

45. After making further inquiries with the Secretary, I am satisfied that both O and S are appropriate people to be involved in the child’s life. It is clear that both have been authorised as carers and remain dedicated to providing the highest possible care for the child.

46. S and the proposed adoptive parent met through volunteering with SES. They having a loving and supportive relationship and are sensitive to each other’s needs. S is confident in his role as carer for the child and is comfortable taking him to school on days when the proposed adoptive parent works. S has demonstrated his commitment to becoming a foster carer, and consistently puts the needs of the child above his own. He has attended several parenting courses in the last couple of years and can identify the various parenting strategies he uses to manage the child’s behaviour. S participates in decision making about the child, but defers to the proposed adoptive parent to make the final call. S works as a registered nurse and is currently the main financial contributor to the household.

47. The child spends every second weekend and half the school holidays with O and the rest of the time with the proposed adoptive parent. The focus is on the child, and both the proposed adoptive parent and O, together manage medical appointments and contact visits. O states that the most important relationship he has is the one with the child, he states that he organises lots of activities to do when the child stays with him such as playing outside, bowling and Lego. O states that he and the proposed adoptive parent have a good relationship and discuss all major decisions about the child’s care. There are little to no issues with the transition between households. O and S reportedly have a positive relationship and both are able to focus on the care of the child.

48. I am of the view that the adoption order would be clearly preferable to any other option available at law. It is clear to me that restoration is not a viable possibility in this case. The child has had no relationship with the mother since he was very young. It would be unthinkable to sever the bonds between the child and the proposed adoptive parent, with whom he has lived for the majority of his life. I am further of the view it would not be in the interests of the child to maintain the status quo and leave parental responsibility with the Minister. This would mean the proposed adoptive parent would be unable to make significant decisions about the child’s care without the intervention of the Minister. An adoption order would provide the child with a sense of stability and security that other orders would not provide. An adoption order would give the child legal certainty of his place in his family, and provide permanency going forward. I am of the view that it would be in the child’s best interests for his legal status to match his lived reality.

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Decision last updated: 07 November 2019