OA v Secretary, Department of Communities and Justice

[2019] NSWCA 322

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	OA v Secretary, Department of Communities and Justice [2019] NSWCA 322
Hearing dates:	10 December 2019
Decision date:	20 December 2019
Before:	Macfarlan JA at [1]; White JA at [2]; Brereton JA at [73]
Decision:	1. Application for leave to appeal from the orders of the primary judge is refused. 2. No order as to costs.
Catchwords:	FAMILY LAW — children — adoption — application for leave to appeal against adoption order — where order opposed by biological father — whether evidence established that children capable of consenting to adoption — whether consent were given in accordance with mandatory requirements — whether proposed adoptive parents suitable — where children already cared for by proposed adoptive parents — whether adoption in children’s best interest and clearly preferable to any other course
Legislation Cited:	Adoption Act 2000 (NSW), ss 8, 91, 180 Children and Young Persons (Care and Protection) Act 1998 (NSW) Supreme Court Act 1970 (NSW), s 75A Adoption Regulation 2015, reg 79
Cases Cited:	Adoption of NG (No 2) [2014] NSWSC 680 Adoption of Taylor-Clay [2019] NSWSC 27 CAC v Secretary, Department of Family and Community Services [2015] NSWCA 105 Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26 Searle v Commonwealth of Australia [2019] NSWCA 127 Secretary, Department of Communities and Justice v OA [2019] NSWSC 1457 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 The Age Co v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category:	Principal judgment
Parties:	OA (Applicant) Secretary, Department of Communities and Justice (Respondent)
Representation:	Counsel: Self-represented (Applicant) P Singleton (Amicus Curiae) C McGorey (Respondent)   Solicitors: n/a (Applicant) Crown Solicitors (Respondent)
File Number(s):	2019/340971
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2019] NSWSC 1457 Date of Decision: 18 October 2019 Before: Sackar J File Number(s): 2019/122595

Judgment

1. MACFARLAN JA: I agree with White JA.

2. WHITE JA:    This is an application for leave to appeal against adoption orders made in the Equity Division (Sackar J) on 18 October 2019 for four children (Secretary, Department of Communities and Justice v OA [2019] NSWSC 1457).

3. The reasons of the primary judge published on Caselaw differ from the reasons originally delivered to the parties in that the names of children in relation to whom the adoption application was made, their elder siblings, the birth mother and birth father of the children and the proposed adoptive parents have been anonymised (Adoption Act 2000 (NSW), s 180). [1] In these reasons I will refer to the letters adopted by the primary judge to refer to those persons. I will also use the paragraph numbering as published on Caselaw rather than the original paragraph numbering.

   1. The paragraph numbering was also altered. Paragraphs [46], [47] and [48] of the original reasons have been merged into paragraph [45] in the judgment now published on Caselaw.

4. The applicant, OA, is the birth father of the children. The four children are full biological siblings. The adoptive parents have had the foster care of the children since they were very young. The oldest child, N, was born in June 2004. The second child, a boy, M, was born in July 2005. They were placed in the care of what are now the adoptive parents on 20 October 2006. At that time N was two years old and M was 14 months old. The third child, S, was born in May 2007. She has lived with the adoptive parents since she was five days old. The fourth and youngest child, Y, was born in February 2010. He was placed with the adoptive parents since he was two days old. The children have two older siblings, B and D, who were not the subject of these proceedings.

5. The Minister had parental responsibility for all of the children pursuant to care orders made under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

6. The birth father has opposed the adoptions. He submitted that the children should be placed in the care of their mother, U. The primary judge recorded that this point was not pressed at the hearing. U’s position as expressed in a letter dated 9 March 2019 addressed “[t]o whom it may concern” and provided to the Court was:

“As a mother it’s so very hard to let go of your children. They are your life. The right thing is for them to be happy, stable, well-loved, and they are. The contact I’m getting now is even better than I was receiving by courts from the start. I wouldn’t change a thing. I would love to be in their life for many years to come.”

7. The report provided to the court pursuant to s 91 of the Adoption Act stated that U had come to accept that adoption was in the best interests of the children. She is a party to a maternal adoption plan that the primary judge has ordered to be registered. However, she has neither opposed nor consented to the adoption orders. The maternal adoption plan provides for the continuation of an existing regime of frequent unsupervised visits between the children and U.

Primary judge’s reasons

8. The primary judge recorded that between 2006 and 2017 there was minimal contact between any of the children and the birth father, AO. This was due to his frequent incarceration and allegations that he had perpetrated sexual abuse towards two older children, D and N, in the presence of the birth mother in 2007 (allegations which he denies but which a joint investigation response team considered to have been substantiated) (Judgment [18] and [27]).

9. The primary judge summarised the background to the making of care orders in respect of each of the children and their being placed into the care of the adoptive parents. He noted that when the adoptive parents assumed the care of N and M they were then also authorised carers for N and M’s elder siblings D and B (Judgment [16]). In September 2008 allegations were made that N was exposed to sexual harm from B. The primary judge observed that B was removed from the care of the adoptive parents and subsequently placed with other authorised carers (Judgment [19]). In October 2012 D’s placement with the adoptive parents broke down and D was placed with the proposed adoptive parents’ adult son, X, with whom he still lives (Judgment [21]).

10. The primary judge referred to the age of the adoptive parents (the mother being 62 and the father 70) and the adoptive father’s medical issues (Judgment [22] and [23]). The primary judge noted several reports made against the proposed adoptive parents in relation to the children in their care (Judgment [25]) to which it will be necessary to return later in these reasons. His Honour noted that N, M and S have each signed instruments of consent to their adoption and that they were all counselled and assessed as having capacity to consent to their adoptions (Judgment [29]). The primary judge briefly summarised the conclusions in the s 91 report as to the progress of N, M, S and Y. Of particular significance for the issues raised on appeal is the primary judge’s summary of issues concerning M (at [31]) as follows:

“In June 2012, M was diagnosed with ADHD and was reported as needing significant intervention and had a developmental disorder. It was also suspected that M may be on the Autism spectrum. In 2016, a paediatrician noted that M was of normal intelligence but had Autistic Spectrum Disorder which was been managed with extra help at school. M did not display any hyperactivity and the paediatrician did not recommend further treatment (Ex P2). At the time of the s 91 report, M had commenced year 8. M had previously been in an IM class, suitable for children with mild intellectual disabilities. M’s Autism Spectrum Disorder is being managed, and although he has had behavioural difficulties in the past and continues to have tantrums on occasion, on the whole M’s behaviour has improved.”

11. AO was represented by counsel at the hearing before the primary judge. The primary judge summarised the submissions made for AO (at [80]) as follows:

“Counsel for the birth father submitted that an adoption order should be opposed and further that the birth father wanted more contact with the children. It was submitted that there was issue with some of the evidence provided by the Secretary. In particular the birth father noted that the records relied upon by Ms Coiner in preparing the expert report were not provided to the Court or the birth father. Further, Ms Coiner and the proposed adoptive mother appeared to minimise concerns in their evidence. The birth father further submitted that the proposed adoptive father could not be considered a fit and proper person under s 28 given his clear health concerns including the fact that the proposed adoptive mother receives a carers allowance for him and he is dependent on her for his daily needs. Further, there is insufficient evidence about whether the proposed adoptive father has any ongoing mental health concerns given his own traumatic experience in care. The birth father further submits that adoption is inappropriate given the children’s ongoing contact with their siblings and birth mother. Moreover, the high needs of the children, in particular M, means that the ongoing support of FACS is needed to ensure the care of the children. An adoption order would further mean the children are ineligible for financial assistance when they turn 18. Finally, in circumstances where neither the children nor the proposed adoptive parents have received legal advice, and further in circumstances where M has a disability, it cannot be said that they have given their informed consent to the adoption.”

12. Counsel for AO also raised the issue as to whether both of the adoptive parents were fit and proper persons to fulfil the responsibilities of parents having regard to their age and health. The primary judge said that age in and of itself should not be a barrier to somebody becoming a legal parent and the adoptive mother was in reasonably good health, if not very good health (Judgment [82]). His Honour accepted that the adoptive father has health concerns, some of which are significant, but observed that there was no evidence that those health concerns impeded his ability to parent the children. His Honour said:

“84   It further is clear, that what must be considered is whether or not the proposed adoptive parents are able satisfactorily to exercise their parental responsibilities. Although the health of an individual may be relevant, the particular parental responsibilities will vary over time. They will change in character from time to time because they necessarily must do to reflect the age of the children concerned and their particular requirements, both educational, health and otherwise. I am satisfied in this case, that despite the health concerns, the proposed adoptive father has successfully parented his five biological children into adulthood, including successfully raising one of their children who has a moderate intellectual delay and ADHD, and on all the evidence has provided the children in this matter a loving and stable home. His health concerns certainly do not prevent him from being a thoughtful, caring and loving parent and that is what he has been for the last 12 or 13 years in collaboration with his wife. They have been married some forty years.

85   There was a hint that somehow or other psychologically he may have been impaired as a result of experiences during his youth. Helpfully, if I may say so, Counsel for the birth father tendered a document, which was a submission jointly prepared by the proposed adoptive parents for the Senate Inquiry into Children in Institutional Care. It is a harrowing tale he tells, but it is also prophetic. It shows that there was light at the end of his tunnel, it shows that he has come out of a very dark time in his life, and notwithstanding the fact that he wrestled those demons for many years, he was able, successfully, to marry, to have a loving relationship and to bring up his own children without any difficulty at all, and although he suffered, it seems he suffered very much in private. He was able to come out of that tunnel, partly due to the cathartic exercise he undertook by giving his account of his terrible experiences to the Inquiry, and undoubtedly the love, support and devotion he received from his wife and children.

86   I do not believe that his health issues, such as they are, alone or in combination relevantly impair his ability to fulfil his responsibility as a parent. Both proposed adoptive parents are clearly experienced parents who have successfully brought up their own children. Although there are objective health concerns, there is no guarantee for any parent that they will be around forever. It is clear that both proposed adoptive parents have sought and obtained expert medical advice in relation to their health and have taken measures actively to manage their health concerns. The fact that these adoptive parents are older is not enough to negate an adoption order. It is always a matter of balance, and in this case the other factors weigh strongly in favour of an adoption.”

13. The primary judge was satisfied that the formal requirements of the Adoption Act were satisfied (Judgment [87]). He placed considerable weight on the wishes of the children and found that N, M and S had all given their informed consent to their adoption (Y’s consent not being in issue due to his age) and was satisfied that they understood what adoption meant and wanted to be legally part of the adoptive parents’ family (Judgment [89]). His Honour said that the process of adoption had been discussed with all of the children many times and that they had all been able to engage actively in discussions with their caseworkers about what it means to be adopted and the legal effects of such adoption (Judgment [90]).

14. The primary judge found that he was satisfied that the best interests of each child would be promoted by an adoption order (Judgment [92]) and made findings in relation to each of the children and their relationship with the adoptive parents (Judgment [93]-[106]).

15. The primary judge then addressed the submission made for AO as to asserted financial disadvantages to the children if the adoption order were made and as to the financial capacity of the adoptive parents to provide adequately for them. The primary judge found:

“107   Counsel for the birth father also questioned whether the proposed adoptive parents would be in an adequate financial position to care and raise the children. It was argued that allowing the children to remain in care would give them access to some level of financial support from the government as part of the transitioning from care allowance, and would therefore be in their best interests. There was some suggestion that the children were currently going without certain luxuries due to the proposed adoptive parents’ financial situation, in particular that they were unable to attend excursions and looked like ‘kids in care’ (although I do note that this report appears to be from 2013).

108   Despite these arguments, there is no evidence before me that there is financial depravation [sic] such that the children are not being properly schooled, or clothed or fed. All the children enjoy a wide variety of extra-curricular activities and enjoy happy and fulfilled lives. It is not suggested they are not provided with proper parental guidance from either proposed adoptive parent in the course of a week or a day about homework, about all sorts of things which, in my view, count much more seriously than necessarily whether one can afford an outing or not.

109   It seems to me, having considered the proposed adoptive parents’ financial position, that their home is their own, they own it outright. It is a commodious place, it keeps everybody happy and everyone seems to have their own space. Their monthly commitments are, it seems to me, relatively modest, and with the ongoing financial support that will be provided after the adoption order is made, it seems to me does provide adequate financial support for the proposed adoptive parents and the four children. The proposed adoptive parents’ have, in my view, also clearly considered the future endeavours’ of the children, as they turn 18. They have indicated that they will help support N as she studies at the nearby university campus and are encouraging M in learning a trade with their biological son. There is no evidence, in my view, that the ability to access a limited, although not necessarily insignificant, payment of Assistance after leaving out of home care, should prevent these children from being adopted.”

16. The primary judge concluded that making an order for the adoption of all of the children was a clearly preferable course to any other possible course (Judgment [110]). The primary judge made a consent dispense order under s 67 to dispense with the need of the consent of the birth parents in relation to Y. In finding that the making of the adoption orders was in the best interests of the children and clearly preferable to any other action that could be taken in relation to the care of each child, the primary judge accepted the submission of the Secretary, Department of Communities and Justice, who was the applicant for the adoption orders, that such orders would cement the children into the family to which they are strongly and securely attached. The primary judge cited and applied observations of Brereton J (as his Honour then was) in Adoption of NG (No 2) [2014] NSWSC 680 at [14]-[17] and Adoption of Taylor-Clay [2019] NSWSC 27 in which Brereton J said that where the choice is between adoption and long-term foster care, where there is no realistic prospect of a child being restored to the child’s birth parents, in general adoption may be regarded as offering positive advantages. The primary judge said (at [45]):

“An adoption order is often compared to a guardianship order or assigning a parental responsibility to the children’s current carers. Recently in the Adoption of Taylor-Clay [2019] NSWSC 27 Brereton J considered the effects of adoption and the various alternatives. His Honour made a number of important points as follows:

Adoption contributes to providing for children who cannot be raised by their birth family the stability security and certainty that they need. It provides certainty and permanence directly for the child but indirectly through the certainty it affords the adoptive parties.

Future disruption and separation is minimised partly by reason of practically foreclosing any possibility of restoration by birth parents. Again this provides certainty for the child and the adoptive parents.

Adoption serves the identity needs of children. In most cases there is already an emotional, psychological and residential bond with the proposed adoptive family. The order for adoption brings the legal status into conforming with the reality.

Adoption places children on an equivalent basis with equivalent rights as any biological children of the adoptive parents. Adoption in the current environment does not prevent the child from knowing and having some relationship with their birth family.

In becoming part of a legally recognised family for the remainder of their childhood Departmental intervention and approval for significant decisions is removed.

A parental responsibility order on the other hand does not render the child a permanent member of the carer’s family. It is amenable to variation and perpetuates a level of uncertainty and instability which may not be in a child’s best interests.

Further in his judgment at paras [64]-[69] Brereton J considered the accepted social science on the comparison between adoption and long-term placements. It is clear from the discussion by the learned Judge that in most situations an adoption order by bringing the child’s legal relationship and status quo into conformity with the practical realities of the situation provides enhanced stability, certainty for all concerned, and that by and large such orders are to be regarded as being in the best interests of the child or children concerned. However, the facts of any particular case must be carefully evaluated.”

Grounds of appeal

17. OA’s draft notice of appeal was clearly drawn with professional assistance. OA seeks leave to appeal from the whole of the orders made by the primary judge, except for a declaration as to the paternity of Y. The proposed grounds of appeal were as follows:

“Ground 1 – Consent

1.1   The trial judge erred in relying upon consents of the children and the proposed adoptive parents where the respondent did not advise them of the disadvantages of adoption, including:

(i)   that financial provision in excess of the fostering allowance and other assistance would not be available to them following adoption;

(ii)   that financial provision and other assistance available to children leaving the parental responsibility of the Minister would not be available to them[,]

and did not adequately explain the alternatives including adult adoption.

1.2   The evidence relied upon by the respondent was not sufficient to establish that [M] had capacity to consent.

1.3   The respondent did not establish that [M] could read the mandatory information provided to him.

1.4   The trial judge erred in law in that he impliedly held that the requirements for consent under the Adoption Act 2000 abrogated the common law requirements of consent, rather than applied in addition to the common law requirements of consent.

1.5   The evidence relied upon by the respondent was not sufficient to establish that the consent provided by each of [N], [M] and [S] was a result of reasoned deliberation by each with knowledge of the benefits and disadvantages of the proposed adoption, and an awareness of the alternatives.

1.6   The trial judge erred in finding that each of the adopting parents and [N], [M] and [S] consented to the adoption orders.

Ground 2 – Best Interests

2.1   The evidence was insufficient to establish that the adoption orders were clearly preferable to the alternatives, in view of evidence that:

(a)   the stability of the placement and support of the proposed adoptive parents would not be enhanced or otherwise affected by adoption orders.

(b)   some forms of financial and other assistance for the children would cease upon adoption.

(c)   the proposed adopting father was aged 73 and had serious health issues:

(a)   requiring care which is provided by the proposed adopting mother;

(b)   that would likely result in reduced life expectancy.

(d)   the natural mother, [U], had a close and developing relationship with the children.

(e)   a brother of the children, [D], had a close relationship with them.

Ground 3 – Suitability

3.1   The trial judge erred in finding that [the adoptive father] was a fit and proper person to fulfil the responsibilities of a parent, in view of his age, and insufficient and out-of-date evidence concerning his health problems. Those problems included:

3.1.1   a high risk of cardio vascular disease;

3.1.2   stage 3A renal impairment;

3.1.3   diabetes 1,

3.1.4   a fractured shoulder and injured back;

3.1.5   obesity;

3.1.6   the fact that he smokes cigarettes; and

3.1.7   a likely psychological condition arising from extreme childhood trauma.”

18. OA appeared for himself on the hearing of the application for leave to appeal. In oral and written submissions he contended that adoption was not in the children’s best interests. In particular, he submitted that adoption was not in the long term interests of the children. He also submitted that adoption was not in the best interests of the children because of Risk Of Serious Harm (“ROSH”) reports concerning the adoptive father which he said demonstrated the father’s unfitness to be an adoptive parent. He also submitted that N had been sexually abused whilst in the care of the adoptive parents and this rendered them unfit.

19. Mr Singleton of counsel was appointed as amicus curiae. He did not represent OA on the hearing of the appeal. The Court is grateful for Mr Singleton’s assistance. He submitted that there were issues as to whether the primary judge adequately addressed some of the mandatory requirements for the making of an adoption order. In particular, he identified the following as being potentially significant:

1. whether the judge adequately addressed that the making of the order was clearly preferable to any other action that could be taken, which required a consideration of alternatives (s 90(3));

2. whether the judge was satisfied that the three children who gave written consents to their adoption, and in particular the second child, M, had sufficient maturity to understand the effect of giving consent (s 54(2));

3. whether the counselling of the children required by s 55(1) was conducted in accordance with s 63 and in particular, whether the judge should have been satisfied that the counsellors had accurately explained the legal effect of signing the instrument of consent and the procedure for revoking consent and the effect of the mandatory written information, and also the emotional effects of the adoption and alternatives to adoption (s 63(2));

4. in the case of the youngest child, where the judge made an order under s 67 dispensing with the birth parents’ consents, whether the judge was satisfied that the adoption of that child by his authorised carers would promote the child’s welfare (s 67(1)(d)(ii)).

20. Mr Singleton submitted that whilst the findings of the primary judge addressed issues similar to those raised by subss 90(3), 54(2), 63(2) and 67(1)(d)(ii) which indicated that the judge, if he had addressed the precise matter prescribed by those provisions, would probably have been satisfied that the requirements were met, it did not appear that the judge did address those precise matters. If that conclusion were reached, Mr Singleton accepted that the Court on rehearing could itself form a view as to whether the requirements were satisfied.

Consideration

21. Leave to appeal from the primary judge’s orders is required. Generally, it is appropriate only to grant leave where the application raises an issue of principle, a question of general public importance or an injustice which is reasonably clear in that it goes beyond what is merely arguable (The Age Co v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]).

22. The application for leave to appeal, and the appeal if leave be given, were heard concurrently with full argument as on appeal. If leave to appeal were granted, for the reasons which follow, I would dismiss the appeal. However, the better course, consistent with principle, is that leave to appeal should be refused. The application does not raise a matter of principle, nor any question of general public importance, nor any injustice. I do not consider the grounds advanced to be more than merely arguable, if that.

23. It is convenient to deal first with OA’s submissions, then with the grounds of appeal as formulated in the draft notice of appeal, and then with the issues raised by the amicus.

OA’s submissions

24. OA referred to ROSH reports in relation to the children when in the care of the adoptive parents that he submitted made it inappropriate that they become the children’s adoptive parents.

25. The report of sexual abuse of N to which OA referred was not the allegations against him that are said to have been substantiated by a joint investigation response team at Parramatta on 30 April 2007, nor a report made by N’s older brother concerning OA on 7 May 2007, as deposed to by the Minister’s Delegate, Ms Jamieson, but a report made to Family and Community Services in September 2008 that N had disclosed sexual touching by her older brother (B) when they were on a trampoline. They were then both in the adoptive parents’ care. B was sent to his room by the adoptive father. He was later removed from his placement with the adoptive parents. N was then four. In April 2009 a report was received by Family and Community Services in relation to N’s disclosing that she had been sexually assaulted by another child in the adoptive parents’ care as a temporary placement. That child was removed from the placement.

26. There was no evidence that the adoptive parents were personally at fault. The s 91 report prepared by a Ms Coiner stated that the adoptive parents had said that B described sexual behaviours when he first came into their care “but nothing like that has happened since”. Ms Coiner continued:

“They were aware of the children’s past exposure to sexual harm whilst in the care of their birth parents and subsequent JIRT substantiation of this harm. These behaviours have not been seen since that time. [N] received counselling ... [the adoptive parents] feel they have strategies to deal with that as a result of the interventions and support they all received.”

27. Ms Coiner reported that two ROSH reports had been prepared, one in November 2013 in relation to M, and the other in May 2014 in relation to S. The first report related to the adoptive father’s roughly removing a whistle from M’s mouth after M had been repeatedly told to stop blowing the whistle. The adoptive parents said that he was choking on the whistle, but that was not mentioned in the ROSH report. The allegation was not considered to meet the threshold for reportable conduct. The other incident involving S was that the children were riding their bikes in the presence of a caseworker and cutting in front of one another. The adoptive mother told the children to stop. The adoptive mother stood right in front of S and bent down over her and raised her voice and said in an angry tone “I told you not to do that”, and went on to tell S that she was not allowed to do it and that she had done it on purpose. Unsurprisingly, this was also considered to be a matter that did not meet a threshold for reportable conduct.

28. There were two other allegations of reportable conduct. The first was a bruise to the eye suffered by Y in June 2016 where the adoptive mother advised that the children were playing ball and the ball hit Y’s glasses and left a bruise. Y told the school that the adoptive father had done it. The allegation was investigated and not sustained due to lack of evidence.

29. The second allegation of reportable conduct was that in November 2013 the adoptive father had raised his hand to M as though to hit him as a form of discipline. This was admitted.

30. In her report Ms Coiner noted that each of the children told her that discipline took the form of time in their rooms, withdrawal of technology and conversation or reflection. The adoptive parents and their biological children independently advised her that physical discipline was not used as a behavioural strategy upon them as children. Ms Coiner assessed the likelihood of the adoptive father’s continuing to threaten the children with physical harm as a form of discipline to be low. There had been no further concerns or ROSH reports in relation to the children. The current FACS caseworker visited monthly and had a strong rapport with the children and held no such concerns. The adoptive father himself had aged and matured into parenting.

31. As was observed by Brereton JA in the course of oral submissions, there was powerful evidence that the children had a great deal of affection for the adoptive parents and wanted to stay with them.

32. The matters raised by OA do not impugn the primary judge’s conclusion that adoption was in the best interests of the children, nor that it was a clearly preferable course to any other course. The reports do not reflect adversely on the adoptive parents. In any event, it is clear that even if an adoption order were not made the children would remain in the care of the adoptive parents. Although OA said that he wanted the children to be restored to the care of their mother, as noted above, that is not a course that the mother supports.

33. OA also submitted that since the children were taken into care, M had been diagnosed in 2006 or 2007 with autism, but nobody did anything about it until 2013.

34. That is not the evidence. The evidence is that a report on M was prepared on 26 September 2007 by a child psychiatrist, a clinical psychologist and a consultant paediatrician. M was then 26 months. They reported:

“[M] has settled extremely well into this placement with [adoptive parents]. He is fortunate to have been placed with all his biological siblings .... [M] appears to have a close relationship with his sister, [N], from whom he has not been separated. [M] is experiencing some delays in his speech and language. [M] has a history of rocking and head-banging behaviour, eating difficulties and separation anxiety. His behaviour was initially so extreme that the carers were concerned that [M] was presenting with symptoms seen in children with Autism. [M’s] behaviours occurred in the context of a history of significant abuse and neglect, a failed short-term placement and parental mental health and drug and alcohol issues. [M] has made significant gains in this placement with [adoptive parents]. He is no longer engaging in any self-soothing rocking behaviours and his eating habits are improving. [M] has clearly attached to [adoptive parents] who are both adequately responsive and sensitive to his needs.”

35. M had a small head and it was thought this might have a genetic cause. He was reviewed by a clinical geneticist in September 2008 but no specific genetic diagnosis was found. In February 2009 he was reviewed by two paediatricians and a clinical psychologist. He was then three and a half years old. The specialists reported that M presented as an highly anxious child, but at that stage there was no diagnosis of autism.

36. It was in June 2012 that a paediatrician reviewed M and reported amongst other things that M had “ADHD of the mixed type, he has a lot of anxiety and also obviously has reactive attachment disorder, learning problems, and I also feel there are features of a pervasive developmental disorder”. That led to additional assessments and correspondence with M’s school counsellor and a further review in October 2012. Further reviews took place in 2013 and counselling sessions commenced in May 2013.

37. The primary judge recorded:

“31 ... In 2016, a paediatrician noted that M was of normal intelligence but had Autistic Spectrum Disorder which was been managed with extra help at school. M did not display any hyperactivity and the paediatrician did not recommend further treatment (Ex P2). At the time of the s 91 report, M had commenced year 8. M had previously been in an IM class, suitable for children with mild intellectual disabilities. M’s Autism Spectrum Disorder is being managed, and although he has had behavioural difficulties in the past and continues to have tantrums on occasion, on the whole M’s behaviour has improved.”

38. It is clear from the reports tendered that the adoptive parents provided attentive care to manage M’s problems.

39. OA’s submissions cast no doubt on the correctness of the orders of the primary judge.

Draft grounds of appeal

40. Section 52 of the Adoption Act provides:

“52   Consent of parents and persons who have parental responsibility generally required (cf AC Act s 26)

The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given:

(a)     in the case of a child who has not been previously adopted by:

(i)     each parent of the child, and

(ii)     any person who has parental responsibility for the child, or

(b)     in the case of a child who has previously been adopted—by each adoptive parent of, or person who has parental responsibility for, the child.”

41. Section 54 relevantly provides:

“54   When consent of parent or person who has parental responsibility not required (cf AC Act s 26 (4A))

(1) Consent is not required under section 52 if:

(a)     the requirement for the consent has been dispensed with by the Court, or

Note.  See Division 3 of Part 5.

(b) the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or

(c)     the child gives sole consent to his or her adoption in accordance with subsection (2), or

(d)     the child is 18 or more years of age.

(2)     A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years.”

42. Section 55 provides:

“55   Consent of child (cf AC Act ss 26 (4A), 33, 38 (2A))

(1)     The Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless:

(a)     the child has been counselled as required by section 63, and

(b)     the counsellor has certified that the child understands the effect of signing the instrument of consent (as required by section 61), and

(c)     the child consents to his or her adoption by the prospective adoptive parent or parents or the Court dispenses with the requirement for consent.

Note.  See Division 3 of Part 5.

(2)     The Court may make an adoption order in relation to such a child who is incapable of giving consent if the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order.”

43. Division 2 of Pt 4 is headed “When is consent effective?”. Section 58 relevantly provides:

“58   When is consent ineffective? (cf AC Act ss 29, 30, 31, AC Reg cll 21 (a) and (d), 22, 23, Sch 1 Forms 1, 4)

(1)     Consent to a child’s adoption is not effective unless it is:

(a)     informed consent, and

(b)     given in accordance with this Act.

(2)     Consent given by a person (other than a child under 18 years of age) is not effective if it appears to the Court that:

(a)     it was not given in accordance with this Act, or

(b)     it was obtained by fraud, duress or other improper means, or

(c)     the instrument of consent has been altered in a material particular without authority, or

(d)     the person giving or purporting to give the consent was not, at the time the instrument of consent was signed, in a fit condition to give the consent.”

44. Section 59 provides for the provision of mandatory written information to a person whose consent to an adoption is needed. No issue arises on this appeal in relation to s 59.

45. Sections 61-63 provide:

“61   Form of consent

(1)     Consent is to be given by an instrument (an instrument of consent) that is in a form that contains the information prescribed by the regulations.

(2)     A separate instrument of consent must be signed by the child and by each other person whose consent is required by this Act.

(3)     Before the instrument is signed, a counsellor must sign a statement on it certifying that:

(a)     the child or other person giving the consent has been counselled by the counsellor, and

(b)     that the counsellor is of the opinion that the child or other person understands the effect of signing the instrument.

62   Consent must be witnessed by person independent of counsellor

(1)     The signing of the instrument of consent must be witnessed, in accordance with the regulations, by a person other than the counsellor and who is independent of the counsellor.

(2)     Before witnessing the signing of the instrument of consent by a child or other person, the witness is to sign a statement on it certifying that he or she is not aware of any mental, emotional or physical unfitness of that person to give consent.

(3)     The witness must be a person of a class or description prescribed by the regulations.

63   Child or other person consenting must be counselled

(1)     A child or other person giving consent must be counselled in accordance with this section within the period prescribed by the regulations before he or she signs the instrument of consent to an adoption.

(2)     A person is counselled in accordance with this section if a counsellor:

(a)     accurately explains to the person, in a way that the counsellor thinks will be understood by the person:

(i)     the legal effect of signing the instrument of consent and the procedure for revoking consent, and

(ii)     the effect of the mandatory written information, and

(b)     counsels the person on the emotional effects of the adoption and alternatives to adoption (including, in the case of birth parents, the feasibility of keeping the child).

(3)     This section does not require the Minister administering the Children and Young Persons (Care and Protection) Act 1998 or any delegate of the Minister to be counselled before giving consent to the adoption of a child who is under the parental responsibility of the Minister.”

46. Ground 1 challenges the validity of the consents of N, M and S. It also asserts that no valid consents were given by the adoptive parents to the adoptions.

47. The Adoption Act does not require that the adoptive parents provide consent to the adoption that complies with the requirements of Div 2 of Pt 5. It is clear that the adoptive parents did consent to the adoptions. They requested the adoptions. They filed affidavits in support of the making of the adoption orders. They each gave evidence of their understanding that their eligibility for the fortnightly adoption allowance was means tested and was subject to ongoing eligibility for Family Tax Benefit Part A and to an annual review conducted by Family and Community Services. Any lack of awareness as to the details of any financial assistance that would not be available to them as adoptive parents that would be available to them as authorised carers could not vitiate their consent to the adoptions.

48. The same is true in respect of the children who consented to their adoption. Section 54(2) requires that the child giving consent must be of sufficient maturity to understand the effect of giving consent and s 63 requires that the child be given an accurate explanation by a counsellor as to the legal effect of signing the instrument of consent and the effect of mandatory written information, as well as the emotional effects of the adoption and alternatives to adoption. It does not require that a child understand the details of what financial assistance might not be available to the child if he or she is adopted that would be available to the child if he or she remained under the parental responsibility of the Minister until turning 18. Nor is that a matter prescribed as mandatory written information (Adoption Regulation 2015, reg 79).The primary judge did not consider that the children’s ability to access a limited, but not necessarily insignificant payment of, assistance after leaving out of home care should prevent the children from being adopted. It is inconceivable that the children would have regarded that to be a material consideration, particularly as it is speculative as to what the governmental arrangements for payment might be by the time the children turn 18.

49. As to ground 1.2, I do not accept that the evidence was insufficient to establish that M had capacity to consent.

50. The primary judge was satisfied that M had given his informed consent to the adoption. He said that a qualified professional had spoken with M and formed the view that he was able to understand the consequences of adoption (Judgment [89]).

51. There is ample evidence to support these findings which carry the necessary implication that M was of sufficient maturity to understand the effect of giving consent (s 54(2)).

52. The counsellor, Ms Kelly Kingston, was amply qualified to express the opinion provided in the certificate under s 55(1)(b) that M understood the effect of signing the instrument of consent. She gave two reports, one dated 12 November 2018 and the other dated 14 December 2018 in which she described M’s responses in relation to the proposed adoption and his understanding of the effect of the adoption and his giving consent to being adopted. His responses included his understanding that he would officially be the parents’ son and that if something happened to either the adoptive mother or the adoptive father he would stay as part of the family. He knew that it meant that he would not have a caseworker checking on him every month and reiterated that he did not want to be in foster care anymore. Ms Kingston and M went through the mandatory written information on adoption. Ms Kingston concluded that he was capable of understanding the effect of signing the instrument of consent and by her certificate she stated that he did understand the effect of signing the instrument.

53. The primary judge was entitled to rely upon this evidence in making the finding he did. The finding was not inconsistent with the evidence of M’s level of cognition and intelligence. His school reports for the second semester of year 7 are consistent with his having a level of maturity to understand the consequences of his giving consent and of being adopted.

54. For similar reasons ground 1.3 of the notice of appeal (that the Secretary did not establish that M could read the mandatory information provided to him) would not be made good if leave to appeal were granted. It is inconsistent with M’s 2018 school report on English for the second semester of year 7 which stated that M had been involved in reading and research in complicated texts on ancient Egypt and composing informative texts with increasing independence and clarity of ideas.

55. Ground 1.4 is difficult to follow. If consent were given in accordance with the requirements of the Act, as the primary judge found, there is no reason to doubt that it would satisfy common law requirements of consent.

56. For similar reasons grounds 1.5 and 1.6 would also fail. The evidence plainly established that each of the children gave their informed consent to being adopted. The effective choice was between being adopted and remaining as foster children in the care of the adoptive parents. In the words of M, he said “I hate being in foster care. Adoption means Mum will be my real Mum”.

57. Ground 2.1(a) and (b) can be considered together. Whilst it is true that if an adoption order were not made the stability of the placement of the children and the support and care the adoptive parents would give them would in all probability continue unchanged. That does not mean that adoption would not be beneficial. The primary judge cited and applied the observations of Brereton J in Adoption of NG (No 2) and Adoption of Taylor-Clay quoted above in concluding that in most situations an adoption order that brings the child’s legal relationship and status quo into conformity with the practical realities of the situation provides enhances stability for all concerned, in particular the children. The primary judge considered the financial consequences of the adoption order (at [15] above) and concluded that adoption would be in the best interests of the children. There was no error in that finding. Indeed, it was clearly correct.

58. Grounds 2.1(c) and 3 concern the suitability of the adoptive father. The primary judge considered the evidence in relation to the adoptive father and was satisfied as to his suitability. The primary judge concluded (at [86]):

“I do not believe that his health issues, such as they are, alone or in combination relevantly impair his ability to fulfil his responsibility as a parent. Both proposed adoptive parents are clearly experienced parents who have successfully brought up their own children. Although there are objective health concerns, there is no guarantee for any parent that they will be around forever. It is clear that both proposed adoptive parents have sought and obtained expert medical advice in relation to their health and have taken measures actively to manage their health concerns. The fact that these adoptive parents are older is not enough to negate an adoption order. It is always a matter of balance, and in this case the other factors weigh strongly in favour of an adoption.”

59. There was no error in that finding.

60. The matters in grounds 2.1(d) and (e) do not tell against the making of the adoption order. Whilst the children have a developing relationship with their birth mother, there is no question of their birth mother’s assuming parental responsibility for them. The primary judge found (at [111]):

“... The children are open about discussing their family history and how they came into care. The proposed adoptive parents have facilitated an ongoing and constructive relationship with the birth mother and maternal grandmother, who have frequent and informal contact with. The birth mother in particular has noted the proposed adoptive mother’s commitment to the relationship. The children reportedly enjoy this contact and have benefited from a developing relationship with their biological mother. This type of relationship shows a commitment from both the birth mother and the proposed adoptive parents to fostering a positive relationship for the benefit of the children. There is clearly a commitment to helping the children understanding their identity and place in the world.”

61. The maternal adoption plan envisages a continued development of the relationship between the children and their birth mother, but that is not a reason against making the adoption orders.

62. The fact that the children maintain a relationship with one of their older brothers is also not a reason against adoption.

Submissions of the Amicus

63. The submissions of the amicus were generally directed to the proposition that the primary judge did not expressly refer to relevant provisions of the Adoption Act so as to indicate that his Honour addressed the correct questions.

64. The primary judge’s reasons are to be read as a whole. The primary judge made an express finding (at [110]) that “It is clear, that for all of the children, an adoption order would be clearly preferable.” His Honour clearly addressed the requirements of s 90(3) and gave reasons by citing and applying the reasons of Brereton J in Adoption of NG (No 2) and Adoption of Taylor-Clay for his conclusion.

65. Whilst the primary judge did not expressly state that he was satisfied that M had “sufficient maturity to understand the effect of giving consent” (s 54(2)), his conclusion that M gave informed consent and his reasons for that conclusion show that he was satisfied of that matter.

66. The primary judge did not state expressly that he was satisfied the explanations provided by the counsellors to the children were accurate (s 63(2)(a)) or that the children were counselled on “the emotional effects of the adoption and alternatives to adoption” (s 63(2)(a) and (b)). But the primary judge did find that all of the mandatory requirements were satisfied. If there were error in not individually addressing every requirement of the legislation in the precise terms of the relevant statutory provisions (which I do not accept) such error did not arguably lead to any injustice and it would not be appropriate to grant leave in respect of it.

67. Again, when dispensing with the requirement for the birth parents’ consent for the adoption of the youngest child pursuant to s 67(1)(d), the primary judge did not expressly say that he was satisfied that the adoption of the child by his carers would promote the child’s welfare, using the words of the section. But his reasons plainly demonstrate that that was his conclusion.

Admission of evidence on appeal

68. On the hearing of the appeal counsel for the Secretary sought to read an affidavit of Traci Bonnici which annexed statements of Ms Kelly Kingston which certified that she had provided counselling to N and M in relation to the legal effect of signing the instrument of consent, the procedure for revoking consent, the effect of mandatory written information, the emotional effects of adoption and the alternatives to adoption, and certified that each child understood the effect of signing the instrument of consent to adoption. The certificates were given pursuant to s 55(1)(b) and ss 61 and 63 of the Act.

69. Neither AO nor the amicus objected to Ms Bonnici’s affidavit being received as further evidence on appeal. The Court received the affidavit and reserved its position as to whether the evidence contained in it should be admitted.

70. That evidence is uncontroversial. Its omission from the tender of material before the primary judge was evidently mistaken. Had any issue been taken before the primary judge that the Secretary had not tendered the certificate required by s 55(1)(b), the omission could, and no doubt would, have been readily cured. In fact, no such point was taken. I consider that there were special grounds that justify the receipt of the further evidence, notwithstanding that it was available to be adduced at trial (Supreme Court Act 1970 (NSW), s 75A(8)) (Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26 at [102]-[105]; Searle v Commonwealth of Australia [2019] NSWCA 127 at [169]-[175]), particularly as this application is not adversarial and the best interests of the children is the paramount consideration (Adoption Act, s 8(1)(a)).

Conclusion

71. For these reasons I propose that the application for leave to appeal from the orders of the primary judge be refused.

72. The Secretary did not ask for costs. Given the nature of the jurisdiction being exercised, I would make no order as to costs.

73. BRERETON JA:    I have had the benefit of reading in draft the judgment to be delivered by White JA, with which I respectfully entirely agree. I would, however, add the following observations.

74. First, an adoption order is a final and conclusive order which works a fundamental change in the status and relationships of those affected by it – most significantly of the child, but also of the birth parents, the adoptive parents, and the child’s siblings. The nature of an adoption order is such that, although an appeal lies only by leave, leave should be granted relatively readily.

75. Secondly, even if there were an arguable case of error (and in my view there is not), in circumstances where these children, being siblings, have spent the overwhelming portion of their lives to date residing with the adoptive applicants (the younger two from only days after their birth); where they very clearly have strong bonds of attachment and affection with the adoptive parents; where each of them had expressed a clear wish to be adopted; where they are in every sense other than legal formality already members of the proposed adoptive family; where the three elder children have given sole consents to adoption; where the birth mother supports, without consenting to, adoption, and the children do not at this stage desire to have a relationship with their birth father, who has been largely absent from their lives; and where in any event the children would continue to reside with the adoptive parents, if not as their adopted children then as foster children: there is no prospect that this Court, on re-exercising the jurisdiction, would make any different order. For that reason, though it would ordinarily take little to persuade me to favour a grant of leave to appeal from an adoption order, I would not do so in this case.

76. Thirdly, the submissions of the amicus curiae drew attention to the absence from the primary judge’s reasons of explicit findings in terms of some of the mandatory statutory requirements which must be satisfied before an adoption order is made. While the practice is sometimes adopted, a judge is not obliged to refer explicitly and specifically to every section and sub-section which imposes a mandatory requirement, at least where there is no real issue about it. While it may be otherwise if there is a controversy as to the matter, even then it is not necessary to recite findings expressed in the words of the statute. Indeed, doing so can give the appearance of adopting a mechanical approach, in contrast to his Honour’s approach in this case, which while not necessarily adopting the statutory terminology, makes manifest that he addressed and considered the substance of what the mandatory requirements involve, and was satisfied of them.

77. Finally, I would wish specifically to associate myself with the appreciation expressed by White JA for the assistance of Mr Singleton as amicus curiae.

78. I agree with White JA that the application for leave to appeal should be refused, and that there should be no order as to costs.

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Endnote

Decision last updated: 20 December 2019