Director-General, Dept of Community Services v D and Ors - [2007] NSWSC 762

No judgment structure available for this case.

CITATION: Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762

HEARING DATE(S): 4-8 September, 22 September, 16 October and 16 November 2006

JUDGMENT DATE :
13 July 2007

JURISDICTION: Equity Division
Adoptions List

JUDGMENT OF: Brereton J

DECISION: 1. Revoke previous consent dispense order. 2. Dismiss application for consent dispense order. 3. Dismiss application for adoption order. 4. Order pursuant to Adoption Act, s 92, that proposed adoptive parents have parental responsibility for, and custody and care of, child. 5. Order that child have contact with birth mother. 6. Reserve liberty to the parties to apply for further orders in respect of contact, including orders further defining contact. 7. Order that in exercise of their parental responsibility, applicants may change child’s surname to their own, provided that they retain her present surname as middle name.

CATCHWORDS: FAMILY LAW – Adoption – jurisdiction - whether court can make order allocating parental responsibility when court refuses to make adoption order - consent to adoption – grounds for revocation of a consent dispense order – grounds for making consent dispense order – whether serious cause for concern for welfare of child – trans-racial adoption – where child of African parentage securely attached to white proposed adoptive parents for nearly four years – where birth mother’s consent subsequently declared ineffective - undesirability of child being raised apart from natural mother family culture and ethnicity – undesirability of disrupting secure attachments – significance of birth mother’s parenting capacity – relevance of birth mother’s wishes – whether adoption in best interests of child – whether adoption clearly preferable to all other alternatives - contact – benefits of contact in reducing sense of abandonment and loss of mother and culture – change of name – where no adoption order but proposed adoptive parents to have parental responsibility - relevant considerations

LEGISLATION CITED: (CTH) Family Law Act 1975 ss 4, 60B, 60CC, 61C, 61DA, 64B, 69ZK
(CTH) Family Law Reform Act 1995
(CTH) Family Law Regulations 1984 reg 12D, Sch 5
(NSW) Adoption of Children Act 1965 ss 7, 8, 24, 32, 52, 67, 71, 84, 86, 90, 92, 101
(NSW) Children and Young Persons (Care and Protection) Act 1998 ss 90 151
(NSW) Commonwealth Powers (Family Law – Children) Act 1986
(NSW) Mental Health Act 1990
(UK) Children Act 1989

CASES CITED: ANR and SCR v LJW (Racine’s case) (1983) 36 RFL (2d) 1
Application of DoCS, Re C [2004] NSWSC 702
B & R (1995) 19 Fam LR 594
Beach & Stemmler (1979) FLC 90-692
Chapman & Palmer (1978) FLC 90-510; 4 Fam LR 462
D v Director-General, Department of Community Services [2005] NSWCA 474; 34 Fam LR 445
Department of Community Services v D [2004] NSWSC 1241
Ex parte West (1861) 1 Legge 1475
F v Langshaw (1983) 8 Fam LR 833
Flanagan & Handcock (2001) FLC 93-074
George & Radford (1976) FLC 90-060; 1 Fam LR 11,510
Goudge & Goudge (1984) 9 Fam LR 500; (1984) FLC 91-534
Hodak, Newman & Hodak (1993) FLC 92-421
In re B (an infant) [1971] 2 WLR 129, 138; [1970] 3 All ER 1008
In Re G [2006] UKHL 43
Kelley & Kelley (1981) FLC 91-002
Mahoney & McKenzie (1993) FLC 92-408
McL & McL (1989) 15 Fam LR 7; (1991) FLC 92-238
McMillen & Larcombe [1976] NTJ 1001
Mulhall v Hartnell (1988) 12 Fam LR 361
R & R (1985) FLC 91-615
Re an Infant K [1973] 1 NSWLR 311
Re B & the Adoption of Children Act 1965 (1979) 5 Fam LR 150
Re C, Mr & Mrs E, Mrs F v LA (EWHC, FamD, Ryder J, 19 July 2006; (The Guardian, 20 July 2006)
Re D; Application of A [2006] NSWSC 1056
Re Evelyn [1998] FamCA 55
Re G [2006] UKHL 43
Re P (a minor) (Adoption) (1990) 1 FLR 96
Re Q & R; Application of P [2006] NSWSC 1234
Rice & Asplund (1978) 6 FamLR 570
Rice & Miller (1993) FLC 92-415
Rushby v Roberts [1983] 1 NSWLR 350
Sanders & Sanders (1976) 1 Fam LR 11,433; (1976) FLC 90-078
Skrabl & Leach (1989) FLC 92-016; 13 Fam LR 83
Torrens v Fleming (1980) FLC 90-840
U I & UJ v Minister for Community Services [2006] NSWADT 16
Young v Lalic [2006] NSWSC 18
Texts:
Adoption: Achieving the Right Balance (Department of Health UK), 1998
Armstrong & Slaytor, The Colour of Difference: Journeys in Trans-racial Adoption, Annandale, 2001
Brodzinsky & Schechter (eds), The Psychology of Adoption, Oxford 1990
Fratter J, Adoption with Contact, London 1996, p 247
Hansard, Legislative Council, 10 October 2000
Katz, The Construction of Racial Identity in Children of Mixed Parentage: Mixed Metaphors, London 1996
Newman, Trauma in Infancy, the Psychobiology of Attachment
Prevatt Goldstein & Spencer, Race and Ethnicity: A consideration of issues for black, minority ethnic and white children in family placement, BAAF 2000
Thoburn et al, Permanent Family Placement for Children of Minority Ethnic Origin, London 2000

PARTIES: Director-General, Dept of Community Services (plaintiff)
D (first defendant)
Mr and Mrs F (second defendants)

FILE NUMBER(S): SC 80080/04

COUNSEL: Mr I G Harrison SC w Mr G W Moore (plaintiff) (4 -8 Sept, 16 Oct 06)
Mr A M Colefax SC w Mr G W Moore (plaintiff) (16 Nov 06)
Mr M W Anderson (first defendant)
Ms D M Falloon (second defendants)
Ms M A Cleary (child representative)

SOLICITORS: I V Knight, Crown Solicitor (plaintiff)
Legal Aid Commission of NSW (first defendant)
Colquhoun & Colquhoun (second defendants)
Kathryn Renshall Solicitors (child representative)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTIONS LIST

BRERETON J

Friday, 13 July 2007

80080/04 Director-General Department of Community Services v D & Ors

JUDGMENT

1 HIS HONOUR: The child whose best interests are the paramount consideration in these proceedings, E, was born in New South Wales on 25 July 2003, where her birth mother D had arrived from Africa under a refugee resettlement program on 25 March that year, already pregnant (although she did not then know it) as a result of having been raped in the refugee camp in which she had until then been living. As a result of D having given an apparent consent to adoption, which has since been declared void - on the ground that she was then incapable of properly considering the question of whether she should give consent - E has been in the care of Mr and Mrs F, who have cared for her on the basis that they were to be her legal adoptive parents, for all but the first three months of her life (when she was in temporary foster care). If an adoption order is now made, D – who all parties now accept is capable of properly considering the question of consent – will for all intents and purposes have been deprived of the care of her own child, notwithstanding that she wishes to care for her and has never given a true consent to adoption. On the other hand, if no adoption order is made, then the basis on which Mr and Mrs F have cared for E for in excess of three years, when they were reasonably entitled to assume that E - who has brought them great joy, and from whose care E has obviously benefited - would for all practical purposes be their child, will be falsified. The enormity of the emotions involved for D and for Mr and Mrs F is plain and understandable. An adverse decision to either will not unreasonably be perceived by the unsuccessful party, from his or her perspective, as unfair.

2 Neither D nor Mr and Mrs F have done anything to deserve being in the position in which they now find themselves, and neither deserves to be the unsuccessful party in this unhappy litigation. But ultimately, this case is not about the just deserts of D and Mr and Mrs F: I must regard the interests of E, and not those of D or Mr and Mrs F as paramount, although I accept that the emotional wellbeing of a parent may well impact on a child and thus be relevant to a child’s welfare; and I cannot disregard what has happened so far as E is concerned over the last three years or more – it is not possible to begin this case with a clean slate. Neither can I disregard what evidence and human experience suggests is likely to happen in her long term as well as short-term future.

3 The Director-General, Mr and Mrs F, and E’s separate representative, all contend that E’s best interests will be served by making an adoption order in favour of Mr and Mrs F, and dispensing with D’s consent for that purpose. In the event that an adoption order is not or cannot be made, the Director-General, Mr and Mrs F and E’s separate representative propose an order that Mr and Mrs F have parental responsibility and sole care and custody of E, and that E may be known by Mr and Mrs F’s surname. In either of those events, they proposed (initially – their positions changed during the hearing) that E have contact with D face-to-face twice a year, by telephone twice a year, by exchange of letters and photographs, and otherwise as agreed between Mr and Mrs F and D. D, on the other hand, proposes that E be returned to her care. At the preliminary hearing on 8 August 2006, each of D, Mrs F and Mr F were invited to outline their position. D made the following statement:

HIS HONOUR: I would very much like you to tell me, if you would, what you see as the optimum outcome for the child and why you think that’s best.

D: Your Honour, I think that it is not the place of the child or about being happy about the child. I think that I would like my child to know the language that I speak. I speak Dinka and Swahili is not my mother tongue. I would like my child to know where I am from. Thank you, your Honour.

HIS HONOUR: What role would you see the adoptive parents playing in the child’s life?

D: Your Honour, I would like that Mr and Mrs F, if they want to be in the life of the child, I would like them to be in the life and if they don’t want to see the child I wouldn't want to push them or force them about that to see the child.

…

HIS HONOUR: If the court decided not to make an adoption order, what is your proposal as to with whom the child should live?

D: Your Honour, if that was to be so I would like the child to come and stay with me and to know my language.

HIS HONOUR: Previously you were very concerned at the risk and dangers to you and the child if your community discovered that you had had a child. What's the position so far as that is concerned now?

4 Mrs F stated her position as follows:

HIS HONOUR: … would you like to tell me what you see as the optimum outcome for the child and why?

MRS F: I would like to see an adoption order in favour of Don and I as E's adoptive parents and an adoption order. I would like to continue contact with the birth mother for E on two contact visits a year face-to-face with exchange of mail on two occasions through the year and phone calls, two phone calls a year. I think it is important for E and have always thought it important for E to know her birth mother and to know of her heritage, her African heritage, her Sudanese heritage and her Dinka heritage, but I would like an adoption order in our favour.

HIS HONOUR: I know this may be a difficult thing for you and your husband to contemplate at the moment, but obviously the consent has already been declared void so for there to be an adoption order in your favour the court would have to make a consent dispense order and there are only very limited grounds on which that order can be made. If the court wasn't persuaded to make a consent dispense order and therefore couldn't make an adoption order, what would your position be then?

MRS F: I would seek for parental responsibility with E retaining our surname, the name she knows as a three-year-old, with the same contact with the birth mother of two visits a year, exchange of mail and two phone calls a year. On both those occasions the contact I would hope may grow as E is older and her interest in her heritage becomes more important to her, her African heritage becomes more important to her, but that would be E's choice when she was older.

5 Mr F’s statement was as follows:

HIS HONOUR: Mr F, would you like to tell me what you see as optimal?

MR F: I back my wife's sentiments. An adoption order would be our preferred outcome. I would say that that would best serve E's interests, and the same stipulations regarding contact and the same stipulations regarding an alternative as my wife expressed and similarly we would be guided by E's wishes as she gets older and is more clearly able to articulate her wishes relating to contact.

HIS HONOUR: Why do you think an adoption order would be in her best interests?

6 From this, it will be apparent that there are broadly three proposals, or scenarios, for E’s parenting arrangements:

· An open adoption by Mr and Mrs F, with limited contact with D largely at the discretion of Mr and Mrs F. This was, broadly speaking, the preferred position of the Director-General, Mr and Mrs F, and E’s separate representative, although there were differences between them as to the desirable extent of contact;

· Mr and Mrs F to have parental responsibility, care and custody and E to have contact with D. This was the fall-back position of all parties;

· D to have parental responsibility, care and custody, and no contact with Mr and Mrs F. This was the preferred position of D, although she is quite content for E to have some contact with Mr and Mrs F in the event that she is primarily in D’s care, but the Fs do not propose to maintain contact with E in those circumstances, a position which they explained was not a spiteful stance on their part, but a considered position based on their appreciation that, in the event of a change in E’s primary care, she would be even more confused, and the position made even more difficult for her, if they were to have ongoing contact.

The birth mother, D

7 D was born, in a Dinka tribe in Sudan, on 31 December 1984. In 1992, her family fled to Kenya. Her father was killed during their escape, and she became separated from her mother and family. Eventually she arrived in a refugee camp in Kenya. In October 2002, she was sexually assaulted in the refugee camp, as a result of which she became pregnant. On 23 January 2003 she was granted residency to Australia, and she arrived in Australia on 25 March 2003 under a refugee resettlement program. She took up residence near her half-brother in the western suburbs of Sydney.

8 In April 2003, having attended a doctor, D discovered that she was pregnant. Due to concerns she then entertained at cultural attitudes in her community to women who became pregnant out of wedlock, she concealed the pregnancy. However, her brother suspected if not discovered it, and he assaulted her at his unit. She attended Blacktown Hospital, and was subsequently transferred to Westmead Hospital, where a social worker arranged for her to be placed in a refuge.

9 On 19 May 2003, D informed a hospital worker that her pregnancy was the result of a sexual assault and that she wanted to surrender the baby for adoption, and she expressed fears in relation to her brother’s reaction to the pregnancy. She commenced residing at the refuge on 22 May 2003. Between May and July 2003 she had several meetings with officers of the Department of Community Services and caseworkers from the refuge regarding her options. She was, to some extent at least, confused at the distinction between the concepts of adoption and fostering. On one occasion, she expressed a wish to have the baby back after five years. On another, she expressed reluctance to place the baby with another family permanently, and asked if the baby could come back in three years. She told a caseworker that she would like to have a lot of contact with her baby, and that she wanted the baby with her after it was born until it went to a foster mother. On 1 July 2003 she told another caseworker that she wanted the baby placed with a Catholic family, and to have regular contact.

10 On 16 July 2003, D was admitted to Westmead Hospital under an assumed name with high blood pressure. On 21 July 2003, a diagnosis of depression was made. Lynne Tripet, then an obstetric social worker at the hospital, liaised with the Department of Community Services and was concerned about D’s mental and emotional state. D was induced on 24 July, and the child E was born at Westmead Hospital by emergency caesarean section on 25 July. D was discharged on 28 July, having signed temporary care agreements for E to be in the care of the Director-General (pursuant to (NSW) Children and Young Persons (Care and Protection) Act 1998, s 151). On 29 July 2003, E was placed in the temporary care of authorised foster carers, where she remained until she was three months old; during that period while she was cared for by the pre-adoptive foster parents, she had contact with D on five occasions.

11 On or around 14 August, D saw Lynne Tripet, to whom she appeared sad at the separation from her baby, expressing the view that she did not want to lose her baby. On 9 September 2003, D had an appointment with Jenny Klein, a caseworker from DoCS. To Ms Klein, D appeared flat and down, and Ms Klein was worried that she did not understand the full implications of adoption. On 15 September 2003, D attended mandatory counselling with a counsellor at the Adoption & Permanent Care Services office of the Department at Parramatta. Separately, Dr Gobran at the Station Medical Centre prescribed anti-depressant medication for her. However, no psychiatric assessment was arranged prior to 19 September 2003, when D signed her formal consent to E’s adoption.

12 When D signed the general consent, she expressed requests as consenting parent that E be placed with adoptive parents who would retain the child’s first name; that the child be placed with approved and suitable adoptive parents having a cultural heritage of any group; that the child not be placed with adoptive parents who were African [due to her concerns for D’s and E’s safety if the connection were discovered by her community]; that the child be raised in the Christian religion; that the child not be placed with adoptive parents who were Muslims; that D receive news and information about E two times a year, and meet with her twice a year; and that there be telephone calls between D and E on each of their birthdays.

13 On 5 October 2003, D presented at Westmead emergency department with left-side body pain and tingling. Dr McKew advised the refuge worker that she may have a blood infection and also needed a psychiatric assessment. At a meeting with DoCS during October 2003, she again asked if she could have the baby back in three or five years. Between 20 and 24 October, D consulted a doctor at the Centre for Infectious Diseases & Microbiology at Westmead, possibly twice. The doctor wrote a report indicating that she was profoundly depressed and that the most urgent problem with her health was her depression.

14 The 30-day period for revocation of the consent expired on 20 October 2003. D was shown the profiles of two potential adoptive families. On 21 October 2003, she informed DoCS that of the two, she preferred Mr and Mrs F.

The Proposed Adoptive Parents, Mr and Mrs F

15 Mrs F was born on 19 March 1961, and Mr F on 21 May 1964 in Scotland. They met in 1990, and married on 18 September 1998. They subsequently discovered that they could not conceive a child of their own, even through IVF. On 29 October 2001 they made a formal expression of interest in adoption to the Department of Community Services, indicating that they were open to adopting a child of any ethnic background. On 6 June 2003, DoCS made a recommendation that they be approved generally for adoption purposes. On 19 August 2003, their application to adopt a child through the Department’s local adoption and permanent care program was approved without conditions.

16 On 22 October 2003, Mrs F received a call from the Department’s Adoptions Branch caseworker, Jenny Klein, advising that a female child with dark skin was available for adoption. Mr and Mrs F were told that the child had been conceived as a result of a rape and that she was very dark, and were asked whether they needed to consider those matters. They said they did not need further time to consider those issues: they had previously contemplated adopting an African baby. They told family and friends that they had been allocated a baby girl, and told most to whom they spoke about the child’s colour. They cancelled travel they had planned for a five-week holiday. The next day, 23 October, they went to the DoCS offices in Parramatta, signed documents and saw photographs of E. They met E at the foster carers’ home; they researched her name in an Arabic dictionary and found that it meant “gift”. Over the next four or five days, they visited E daily at her foster carers’ home.

17 On 27 October 2003, Mr and Mrs F went to the DoCS offices at Parramatta to receive E, then three months of age. They met D and hugged her. They told D that they loved E’s given name and would never change it. They gave D a gold heart-shaped locket engraved with a Celtic design, to join D to their family. Their intention was to give D a photograph of E to place in the locket, but at that stage this was thought not a good idea because other members of D’s community might see the photo and ask D the identity of the baby. E was placed into the care of Mr and Mrs F, the proposed adoptive parents, in whose care she has been ever since, and where she has thrived.

The proceedings

18 The Director-General applied for an adoption order in favour of Mr and Mrs F. On 31 May 2004, the court dispensed with the consent of E’s father to the adoption. However, in or about mid-2004, D changed her mind about the adoption. She decided that she wished to revoke her consent and have E returned to her care. At a meeting with Ms Dulcie, Amanda Whitbread and Michelle Henderson on 30 August 2004, she gave a letter to the Department from the Legal Aid Commission, stating that she wanted to withdraw her consent to the adoption. On 10 September 2004, the Director-General replied to D that he had declined her request that E be returned to her care.

19 The adoption application was set down for hearing, commencing on 15 December 2004. D’s application for an adjournment, on the grounds of her then mental ill-health (she had been admitted to hospital with major depression), was refused on 14 December 2004, essentially because of the urgency of resolving the future of E, and the apparent unlikelihood that an adjournment would result in the court being presented with a substantially different state of affairs. The hearing proceeded, a tutor having been appointed to represent D, whose instructions could not be obtained, and at the conclusion of the hearing on 17 December 2004, Palmer J made orders, for which reasons were later published [Department of Community Services v D [2004] NSWSC 1241]. His Honour concluded – as D had contended and the Director-General conceded – that D had not been in a fit condition to give the consent when she had done so, and declared that her consent was ineffective [(NSW) Adoption Act 2000, s 58(2)(d)]. Nonetheless, over D’s opposition, his Honour made a consent dispense order on the grounds that D was (at the time of the hearing) in such a physical and mental condition as not to be capable of properly considering the question of whether she should give consent [Adoption Act, s 67(1)(b)], and that there was serious cause for concern for the welfare of the child and it was in the best interests of the child to override D’s wishes as parent [s 67(1)(c)]. His Honour then made an adoption order in favour of Mr and Mrs F.

20 D appealed, and following a hearing on 7 December 2005, and the reception of further evidence, the Court of Appeal (Hodgson and Ipp JJA, Hunt AJA) on 22 December 2005 allowed the appeal, set aside the adoption order (but not the consent dispense order), and remitted the matter to the Equity Division for a new hearing of the adoption application [D v Director-General, Department of Community Services [2005] NSWCA 474, 34 Fam LR 445]. The appeal succeeded essentially on the basis that further evidence, not available at trial, showed that D’s condition had improved in a way not previously anticipated, so that there was a likelihood that there would be a positive involvement of her family in the care and upbringing of E if the adoption did not proceed, with the result that assumptions upon which the primary judge had proceeded were retrospectively falsified. Following that decision, under an interim order made by Nicholas J on 23 December 2005 [Adoption Act, s 84], Mr and Mrs F have had interim parental responsibility for E, who has had very occasional contact with D.

The Legal Framework

21 The objects of the Adoption Act are expressed to include [Adoption Act, s 7]:

(a) 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,

(b) to make it clear that adoption is to be regarded as a service for the child concerned,

(c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage, …

22 In making a decision about the adoption of a child, the court is required to have regard (as far as is practicable or appropriate) to the principles specified in Adoption Act, s 8(1), including:

(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, not for adults wishing to acquire the care of the child,

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

…

23 In determining the best interests of the child, the court is required to have regard to, inter alia [Adoption Act, s 8(2)]:

(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,

24 Adoption Act, s 90, prescribes pre-conditions of which the Court must be satisfied before making an adoption order, including that it considers that the making of such an order would be clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child; as the note to s 90(3) records, other action that could be taken includes a parenting order under (CTH) Family Law Act 1975, or a care order under Children and Young Persons (Care and Protection) Act:

90 Court to be satisfied as to certain matters (cf AC Act s 21)
(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
Note . Sections 127–129 contain provisions about ascertainment of the wishes of a child by the Court.

(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
Note . See Part 3 of this Chapter.

(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, and
…

(g) if the child is a non-citizen child from a Convention country or other country outside Australia—that the applicable requirements of this Act and any other relevant law have been satisfied, and
Note . See for example, section 31.
(h) in the case of a child (other than an Aboriginal or Torres Strait Islander child)—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.

(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.
Note . Other action that could be taken in relation to a child includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the Children and Young Persons (Care and Protection) Act 1998 . Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt.

25 In my view, s 90(3) requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While I agree with Palmer J that it does not require satisfaction “beyond reasonable doubt” [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be “clearly preferable” is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law.

26 Adoption Act, s 92, provides for the Court to make orders for a child’s care and custody upon dismissal of an adoption application, as follows:

92 Care of child after refusal of an application

Children and Young Persons (Care and Protection) Act

27 There is an issue as to whether s 92 authorises an order allocating parental responsibility other than to the Minister, or whether such an order could only be made under the Family Law Act. As one of the potential outcomes is that E lives with Mr and Mrs F otherwise than under an adoption order, it is necessary at the outset to resolve the jurisdictional basis, if any, upon which such an order might be made. The Director-General submits that should I decline to make an adoption order, I should make an order under s 92. D submits that any such order should be made as a parenting order, under the Family Law Act.

28 Adoption Act, s 92, uses the term “care and custody”, which is not defined, save that it includes an order declaring the child to be under the “parental responsibility” of the Minister. In the Adoption Act, “parental responsibility” is defined in the Dictionary to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. “Care and custody” is not defined, but ordinarily those words connote something less than parental responsibility, being elements but not the whole of parental responsibility.

29 Other provisions in the Act, including one that is closely analogous to s 92, refer to parental responsibility. Thus s 84 authorises the making of interim orders “for parental responsibility” in favour of the prospective adoptive parents, or in favour of the Director-General, and s 86 provides that the Court may at any time make an order discharging such an interim order and:

Children and Young Persons (Care and Protection) Act

30 Part 8 is concerned with interim orders, and at first sight it is surprising that upon discharge of an interim order which could be made only in favour of a prospective adoptive parent, the Court is authorised to make “any order concerning parental responsibility … that it thinks fit”, apparently not limited to an interim order. But this is less surprising when it is appreciated, from s 86(3), that an interim order also ceases to have effect on the making of an order for the adoption of a child. In other words, where an interim order has been made, if an adoption order is then made the interim order ceases to have effect, parental responsibility then being covered by the adoption order. If, however, the Court discharges the interim order without making an adoption order, the Court may make a parental responsibility order to operate in place of the interim order. The intent was to give the court, in circumstances where an adoption application is made, the fullest power to deal with parental responsibility for the child, even if an adoption order not be made in favour of the persons who had interim parental responsibility.

31 Despite the use of the words “care and custody” in s 92, some indication that it was intended to cover parental responsibility is given by the circumstance that s 92 explicitly includes, in “orders for the care and custody of the child concerned”, an order placing the child under the parental responsibility of the Minister. That is a clear indication that, for the purposes of s 92, “orders for the care and custody of the child” were intended to include orders allocating parental responsibility. Such a construction would be consistent with the evident purpose of s 86. The explanation for the different wording is that, in s 92, Parliament has adopted the wording of the corresponding section of the former (NSW) Adoption of Children Act 1965, which provided as follows:

24 Care of child after refusal of an application
Where the Court refuses an application for an order for the adoption of a child, the Court may make such order for the care and custody of the child as it thinks fit, including, where the child has not attained the age of 18 years, an order declaring the child to be under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998 .

32 In 1965, the term “parental responsibility” was not in general legal use; the then equivalent was guardianship. The concept of “parental responsibility” came into Australian law in place of “guardianship” in the (CTH) Family Law Reform Act 1995, which was in large respects modelled on the (UK) Children Act 1989. The terminology of “parental responsibility” has been employed in the new provisions of the Adoption Act 2000, but apparently overlooked when a provision of the 1965 Act was repeated. Construing the 2000 Act as a whole, with reference to s 86 and to the inclusion within the concept of “care and custody” in s 92 of parental responsibility of the Minister, I conclude that, as in s 86, so in s 92, Parliament intended the Court to have the fullest power to deal with a child’s guardianship, custody and care in the event that an adoption application was unsuccessful.

33 The power under s 92 survives the referral – by the (NSW) Commonwealth Powers (Family Law – Children) Act 1986 - to the Parliament of the Commonwealth, of “the custody and guardianship of, and access to, children …” (to the extent to which they were not otherwise included in the legislative powers of the Commonwealth), which thereupon became matters with respect to which the Commonwealth Parliament may make laws. Excluded from the matters referred were “the matter of the adoption of children” and “the matter of the taking or the making of provision for or in relation to or authorising the taking of action that would prevent or interfere with … the jurisdiction of a Court of the State … under a provision specified in Schedule 1, to make orders, or take any other action, in respect of (i) the custody, guardianship, care or control of children, or (ii) access to children or the supervision of children”. Provisions specified in Schedule 1 include Adoption Act, ss 84, 86 and 92.

34 Reflecting this limitation on the referred powers, Family Law Act, s 69ZK, provides:

Child Welfare Laws not affected

(1) A Court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a Child Welfare Law unless

(a) The order is expressed to come into effect when the child ceases to be under that care; or …

(2) Nothing in this Act, and no decree under this Act, affects:

(a) The jurisdiction of a Court, or the power of an authority, under a Child Welfare Law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a Child Welfare Law; or

(b) Any such order made or action taken;

(c) The operation of a Child Welfare Law in relation to a child.

(3) If it appears to a Court having jurisdiction under this Act that another Court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first mentioned Court may adjourn any proceedings before it that relate to the child.

35 The combined effect of Family Law Act, s 4(1), and (CTH) Family Law Regulations 1984, regulation 12D and Schedule 5, is that the (NSW) Adoption Act is a Child Welfare Law. Also worthy of note is Family Law Act, s 61C, which recognises that parental responsibility (which in the Family Law Act is defined in terms identical to those in the Adoption Act), may be affected by orders of courts other than the Family Court, under Acts other than the Family Law Act:

61C Each parent has parental responsibility (subject to Court orders)

(1) Each of the parents of the child who is not eighteen has parental responsibility for the child.

…

(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

36 Nonetheless, I do not accept that it follows that the State intended to retain, to the exclusion of the Commonwealth, power over children whose application for adoption was dismissed. To the contrary, Adoption Act, s 90(3) and the note thereto makes clear that it was contemplated that a parenting order under the Family Law Act might be a preferable alternative to an adoption order. Family Law Act, s 69ZK, permits an order to be made under that Act, if the relevant child is not under the care (however described) of a person under a Child Welfare Law (for example, if no order is made under the Adoption Act), or if the order under the Family Law Act is expressed to come into effect when the child ceases to be under that care.

37 The Supreme Court is invested with the jurisdiction of the Family Court under the Family Law Act [Mulhall v Hartnell (1988) 12 Fam LR 361; Young v Lalic [2006] NSWSC 18, [37]–[49]]. Thus if on declining to make an adoption order the Court did not make an order under s 92, it could make a parenting order under the Family Law Act.

38 Under the Family Law Act, the Court may make a parenting order dealing with the allocation of parental responsibility for a child, in favour of a person (or persons) other than the parent of the child [s 64B(2)]. While neither the objects and principles which govern the exercise of jurisdiction under the Family Law Act in respect of children [Family Law Act, s 60B; cf Adoption Act, ss 7, 8(1)], nor the factors to be taken into account [Family Law Act s 60CC; cf Adoption Act, s 8(2)], are identical to those in the Adoption Act, in each case the best interests of the child are the paramount consideration, and there is a substantial coincidence of the relevant considerations. It is true that under the Family Law Act, the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child [Family Law Act, s 61DA(1)], but that presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility [s 61DA(4)].

39 The result of all this may be summarised as follows. First, on the proper construction of the (NSW) Adoption Act, the power under s 92 extends to orders allocating parental responsibility. Secondly, nothing in the Family Law Act excludes the jurisdiction of the Supreme Court to make orders under Adoption Act, ss 86 and 92 [Family Law Act, s 69ZK; Commonwealth Powers (Family Law – Children) Act, s 3(2)(d)]. Thirdly, a parenting order can be made under the Family Law Act in respect of a child who is not under the care of a person under the Adoption Act (for example, one in respect of whom no order is made), or even in respect of one who is under the care of a person under the Adoption Act, if the order is expressed to come into effect when the child ceases to be under that care – for example, such an order could be made expressed to come into effect upon termination of any subsisting order under Adoption Act, s 92.

40 Accordingly, this Court could, if it declines to make an adoption order, make an order allocating parental responsibility, either under the Adoption Act, ss 86 or 92, or under the Family Law Act. I prefer to approach the matter, in the context of this case, under the Adoption Act, because slightly although not materially different considerations apply under the Family Law Act, and if I were to exercise the cross-vested jurisdiction of the Family Court, an appeal from that decision would lie to the Full Family Court, whereas an appeal from a decision under the Adoption Act lies to the Court of Appeal, and it is not in the interests of the parties that their rights of appeal be bifurcated.

41 Finally, under Adoption Act, s 126, the court may, in the hearing of any proceedings or in determining any application or matter under the Act, act on any statement, document, information or matter that may in its opinion assist it to deal with the matter of the proceedings or before it for determination, whether or not it would be admissible in evidence. I have had regard to a considerable body of literature in the field, which was referred to in various of the expert reports and provided to me by the parties during the course of the proceedings.

The issues

42 At a directions hearing on 6 July 2006, after discussion with the parties, the issues for trial were recorded, as follows:

(1) Is D in such a physical or mental condition as not to be capable of properly considering the question of whether she should give consent?

(2) Is there serious cause for concern for the welfare of E such that it is in the best interests of E to override the wishes of D?

(3) If yes to (1) and/or (2), is it in the best interests of E to make a consent dispense order.

(4) If so, will the best interests of E be promoted by adoption, and would an adoption order be clearly preferable in the best interests of E to any other action that could be taken by law in relation to the care of E, having regard in particular to:

· D’s mental health;

· D’s relationship with her family;

· D’s capacity to care for, understand and cope with E, especially with E’s response to separation from Mr and Mrs F;

· the short and long term effects on E of being removed from the primary care of Mr and Mrs F;

· the short and long term effects on E of being raised apart from her natural family and culture by persons who are patently ethnically different;

· the alternatives to the making of an adoption order and the likely effect on E in both the short and longer term of changes in E’s circumstances caused by an adoption; and

· the ability of Mr and Mrs F to foster a relationship between E and D.

43 The issues numbered (1), (2) and (3) pertain to whether a consent dispense order should be made. The issues in (4) pertain to whether it is in E’s best interests to make an adoption order (or some other order for her care, in particular, parental responsibility to Mr and Mrs F, or return to D’s care). As the factors which inform whether there is a “serious cause for concern” overlap those which inform whether it will promote E’s interests to make a consent dispense order and override her mother’s wishes, and whether it is in E’s best interests to make an adoption order, it is convenient to consider the factors in (4) before addressing the question of whether a consent dispense order should be made [cf Re D; Application of A [79]-[80]].

44 There is a fundamental tension between two of them, which point in opposite directions, and create one of the major issues in the case: first, that all else being equal, it is undesirable that a child such as E be raised apart from her natural family and culture by persons who are patently ethnically different; but secondly, that it is undesirable that a child such as E be removed from the care of those who have parented her since she was three months old and in whose care she has obviously thrived. Professor Katz, an expert called by the Director-General, conceding that all else being equal it is better for children to remain with their natural parents in their own community of origin, put it this way:

The issue is not whether D would be a better parent for E than Mr and Mrs F, but whether she can provide adequate parenting for E over the long term, whether she has support from her community, and whether separation from Mr and Mrs F at this point in E’s life will cause her irreparable damage.

45 The critical considerations that inform a judgment as to where E is best placed may now be summarised as follows:

· The disadvantages for E of being brought up apart from her natural family, ethnic and cultural origins – including the extent to which those disadvantages can be mitigated. The extent to which Mr and Mrs F will foster contact between E and D and her family and culture is an aspect of this;

· The risks of separating E from Mr and Mrs F at this point in E’s life;

· The capacity of D to provide adequate parenting for E in the long term, aspects of which include whether E would be at risk if in her care, and the extent to which D will be supported by her extended family and community; and

· The respective benefits of adoption and other arrangements for long-term care.

46 No party now submits that D’s consent should be dispensed with pursuant to Adoption Act, s 67(1)(b), it being accepted by all that she is now capable of properly considering the question of whether she should give consent. However, there remains a very live issue as to whether the grounds for making a consent dispense order under s 67(1)(c) are established, and whether such an order should be made. If there is no consent dispense order, it will follow that an adoption order cannot be made. This gives rise to a preliminary matter, namely the status of the consent dispense order made by Palmer J, which was not set aside by the Court of Appeal. Very sensibly, the parties agreed that the previous order should be revoked, but I should explain why that course is appropriate, in circumstances that it was not set aside by the Court of Appeal.

Revocation of the previous consent dispense order

47 The previous consent dispense order was made on the grounds in (NSW) Adoption Act 2000, s 67(1)(b) and (c). Section 67 provides as follows:

67 When can Court dispense with consent of person other than the child? (cf AC s 32 (1))

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

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

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

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

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

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

48 In D’s appeal from Palmer J’s decision, she challenged (1) the refusal of an adjournment, (2) the making of the consent dispense order, and (3) the adoption order. The first and second challenges failed, but the Court of Appeal allowed her appeal against the adoption order on the basis of fresh evidence adduced in the Court of Appeal, described by Hodgson JA in the following terms:

[48] The further evidence does show that D has recovered, in a way not anticipated, and shows a likelihood that there would be positive involvement of her family in the care and upbringing of E if the adoption was set aside. I think it is fair to say that this does amount to the falsification of assumptions, rather than merely being the realisation of a contingency taken into account by the primary judge. Had the primary judge not acted on the contrary assumptions but been in a position to make a correct assessment of these potentialities, a different outcome of the case would have been a substantial possibility; though I could not say that a different outcome would have been likely. In my opinion, to refuse to admit this evidence would affront common sense and a sense of justice.

49 In allowing the appeal, the Court of Appeal set aside the adoption order and remitted the adoption application for rehearing; it is on that rehearing that I have been engaged. However, the Court of Appeal did not set aside the consent dispense order, and found that it was unaffected by error.

50 In the course of the preliminary hearings, the issues for trial were discussed and defined, and on 6 July 2006, the list of issues for trial, set out above, was settled. That those remained the relevant issues was confirmed at the commencement of the final hearing on 4 September 2006. The list included: (1) Is D in such a physical or mental condition as not to be capable of properly considering the question of whether she should give consent? (2) Is there serious cause for concern for the welfare of E such that it is in the best interests of E to override the wishes of D? (3) If yes to (1) and/or (2), is it in the best interests of E to make a consent dispense order? Accordingly, then and ever since, all parties have proceeded on the basis that whether a consent dispense order should now be made was in issue.

51 On the first day of the hearing, I raised the matter with counsel, as follows:

We have been proceeding to this point on the basis that whether a consent dispense order should be made is in issue. On reviewing the file closely, it seems to me that the Court of Appeal set aside only the adoption order and did not set aside the consent dispense orders. I notice that an order was made by consent setting aside an order of Palmer J made on 15th December 2004, but I suspect that was the order appointing a tutor. The order is not explicit as to what it is setting aside, but I think it was the order appointing a tutor.

That said, I am inclined to the view that it is inappropriate to conduct this hearing in 2006 on the basis of a consent dispense order made in different circumstances in 2004. Certainly, if it's a matter of consent I will do it. If it's not, I will give serious consideration as to whether I can, in any event, on the basis that it's an interlocutory order, set aside the consent dispense order, no final adoption order now having been made.

HARRISON: I think we've all been proceeding to this point on the basis that a consent dispense order was in issue.

52 Subsequently, after counsel had had an opportunity to consider the matter, the following transpired:

HIS HONOUR: On the other matter, I draw counsel's attention to section 71, which provides that a consent dispense order may be revoked on the Court's own initiative or on the application of various parties at any time before the making of the adoption order.

HARRISON: I would only repeat the comment I made that was effectively the comment your Honour made just before the adjournment, the parties have proceeded upon the basis that that issue was an issue that needed to be relitigated, in fairness to everybody. I don't know any of us at this table that take a different view.

FALLOON: That is the case.

CLEARY: We have had that discussion.

53 Adoption Act, s 71 provides as follows:

71 Revocation of consent dispense order

(2) The consent dispense order may be revoked on the Court’s own initiative or on the application of:

(a) the Director-General or of the person whose consent was dispensed with, or

(b) if the order was made on the application of a principal officer - the principal officer.

54 Section 72(3) provides as follows:

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

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

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

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

55 Dispensing with consent is a very serious matter. The provisions of the Act that surround the requirements for valid consent make clear that this is so. The basis on which the Court of Appeal allowed D’s appeal – a change of circumstances relating to the birth mother D – was equally applicable to the consent dispense order as it was to the adoption order: it vitiated at least one of the bases for the consent dispense order. That this is so is confirmed by the circumstance that no party now contends that a consent dispense order could be based on s 67(1)(b), reliance now being placed exclusively on s 67(1)(c).

56 Section 71 empowers the court to act of its own motion, in which case notice under s 72(3) is not required. In any event, all parties have proceeded on the basis that whether a consent dispense order should be made is in issue, and accordingly the existing consent dispense order should no longer be regarded as effective. Given the serious nature of dispensing with a natural parent’s consent to adoption, and the removal of at least one of the foundations for the consent dispense order previously made, it is inappropriate to proceed to consider the adoption application now on the basis of a consent dispense order made in quite different circumstances two years ago. Indeed, at least one of the purposes of the facility of revocation of a consent dispense order is to enable such a change of circumstances to be addressed. That of course is not to say that a consent dispense order should not now be made; but whether or not such an order is now appropriate should depend on the evidence before me now, and not on the situation that prevailed in December 2004.

57 Accordingly, pursuant to Adoption Act, s 71(1), I will revoke the consent dispense order made on 2 February 2005 in respect of D’s consent.

The effects on E of being raised apart from her natural family and culture by persons who are patently ethnically different

58 The expert evidence in the case, judicial decisions, and common sense, uniformly accept that, all else being equal, it is preferable for children to be raised by their natural parents in their own community of origin. In every case of adoption, to a greater or lesser extent, separation from the child’s natural family is involved. Cases such as the present, which practitioners call trans-racial adoptions, involve not only separation from natural family, but also separation from the child’s culture and ethnicity of origin.

59 Evaluation of the impact on a child of being raised in such a context necessarily involves hypothesis and prediction; it cannot be said with certainty what will be the effect on E. Insofar as expert evidence is concerned, care needs to be taken in applying to this case in its particular context deductions drawn from experience in different cases in their own different contexts; in the field of human affairs, even identical conditions do not always produce identical results. The same applies to judicial decisions; no other case precisely replicates the circumstances of this case, and even if one did, it would not follow that the same outcome would be the best for this case. But while, on the one hand, prediction of the future based on expert opinion in this field is fraught with difficulty, on the other, it is probably the best one can do, and is decidedly preferable to speculation.

60 Quite apart from the additional considerations that arise in a case of trans-racial adoption, judicial authority, expert opinion and common sense dictate that the fact of “natural” parenthood is an important consideration. This is because, in the ordinary case, natural parents can be expected to bring a special commitment to, and have a special relationship with, their natural child, and it is the ordinary and natural way of life that children are raised by their natural parents. The authorities were reviewed in the House of Lords in In Re G [2006] UKHL 43, by Baroness Hale, with whom the other Law Lords agreed, although Lord Nicholls added an emphasis of his own (at [2]). Her Ladyship adopted (at [31]) what Lindenmayer J said in the Family Court of Australia in Hodak, Newman & Hodak (1993) FLC ¶92-421 (His Honour’s statement had subsequently been twice approved by the Full Family Court: Rice & Miller (1993) FLC ¶92-415; Re Evelyn [1998] FamCA 55]), and which states the law in this country (the emphasis is Baroness Hale’s):

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.

61 Baroness Hale explained (at [33]-[35]) that nowadays one could become a “natural” (as distinct from “legal”) parent of a child in at least three ways: genetic parenthood, gestational parenthood, and psychological parenthood. While the natural mother would often combine all three, that is not always so; and it is not so in this case, because D is a genetic and gestational parent, but Mr and Mrs F are E’s psychological parents.

62 Relevant expert evidence was given by Professor Ilan Katz for the Director-General, Ms Beverly Prevatt Goldstein, Ms Julianna Ampofowaa Nkrumah, Associate Professor Green and Sarah Armstrong for D, and touched on by Dr Robinson as court expert, and by Ms Julie Selwyn who was qualified on other issues by the Director-General.

63 Professor Ilan Katz is Acting Director of the Social Policy Research Centre, at the University of New South Wales. He has a PhD from Brunel University, conferred in 1994, for a thesis, The Development of Racial Identity in Children of Mixed Parentage. He has studied, taught and published in the fields of complex family and community interventions, race culture and ethnicity, child protection and parenting in poor environments, and adoption.

64 Professor Katz said that after four decades of debate regarding the impact of trans-racial adoption on children, during which the prevailing view had undergone a number of distinct shifts, there was now a degree of consensus: whereas, during the 1960s, trans-racial adoption was actively promoted as a progressive policy that would give children from ethnic minorities a second chance, and whereas it was challenged in the 1980s by black professionals who viewed the practice not as progressive but as a perpetuation of colonialism and a cause of psychological trauma because of identity confusion and racism which white families did not have the capacity to address, in the 1990s these views were replaced by a consensus expressed in Adoption: Achieving the Right Balance (Department of Health (UK), 1998), the essence of which is that while the most advantageous placement for children who cannot live with their families is within their own community, and the child’s ethnic and racial background is an important factor to be taken into account in the adoption process, a child should not be denied loving adoptive parents solely on the grounds that the child and adopters do not share the same racial or cultural background.

65 Professor Katz noted that most research into trans-racial adoption was conducted during the 1970s and the 1980s, and that the practice of adoption had since changed, with a decisive move towards “open” adoptions, maintaining contact between birth parents and relatives and adopted children, and pointed out that there were no longitudinal follow-up studies of trans-racially adopted children in open adoptions. He reported that the research since the 1970s on trans-racial adoption indicated, first, that there was no evidence that trans-racially adopted children have higher levels of behavioural or emotional difficulties than equivalent children in same race placements, but secondly, that such children did tend to be alienated from their birth culture and community and to identify with the culture of their adoptive parents. A definitive analysis of the research commissioned by the UK Department of Health on adoption (Parker, 1999) summarised the risk factors associated with poor outcomes for adopted children, and trans-racial placement was not found to be one of them. Interestingly, however, Professor Katz added that in the case of indigenous children, there was a tendency for much poorer outcomes in adoptive placements; it is not apparent to me why there would be a difference in this respect between indigenous and other trans-racially adopted children.

66 According to Professor Katz, the most recent and comprehensive review (Rushton & Minnis, 1997; 2000), while identifying methodological flaws and a diversity of approaches in the empirical literature, found a consistent pattern emerging that the vast majority of children in trans-racial placements had done well in their adoptive placements, in the sense that the placement remained stable, their relationships with their adoptive families were strong, and their psychological and social adjustment was good. Outcomes for trans-racially adopted children were found to be similar to those for same-race adoptions. However, despite those positive findings, as in same-race placements, there were a minority of trans-racially adopted children whose adoptions were not successful; in about half of those cases the failure could be traced, at least in part, to issues relating to racial adjustment. Professor Katz continued:

In terms of racial identity there were mixed findings from the research. The research confirms that trans-racially adopted children are removed from their own culture and community, and have difficulty identifying or mixing with them. Even when adoptive parents took active steps to bring their culture of origin into the home and/or to ensure the children had contact with their community of origin, this is not a substitute for growing up in that community.

However, the research does not confirm the hypothesis that trans-racially adopted children would inevitably be confused or torn about their identity, and this will have adverse psychological effects on the child. In some studies a high proportion of children had mixed or negative views about their racial or ethnic group, but this is not a general finding (Triseliotis, 1991).

67 Professor Katz explained that there was now a fair degree of consensus as to strategies that adoptive parents could use to facilitate a child’s positive identity and self-concept in the context of trans-racial adoption, namely to live in an area where there were people from the child’s background and/or from other minority groups, to engage positively with the child’s family in the community, to promote positively the child’s heritage, to make efforts to mix with people of different races and religions, openly to discuss the child’s background, and to acknowledge and address racism. He continued:

culture

race

68 Professor Katz observed that there are considerable limitations on much of the research in the area, partly because research findings do not readily translate into judgments about individual children, and partly because much of the research comprises case studies, qualitative interviews and practice guidance and opinion based on “professional wisdom”, which is beneficial for practitioners in that it explores issues in depth, but is not quantitative. He mentions Armstrong & Slaytor’s work, referred to below, as an outstanding example of this genre, illustrating “what sort of outcomes can be expected for adoptees, but not how likely it is that any particular outcome will result from a particular set of circumstances. Nevertheless it is interesting to note that the vast majority of these 27 adoptees were doing rather well, despite some intensely painful experiences, and that those who had major difficulties such as mental illness tended to be young people who had suffered abuse in the adoptive household”. However, in cross-examination on the Armstrong & Slaytor work, he said:

Q. Well, it’s the case, isn’t it, that there was difficulty in more than, the majority of those adoptees had difficulty with their racial and ethnic identity arising from their placement with essentially white, middle-class families in middle-class suburbs?

A. They had had issues, yes. I mean I think it is undeniable that this is an issue in trans-racial adoption. I think it would be crazy to say that you can have an adoption where the racial origin of the child is never going to be an issue. That would be silly. The question is whether it be an issue to the extent that it is going to cause the child long term psychological damage, that’s the real question.

69 Professor Katz identified a number of factors as pointing to a positive outcome should E remain with Mr and Mrs F, namely that she was placed with them early, that she has formed a positive bond with them, that she will have contact with her natural mother and extended family, and that Mr and Mrs F have made efforts to keep in touch with others in a similar situation. Risk factors include that her contact and identification with her culture of origin will be diminished, and conflict between Mr and Mrs F and D may be detrimental. And while he remarked that there were some pertinent factors unknown to him - the main being the current nature of the bond between E and Mr and Mrs F, and the second being their attitude to E’s culture and race and the efforts they have made or intend to make to maintain those links - I think both of those should also be seen as relatively positive.

70 Professor Katz concluded that, should E remain with Mr and Mrs F, the protective factors far outweighed the risks, but there were inevitably a number of risk factors and unknowns; that the period of greatest risk for identity confusion was the teenage years, and that it was in E’s interests to maintain contact with her birth mother:

The period of greatest risk for identity confusion is the teenage years, and so it is currently only possible to speculate to what extent this will be problematic for E. Whatever decision the Court makes in this case, E is likely to face a range of challenges. She is likely to need very sensitive and responsive parenting to help address those challenges. She and her carers, whoever they are, will need to be aware of these and be willing to seek advice and support where necessary.

71 Ms Julie Selwyn is the Director of the Hadley Centre for Adoption and Foster Care Studies within the School for Policy Studies at the University of Bristol. She has been a researcher, author, lecturer, advisor and practitioner in that field for over 25 years. Her particular expertise is in the area of adoption and foster care. She was called by the Director-General to address the effect on E of separation from Mr and Mrs F, and the comparative merits of adoption and foster case; her evidence on those topics will be considered later. She was not asked to address the issue of trans-racial placements in her report or in chief, but in cross-examination conceded that it was a “highly contested area”, and that there was a school of thought that children should be placed with people of the same ethnicity or race if not able to stay with their family of origin, in order to retain a connection with their ethnicity and race. She thought that with the child having contact with the birth mother there would be an ability throughout the child’s childhood and teenage years - when issues of identity usually become more important - to ask questions, and that would have an important bearing on the outcome. She accepted that it would be very helpful for E to have a good relationship with her birth mother, which would make contact and other issues about explaining culture and discovering heritage easier.

72 Ms Beverley Prevatt Goldstein has studied, taught and published on the topic of race and ethnicity in childcare and placement, including in particular adoption and fostering. She is one of the authors of Race and Ethnicity: A consideration of issues for black, minority ethnic and white children in family placement, a practice guide for British agencies for adoption and fostering. Its basal premises include that placements should meet the individual needs of each child in respect of health, education, identity, family and social relationships, social presentation, emotional and behavioural development and self-care skills; and that the (UK) legislative requirement to consider racial origin, culture, religion and language applies to every child in every placement. In chapter 6, entitled “Identity and Self Esteem”, the authors wrote:

Identity and self-esteem are not mentioned in UK legislation but have underpinned the concern with the “racial origin, culture, language and religion”. They are, however, an explicit part of the assessment framework for all children as demonstrated by the LAC materials (Department of Health, 1995), the Working Together to Safeguard Children document (Department of Health et al, 1999) and the framework for assessing children in need (Department of Health et al, 2000). The Utting Report (1997) states:

A positive sense of identity, of being somebody, of belonging to oneself, is an inner strength which provides the strongest personal defence against harm. Helping children achieve that identity … ought to be the explicit objective of any organisation entrusted with the care of children. This sense of identity is derived from membership of family and other groups with similar values with which early life experience is shared. Detachment from family and culture plainly impairs its development; membership of a distinctive or disadvantaged community may compound the difficulties; in the case of black children, their situation is further aggravated by the pervasive effects of racism (p113).

73 In chapter 10, entitled “Placement of black children: specific guidelines”, the authors advise that a black family is more likely to provide a black child of the same ethnic background with positive black attachment figures which the child can internalise, with an environment where the black child is normal rather than exceptional, with a range of black role models coping with everyday life, and with a resource for ways of coping with and challenging racism. Additionally, such a family with similar culture, religion, language and class to the child is likely to provide continuity of some aspects of the child’s heritage; access to aspects of culture not available in the dominant society that involves ways of being and seen as well as ways of doing; access to some of the symbols which enables the child to fit comfortably if they so wish with their ethnic group; and a secure and informed framework in which to reject or adapt aspects of their heritage. On the topic of placement in a white family, the authors say:

There will be gaps in what most white families can offer a black child, because of dissimilarities in “racial“ identity, a lack of shared experience of racism, an inability to provide black primary attachment figures as well as some of the other factors noted above. These gaps may be particularly damaging to children who will already have experienced separation, loss and discontinuity (Prevatt Goldstein, 1997). There can also be a qualitative difference between black perspectives being an integral part of the home environment and approach of the principal carer, and being only occasionally made available to the child (Kirton & Woodger, 1999).

Adoption Now: Messages from Research

…such discretion has to be exercised within a framework of policy about what is normally expected. The question arises as to how far the reasons for failing [to observe these policy injunctions] are analysed and justified. (p116).

It is essential that such placements remain exceptional, and that the placement decisions are analysed, justified and authorised by senior management.

Kirton & Woodger (1999) and Thoburn et al (1998, p28) indicate that some white families can successfully parent black children. The available research suggests that these white families and their extended families must be able to demonstrate an active understanding of the developing needs of the black child; an understanding of racism; commitment to challenging racism and discrimination; the provisional development of networks which can include those of their own extended family or of their child’s birth relatives; and enable the child to have access to cultural frameworks which will provide continuity for the child.

Nevertheless, the task must not be underestimated as some white families may, despite their best efforts, have difficulty in sustaining these throughout their child’s childhood into adulthood. Kirton & Woodger (1999, pp 74-6) and Thoburn et al (1998, pp 34-41) provide a detailed guidance on the assessment and support needed for all families engaged in parenting black children. Kirton & Woodger (1999) warn that a one-off training program is unlikely to engender any fundamental and lasting change in attitude and the careful assessment by aware and competent workers of foster carers’ and adoptive parents’ current attitudes, with examples, is needed.

254 Dr Milch and Dr Robinson concurred that contact as frequently as monthly would not be excessive. Dr Robinson thought the key factor, as to the frequency of contact, was not so much what the child could tolerate but what the parents could tolerate; that if Mr and Mrs F were very anxious and distressed about contact with D and if D was very anxious about not having their child in her care, the contact would not be too pleasant an experience for E, though she would possibly cope with that, “but what will make her not cope with it is returning to a mother who has fallen apart, wondering what has happened and who feels very, very undermined, as I said, very anxious about what it all means”. She would not advocate overnight contact until Mr and Mrs F felt secure that E was safe and secure in the care of D, and that E was very comfortable with D. She accepted that twice a year was probably too little, and that if the relationships were not perfect but reasonably good, monthly contact would not be too frequent. She suggested perhaps an hour, initially with a health professional, just D and E together, without Mr and Mrs F; followed if possible by some activity involving Mrs F also, which would help E trust D as a benign person in her life.

255 In final submissions, Mr and Mrs F proposed contact at this stage three monthly, acknowledging that it would increase in the future and indicating that they would regard it more or less as at E’s discretion once she reached her teens. The Director-General and the separate representative appear to support contact on a monthly basis, consistent with the evidence of Dr Milch and Dr Robinson.

256 It is necessary to balance E’s interests in Mr and Mrs F, with whom she will be living, feeling secure and being supportive of contact, and E’s interests in developing a good relationship with D. Contact of the order supported by Dr Milch and Dr Robinson will be very much more than had been contemplated at the time when E came into Mr and Mrs F’ care. On the other hand, the situation has changed since then, and it is the interests of E, not those of Mr and Mrs F or D, that are paramount.

257 Particularly in the context that they will not have the security of an adoption order, I think it is important, and in E’s interests, that Mr and Mrs F’s security in their relationship with E not be undermined by too rapid an introduction of contact more extensive than they wish. To preserve their sense of security, it is important that they have some comfort in respect of contact. I therefore propose to make provision for a minimum level of contact, but in the hope that Mr and Mrs F will recognise that it is in E’s interests, consistent with the expert evidence, to see more of D. I will provide for contact second monthly for a year (until E is five), then six weekly (until she is six), then monthly. I would anticipate and hope that by about the time she commences High School there would be overnight contact, but it is too early to be prescriptive about this, and E’s own wishes will be much more significant at that stage. I will reserve liberty to apply for further contact orders in the event that the parties are unable to agree on the detail, or in the future.

Name

258 The Director-General seeks an order, under s 92, allowing E to be referred to by Mr and Mrs F’s surname. Such an order would not involve an exercise of power under Adoption Act, s 101, and the restrictions referred to in that section do not apply. In any event, s 101 does not impose relevant limitations upon the change of the surname, as distinct from the given name of a child. However, it would be curious if a name could more easily changed when an adoption application had been dismissed, than upon a successful adoption application. The name of a child is an aspect of parental responsibility. Without any order, the persons having parental responsibility are entitled to change the name of a child. In my view power to make orders with respect to parental responsibility must carry with it power to make orders with respect to the child’s name.

259 Issues of changing the surname of a child have been considered in a number of cases in the Family Court of Australia [George & Radford (1976) FLC ¶90-060; 1 Fam LR 11,510; Chapman & Palmer (1978) FLC ¶90-510; 4 Fam LR 462; Beach & Stemmler (1979) FLC ¶90-692; Kelley & Kelley (1981) FLC ¶91-002; Skrabl & Leach (1989) FLC ¶92-016; 13 Fam LR 83; and Mahoney & McKenzie (1993) FLC ¶92-408]. Usually, they have arisen in the context of applications for injunctions to restrain one parent from causing or allowing the child to be known by a new name. A convenient summary of the cases and the principles to be extracted from them is to be found in the judgment of Kay and Holden JJ in Flanagan & Handcock (2001) FLC ¶93-074. Relevantly, they establish that the welfare of the child is the paramount consideration, and that the court should have regard to the short and long-term effects of any change in the child’s surname; any embarrassment likely to be experienced by the child if his or her name were different from that of the parent with whom the child resides; any confusion of identity which may arise for the child if his or her name is changed or not changed; the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and the effect of frequent or random changes of name [Chapman & Palmer (1978) FLC ¶90-510; 4 Fam LR 462]. Further considerations include the advantages in the short and long-term of the name remaining unchanged, and the degree of identification that the child has with the various parties [Beach & Stemmler (1979) FLC ¶90-692].

260 In support of the submission that a change of name should be authorised, it is contended that E will live in the household of Mr and Mrs F who will be responsible for her day to day education, sporting and leisure activities, all of which will require her to be enrolled or registered, such that it would be in her interest to be able to use Mr and Mrs F’s surname. To that might be added that, at present, E more closely identifies with Mr and Mrs F than with D, and that she already uses their surname.

261 On the other hand, a change in surname will be a further breach in the connection between her and her birth mother and family, and may make it more difficult for her to be accepted by her family of origin.

262 Names are important to children. They are a significant aspect of their sense of belonging. At least in the short term, E will identify more closely with Mr and Mrs F than with D. She already uses their surname. She will continue to reside with them for the foreseeable future. While the position in the longer term is not so clear, the probabilities are that even then she will identify more with Mr and Mrs F. To change now from their name will be productive of confusion and distress. Retaining E’s present surname as a middle name will preserve the connection with D’s family. In my view, her greater identification in the short term, and probably the longer term, with Mr and Mrs F, the circumstance that she already uses their name, so that from her perspective no “change” would involved, and the undesirability of causing identity confusion at this stage, indicate that Mr and Mrs F should be permitted, in exercise of their parental responsibility for E, to change her surname to their own, provided that if they do so, E’s current surname be retained as her middle name.

Conclusions

263 My conclusions may be summarised as follows.

264 On its proper construction, (NSW) Adoption Act, s 92, authorises orders allocating parental responsibility. Nothing in the Family Law Act excludes the jurisdiction of the Supreme Court to make orders under Adoption Act, s 92. A parenting order can be made under the Family Law Act in respect of a child who is not under the care of a person under the Adoption Act (for example, one in respect of whom no order is made), or even in respect of one who is under the care of a person under the Adoption Act, if the order is expressed to come into effect when the child ceases to be under that care. Accordingly, this Court could, if it declines to make an adoption order, make an order allocating parental responsibility, either under the Adoption Act, ss 86 or 92, or under the Family Law Act. I prefer to approach the matter, in the context of this case, under the Adoption Act.

265 If not brought up in, or at the very least with a very strong connection with, her ethnicity and culture of origin, E would be at risk of being deprived of the cultural traditions to which she is entitled but which cannot be passed down except by those in them, and of an extended family and peer group with which she is visibly similar. As a result, she would likely have a diminished sense of identity and self-esteem, and less resilient defences against racism than otherwise. To some extent, these risks can be mitigated, but not averted, by contact with D and her family and community; in my judgment Mr and Mrs F would be sufficiently supportive of such contact that it can be a significant mitigator of the risks.

266 The effects on E of being removed from the primary care of Mr and Mrs F would be a certainty of a high degree of trauma and distress in the short term, a high risk for developing a depressive disorder in the future, and potential inhibition of her ability to form intimate relationships in the future, notwithstanding a reasonable prospect - albeit one that could not be guaranteed - that with "good enough" parenting from D, she could reattach to D.

267 In D’s care, E would not be at risk of violence or abuse from D’s brother or family. It is likely that D will ordinarily have adequate, or "good enough", parenting skills. However, her parenting capacity is compromised: by lack of insight into the complexity of E’s needs and the potential difficulties upon removal of E from Mr and Mrs F; by her vulnerability to depression; and by the absence of any apparent safety net support from her family or community.

268 Whereas an adoption order is permanent; a parental responsibility order may be varied, although usually a significant change of circumstances will be required to justify re-opening the issue. The security afforded by an adoption order is in the interests of the child as well as the parents, and may provide a firmer basis for the adoptive parents to be supportive of contact between the child and the natural parent. On the other hand, an adoption order represents a permanent legal severance of the relationship between natural parent and child, which a parental responsibility order does not, and may reduce the prospects of the child growing a strong relationship with the natural parent, and exacerbate the identity confusion issues that the child may encounter, particularly in adolescence. Children can and do cope with complex family relationships, involving multiple parents.

269 Section 67(1)(c) necessarily contemplates the situation if an adoption is otherwise precluded by the absence of consent, so that the requirement for “serious cause for concern” is implicitly addressed to the child’s welfare in his or her unadopted status. In considering the question of serious concern, it is permissible (and indeed obligatory) to take into account the circumstances that would pertain if D had parental responsibility for E, and evidence of risk to E as a result of D’s mental health, or from violence directed to her or to D by members of D’s family, would be relevant considerations on the question of “serious cause for concern”.

270 I am unpersuaded that E would be at risk of abuse, ill treatment or violence from D’s family if she were in the care of D. However, the combination of D’s own vulnerability to depression, superimposed on the risks of depression for E from disruption of her attachment to Mr and Mrs F, suggests that E would be in a very high-risk category for depressive disorders if she were removed from Mr and Mrs F and placed in the care of D. This is a serious cause for concern for E’s welfare. Accordingly, the first of the threshold requirements for a consent dispense order is established.

271 I am satisfied that it is not in E’s interests to be raised apart from her natural mother, by people who are not her natural parents, outside her culture and ethnic group of origin. E has a need for much more extensive contact with her culture of origin than can be provided by Mr and Mrs F, despite their best intentions. D is better able to meet that need. I fully accept that Mr and Mrs F will do their best, within their circumstances, to acquaint E with her origins so as to foster in her a sense of self. But their best is not likely to approach what E could gain in that respect, were she to be brought up in her birth family and culture.

272 However, I am also satisfied that it is not in E’s interests to have her secure attachment to Mr and Mrs F disrupted, particularly at her present age. Disruption to attachment is a well-known developmental risk, which may hinder E’s ability to foster future intimate relationships, may move her into the group who mentally represent close relationships as untrustworthy, and will place her at high risk of depression in later life, a risk that is further exacerbated by the circumstance that she would be in the care of a parent herself prone to depression.

273 Ultimately, I agree with Dr Robinson that the benefits of placing E with D now, which are not insignificant, do not justify the significant associated risks. Focussing on E’s interests in the short term, the issue is not difficult: E is presently well-balanced, well brought-up, and well-loved; every witness agrees removing her from Mr and Mrs F - the only parents and environment she has known - and placing her in the care of D who she barely knows in a quite different environment, effectively challenging her whole belief system, will be very distressing for E, and that there is no guarantee, notwithstanding good prospects, that she will reattach to D. There is no short-term benefit that justifies such a course and its risks. E’s best interests in the longer term are far more ambiguous, because being raised by D in her family and culture of origin will better provide for the development of her identity and self-esteem, and avert the identity issues that will otherwise arise. However, that course remains associated with significant long term risks – most significantly a high risk of depression, and also a mistrust of close relationships - as well as the short-term risks already mentioned. Placement with D is a less stable, less safe, higher risk option, including a radical change now, and a less certain future. In the light of the risks associated with it, and because the risks of the alternative - personal and cultural identity confusion issues in adolescence, and the development of robust techniques to deal with racism – are more amenable to mitigation through sustaining a relationship with D, than are the risks of moving her, I am convinced that E’s best interests would not be served by moving her at this time in her life.

274 However, I am unpersuaded that this is a case in which the possibility that at some future time, perhaps in adolescence, E may move into the care of D should forever be foreclosed by the making of an adoption order. The less irrevocable nature of a parental responsibility order, not involving formal severance of the parental bond with D, provides a more promising environment for E to deal with and resolve the inevitable identity issues in her teenage years, leaving her with some sense of control, or at least influence, in the situation, and greater scope for flexibility in the future, having regard to E’s own wishes as she matures. This empowers E, in a context in which traditionally adopted children are ‘the most disempowered’ of all those involved in adoption.

275 I am therefore of the view that a parental responsibility order is preferable in the best interests of E to an adoption order. It follows that I am not satisfied that the best interests of E will be promoted by an adoption order, nor that it is in the interests of E to override D’s wishes in that respect by making a consent dispense order. As I certainly do not consider that the making of an adoption order would be clearly preferable in E’s best interests to a parental responsibility order, the Court is prohibited from making an adoption order, by s 90(3).

276 E should have contact with D at least second monthly for two hours until age five, then six weekly for three hours until age six, then monthly, increasing in length and reducing in supervision until by twelve unsupervised overnight contact should be envisaged, but it is too early to be prescriptive about what will be appropriate at that age. Although I have provided for supervision of contact for the first twelve months, I intend that the supervisor have the latitude to permit some one-to-one time between D and E alone. Subsequently, I intend that Mr and Mrs F would be present for a while at the commencement of contact, and then leave D and E to some time alone.

277 E’s greater identification in the short term, and probably in the longer term, with Mr and Mrs F, the circumstance that she already uses their name - so that from her perspective no change would be involved - and the undesirability of disrupting her sense of belonging at this stage, indicate that Mr and Mrs F should be permitted, in exercise of their parental responsibility for E, to change her surname to their own, provided that if they do so, E’s current surname be retained as a middle name.

278 I am acutely aware of the tragedy for Mr and Mrs F that their dream of being adoptive parents of E, which seemed so close to reality, will be disappointed; and equally of the tragedy for D, who has never truly agreed to surrender her parental responsibility for her daughter, that she be unable to exercise it. I fully appreciate that this outcome involves elements of compromise, and that it is not an ideal solution; but in the circumstances that have arisen, through no-one’s fault, there is no ideal solution. The best one can do is to recognise that any outcome is going to leave E with challenges in the future, most likely during her teenage years, and to adopt that solution which, while providing her with a safe, secure and stable environment, best positions her to meet them. The solution of leaving E in the care and parental responsibility of Mr and Mrs F, but without severing the legal parental relationship with D, and providing for her to have more extensive contact with D than had originally been anticipated, will provide a secure, stable and loving environment for E, and preserve the opportunity for a meaningful relationship with her family and culture of origin, thereby mitigating the risks of identity and self-esteem issues in adolescence. I have seriously considered whether an “all or nothing” solution, with the greater security it would offer the prevailing party, and perhaps the child, and the greater certainty it would afford, would not be preferable, but I think the advantages of not permanently severing E’s legal parental bond with D on the one hand, and of not disrupting her secure attachment bonds with Mr and Mrs F at her present age on the other, outweigh the attractions of security and certainty, which in the context of this case are more related to the perceived needs of the parents than of E: it is clear that children such as E can cope with the concept of multiple parents. I have also considered whether it involves unreasonable expectations of the parents, but I am very confident that Mr and Mrs F, who indicated acceptance of a parental responsibility solution if an adoption order were not made, will not allow their natural disappointment to affect their deep commitment to and love for E; and D must understand that if she were to endeavour to undermine their position that would not only be detrimental for E, but would be a strong negative factor in respect of further contact. Of course if the benefits for E are to be optimised, goodwill and trust between the parties, and refraining from conduct that undermines the position and standing of the others, will be important. It is plainly in E’s best interests that, putting aside their personal needs and beliefs, all three work together to provide the best outcome for her. But as has been pointed out, even after contested adoptions, contact with the birth parent has typically proven beneficial.

279 My orders are:

1. Revoke the consent dispense order (Order 2) made on 2 February 2005.

2. Dismiss the application for a consent dispense order.

3. Dismiss the application for an adoption order.

4. Order pursuant to Adoption Act , s 92, that Mr and Mrs F have parental responsibility for, and custody and care of, E.

5.1 Until she attains five years of age, for a period of not less than two hours every second month, the first such contact to take place on 4 August 2007 and on the first Saturday of each second month thereafter, and such contact to be supervised by an officer of the Department of Community Services, and/or a health professional or other person agreed between D and Mr and Mrs F or failing agreement nominated by the Department;

5.2 From her fifth birthday until she attains six years of age, for a period of not less than three hours every six weeks, the first such contact to take place on the first Saturday of August 2008 and on each sixth Saturday thereafter, and such contact to include at least one hour of unsupervised contact between E and D;

6. Reserve liberty to the parties to apply for further orders in respect of contact, including orders further defining contact.

7. Order that in exercise of their parental responsibility for E, Mr and Mrs F may change her surname to their own, provided that they retain her present surname as E’s middle name.

**********

Citations

Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762

Most Recent Citation

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Cases Cited

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Statutory Material Cited

8

Department of Community Services v D [2004] NSWSC 1241

D v Director-General Department of Community Services [2005] NSWCA 474

Re D; Application of A [2006] NSWSC 1056

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CITATION:	Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762
HEARING DATE(S):	4-8 September, 22 September, 16 October and 16 November 2006
JUDGMENT DATE :	13 July 2007
JURISDICTION:	Equity Division Adoptions List
JUDGMENT OF:	Brereton J
DECISION:	1. Revoke previous consent dispense order. 2. Dismiss application for consent dispense order. 3. Dismiss application for adoption order. 4. Order pursuant to Adoption Act, s 92, that proposed adoptive parents have parental responsibility for, and custody and care of, child. 5. Order that child have contact with birth mother. 6. Reserve liberty to the parties to apply for further orders in respect of contact, including orders further defining contact. 7. Order that in exercise of their parental responsibility, applicants may change child’s surname to their own, provided that they retain her present surname as middle name.
CATCHWORDS:	FAMILY LAW – Adoption – jurisdiction - whether court can make order allocating parental responsibility when court refuses to make adoption order - consent to adoption – grounds for revocation of a consent dispense order – grounds for making consent dispense order – whether serious cause for concern for welfare of child – trans-racial adoption – where child of African parentage securely attached to white proposed adoptive parents for nearly four years – where birth mother’s consent subsequently declared ineffective - undesirability of child being raised apart from natural mother family culture and ethnicity – undesirability of disrupting secure attachments – significance of birth mother’s parenting capacity – relevance of birth mother’s wishes – whether adoption in best interests of child – whether adoption clearly preferable to all other alternatives - contact – benefits of contact in reducing sense of abandonment and loss of mother and culture – change of name – where no adoption order but proposed adoptive parents to have parental responsibility - relevant considerations
LEGISLATION CITED:	(CTH) Family Law Act 1975 ss 4, 60B, 60CC, 61C, 61DA, 64B, 69ZK (CTH) Family Law Reform Act 1995 (CTH) Family Law Regulations 1984 reg 12D, Sch 5 (NSW) Adoption of Children Act 1965 ss 7, 8, 24, 32, 52, 67, 71, 84, 86, 90, 92, 101 (NSW) Children and Young Persons (Care and Protection) Act 1998 ss 90 151 (NSW) Commonwealth Powers (Family Law – Children) Act 1986 (NSW) Mental Health Act 1990 (UK) Children Act 1989
CASES CITED:	ANR and SCR v LJW (Racine’s case) (1983) 36 RFL (2d) 1 Application of DoCS, Re C [2004] NSWSC 702 B & R (1995) 19 Fam LR 594 Beach & Stemmler (1979) FLC 90-692 Chapman & Palmer (1978) FLC 90-510; 4 Fam LR 462 D v Director-General, Department of Community Services [2005] NSWCA 474; 34 Fam LR 445 Department of Community Services v D [2004] NSWSC 1241 Ex parte West (1861) 1 Legge 1475 F v Langshaw (1983) 8 Fam LR 833 Flanagan & Handcock (2001) FLC 93-074 George & Radford (1976) FLC 90-060; 1 Fam LR 11,510 Goudge & Goudge (1984) 9 Fam LR 500; (1984) FLC 91-534 Hodak, Newman & Hodak (1993) FLC 92-421 In re B (an infant) [1971] 2 WLR 129, 138; [1970] 3 All ER 1008 In Re G [2006] UKHL 43 Kelley & Kelley (1981) FLC 91-002 Mahoney & McKenzie (1993) FLC 92-408 McL & McL (1989) 15 Fam LR 7; (1991) FLC 92-238 McMillen & Larcombe [1976] NTJ 1001 Mulhall v Hartnell (1988) 12 Fam LR 361 R & R (1985) FLC 91-615 Re an Infant K [1973] 1 NSWLR 311 Re B & the Adoption of Children Act 1965 (1979) 5 Fam LR 150 Re C, Mr & Mrs E, Mrs F v LA (EWHC, FamD, Ryder J, 19 July 2006; (The Guardian, 20 July 2006) Re D; Application of A [2006] NSWSC 1056 Re Evelyn [1998] FamCA 55 Re G [2006] UKHL 43 Re P (a minor) (Adoption) (1990) 1 FLR 96 Re Q & R; Application of P [2006] NSWSC 1234 Rice & Asplund (1978) 6 FamLR 570 Rice & Miller (1993) FLC 92-415 Rushby v Roberts [1983] 1 NSWLR 350 Sanders & Sanders (1976) 1 Fam LR 11,433; (1976) FLC 90-078 Skrabl & Leach (1989) FLC 92-016; 13 Fam LR 83 Torrens v Fleming (1980) FLC 90-840 U I & UJ v Minister for Community Services [2006] NSWADT 16 Young v Lalic [2006] NSWSC 18 Texts: Adoption: Achieving the Right Balance (Department of Health UK), 1998 Armstrong & Slaytor, The Colour of Difference: Journeys in Trans-racial Adoption, Annandale, 2001 Brodzinsky & Schechter (eds), The Psychology of Adoption, Oxford 1990 Fratter J, Adoption with Contact, London 1996, p 247 Hansard, Legislative Council, 10 October 2000 Katz, The Construction of Racial Identity in Children of Mixed Parentage: Mixed Metaphors, London 1996 Newman, Trauma in Infancy, the Psychobiology of Attachment Prevatt Goldstein & Spencer, Race and Ethnicity: A consideration of issues for black, minority ethnic and white children in family placement, BAAF 2000 Thoburn et al, Permanent Family Placement for Children of Minority Ethnic Origin, London 2000
PARTIES:	Director-General, Dept of Community Services (plaintiff) D (first defendant) Mr and Mrs F (second defendants)
FILE NUMBER(S):	SC 80080/04
COUNSEL:	Mr I G Harrison SC w Mr G W Moore (plaintiff) (4 -8 Sept, 16 Oct 06) Mr A M Colefax SC w Mr G W Moore (plaintiff) (16 Nov 06) Mr M W Anderson (first defendant) Ms D M Falloon (second defendants) Ms M A Cleary (child representative)
SOLICITORS:	I V Knight, Crown Solicitor (plaintiff) Legal Aid Commission of NSW (first defendant) Colquhoun & Colquhoun (second defendants) Kathryn Renshall Solicitors (child representative)