In the matter of S

[2017] NSWSC 1198

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of S [2017] NSWSC 1198
Hearing dates:	10 August 2017 (last submissions 31 August 2017)
Decision date:	07 September 2017
Jurisdiction:	Equity - Adoptions List
Before:	Black J
Decision:	The Court makes orders dispensing with the consent of the child’s birth parents and for the adoption of the child and approving the name proposed for him.
Catchwords:	FAMILY LAW AND CHILD WELFARE — Adoption – whether child of Aboriginal descent – whether consent of child’s birth parents should be dispensed with – whether order for adoption of child should be made – whether proposed name for child should be approved.
Legislation Cited:	- Aboriginal Land Rights Act 1983 (NSW), s 4(1) - Adoption Act 2000 (NSW), ss 4, 8, 33–36, 43, 46, 50, 52, 54, 67, 90–91, 101 - Children and Young Persons (Care and protection) Act 1998 (NSW) - Family Law Act 1975 (Cth), s 69ZK(1) - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Cases Cited:	- Adoption of KH [2015] NSWSC 274 - Adoption of NG [2014] NSWSC 680 - Director General Dept of Human Services; Re M [2011] NSWSC 369 - Director-General, Department of Family and Community Services; Re TVK [2012] NSWSC 1629 - Gibbs v Capewell (1995) 54 FCR 503 - 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 - Re Simon [2006] NSWSC 1410; (2006) 68 NSWLR 306 - 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 - Shaw v Wolf [1998] FCA 389; (1998) 83 FCR 113
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services (Plaintiff)
Representation:	Counsel: M. Barnett (Plaintiff) P. Braine (Birth father) “K” (Birth mother – self-represented)   Solicitors: Crown Solicitor’s Office (Plaintiff) Willoughby Law (Birth father)
File Number(s):	A57 of 2016

Judgment

1. By Summons for Adoption filed on 13 May 2016, the Plaintiff, the Secretary, New South Wales Department of Family and Community Services (“Community Services”) applies for an order for the adoption of a child, to whom I will refer as “S”, in favour of the proposed adopting patents, to whom I will refer as “N” and “B”. The Secretary also seeks orders under s 67(1)(d) of the Adoption Act 2000 (NSW) dispensing with the consent of the child’s birth father, to whom I will refer as “D” and the child’s birth mother, to whom I will refer as “K”, and an order approving the name to be given to S which would incorporate the proposed adopting parents’ surname.

2. The proposed adoption was listed for hearing, as a contested hearing, on 30 and 31 May 2017, but could not proceed on those days by reason of the illness of the birth parents. It was then listed for hearing and proceeded on 10 August 2017. K, who was self represented, from time to time withdrew from the court room, and was not present for some time before lunch, and did not return after lunchtime. I was informed by Mr Braine of counsel, who appears for D, that K was distressed and upset, and did not feel able to come into the court because of that position, although K did not apply for an adjournment of the hearing consequential upon that matter. I addressed that question of my own motion and observed, in my ex tempore judgment as to that question that:

“I recognise that an application of this kind may well be distressing and upsetting to birth parents, and is indeed, plainly, a stressful experience for all involved in it. I recognise also that [K] may be more likely to be distressed and upset, because it is apparent from submissions which she has lodged with the Court (MFI 2) that she feels extremely strongly about the application.

I have considered whether the Court should, of its own motion, adjourn the matter further, so as to assist [K] to attend. It seems to me that course is ultimately pointless, and not one that the Court could or should adopt, because there is no reason to think that the matter, if adjourned to a future occasion, would be any less distressing or upsetting for [K] than it is today. The difficulty with an adjournment is that, if that course were taken, it is very likely that, on the next occasion, what has occurred today would occur again.

In those circumstances, it seems to me that there would be an extended and likely repeated delay in completing the matter, which would have significant risks attached to it for [S], whose welfare must be the Court's primary concern in this matter. He would be left in a position of uncertainty potentially continuing over a significant period. That course would also plainly extend the stress of the matter, both for [K] herself, but also for all others who are affected by it, including [D] and the proposed adoptive parents.

In those circumstances, it seems to me that it would not be consistent with the interests of justice, or with [S]'s welfare, to take any step further to adjourn the matter.”

Background

3. The application is supported by an affidavit of a delegate of the Secretary of Family and Community Services, Ms Wendy Wilson, who is Manager, Client Services, at the Central Coast Child and Family District Unit of the Department of Family and Community Services.

4. By way of background, S was born in 2008. The birth parents registered on his birth certificate are K and D and S has six full siblings, born between 1997 and 2006, all of whom were assumed into care in December 2006. While a question arose at one point as to whether D was S’s birth father, I proceed on that basis where he is named on the birth certificate as S’s father, he acknowledges paternity of S and Community Services accepts that position.

5. There is evidence of issues as to the parenting capacity of K and D, which initially came to the attention of the Queensland Department of Families from 2002 and subsequently to the attention of Community Services during 2006. One of K’s and D’s children was initially assumed into care on 4 December 2006 following an incident involving her and K. Final orders were made on 7 June 2007 allocating parental responsibility for S’s six siblings to the Minister for Family and Community Services until they attained the age of 18 years. D and K participated in, and were represented in, proceedings in which orders were also made that S be placed in the care of the Minister. D was subsequently convicted of neglect of a child or person in his care in November 2007 and K was convicted of assault occasioning actual bodily harm and neglect of a child or young person in her care in December 2007. An application by K to have the orders placing those children in the care of the Minister rescinded was dismissed in May 2008.

6. The Children’s Court at Woy Woy made final orders in September 2009 allocating parental responsibility for S to the Minister until he attains 18 years of age. Several of the children of D and K were placed with family members, but S was placed in N’s care where a family placement was not reasonably available. S has lived continuously with N since he was four days old, for over 8½ years, and has lived with N and B for several years, since B, who was then in a relationship with N, moved into the family home. N and B are authorised carers who have had the care and responsibility for S under out-of-home arrangements under the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”). N also has one other adopted child, to whom I will refer as “L”, and B has two children from a previous marriage, who spend time both with their mother and with N, B, L and S.

7. Contact has occurred between S and the birth parents, D and K, in the period from 2009, although difficulties arose in respect of contact arrangements on at least one occasion in March 2013 and the birth parents have resisted contact with N and B. It appears that contact visits have generally been positive, so far as S is concerned, although there is evidence of D’s and particularly K’s continuing hostility to N and B. There have, not surprisingly, been occasions on which visits have been cancelled due to illness of D or K and, on at least one occasion, S. There has also been a degree of contact between S and his birth siblings.

8. S is of Anglo-Saxon heritage and the proposed adoptive parents share a similar cultural background. S has a close relationship with L and with B’s two sons. S had health difficulties when young, including a medical condition affecting his aortic valve, which appears to have resolved. S has also had a number of other health issues, which are perhaps not uncommon, including bronchiolitis and ear infections, which were treated at one point by the insertion of grommets. S attended day care and pre-school prior to kindergarten and commenced attending kindergarten in 2015 and progressed into year 1 in 2016.

9. By an updating affidavit dated 25 November 2016 Ms Wilson updated the position in respect of parental contact in the second half of 2016. She also referred to the fact that S has been diagnosed with attention deficit hyperactivity disorder (“ADHD”) and is now on medication to address that condition. By a further updating affidavit dated 21 April 2017, Ms Wilson updated the position and noted that S was currently in Year 2 and had had further contact with D and K and that S has confirmed his continued enjoyment of contact with D and K and his belief that adoption would add to his family, leaving him with two mums and dads and several brothers and sisters.

10. I have also had regard to a confidential report prepared under s 91 of the Adoption Act by Ms Howe, an adoption assessor, based on interviews with N and B, K and D, S and other interested persons.

11. The adoption application is supported by an affidavit of N dated 4 May 2016, which refers to S’s understanding of his life story and of adoption, and to N’s commitment to continue to assist S to understand adoption; to N’s hopes for S’s education; and to the fact that N, B, S and L attend church weekly as a family, although N recognises that S will make his own decision regarding religion when he is older. N also recognises that it is in S’s best interests to maintain contact with K and D to help him with his sense of identity, although she also, expresses concern as to the negative impact of things that K and D have said and done at past contacts. N recognises, however, fairly the difficulty which K and D have that S is being raised by another family. N expresses her belief that it is important for children to have “forever” homes by the adoption process. I have also had regard to B’s affidavit in support of the adoption which also addresses steps which he is taking to promote S’s understanding of adoption, his hopes for S’s education and S’s exposure to religion, and his wish that he, N, S and L and his two children can be a family unit.

12. I have had regard to two affidavits of referees which provide strong support for the adoption application.

D’s and K’s evidence and submissions

13. D has sworn an affidavit dated 21 December 2016 in opposition to the adoption application which indicates that he has concerns that S does not really understand that D and K are his birth parents and indicates his opposition to a change of S’s name which I will address below. D refers to an adverse outcome of an adoption in an earlier generation of his family. While I understand why D would not be supportive of adoption, given his family history, I do not consider that that adverse experience provides any basis for pessimism as to the outcome of adoptions generally or this adoption in particular. D also addresses contact arrangements with S, which I will address below. D’s affidavit also expresses a concern that, if S is adopted, N would be able to take S to America permanently, presumably because she is an American citizen, and D and K may never see him again. I have regard to that possibility, but the evidence does not suggest that either B or N, who have strong links with Australia, including the presence of B’s two other children in Australia, is contemplating that possibility.

14. K put a statement before the Court (MFI 2), which, had she remained at the hearing and been available for cross-examination could have been led as evidence in the hearing. In the event, I have regard to that document as a submission. Having regard to its length, I do not summarise it in detail, although I will refer to several significant matters raised in it. K referred to the lifestyle that D and K now live, to the many courses that K has now completed, to her credit, to seek to address the difficulties which she has previously had, her anticipation that her other children will willingly return to her care, once they reach 18 years of age, and to the suggested opposition of other members of her family to S’s opposition. K also made submissions in explanation of the behaviours which had led to the decision of the Children’s Court that her children should be placed in the care of the Minister. I have had regard to these submissions, but recognise that the Children’s Court made its decision on the basis of admissible evidence which is not led before me in respect of these matters. K also raises a claim that S is or may be an Aboriginal child which I will address below.

15. K’s statement expressed concern that S had been denied the right to be baptised in the protestant faith, being the Methodist Church of England. On the other hand, Mr Braine submits that N and B have not respected the wish of D and K to have S brought up in the Roman Catholic faith, although there was no reference in D’s affidavit to that matter. I would have considered that this matter had limited weight, when balanced against other issues affecting S’s welfare, but its weight is further reduced where it appears that D and K have differing views as to the denomination in which S should be brought up, which could not both be accommodated in any event. K also fairly qualifies that concern by recognising that her family respects a mix of the Methodist, Church of England, Indigenous Dreaming, Jewish and Catholic and Islamic faiths on a daily basis, which suggests a tolerant approach which can and should also be extended to the faith to which N and B have introduced S.

16. K also refers in submissions to her understandable distress as to a very significant health difficulty that S suffered at two weeks of age, when he had been placed in N’s care, although that submission is put in strident and inappropriate terms, and advances serious allegations as to the level of care by N for S without a proper evidentiary basis. K also makes submissions, again not supported by admissible evidence, as to S’s diet. K also makes allegations of abuse of S in these submissions, also not supported by evidence, and Community Services properly identifies the inquiries which have been made in respect of earlier allegations of that character made by K. I do not consider that the evidentiary basis of those allegations is established or that they are reason not to approve the adoption.

17. K also makes submissions, which again should be distinguished from evidence, as to a lack of personal hygiene on the part of S and that N and B are not capable of providing adequate instructions or care to S. Putting aside the lack of evidentiary support for those submissions, I think it highly unlikely that Community Services and an independent adoptions assessor would have ignored a readily observable matter of that character for an extended period. That submission is then extended to the extraordinary submission that, where N and B have a cat in their household and K and D are allergic to cats, N has introduced cat hair from that cat to S’s clothing so as to downgrade K’s and D’s quality time with S, and the further submission that:

“the cat has been rubbed all over [S] just before visitation by [N] out of spite”.

I do not think that I can or should say anything more than that I do not accept that submission. I need not lengthen these reasons by reciting the range of other allegations also advanced, again without evidentiary basis, in K’s submissions. I have had regard to, but I am not persuaded by, those matters in determining whether an adoption order should be made.

18. Both D and K also raise allegations that S had been told that his birth parents had died or were just his “friends”. Those allegations are plainly inconsistent with the repeated reference by S to his having “two mums and two dads” in communications with staff of Community Services and with the adoption assessor. That is, of course, a well understood and attractive way of assisting a younger child to understand the process of adoption.

19. D and K also advance submissions as to the adverse effect of adoption upon children. While I will assume that is a view genuinely held by them, based on adverse experiences of adoption in their family, I do not consider that the evidence supports any wider inference that adoption generally has such adverse effects. Plainly, the legislature does not share their view, where it has authorised the Court to approve adoption in the circumstances set out in the Adoption Act.

Whether S is of Aboriginal descent

20. Sections 33–36 of the Adoption Act contain important protective provisions that apply in respect of children of Aboriginal descent. The question whether S was such a child arose at this hearing, since K’s statement (which must be treated as a submission only where K did not make herself available to give evidence) referred to a question by a family member whether it was “against the law to force an adoption on children with Aboriginal heritage” and also observed that S was of Aboriginal heritage, and that heritage would be lost to him if the adoption was to take place, leaving him as a member of the stolen generation. K also referred in that document to the suggestion that S’s great great great grandmother on the maternal father’s side of the family was an indigenous person from Western Australia, who met K’s great great grandfather on a property and married him. K indicated that that was all the information available to her, and that she and D were still conducting research into the great great great grandmother’s original identity, history and indigenous cultural background and had some culture and tradition that had been orally passed down through the generations which was sacred knowledge and could not be written down on paper as requested by Community Services or passed onto people not from her tribe, presumably including the Court. She also refers to her attempts to pass on Aboriginal words to S at visitations, which she submits were queried by the supervisor of those visitations.

21. I will assume, without deciding that, if K’s statement could have been admitted as evidence, her statements as to her great great great grandmother, to the extent that they must have been based on communications by others, the content of which was not disclosed, may have been admissible under an exception to the hearsay rule under s 73(1)(d) of the Evidence Act referable to family relationships. If the statement could have been admitted as evidence, there may also have been real questions as to the weight to be given to it. While I accept that there is no evidence that K was specifically asked by Community Services whether S was of Aboriginal descent, her statement indicates that, on her account, another family member had raised the question of the unlawfulness of adoption of an Aboriginal child at an earlier date and she and D were conducting research into S’s indigenous heritage arising from her great great great grandmother. However, D, who has been legally represented for a considerable time, has never raised any suggestion in these proceedings that S is of Aboriginal descent, notwithstanding that he has opposed the adoption on several other grounds. It seems to me inconceivable that, if a family member had raised the question whether S’s adoption was unlawful because he was Aboriginal (as K says) and both D and K were investigating S’s indigenous heritage, then D would not have raised this matter with his legal representatives, and it would not have been raised with the Court at an earlier point. I approach K’s submission as to that matter with caution for that reason.

20. After the hearing, and while judgment was reserved, the Crown Solicitor advised my Associate (by email dated 17 August 2017) that it had received correspondence from D’s solicitor raising concerns regarding the adequacy of investigations by Community Services into K’s claim of Aboriginality and requesting a deferral of judgment for 14 days to permit Community Services to conduct a further investigation into that claim. By email dated 17 August 2017, sent at my request, my Associate advised the parties that I would grant leave to the parties to serve submissions and any evidence on which they seek to rely as to K’s claim to Aboriginality by 4pm on 31 August 2017 and that I would defer my judgment accordingly. Neither D nor K led such evidence, where D’s evidence at the hearing had not identified any claim for Aboriginality by K, and K had made submissions, but not made herself available to give evidence as I noted above. The Crown Solicitor relied on a further affidavit of Ms Debra Hogan dated 30 August 2017.

21. Ms Hogan referred to her requests that the case worker with day-to-day management responsibility for S undertake a further review of the casework and Children’s Court files maintained by Community Services and also contact K to seek information as to the name of her Aboriginal grandparent, which it appears that D’s solicitor had advised was known to K. Ms Hogan’s affidavit also annexed an email from N which referred to conversations with S’s extended family, and stated that K’s brother-in-law had said that he was not aware of any Aboriginal heritage and conveyed support for the adoption, and that D’s sister had also not been able to identify any Aboriginal heritage. I am conscious that this evidence is in the nature of second-hand hearsay, so far as Ms Hogan leads evidence of what N has advised her of N’s conversations with others, and I give limited weight to that evidence in that form. However, Ms Hogan also refers, in first hand hearsay evidence, to her conversation with K’s brother-in-law who advised her that there was no Aboriginality in K’s history; that K’s mother was born in England and there was no Aboriginality in the maternal side of the family; that K’s father was born in Sydney, and there was nothing that would indicate an Aboriginal heritage in the paternal family tree; and that K had never provided any information to him or her sister, who have had the care of two of S’s sisters for over 10 years, suggesting that S’s sisters are of Aboriginal descent.

22. Ms Hogan also gave evidence that Community Services attempted to contact K to obtain the name of her (great great great) grandparent who was claimed to be Aboriginal, where D’s solicitor had suggested she knew that name, and that D had answered the telephone and advised that K did not know the name of any Aboriginal (great great great) grandparent, that K did not wish to speak to Community Services and that D and K had provided all information they had to the Court. Ms Hogan also records a review undertaken of Community Services’ files concerning S which contain no reference to S being of Aboriginal descent.

23. I am satisfied that these matters do not support K’s claim that S is of Aboriginal heritage. The Crown Solicitor fairly draws attention to a document apparently sent by D’s solicitor to the Crown Solicitor’s Office that is said to include a confirmation of Aboriginality for D and K purportedly issued by Centrelink. Neither D nor K led evidence of that document or of any factual basis for such a confirmation and I give it little weight. The Crown Solicitor submits, rightly, that D and K have not filed any evidence that would allow a finding that either the maternal or paternal families are descended from an Aboriginal race in Australia, although I am conscious that that partly reflects the difficulty that K did not make herself available to give evidence. The Crown Solicitor also emphasises, in submissions, the fact that no evidence has been presented by D or K to support any finding that they are accepted by any Aboriginal community as Aboriginal persons.

24. The Crown Solicitor draws attention to the definition of “Aboriginal child” in s 4(1) of the Adoption Act as “a child descended from an Aboriginal”, including a child who is determined to be Aboriginal under s 4(2) of the Adoption Act, and to the definition of “Aboriginal” in the Adoption Act as having the same meaning as “Aboriginal person” has in s 4(1) of the Aboriginal Land Rights Act 1983 (NSW). That term is there defined as requiring, not only descent from an Aboriginal person, but also identification as an Aboriginal person and acceptance as such within the Aboriginal community. Even if K’s submission could be treated as evidence, rather than only as a submission, it goes no further than to raise the possibility that S is descended from an Aboriginal person and the possibility of self-identification by K as an Aboriginal person and does not establish any acceptance of K as such by the Aboriginal community, or even any contact between K and the Aboriginal community seeking such acceptance.

25. The Crown Solicitor also refers to the observations of Drummond J in Gibbs v Capewell (1995) 54 FCR 503, approved in Shaw v Wolf [1998] FCA 389; (1998) 83 FCR 113 at [118], that descent is necessary but not sufficient for a person to be an “Aboriginal person”; that a small degree of Aboriginal descent coupled with genuine self-identification or community recognition may be sufficient for eligibility to be an Aboriginal person; a substantial degree of descent, and general community recognition of Aboriginality that usually accompanies it, may also be sufficient of itself for eligibility as an Aboriginal person; and that communal recognition as an Aboriginal person may be the best evidence of Aboriginal descent. Those observations emphasise the significance of the absence, in this matter, of any evidence of recognition of K as an Aboriginal person by any Aboriginal community. The Crown Solicitor also referred to Re Simon [2006] NSWSC 1410; (2006) 68 NSWLR 306 where Campbell J observed, as is apparent from the language of s 4(1) of the Aboriginal Land Rights Act, that each of the three elements of the definition of “Aboriginal person” in that section must be satisfied before a person is eligible as an Aboriginal person under that Act.

26. It seems to me that, taken at its highest, the matters raised in K’s submission would not establish that K or S are Aboriginal persons for the purposes of s 4(1) of the Aboriginal Land Rights Act or that K is an Aboriginal for the purposes of the Adoption Act or that S is an Aboriginal child for the purposes of the Adoption Act. In these circumstances, the obligations attaching under ss 33–36 of the Adoption Act, where a child is an Aboriginal child, do not arise. I recognise that the Adoption Act places specific limitations on the adoption of a child of Aboriginal descent for good reason. I am satisfied that the evidence does not raise any seriously arguable case that S is an Aboriginal child or that those limitations are applicable.

Whether an adoption order should be made in respect of S

29. 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 will be satisfied. S was present in the State of New South Wales when the application for the adoption order was filed. N and B have lived together for a continuous period substantially exceeding two years. They have been assessed as suitable to adopt S under the Adoption Act and have signed an application to do so under s 43 of the Adoption Act.

30. 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.”

31. There is evidence that S has lived with N and B since shortly after his birth and demonstrates a strong attachment to them. There is also evidence that S has been embraced into their extended family.

32. I must have regard, under s 8(2)(b) of the Adoption Act, to S’s wishes and inter alia to his age, maturity and understanding and background and family relationships and any other characteristics of S that I think are relevant. S’s wishes concerning the proposed adoption are also a relevant matter under s 90(1)(b) of the Adoption Act. There is evidence that Community Services has discussed the proposed adoption with S and he has been provided with a booklet prepared for children which discusses the adoption process. It is apparent that S at least has an understanding that the effect of adoption would be that he would remain permanently with N and B and would have the same surname as B’s birth children. There is evidence that S wishes to be adopted and feels that adoption would add to his family, leaving him with two mums and dads and several brothers and sisters. Several of S’s birth siblings and his extended family have expressed support for S’s adoption by B and N.

33. I must also have regard, under s 8(2)(c)–(d) of the Adoption Act, to S’s physical, emotional and educational needs, including his sense of personal, family and cultural identity. I recognise that S is under medication to assist with his ADHD and I am satisfied that N and B are meeting S’s needs and have attended to various health challenges which he has faced.

34. 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 S’s siblings. I recognise that both D and K oppose the adoption and hope that S, and indeed their other birth children, will return to their care. I also recognise that K has expressed strongly critical views of N as an appropriate carer for S. I note that contact between D and K on the one hand and S on the other will continue after the adoption, under supervision by Wesley Dalmar which will be funded by Community Services. While D and K have indicated their wish for contact without supervision, Dr Barnett, who appears for the Secretary, submits, and I accept, that K’s expressed hostility to N is such that unsupervised access in the immediate future would not be appropriate.

35. I must also have regard, under s 8(2)(g)–(i) of the Adoption Act, to the attitude of N and B to S and to the responsibilities of parenthood and their suitability and capacity to provide for S’s needs. I accept Dr Barnett’s submission that N and B have demonstrated a positive and caring attitude to S and have been shown to be suitable parents for him, and that he has a close relationship with them and other members of the proposed adoptive family. I also accept that they have been supportive of S’s education, extra-curricular activities and medical needs. I am satisfied of N’s and B’s suitability and capacity to provide for S’s needs.

36. 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. I must there have regard to the convictions of D and K for neglect and assault occasioning actual bodily harm respectively. The stridency of K’s opposition to the adoption and her willingness to make extreme allegations against N are also matters for concern, so far as S’s psychological welfare in D’s and K’s care is concerned. It seems to me that there is no significant prospect of S being returned to the care of D and K, given their history, their approach in this application, and the fact that S has lived with N since he was four days old and with N and B for a substantial period. In these circumstances, I also accept Dr Barnett’s submission that orders for parental responsibility or guardianship would not be preferable outcomes, since they would not provide S with a legal or permanent relationship to N and B and since that would leave S in a position where he had a different status from other children within their family. I have regard to the observations of Brereton J in Adoption of NG [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. Although his Honour also referred to the fact that adoption may, in some cases, provide a more secure foundation for an ongoing relationship with the birth parents through contact, it seems to me that that is a less significant factor here, where an adoption order may be treated with hostility by at least K.

Consents to S’s adoption

37. 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.

38. There is no dispute that D and K have been provided with a copy of the mandatory written information in respect of adoption. Both D and K have consistently opposed the adoption and now contest the adoption. In doing so, K has expressed extreme views and made various allegations as against N which do not appear to have sufficient basis in the evidence. There is evidence of service of the application to seek a consent dispense order and the application for adoption orders on K and D, who have in any event appeared to oppose the application as I noted above.

39. As I noted above, the Secretary seeks orders, under s 67(1)(d) of the Adoption Act, that the consent of D and K to the 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.”

40. 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 her, or his, 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]. It has been established that N and B are authorised carers of S and there is evidence that S has established a stable relationship with N and B, for the purposes of s 67(1)(d)(i) of the Adoption Act, and I am satisfied that making a consent dispense order would promote his welfare for the purposes of s 67(1)(d)(ii) of the Adoption Act.

41. 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].

42. Dr Barnett draws attention to the requirements of s 67(1)(d) of the Adoption Act. She submits, and I accept, that S has established a stable relationship with N and B, having been in N’s care since he was four days old and in N and B’s joint care for a long period. Dr Barnett submits, and I also accept, that an adoption order will promote S’s welfare as it will provide certainty for him, by bringing his legal status in line with his existing life experience and making him, as a matter of law, part of N’s and B’s family. I am satisfied that an order dispensing with D’s and K’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 above at [106] per Brereton J.

Adoption plan

43. 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.

44. N and B have agreed to two adoption plans, one in relation to D and K and one in relation to S’s siblings. The parental adoption plan provides for face-to-face contact between S and D and K six times a year, for two hours on each occasion, to be supervised by Wesley Dalmar. The requirement for supervision is appropriate, given D’s and K’s hostility to N and B and to the adoption process, and the evidence that K has been critical of N and B in the course of meetings with S, and where D and K have refused supervision of such contact by N and B. A sibling adoption plan provides for contact with S’s siblings. Ms Wilson expresses the view, and I accept, that the adoption plans are proper in the circumstances.

45. D’s affidavit confirms the position that he would not want “the carer”, presumably a reference to N and B, there at contact visits in the future, a position that indicates his continued hostility to N and B. He seeks more contact with S and expresses the view that Community Services should permit he and K to have unsupervised time with S. D’s evidence is that he never denigrates the carers and understands that harm could be caused to S in saying negative things about their primary carer but he does not refer to the position of K in that respect. I note that at least K’s apparent hostility to N and B, and the possibility that that will continue after adoption orders are made, is a matter that tends strongly against permitting unsupervised access arrangements. I am also not satisfied that I should amend the frequency of contact under the proposed arrangements, particularly where third party supervision of contact is required. I am satisfied that the arrangements proposed in the adoption plans are in S’s best interests and are proper in the circumstances for the purposes of s 90(2) of the Adoption Act.

43. A further question arose, in the course of submissions, as to whether an order could be made to register the adoption plans. The Crown Solicitor draws attention to s 46 of the Adoption Act which 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 Crown Solicitor submits, and I accept, that 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 N and R and are therefore each an “adoption plan” for the purposes of the Adoption Act. The Crown Solicitor submits, and I accept, that the adoption plans can be registered without D and K 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. That conclusion is supported the fact that, as Mr Braine pointed out, the Court has, for example, registered an adoption plan although it had 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.

44. Mr Braine also submitted that the Adoption Act did not provide statutory authority to make access or contact orders and submitted that the Court could make such an order by reason of its jurisdiction arising under the Family Law Act 1975 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), and also submitted that 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 as authority. Mr Braine submitted that S may benefit from an order to spend time with his birth parents and, separately, his siblings, although it was not entirely clear from that submission whether that order was in fact intended to require S to do so, by way of compulsion. 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, other than D’s and K’s hostility to N and B which such an order would not resolve. 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 adoption of S is preferable to other courses

48. 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 above 680 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.”

49. Ms Wilson expresses the view that, and I accept that, the issues as to the care of S’s siblings and his protection history while in the care of D and K would raise concerns if he were returned to the care of D and K. Ms Wilson also observes that S has never been in their care and does not have a primary attachment to them and that the medical issues which he had have been well managed by N and B. She expresses the view, which I accept, that there are distinct advantages in adoption for S and the permanence of an adoption order will create stability for him and provide him with a sense of belonging which cannot be achieved in long-term foster care or under an order for parental responsibility to be allocated to N and B. The s 91 report also expresses the view, which also accept, that the adoption of S by N and B will promote his best interests, where he has lived with N since he was four days old and with B from the age of two years and has formed close attachments to them and to L, and they have demonstrated their commitment to S’s care and have a loving and caring relationship with him. It seems to me that there is no realistic prospect, given the evidence to which I have referred above, that S could be restored to the care of D and K.

50. I am 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

51. 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. The name proposed for S will maintain his birth parent’s surname, to recognise his family ties to his birth parents and siblings, but will incorporate the proposed adoptive parents’ surname so that S will understand he is an important part of their family and have a sense of belonging. Ms Wilson expresses the view, and I accept, that the proposed name change is in S’s best interest as it recognises his continued connection with his birth family but also creates a sense of belonging and identity with the proposed adoptive parents and their family. In his affidavit dated 21 December 2016, D expresses the concern that S’s name should not be changed as it removes part of his identity that he can never get back. I do not accept that proposition, where the name change will retain the name of S’s birth family as part of his name. While I recognise that D also believes that it is insufficient for S’s birth family’s surname to be his middle name, I also do not accept that proposition. D’s evidence is that S already feels different and alienated from his siblings and that a change of name would further entrench his feelings of “alienation”. The proposition as to alienation is not established by the evidence, and I do not consider that S’s use of his adopted parents’ surname will have any adverse effect in that respect.

52. I am satisfied that I should approve the name by which S will be known and will do so, on making an adoption order.

Orders

53. I will therefore dispense with the consent of S’s birth mother, K, and birth father, D, to the adoption under s 67 of the Adoption Act. I make an order for the adoption of S in favour of N and B and, on the making of the adoption order, I will approve the name proposed for S. I will order the registration of the adoption plans. I direct Community Services to bring in short minutes of order to give effect to this judgment within 7 days.

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