Department of Family & Community Services and LH; Re R - [2011] NSWSC 551

Supreme Court

New South Wales

Medium Neutral Citation: Department of Family & Community Services and LH; Re R [2011] NSWSC 551
Hearing dates: 9 June 2011; 2 August 2011
Decision date: 17 August 2011
Jurisdiction: Equity Division - Adoption List
Before: Hallen AsJ
Decision:
Adoption order in respect of child, R, should be made. It is in the child's best interests to change her surname. Orders as sought in Summons.

Catchwords: Application for the adoption of a child - Child is over 12, but less than 18, years old - Child gives consent to adoption - Birth mother does not consent. Birth father does not contest adoption and is party to Adoption Plan - Child wishes surname to be the same as adoptive parent - Opposition by natural mother.
Legislation Cited: Adoption Act 2000
Children and Young Persons (Care and Protection) Act 1998
Family Law Act 1975 (Cth)
Cases Cited: B (A Minor), Re [2001] UKHL 70; [2001] UKHL 70; [2002] 1 All ER 641
C (a minor), Re (Adoption: Parental Agreement, Contact) [1993] 2 FLR 260
C v XYZ County Council [2007] EWCA Civ 1206; [2008] Fam 54
CDJ v VAJ (No 2) (1998) 197 CLR 172
D, Re; Application of A [2006] NSWSC 1056
Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762; [2007] NSWSC 762; (2007) 37 Fam LR 595
Director General Department of Human Services; Re M [2011] NSWSC 369
Down and Lisburn Trust v H and R [2006] UKHL 36
Evelyn, Re [1998] FamCA 55
H, In the Marriage of [1994] FamCA 132; [1995] FLC 92-599
Infant, K & the Adoption of Children Act, Re [1973] 1 NSWLR 311
J v C [1970] AC 668
K, Re (a minor) (ward: care and control) [1990] 3 All ER 795 at 800, [1990] 1 WLR 431
Kress, In the Marriage of [1976] FLC 90-126
Marsden and Winch, in the Marriage of (2009) 42 Fam LR 1; [2009] FamCAFC 152
Northern Territory v GPAO (1999) 196 CLR 553
Oxfordshire County Council v X [2010] EWCA Civ 581, [2010] Fam Law 790
Peter, Re [2009] NSWSC 697
Rice v Miller (1993) 16 Fam LR 970
Stadniczenko v Stadniczenko [1995] NZFLR 493
Category: Principal judgment
Parties: Director-General, NSW Department of Human Services by her delegate Principal Officer, Adoptions, Barnados Australia (Plaintiff)
Ms LH (Defendant)
Representation: Mr G Moore (Plaintiff)
Ms LH (Defendant appeared in person)
Crown Solicitor's Office (Plaintiff)
Defendant appeared in person

File Number(s): A14/2011

Judgment

The Application

HIS HONOUR: This is an application by Summons, filed on 2 March 2011, for the adoption of a child, born on 24 April 1998, to whom I shall refer as "R". In accordance with the requirements of s 180 of the Adoption Act 2000 ("the Act") , I shall also refer to some of the other persons concerned in these proceedings in a manner which will not identify them.

The Applicant is the Director-General, Department of Family and Community Services and orders are sought in favour of Ms M, the only proposed adoptive parent, the person with whom R has been living since July 2003.

R, who is now 13 years of age, has consented, in writing, to the adoption. In circumstances where a child is 12 or more years of age, and of sufficient maturity to understand the effect of giving consent, gives sole consent to his, or her, adoption by a proposed adoptive parent, or parents, and if the child has been cared for by the proposed adoptive parent, or parents, for at least 2 years, the consent of the birth parents, under s 52, is not required: s 54(2).

Yet, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his, or her, adoption, unless the Court is satisfied that at least 14 days' notice of the application for the adoption order has been given by the Director-General, or appropriate principal officer, to the parent, or person who has parental responsibility, whose consent would otherwise be required: s 54(3)(a) of the Act.

Also, by reason of s 8(2)(e) of the Act, the Court must still have regard to the wishes of the birth parents in determining R's best interests. That is because, even if the child's consent to her adoption is freely given, the Court must be satisfied, as required by s 8(1), that an adoption order is, in fact, in her best interests, both in childhood and in later life.

Section 90(3) of the Act requires that the Court must consider that an adoption order would be clearly preferable, in her best interests to any other action that could be taken by law in relation to her care.

When the matter was first listed before me, on 11 April 2011, for a preliminary hearing, Ms LH appeared, by counsel. With the consent of the Plaintiff and of Ms LH by her counsel, I ordered that Ms LH be joined as a party in the proceedings pursuant to s 118(1) of the Act.

I shall return to the legislation in more detail later in these reasons.

Background Facts that are Undisputed

R's birth father, Mr WH, was born in Australia with parents of German descent. R's birth mother, Ms LH, was born in Indonesia. R has 2 brothers (children of Mr WH and Ms LH), two half sisters and a half brother. She has some contact with her brothers, as they live with Mr WH, and, on occasions, they spend time with R at the home of Ms M. She has not had much contact with her other siblings.

It is not necessary to provide a detailed chronology of the events that led to R being removed from Ms LH's care in August 2002, or the events that occurred leading to the application to the Children's Court for orders, and the making, on 20 June 2003, of an order placing R under the parental responsibility of the Minister for Community Services until she attained the age of 18 years. An order was made that R have contact with her birth mother, Ms LH, once a month for 2 hours.

On 4 July 2003, R was placed with Ms M. She has remained under the care of, and living with, Ms M since then. The evidence reveals that R has a strong attachment to Ms M and has formed a sibling relationship with Ms M's daughter, S.

On 25 August 2003, Ms LH lodged an appeal in relation to R in the District Court. On 15 November 2005, the appeal was dismissed and the orders of the Children's Court were confirmed.

R has not seen Ms LH since about February 2009. I shall return to the reasons for the lack of contact between them later in these reasons.

R has been given exposure to each of her parent's cultures during contact visits and at school. She has a Life Story Book at her home. Ms M continues to promote R's cultural identity through their home environment, which includes encouraging R to read and research information that pertains to her heritage. R is planning to study the Indonesian language if it is offered at her school next year. Also, Ms M has taken R to the Northern Territory to see her paternal grandparents.

R's birth father, Mr WH, has not consented to the adoption, but has agreed to an Adoption Plan. He has stated, previously, that he "will not be contesting the adoption". He has not appeared to tell the Court anything of his wishes (other than by signing an Adoption Plan and making the statement to which I have referred). The evidence reveals that he has a positive relationship with R and also with Ms M and that contact has been arranged informally between them. R often stays with Mr WH during school holidays.

Regrettably, Ms LH does not have the same sort of relationship with Ms M or with R.

The Proceedings

Initially, because her legal advisers had only been recently instructed, and with a view to avoiding delay in having the proceedings heard, bearing in mind the matters set out above, I directed that the Plaintiff's solicitors should inform the solicitors acting for Ms LH, by Friday, 15 April 2011, in a written memorandum, of the facts upon which reliance would be placed at the hearing. (This document was not to be the actual evidence relied upon, but a summary of the non-confidential evidence that might be of assistance to Ms LH and her legal advisers in making any decision whether to oppose the application.) I am satisfied that this direction was complied with.

I also directed that the solicitors acting for Ms LH should advise the solicitors acting for the Plaintiff, in writing, of the grounds of opposition to the Plaintiff's application, by 21 April 2011. The matter was then stood over until 27 April 2011, for mention, in the hope that on the adjourned date, the parties would be better informed about whether it was to proceed as a contested matter and, if so, the duration of the contested hearing.

It was also anticipated that, if it was necessary, further directions would then be made as to the formal service of evidence.

On 27 April 2011, Ms LH appeared with a support person, her fiance, Mr B, but without legal representation. She informed me that she had "had a disagreement" with the legal practitioners previously retained, and that they were no longer retained on her behalf. She stated that she wished to oppose the relief sought by the Plaintiff.

In the circumstances, I directed that a copy of the Summons and any evidence to be relied upon by the Plaintiff should be served upon her by 11 May 2011. That evidence, where necessary, was to be served in a redacted form, in order to protect the anonymity of various witnesses and to ensure the confidentiality that applies to adoption proceedings. Subject to any order made subsequently, I permitted the Plaintiff to determine what parts of the affidavits would be redacted. (I have subsequently been provided with the affidavits in a redacted form that were served and these will remain with the Court file.)

I directed Ms LH to file and serve her evidence in reply, or on which she intended to rely, by 1 June 2011. Subsequently, she provided to the Court, a number of letters, statutory declarations and other statements as the evidence upon which she wished to rely. Without objection, each of the documents was read and treated as the evidence upon which Ms LH was relying.

I also directed the Plaintiff to serve an outline of submissions by 3 June 2011. I am satisfied that this direction was complied with and that a redacted copy of the outline was provided to Ms LH. I did not require the same of Ms LH, who then appeared, and who has continued to appear, without legal representation.

Ms LH has appeared at the hearing, with a support person, to actively oppose the making of any orders. It is clear that the notice has been given to her and that she has been provided with relevant documents, albeit that some have been in a redacted form. She has cross-examined a number of witnesses and has given evidence herself. She has also relied upon the evidence of her mother and of Mr B, each of whom was cross-examined.

Statutory Framework and Principles

I have dealt with the statutory framework and the principles in another case ( Director General Department of Human Services; Re M [2011] NSWSC 369) in some detail. I shall not repeat all that I said there. However, in view of the importance of this case to the parties and to R, and because Ms LH appeared without legal representation, I shall state the principles in more detail than otherwise might have been necessary. It is important that the parties, and R, be able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.

Adoption is purely a creature of statute. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. Following adoption, the child ceases, in law, to be a child of her birth mother and birth father and the brother or sister of her siblings. He, or she, thereafter, is regarded, in law, as the child of the adoptive parent or adoptive parents, and the adoptive parent, or adoptive parents, are regarded in law as the parents of the adopted child: s 95(2)(c) of the Act. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act.

For the purposes of the application of the Succession Act 2006 to the devolution of any property in relation to which a person dies intestate, and the construction of any disposition of any property, an adopted child is taken to be related to another person, being the child, or adopted child, of his, or her, adoptive parent, or parents, if he, or she, was adopted by 2 persons who are the spouses of each other jointly, and that other person is the child, or adopted, child of both of them, as brother or sister of the whole blood, and in any other case, as brother or sister of the half blood: s 99 of the Act.

For these reasons, adoption will be an extremely important step in a child's life, which will determine his, or her, identity and family relationships throughout his, or her, remaining life. Thus, the making of an order must be considered, not as a means of determining with whom a child is to live, but as a way of making a child legally part of a new family and severing any legal relationship with his, or her, birth family.

As has recently been pointed out concerning the effect of an adoption order, in Oxfordshire County Council v X [2010] EWCA Civ 581, [2010] Fam Law 790, at [4]:

"And it is important to remember that this is not just some legal fiction. As Thorpe LJ said in In re J (Adoption: Non-patrial) [1998] INLR 424 at page 429, the result of adoption is "the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences."

Some of the cases have spoken of the "rights" of the natural, or birth, parent. In this case, Ms LH referred, repeatedly, to her "right" as the birth mother of R. To talk in terms of "rights" as opposed to a child's best interests diverts the focus, which should be on the welfare of the child. In this regard, adoption is to be regarded as a service for the child concerned: s 7(b) of the Act.

I treat the use of that word in the cases, and in the case before me, not as a "right" in the proprietary sense, but rather as describing the right of every child, as part of his, or her, general welfare, to have the ties of nature maintained, wherever possible, with the parents who gave him, or her, life: Re K (a minor) [1990] 3 All ER 795 at 800; [1990] 1 WLR 431 at 437; Infant, K & the Adoption of Children Act, Re [1973] 1 NSWLR 311 at 321.

Therefore, in determining this case and in considering R's best interests, I have not forgotten that the blood link is always a factor to be taken into account. In this regard, s 7 specifically provides that one of the objects of the Act is to ensure that adoption law and practice assist a child to know and have access to his, or her, birth family and cultural heritage.

As was said in Rice v Miller (1993) 16 Fam LR 970 and Re Evelyn [1998] FamCA 55 (albeit in another context):

"I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the court commences its decision making process ... Each case should be determined upon an examination of its own merits and of the individuals there involved."

Section 6 of the Act provides that the provisions of Chapter 2 are intended to give guidance and direction in the administration of the Act. They do not create, or confer on any person, any right, or entitlement, enforceable at law.

Relevantly, also s 87 of the Act provides that the Court may make an adoption order only on application made by the prospective adoptive parent or parents with the consent of the Director-General (except in certain cases), or by the Director-General or by a principal officer on behalf of the prospective adoptive parent or parents or by a child who is 18 or more years of age for his or her adoption.

On the making of an adoption order, the existing parental responsibility for the adopted child (including the Minister's parental responsibility under the Children and Young Persons (Care and Protection) Act 1998) ceases to have effect: s 96(1)(a) of the Act.

One of the objects of the Act, stated in s 7 is "to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice". Because it is the paramount consideration, the interests of the child should prevail over all other interests that call for consideration in the case.

In making a decision about adoption, the Court must have regard to the principles set out in s 8(1), and to the circumstances set out in s 8(2), of the Act, so far as they are relevant. The section provides:

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

(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,

(b) adoption is to be regarded as a service for the child,

(c) no adult has a right to adopt the child,

(d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

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

(e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare,

(f) if the child is Aboriginal - the Aboriginal child placement principles are to be applied,

(g) if the child is a Torres Strait Islander - the Torres Strait Islander child placement principles are to be applied.

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

(a) any wishes expressed by the child,

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

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

(d) any disability that the child has,

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

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

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

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

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

(j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,

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

It is to be noted that s 8(1) refers to "principles" pursuant to which a decision will be made about the adoption of a child. Section 8(2) refers to factual matters to which the decision maker is to have regard in determining what is in the best interests of the child.

There is no definition of either of the statutory expressions "the best interests" or "the paramount consideration" in the Act. The term "best interests of the child" is a long-standing, important and salutary, principle of substantive law ( Northern Territory v GPAO (1999) 196 CLR 553 at 584) and does not require elaborate elucidation.

The test to determine the best interests of the child cannot be implemented by devising a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses: Stadniczenko v Stadniczenko [1995] NZFLR 493. There must be a judicial evaluation, and balancing, of many factors from which an overall conclusion is reached on a concept that is inherently imprecise: Re B (A Minor) [2001] UKHL 70 at [16]; [2001] UKHL 70; [2002] 1 All ER 641. The approach to be adopted is for the Court to weigh, and balance, those factors, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have. Thus, the test is a highly individualized one.

As McHugh, Gummow and Callinan JJ said in CDJ v VAJ (No 2) (1998) 197 CLR 172, at 218-19, albeit in the context of applications for parenting orders, what is in the best interests of children:

"necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order ... Best interests are values, not facts."

Judicial statements as to the meaning of the "paramount consideration" abound. The thrust of Australian authority is that "paramount" means "overriding": In the Marriage of Kress [1976] FLC 90-126; In the Marriage of H [1994] FamCA 132; [1995] FLC 92-599 (at 81,974). The word does not indicate exclusivity.

Lord McDermott in J v C [1970] AC 668, at 710, said that the words "paramount consideration":

" . . . must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood."

Not all of the factors are referred to in the context of the child whose adoption is sought. For example, in s 8(2), there is a reference to "any wishes expressed by either or both of the parents of the child" and "to the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood".

I also have regard to the requirements of s 90 which, so far as is relevant, provides:

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

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

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

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

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

...

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

(3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child."

It can be seen that many requirements of s 8 and s 90 overlap, or are the same or similar, without any material difference in meaning.

What may be of particular significance, in this case, in the light of submissions made by Ms LH, is whether there is any better alternative to the making an adoption order. That question needs to be considered, not only under s 8(2)(k) but, also under s 90(3). The latter section requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. Whilst it does not require satisfaction "beyond reasonable doubt" ( Re D; Application of A [2006] NSWSC 1056, [53]), it does require the Court to consider that an adoption order be "clearly preferable" to any other action that could be taken by law: Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 at [25]; (2007) 37 Fam LR 595.

In other words, the court must be satisfied that the advantages to the child of becoming part of a new family and having a new legal status are clearly preferable to the advantages, to the child, of any alternative. This will often require an acute, and difficult, decision to be made.

The note to s 90(3) records that the other action that could be taken includes a parenting order under the Family Law Act 1975 (Cth), or a care order under Children and Young Persons (Care and Protection) Act 1998.

It is often referred to in the literature that a child placed with foster carers has an abiding need for a sense of security and identity and that he, or she, will feel most secure when he, or she, is assured that no one can take him, or her, away from the family of which he, or she, is a legal member. It is recognised that the sooner a child can feel this sense of security, the better for her, or his, development in the future: see e.g. per Arden LJ in C v XYZ County Council [2007] EWCA Civ 1206; [2008] Fam 54, at 58G; Re Peter [2009] NSWSC 697 per Palmer J at [35].

Also, if a carer who has developed a strong bond of family relationship with the child feels that she, or he, is under threat of an application to the Children's Court, at any time, for vacation of a care order and the consequent removal of the child from her or him, then the carer is subjected to a level of stress and anxiety that must affect the parental relationship with the child who is in her, or his, care: Re Peter at [36].

In stating the above, I make clear that it is not being suggested that there is any general rule that adoption is more likely to be in the best interests of a child than long-term fostering or, indeed, any other form of care. The court must have regard to the particular circumstances of the individual case in order to assess whether an adoption order, or some other form of care, best serves the child's interests.

As has been stated in Re B (A Minor) :

"[T]here is no objectively certain answer on which of two or more possible courses is in the best interests of the child ... There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this course or that course will, or may, have for the child"

Section 52 of the Act, relevantly, provides that the Court "must not" make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by each parent of the child. However, the consent of each in this case is not required by virtue of s 54.

Section 54 provides:

"Consent is not required under section 52 if:

(a) the requirement for the consent has been dispensed with by the Court, or

Note: See Division 3 of Part 5.

(b) the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or

(c) the child gives sole consent to his or her adoption in accordance with subsection (2), or

(d) the child is 18 or more years of age.

(2) A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years.

(3) However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless:

(a) the Court is satisfied that at least 14 days' notice of the application for the adoption order has been given by the Director-General or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or

(b) the Court dispenses with the giving of notice.

(4) The regulations may prescribe the particulars to be contained in a notice under this section."

As is clear, s 54(1)(a), (b) and (d) of the Act each does not apply in the present case. The consent of the birth parents will not be required only if the requirements of s 54(1)(c) are fulfilled. The court must be satisfied that:

(i) the child is over the age of 12 years;

(ii) she is of sufficient maturity to understand the effect of giving consent to the adoption;

(iii) the child has been cared for by the proposed adoptive parent or parents for at least 2 years.

Even if satisfied that the child's consent has been given, in the circumstances of this case, the Court must still be satisfied, because of s 54(3)(a) of the Act that at least 14 days' notice of the application for the adoption order has been given by the Director-General, or appropriate principal officer to the parent whose consent would otherwise be required.

Section 55 states that the Court must not make an adoption order in relation to a child who is 12 or more, but less than 18 years, of age and who is capable of giving consent unless:

(a) the child has been counselled as required by s 63, and

(b) the counsellor has certified that the child understands the effect of signing the instrument of consent (as required by s 61), and

(c) the child consents to his or her adoption by the prospective adoptive parent or parents or the Court dispenses with the requirement for consent.

Section 63 explains that to satisfy the counselling requirement, a counsellor must accurately explain to the person, in a way that the counsellor thinks will be understood by the person the legal effect of signing the instrument of consent and the procedure for revoking consent, and the effect of the mandatory written information, and counsels the person on the emotional effects of the adoption and alternatives to adoption (including, in the case of birth parents, the feasibility of keeping the child). (The Minister administering the Children and Young Persons (Care and Protection) Act 1998, or any delegate of the Minister, does not have to be counselled before giving consent to the adoption of a child who is under the parental responsibility of the Minister.)

Section 49 and following of the Act deals with an "adoption plan". Before the making of an order for the adoption of a child, parties to the adoption may agree on an adoption plan, which plan is in writing and contains the particulars (if any) required by the regulations. If those parties agree to an adoption plan, a copy of the plan must (unless registered under section 50) accompany the application for an adoption order.

In the Dictionary to the Act, the word "parties" to an adoption is defined as meaning:

"(a) the child,

(b) birth parent or birth parents who have consented to the child's adoption,

(c) person or persons selected to be the prospective adoptive parent of the child,

(d) the Director-General,

(e) the appropriate principal officer."

In this case, since Ms LH has not consented to R's adoption, she cannot be regarded as such a party. Yet, Mr WH, who has not consented, has signed an Adoption Plan.

It can be seen, from what has been written so far, that an adoption order is not inconsistent with ongoing contact between the adopted child and her birth parents. In fact, that contact is encouraged, as is the hope for the child to retain a knowledge of, and an affection for, each of her birth parents and cultural heritage.

Section 89 provides that the Court must not make an adoption order, if the child to be adopted has consented to the adoption, until a period of 30 days, beginning on the day on which the instrument of consent to the adoption was signed, has expired.

Section 92 provides that if the Court refuses an application for an adoption order, the Court may make such orders in relation to the parental responsibility for the child concerned as it thinks fit.

Even though some of the evidence in this case was to the effect that once made, an adoption order could not be discharged, s 93(4) of the Act provides that the Court may make a discharge order if it is satisfied that:

(a) the adoption order, or any consent to adoption, was obtained by fraud, duress or other improper means, or

(b) there is some other exceptional reason why the adoption order should be discharged.

The limited circumstances permitting a discharge order provide a further salutary reminder of the seriousness of the decision to make an adoption order.

Section 101 of the Act deals with the names of an adopted child. Importantly, s 101(2) provides that 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.

Section 101(4) of the Act, which speaks of the consent of a child over the age of 12 years, refers only to an approval of a change in the given name, or names of a child. Here, as stated, R has consented to the change of her surname. It follows that if an adoption order is made in relation to a child who is younger than 18 years of age, she is to have as 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 (s 101(1)(b)).

Formal Matters required to be Proved

The Act requires that a number of formal matters be proved, or steps to be taken, before an adoption can proceed.

When the Summons seeking the adoption order was filed, R was present, and Ms M was each resident and domiciled, in New South Wales (s 23(2) and s 27(1)(a) of the Act).

R is under the age of 18 years, but over the age of 12 years (s 24(1)(a) of the Act).

At the time of the application for adoption, since R is over 12, but less than 18, years of age, she may give consent to her adoption, if the requirements of s 54(2) and s 55 of the Act are satisfied. Then, the consent of each of her birth parents is not required.

The Director General of the NSW Department of Human Services, by her delegate, the Principal Officer, Adoptions, Barnardos Australia, has made the application. The proposed adoptive parent is Ms M, with whom R has lived, and by whom she has been cared for, since about July 2003. Ms M is not living with a spouse. (The Court may make an order for the adoption of a child in favour of one person as well as jointly in favour of a couple (s 23(1) of the Act).)

There is no dispute that Ms M is an authorised carer, as she has had the care and responsibility of R under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act 1998.

The Director-General has assessed the suitability of Ms R to adopt a child.

Ms R is of good repute, fit and proper (s 27(1)(b) of the Act). She also meets the age requirement (s 27(2)(a) of the Act).

The Director-General, Department of Family and Community Services, by her delegate, has consented to the adoption order (s 87 of the Act).

In July 2010, R was provided with mandatory written information (as defined in s 57 of the Act) regarding adoption.

The written consent to her adoption, signed by R, whose signature was witnessed by a person qualified to witness that consent, is dated 25 November 2010. The consent was given after R had been given the mandatory written information (s 58 of the Act). The consent also included one for the change of R's surname to "M". More than 30 days has expired since consent was given.

R has been counselled as required by s 63 (s 55(1)(a) of the Act). A report from a Psychologist, who met with R, to provide counselling and to assess R's capacity to give consent to her own adoption states that she is capable of understanding the effect of signing the instrument of consent as required by s 61 (s 55(1)(b) of the Act); that she does, in fact, understand its effect; and that she has freely and actively consented to her adoption (s 55(1)(c) of the Act).

Mr WH and Ms LH have been provided with a copy of the mandatory written information: s 59 of the Act and notice of the application for the adoption order under s 88 of the Act.

A report in writing, concerning the proposed adoption, has been provided to the Court (s 91(1) of the Act). (This report is not open to inspection by, or made available to, any person, including any party to the proceedings (s 194 of the Act).) The author of the report is the Principal Officer, Adoptions, Barnardos Australia, and a delegate of the Director-General, Department of Family and Community Services, with the requisite delegation to prepare that report. (Section 91 permits the trial Judge hearing the adoption application to have access to the report, notwithstanding the restriction imposed by s 194(1). It also permits the trial Judge to accept the report, which, in this case, I do.)

Mr WH has not provided an instrument of consent (s 61 of the Act). In January 2011, he signed an Adoption Plan. In February 2011, R and Ms M also signed the same Adoption Plan, as has the Director General, by her delegate. That Plan sets out mutually agreed, and formal, arrangements, with the intention of supporting R with her development and assisting with her knowledge of her family of birth and sense of identity. The Plan is to have effect until R reaches 18 years, unless the Plan is reviewed prior to this time.

In broad effect, the Adoption Plan provides that contact between Mr WH, his children, and R will be arranged informally, during school holiday periods, with at least two visits per year. Arrangements for contact with R's half sister, will be by arrangement with R, Ms M and Mr WH, with at least two visits per year. There will be exchange of information between Ms M and Mr WH.

Ms LH, also, has not provided an instrument of consent. Nor has she agreed to any Adoption Plan. She complains that she has not been a party to arrangements that might put such a Plan into operation, but I am satisfied that any attempt to make an Adoption Plan that did not allow her to see R whenever, and wherever, she wants, is likely to be rejected by her.

It has been proposed by the Plaintiff that R will have no less than 2 contact visits a year with Ms LH for a period of two hours at a venue to suit both of them. This may be extended, by mutual agreement, depending upon R's needs. For a time, the visits will have to be supervised because of historical reasons relating to their lack of contact and the medical condition of Ms LH.

The Evidence and the Witnesses

I have read a number of affidavits in support of the adoption application. In addition, a number of the Plaintiff's witnesses, including Ms M, were cross-examined. In expressing the conclusions that follow, I have borne in mind the delicate and sensitive context of adoption, and how profoundly important the issues are in human terms.

I was most impressed with Ms M who was a compelling and transparently honest witness. She gave her evidence clearly, fairly and with some empathy for the position of Ms LH. She stated that she understood that Ms LH, as R's birth mother, might feel hurt, and also feel some resentment towards her. She said that this may cause difficulty in them having a relationship, but she was prepared to try. She said that she would have no difficulty in agreeing to increased time for contact between R and Ms LH, if contact was re-established satisfactorily, if it was beneficial to R, and if the contact visits occurred in a safe environment.

Ms M, not unnaturally, rejected the notion that R should see Ms LH whenever she (Ms LH) wanted, such as each weekend and for all of the school holidays. She explained that R's extra-curricular activities, particularly on the weekend, would make this impossible.

I have no doubt, from the way she presented, that Ms M has R's interests firmly at the forefront of her mind. She expressed, more than once, in answer to a question asked, that much would depend upon R's commitments and what she (that is, R) wanted.

Ms M explained the reasons why she considered adoption was preferable now, rather than later (as suggested by Ms LH). She said that adoption now was what R wanted; that it would provide R with comfort, knowing that she was in a family, in which Ms M, rather than a representative of the State, or of Barnardos, could make important decisions on her behalf; and that adoption would provide stability. R would also know that she would always be a member of Ms M's family.

Ms M stated, in answer to a question by Ms LH, that she could not envisage any circumstance where R might have a change of mind about the adoption having taken place.

I accept Ms M's evidence. I found it to be spontaneous, yet considered, sensible, and, most importantly, realistic. In her answers, she made it clear that R's interests and views would be sought in relation to important decisions affecting her life. Bearing in mind R's age, this is a very necessary consideration. I have no doubt that Ms M's conduct is fuelled by the desire to provide the best life she can for R.

Although she had not sworn an affidavit in the proceedings, but because some of her notes were relied upon, and because she had been present at a recent contact visit between R and various members of Ms LH's family (but not Ms LH), I permitted cross-examination of Ms Wilkie, an adoption consultant employed by Barnardos (for 17 years). She oversees reports that are prepared for the Court. She works with birth parents and talks with them about the nature of adoption. She helps them with adoption plans. Ms Wilkie, in fact, was, at one stage, a caseworker for R (between October 2007 and July 2009).

I was impressed by Ms Wilkie's evidence, which was given dispassionately, professionally, honestly and, in my view, fairly.

She had been present in April 2011, when R met with R's maternal grandmother, Ms S, as well as with other members of R's maternal family. She acknowledged, both orally and in her report of the contact visit (Ex. A), that R had enjoyed the time spent with her maternal relatives and that many photographs had been taken. This was the first time that R had seen her maternal grandparents and B since February 2009. It appears that R enjoyed the contact visit.

Ms Wilkie denied, and I accept, that she did not prevent R from seeing her maternal grandmother during the period that she was the caseworker. She said that she had provided details to Ms LH details about how she (Ms Wilkie) could be contacted by telephone, as well as providing the address to which any correspondence, cards or presents, for R, could be sent. Ms Wilkie also said that she had been prepared to inform R's maternal grandmother of contact visits between R and Ms LH, but had been directed by Ms LH not to do so.

In relation to some concerns expressed at the contact visit on 12 April 2011, Ms Wilkie said that she had not been informed that anyone other than R's maternal grandparents were going to attend. In fact, R's aunt also attended - a person who Ms Wilkie did not know. Naturally, she thought it was more advantageous for R to spend time with her maternal grandparents and her half sister, B. Even so, R had spent about 25 minutes or so, in total, with her maternal aunt.

Ms Wilkie rejected the suggestion that she had prevented R seeing Ms LH. She said that it was Ms LH who had ceased contact with R. It had not been possible to comply with Ms LH's request for weekend contact visits, firstly because of the activities in which R was engaged on the weekend, and also because, generally, staff from Barnardos did not regularly work on weekends. I accept this evidence.

Ms Wilkie, too, reiterated that in the future, because of R's age and her schedule of school and extra-curricular activities, contact would depend, principally, upon what R wanted and could practically achieve. She said it was possible that R could go to visit Ms LH at her home, although it was unusual for that to occur. Again, whether or not that could occur, would be determined by whether the request to do so came from R or from someone else. How regularly contact visits would occur would also depend, almost entirely, upon what R wanted.

Ms Wilkie said that when she had been the caseworker, she had offered contact visits to Ms LH during R's school holidays. Ms LH, on each occasion it had been offered, rejected such visits, citing her own personal difficulties.

Finally, Ms Wilkie stated that she had participated in explaining adoption to R and that she ensured that R understood the concept, which she believed R did. She found R to be intelligent and very sure of what she wanted. A decision on adoption had not been made rashly, but had been the subject of discussion between them. R had explained that she wished to be adopted so that legally she would feel part of Ms M's family, that she was very happy where she was with Ms M, that she would have the same surname and that she "wants to belong where she is".

Ms Wilkie had also explained that R would be a party to any adoption plan agreed to by Ms LH and Ms M. The nature of the adoption plan had previously been explained to R who appeared to understand what it was. R understood that contact with Ms LH had been proposed on the basis of a minimum of twice a year, but that if she wanted more contact than that, she was free to request it. Ms Wilkie confirmed that Ms M was very happy for that as well. I accept this evidence also.

The final witness cross-examined by Ms LH was Ms Vihtonen, the Manager, Adoptions, at Barnardos Australia, who is also the registered Psychologist who met with R in November 2010 and who provided her with the required counselling about adoption.

I was also impressed with Ms Vihtonen, who gave her evidence clearly, dispassionately, honestly, professionally, and with empathy and insight into what Ms LH would be going through.

Her professional experience (which commenced with obtaining a degree in 1992 and a graduate diploma in 1996) includes Psychologist registration training in December 1995, following which she worked with Barnardos, commencing in 1997, as a case worker, and since 2003, as an Adoption Consultant, which role included counselling children and assessing a child's capacity to consent to his, or her, own adoption, as well counselling one, or both, birth parents, in relation to the adoption of his, her, or their child.

Ms Vihtonen gave evidence based upon her experience, about the advantages and disadvantages of adoption. She stated:

"ADVANTAGES OF ADOPTION

14. In my view, an advantage of Adoption (as opposed to a child remaining in and out of home care) is that the child is part of a legally recognised family, rather than being in the care of the Minister.

15. During my meeting with [R], she expressed that she wants to be part of [Ms M's] family (the proposed adoptive parent) and have [Ms M's] surname. [R] knows that her surname is ["H"] and although [R] already uses [Ms M's] last name, during my meeting she said words to the effect that she wants it to be "legal and real".

16. Adoption also provides children with a greater sense of belonging - they know that they are part of a family, rather than a foster child. For [R], adoption will mean that [Ms M] is her mother, and "S" is her sister. Adoption will also provide [R] with the same status as "S" within the family.

17. Whilst Adoption does not provide a child with absolute certainty about their placement, it does provide them with a greater sense of security, as they know that when an adoption order is made, their birth parents cannot take further action in the Children's Court to have them returned to their care.

18. [R] is aware that her mother is not in agreement with adoption. She may not be specifically aware that her mother could return to the Children's Court; however I am concerned that [Ms LH] may say to [R] during any future contact that she intends on trying to get her back, which would be unsettling for [R].

19. An Adoption Order lasts beyond 18 years and into adulthood (where as an order allocating parental responsibility only lasts until a child is 18 years). In my experience, some children talk about feeling anxious as they approach 18, as they often don't have a connection to their birth family and don't have a legal connection to their foster family. They can often wonder what will happen to them after they turn 18.

20. Although [R] is secure in her placement, adolescence can be a time of instability for many young people. Adoption would provide [R] with security during her adolescent years, knowing that her family is legally recognised.

21. Adoption also provides the adoptive parent with more security. For [R], it will mean that [Ms M] is able to make decisions about her care and future, without consulting with Community Services or Barnardos. [Ms M] will be able to make decisions as "Mum", independent from the public parenting system.

DISADVANTAGES OF ADOPTION

22. The primary disadvantage of adoption is that it ceases a child's legal connection to their birth family and siblings and culture. However, during my meeting with her on 4 November 2010, [R] stated to me that she feels more connected, or "a part of" her foster family than her birth family. [R] will also be supported by [Ms M] to explore her cultural background and has spoken of her intention of studying the Indonesian language at school. [R] intends on maintaining ["H"] as a middle name, therefore keeping part of her birth identity.

23. For [R], a further disadvantage is that [Ms LH] has indicated that she may not wish to have contact with [R] if she is adopted. During my meeting with [R] on 4 November 2010, I explored with [R] her feelings about her mother and the possibility that [Ms LH] may not wish to have contact with her if she is adopted.

24. As detailed in my report, [R] was sad that her mother might not want to see her, but said words to the effect "I still want to be adopted, I've been here since I was 5 and this is more my family"

Ms Vihtonen also confirmed that she met with R in November 2010 to provide her with counselling. She prepared a report, which I have read carefully. She expressed the opinion that R "is a very mature young woman ... very thoughtful ... quite intelligent and able to articulate the reasons she wanted to be adopted". She believed that R appeared to understand the potential consequences of her adoption, including that she might not have contact with her half sister, B, and with Ms LH. R accepts that she cannot force a change of attitude, and despite the fact that she may lose contact with Ms LH, R wishes to proceed with the adoption.

I accept the evidence of Ms Vihtonen.

In considering the evidence of Ms LH, I bear in mind her anguish as the birth mother of R, who is faced with an application for an adoption order, the cultural difficulties that she said she had with the concept of adoption and her own interests and those of her family which may, legitimately, be taken into account. I appreciate, also, that she could not be expected to have a full perception of her own deficiencies, an ability to evaluate, dispassionately, the evidence and opinions of the experts, or be endowed with the intelligence and altruism needed to appreciate, if such were the case, that her child's welfare would be better served by adoption, and that her own maternal feelings should take second place (see, Re C (a minor) (Adoption: Parental Agreement, Contact) [1993] 2 FLR 260 and Down and Lisburn Trust v H and R [2006] UKHL 36 which authorities deal with a parent withholding her consent to the adoption of a child).

Even with these considerations in mind, I did not find Ms LH to be a particularly good witness. Firstly, in my view, she gave some evidence that, I consider, she was likely to have known was wrong. In answer to the question how long she had been living Mr B on a full time basis, she answered that it had been for "two years probably". Mr B, her fiance, gave evidence, on behalf of Ms LH, which, on this topic, I accept, that it had been for one month. He said that prior to that time, she lived in Newtown whilst he lived in Liverpool. He would "go over and visit" her on weekends, but would telephone every day. He stated that it would be wrong to say that they had lived together full time for 2 years. There was no reason why he should give inaccurate evidence on this topic. On the other hand, Ms LH was, I think, trying to establish that there was, and had been, for a longer period of time, stability in her life.

Furthermore, Ms LH was asked some questions about whether she had a car. She said that Mr B had purchased a car for her within the last 12 months more or less. Mr B denied that he had purchased the car for her and stated that she had owned the car since he had known her. Again, there was no reason for him to give inaccurate evidence on this topic.

He also denied that she took him to work by car, and said that he caught the train, or a bus, or that arrangements were made by his employer to have him collected. She had said:

"Most of the time I take him. I drive him to work and I coming back home again"

There was no reason to disbelieve this evidence I thought that Ms LH was trying to demonstrate the strength and stability of their relationship. It was also to demonstrate how busy she was.

Thirdly, she was asked about her future plans with Mr B. Initially, she gave evidence that they planned to marry and that they would be likely to have a child together. When it became apparent to her that the possibility of having a child might adversely affect her evidence regarding her ability to have contact, in the future, with R, her evidence changed and she stated that having a child was not necessary now and that it may never happen. (Mr B confirmed that it was not necessary for them to have a child together.)

I am satisfied, in relation to the conflicting evidence she gave, that in relation to each of these matters, Ms LH was endeavouring to give evidence in a way that was best suited to what she regarded as being of assistance to her case.

Another, and perhaps, the most important matter of all, which I bear in mind, relates to her explanation for her lack of contact with R since February 2009. In mentioning this aspect, I am not seeking to establish fault or delinquency on the part of Ms LH. I refer to this aspect because it is relevant to the interests of R now and in the future.

There was no dispute that Ms LH has been entitled to exercise visits, for 2 hours, since the beginning of R's placement with Ms M, but has not had any contact since 27 February 2009. Prior to that time, contact was reasonably regular, with only the occasional contact visit missed. The evidence indicates that contact visits between them were generally a positive experience for R.

Ms LH provided various explanations for the lack of contact since February 2009. These may be distilled as:

(a) she was studying full time;

(b) she was looking after her daughter, B; and

(d) she was otherwise very busy.

I was unimpressed with her explanations for the complete lack of contact. Whilst the explanations may explain some difficulty, it is impossible to accept that the commitments set out in (a) and (b) would justify no contact at all for the whole of that period. In relation to (b), Ms LH's daughter, B, has attended pre-school and kindergarten since 2009.

She stated that she could not take a train, or drive, to Wollongong.

I formed the view that her failure to have contact with R resulted from priority being given to her own commitments, rather than to any difficulties placed in her way by the Department, by R, or by Ms M.

For example, the evidence discloses that since 2006, Barnardos held five "Review of Arrangements" meetings. Ms LH was invited to attend each of them. The evidence reveals that the Review of Arrangements meetings were held on, and that on:

(a) 17 July 2006, Ms LH did not attend;

(b) 26 April 2007, Ms LH attended;

(d) 20 July 2009, Ms LH did not attend;

(e) 27 July 2010, Ms LH did not attend.

On 13 October 2009, R's then caseworker had a conversation with Ms LH regarding R. During this conversation Ms LH said words to the following effect: "Don't call me, I will call you, I need to think".

The only "difficulty" placed in her way by the Department, appears to have been one which involved the refusal of her requests to have contact with R on weekends, when it was said that Department supervisors would not be available. She was informed of this but says that she did not accept it.

During the course of the hearing, Ms LH made clear that she did not have any choice in not maintaining her contact with R. I do not accept that evidence. I am far from satisfied that for nearly 2.5 years she did not have any opportunity at all, other than on weekends, to have contact with R.

That this view is not an unduly harsh one is demonstrated by a passage during Ms LH's submissions:

"HIS HONOUR: I am trying to understand why you have not seen [R] for two years and five months.

DEFENDANT: Because when I contacted Barnardos I say how about this day and when I am available on that day. They say: Oh I am sorry. [R] cannot come and see you on that day. I say why and she said she has got this and she has got that. She is not available so [R] is not available but some day I'm not available so what I have to do your Honour. Please I am begging you. It is complicated in here but please don't be blaming me for all those and you going to be make a decision.

All I am saying [R], that is unfair for me, unfair for her birth family. I can't bear your Honour but when you are sitting down here you just say thing to everyone in this Court room a million time, not once, twice, I was full time study, if you don't believe I am going to go back to study and they print for me everything that I am beginning and finishing.

HIS HONOUR: How about holidays. You told Mr Moore that TAFE had holidays during Christmas time in particular.

DEFENDANT: Like in holiday I am going somewhere with my friend. I would like to do something with [B] too, like because I feel like [B] already going to the school, you know, look because [B] told me Mummy when going holiday. Can we go holiday. I am going to Queensland. Why can't I going somewhere. [R] going away with her other Mum to overseas even. I have been in Australia for 22 years. I have not been go anywhere, just tied up with this - with those whole mess in my life which you think is fair to me, I have been in Australia for 22 yeas and I am now nearly 40.

I have been in the country, in Australia my life, how lucky the foster carer can go overseas with my daughter from her, from this and come back.

...

HIS HONOUR: No one is blaming you. I am trying to find out your reasons for not seeing [R]. It is not a question of blame.

DEFENDANT: I am going holiday with [B] to Queensland. I am going away to the country because I feel like such too much pressure, you know living in Sydney, living in this country. It is too much pressure for me, your Honour .

I feel like some time I can't take any more so the only option that make me feel better and make me better if we going away, we refresh and in some way up there, then forget thinking about this, about that, about this, and you know your Honour until now I try to cope as much as I could.

Don't you think it has been affecting me psychologically. I been depressed your Honour, [R] been go away from me such a long time, I have been depressed about it. You don't know. Everyone in this room does not know what I am going through.

I understand you don't want to talk about me but I am telling you, okay your Honour so hear me out please. If you give adoption to [R] just assume you make that decision, you know I don't know what to say your Honour. I know you don't talk in this country, you don't talk about me. Nobody care about me. No one care about - ..."

(My emphasis)

Ms LH has stated that she will "fight as hard as I can" to oppose the adoption. She previously stated that she would "die" if the adoption goes through and would not see R if it does. In a letter dated 14 March 2011 (Ex. 1), addressed to the court, she stated her reasons and her wishes for R. She states an intention to seek to regain parental responsibility for R in the future.

She also seems to feel that giving her consent to the adoption would somehow be failing R as her mother. This she cannot bring herself to do. In this regard, she writes that she will never give up, but it is difficult to understand this comment if she maintains her previously stated position of not seeing R if an adoption order is made. She states, more recently, that her aims are "once in my life, all my children could accept me as their birth mother".

Ms LH also states that she is now in stable employment and in a committed relationship. This evidence is confirmed by Mr B, whose statement I have read.

I formed the impression, during the course of her cross-examination, and in Ms LH's evidence and submissions, that her real concern related to R's ties to her and members of her family and that it was "unfair" for those ties to be extinguished by an adoption order. It was stressed to Ms LH, during the course of the hearing, that Ms M, and others, each recognised that it was in R's interest for her family ties to be maintained, as severing those ties meant cutting a child off from her roots. It was also stressed that whilst the contact might not be as much as Ms LH wanted, contact was in the interests of R and would not be prevented unless it hindered her welfare.

With the exception of the non-acceptance of her reasons for not maintaining contact with R, what I have said should not be regarded as a criticism of Ms LH. A blood parent, in a case such as this, is at risk of losing her legal status as the mother of her child; no decision could be more important for both the child and her parents, and each parent is entitled to put his, or her, case with, or without, legal representation, and despite it being difficult and, perhaps, even unmeritorious.

Ms LH's displays of emotion during the hearing, particularly when she made submissions, appeared sincere. However, the decision to be made is not against her; it is a service for R. It is what the court concludes is in R's best interests, both in childhood and in later life, that is the paramount consideration.

Ms S, the maternal grandmother of R swore an affidavit and was cross-examined. She had attended the contact visit on 12 April 2011, with a number of other people, including her other daughter and two grandchildren. She accepted that she had not informed Barnardos of their attendance at the contact visit.

There was some dispute about whether Ms S had asked R whether she wished to come to live at her house. Ms S stated that she said that she asked R if she wanted to play at her house.

I do not accept the evidence of Ms S in this regard. She said, later in her evidence, that she, too, opposed the adoption order being made, because she wanted R to live with her "because I raised her from when she was little ... I bathed her, I looked after her". She also said that if R were to spend any time with her she would try and encourage R to come and live with her so that she "could show her love and other things". She also stressed the blood relationship, stating that she was still healthy, still working, and had a house and an income. She understood the need for care but wanted R to be able to contact her and stay as her granddaughter.

Ms S gave evidence that as far as she knew, Ms LH had been studying, but not working, full time. However, she herself, continued to work full time.

Mr B gave evidence and was cross-examined. Overall, I was reasonably impressed with him except on two aspects. He said that he maintained a desire to meet and establish a relationship with R. He said that he had held that desire for some time. However, he denied that he and Ms LH had discussed, except once or twice, Ms LH's lack of contact or the reasons for it. There was no suggestion that he had encouraged Ms LH to renew her contact with R; nor did he give evidence of trying to assist her in renewing that contact.

The second aspect that I found somewhat difficult to understand, in the light of his expressed desire, was his statement that any contact with R should take place only in Sydney and not in Wollongong. He said in answer to questions from Ms LH:

"Would you like to come with me to travel to Wollongong?

A. No, I would like R to come to Sydney.

Q. Why?

A. To me it is too long and it would be a lot easier for R to come to Sydney so we can see her."

Once again, it seemed to me that the principal concern related to Ms LH's and his difficulties associated with travel to Wollongong rather than the concern that it would not be in R's best interest to not have any contact with Ms LH.

There are additional affidavits from two of Ms LH's friends. One friend discloses her observations of Ms LH's conduct with her own daughter, B. She describes Ms LH as looking after her daughter "very well" and describes her as "very kind nice and a good mother". The other describes her observations of B, Ms LH's daughter, with Ms LH. She too, speaks highly of Ms LH. Neither witness was cross-examined.

The care that Ms LH takes of her daughter, B, is confirmed by Mr B.

Ms LH reminded me, more than once, of how important the natural bonds of maternity are and how they should not be torn apart. She states her love for R and identifies how important it is for R to maintain her relationship with her birth family. Despite the evidence of Ms M, Ms LH remains concerned that R "will lose everything including her background, where she is coming from ...".

Determination

A poignant feature of this case is that whatever R's difficulties before being placed in Ms M's care, and despite the lack of contact with Ms LH, R continues to love her mother. She wants to see her and other members of her birth mother's family in the future. She is sad that she has not seen Ms LH for nearly 2.5 years. The natural bond between them seems to have survived the problems that occurred and there is no reason, in my view, why it will not survive an adoption order being made. If it does not, that may have to do more with the conduct of Ms LH and members of her family, than with R and/or Ms M. Ms LH was not prepared to state her future plans concerning R in the event that an adoption order were made.

While any parent would understand, completely, a mother's feelings that she is somehow failing her child by consenting to his, or her, adoption, I am sure, because of the evidence that I have read, that R would not see it in that way. To the contrary, the evidence is that she understands Ms LH is opposing the adoption order, but she hopes her attitude will change when she (Ms LH) appreciates that it is in R's best interests for an order to be made.

I have read, and listened to, with sympathy, Ms LH's reasons for opposing R's adoption. However, I am of the opinion that her concerns relate, perhaps understandably, to her own emotional, and other, needs, rather than to the best interests of R, considered objectively.

I endeavoured, during the hearing, to have Ms LH consider the prospect of an adoption plan being entered into in the event that an adoption order were made. However, she seemed resistant to the idea of entering into such a Plan consensually.

Perhaps, a stronger relationship, and one that satisfies Ms LH's concerns could be built with an adoption plan, which could be made, following the making of an adoption order. One that includes the life story book continuing and the exchange of letters and cards, will help R develop her sense of identity and self as she grows up. Continuing contact with Ms LH and her family, including her grandmother will also preserve R's attachment to her birth family, prevent any feelings of loss and rejection which she may feel if she is completely cut off from her past, and help her not to worry about the family she has left behind, including siblings. At least in part, to achieve this will require the co-operation and assistance of Ms LH.

As Ms LH reminded me during her submissions, I must consider when deciding whether to make an adoption order all the circumstances, not only now, but in the future. In other words, I must have regard to the realities of R's situation as it has been, as it is, and as it is likely to be. The Court should not make an order that represents an interference disproportionate to the child's needs now and in the future.

I turn now to the matters I am required to consider.

Section 8(2)(a) - any wishes expressed by the child

This sub-section reminds, or should remind, all, that R is a person with human dignity and not merely the object of adult dispute. She has the right to express her wishes and to be heard.

R has provided her consent to the adoption. She has expressed, more than once, that she wants to be adopted because it will make her feel "more a part of this family". I am also satisfied that what she has expressed are her genuinely, and firmly, held views.

The weight to be attached to these wishes is not made clear, particularly where the child in question is over the age of 12 years. The legislation, in s 54, provides the minimum age at which a child is likely to be of sufficient maturity to express informed views. Of course, however, as is demonstrated in the next sub-section, that will vary according to the intelligence, characteristics, background and maturity of the individual child and the circumstances of the case.

Section 8(2)(b) - the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant

R has the age and, I have no doubt, the maturity to understand the effect of her adoption. I have set out the opinion of others who have met, and spoken with, R, which attests to R's maturity, level of understanding, background and family relationships. I have also read statements attributed to R which satisfy me that she has comprehended the effect of an order. There is a consistent thread in her views stated by the witnesses who give evidence of conversations with her.

I am satisfied that I should take the views expressed by R into account as an important, albeit not the sole, determining, factor in this case.

Section 8(2)(c) - the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity

The proposed adoptive parent, Ms M, has shown herself as attentive to R's physical, emotional and educational needs and encourages R in a range of sporting and musical interests. R has a sense of family with Ms M, whilst, at the same time, being able to maintain a relationship with Mr WH and her siblings. It seems like R has a strong sense of cultural identity.

Ms M, the proposed adoptive parent, encourages R's cultural heritage (Indonesian and German). R is able to explore her German heritage with her birth father and siblings. R is interested in her Indonesian heritage and is intending to learn the Indonesian language at school.

Ms M has facilitated contact between the child and her siblings and birth father, Mr WH. She has stated that she will facilitate contact with Ms LH.

Section 8(2)(d) - any disability that the child has

R does not suffer any identified disability.

Section 8(2) (e) - any wishes expressed by either, or both, of the parents of the child

The birth father seems supportive of the child's adoption and has signed the Adoption Plan on 12 January 2011. I have dealt with this earlier in these reasons.

The birth mother has not had contact with the child since February 2009 and opposes the adoption.

During the preliminary hearing on 27 April 2011, the birth mother advised the Court that she opposed the adoption because R may wish to return home in the next few years. In her Affidavit sworn 26 May 2011, the birth mother states that she "must object to the adoption on the grounds that she is my daughter and that she was taken from my care on the basis that at the time was unable to give proper care ... she is my daughter and my plan has always been for us to be reunited as a family".

It is necessary to balance the birth mother's wishes with the wishes of the child (given her age). I have taken each into account.

Section 8(2)(f) - the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant

R appears to enjoy contact with her birth father and her siblings who live with him.

R has not had contact with her birth mother since February 2009, but has expressed a desire to see her. R has said that she is sad that her mother may not wish to see her if the adoption goes ahead but hopes "in time she might calm down and get used to the idea, maybe then she will agree to see me".

I am satisfied that R had an enjoyable visit recently with Ms LH's family members in April 2011. There appears to be no reason why such visits should not be able to continue if R desires them to continue and if mutually convenient times for such contact can be arranged.

Section 8(2)(g) - the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood

The proposed adoptive parent sees, and loves, R, as her daughter and wants to adopt her. R is an established part of the family.

I have also considered Ms M's attitude to R and to the responsibilities of parenthood, as well as her suitability and capacity to provide for R's needs, including her intellectual and emotional needs. In this regard, the evidence reveals that upon entering Ms M's care, R exhibited challenging behaviours, including nightmares, "day nightmares", tantrums, incontinence and sexualised behaviours. None of these behaviours presently exist, although, on occasions, R does experience "flashbacks".

Ms M sees the main benefit for R in being adopted is that "she won't be a ward of the State anymore ... adopting her announces to the world that she is loved. It also means that important decisions are made by the family who love her".

I am satisfied that R's physical, emotional and educational needs are being met by Ms M and will continue to be met by her. I am also satisfied that she has the skill, and the knowledge of R to recognise and deal with the effect of a lack of contact in the event that Ms LH decides to not see R in the future following the making of the adoption order.

Section 8(2)(h) - the nature of the relationship of the child with each proposed adoptive parent

R is settled in her placement with the proposed adoptive parent and has a secure attachment to her and her foster sister "S".

R sees the proposed adoptive parent as her mother, refers to her as "Mum" and uses her last name.

It cannot be forgotten, that R has been placed with Ms M for 8 years.

I am satisfied that their relationship is close and loving.

Section 8(2)(i) - the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child

There is no issue raised in any of the material before the court which would suggest anything other than the proposed adoptive parent is suitable and capable to provide for the needs of the child, including the emotional and intellectual needs of the child.

Section 8(2)(j) - the need to protect the child from physical or psychological harm, caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour

R has been in the proposed adoptive parent's care for 8 years. It is submitted that removing R from Ms M's care, after such a long period of time, would be likely to cause R's psychological harm. I respectfully agree.

It is important to note that Ms LH has not made any formal application for R to return to her care. In the circumstances, in relation to R, any concerns about the previous conduct of Ms LH are less significant than they otherwise might be. The potential for an application by Ms LH, however, cannot be forgotten.

Section 8(2)(k) - the alternative to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child's circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child

R could remain in the parental responsibility of the Minister for Family and Community Services. This option seems inappropriate given R's age, her desire for Ms M to make decisions for her, and her consent to the adoption.

The proposed adoptive parent is well able to exercise decision making responsibility for R.

R has been living with the proposed adoptive parent, is thriving in the care of Ms M and she is a member of the family.

The Court could make an order that provided that Ms M has parental responsibility for R. This option is not to be preferred because it can be varied, so it offers less security and stability. It will not confer the legal benefits on R of being a member of her current family.

Section 90(1)(b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child and have been ascertained and due consideration given to them

R has been counselled and interviewed a number of times, and by different people, in relation to her wishes and feelings. Adoption has been raised and discussed with R since approximately 2007. I have previously referred to R's age, understanding, wishes and feelings.

Section 90(1)(c) if the proposed adoptive parent or parents are persons other than a step parent or relative of the child-that the proposed adoptive parent or parents have been selected in accordance with this Act

There is no suggestion that Ms M, as the proposed adoptive parent, has not been selected in accordance with the Act.

Section 90(1)(d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with

I have referred to the lack of consent by the birth parents and the consent of the Minister previously.

Section 90(1)(h) that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption

I have dealt with these matters previously.

The evidence satisfies me that all of the relevant requirements of s 90(1) of the Act have been met. R has made substantial gains in all areas of her development, including achieving a high standard academically, reflecting the stability, care and nurturing that has been present since her placement with Ms M.

Section 90(2) - The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances

It is important to remember that an adoption plan and contact arrangements are not about shared parenting. The adoption plan is entered into with a view to preserving a continuity of a relationship and to pre-empt feelings of loss.

The birth father has signed, and is a party to an Adoption Plan. The arrangements in the Adoption Plan for the birth father's contact with R are appropriate as they formalise the existing working arrangements, whereby contact is informal and organised directly between the proposed adoptive parent and the birth father. I am satisfied that the arrangements proposed are in R's best interests and are proper in the circumstances.

The birth mother is not a party to, and has not expressed any desire to enter into, an Adoption Plan.

An Adoption Plan for Ms LH's contact with R should take into account the fact that:

(a) the birth mother has not exercised her right to contact with R for over 2 years;

(b) there is no evidence to suggest that the child's needs require a change to the existing plan; and

(c) any proposed contact is a minimum contact and can be extended by mutual agreement depending on the needs of R. Ms M is supportive of contact between the child and Ms LH.

The relationship between R and Ms LH needs to be slowly, and painstakingly, rebuilt. I express the hope that once this case is over, steps will be taken by Ms LH in this regard no matter how difficult it is for her, personally, for contact to occur.

Section 90(3) - The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child

There are distinct advantages in adoption for this child (over for example an order for parental responsibility). I have set out the advantages and disadvantages, identified by Ms Vihtonen, previously.

Although stated in the context of disputes in the family law context ( In the Marriage of Marsden and Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152), there can be little doubt that:

"... continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children."

There is no question that R is now, and for some time, has been, very happy and secure, in a loving, stable and supportive family. She attends an all-girl Christian High School and is now achieving a high standard academically. She is in good health; she is doing well in her studies; and she participates in a range of extra curricular activities, including representative netball and touch football.

I am also satisfied that adoption is preferable for a child of R's age rather than remaining in home care for the duration of her adolescence. Security and stability will be provided during the torturous years of adolescence and when asserting the necessary independence growing into adulthood. Supervision by the Department and its officers will cease. The risk of a further application by Ms LH will no longer exist.

The question remains, however, whether an adoption order would be clearly preferable, rather than leaving R in the foster care of Ms M. Having regard to the evidence of R's early history, the evidence of how she has benefited so much in the time that she has lived with Ms M, and to the evidence of the exemplary parental care and nurture provided to her by Ms M, I am satisfied that the permanence, security, and sense of belonging, that will reduce, if not obliterate, R's concerns, which an adoption order would provide, makes such an order clearly preferable to any other course which could be taken.

In this regard, R's statements to Ms Vihtonen, the psychologist, reflect these very matters and amply demonstrate their importance to R herself.

I do not take the pessimistic view of Ms LH that R "might change her mind in the future" or that she will suffer a loss of identity. The adoption process has been discussed with R over some years and throughout this period her consent to, and desire for, an adoption order to be made in favour of Ms M have remained consistent. Furthermore, by retaining her present surname as a middle name, which R desires to do, as well as the other matters referred to which may occur in the future, amply demonstrates that any loss of identity is unlikely.

I need to consider, also, whether the Adoption Plan that has been made for R and Mr WH is appropriate in the circumstances and whether, in fact, a separate Adoption Plan should, if possible, be arranged for Ms LH.

Bearing in mind that R has demonstrated a clear intention to continue her relationship with her father, Mr WH, in the terms of the Adoption Plan, I am satisfied that it is appropriate. It is unfortunate that an Adoption Plan has not been able to be established, dealing with R's contact and continued relationship with Ms LH, but, perhaps, that could occur in the future. The Adoption Plan proposed for R and Ms LH, in my view, is satisfactory.

In all the circumstances, I am satisfied that an adoption order should be made for R. Adoption will provide R with continued security and stability as well as certainty for the future. It will also provide the only certainty, after the age of 18 years, that R remains a part of Ms M's family. The period of thirty days after the consent given by R, as required by s 89(b) of the Act, has expired, so the order can be made immediately.

In weighing the balance between the risk of R losing contact completely with Ms LH, and depriving R of having an adoptive parent who will meet her needs, the best interests of R are served by making an adoption order as bitterly disappointing an outcome to Ms LH that the making of such an order will be.

Neither birth parent has said very much about the change of R's surname, which might be a consequence if an adoption order were to be made. In regard to this aspect, as stated s 101 of the Act is relevant.

R wishes her surname to be the same as Ms M's; she has used that surname for some time, and she is known by it. The written consent that she has signed expressly refers to the change of surname. She intends to use the name "H" as a middle name. I am satisfied that it is in R's best interests to change her surname in accordance with her wishes and because she uses the surname already.

I make orders in terms of Paragraphs 1 and 2 of the document headed Order, which I shall sign, date and place with the Court papers.

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Decision last updated: 18 August 2011

Medium Neutral Citation:	Department of Family & Community Services and LH; Re R [2011] NSWSC 551
Hearing dates:	9 June 2011; 2 August 2011
Decision date:	17 August 2011
Jurisdiction:	Equity Division - Adoption List
Before:	Hallen AsJ
Decision:	Adoption order in respect of child, R, should be made. It is in the child's best interests to change her surname. Orders as sought in Summons.
Catchwords:	Application for the adoption of a child - Child is over 12, but less than 18, years old - Child gives consent to adoption - Birth mother does not consent. Birth father does not contest adoption and is party to Adoption Plan - Child wishes surname to be the same as adoptive parent - Opposition by natural mother.
Legislation Cited:	Adoption Act 2000 Children and Young Persons (Care and Protection) Act 1998 Family Law Act 1975 (Cth)
Cases Cited:	B (A Minor), Re [2001] UKHL 70; [2001] UKHL 70; [2002] 1 All ER 641 C (a minor), Re (Adoption: Parental Agreement, Contact) [1993] 2 FLR 260 C v XYZ County Council [2007] EWCA Civ 1206; [2008] Fam 54 CDJ v VAJ (No 2) (1998) 197 CLR 172 D, Re; Application of A [2006] NSWSC 1056 Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762; [2007] NSWSC 762; (2007) 37 Fam LR 595 Director General Department of Human Services; Re M [2011] NSWSC 369 Down and Lisburn Trust v H and R [2006] UKHL 36 Evelyn, Re [1998] FamCA 55 H, In the Marriage of [1994] FamCA 132; [1995] FLC 92-599 Infant, K & the Adoption of Children Act, Re [1973] 1 NSWLR 311 J v C [1970] AC 668 K, Re (a minor) (ward: care and control) [1990] 3 All ER 795 at 800, [1990] 1 WLR 431 Kress, In the Marriage of [1976] FLC 90-126 Marsden and Winch, in the Marriage of (2009) 42 Fam LR 1; [2009] FamCAFC 152 Northern Territory v GPAO (1999) 196 CLR 553 Oxfordshire County Council v X [2010] EWCA Civ 581, [2010] Fam Law 790 Peter, Re [2009] NSWSC 697 Rice v Miller (1993) 16 Fam LR 970 Stadniczenko v Stadniczenko [1995] NZFLR 493
Category:	Principal judgment
Parties:	Director-General, NSW Department of Human Services by her delegate Principal Officer, Adoptions, Barnados Australia (Plaintiff) Ms LH (Defendant)
Representation:	Mr G Moore (Plaintiff) Ms LH (Defendant appeared in person) Crown Solicitor's Office (Plaintiff) Defendant appeared in person
File Number(s):	A14/2011