In the matter of O; In the matter of S

[2019] NSWSC 20

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of O; In the matter of S [2019] NSWSC 20
Hearing dates:	17 and 18 December 2018
Decision date:	30 January 2019
Jurisdiction:	Equity - Adoptions List
Before:	Black J
Decision:	Orders made dispensing with the consent of birth mother and birth father to the adoption. Orders made for the adoption of S and O in favour of proposed adoptive parents and the name proposed for S and O is approved with an additional middle name.
Catchwords:	FAMILY LAW AND CHILD WELFARE – adoption – where two siblings have been separated and each established a stable relationship with proposed adoptive parents – whether consent of birth parents should be dispensed with pursuant to s 67 of the Adoption Act 2000 (NSW).   FAMILY LAW AND CHILD WELFARE – adoption – extent of contact with birth mother and between siblings – where adoption order is in the children’s best interests – where adoption is preferable to other courses – whether an adoption order should be made.
Legislation Cited:	- Adoption Act 2000 (NSW) ss 8, 67, 90, 91, 101 - Children and Young Persons (Care and Protection) Act 1998 (NSW) - Family Law Act 1975 (Cth) - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Cases Cited:	- Adoption of KH [2015] NSWSC 274 - Adoption of NG (No 2) [2014] NSWSC 680 - Adoption of RCC and RZA [2015] NSWSC 813 - Director-General, Department of Family and - Community Services; Re TVK [2012] NSWSC 1629 - Re ASK and the Adoption Act 2000 [2017] NSWSC 521 - Re DYK and the Adoption Act 2000 [2005] NSWSC 1045 - Re Infant, K and the Adoption of Children Act [1973] 1 NSWLR 311 - Re K and the Adoption Act 2000 [2005] NSWSC 858 - Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007
Category:	Principal judgment
Parties:	A18 of 2018 and A19 of 2018 Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia (First Plaintiff) Alana Baker (First Defendant)
Representation:	Counsel: R Dart (Plaintiff) (both matters) J Harris (First Defendant) (both matters)   Solicitors: Crown Solicitor’s Office (Plaintiff) (both matters) Dillon-Smith Lawyers (First Defendant) (both matters)
File Number(s):	A18/2018; A19/2018

Judgment

1. By an Amended Summons for Adoption filed on 18 December 2018, the Secretary, New South Wales Department of Family and Community Services by his delegate, the principal officer of Barnados Australia, seeks an order for the adoption of a child, to whom I will refer as “S”, in favour of the adopting parents, to whom I will refer as “D” and “L”. The Secretary also seeks orders under s 67(1)(d) of the Adoption Act 2000 (NSW) dispensing with the consent of S’s birth mother, to whom I will refer as “A” and her birth father, to whom I will refer as “AJ”, to that adoption; an order registering an adoption plan signed on 17 December 2018; and an order approving S’s given names and D’s and L’s surname as her surname.

2. By a Second Amended Summons for Adoption also filed, by leave, on 18 December 2018 the Secretary, New South Wales Department of Family and Community Services by his Delegate, the Principal Officer Barnados Australia, seeks an order for the adoption of a second child, to whom I will refer as “O”, in favour of the adopting parent, to whom I will refer as “K”. The Secretary also seeks orders under s 67(1)(d) of the Adoption Act dispensing with the consent of O’s birth mother and birth father, A and AJ; an order registering an adoption plan signed on 17 December 2018; and an order approving O’s given names and K’s surname as her surname.

3. O and A are siblings and both adoption applications are opposed by A and were initially opposed by their maternal grandfather. A was represented by Counsel, Mr Harris, at the hearing of the adoption application and maintained that opposition. O’s and S’s maternal grandfather did not attend the hearing. S and O also have two maternal great grandparents, to whom I will refer as “N” and “C”, who appear to support the adoption applications. The evidence in the applications was heard together and the applications raise similar issues.

The affidavit evidence led by the Secretary in the applications

4. By way of background, S has lived with L and D since August 2014, having been placed with them when she was about 6 months old, and she is now over 4 years old. L and D are authorised carers who have had S’s care and responsibility under out-of-home care requirements pursuant to the Children and Young Person’s (Care and Protection) Act 1998. L and D do not have any other biological children or other adopted children.

5. Also by way of background, O has lived with K continuously since 4 September 2015, having been placed with her when she was eight months old, and K is an authorised carer who has had the care and responsibility for O under out-of-home care arrangements pursuant to the Children and Young Persons (Care and Protection) Act 1998. K does not have any other biological, adopted or foster children.

6. There were matters which affected the parenting capacity of A and AJ, including issues as to domestic violence, mental health and limited parenting skills. In February 2014, S was assumed into care six days after her birth and placed in a temporary placement, in which she remained until August 2014. On 21 February 2014, interim orders were made at the Children’s Court at Port Kembla allocating interim parental responsibility for S to the Minister. On 1 August 2014, the Children’s Court at Port Kembla made final orders allocating parental responsibility to the Minister in relation to S until she attains 18 years of age and, on 25 August 2014, she was placed with D and L. S has not been in A’s or AJ’s care at any relevant point.

7. An interim order allocating parental responsibility for O to the Minister was made by the Children’s Court in January 2015, and A participated in and was legally represented in those proceedings. In late February 2015, the Children’s Court found that O was in need of care and protection and A consented to that finding on a “without admission” basis. A report prepared for the Children’s Court in April 2015 recommended that O remain in the Minister’s care, identifying matters that may be detrimental to her emotional and physical development if she remained in A’s care. In June 2015, the Children’s Court made final orders allocating parental responsibility to the Minister in relation to O until she attained 18 years of age.

8. O was initially placed in a separate placement, and was subsequently placed with D and L and S in July 2015, when S was 17 months old and O was 5 months old. It appears that O was often distressed and difficult to settle at that time, in a way that impacted D’s and L’s ability to care for both S and O. Attempts were made in July and August 2015 to address that difficulty and there is some evidence suggesting an improvement in the position by early August 2015. However, by 21 August 2015, D and L indicated that they could no longer care for O. O’s placement with D and L then ceased and she was placed with K from 4 September 2015.

9. A subsequently filed a Summons commencing an appeal in the District Court of New South Wales against the orders of the Children’s Court in respect of O, in which she was legally represented. The District Court refused leave to appeal from those orders, and held that there was no realistic possibility of restoring of O to either A’s or AJ’s care. The Court also noted that an amended care plan for O would provide for seven supervised contact visits between O and A each year. A has previously requested unsupervised contact with A, but the Courts dealing with the matter have not ordered such contact.

10. The application in respect of S is supported by an affidavit dated 14 February 2018 of Ms Berry, the principal officer for Barnados Australia, as a delegate of the Secretary. I have regard to the evidence as to level of contact between S and A and AJ, and I note that there have been concerns as to the level of engagement by A with S in that contact, which I will address below. I have also had regard to the evidence that S’s maternal great-grandparents have attended many of A’s contact visits with S, and that other members of S’s extended maternal family have on occasion attended such visits. I have also had regard to evidence as to contact between S and O, as organised directly between D and L on the one hand and K on the other, and including email, telephone or text contact. D and L have also provided updates as to S’s progress to AJ. I have had regard as to the evidence as to S’s health and education and note that she appears to be in generally good health, began attending child care in 2015 and is now attending pre-school several days a week, and there are no concerns as to her behaviour generally. Ms Berry’s evidence is that S has lived with D and L for almost her entire life and has never lived with A and AJ and that S is fully integrated into D and L’s family and refers to D and L as “daddy” or “dada” and “mummy” respectively. There is evidence that S also has contact with D’s and L’s extended family and has an age appropriate understanding of her birth family.

11. The application in respect of O is also supported by an affidavit dated 14 February 2018 of Ms Berry as a delegate of the Secretary. Ms Berry’s evidence is that O was born on 19 June 2015 and is now over three years old. I have had regard to the evidence as to O’s medical needs and progress. It appears that O is generally growing and developing normally. She has commenced attending a childcare centre for one day a week, now increased to two days a week; she is developing her social skills and vocabulary and interacting with her peers and educators; and there have been no significant concerns as to O’s behaviour.

12. Ms Berry’s oral evidence, which I accept, is that it would not now be practicable to place O and S together, where their primary attachment is to their respective carers and it would be a traumatic event for each child to remove her from her carer(s) so as to place them together (T17). Ms Berry was cross-examined, at some length, as to the circumstance of S’s placement with D and L, and the steps which might then have been taken to anticipate the need to place O together with S. That cross-examination was of limited assistance, since I will note below that the Court must address the position as it now exists, other than a historical inquiry as to how that came about. Ms Berry was also cross-examined as to the lack of contact between S and O, at an earlier point when case management responsibilities for S were with Barnados and case management responsibilities for O with another organisation. I am not persuaded that those matters demonstrated any fault on the part of Barnados, or that that would be relevant even if it had been established. Ms Berry was also cross-examined as to the circumstances in which D and L ceased to care for O. Ms Berry was also cross-examined as to the extent of contact between S and O, although there ultimately seemed to be little controversy that such contact was occurring every two to three weeks, although sometimes less often and sometimes more often, depending on the proposed adopting parents’ and the children’s other commitments (T35).

13. Ms Berry was also cross-examined (T40ff) as to decisions made by Barnados in respect of the extent of contact between S and A, which seemed to me to reflect a genuine engagement with the difficulties of that contact, arising from A’s disabilities (to which I refer below) and their impact upon her interaction with S. Ms Berry was also cross-examined as to the level of contact between A and O, after Barnados assumed case management responsibility for O (T48ff). It seemed to me that Ms Berry fairly identified the matters which were relevant to a determination of the level of contact (T51–52) and that Barnados’ approach to that issue was a reasonable one. Ms Berry was also cross-examined as to the basis of her confidence that contact between S and O would continue, by arrangement between the proposed adopting parents, to a level beyond that which was strictly required under the proposed Adoption Plans (T56ff). I have formed the view below that Ms Berry’s confidence as to that matter was well-founded.

14. I have had regard to the affidavit of Ms Lauren Hutchinson dated 10 January 2018 which annexes her report under s 91 of the Adoption Act concerning the proposed adoption of S. Ms Hutchinson was the adoption case manager for S from March 2015 and refers to home visits and telephone calls with D and L, reviews of arrangement and numerous interactions with S. Ms Hutchinson refers to more limited contact with A and AJ in respect of the proposed adoption and to interviews with S’s maternal great-grandparents, N and C. Ms Hutchinson’s s 91 report is substantially consistent with the evidence led by Ms Berry, which appears to draw upon the content of that report for aspects of her evidence.

15. I have also had regard to a report dated 15 February 2018 under s 91 of the Adoption Act in respect of O, prepared by Ms Wilke, who was previously a Senior Case Manager, Adoptions, with Barnados, and was the adoption case manager for O when she was placed with K. She made attempts to consult with A and AJ for the purposes of that report, although only limited contact was achieved. Interviews were also conducted with O’s maternal great grandparents, N and C, who appear to support the application.

16. An affidavit dated 5 October 2018 of Ms Willick provides an update in relation to, inter alia, S’s progress and sets out developments as to when S will attend primary school, and as to S’s attendance at speech therapy and the position in respect of birth family contact and S’s attendance at pre-school in 2019. That affidavit also provides an update in relation to O’s progress and refers to developments in respect of O’s pre-school, health, behaviour and contact with O’s birth family. That affidavit notes that K is currently providing family day care services from her home, on days on which O is also at home, and refers to arrangements for O to attend pre-school in 2018 and commence school in 2021 when she is 6 years old. Ms Willick also addresses continuing contact between S and O and A, and contact between Barnados and O’s and S’s maternal grandfather, which has occurred since April 2018 after he had regained contact with A. That affidavit also referred to the continuing contact between S and O, which was occurring approximately every 2 – 3 weeks on a regular basis, and was organised directly between their carers, in addition to their contact with A.

17. Ms Willick’s further affidavit dated 29 October 2018 provided a further update as to contact between S and O and the birth family, including visits with A, and a contact visit between S, O and AJ in October 2018. Ms Willick gave further oral evidence (T60) as to changes made by the amended adoption plans, following the expert report prepared by Dr Neveling to which I refer below. Ms Willick also gave evidence as to the issues which arose from A’s difficulties in interacting with O and S, and as to the desirability of flexibility in contact beyond the minimum specified in the proposed Adoption Plans (T61–52).

18. Ms Willick was cross-examined at some length, including as to the level of contact between O and S and as to A’s psychological difficulties. Ms Willick’s evidence, which I accept, addressed the efforts made by Barnados and the proposed adoptive parents to support A in her interactions with the children during visits (T66–67). Ms Willick did not accept that additional contact between A and the children would change the manner of A’s interaction with them, given her diagnosis and S’s wariness when dealing with her, reflecting the lack of interaction with her. Ms Willick’s assessment of that matter seemed to me to be well-informed by her dealings with A, S and O, and likely to be correct. Ms Willick also described the way in which such visits took place, with primary interaction between O and S, and limited interaction by A, and the proposed adopting parents encouraging the children to interact with A (T70). Ms Willick also led evidence, which seemed to me to be persuasive and to which I give weight, of the risks of setting a level of contact between A on the one hand and O and S on the other at too high a level, such that the children did not want to attend it, where A was unable to develop a reciprocated relationship with them at such visits (T70–71).

19. I also have regard to the affidavit of Dr Dee Neveling dated 11 December 2018 and her report dated 22 October 2018. Dr Neveling was cross-examined and presented as a thoughtful, well-informed and careful witness, who provided a balanced account of the children’s needs.

20. Dr Neveling observed that, although there were attachment disruptions for both S and O during the first year of their lives as they had placement changes, both sets of carers (D and P on the one hand and K on the other) have provided reparative care to S and O which has enabled both girls to develop robust attachment to their carers.

21. Dr Neveling was instructed to lead expert evidence as to the appropriate level of contact between S and O. She observed that S and O share an affectionate and friendly relationship, and are clearly familiar with each other, and interacted positively during the period she observed, and display features consistent with good attachment to each other and to their primary care givers. She observed that S and O also understand, intellectually, at a level consistent with their current development, that they are siblings, although they will only develop greater understanding of family relationships over time, and have not had the opportunity to develop sibling bonds, due to their ages and because they do not live together. Dr Neveling recognised international guidelines which contemplated that, in principle, siblings should not be separated by placements in alternative care. I have regard to those principles, but it must be recognised that S and O were here separated some time ago and, as Dr Neveling made clear in her cross-examination, the adverse effects of now removing them from carers with whom they have bonded would be substantial. Dr Neveling expressed the view that frequent contact and access is required in order to develop and promote a robust sibling relationship and that, for S and O to develop a meaningful sibling relationship, contact would need to be either weekly or fortnightly, and would eventually need to include extended periods of time together, for example overnight or weekend visits. Dr Neveling fairly recognised that alternative forms of contact, including phone calls, emails and social networking could be used as the children increase in age and independence, and the level of face-to-face contact may then be reduced.

22. Dr Neveling was also instructed to lead expert evidence as to the appropriate level of contact between A on the one hand and S and O on the other. Dr Neveling’s observations of a contact visit between A and S and O noted A’s difficulties in interaction with S and O, which was assisted by their carers, and S’s reserve in interaction with A, particularly at the commencement of the visit. Dr Neveling noted that A wants to participate in the lives of S and O, but is unable to do so by reason of her history and the communication difficulties that affect her, and that she suffers a disorder which adversely affects her emotional awareness, social attachment and inter-personal dealings. Dr Neveling noted that those matters affected A’s interactions with S and O, and made it more difficult for S and O to read A’s non-verbal communication, although S appeared to have more difficulty with that position than O. Dr Neveling identified the primary purpose of contact as to allow S and O to have an understanding of their birth family identity and an understanding of A in particular. She recognised that S and O have an intellectual understanding, at their developmental stage, that A is their birth mother, but that that was not yet meaningful to them. While Dr Neveling attributed S’s distance to A to her lesser level of contact with A, it seems to me, and I understood Dr Neveling to recognise in cross-examination, that that matter is also likely to reflect the fact that S has a different personality to O, and has greater difficulty in dealing with A’s lack of engagement with her in contact. Dr Neveling also recognises that the proposed adopting parents have provided emotional support to S and O during contact visits with A, have been respectful and inclusive of A during those visits and have promoted the children’s contact with A.

4. Dr Neveling expresses the opinion that six visits per year between A and her daughters is in the children’s best interests. It was apparent, from Dr Neveling’s cross-examination, that that is no more than the opinion of an intelligent and well-qualified observer, since there is little empirical evidence as to the benefits or risks of increasing the level of contact between persons who suffer disabilities of the kind A suffers and their children, given the impact of those difficulties upon the nature of such contact.

5. I have regard to the affidavits of the proposed adoptive parents in respect of S and O and their cross-examinations. In respect of S, D’s affidavit dated 21 December 2017 refers to the steps that L and D are taking to assist S to know her history and have access to her birth family and cultural heritage; to D’s proposals for S’s continuing education and continuing birth family contact; and to D’s support for the continuance of such contact. D refers to his and L’s love for S as their own daughter and his belief that adoption is in S’s best interest and the emotional bond that has been formed between S and L and D. D was cross-examined, including as to the extent of contact between S and O and as to the proposed surname for S. L’s affidavit dated 21 December 2017 also refers to the steps which are being taken to assist S to know her birth history and her birth family and cultural heritage, her plans for S, including her commitment to continuing birth family contact and to D’s and her love for S as their own child and her belief that adoption is in S’s best interest because of the emotional attachment which S and D and L have formed and their provision of a secure, stable, safe and loving home for S. L was also cross-examined, including as to the difficulties involved in A’s contact with S, the extent of contact between S and O and as to the proposed surname for S. I have also had regard to two affidavits of referees which provide support for S’s adoption.

6. In respect of O, K’s affidavit dated 22 December 2017 refers to her efforts to assist O to know her birth history and have access to her birth family and cultural heritage and to her commitment to be open as to adoption issues through her childhood and into later life. She refers to her hopes for O’s education and her wish to offer O’s opportunities to travel and her proposals for O’s continued contact with her birth family and with S. She indicates her belief that adoption is in O’s best interest and the preferred order above any other to allow her stability and permanence that other children have in their birth families.

7. K was cross-examined and presented as a thoughtful and convincing witness, who had a sympathetic understanding of A’s difficulties and O’s needs. K referred to the advantages of using Skype or FaceTime as a form of additional contact with A, as contemplated by the amended maternal adoption plans, in addition to face-to-face contact, where O already interacted with other family members in that manner (T83). K also reasonably recognised the need for flexibility in contact arrangements, and confirmed her commitment to continuing to build on the existing contact arrangements between O and S at a level exceeding that required by the Adoption Plans (T90–91). K indicated her preference that O should have the same surname as her, but fairly acknowledged the thinking behind keeping AJ’s surname, as a common surname with S (T94–95). K also gave convincing evidence, in cross-examination, as to her wish to achieve “organic” contact arrangements between S and O, which proceeded in the manner of contact between family members generally, and her concern that natural contact could be constrained by specifying a higher minimum level of contact in the adoption plans.

8. I have also had regard to two affidavits of referees which support the application for O’s adoption.

A’s evidence in the applications

28. By her affidavit filed in the application, A recognises that the reasons given for the removal of S and O from her care were a concern that she failed properly to respond to their needs in a nurturing way. A’s evidence is that she did not agree with that concern and she believes she could have managed if she could have been left alone without people watching her. A also refers to and accepts that she has been diagnosed as suffering, inter alia, post-traumatic stress disorder and depression and refers to matters which have given rise to those matters. A has been diagnosed with a communication disorder known as Alexithymia which involves an inability to express or understand emotions, and there was also reference to other matters affecting her psychological condition in the course of the hearing, which I need not record in this judgment.

29. A refers to her wish that O be placed with S if she could not be left with A, and says she was not given an explanation as to why O was not placed with S straight away. She refers to her concern that, after O was placed with D and L, they were ultimately not able to care for her and she was placed in a separate placement. She refers to the needs of S and O to be raised together. She also records her concern as to difficulties which Barnados had in organising contact between S and O, when O had initially been placed by the Department with carers through a different organisation. She also refers to the considerable travel time which is involved for her in attending visits with S and O, where she catches a bus over a relatively long distance. A’s evidence is that she opposes the adoption, and the separation of S and O. I will return below to the fact that S and O have now been resident with different carers for a considerable period, although they have a substantial level of contact between them, and declining to make the adoption orders will not change that position.

30. A’s position is that, if S and O cannot be placed with her, for which she did not contend, then they should remain in the care of the Minister. She also expressed the view that she would like S and O placed together and a carer could be found who could raise them together. Dr Neveling’s evidence did not support that course, where it would require O’s and S’s removal from one or both of the proposed adopting parents with whom they had now bonded. A’s evidence indicates her concern that the minimum times proposed in the then adoption plan (which has since been amended) for contact between S and O were not sufficient for them to form a meaningful and significant relationship, and A expresses the view that they would need to spend at least two whole days each week at a minimum together to form a meaningful and significant relationship. Plainly, that is not practical where S and O remain with separate carers, and Dr Neveling’s evidence led in the application did not support that view.

31. A was cross-examined and indicated that her preference was that contact with the children be at least once a week (T117). She was asked about what took place during her contact with the children, and her evidence indicated her belief that, for example, it was the children’s choice whether to interact with her and that her having eye contact with them was not necessary, because it was not part of her culture (T118), and that it was the proposed adopting parents’ “job” to play with the children during contact visits, because they were the ones being “paid to do it” (T119). A also accepted that she had told Barnados that she did not really enjoy contact with the children and that she would not attend it if there was not a Court order in respect of it, and that the Court orders did not require her to “act like a parent during contact” (T120). I treat these views as indicative of the difficulties which A has in interacting with the children during contact arrangements, rather than as indicating a lack of commitment to the children.

Whether adoption orders should be made in respect of S and O

32. The Court has jurisdiction to make the adoption orders sought in respect of S and O in this application. Mr Harris, who appears for A, accepts that the formal requirements necessary to the making of an adoption order are satisfied, including that she has been provided with a copy of the mandatory written information, notice of the adoption application and notice of the intention to make an application for a consent dispense order. I am satisfied that the formal requirements for S’s adoption are satisfied and D and L have been assessed as fit and proper persons to adopt S pursuant to the Adoption Act. The formal requirements for O’s adoption are also satisfied and K has been assessed as a fit and proper person to adopt O pursuant to the Adoption Act.

33. Section 90(1) of the Adoption Act provides that the Court must not make an adoption order in relation to a child unless the Court is satisfied of various matters, relevantly:

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

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

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

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

(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."

Whether S’s and O’s adoption will promote their best interests

34. As I noted above, the first requirement under s 90 of the Adoption Act is that O’s best interests will be promoted by the adoption, and s 8 of the Adoption Act indicates that that matter is the paramount consideration. I must have regard, under s 8(2)(a)–(b) of the Adoption Act, to O’s wishes and, inter alia, to her age, maturity and understanding and her background and family relationships. S and O are both too young to express direct views on the proposed adoption. Mr Harris fairly acknowledges that S’s express preference for her surname to be that of D and L provides some indication of her wishes in respect of the adoption.

35. I also have regard, under s 8(2)(c) of the Adoption Act, to S’s and O’s physical, emotional and educational needs, including her sense of personal, family and cultural identity. I am satisfied that D and L have demonstrated an ability to meet S’s physical, emotional and educational needs and that K has demonstrated an ability to meet O’s physical, emotional and educational needs. D and L and K are of Anglo-Australian heritage. S’s and O’s paternal family are of Somali origin, although AJ has indicated that he does not know much about the Somali culture and has indicated a preference that S should be brought up in the Australian culture and tradition. A cultural care plan has been prepared and steps have been taken to expose S to her Somali heritage. K has also made efforts to locate resources as to Somali culture in order to introduce O to that culture and a cultural care plan has been prepared for O, which contemplates participation in Somali cultural activities. S’s and O’s maternal family are of Scottish Australian and Irish Australian descent and their maternal great grandfather has made information as to the family history available to them.

36. I must also have regard, under s 8(2)(e)–(f) of the Adoption Act, to any wishes expressed by either or both A and AJ and to their relationship with S and O. Mr Harris emphasises that A expresses a strong wish that the children not be adopted, and has repeatedly stated her desire for the children to be placed together. Mr Harris points out that A would prefer to have a higher level of contact with the children and would prefer it to be unsupervised, as she feels inhibited by supervision and observation by others. I address those matters further below.

37. I also have regard, under s 8(2)(g)–(i) of the Adoption Act, to D’s and L’s attitude to the responsibilities of parenthood, the nature of their relationship with S and their suitability and capacity to provide for S’s needs, and to the same issues in respect of K’s relationship with O. There is evidence that S has bonded with D and L and has a strong attachment to them, and they have provided for her needs. There is also evidence that O has bonded with K and is comfortable and happy in the home setting with a strong attachment to her. Mr Harris acknowledges, in written submissions, that all of the proposed adoptive parents have demonstrated ongoing commitment to care for the children and have embraced the responsibilities of parenthood in respect of the children.

38. Ms Dart, who appeared for the Secretary, accepted in oral submissions that it would have been preferable that O and S be raised in the same household but pointed out that that had not occurred, and the proposed adoptive parents were committed to facilitating a close and loving sibling relationship between O and S, although they would be raised in different households (T6). Mr Harris draws attention to the circumstances in which D and L were unable to continue to care for O, and I have addressed those matters above. Mr Harris submits that the end of O’s placement with D and L, where Barnados did not identify a further placement for both children, brought about the separation of S and O and prevented them from developing a full sibling relationship and that has not been in their best interests. In fairness to D and L, there appear to have been real difficulties in settling O on her placement with them, and they have amply demonstrated their continuing commitment to the care of S. In fairness to Barnados, there were substantial reasons not to seek to remove S from D’s and L’s care, where she had been settled with them, notwithstanding that they did not feel able to continue to care for O. It is not now realistically possible to undo the separation of S and O, where they have each been in successful placements for a considerable period, although it is possible to mitigate it by the existing and continuing arrangements for close contact between them. Mr Harris fairly acknowledges that Dr Neveling’s evidence is that each child has developed an attachment to their respective carers, and there would be significant adverse consequences of disturbing that attachment. Mr Harris fairly accepts that each carer has demonstrated capacity to provide for the needs of the children.

39. Section 8(2)(j) is directed to the need to protect the child from, inter alia, physical or psychological harm caused or that may be caused by being subjected to or exposed to abuse, ill treatment, violence or other behaviour or being present while a third person is exposed to any of those matters. Mr Harris accepts that those matters have limited relevance where A does not seek to have the children restored to her care and, I interpolate, there is no realistic prospect that they could not be placed in AJ’s care. I must also have regard, under s 8(2)(k) of the Adoption Act, to the alternatives to the making of an adoption order and its likely effect on S and O. I address those matters below.

40. I am satisfied, having regard to the evidence set out above in respect of S, that her adoption by D and L is in her best interests. I am also satisfied, having regard to the evidence set out above in respect of O, that her adoption by K is in her best interests.

Consents to S’s and O’s adoption

41. Section 90(1)(d) of the Adoption Act requires that consent to S’s and O’s adoption has been given by every person whose consent is required under the Adoption Act or that consent has been, or should be, dispensed with. Section 52 of the Adoption Act in turn provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age unless each parent of the child and any person who has parental responsibility for the child has given consent. Section 54 of the Adoption Act provides that consent is not required in a number of circumstances.

42. A and AJ have each been provided with the mandatory written information concerning the proposed adoption of S and O and neither A nor AJ has signed an instrument of consent pursuant to s 61 of the Adoption Act in respect of S or O. AJ has indicated that he is opposed to the proposed adoptions and the separation of the children and has expressed a wish that the children be returned to his care, and has also made various allegations in respect of the process by which the children were removed from his care. A was also provided with the mandatory written information in respect of adoption and her solicitor advised Barnados that she strongly opposes any application for adoption and the proposal as to the level of contact visits under the adoption plan.

43. As I noted above, the Secretary seeks orders, under s 67(1)(d) of the Adoption Act, that A’s and AJ’s consent to S’s and O’s adoption be dispensed with. That section provides that:

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

(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

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

44. In Adoption of KH [2015] NSWSC 274 at [62], Brereton J observed that the inclusion of s 67(1)(d) in the Adoption Act reflects a policy decision that once a child has, by judicial decision, been removed from his or her birth parents, and placed in permanent out-of-home care, the rule that legal parental relationships are not to be severed without the consent of the parents is displaced if the Court is satisfied that the interests of the child will be best served by adoption: see also Adoption of RCC and RZA [2015] NSWSC 813 at [11] and [17]; Re ASK and the Adoption Act 2000 [2017] NSWSC 521 at [83]–[84]. The Court must not make a consent dispense order unless it is satisfied that it would be in the child’s best interest to do so: s 67(2); Re K and the Adoption Act 2000 [2005] NSWSC 858; Re DYK and the Adoption Act 2000 [2005] NSWSC 1045. I also recognise that the making of a consent dispense order is a serious step: Re Infant, K and the Adoption of Children Act [1973] 1 NSWLR 311 at 321; Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007 at [52]–[54]. A consent dispense order is appropriately made where a child’s best interests will be promoted by the proposed adoption and, unless consent dispense orders are made, the adoption could not proceed: compare Adoption of NG (No 2) [2014] NSWSC 680 at [106] per Brereton J.

45. Mr Harris indicates, in submissions, that A does not take issue with the fact that the children have an established relationship with their carers, for the purposes of s 67 of the Adoption Act. The Court may make a consent dispense order under s 67(1)(d) of the Adoption Act where D and L are “authorised carers” for the purposes of the Act and there is evidence that D and L and S have established a stable relationship. I am satisfied that S’s adoption will promote her welfare for the purposes of s 67(1)(d)(ii) of the Act, and that the consent dispense order is in her best interests for the purposes of s 67(2) of the Act. The Court may also make a consent dispense order under s 67(1)(d) of the Adoption Act where K is an “authorised carer” for the purposes of the Act and there is evidence that K and O have established a stable relationship. I am also satisfied that O’s adoption will promote her welfare for the purposes of s 67(1)(d)(ii) of the Act, and that the consent dispense order is in her best interests for the purposes of s 67(2) of the Act.

Adoption plans in respect of S and O

46. As I noted above, s 90(1)(h) of the Adoption Act requires, 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.

47. D and L and Barnados on the one hand, and K and Barnados on the other, have agreed to amended maternal adoption plans that provide for four face-to-face visits for each of O and S with A each year, in addition to two visits by audio-communication such as FaceTime or Skype each year, coinciding with special occasions. Ms Dart submitted that the proposed amended maternal adoption plans were in the best interests of the children, and that contact arrangements needed to take account of the position until the children attained the age of 18 years, and that the difficulties in interaction between A and the children and the need to achieve a sustainable arrangement in the context of those difficulties (T143).

48. Mr Harris rightly submits that the Court may not make an adoption order unless it is satisfied that the arrangements proposed in the adoption plan are in the child’s best interests and are proper in the circumstances, by reason of s 90(2) of the Adoption Act. He also submits that the adoption plans also do not provide for a level of contact with A that would be in the children’s best interests. He acknowledges, in submissions, that the children have a limited relationship with A and that she has limited engagement with them during contact. As I noted above, A has also been diagnosed with disorders which restrict her interaction with the children. Dr Neveling also expresses the view that the limited interaction between A and the children reflects her diagnosed communication difficulties, and that there is little prospect that A could modify the manner in which she interacts with the children. Mr Harris acknowledges that the consequence of these matters is that the children understand who A is but have not developed a meaningful relationship with her. Mr Harris also acknowledges Dr Neveling’s view that contact between A and S and O should be subject to supervision, where A is unable to form a relationship with them and does not understand how to engage with them in a meaningful way.

49. I am satisfied that the level of contact between S and O on the one hand and A on the other is appropriate, given the difficulties of that contact, particularly for O, and the risk that an increased level of contact at this stage will undermine the children’s willingness to continue that contact in the future. It seems to me that that level of contact is at least sufficient to ensure that the children continue to recognise the significance of A’s relationship with them as their birth mother.

50. The adoption plans also contemplate a minimum of 12 contact sessions a year between S and O, of which several would be in conjunction with A’s contact with S and O. I have referred to K’s evidence as to these matters above. Ms Dart emphasised the significance of the proposed adopting parents’ commitment to contact between S and O, to a level beyond that set as the minimum in the proposed adoption plans. Mr Harris responds that the adoption plans do not meet S’s and O’s need for contact with each other at a frequency and duration that would allow them to develop a meaningful sibling relationship.

51. Each of D and L, and K, have confirmed their intent to continue contact at least at the level stated in the adoption plans, although their cross-examination makes clear that they are committed to a higher level of contact between the children, which is presently occurring, and exceeds the level of contact contemplated by the adoption plans. Mr Harris emphasises Dr Neveling’s evidence that a higher level of contact would be required in the long term to develop a meaningful sibling relationship between S and O, and her evidence that such a relationship would be in their best interests. Mr Harris also emphasises that the adoption plans specify a level of contact with A which is less than the level which Dr Neveling considers to be in their best interests, which is six contacts per year. Mr Harris submits that the Court cannot be satisfied that the adoption plans would be in S’s and O’s best interests or proper in the circumstances and therefore cannot approve the adoption. I do not accept this submission, since it seems to me that there is substantial force in the views expressed by the proposed adopting parents and Barnados that the adoption plans should specify a level of contact that is sustainable in practice, and as the children grow older and develop other commitments, and there is no reason not to accept the adopting parents’ evidence of their commitment to seek to achieve a higher level of contact than will be required by those plans. It seems to me that there is no realistic prospect that either D and L or K would not comply with the terms of the adoption plans, or act consistently with S’s and O’s best interests, which they recognise are served by a high level of continuing contact with each other, and by contact with their birth mother.

52. D, L and K respectively and Barnados have also agreed to a paternal adoption plan in respect of S which provides for contact between S and O respectively and AJ on a minimum of two occasions each year. I am satisfied that those adoption plans are appropriate, given the limited contact between S and O on the one hand and AJ on the other to date.

53. I am therefore satisfied that the specified matters have been taken into account in the making of the adoption plans and I am satisfied that the arrangements proposed in those plans are in S’s and O’s best interests respectively and are proper in the circumstances for the purposes of s 90(2) of the Adoption Act.

54. I now turn to the question of registration of the adoption plans. In submissions, the Secretary refers to s 46 of the Adoption Act, which defines the content of an “adoption plan”. The Secretary submits that the adoption plan satisfies that definition, where it has been signed by the principal officer of Barnados and the proposed adoptive parents, and the adoption plan can be registered without the birth parents signing it. The Court must be satisfied of the matters specified in s 50(3) of the Adoption Act in order to register the adoption plans and the Secretary submits that the Court may be satisfied of those matters. The Secretary points to the benefit that, where the plan is registered, the provisions contained within it have effect as though they were part of the adoption order under s 50(4) of the Adoption Act.

55. Section 46 of the Adoption Act defines an “adoption plan” as, relevantly, a plan agreed to by “two or more of the parties to the adoption of a child” that includes specified provisions. The reference to the “parties to the adoption” is not to the parties to the proceedings but to the parties to an adoption as defined in the Dictionary in the Adoption Act, including, relevantly, the proposed adopting parents and the Secretary, New South Wales Department of Family and Community Services. I am satisfied that the adoption plans in this matter have been signed by two parties to the adoption, being the Secretary and the proposed adopting parents and are therefore each an “adoption plan” for the purposes of the Adoption Act. The adoption plans can be registered without A and AJ signing them, where the Secretary seeks that registration for the purposes of s 50(1) of the Adoption Act and I am satisfied that the adoption plans meet the requirements of s 50(3) of the Adoption Act. The Court can register an adoption plan although it has dispensed with the consent of a birth parent to the adoption: Adoption of RCC and RZA above. On registering the adoption plans, the provisions contained in them will in turn have effect as if they were part of the order made by the Court under s 50(4) of the Adoption Act.

56. I recognise that the Court can make access or contact orders under the Family Law Act 1975 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), and the Court is not precluded from making such an order by s 69ZK(1) of the Family Law Act: Director-General, Department of Family and Community Services; Re TVK [2012] NSWSC 1629. I am not satisfied that it is necessary to make an access or contact order under the Family Law Act, where there is no evidence of any difficulty with existing access arrangements. If a difficulty with contact arrangements under the adoption plans arises in the future, then an application can be made to an appropriate court to address that difficulty in the circumstances that then exist.

Whether S’s and O’s adoption is preferable to other alternatives

57. Section 90(3) of the Adoption Act in turn provides that:

“[t]he 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.”

In Adoption of NG (No 2) above at [74], Brereton J observed that:

“[c]onsideration of whether adoption would promote the child’s best interests, and whether it is clearly preferable to any other order that could be made, involves identification of the likely effects of adoption, and of the various available alternatives, and examining their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is, or is not, clearly preferable to all the others.”

His Honour also noted (at [83]) that a court would not likely make an adoption order if there was a realistic prospect of a child being restored to one or both of his or her birth parents but that:

“if there is no real prospect of restoration, then the disadvantages of the permanent nature of an adoption order are minimal, and no greater than those of natural legal parenthood; and the advantages of permanency are considerable. Future contingencies in relation to contact can still be addressed and accommodated after an adoption order is made [Director-General, Department of Family and Community Services; Re TVK [above]].”

58. Ms Berry expresses the view that there are distinct advantages in adoption for S and that she is satisfied that adoption is preferred to any other course of action. Ms Berry observes that S has lived with D and L since August 2014 and has formed a stable relationship with them over that period, now in excess of 4 years, and identifies with them as her family. Ms Berry observes, and I accept, the permanence of an adoption order will create greater stability for S, and will provide a sense of belonging and permanence which could not be achieved in long term foster care or under an order for parental responsibility to be allocated to D and L. Ms Berry also expresses the view that there are distinct advantages in adoption for O and the permanence of an adoption order will create greater stability for her, by providing her with a sense of belonging and permanence which cannot be achieved in long term foster care or under an order for parental responsibility to be allocated to K. Ms Berry also refers to research indicating the broader advantages of adoption by comparison with long term care, to which I have had regard.

59. The Secretary recognises, in submissions, that the effect of an adoption order will be that S and O will grow up in separate households, although I interpolate that that is the present position and will remain the position even if an adoption order is not made, given the bond which now exists between S and O and their respective carers and the risks of interfering with that bond. The Secretary submits that S and O will be afforded the opportunity to further develop their sibling relationship through regular formal and informal contacts, and that each of the respective proposed adoptive parents have demonstrated a commitment and capacity to facilitate and promote the sibling relationship.

60. In submissions on behalf of A, Mr Harris accepts that restoration of S and O to her care is not possible, although she would like more contact with them than currently. As I noted above, Mr Harris points out that A does not support placement of the children with their grandfather, that no adoption application by O’s and S’s grandfather is before the Court, and he would not satisfy the formal requirements for the making of an adoption order in his favour in any event. Mr Harris submits that the children ought to have been placed together with the same carers, and it would have been in their best interests to be raised together. There is obvious force in the submission that it would have been preferable if S and O had been able to remain in care together. However, that did not occur in the circumstances to which I have referred above, and have now been raised by D and L and K respectively for a significant period, and have each bonded with their respective carers. The question that the Court must now address is not what might have been done, several years ago, but instead what should now be done, where S and O have been largely raised separately, although in contact with each other, and have bonded with their respective carers.

61. A’s primary position was that the children should now be raised in the same placement. Mr Harris recognises that this would require that one or other of the children, or both of them, be removed from their present placements. Dr Neveling’s evidence, in cross-examination, was that that course would be significantly adverse to the children. Mr Harris fairly accepted that that evidence had significantly undermined A’s case in that respect. Mr Harris alternatively submits that if (as I find) the children cannot now be placed together, it would be in their best interests to spend more time in each other’s company in order to allow them to develop a meaningful sibling relationship. As the evidence developed, all parties appear to accept that the present level of contact, occurring every two or three weeks between the children, and sometimes more often, is likely to be sufficient, and the parties focussed on the question of how such contact would best be promoted by the terms of the adoption plans. I have addressed that question above.

62. Mr Harris submitted that the order which would promote the children’s best interests is an order that they remain in the parental responsibility of the Minister, so that the Minister could ensure that sibling contact and contact with A continues at a level which is consistent with the children’s best interests. I am not satisfied that it is necessary for the Minister to continue to exercise parental responsibility to achieve that result, where the adoption plans, which will be registered and take effect as though they were part of the Court’s orders, can provide an appropriate level of contact between S and O and with A. I do not accept that the children’s best interests would be promoted by remaining in the Minister’s parental responsibility where there is no realistic prospect that they would be restored to A’s or AJ’s care, and given the benefits of permanence in their relationship with their respective carers.

63. I am satisfied that the permanence of an adoption order will create stability for each of S and O which would not be available by any other order that could be made by the Court. I am also satisfied that the making of the adoption order is clearly preferable in their respective best interests to any other action that could be taken by law in relation to their care, for the purposes of s 90(3) of the Adoption Act. For these reasons, I am satisfied of the relevant matters specified in s 90 of the Adoption Act in respect of each of S and O and I will make the orders sought in respect of each of their adoptions.

Approval of S’s and O’s names

64. Approval is sought, under s 101 of the Adoption Act, for the names by which S and O are to be known. The Court cannot give such approval without first considering any wishes expressed by S and O under s 101(2) of the Adoption Act. A and AJ have indicated their opposition to a change of S’s and O’s surname consequent upon adoption.

65. Mr Harris recognises that S has expressed a preference to use D and L’s surname, although he submits that has limited weight given her age and level of maturity. Both A and AJ have indicated that they want the children to retain AJ’s surname. While I recognise that the children have limited contact with AJ, it should be recognised that that is also A’s preference, in circumstances that A has had continuing contact with them. Mr Harris also submits that the continuance of that name, as the children’s surname or at least as a middle name, would record the family relationship between them. It seems to me that the advantages of sharing the adoptive parents’ surname, for each of S and O, outweigh the advantages of retaining the same surname, referable to their birth parents. However, it seems to me that much of the benefit of retaining the same surname can be achieved by retaining that name as a middle name. I will therefore approve a name for each of the children that includes an additional middle name, being AJ’s surname, and the surname of their respective adoptive parents as their surname.

66. I am satisfied that, on that basis, I should approve the names by which S and O will be known, incorporating AJ’s surname as an additional middle name and will do so, on making an adoption order.

Orders in respect of S and O

67. I will dispense with the birth parents’ consents to the adoption of S under s 67 of the Adoption Act and I will make an order for the adoption of S in favour of D and L and for the registration of the amended Maternal Adoption Plan. On the making of the adoption order, I will approve the names proposed for S, incorporating AJ’s surname as an additional middle name.

68. I will also dispense with the birth parents’ consents to the adoption of O under s 67 of the Adoption Act and I will make an order for the adoption of O in favour of K and for the registration of the amended Maternal Adoption Plan. On the making of the adoption order, I will approve the names proposed for O, also incorporating AJ’s surname as an additional middle name.

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Decision last updated: 12 February 2019