Adoption of Y (anonymised)

[2019] NSWSC 1197

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Adoption of Y (anonymised) [2019] NSWSC 1197
Hearing dates:	6 September 2019
Date of orders:	06 September 2019
Decision date:	06 September 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
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	Adoption of Hogarth (No 2) [2019] NSWSC 9
Texts Cited:	n/a
Category:	Principal judgment
Parties:	Secretary for the Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia (plaintiff) K N (first defendant) D Y (second defendant)
Representation:	Counsel: Ms K Shea (plaintiff) Self represented (first defendant) Self represented (second defendant)   Solicitors: Crown Solicitor of New South Wales (plaintiff) Self represented (first defendant) Self represented (second defendant)
File Number(s):	A153/2018

judgement

Procedural background

1. These proceedings concern the adoption of AY, born 18 August 2015.

2. The Secretary, NSW Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia (the Secretary), by Amended Summons filed 22 February 2019, seeks the following orders:

1. An order pursuant to s 67(1)(d) of the Adoption Act 2000, that the consent of the child’s birth father be dispensed with.

2. An order pursuant to s 67(1)(d) of the Adoption Act 2000, that the consent of the child’s birth mother be dispensed with.

3. An order pursuant to s 23 of the Adoption Act 2000 for the adoption of the child ATY in favour of the adopting parents (named).

4. The court approves pursuant to s 101(1) of the Adoption Act 2000 the name “M” as the surname and “ATY” as the given names of the child.

3. The matter was initially listed for directions before Justice Robb on 12 December 2018. At that point, the birth mother and birth father were joined as first and second defendants to the proceedings. The matter was set down for preliminary hearing on 27 February 2019 and for directions on 28 March 2019. At this stage the defendants were ordered to serve any evidence upon which they wished to rely by 11 April 2019.

4. The matter was then listed for hearing on 7 June 2019. The mother requested an adjournment of this date due to her giving birth around this time.

5. I then listed the matter before me for directions only on 12 June 2019. At this stage I fixed the final hearing for an estimate of half day on 6 September 2019.

6. Neither of the birth parents filed any evidence in the proceedings, however each attended the hearing in person. Following exchanges between myself and the birth parents at the hearing, it became apparent to me that the birth parents both continued to oppose the adoption but they seemed primarily concerned with the issue of contact (T13/49-14/20). I raised the issue of Adoption Plans with both them and Counsel for the Secretary. After a short adjournment, Counsel informed me that the proposed adoptive parents and the Secretary had signed both a maternal and paternal adoption plan and now sought to have them registered (T10/1; 27/5). The birth parents informed me that they did not wish to sign the proposed adoption plans (T15/33-47).

7. Following oral submissions from the Secretary, as well as hearing from the birth mother and birth father, I gave my brief reasons ordering the dispensing with consent of the birth parents and the adoption of A in favour of the proposed adoptive parents, as well as an order registering the adoption plans and an order for name change. I now publish in full my reasons.

Background facts

8. A was born 18 August 2015 to KN (birth mother) and DY (birth father).

9. A has an older maternal half-sibling, O born September 2005, who resides with her paternal grandmother, and an older paternal half-sibling, N born December 2007, who resides in an out-of-home-care placement in the Newcastle area. A has one full sibling, L born April 2017 who lives with the birth mother and a younger maternal half-sibling, V born June 2019, who also lives with the birth mother.

10. A was born at Westmead hospital and immediately admitted to the neonatal intensive care unit due to Meconium Aspiration Syndrome and Neonatal Abstinence Syndrome, as a result of the birth mother’s drug use. He remained in hospital for 2 months and was then assumed into care in October 2015 due to ongoing concerns with the birth parent’s drug use, risk of physical harm due to not being aware of the seriousness of A’s medical condition, and the birth father’s aggression. At this stage, A was placed with short-term carers with whom he remained during the Children’s Court proceedings.

11. On 22 July 2016, the Children’s Court of NSW made a final order vesting all aspects of parental responsibility for A to the Minister until A reached 18 years of age.

12. On 9 September 2016, A was placed into the care of (proposed adoptive father, (named)) and (proposed adoptive mother, (named)) and has been living with them continuously since that time. The proposed adoptive parents have one biological child, I, born March 2010.

Relevant principles

13. By s 8(1) of the Adoption Act 2005 (NSW) (‘the Act’), the Court is to have regard to specified principles when making a decision about the adoption of a child, including the best interests of the child both in childhood and in later life, which must be the paramount consideration. Adoption is to be regarded as a service for the child and that no adult has a right to adopt a child. The focus in any proceedings must be in the best interests of the child and how making an adoption order would benefit the child rather than how the order would benefit others.

14. In determining what is in the child’s best interests, the matters contained in s 8(2) are to be taken into account, for example any wishes expressed by the child, the child’s physical, emotional and educational needs and the nature of the relationship of the child with the proposed adoptive parents.

15. Section 90 of the Act reinforces those considerations but in addition the child’s age and understanding and wishes if they can be ascertained should be taken into account. The proposed adoptive parents must be regarded as appropriate and those persons who may give consent, in particular the birth parents have either done so or their consent has been dispensed with. The Court must not dispense with consent of the birth parents unless, among other things, it is satisfied that it is in the child’s best interests (s 67(2)).

16. Due consideration should be given to cultural issues, language, and religion in making any order for adoption. In particular s 7 provides that one of the objectives of the Act is to ensure that adoption law and practice assist a child to know and have access to his or her family and cultural heritage.

17. Further the Court should not make any order for an adoption if the parties to the adoption have agreed to an adoption plan unless the Court is satisfied that the arrangements proposed are again in the best interests of the child and are proper in the circumstances (s 50(3)).

18. Importantly the Court may not make an order for adoption unless it considers that the making of the order would be clearly preferable and in the best interests of the child over any other order that could be taken by law in relation to the care of the child (s 90(3)).

19. A Court must not order a name change for the child unless satisfied that the name change is in the best interests of the child (s 101(5)).

20. 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.

Evidence

21. Various affidavits were relied upon by the Secretary, of particular note was the court report of Ms Robinson dated 9 August 2019. Ms Robinson notes that A is thriving in his current environment, and the proposed adoptive parents have provided a loving and stable home for him. She notes that A is meeting all his development goals and has little to no health issues and A has been able to develop strong and healthy attachments to the proposed adoptive parents. Ms Robinson recommends an adoption should be ordered as it will provide A with an ongoing secure sense of stability and belonging to his carer family.

22. I further note the affidavit of the delegate Ms Willick dated 24 April 2019, who provided an update of the current contact regime between A and the birth family. Ms Willick notes that during the Children’s Court proceedings, the Secretary filed an Addendum to the Care Plan in the proceedings on 20 July 2016 recommending that the father and mother have a minimum of six contact visits a year, to occur at the same time. Further there would be two visits between A and N and two between A and O. In 2017, given the birth parents separation, visits were to be held separately. In 2017, six contact visits between the birth father and A were organised, however due to various reasons several of these visits did not go ahead. In late 2017, at a review meeting, visits with the birth father were reduced to twice a year. The birth father was invited to participate in this meeting but did not respond to any communications. Two visits between the birth father and A were held in 2018.

23. In 2017, six visits between the birth mother and A were organised, with five going ahead. In 2018, the proposed adoptive parents and the birth mother organised four contact visits, all went ahead.

24. The paternal adoption plan proposed by the Secretary, provides for two visits a year between A and the birth father and two visits a year between A and N. The visits may be held concurrently.

25. The maternal adoption plan proposed by the Secretary, provides for four visits a year between A and the birth mother and V is expected to attend these visits. An additional four visits a year are to take place between A and O, two of these visits may occur concurrently with the birth mother’s visits.

26. As noted above, neither of the birth parents filed or relied upon any written evidence. Nor did they require any of the plaintiff’s witnesses for cross-examination.

27. During the course of the hearing, the birth father indicated that he recorded/filmed certain contact visits. He offered the Court an opportunity to watch these recordings, but it was not clear to me what the purpose was. It seems to me, going forward, for contact visits to work, there should be no suggestion of recording any visits. The reason for this is obvious, although the intent may be innocent, it has a tendency to disrupt the relationship between people who should be cooperating in A’s best interests.

Submissions

28. Counsel provided detailed written submissions for the Secretary. At the outset, the Secretary acknowledges that the birth parents love A and seek what they consider is in his best interests. The Secretary submits that in all the circumstances, adoption is the clearly preferable course of action. In particular the Secretary notes that A has been living continuously with the proposed adoptive parents since he was one year old. There can be no doubt about the quality of care they have provided for A, and they have established and maintained a consistent, predictable, loving and safe environment in which A has flourished. The proposed adoptive parents are open and supportive of birth family contact and recognise the importance of such contact with A’s ongoing development and identity. The Secretary submits that an order for adoption would secure A’s sense of permanency and stability and allow him to be legally tied to the family he has been a part of since he was one year old.

29. On the day of hearing, the birth parents (although no longer a couple) together made submissions opposing the adoption. Ms N indicated that she would prefer some other order such as a guardianship order (T2/47), Mr Y indicated that he had issues with the number of visits and the way that these visits occurred (T13/49-14/20).

Consideration

30. First I am satisfied that the formal requirements of the Adoption Act have been complied with. I am satisfied that the child was present in NSW at the time the summons was filed. I am satisfied that the proposed adoptive parents have been living together continuously for at least 2 years and that they are fit and proper persons who have been chosen in accordance with the Act.

31. I further must not make an adoption order unless I am satisfied of certain matters as mandated by s 90.

32. I am satisfied that an adoption order is in the best interests of A, taking into account the factors under s 8. In particular it is clear that the proposed adoptive parents have provided a loving and stable home for him. I am also of the view, having carefully considered the materials that A’s primary psychological attachment is with the proposed adoptive family. The proposed adoptive parents have plainly been able to meet all of A’s cultural, emotional, education and physical needs. I am satisfied that they have ably demonstrated their capacity to parent and care for A. There can be no doubt that they have provided A with beyond adequate care.

33. A is described as an active, charming and affectionate boy. He has recently started attending preschool, and is by all accounts thriving in that environment. He is affectionate with the proposed adoptive parents and I and enjoys having play dates with other children in the area.

34. A has been living with and been part of the M family since he was 1 year old. It would be unthinkable I consider at this stage to sever those bonds and would clearly be, in my view, in A’s best interests for his legal status to match his lived reality.

35. I note that the Secretary submits that the birth parents love A, and there is nothing to suggest otherwise.

36. I also note that the proposed adoptive parents have been able to facilitate relatively good relationships with A’s birth family, in particular with his siblings and the birth mother. The proposed adoptive parents have consented to an adoption plan and demonstrated an openness to A’s birth family and remain dedicated to helping A learn about his birth family and history in care in an age appropriate manner.

37. Both the birth family and proposed adoptive parents are Anglo-Australian. The birth family are non-practicing Catholics and the proposed adoptive parents have indicated that they are open to the possibility of having A baptised in the future.

38. I am further of the view that making an adoption order would be clearly preferable to any other option available at law. Taking into account the matters discussed above, it is clear that an adoption order would provide A with permanency and stability, as well as secure his connection with the proposed adoptive parents. I note that there are clear advantages to an adoption order over maintaining the status quo or a guardianship order, an adoption order can provide a child with psychological stability and the knowledge that they are legally and forever part of their family.

39. An adoption order will also enable the proposed adoptive parents to make significant decisions about A’s life and ensure their legal relationship extends beyond A reaching 18 years of age.

40. I am of course satisfied that the proposed adoptive parents are suitable people to be parents for A.

41. I am satisfied that making a consent dispense order under s 67(1)(d) with respect to both the birth mother and birth father, is in A’s best interests.

42. I am satisfied that the proposed Adoption plans make adequate provision for A’s ongoing relationship and connection to his birth parents and siblings. The plans contemplate a potential 4 visits on the paternal side and 8 on the maternal side with the possibility of extra visits to be arranged with agreement of the parties. I believe that this is appropriate for a four year old child and practicable for all the parties.

30. Lastly I am of the view that the name change under s 101(5) to ATYM, will reinforce A’s sense of permanency and belonging.

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Amendments

24 September 2019 - paragraph 7 - line 3 birth parents - Should read proposed adoptive parents

Decision last updated: 24 September 2019