In the matter of Y

[2019] NSWSC 678

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Y [2019] NSWSC 678
Hearing dates:	15 and 16 May 2019
Decision date:	07 June 2019
Before:	Black J
Decision:	Orders made dispensing with the consent of birth mother and birth father to the adoption. Orders made for the adoption of Y in favour of proposed adoptive parents and the name proposed for Y is approved in the manner specified.
Catchwords:	FAMILY LAW AND CHILD WELFARE – adoption – where child has lived with proposed adoptive parents for significant period of time – where child has always lived separately from two full siblings – whether consent of birth parents should be dispensed with.   FAMILY LAW AND CHILD WELFARE – adoption – where child primarily attached to proposed adoptive parents – where adoption order is in 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 7, 8, 8(2), 8(2)(a), 8(2)(b), 8(2)(c), 8(2)(d), 8(2)(e), 8(2)(f), 8(2)(g)-(i), 8(2)(j), 8(2)(k), 45F, 52, 54, 61, 67, 67(1)(d), 67(1)(d)(ii), 67(2), 90, 90(1), 90(1)(d), 90(1)(h), 90(2), 90(3), 91, 101, 124(5) - Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 43, 44, 90
Cases Cited:	- Adoption of KH [2015] NSWSC 274 - Adoption of NG (No 2) [2014] NSWSC 680 - Adoption of RCC and RZA [2015] NSWSC 813 - Re an infant, K, and the Adoption of Children Act [1973] 1 NSWLR 311 - Re ASK and the Adoption Act 2000 [2017] NSWSC 521 - Re DYK and the Adoption Act 2000 [2005] NSWSC 1045 - Re JLR [2015] NSWSC 926 - 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 Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR and CD [2016] NSWSC 1926
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services (Plaintiff) Birth mother (First Defendant) Birth father (Second Defendant)
Representation:	Counsel: K Shea (Plaintiff) C E McConaghy (First Defendant) The Second Defendant represented himself   Solicitors: Crown Solicitor’s Office (Plaintiff) Kathryn Renshall Lawyers (First Defendant)
File Number(s):	A70/2018

Judgment

1. By Summons for Adoption filed on 19 April 2018, the Plaintiff, the Secretary, New South Wales Department of Family and Community Services seeks an order for adoption of a child, to whom I will refer as “Y” in favour of the adopting parents, to whom I will refer as “E” and “S”, and an order approving several given names and the surname of the proposed adopting parents for Y. The Secretary also seeks orders that, under s 67(1)(d) of the Adoption Act 2000 (NSW), the consent of Y’s birth mother, to whom I will refer as “F”, and the consent of her birth father, to whom I will refer as “C”, be dispensed with. The application was ultimately not opposed by F, by her guardian ad litem, but was opposed by C.

2. A preliminary hearing took place in the application on 14 September 2018. The proceedings were originally listed for final hearing before me on 30–31 October 2018, but were adjourned on that occasion when the need for the appointment of a guardian ad litem for F became apparent. I then determined that a guardian ad litem should be appointed to represent F’s interests in the proceedings and the proceedings were adjourned to allow that to occur. The proceedings were then to be heard on 20–21 December 2018, but were again adjourned because the guardian ad litem had then not been able to obtain legal representation. The matter was again listed for final hearing on 15 and 16 May 2019 and the hearing proceeded on those dates. F was represented by her guardian ad litem, and F’s guardian ad litem rightly recognises that, under s 124(5) of the Adoption Act, the legal practitioner representing her must act on her instructions rather than on those of F. C appeared in person and opposed the adoption application.

Background and affidavit evidence

3. The application is supported by an affidavit dated 19 April 2018 of Ms de Meur, who is a Manager, Client Services, employed by the Department of Family and Community Services and a delegate of the Secretary of Family and Community Services. I have drawn on Ms de Meur’s evidence for the factual background to the application noted below.

4. Y was born in 2012 and it appears that her birth parents, F and C, separated in 2013; subsequently resumed their relationship; and were married in 2016. There is evidence of issues affecting their parenting capacity and issues as to mental illness affecting F that required hospitalisation and compromised her ability to meet Y's physical needs, including in relation to nutrition, hygiene and supervision, and her emotional needs. I will address that illness in more detail below.

5. Y was placed in care under a temporary care arrangement between Family and Community Services and F for a period from December 2013 and returned to F's care in early 2014. Y was subsequently removed from F’s care under s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care Act") in June 2014, again due to issues as to F's mental health and her capacity to meet Y’s physical and emotional needs. The Children’s Court made an interim order allocating parental responsibility for Y to the Minister for Community Services in June 2014, in proceedings in which F was legally represented. Y was placed with the proposed adoptive parents in July 2014. The Children’s Court subsequently found that there was no realistic possibility of restoration of Y either to F or to C and made final orders, by consent, allocating parental responsibility for Y to the Minister until the age of 18 years in January 2015. F subsequently filed an application in the Children’s Court seeking to rescind or vary those orders, under s 90 of the Care Act, but that application was withdrawn in October 2016 after F was hospitalised in respect of her mental health issues. It appears that F became a permanent resident of Australia in April 2016 and the visa status of C is presently unclear.

6. Y was 2 years old when she was placed with E and S and has lived with them continuously since 18 July 2014, except for a three week period in October 2014 when E and S travelled overseas, when Y did not have a passport. E and S have had the care and responsibility for Y under out-of-home care arrangements pursuant to the Care Act. Y became an Australian citizen in August 2016. She has two full siblings. The first, to whom I will refer as “YK”, was born in April 2016 and now resides with his and Y’s paternal grandparents in China. The second, to whom I will refer as “YC”, was born in February 2019, while these proceedings were under way, and is presently under the interim responsibility of the Minister. F and C are seeking his restoration to their care in proceedings in the Children’s Court.

7. F’s guardian ad litem pointed to the differences in the circumstances that had previously pointed to the removal of Y and the circumstances that have recently led to the removal of YC from F’s and C’s care. The issues arising in this adoption include the fact that Y has now been under E’s and S’s care for several years, and are different from those which arise in respect of YC. The question of any orders that should be made in respect of YC does not arise in this application and is a matter for the Children’s Court, and nothing said in this judgment should be read as indicating any view on my part as to that question.

8. I have had regard to Ms de Meur's evidence as to the extent of face-to-face contact between Y on the one hand and F and C on the other. I have also had regard to Ms de Meur's affidavit as to Y’s medical, developmental and educational needs and progress, and I note that Y is a healthy child who is meeting her development guidelines. There was initially an indication that Y’s language development was delayed but that delay appears to have been resolved by mid-2015 and Y is now in primary school. Y had some behavioural issues at the commencement of her placement which also now appear to have been resolved.

9. By a further affidavit dated 10 December 2018, Ms de Meur updated the position as to Y’s contact with her birth family, and noted that Y continued to have face-to-face contact with one or both of her birth parents on a bi-monthly basis and telephone contact with her birth parents in the alternate months. Ms de Meur annexed reports of the contact visits prepared by E and S, which indicated that those visits were generally positive. That affidavit also provided an update as to F’s mental health, noting that she had again been hospitalised from late September until mid-November 2018 in respect of her mental health issues.

10. By a further affidavit dated 5 April 2019, Ms de Meur noted the birth of YC in February 2019; referred to the continuance of contact between Y and her birth parents; and updated the position in respect of Y’s health, which continued to raise no significant issues; her development; and her extra-curricular activities including piano lessons. That affidavit also referred to the circumstances in which Family and Community Services had assumed care of YC under s 44 of the Care Act, on the basis that F did not have the physical, emotional or cognitive capacity to meet YC’s needs due to her mental health issues and that C had a then limited understanding of F’s mental health issues and did not understand the risk that F posed to YC when she was unwell.

11. I have also had regard to the affidavit of Ms Wilson dated 12 April 2018, which annexes her report under s 91 of the Adoption Act concerning Y's adoption. That report is based on interviews and visits with E and S; with Y and with C and F. Ms Wilson deals, inter alia, with Y's progress since living with E and S, with her education and health; and her social and emotional development. Ms Wilson also addresses F's and C's views as to the adoption and notes that, although both F and C initially opposed the adoption, F had then made positive comments as to E's and S's care for Y. Ms Wilson also addressed Y’s cultural background and the steps which have been taken to preserve that background; the choice of name for Y; and the absence of sibling contact with YK who resides with his paternal grandparents in China, where F and C have no plans to bring him to Australia. Ms Wilson recognises that Y has a limited understanding of adoption and its legal implications, given her age, although she identifies with E and S as her family. Ms Wilson also addresses E’s and S’s parenting style; their understanding of the adoption orders; their support of birth family contact and the adoption plan, as it then stood.

12. Ms Wilson expressed the view in the s 91 report that, although F and C had said they want Y returned to their care, they had not demonstrated a capacity to care for her full time; Y has lived with E and S since she was 2 years and 3 months old and has a firm and secure attachment with them; and she did not consider that Y’s restoration to F’s and C's care was a realistic option. Ms Wilson's evidence is that guardianship is not the preferred option, since it would not provide the same sense of connection and belonging as an adoption or extend beyond the age of 18 years. Ms Wilson expressed the view that maintaining the status quo is not the preferred option, and that Y would benefit from a permanent placement. She expressed the view that adoption is the most appropriate course for Y, where her placement with E and S is meeting her needs and she has a strong sense of belonging to them, and adoption will provide permanency, while preserving her contact with her birth family.

13. Ms Wilson led further oral evidence, updating the position, at the hearing before me. Ms Wilson’s further oral evidence was that S and E are now Y’s primary attachment figures (T17), and that removing a child in any circumstances is devastating, but would be more so for Y because there would be no apparent reason why that would be in her best interests (T18). Ms Wilson expressed the view that a breakdown in Y’s relationship with E and S would impact her across a range of developmental parameters, including her education, her relationships, and her sense of identity, and would likely have ongoing and significant impacts upon her sense of self and her ability to build relationships in the future (T18). She also expressed the view that Y’s behaviour was likely to be affected, and the impact of loss of E and S for her would be “really devastating” for her (T18). Ms Wilson also indicated her support for the minimum contact arrangements set out in the orders sought from the Court, and noted that such minimum arrangements allowed for greater contact, including around important events, but also allowed flexibility as Y grew older (T19).

14. In oral evidence, Ms Wilson expressed the view that the proposed contact arrangements would provide a good platform for a relationship between Y and YC going forward, although I recognise that that relationship will plainly be less full than would be likely to arise between two siblings resident in the same household. I address that question further below. Ms Wilson also expressed concern as to F’s and C’s capacity to care for both Y and YC, if YC is now restored to their care. She pointed to the different needs of a new born child and a 7 year old and also expressed reservations as to how F and C would address the distress likely to be caused by Y’s separation from E and S. It seems to me that even parents with very strong parenting skills would suffer considerable difficulty in dealing with a position where Y was restored to them, in a state of substantial distress resulting from the severance of her primary attachment with E and S, at the same time as they were dealing with the challenges of caring for a young YC.

Evidence as to F’s medical condition

15. Further evidence was tendered in this hearing as to a medical condition affecting F’s mental health as at October 2018 (Ex P4). I have had regard to that evidence, which I will not address in detail in order to respect her privacy. At that time, F was considered to be at clear risk of self-harm with continued symptoms of illness and poor self-care during her pregnancy, and her medical team considered she had had a relapse of an identified mental illness due to poor compliance with medication requirements and supported her continued admission to hospital for a specified period. There is evidence of improvement in F’s condition since that time, and a community health internal referral form dated April 2019 records F as now presenting as the best she had been over a period of time, and notes that she had engaged with perinatal psychiatry services and community based mental health services, and was stable on her current oral medication, and was currently showing no psychotic symptoms (Ex P5). That report also noted the support for F and C by their church minister and church friends.

16. F’s guardian ad litem tendered an updated medical assessment of F as at March 2019, by her treating psychiatrist, which noted the relapse of her mental condition during her pregnancy in October 2018. That report noted steps which had then been taken to support and provide information and education to C and F as to multiple issues. That report noted steps which had been taken by F in preparation for the birth of YC and noted that F had been stable on her medication for nearly four months and there were no signs of relapse after YC’s birth. That report also noted F’s increased insight and understanding of her illness and her treatment and that C had developed a supportive and thoughtful position in that respect. That report indicated support for F’s and C’s capacity to parent YC, with professional support and support of their church friends, but did not address the position in respect of Y. A further letter identified limitations to F’s and C’s previous understanding of the need to adhere to F’s medication once the symptoms of her mental illness are controlled and noted evidence that F was now taking her medications regularly and showing signs of emotional stability. That letter also supported permitting F and C to care for YC, but again did not address the position in respect of Y. A further letter noted F’s stability on her current medication and that she had developed a good insight into her illness.

C’s evidence

17. I invited C to make a narrative statement on oath, which overlapped with the matters which he wished to raise by way of submission. In that statement, C emphasised that he wanted Y to be returned to him and that he would work hard to support his family. He accepted that Y would be distressed if she were returned to F and C, but referred to the fact that she could play with other children from his church community (T31). It seemed to me that C likely significantly underestimated the extent of Y’s distress on separation from E and S, and significantly overrated the extent to which that was likely to be addressed by matters such as playing with other children in the short or middle term. C’s evidence is that he wished to be given an opportunity to care for Y now and he recognised deficiencies in his care for Y in the past. His evidence was that he now recognised the indicators of F’s mental issues; and that she now remembered to take her medicine; and there had been an improvement in her situation; and he had also taken parenting courses and was regularly visiting YC which was in turn making his work more difficult. He also emphasised steps that he had taken to prepare for YC’s (as distinct from Y’s) return to home. C also raised the possibility that F’s parents or his parents could be permitted to come to Australia to care for the children, although that would depend upon governmental immigration decisions and is not within the Court’s control.

18. In cross-examination, C accepted that E and S had looked after Y very well for the last 5 years (T38). He acknowledged that Y was likely to be very unhappy at the beginning if she were separated from E and S, but said that he would try his best to make her happy and to build a better relationship with her; to continue contact with E and S; and then would cause Y to have contact with E and S if she wished it (T38–39). He also expressed his confidence that Y would be happy on her return because C and F were younger than E and S and she would meet other young children in his church community and would be “happy every day” (T39). Again, it seems to me that C here under-estimated the extent of Y’s likely distress in being separated from E and S who had become her primary sources of attachment. His evidence is that he would seek to return to fulltime work if YC or Y were returned, but it appeared that may depend on his ability to bring F’s parents to Australia to care for the children, if it was too much for F to do so, and he also noted the support he would receive from his Church community (T39). He also referred, in cross-examination, to the fact that he now understood the extent to which F was assisted by her medication (T40).

19. C also tendered documents relating to his completion of parenting courses and letters from members of his and F’s church community expressing a belief that F could care for her family and a hope that she could have a happy reunion with her children. A psychiatric assessment of C indicated that he had no history suggestive of clinical features of any psychiatric diagnosis and no features on examination indicating a psychiatric diagnosis, although he was understandably concerned about the current proceedings and their outcome. A further letter from members of F’s and C’s church community recorded their commitment to visit F and C as often as possible, if YC was returned to their care, but did not address the position in respect of Y.

17. In closing submissions, which overlapped with his evidence, C also referred to his perception that he had less contact with Y than when she was first removed from F’s and C’s care; and his perception that Y is now less connected to F and C and is starting to “forget” them; and that he and F were concerned that they were now strangers to Y. He emphasised, and I accept, that he would try to do his best if Y was returned to his care. When I explained to him that the Court was required to have regard to Y’s interests, and asked him to consider Y’s interests and whether that would affect the views he had expressed, he responded, “I understand” (T60) without further elaboration.

Evidence of E and S and referees

21. I have also had regard to E’s and S’s affidavits in support of the adoption. S’s evidence is that Y has expressed a wish to have both her Chinese name and an English name, which refers to the month of her birth, and to have S’s and E’s surname. S’s evidence is that that course will preserve the connection to Y’s family, culture and community, and that having an English name is quite common for those with Chinese cultural backgrounds. S refers to the steps which he and E are taking to assist Y to know her life story and have access to her birth family and cultural heritage. S also refers to his and E's plans for Y’s education, and her involvement in swimming lessons, her having begun piano lessons and to her having travelled with E and S. He also refers to his support for continued contact with Y’s birth family after the adoption. His evidence is that he believes that adoption is in Y’s best interests and the preferred order above any other because he and E can provide for Y’s needs and provide loving care, a safe home and education to promote her best interests. E also gives evidence as to Y’s wishes in respect of her name; her understanding of adoption and the steps which she and S are taking to promote that understanding; and her plans for Y's education and contact with her birth family; and indicates her wish for Y to be part of E’s and S’s family and to feel safe and secure, and her belief that adoption is in Y's best interests to allow E and S to provide safety and loving care for her.

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

Whether an adoption order should be made

23. The Secretary draws attention to the objects set out in s 7 of the Adoption Act which relevantly emphasise that the best interests of the child concerned, both in childhood and later life, are the paramount consideration in adoption law and practice; that adoption is to be regarded as a service for the child concerned; ensuring that adoption law and practice assists a child to know and have access to his or her birth family and cultural heritage; and encouraging openness in adoption. Section 8 of the Adoption Act in turn requires the Court, when making a decision about an adoption, to have regard to specified principles, which also include that the best interests of the child, both in childhood and in later life, must be the paramount consideration; that adoption is to be regarded as a service for the child and no adult has a right to adopt the child; that the child’s given name(s), identity, language and cultural and religious ties should, as far as possible, be identified and preserved; that undue delay in making a decision in relation to an adoption is likely to prejudice the child’s welfare. Section 8(2) in turn requires the Court to have regard to specified principles when determining a child’s best interests. I will refer to those principles below.

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

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

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

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

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

…

(h)    in the case of a child (other than an Aboriginal or Torres Strait Islander child) – that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption."

25. I am satisfied that the Court has jurisdiction to make the adoption orders sought in this application. The formal requirements for an adoption are satisfied; and E and S have lived together for more than the minimum period of two years; and have been assessed as fit and proper persons to adopt Y under s 45F of the Adoption Act.

Whether the adoption will promote Y's best interests

26. As I noted above, the first requirement under s 90 of the Adoption Act is that Y's best interests will be promoted by the adoption, and s 8 of the Adoption Act indicates that that matter is the paramount consideration. Dr McConaghy, who appears for F’s guardian ad litem, refers to Brereton J’s observation as to the scope of s 8 of the Adoption Act in Adoption of NG (No 2) [2014] NSWSC 680 at [12]–[17], where his Honour noted that the inquiries under that section are concerned more with the future than the past, and are directed to the “best interests and welfare of the child, now and in the future”, and to Sackar J’s summary of the applicable legal principles in Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR and CD [2016] NSWSC 1926.

27. I must have regard, under ss 8(2)(a)-(b) of the Adoption Act, to Y's wishes and, inter alia, to her age, maturity and understanding and her background and family relationships. In opening submissions, the Secretary draws attention to views which have been expressed by Y, notwithstanding her young age, which are consistent with her recognising E and S as her family, although she plainly also understands that she has a connection with F and C. I have had regard to evidence that, although Y is still relatively young, she has expressed a preference to live with E and S, and to see but not live with F and C.

28. I also have regard, under s 8(2)(c) of the Adoption Act, to Y's physical, emotional and educational needs, including her sense of personal, family and cultural identity. The Secretary recognises that Y is a healthy child with no special medical needs, who is meeting developmental milestones and that she does not currently have any behavioural issues. The Secretary also points to Y’s educational development and to her extra-curricular activities including swimming and piano lessons. In opening submissions, the Secretary points to E’s and S’s demonstrated commitment to Y and to their having provided her with a loving, safe, nurturing and stimulating environment in which she has thrived. The Secretary also emphasised, importantly in this matter, that Y has lived with E and S for the majority of her life, and has a close and loving relationship with them and identifies them as her “mum” and “dad”, although she also recognises her connection with F and C. The Secretary points to E’s and S’s demonstrated capacity to meet Y’s needs and the support provided by the affidavits of referees for their suitability to adopt Y. It seems to me that E and S have demonstrated their ability to meet Y's physical, emotional and educational needs.

29. The Secretary also points to Y’s cultural background and to the cultural plan developed for Y, which respects her Chinese heritage. Y’s paternal and maternal family are Mandarin-speaking Chinese from the Fujian province in China; F speaks English and C has limited English skills. E and S are respectively of Indonesian and Chinese heritage and Singaporean-Chinese heritage. S speaks some Mandarin and is able to communicate with F and C in Mandarin, although he and they speak different dialects of Mandarin. A cultural plan prepared for Y in January 2015, signed by F and E and S, contemplates that Y will retain as much of the Mandarin language as is possible, and will engage with Mandarin language classes in the local community or in mainstream schooling, and will also be introduced to Chinese festivals, cultural events and traditional Chinese food. A further cultural plan prepared for Y in March 2018, to which F and C contributed information, records information as to her birth parents and their city of origin.

30. Y does not have any disability to which the Court should have regard under s 8(2)(d) of the Adoption Act. I must also have regard, under ss 8(2)(e)-(f) of the Adoption Act, to any wishes expressed by either or both of Y's birth parents and to their relationship with Y. I now turn to F’s and C’s wishes as to the adoption. Dr McConaghy points out that F wishes the Court to know that she does not consent to the adoption and that she supports C in that regard. However, F also acknowledged that she understood that Y was happy living with E and S and that Y would be unhappy in having to leave their home, and F also recognised the importance of F and C on the one hand and E and S on the other hand getting along very well for Y’s benefit. Dr McConaghy also points to Y’s loving relationship with F and C, but fairly recognises that Y’s primary attachment is with E and S where she has been in their care for approximately 5 years and the majority of her life.

31. In opening submissions at the hearing, C thanked S and E for taking care of Y, and indicated his wish that the Court give F and C a chance to perform their responsibility as parents. I should record that I am satisfied that F and C are plainly committed to Y’s welfare and would care for her if they were able to do so. I refer below to the substantial difficulties that arise in that respect, most significantly, the time in which Y has now been in S’s and E’s care and the substantial risk that her interests would be adversely affected by removing her from that care. C also expressed his confidence that if Y was returned to him, he could take care of her and F, with the support of his church community.

32. I also have regard, under ss 8(2)(g)-(i) of the Adoption Act, to E's and S's attitude to the responsibilities of parenthood; the nature of their relationship with Y; and their suitability and capacity to provide for her needs. Ms de Meur observes that S and E have established a secure and stable environment for Y; have ensured that Y's medical, educational and development needs are supported; and Y has formed strong attachments to them and identifies them as her parents. Ms de Meur also notes that S and E have supported and encouraged the relationship and connection between Y and her birth family, including attending F's and C's wedding with Y and facilitating contact visits with F and C.

33. I must also have regard, under s 8(2)(j) of the Adoption Act, to the need to protect Y from physical or psychological harm. The Secretary submits that, when Y was removed from F’s care, she was at risk of harm as a result of F’s mental health difficulties and other matters in the relationship between F and C. I recognise that, since that time, F’s mental condition has varied and the evidence to which I have referred suggests that F’s condition and C’s understanding of that condition have both improved, and that F and C both have the support of their church community. There is nonetheless a risk of harm to Y if she was returned to F’s and C’s care and F’s mental condition again deteriorated.

34. In any event, more fundamentally, it seems to me that the separation of Y from E and S, after several years in their care, would itself impose significant psychological harm upon Y, irrespective of efforts then made by F and C to care for her. Dr McConaghy fairly recognised, in submissions for F’s guardian ad litem, Ms Wilson’s evidence that it would be confusing and distressing for Y to be removed from her current carers and that course could have both short term and long term negative impacts on Y’s well-being. By contrast, Y’s remaining with E and S would continue rather than disrupt the attachments that she has formed with them.

35. 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 Y. The Secretary submits, and I accept, that the allocation of parental responsibility to either or both of F or C, severing the relationship between Y and E and S, would not be in Y’s best interests given the depth and long-term character of her attachment to E and S. I address those matters further below.

36. I am satisfied that, having regard to the evidence set out above, the adoption of Y by E and S is in her best interests.

Consents to the adoption

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

38. F has been provided with a copy of the mandatory written information on adoption, in a Chinese translation, but has indicated she does not consent to the adoption and hopes Y can be returned to her, although her guardian ad litem did not oppose the adoption orders sought. C has also been provided with the mandatory written information as to adoption but has indicated that he is opposed to the adoption, and has indicated that he wishes to take Y to China, although he has also made positive comments as to E and S. Neither of F or C has signed an instrument of consent pursuant to s 61 of the Adoption Act. An affidavit of Ms Wilson dated 10 May 2018 establishes service of the Notice of application for Adoption Orders and Notice of Intention to Seek a Consent Dispense Order, translated into Mandarin; the adoption plan and cultural plan, translated into Mandarin; and other documents upon F and C. Both appeared in the proceedings.

39. As I noted above, the Secretary seeks orders, under s 67(1)(d) of the Adoption Act, that F’s and C’s consent to Y’s adoption be dispensed with. That paragraph 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 or guardians, and

(ii)    the adoption of the child by those carers or guardians 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 his or her birth parents, and placed in permanent out-of-home care, the rule that legal parental relationships are not to be severed without the consent of the parents is displaced if the Court is satisfied that the interests of the child will be best served by adoption: see also Adoption of RCC and RZA [2015] NSWSC 813 at [11] and [17]; Re ASK and the Adoption Act 2000 [2017] NSWSC 521 at [83]-[84]. The Court must not make a consent dispense order unless it is satisfied that it would be in the child’s best interests to do so: s 67(2) of the Adoption Act; 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 an 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 Act2000 (NSW) [2014] NSWSC 1007 at [52]-[54]. A consent dispense order is appropriately made where a child's best interests will be promoted by the proposed adoption and, unless consent dispense orders are made, the adoption could not proceed: compare Adoption of NG (No 2) above at [106] per Brereton J.

41. The Court may make a consent dispense order under s 67(1)(d) of the Adoption Act where E and S are "authorised carers" for the purposes of the Act; and there is strong evidence that E and S and Y have established a stable relationship. In her submissions for F’s guardian ad litem, Dr McConaghy recognises that Y has been in the long-term care of E and S since July 2014 and has established a stable and secure relationship with them, and accepts that her interests and welfare will be promoted by adoption by them. I am satisfied that Y's adoption will promote her welfare for the purposes of s 67(1)(d)(ii) of the Adoption Act, and that the consent dispense order is in her best interests for the purposes of s 67(2) of the Act.

Adoption plan

42. As I noted above, s 90(1)(h) of the Adoption Act requires, in the case of a child (other than an Aboriginal or Torres Strait Islander child), that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.

43. E and S and the Department of Family and Community Services had agreed an adoption plan, which made provision for contact between Y and F and C and to maintain Y's cultural identity. That adoption plan has been discussed with F and C, although both have indicated that they would not sign it or consent to the adoption. Ms de Meur expresses the view that the identity and cultural provisions of the adoption plan are appropriate, given Y's age and preferences, and (as I noted above) it contemplates that Y will maintain her connection with her Chinese cultural heritage and will continue to learn Mandarin.

44. In the course of the hearing, discussions between the Secretary, E and S and F’s guardian ad litem led to the development of revised contact arrangements, reinforced by undertakings given by E and S, which contemplate that, if YC is placed in the birth parents’ care, Y will have face-to-face contact with F and C and YC for a minimum of 12 occasions each year; if YC is not placed in F’s and C’s care, Y will have contact with F and C on a minimum of 12 occasions each year, six of these to be face-to-face and six by telephone, consistent with present arrangements; and, if YC is not placed in F’s and C’s care, E and S will also use their best endeavours to facilitate contact between Y and YC on a minimum of six occasions each year, potentially with F and C being included in that contact, if the person(s) with parental responsibility for YC will cooperate in that course. The adoption plan was amended to give effect to these provisions.

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

Whether adoption is preferable to other courses

46. 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."

47. Dr McConaghy rightly recognises that the expression “clearly preferable” in s 90(3) of the Adoption Act requires something more than a slight preponderance of the considerations in favour of adoption over the alternatives, and emphasises that the Court will need to feel a degree of conviction in favour of adoption commensurate with the gravity of the relevant decision: Re JLR [2015] NSWSC 926 at [99]. 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."

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]."

48. Ms de Meur's evidence is that there are distinct advantages in adoption for Y, and the permanence of an adoption order will create stability for her, providing her 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 E and S. Dr McConaghy raises the possibility that the Court could consider allowing time to be satisfied that the advantages of adoption outweigh the benefits of preserving the possibility of restoration, but recognises that this must be balanced against the need for avoiding undue delay which could prejudice Y’s welfare. It seems to me that a deferral of that kind is not warranted, where the time in which Y has been in F’s and C’s care already has the consequence that there would be significant detriment to Y in separation from E and S and that detriment will only increase with time.

49. I have had regard to the fact that approving Y’s adoption will likely have the result that Y and YC will be raised in separate households, whether or not YC is returned to F’s and C’s care. I am conscious of the significance of their sibling relationship. However, Ms Wilson’s evidence, which I accept, is that Y’s attachment to E and S is presently much more substantial than her attachment to YC and the risks of disrupting that attachment outweigh the risks of separation of Y and YC going forward. I also note that the position, in that respect, is not different from that which already exists in respect of YK who is being raised by his grandparents in China, or from that which would arise if F and C have another child after an adoption order is made. This is not a case where Y and YC have an existing sibling relationship, formed by living together, which would now be disrupted by the making of an adoption order.

50. In summary, it seems to me that the permanence of an adoption order will create greater stability for Y and will provide a sense of belonging and permanence which could not be achieved in long term foster care or under an order for parental responsibility to be allocated to E and S. I recognise that the effect of an adoption order will be that YK, Y and YC will grow up in separate households, but that would likely occur even if an adoption order is not made, where YK is being raised in China and where the risk of severing the bond which now exists between Y and E and S likely excludes that possibility. It seems to me that Y’s best interests would not be promoted by her remaining under the Minister’s parental responsibility or in long term foster care where there is no realistic prospect that she would be restored to F’s and C’s care, given the benefits of permanence in her relationship with E and S and the risk of severing that relationship.

51. I am therefore satisfied that the permanence of an adoption order will create stability for Y 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 her best interests to any other action that could be taken by law in relation to her 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 Y and I will make the orders sought in respect of her adoption.

Approval of Y's name

52. Approval is sought, under s 101 of the Adoption Act, for the names by which Y is to be known. The Court cannot give such approval without first considering any wishes expressed by Y under s 101(2) of the Adoption Act. The Secretary submits that, while Y’s expressed wishes as to her name are not determinative because of her age, they reflect her attachment to E and S and are consistent with her identification as a member of their family. I give weight to Y’s expressed wishes in that respect. Dr McConaghy indicates that F’s guardian ad litem consents to Y’s proposed change of name, on the basis that it preserves Y’s Chinese identity, her connection with her family of origin and cultural heritage, while also connecting her with the proposed adoptive family.

53. Y's proposed name will retain her present first name and middle name, and give her the added surname of E and S to represent her place within their family. F and C have indicated they do not oppose the inclusion of an additional middle name, but wish to keep Y's birth surname as her surname. I do not consider that would appropriately recognise her place in E’s and S’s family following the adoption. I am satisfied that I should approve the names by which Y will be known and will do so, on making an adoption order.

Orders

54. I propose to note the undertakings offered by E and S; dispense with the birth parents' consents to the adoption of Y under s 67 of the Adoption Act; and I will make an order for the adoption of Y in favour of E and S. On the making of the adoption order, I will approve the names proposed for Y. I will defer making those orders until an occasion on which Y can be present, as E and S have requested.

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Decision last updated: 12 June 2019