In the matter of S

[2018] NSWSC 1731

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of S [2018] NSWSC 1731
Hearing dates:	25 October 2018 (substantive hearing)
Decision date:	13 November 2018
Jurisdiction:	Equity - Adoptions List
Before:	Black J
Decision:	Order made dispensing with the consent of birth mother and birth father to the adoption. Order made for the adoption of S in favour of proposed adoptive parents and the name proposed for S is approved.
Catchwords:	FAMILY LAW AND CHILD WELFARE – adoption – where child has 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 – where there is no realistic possibility of restoration of the child to birth parent’s care – where adoption order is in the child’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, 45F, 67, 72, 88, 90, 91, 101 - Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	- - Adoption of GWL [2013] NSWSC 1527 - Adoption of KH [2015] NSWSC 274 - Adoption of NG (No 2) [2014] NSWSC 680 - Director General Dept of Human Services; Re M [2011] NSWSC 369 - Re Adoption of RCC and RZA [2015] NSWSC 813 - 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 - Secretary, New South Wales Dept of Family and Community Services (by his delegate Principal Officer, Adoptions, Barnardos Australia); Re JLR [2015] NSWSC 926
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services (Plaintiff) J (Defendant) (self-represented)
Representation:	Counsel: J Harris (Plaintiff)   Solicitors: Crown Solicitor (Plaintiff)
File Number(s):	A26/2018

Judgment

1. By Amended Summons for Adoption filed on 10 May 2018, the Plaintiff, the Secretary, New South Wales Department of Family and Community Services (“Secretary”), seeks an order for the adoption of a child, to whom I will refer as “S”, in favour of the proposed adopting parents, to whom I will refer as “M” and “N”, and an order approving the given names and surname of S. 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 “J”, and his birth father. The adoption application was opposed by J, who appeared in person.

2. The Secretary relies on an affidavit of a delegate, Ms Wilson, dated 20 February 2018. By a further affidavit dated 10 May 2018, Ms Wilson refers to the issue of a new birth certificate for S, which removes reference to A’s name and records his surname as J’s surname.

3. By way of background, S has lived with M and N continuously since 14 May 2012, having been placed with them when he was 12 days old, and now for a period of over six years. M and N are authorised carers who have had his care and responsibility under out-of-home care arrangements pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW). M and N also have two biological children, to whom I will refer as “R” and “F”, who reside with them and with S.

4. S’s birth certificate identifies the person then thought to be his birth father, to whom I will refer as “A”. Shortly after S’s birth, A had advised a case worker that he did not believe he was S’s father, and DNA paternity testing has now excluded the possibility that A is S’s biological father. There is evidence that J subsequently identified another person as potentially being S’s father, although there is a contest as to that evidence to which I refer below. In any event, that person has denied that he is S’s father, denied that he was ever in a sexual relationship with J and declined to participate in a DNA test. J has advised the Secretary that she does not know of anyone else who could be S’s father. S has two maternal half-siblings, to whom I will refer as “AR” and “C”, who presently reside with J.

5. There is evidence of matters that previously affected J’s capacity to provide a safe, secure and appropriate living environment for her children, including issues as to the level of care for her children, involvement in relationships involving domestic violence and issues as to J’s cognitive capacity. S was initially discharged, at the time of his birth, into J’s care but was shortly thereafter removed from her care by Family and Community Services, and assumed into the care of Family and Community Services and placed with M and N and has been continuously in their care since then. On 15 May 2012, the Children’s Court of New South Wales at Woy Woy (“Children’s Court”) made interim orders allocating parental responsibility to the Minister for Family and Community Services (“Minister”) until further order, in proceedings in which J and A were legally represented. On 23 July 2013, the Children’s Court made final orders allocating parental responsibility for S to the Minister until he attains the age of 18 years. Those orders made provision for continuing contact between S, J and S’s half-siblings. Contact between S, J and A continued from that time, although contact between S and A ceased in 2014, possibly reflecting the fact that it is now apparent that A is not S’s birth father. That contact has largely been positive.

6. S is in generally good overall health. However, S has been assessed as eligible for funding under the National Disability Insurance Scheme (“NDIS”) for assistance with needs including occupational therapy, speech therapy and psychological support, and S is currently receiving both occupational therapy and speech therapy. S has attended day care since at least 2013 and also has attended a weekly playgroup, and, at the time the application was filed, it was intended that he would commence primary school this year. There are some concerns with S’s behaviour, including his dealings with other children and prolonged tantrums, and I refer below to his diagnoses with autism spectrum disorder and attention-deficit hyperactivity disorder (“ADHD”). It appears that S recognises M and N as being his “dad” and “mum” but also refers to J as his “tummy mummy” and by her name. There is also evidence that S has a strong attachment to M and N and their biological children.

7. The Secretary also relies on an affidavit of Ms Howe dated 17 January 2018 which annexes a report under s 91 of the Adoption Act. Ms Howe addresses S’s progress since living with M and N, and notes that S was diagnosed with autism in July or August 2016. S has commenced counselling sessions with a psychologist, funded by the NDIS, and is also being provided with physiotherapy and occupational therapy funded by the NDIS. That report also addresses the plans that are being developed to manage S’s behaviour. That report also records the views expressed by J, in two interviews in July and December 2017, and indicates that she does not consent to the adoption, and that J then contemplated that S would be returned to her care. That letter also refers to J’s plans for S to be baptised into the Catholic faith, which are supported by M and N. That report also referred to discussions with S, appropriate to his age, in respect of the adoption, and Ms Howe indicated that S appeared to have an adequate understanding of the adoption for his age. That report also addressed M’s and N’s attitude towards parenting, their understanding of the adoption orders and their views on birth family contact and the adoption plan, and I have had regard to the evidence in that respect. Ms Howe expresses the view that the proposed adoption plan is in S’s best interests and is proper in the circumstances. That report also addressed the relationship between S on the one hand and M and N on the other, and noted the loving relationship and attachment which existed between them, and between S and F and S and R.

8. I have had regard to the affidavits of M and N in support of the application. M refers to S’s understanding of adoption and to his and N’s support for positive contact with S’s birth family. He refers to their plans for S’s education, including support for his autism and to their encouraging a range of interests for S. M indicates that he wished to adopt S once long term orders for his care and protection were made, when M and N felt it was important for S’s sense of security and stability. He expresses the view that adoption is in S’s best interest and the preferred order because they are the only family that S has known and are best placed to ensure a stable childhood. At the preliminary hearing, M referred to the particular arrangements which had been made at S’s local primary school to assist him in dealing with a classroom environment, and to the provision of a teacher’s aide to assist him, and to his access to his therapist during school hours. M also referred to the permanency which he hoped S would achieve through adoption, avoiding, for example, a change in case workers and support agencies which he has previously experienced. M also expressed his perception that S’s contact with his birth family was a positive matter, and confirmed that N and he were looking for permanency of the existing arrangement, and not seeking to affect J’s, AR’s and C’s relationship with S.

9. In her affidavit in support of the adoption, N gives evidence supporting the name proposed for S and referring to his understanding of adoption and to her plans for his education and to assist him in developing other interests. Her evidence is that she wishes to adopt S, to acknowledge his part in their family, and so that he may feel secure in their family. In the preliminary hearing, N’s evidence was that S has autism spectrum disorder, and is socially affected so that he does not readily pick up on social cues, does not have significant impulse control, and has sensory processing difficulties. Her evidence was also that S had strong language skills, and his difficulties were mainly social and behavioural in character. She referred to the potential for positive developments, where S is both affectionate and verbal in character, although recognising that there was no guarantee that he would develop better capacity for self-regulation or management of day-to-day living. She noted that she and M hoped that S would be able to continue in mainstream schooling, but were open to alternatives if that would be better for S. She confirmed that she was supportive of birth family contact and that she felt it was good for S and for J and his siblings to be spending time with each other. She emphasised that the adoption application was brought so that M and N could make decisions for S, implicitly without the involvement of the Minister, and not so as to change his relationship with J. N also led oral evidence at the hearing on 25 October 2018 that S had now been diagnosed with ADHD, although a decision had been made in consultation with S’s paediatrician to defer placing him on medication for ADHD, after weighing the potential benefits and disadvantages of that medication, and that she would reassess the position if S was not coping when he faced higher schooling or social demands (T28–29).

10. I have also had regard to two affidavits of referees which provide support for the application.

11. I also have had regard to J’s first undated affidavit in opposition to the application. J refers to the circumstances in which Family and Community Services removed S from her care, on which she expands in a second affidavit. She also refers to health difficulties which she suffered in 2014 and 2015 and says that she could not apply to have S returned to her care prior to moving to her current residence, as the property in which she previously lived was not suitable for a family to live. She says she was preparing to bring an application under s 90 of the Adoption Act when she was notified of the adoption application. J also refers to the fact that her older son was diagnosed with autism in 2011, prior to S’s diagnosis in 2016. She also refers to her close bond with S during visits, and attributes to S a question when he was “coming home” and a view that he did not want to be adopted and did not want to stay where he was, and claims that S was then showing signs of being scared and afraid. I am not persuaded by J’s evidence of that matter, which is not supported by any evidence of those who have had other involvement with S’s care. J also refers to a “scuffle” between J and “the female carer” which may or may not be a reference to N. Assuming, without deciding, that that occurred, I bear in mind the particular challenges which are involved in dealing with a child who is diagnosed with autism.

12. J also refers to a change in her circumstances since the removal of S from her care, where her present residence is more suitable for occupancy. Her evidence is that there have been no reports of domestic violence or neglect or abuse since that move, and her current partner has been supportive to her family and to her and she has access to support services through the NDIS. J also makes clear that she opposes the proposed adoption; does not believe the adoption is in S’s best interests; and contends that the preferable option is that S is returned to her care. She refers to the fact that AR and C currently live with her and are doing well and I will assume, without deciding, the correctness of that position. J also takes issue with a number of matters set out in Ms Howe’s affidavit, and I have had regard to J’s evidence of those matters. I note, for completeness, that J also takes issue with the view expressed as to impairments to her capacity.

13. By a second affidavit dated 11 October 2018, J denied that she had named a second person as a possible father of S, and her evidence was that she had mentioned him in another context. It is not necessary to determine any dispute as to that matter for the purposes of determining this application. She also referred to her daughter having witnessed two matters to which she referred in her affidavit, but her daughter did not give evidence in the proceedings.

14. At the preliminary hearing, J indicated that she and her other children wanted S to “come home to be a family”, so that she could care for him and provide for his education and support, and he would live with her, her eldest son and daughter, and attend the local primary school. She indicated that she had experience in dealing with autism, since her eldest son also had autism. She also indicated that she had given thought to the consequence for S of his being removed from the household where he had been living for some years, but did not know how S would react to that, and she recognised that S might “possibly” find that to be disturbing. Her evidence was that current contact arrangements were working “very well” and that she and her children get on “really well” with M and N. When I asked her to address the issue from S’s perspective, she had difficulty with doing so, and reiterated her view that she did not approve of the adoption and thought it would be stressful on her, her children and possibly on S.

15. In cross-examination at the hearing, J accepted that some of the matters recorded in documents on which the Secretary relied accurately reflected events that had occurred in 2012, when S was removed from her care, but did not accept the accuracy of all matters recorded in those documents (T33). I have addressed her affidavit evidence indicating her disagreement with aspects of those documents above. J also referred to the reasons she considered it was not necessary to have a further assessment of S at Gosford Hospital, after he had been assessed at Wyong Hospital, and to a difference of views between the two ambulance officers called on that day to which she had referred in her affidavit evidence (T33). It is ultimately not necessary to reach findings as to that matter, given the range of matters which contributed to the removal of S from J’s care, and the fact that the Children’s Court has previously reached findings which have resulted in S being placed in the Minister’s care which have not been set aside.

16. J was also cross-examined as to whether she had previously expressed her support for the adoption, which she denied (T36). I do not consider it necessary to determine whether J had previously taken a different position in that respect. In response to a question dealing with the relationship between S and his foster brother, R, J referred in cross-examination to an occasion on which S had been aggressive towards R. It seems to me likely that that incident reflected S’s autism and J accepted that aggression can be associated with that condition (T38). J accepted in cross-examination that the removal of S from M and N would “have an impact” on S but expressed the belief that, with support and help, S could be settled “back into home … with his normal family”. That characterisation has the difficulty that S has not lived with his birth family for any substantial period, or for several years. J also accepted in cross-examination that it would likely be “devastating” to S to remove him from the house where he had been living for the last six years and to separate him from R (T39–40). She pointed to the impact on her older daughter of her separation from S, although it seems to me that that impact is likely to be less severe where there is a 13 year age gap between S and J’s older daughter, and they have not lived in the same household for any substantial period. J also expressed, in cross-examination, her confidence that she could provide S with the same level of support for his autism as M and N were now providing (T44). It seems to me unlikely that J could do so, at least by reason of the disability for which she receives support from the NDIS, which she was not able to identify in the course of cross-examination (T47).

Whether an adoption order should be made

17. The Court has jurisdiction to make the adoption orders sought in respect of S, who is less than 18 years of age. I am satisfied that the formal requirements under the Adoption Act are satisfied. S was present in the State of New South Wales when the application for the adoption order was filed. M and N have lived together for a continuous period exceeding two years, having been married since January 2007, and have been assessed as suitable to adopt S under s 45F of the Adoption Act.

18. Under s 8 of the Adoption Act, the paramount consideration in making a decision about an adoption is the best interests of the child, both in childhood and in later life. The first requirement under s 90 of the Adoption Act is also that the child’s best interests will be promoted by the adoption. In Director General Dept of Human Services; Re M [2011] NSWSC 369 at [89]–[90], cited with approval by Bergin CJ in Eq in Secretary, New South Wales Dept of Family and Community Services (by his delegate Principal Officer, Adoptions, Barnardos Australia); Re JLR [2015] NSWSC 926 at [93], Hallen AsJ, as his Honour was then, observed (omitting citations) that:

“Of course, and unsurprisingly, there is no definition of either of the terms “the best interests” or “the paramount consideration” in the Act. However, judicial statements as to the meaning of the latter term abound. The thrust of Australian authority is that “paramount” means “overriding” … The word does not indicate exclusivity.

The test to determine the best interests of the child cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. There must be a judicial evaluation and balancing of many factors from which an overall conclusion is reached on a concept that is inherently imprecise… The approach to be adopted is for the Court to weigh, and balance, those factors, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have.”

19. The Court is required to have regard to specified matters in determining the best interests of the child under s 8(2) of the Adoption Act. First, I must have regard, under s 8(2)(a) of the Adoption Act, to S’s wishes concerning the proposed adoption, which are also a relevant matter under s 90(1)(b) of the Adoption Act. There is evidence that S has an age appropriate understanding of his family circumstances, but is too young to have a full understanding of the nature of those circumstances, or of adoption. Ms Howe expresses the opinion, in the s 91 report, that S is too young to have a full awareness of adoption. M and N have explained the adoption to S by saying that he would still be part of their family but would probably have the same last name and they would make decisions for him (N’s affidavit [27]–[33]; M’s affidavit [27]–[33]) and the s 91 report indicates they have also told S, accurately, that adoption would remove the need for consultation with caseworkers before the family, for example, goes on holiday. Mr Harris, who appears for the Secretary, submits, and I accept, that that S’s expressed wishes in relation to the adoption may be of lesser relevance, given the inevitable limits to his understanding of what adoption entails given his age.

20. J’s evidence is that she had a conversation with S at a contact visit on 12 May 2018, which was shortly after S’s 6th birthday, in which S told her that “I do not want to be adopted, I don’t want to stay where I am” and also asked her “when am I coming home?” Mr Harris submits that evidence would not be accepted, where it was apparently the first time such a discussion occurred, although the adoption has been openly discussed with S for some time; Ms Howe expressly discussed adoption with S in preparing the s 91 report but he made no such comment to her; and the reference to “coming home” is at odds with the fact that S has been living with M and N since he was 12 days old. I will assume, without deciding, the truth of J’s evidence as to her perception of what was said, while recognising the prospect that that perception has been influenced by J’s strong wish to have S placed in her care. I am unable to accept that S was there expressing the wish to live with J where he has not lived there for any meaningful period and would not likely refer to a place he has never lived as his “home”. It seems to me likely that J has misunderstood aspects of the conversation or interpreted them in accordance with her wishes or, possibly, S was responding to a suggestion that J had put to him. Alternatively, Mr Harris submits, and I accept, that, even if the conversation on 12 May 2018 occurred as set out in J’s affidavit, S’s wishes expressed in these circumstances and at his young age would have limited weight in determining his best interests. Ultimately, that judgment must be made by the Court on all the evidence before it.

21. I must have regard, under s 8(2)(b) of the Adoption Act, to S’s age, maturity and understanding and background and family relationships and any other characteristics of S that I think are relevant. As Mr Harris points out, S is 6 years old and is of Anglo/Australian background, and he is of ordinary maturity and understanding, although his capacity may be affected to some degree by his autism, to which I referred above. S knows of his relationship with his birth family and has regular contact with them. Mr Harris submits, and I accept, that he would have a limited understanding of the reasons why he is in M’s and N’s care, although they have assisted him to understand his background with life story work (N’s affidavit [28]; M’s affidavit [28]). Mr Harris also submits and I accept that, where S has lived with M and N since he was 12 days old, they therefore represent his “social” family. He has a close relationship with his foster brother, R, with whom he is described in the s 91 report as having a close bond, “being like twins”.

22. I must also have regard, under s 8(2)(c) of the Adoption Act, to S’s physical, emotional and educational needs, including his sense of personal, family and cultural identity. Mr Harris submits, and I accept, that S has a need for physical protection, affection and stability, and has educational needs commensurate with his abilities. He also submits, and I accept, that M and N have demonstrated a capacity provide for these needs since S was placed in their care. Mr Harris points out, and the evidence to which I have referred above indicates, that M and N have enrolled S at a local public school and have fostered his interests in music and swimming. They have recognised that, if S is not able to continue in a general purpose school, by reason of his autism (a matter to which I return below), they would move him to a school that specifically caters for autism. I find that M and N have acted appropriately in seeking assessment and support for S in respect of his educational needs, and these are challenging in his circumstances. Mr Harris submits, and I also accept, that M and N continue to support S with his identity needs by facilitating ongoing contact with his birth family and his life story work and other links with his birth family (N’s affidavit [27]–[33]; M’s affidavit [27]–[33]). In my view, M and N have demonstrated an ability to meet S’s physical, emotional and educational needs.

23. I must also have regard, under s 8(2)(d) of the Adoption Act, to any disability that S has. As Mr Harris points out, there is evidence that S has suffered from a number of health issues, although there has been improvement in a number of aspects of them. The most significant issues affecting S are likely to be issues as to his behaviour and his diagnosis in 2016 with autism spectrum disorder, reflected in his difficulty in sensory processing, anxiety, intolerance of new situations and problematic and aggressive behaviour towards his peers. S has received assistance with this issue since August 2017 through the NDIS, including a psychologist and fortnightly speech therapy and occupational therapy. There are also indications that, as I noted above, S may be affected by ADHD. Mr Harris submits, and I accept, that M and N have devoted very substantial and continuing efforts to addressing these challenges, beyond those required in parenting a child who did not face these challenges, and these matters demonstrate their commitment and ability to promote S’s best interests with respect to his disabilities. It also seems to me that J’s evidence and submissions did not recognise the extent of those challenges and her confidence that she could meet them because her older son had similar difficulties may well be misplaced.

S’s relationship with his birth parents and his siblings

24. I must also have regard, under s 8(2)(e)–(f) of the Adoption Act, to any wishes expressed by either or both of S’s birth parents and to S’s relationship with them and his siblings. At least since 2016, J has indicated that she does not want S to be adopted and she appears to oppose the adoption in this application. I address the question of her consent to the adoption below.

Other relevant matters

25. I must also have regard, under s 8(2)(g)–(i) of the Adoption Act, to M’s and N’s attitude to S and to the responsibilities of parenthood and their suitability and capacity to provide for S’s needs. Ms Wilson’s evidence is that S has developed a close and affectionate relationship with M and N, having been place with them since shortly after his birth. She observes that M and N have demonstrated a positive attitude to the responsibilities of parenthood, and have shown their commitment to supporting S’s wellbeing, education, health and personal identity. Ms Wilson also notes that S has formed a stable relationship with M and N over the last several years and has formed strong relationships with their birth children, R and F. She also points to M’s and N’s work to obtain medical and other assistance to assist S with his medical and developmental needs. Ms Howe also noted, in the s 91 report, M’s and N’s commitment to S’s care; their loving and caring relationships with him; and their ability to make parental decisions that are in his best interests.

26. Mr Harris submits, and I accept, that the positive attitude of M and N towards S and the responsibilities of parenthood is evidenced by their promoting contact between S and his birth family, both historically and by their commitment to do so in the future; their advocacy for S in obtaining support for his medical needs; and their decision to apply to adopt S. Mr Harris also submits, and I find on the basis of the evidence to which I have referred above, that S has a strong attachment to M and N. As I have noted above, M and N have also demonstrated their capacity to meet S’s needs, including his emotional and intellectual needs, by their care for him over a long period and the steps they have taken to promote his interests, where he has significant needs.

27. I must have regard, under s 8(2)(j) of the Adoption Act, to the need to protect S 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, ill-treatment, violence or other behaviour. I have referred to the circumstances which existed at the time that S was removed from J’s care above, although there is no reason to think that S would now be at risk of physical harm in J’s care, if it were otherwise feasible to restore him to her care. I have addressed the risk of psychological harm arising from fracturing the continuity of his living arrangements elsewhere in this judgment, but that harm would arise from matters other than those specified in this section. Mr Harris submits that there is no evidence that S has been at any physical risk at any time in M’s and N’s care. I recognise that J has referred to seeing bruises on S on two occasions. I am not persuaded that this evidence, in respect of a 6 year old child who is attending school and would be exposed to a playground and play equipment, and where there is evidence that his coordination is affected by his medical conditions, raises any rational basis for a finding that he is at risk in M’s and N’s care.

Alternatives to the making of an adoption order

28. 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 associated matters. Ms Wilson expresses the view that there are distinct advantages in adoption for S, and the permanence of an adoption will create stability for him, and provide him with a sense of belonging, which could not be achieved in long term foster care or under an order for parental responsibility to be allocated to the proposed adoptive parents.

29. Given the period in which S has been in M’s and N’s care, it seems to me that there is no realistic prospect that he would or should now be returned to J’s care. I also have regard to the observations of Brereton J in Adoption of NG (No 2) [2014] NSWSC 680 at [76] in respect of the benefits of adoption, where there is no realistic possibility of restoration of the child to his or her birth parents’ care, including certainty and permanence for the child and legal recognition of his or her relationship with his or her carers. I am satisfied that adoption is the appropriate course in the circumstances.

Consents to S’s adoption

30. Section 90(1)(d) of the Adoption Act requires that consent to S’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 provides that the Court cannot make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by each parent of the child and any person with parental responsibility for the child. Section 54 of the Adoption Act provides that consent is not required in a number of circumstances, including but not limited to where the Court has made a consent dispense order.

31. As I noted above, the Secretary seeks orders, under s 67(1)(d) of the Adoption Act, dispensing with J’s consent to the adoption. 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.”

32. 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 Re Adoption of RCCand 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 S’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].

33. I have referred above to, and had regard to, J’s opposition to the adoption and to her wish to have S placed in her care. It has been established that M and N are authorised carers of S and there is evidence that S has established a stable relationship with them, for the purposes of s 67(1)(d)(i) of the Adoption Act, having now been in their care for many years. In my view, an adoption order will promote S’s welfare as it will provide certainty for him, by making him, as a matter of law, part of M’s and N’s family and will allow him continuity in his care. I am satisfied that an order dispensing with J’s consent to the adoption should properly be made under s 67(1)(d) of the Adoption Act and would be in S’s best interests for the purposes of s 67(2) of the Adoption Act. A consent dispense order is appropriately made where S’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) above at [106] per Brereton J.

34. As I noted above, the Secretary has been unable to identify S’s birth father and seeks orders that the Court dispense with his consent to the adoption under ss 67(1)(a) and 67(1)(d) of the Adoption Act. The Court may dispense with the consent of a birth parent under s 67(1)(a) of the Adoption Act if it is satisfied that the birth parent cannot be identified after reasonable inquiry, and where it is satisfied that to do so would be in the child’s best interests: Re K and the Adoption Act 2000 above at [21]–[22]; Re DYK and the Adoption Act 2000 above at [16]. I am also satisfied that S has established a stable relationship with M and N and that adoption will promote his welfare and is in his best interests. For these reasons, I dispense with the consent of S’s birth father to the adoption under ss 67(1)(a) and s 67(1)(d) of the Adoption Act.

35. Section 72(1) of the Adoption Act provides that the Court must not make a consent dispense order unless notice of the application has been given to the person whose consent is sought to be dispensed with at least 14 days before the order is made. However, that provision does not apply where the person cannot be found following reasonable inquiry, by reason of s 72(2)(a) of the Adoption Act. In that situation, notice of the application to dispense with consent is not required: Adoption of GWL [2013] NSWSC 1527 at [29]. I am also satisfied that the requirement to serve notice of the application for a consent dispense order on S’s birth father does not apply, as he cannot be identified following reasonable inquiries.

36. Section 88 of the Adoption Act in turn provides that the Court may not make an adoption order unless at least 14 days’ notice of the application for the order (containing the particulars prescribed by the regulations) has been given to any person whose consent to the adoption of the child is required under the Adoption Act. There is evidence, by Mr Davies’ affidavit dated 6 March 2018, of service of the notice of application for the adoption order, the adoption plan and associated material upon J. I am satisfied that an order to dispense with notice of the application for adoption orders to S’s birth father should be made, under s 88(4) of the Adoption Act, given the attempts which have been made without success to identify him.

Adoption plan

37. Section 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.

38. M and N and the Secretary have agreed an adoption plan, which makes provision for contact between S, J, and S’s siblings and sets out a plan to maintain S’s cultural identity. Ms Wilson expresses the view, and I accept, that that adoption plan is proper in circumstances that it maintains the current frequency of contact that has occurred since S’s placement with M and N, and that the identity and cultural provisions of the adoption plan appropriately recognise that S is of the Roman Catholic faith and provides an opportunity for S to be exposed to that faith. I recognise that J has expressed a wish to have S baptised as a Roman Catholic, and M and N are supportive of him being baptised and are waiting for J to make arrangements for this. It appears that J has had difficulty in identifying a local Roman Catholic church which she considers suitable, but that matter can be left to take its course. The evidence indicates that J has not contributed to the development of the adoption plan, because of her opposition to the adoption.

39. J was cross-examined about the fact that, although she presently seeks greater contact with S than would be contemplated by the proposed adoption plan, that plan reflects her existing level of contact with S, which was agreed in order to reflect J’s and her daughter’s wishes as to the level of contact with S. J also gave evidence in cross-examination that she would prefer unsupervised contact with S. I am not persuaded that course is appropriate, where there are particular difficulties in dealing with a child with autism, and it is desirable that M or N be present during contact so that there is consistency in response to any difficulties which may arise.

40. Mr Harris submits, and I also accept, that the arrangements for contact between S and his birth family under the adoption plan are appropriate and proper in the circumstances, where they broadly reflect contact arrangements which have been in place since 2014 and provide for contact at a frequency agreed with J in 2017; they allow a degree of flexibility in timing of contact and promote contact close to special events and allow for future telephone and electronic communication; they are specified as a minimum level of contact; and they provide for continued contact between S and his adult siblings, if they in future do not live with J.

Whether adoption of S is preferable to other courses

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

“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.”

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

“Consideration 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.”

42. 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 [Re TVK [2012] NSWSC 1629].”

43. I have referred to Ms Wilson’s evidence above. Ms Howe expresses the view, in the s 91 report, that restoration of S to J is not considered to be a preferable option, given the time with which he has been placed with M and N, and arrangements other than adoption will not provide permanence or a legal relationship extending beyond 18 years of age. Ms Howe expresses the view that an adoption order is the most appropriate order where S has now lived with M, N and their family for over five years, and they have shown a commitment to his care and developed loving and caring relationships with him.

44. Mr Harris identifies several alternatives to an adoption order. First, the Court could delay a determination. Mr Harris submits, and I accept that there is no identifiable reason for so doing, particularly after a hearing of this application on its merits, and it would not be in S’s best interests to do so. A second possibility, for which J contends, is to restore S to her care. I have addressed aspects of that possibility above. I have also had regard to J’s oral submission reiterating her opposition to the adoption, and emphasising her belief that she can care for S notwithstanding his disabilities and behaviours, and that she has had that experience with her older son and that she would be able to make sure that J’s health, medical and educational needs are met (T71–72). I also have regard to J’s recognition, in oral submissions, that S would have difficulties if he was removed from M and N, and her contention that she could handle his behaviour and his changes if he was placed with her (T72). I am not persuaded that J has the capacity to address S’s complex needs, despite her confidence in her ability to do so, and it seems to me that she does not adequately recognise and has not adequately addressed the negative impact on S of removing him from the home in which he has lived since he was 12 days old, from M’s and N’s care and from his foster siblings, and from his current school, which may well be exacerbated by his autism. It seems to me that the long period in which S has been in M’s and N’s care, and the substantial risks of terminating that care, exclude this possibility.

45. Mr Harris notes that a third possibility is that no order is made and S would remain under the parental responsibility of the Minister. J fairly accepted, in cross-examination, that if S was not going to be returned to her, then she would be content for M and N to have decision-making responsibility for S in the future, rather than expressing any preference that the Minister continue to do so, and that leaving S in foster care would not be a good outcome for him (T61–62). It seems to me that this option, which has involved and will likely continue to involve at least change in case workers, would not promote stability in S’s care and it would not give legal effect to S’s position as a member of M’s and N’s family. Fourth, the Court could make an order for parental responsibility in favour of M and N or the Children’s Court could, upon further application by (or with the consent of) the Secretary, make a guardianship order. Mr Harris submits, and I accept, that neither option is preferred because they offer less permanency, security and stability for S than an adoption order, and such an order only applies until S reaches the age of 18 years.

46. I am satisfied that there are distinct advantages in adoption for S and adoption is preferred to any other course of action. The permanence of an adoption order will create stability for S 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 the best interests of S to any other action that could be taken by law in relation to his 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 S and I will make the orders sought in respect of his adoption.

Approval of S’s name

47. Approval is sought, under s 101 of the Adoption Act, for the name by which S is to be known. The Court cannot give such an approval without first considering any wishes expressed by S under s 101(2) of the Adoption Act.

48. The proposed name for S will not include A’s surname where his paternity has been excluded, will add J’s surname as S’s second middle name, and will add the proposed adoptive family’s surname as S’s surname. Ms Wilson expresses the view, and I accept, that the proposed name change is in S’s best interest, as it retains a connection to S’s birth family by retaining his given name and incorporating J’s surname as an additional middle name, while also acknowledging his place within the proposed adoptive family by their surname. J’s affidavit refers to her opposition to having the proposed adopting parents’ surname added to S’s name. I am satisfied that I should approve the name by which S will be known, and I will do so on making an adoption order.

Orders

49. I therefore dispense with the consent of S’s birth mother, J, to the adoption under s 67(1)(d) of the Adoption Act. I also dispense with the consent of S’s birth father to the adoption under ss 67(1)(a) and 67(1)(d) of the Adoption Act. I make an order for the adoption of S in favour of M and N and, on the making of the adoption order, I will approve the name proposed for S.

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Decision last updated: 16 November 2018