Re Adoption of RCC and RZA

[2015] NSWSC 813

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of RCC and RZA [2015] NSWSC 813
Hearing dates:	10, 11, 12, 20 June 2014
Date of orders:	24 June 2015
Decision date:	24 June 2015
Jurisdiction:	Equity Division - Adoption List
Before:	Brereton J
Decision:	Consent dispense orders and Adoption orders made; adoption plan registered
Catchwords:	FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether adoption clearly preferable to any other order that could be made with respect to care of children – relevance of realistic possibility of restoration - where placement with applicants well-established and beneficial – where applicants’ parenting capacity superior – where children have history of disrupted attachments – where children would be at greater risk of abuse if restored - where children identify with proposed adoptive family - held, preserving possibility of restoration would not be in best interests of children and adoption is clearly preferable to any other order that could be made with respect to their care FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption – whether consent of birth mother should be dispensed with - where children in care of approved carers with whom they have established relationship – where adoption would promote children's welfare – held, necessarily also in children's best interests to make consent dispense order so as to allow adoption order to be made FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption – adoption plans - registration – whether provisions in children’s best interests and proper in the circumstances – where plan does not contravene adoption principles and parties understand its provisions and freely enter into it - where registration would provide assurance in respect of contact for non-consenting birth mother – held, plan registered.
Legislation Cited:	(NSW) Children and Young Persons (Care and Protection) Act 1998, s 83, s 90 (NSW) Adoption Act 2000, s 8(1), s 8(2), s 46(2B), s 50, s 67(1)(d), s 90, s 101
Cases Cited:	Re D; Application of A [2006] NSWSC 1056 Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 Re Sarah [2013] NSWCA 379 Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521 Adoption of NG (No 2) [2014] NSWSC 680 In the matter of Campbell [2011] NSWSC 761 Adoption of SRB, CJB and RDB [2014] NSWSC 138 Adoption of BS (No 3) [2013] NSWSC 2033 Director-General, NSW Department of Family and Community Services; Re JS [2013] NSWSC 306
Category:	Principal judgment
Parties:	Secretary, Department of Human Services by his delegate The Principal Officer, Adoptions, Barnardos Australia (P) FB (D)
Representation:	Counsel: M. Neville (P) P. Braine (D) Solicitors: Crown Solicitor (P)
File Number(s):	A85/2013

Judgment

1. RdCC and RnZA, the children the subject of these proceedings, are twin boys born on 23 September 2005, the children of the defendant FB and her then husband GB. By summons filed on 29 May 2013, the Secretary (by his delegate the Principal Officer Adoptions, Barnardos Australia) as plaintiff seeks an order for their adoption by the adoptive applicants DP and AP. For the sake of clarity, while preserving a measure of anonymity, albeit at the risk of impersonality, I shall generally refer to the protagonists as the children (or, where necessary to distinguish them from other children, “the subject children”), the birth parents, and the applicants.

2. The birth father is of German origin and Christian faith, but identifies as Australian. The birth mother is of Fijian-Indian origin and Muslim faith. The children have four full siblings (“the older children”) – MB (a male, born 25 February 1996), EjB and EzB (twin males, born 14 December 1999), and IB (a female, born 24 May 2002). They also have three maternal half-siblings, all now adults – MS, FA and RA – being children of the birth mother’s first marriage (“the adult children”).

3. The older children were removed from their parents’ care in 2005 and placed with foster carers, on account of concerns related to neglect, exposure to domestic violence, and risk of emotional and psychological and possible sexual harm. On 14 June 2005, the Children’s Court made final orders allocating parental responsibility for the older children to the Minister until 18 years of age. An appeal to the District Court by the birth mother was dismissed on 6 October 2006. A subsequent application by the birth mother for leave under (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90, to apply to vary or rescind the final orders, was dismissed by the Children’s Court on 15 August 2008.

4. The birth mother and father separated shortly before the birth of the subject children, who were assumed into care on 1 July 2008 at the age of about two years and nine months on account of concerns about (a) risk of physical harm from ongoing hoarding and rubbish in the home; (b) the presence in the home of FA posing a risk of sexual abuse, MB having made a disclosure of such abuse; (c) emotional favouring of one of the children to the neglect of the other; (d) neglect, in that the children presented at childcare dirty and inappropriately clothed and provided for, and their medical and dental needs were not being attended to; (f) the children displaying indiscriminate attachment to strangers; (g) the significant child protection history with the older children; and (h) the birth mother refusing to engage with support services and showing no insight into the concerns about the children’s welfare and no protective capacity. They were placed with foster carers in two successive short-term placements prior to 24 July 2009, when the Children’s Court made final orders allocating parental responsibility for them until 18 years of age to the Minister. Subsequently, the children were in a third short-term out-of-home care placement until 14 May 2010, when they were placed with the applicants, who are of Fijian Indian origin and Christian faith, and with whom they have resided ever since.

5. Under the orders of the Children’s Court, the children were to have contact with the birth mother and the birth father on six occasions per year, and with the older children also at least six times per year. Contact with the birth mother continued on that basis, more or less satisfactorily, although she was not infrequently late, and complained about the presence of the applicants and that the children would not call her “mummy”, and the children were anxious on earlier occasions. Following a review of arrangements meeting on 17 November 2011, contact was adjusted to five visits per year - the evidence suggests with the agreement of the birth mother - in order that they could be scheduled in school holidays. Contact with the father has been very satisfactory, although, at his request, it has reduced in frequency to four and then two occasions per year. The applicants find him very appropriate and easy to get along with, while he does not seek to be too intrusive, as he sees that the children are happy and bonded with the applicants. The children had contact with the older children four times a year, during school holidays, in 2012 and 2013, which was satisfactory.

6. On 14 December 2011, the older children absconded from their placement to the birth mother. Following allegations they made of abuse by their former foster carers, they were placed with respite carers on 15 December 2011. On 20 January 2012, the birth mother made a second s 90 application to the Children’s Court, seeking restoration of the older children to her care. On 1 February 2012, the older children again absconded to the birth mother. In May 2012, a Children’s Court clinician, Mr Schick, recommended that MB return to the birth mother’s care if he chose to (acknowledging that he was likely to vote with his feet otherwise); and that provided her care of MB was appropriate and she demonstrated an ability to meet appropriate parenting expectations and provide a healthy and appropriate home, restoration of EjB and EzB should be considered, if they still wished to return to their mother’s care; but restoration of IB (who was happy in her placement and wished to remain in out-of-home care) was not recommended. On 19 July 2012, the Children’s Court granted leave under s 90 to make the rescission/variation application and, following agreement between the parties on 22 August 2012, MB was restored to his mother’s full-time care on 22 September 2012. On 11 October 2012, the Children’s Court made final orders allocating parental responsibility for MB to the Minister for twelve months and thereafter solely to the birth mother, upon certain undertakings from the birth mother. On 15 November 2012, the Children’s Court made final orders allocating parental responsibility for EzB and EjB to the Minister for twelve months and thereafter solely to the birth mother, upon certain undertakings from the birth mother; and allocating parental responsibility for IB to the Minister until she attains 18. EjB and EzB were restored to their mother’s care on 17 January 2013.

7. Thus, of the older children, MB has resided with the birth mother since September 2012, and EjB and EzB since January 2013, while IB remains in foster care. Since the restoration to the mother of MB, EjB and EzB, the children have contact with them concurrently with their contact with the mother. They continue to have contact with IB, separately, four times a year.

The parties’ proposals

8. The Secretary proposes that the children continue to reside with the applicants, that adoption orders be made in their favour, that the children have the names RdCP and RnZP respectively (thus retaining their current forenames and assuming the family name of the applicants), and that they have contact with their birth mother five terms per year and with their birth father twice a year in accordance with adoption plans.

9. The birth father has consented to the adoption. However, the birth mother aspires to have the children restored to her care, not immediately but after a period of increasing contact over, say, a year. In any event, she opposes the adoption and dispensing with her consent. She contends that there is a “realistic possibility of restoration” which even if not immediate should not be foreclosed by an adoption order.

Issues

10. The main issues are: (1) whether adoption would promote the children’s best interests and is clearly preferable to any other order that could be made with respect to the care of the children; and (2) whether the consent of the birth mother should be dispensed with.

11. As I have previously observed, it is important to bear in mind that these inquiries are concerned much more with the future than with the past, and at their core is the best interests and welfare of the child, now and in the future, and not the rights or wrongs of past conduct and decisions – whether of the birth parents, the adoptive parents, the Department or the Children’s Court. It is not the role of this Court in these proceedings to review the decisions that have been made by the Children’s Court in respect of parental responsibility; nor even to determine whether in the different circumstances that prevail today such an order would still have been made; but rather to judge which of the competing proposals (and any viable alternatives) will best serve the interests of these children now and in the future, given what has already happened.

12. In making decisions about adoption, the court must apply the principles stated in (NSW) Adoption Act 2000, s 8(1), of which the following are relevant in this case:

(a)  the best interests of the child, both in childhood and in later life, must be the paramount consideration,

(b)  adoption is to be regarded as a service for the child,

(c)  no adult has a right to adopt the child,

(d)  if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

(e)  the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,

(e1)  undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare.

13. In speaking of adoption being a “service to the child”, the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met.

14. Adoption Act, s 90(3), 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. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction “beyond reasonable doubt” [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be “clearly preferable” is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]].

15. The answer to the question whether adoption is “clearly preferable” is informed by various relevant considerations, referred to in s 8(2), which may generally be summarised as follows:

• Concerning the children: their physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; their wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships;

• Concerning the birth parents: their wishes; the nature of the children’s relationship with them; their parenting capacity; and their attitude to the children and to the responsibilities of parenthood; and

• Concerning the proposed adoptive parents: their suitability and capacity to provide for the children’s needs; their attitude to the children and to the responsibilities of parenthood; and the nature and quality of the children’s relationship with them.

16. All these are informed by the need to protect the children from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to ill-treatment, violence or other behaviour (s 8(2)(j)); and the alternatives to adoption, in the light of the short and long term effects of adoption (s 8(2)(k)).

17. Because the birth mother has not given consent, an adoption order can be made only if her consent is dispensed with. Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child’s welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006), as enabling consent to be dispensed with where adoption would enhance a child’s sense of belonging and permanence in the carers’ family notwithstanding that there is no concern about the child’s current welfare (as distinct from the child’s welfare at the beginning of the placement). As the Court of Appeal observed in Re Sarah [2013] NSWCA 379, [68] – endorsing what Slattery J had said in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, [59] – the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child’s present situation. Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is 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. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child.

The children

18. For the purposes of s 23(2)(a), when the application was filed, the children were present in the state. For the purposes of s 24(1)(a), the children were less than 18 years of age when the summons was filed. The children were 8 years and 8 months of age at the time of the trial, and had been in the applicants’ care for four years.

19. Before being placed with the applicants, the children were observed to have global developmental delay across the spectrum, in respect of gross and fine motor skills, self-care, socialisation, and language and performance skills. Language abilities were a particular area of difficulty. They required assistance with toileting, eating and dressing. Speech and occupational therapy was recommended. RdCC was “engaged and interactive during assessment but showed indiscriminate attachment to unknown adults”. RnZA “appeared shy and withdrawn” and “had difficulty making eye contact and was slow to engage with the examiners”.

20. Following placement with the applicants, the children received speech therapy and occupational therapy over a period of 18 months between May 2010 and November 2011, and short term counselling to prepare them for pre-school. They made significant gains in respect of their gross and fine motor skills, speech and expression, and their behaviour and level of functioning also improved. Within a few months of placement with the applicants, the children were displaying signs of attachment to them, and their insecurity and anxiety was diminishing. By the time of the s 91 report of Nicole Sprent (22 May 2013), RnZA was described as a healthy, active and friendly child who presents with confidence in his interactions with people; and school reports indicated that he was a very sociable child, liked by his peers. RdCC also presented as healthy, though somewhat smaller than his twin; fluent with a good vocabulary; able to express himself clearly and concisely; and confident in his interactions with peers; his previous tendency to attach indiscriminately to people had ceased, the applicants having reinforced “stranger danger” precautions with the children. Over the three years from their placement with the applicants until the s 91 report was prepared in May 2013, they made “significant gain in their overall development both physically and emotionally and continue to attain age appropriate milestones”. Their 2013 school reports evidenced sound achievement across most learning areas, and did not identify any significant issues of concern. As the parties’ single expert, clinical psychologist Ms Starkey, reported, “there has been a significant increase in their capacity for learning, a significant improvement in their language and educational skills, and a significant improvement in their behavioural and emotional stability”.

18. The progress the children have made in remediating global developmental delay and overcoming emotional issues is telling in two ways. First, it strongly suggests that the children were receiving significantly sub-optimal care prior to their removal. While Mr Braine submitted that it was not clearly established that their global delay was environmental or attributable to the mother, its reversal with good quality care after removal strongly suggests that it was environmental, and she was responsible for the environment in which they lived until removed. This is strongly suggestive that, whatever the merits of the various individual “concerns” reported to and relied on by the Department in deciding to intervene by removing the children from the birth mother, the children had not been receiving an adequate level of care to meet their needs. Secondly, it demonstrates the quality of the care they have since received from the applicants, which has supported and enabled them to overcome that delay.

19. Ms Sprent observed affection between the applicants and the children, and that each of the children considered the applicants their “forever mummy and daddy”. As Ms Sprent opined, by May 2013 the children demonstrated “a very strong attachment” to both applicants and identified with them as “mummy” and “daddy”, displaying “a deep understanding and security in their identity as brothers, living with their ‘mummy’ and ‘daddy’”. Counsel for the birth mother conceded that the Court was entitled to conclude that there was a close relationship between the children and the applicants. And as Ms Starkey reported, while at the outset they manifested attachment disorder (being over-affectionate and indiscriminate), with time and care the relationship between the children and the applicants was becoming a secure primary attachment which would afford the children a good psychological foundation for their adult development. I agree with her opinion that it would be harmful for the children’s attachment to the applicants to be disrupted, and that such a disruption would be expected to affect their emotional development.

20. As Ms Sprent reported, the children have an age-appropriate understanding of adoption. Both identify the applicants as their “forever family”, and have expressed a desire to be adopted by them. In their interviews with Ms Starkey, both children expressed views and made statements which manifested a wish to be adopted by the applicants.

21. With a father of German origin and Christian faith who identifies as Australian, and a mother of Fijian Indian origin and Muslim faith, these children have a complex cultural and religious heritage. The birth father expressed no preference in relation to the cultural identity of any carers, but indicated a preference for non-Muslim carers. The birth mother initially requested Muslim carers, but later indicated that her priority was for a placement with a Fijian Indian or Indian family. It is not realistic to accommodate every aspect of this complex cultural heritage in a placement, and selection of the Fijian Indian, and Christian, elements for primary attention is reasonable.

22. Security and stability are important life foundations for children, and all the more so against an early background of instability. These children had a seriously disrupted start to life – sub-optimal parenting until removed from their mother, then three relatively short term placements before they commenced to reside with the applicants. This is a well-established risk factor for difficulty in establishing and sustaining relationships later in life, and accentuates their need now for stability and security. As the birth mother harbour aspirations of restoration, there remains some uncertainty as to the permanence of their placement.

23. A clear sense of identity is also an important life foundation for children, particularly against an early background of ambiguity or instability. One important aspect of a child’s identity needs is the need to know his or her origins. Children who do not live with their birth parents may well embark on a search or inquiry in respect of birth family, and lack of satisfactory answers may result in a sense of being “abandoned” or “unwanted”. These children therefore have a need for knowledge of their origins, their birth parents, and the reasons why they do not live with them.

24. However, their origins comprise only one aspect of the identity of each of these children. As Ms Starkey observed, while it is likely that there was a degree of attachment to the birth mother during the two years that they were in her care, that relationship between the children and their birth mother has been irreparably severed, and the children do not now have a meaningful or significant psychological attachment to her. Moreover, their relationship with the older children is shallow, and with the adult children is non-existent. Those conclusions are well-supported by the content of Ms Starkey’s interviews with and observations of the children. As already observed, their placement with the applicants represents the longest period of continuous stability that they have experienced to date. They see the applicants as their psychological parents, and they plainly identify as members of the applicants’ family.

25. These children have made significant progress in the applicants’ care, and despite the condition in which they were when placed, are now functioning at a normal level and attaining normal milestones. They clearly identify the applicants as their parents, and themselves as members of the applicants’ family. Their wishes are to be permanent members of the applicants’ family, “forever”. They are attached to the applicants, and not to the birth mother. Disrupting that bond would be harmful for the children. Their need for security and stability is accentuated by their history of multiple placements. But they also need to know their origins, their birth parents, and the reasons why they do not live with them.

The birth father

29. The birth father has given consent in accordance with the Act to the adoption of the children, and he did not appear or give evidence in the proceedings. However, it is evident that it is his view that the children are well cared-for by, and happy with, the applicants, and his attitude to contact is informed at least in part by a wish not to be over-intrusive in their new lives, although I suspect that there is more to it than that. In any event, he supports adoption of the children by the applicants.

The birth mother

30. The birth mother has a tragic and traumatic history, for which she is in no sense to blame, and which has undoubtedly contributed in a major way to the difficulties she has experienced in the parenting of her children. She was born in 1963 in Fiji and grew up there. She was exposed to domestic violence from an early age. Between the ages of 13 and 15 she was the object of abuse by her father; she was twice placed away from her natural parents, but on returning to their care the abuse resumed. To escape that, she was married, in an arranged marriage, at the age of 15. Her first husband, who she says she did not like, died by suicide aged 20 when she was 18, and for the next 13 years she raised their three children on her own, perhaps with the help of extended family. In 1994, at the age of 31, she met GB who was holidaying in Fiji. She married him the next week, moving to Australia in 1995, initially leaving her children (then aged between 12 and 15 years) in Fiji in the care of her mother; she brought them to Australia in 1996. She says she did not like GB when they first met but agreed to marry him, and that the relationship was serviceable in the beginning, but later deteriorated with constant argument; in 2009 (though not in earlier assessments) she reported that there had been domestic violence throughout the marriage.

31. The older children were removed from her care in 2005 because of concerns about the risk of exposure to domestic violence, possibly sexual abuse, and neglect. Mr Braine submitted that a somewhat different picture emerged from a report of Mr Schick which had been prepared in 2006 in connection with the older children. On the topic of “Bonding attachment of the children with their mother”, Mr Schick reported that the attachment between MB, EjB, EzB and IB and their mother was open, strong and positive, and that no difficulties, concerns, ambivalences or conflicts had been noted in that area. However, his recommendation that the children be restored to her care was not accepted by the Children’s Court.

32. The birth mother separated from GB in August 2005 when she was eight months pregnant with the subject children, who were not removed from her care until 1 July 2008. Again, Mr Braine pointed to a report prepared by Mr Schick in 2009, which pertained to the subject children, in which it was reported that the relationship of the children with both of their parents appeared to be warm; that the mother was more a figure of social regulation, learning of good behaviours and correctness, while the father was more associated with fun and play, but the attachment of the children to their mother and father was positive – although there was no sadness or concerns on separating from them. (Some reservations must be entertained about aspects of this: the father was never a member of the household following the children’s birth, so it is difficult to see how there could have been much more than a shallow relationship with him). Mr Schick did observe that while the mother’s scores on the anxiety related disorder scale did not reach a level of clinical concern they were elevated, potentially the result of a past traumatic event which continued to be a source of distress producing recurrent episodes of anxiety; and her scores on the “paranoid scale” were also elevated, while not reaching a level of clinical concern. He reported that both children’s gross motor functioning appeared age-appropriate, and physically they appeared fine, but speech was somewhat delayed. (This must be compared with the evidence, referred to above, of the assessment in early 2010, which suggests a worse position, but in any event confirms that there was at least some delay).

33. The birth mother’s commitment to achieving restoration is not in question: she has been consistent and committed in maintaining contact with all the children through the years that they have been in care; she made a s 90 application for restoration of the older children in 2008; and she has consistently participated in “review of arrangements” conferences with Family and Community Services concerning the care of the children. She has also undertaken some parenting courses since the removal of the children, although the extent to which she has absorbed higher-level parenting skills from them is dubious: when asked what she had learnt of significance from them, she said:

Yes, it is challenging with the children, how to be – how to make them behave and how to look after them. And taking them places that is comfortable for the boys to go and sometimes challenging when you take them to supermarket, when they are naughty at home how to manage them.

34. After MB, EjB and EzB absconded from their placement, Mr Schick provided a further report in 2012, which addressed the question of restoration of the four older children. He recommended that MB be returned in the first instance, in a staged process subject to monitoring. He noted that the birth mother had reported that she did not have friends, though she had a supportive new partner. She had undertaken some parenting courses, and there was no longer any domestic violence in the home. However, according to Mr Schick – and in this respect his assessment accords with my impression - she tended to attribute responsibility for anything that had been wrong in the past to GB. As Mr Schick reported, she “still does not intrinsically seem to own, recognise or place any aspect of her and her family’s problems in herself”.

35. Referring to the older children, Mr Schick reported:

The children’s attachment and idealisation of their mother is particularly strong and unwavering. It is quite noteworthy how, the no more than four times per year two hours supervised visits managed to keep alive the children’s internal flame of belonging, goodness and emotional nourishment, while the six or so years of permanent contact with the foster parents achieved so much the opposite.

36. Mr Braine submitted that this (particularly when read with Mr Schick’s earlier reports) indicated that the birth mother must have been getting something right, for the children to entertain such a view. In my view, there is an element of truth in this. It seems likely that the older children - and to some extent the subject children - were attached to their mother before removal; and that in the case of the older children, that attachment was not severed. But as Ms Starkey explained, bonds of attachment can and do form, notwithstanding sub-standard parenting, because the child knows nothing else. And as Mr Schick observed, the older children in returning to their mother were running away from what they had experienced as a negative situation – the foster placement of the last six years – to an idealised other world, where they anticipated that their needs would be met. This is quite different from the circumstances of the subject children, whose experience in foster care has been positive, and whose attachment to the birth mother, such as it was, no longer exists, but has been replaced by attachment to the applicants.

37. The restoration of MB, EjB and EzB appears to have been broadly successful, although there remain some concerns as to organisation of the household. As Ms Starkey observed, there were still signs of disorder – she described the birth mother as “chaotic” - and MB’s room was the tidiest in the house; and MB, EjB and EzB are of an age when they are able to organise themselves to get to and from school and do their homework. But it is clear that all three are happy to be in their mother’s care, and are strongly supportive of the restoration and against the adoption of the subject children. All three came to court as a demonstration of their support, and MB (who is now 18 years of age) gave evidence from which his strong loyalty to and support for his mother was manifest. He was highly influential in his younger brothers self-restoring as they did. He is doing well at school in his HSC year. He admits to some limited use of marijuana while in foster care, but denies that he has used it since returning home; although there was some conflict in the evidence about this, I see no reason to disbelieve his sworn evidence on that issue. While he was in care, MB engaged in some self-harm and was medicated for depression; he appears to have overcome this, although Ms Starkey remains concerned that he has some underlying issues.

38. All that said, it is also clear that the views of the three boys have been influenced by their bad experience of foster care. Their sister IB is happy in her placement and does not wish to be restored, despite the encouragement of her brothers to return home. Their opposition to adoption, while partly based on loyalty to their mother and an aspiration for family reunion, is in large measure founded on genuine concerns that the subject children may be exposed to mistreatment of the kind they experienced in foster care. But there is no suggestion, let alone evidence, of any such risk to the subject children in their placement with the applicants.

39. The birth mother is not in employment and is dependent on Centrelink benefits of about $800 to $900 per week, after rent. She lives in Housing Commission accommodation, in which she occupies one room, MB a second, EjB and EzB share a third, and the fourth is said to be vacant. She proposes that if restored the children would in the first instance share that fourth room, though she would seek larger premises. They would attend Matraville Public School (which MB has attended). She is in a relationship, with PR, who stays over on weekends, but they do not cohabit.

40. Mr Braine rightly submitted that the circumstances of the birth mother now are quite different from those that obtained when the children were removed. She has sustained a commitment to charitable works through establishing a charity in Australia known as the Good Heart Foundation, for the welfare of children in Fiji. She has established and maintained a stable relationship with her new partner PR - although, as Ms Starkey observed, it is sad that she is seen and treated by his family as inferior to the point that he has been unable to tell his family that he is in a relationship with her. Perhaps more importantly, since the end of her relationship with GB, domestic violence is no longer a feature of her life; however, her relationship with him had ceased before the birth of the subject children, so it has never been a feature of her life since their birth.

41. Against the background of the vicissitudes of her life described above, and the removal first of the four older children, and later of the subject children, the progress she has made, to the point of achieving and sustaining the restoration of the older children (other than IB), represents a remarkable achievement. However, notwithstanding that progress, the birth mother remains – unsurprisingly, given her history - a vulnerable and fragile person. This is not her fault, and if anything it is surprising that she functions as well as she does. Although she suffers no frank mental illness, Ms Starkey’s evidence, which I accept, was that while not having the classic features of PTSD, she had some features of a chronic, more complex post-trauma syndrome, manifested by lack of motivation to do tasks such as cleaning the house or being punctual, having difficulty in organising herself and not having the home in a reasonable state of tidiness (even knowing someone was coming to her home to assess her). Ms Starkey’s diagnosis is consistent with Mr Schick’s view that a past traumatic event continued to be a source of distress producing recurrent episodes of anxiety. In addition, she is socially isolated.

42. Moreover, the birth mother’s household environment is one which has an unhappy history of sexual abuse, although there is no suggestion that she has herself abused or would abuse any of her children. At least three instances of abuse may be taken to be established: GB has apparently admitted to having sexually assaulted MS (one of the adult children), and the birth mother did not act as a protective ally of the child in that situation; she apparently now accepts that RA has sexually assaulted MB; and FA has pleaded guilty to sexual grooming of a 10 year-old girl on the internet. FA was charged with this offence on 8 November 2012, and has been assessed as being at medium to high risk of re-offending - by persons who were not aware of the other allegations in respect of him. In addition, there are allegations or suggestions, which I do not regard as proven, that RA and FA have sexually assaulted other of the children, including at least one of those the subject of these proceedings: RnZA has made disclosures of what may be inappropriate touching of him by FA and/or RA, while the birth mother was absent from the home.

43. While not proven, in the context of what has been proven, the existence of these allegations and suspicions supports a conclusion that there is an elevated risk of sexual abuse of children in the birth mother’s care. Eventually, she said that she thought FA may pose a risk to the children, and accepted that RA posed such a risk, and that there was a need to be protective towards the children if they were returned to her care. But I think she finds it very difficult to truly regard either RA or FA as now presenting any real threat to her other children. She tends to emphasise their positives, that they regret what they have done, and that they are kind towards the other children. In respect of RA’s assault on MB - about which she was originally somewhat equivocal – she said that it happened because she was working and had to go to work. While I recognise that there may well have been an economic imperative to go to work, the consequence was an exposure to risk, which materialised. It is true, as her counsel emphasised, that it was through her own evidence that the Court was informed of FA’s conviction; but as Ms Starkey indicated, she has used the pre-sentence material chiefly to downplay the significance of FA’s behaviour, and she has elsewhere said (although before me she denied it) that the charges against FA were not his fault, but the result of abuse he had suffered as a child. She conceded to having said:

I am not worried because FA is interested in girls only so would not harm the boys. He, FA, is a good boy. He is trying to do the right thing now and he is sorry for his actions.

44. The birth mother said that she would “definitely” never allow the children to see RA and FA if they were in her care – at least unless they were old enough to make up their own minds at 14 or 15 years, that she would tell FA and RA not to come to the house, and that she had already stopped RA from coming to the house for the last six months. However, she has not stopped EjB and EzB from seeing RA and FA. It is true that RA and FA are no longer members of the household. But while the birth mother says that they do not even stay overnight, at least in respect of FA there are significant inconsistencies in the evidence on this. There is evidence – though she denied it - that on 8 October 2013 she told Detective Poole that FA stayed at the home on and off between his sister’s address in Werrington. At the preliminary hearing, she said that FA was “very rarely” at her home, but in cross-examination at the final hearing she acknowledged that he had visited at least once since then, in December 2013. There is evidence of an unexplained change of position by MS in responding to police inquiries in respect of FA’s place of residence. I find that FA has on occasion stayed overnight in the birth mother’s home since the restoration of the older children.

45. On any view, she has allowed EjB and EzB to have contact with RA and FA – at RA’s place of work – unsupervised by her. She appears to consider that this is safe because it occurs in the presence of others - but those others do not know of the risk, nor have any responsibility for monitoring it. This is indicative of the birth mother’s less than adequate ability to establish and enforce measures to protect her children from the risk of abuse.

46. In conjunction with the restoration of EjB and EzB, the birth mother was referred by Family and Community Services for counselling with the Child Protection Counselling Service, and in her affidavit of 10 September 2013 deposed to attending counselling with the Prince of Wales Child Protection Unit to learn more effective protective behaviours. But in cross-examination the following emerged:

… But I attend five or six sessions and stopped going because they have not taught me anything. They all only talk about myself.

Q. They taught you nothing at all?

A. Nothing at all. I stopped going. I rang and said what’s the use for me to come there. You are supposed to teach me about sexual behaviour and these things to protect my children from other things but it never happened so I am not going to come any more.

47. Asked to explain “it never happened”, she said:

I have attend five sessions and they have never taught me anything. They only talk about myself. And I even asked is this about child protection thing or is it for me to have sessions and counselling for myself.

48. In fact it seems that the birth mother attended only two sessions. The responsible counsellor was concerned that she was focussed on court cases – FA’s criminal defence, and these adoption proceedings – and that this impacted on her understanding of EjB’s and EzB’s emotional needs and the parenting they required as children who had returned to their mother.

49. In Ms Starkey’s words, the birth mother has demonstrated “a complete lack of understanding of the needs of the children for protection from abuse”. In my view, this is closely linked to the feature noted by Mr Schick that she does not accept responsibility for the past but blames others – an understandable enough response in her position, but one which does not augur well for the establishment and enforcement of appropriate protective mechanisms. In my view, if the children were to live with her, they would be exposed to an elevated risk of abuse, as compared to residing with the applicants.

50. If an adoption order is not made, the birth mother proposes to make an application for leave to apply for rescission of the permanent care orders, under the Care and Protection Act, s 90, once there has been sufficient time for the restoration of MB, EjB and EzB to be well-established – which she envisaged might be a period of about 12 months. When asked whether she thought further court proceedings could be disruptive for the children, she answered:

As a mother I would not stop fighting for my children, I love my children and I want my children home.

51. She suggested that restoration might be achieved by increased contact over a period of about a year before the restoration was implemented. She did not think this would be difficult. At the preliminary hearing she gave this evidence:

Q. Do you think that there would be any issues for [the children] in leaving the people they have been living with for three and a half years now to live with you?

A. No Your Honour.

Q. You don’t think they would be – that that change would be a disruption to them?

A. No your Honour.

52. At the final hearing, when asked whether the children would miss the applicants if returned to her care, she answered “Some point, yes”, and thought they would need “counselling and things like that”. She acknowledged that they might be upset “for a while”, and that she would deal with that through counselling and talking to them “and let them go and see them if they want once in a while, maybe like once a month or something like that”. In my judgment that view, while understandable from a birth mother’s perspective, gives excessive weight to the birth connection and insufficient to the emotional connections that have become established since. I do not think she really appreciates how traumatic, and how risky, such a change for these already vulnerable children would be. As Ms Starkey observed, separation from the applicants would be harmful for the children and would likely affect their emotional development.

53. The birth mother was not prepared to acknowledge that the children had done well in the care of the applicants; to the contrary she complained that they seemed undernourished and poorly clothed. While this is a perhaps understandable response of an anxious birth mother, it tends to indicate that her position is concerned more with her maternal needs than to the best interests of the children.

54. For those reasons, in my view, notwithstanding the progress she has made, the birth mother’s parenting capacity – particularly in respect of younger children – remains compromised. Continued deficiencies of parenting capacity are illustrated by her lack of insight into the risks associated with displacing the children yet again, ongoing indicia of lack of organisation in the household, absence of acceptance of responsibility for previous substandard parenting, and inadequate ability to establish and enforce appropriate protective mechanisms to guard the children from abuse.

Proposed adoptive parents

55. For the purposes of s 23(2)(b) and s 28(1)(a), the applicants are domiciled in the state. For the purposes of s 28(1)(b), they are of good repute, fit and proper; the evidence shows them to be principled and highly regarded. Indeed, counsel for the birth mother properly conceded that they were people of good character, and there was no suggestion to the contrary. According to advice provided by the Commission for Children and Young People’s Working with Children Check and Screening Unit, they have no charges or convictions recorded against them. They meet the age requirements of s 28(3). For the purposes of s 28(4), they have been a couple and living together for longer than 2 years; they were married in 1997, in an arranged marriage, but are clearly very compatible and mutually devoted. I am satisfied that the prospective adoptive parents have been selected in accordance with the Act.

56. The male applicant was schooled in Fiji, completed year 12, and won a university scholarship but instead went to New Zealand to study electrical engineering at TAFE. He has been previously married (in 1992) and divorced (in 1995). He moved to Australia in 1998 and has had various employments as a packer and storeperson. He works 28 hours per week, on night shift so that he can be with the children during the day, and be involved in school activities. He earns $1,100 net per week.

57. The female applicant was also born and educated in Fiji and completed year 12 with good grades, but her family was unable to afford her a tertiary education. She obtained casual clerical and secretarial employment, and after moving to Australia in 1992 gained a certificate in nursing and worked in a nursing home. She too has been previously married (in 1990) and divorced (in 1992). She has undergone further training in computing and as a receptionist, and now works part-time 24 hours a week as a receptionist earning about $400 net per week.

58. The applicants live in a four-bedroom single storey brick home, with two living areas, in which there are ample educational and recreational toys, books and playground equipment and plenty of space for running around and play. They are both in good health. They own their home unencumbered, and have the financial resources to support the children.

59. The applicants have demonstrated their commitment to the responsibilities of parenthood by caring for the children since 14 May 2010. They have supported the children through speech and occupational therapies, and counselling, which have enabled the children to make good progress and increase their capacity in a number of areas. Their commitment is demonstrated by the progress the children have made, and the increase in their social skills. As the birth mother’s counsel properly conceded, there was no objective support in the evidence for her suggestion that the children presented on occasions of contact poorly clothed and undernourished. As Ms Starkey observed, having regard to the reported status of the children when they went into care – unable to speak, not toilet trained, unable to use cutlery, etc - their current capacities bespeak a high quality of care.

60. Being of Fijian-Indian origin, the applicants are well-equipped to meet the children’s cultural needs in that respect, and have demonstrated this by engaging the children with their Fijian-Indian heritage through attending festivals, speaking to them in Fijian Hindi, and showing them photographs of Fiji. They have also engaged in life story work to expose the children to information about their birth father’s German culture. As the applicants concede, their ability to foster links to the children’s Islamic heritage is limited. However, the complexity of these children’s’ cultural and religious backgrounds makes it practically impossible to incorporate every element. In respect of religion, the wishes of the birth mother (that they be raised as Muslims) have to be weighed against those of the birth father (who desired that they be raised as Christians); and in any event the birth mother’s priority was Fijian-Indian culture over Islam. The placement with the applicants (who are Pentecostal Christians of Fijian-Indian origin) accommodates as many aspects of the children’s cultural and religious background as can reasonably be expected.

61. The applicants have also demonstrated a capacity and intent to foster birth parent contact. This has been perhaps most evident in the case of the birth father, with whom they arrange contact directly. Contact with the birth mother has proved more challenging. She has expressed concerns about the presence of the applicants at contact, but their presence is responsive to the needs of the children for assurance, and more recently they have been prepared to withdraw to a distance, leaving the children alone in the immediate presence of the birth mother, although the children not surprisingly sometimes run to those to whom they are attached for reassurance. While I suspect that the applicants find contact with the birth mother more difficult – and potentially threatening to their own sense of security – than with the birth father, they have consistently enabled it, and I am satisfied that they understand that it is important, if these children are to grow up as rounded and complete people with a well-developed sense of identity, that they continue to do so, and that they positively encourage the children to sustain a relationship with the birth mother, even if at times the children resist it.

62. There is no doubt that the children have become attached to, and have an excellent relationship with, the applicants, and see them, psychologically, as their parents. The applicants have demonstrated a proper attitude to the responsibilities of parenthood, and that they have the capacity to meet the children’s needs, physical and emotional, now and in the future. That the children have overcome developmental delay, are in good medical and dental health, are performing satisfactorily at school, and have become attached to the applicants, is testament to the quality of care they have received. The applicants are able and willing to take full responsibility for making decisions about their welfare. The children are fortunate to have found such a placement. In my judgment, the applicants’ capacity to parent these children is clearly superior to that of the birth mother.

Would adoption promote the children’s best interests, in the light of the alternatives?

63. Consideration of whether adoption would promote the children’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 children, so as to conclude whether adoption is, or is not, clearly preferable to all the others. The alternatives to adoption that require consideration in this case – some in greater depth than others - are (1) restoring the children to the care of the birth mother, now or in the future; (2) a parental responsibility order in favour of the applicants; (3) maintaining the status quo, with the Minister having parental responsibility and the children in foster care, albeit residing with the applicants; and (4) deferring making a decision about adoption.

The effects of adoption

64. Given that the children are already residing with the applicants, an adoption order may not effect any immediate or overt improvement in respect of the arrangements for their residence, education, and care. However, that does not mean that it would have no beneficial impact.

65. First, an adoption order would provide certainty and permanence for the children, both directly, and indirectly through the additional certainty it will afford the adoptive parents. The possibility of further changes, disruptions and separations will be minimised. The aspirations to restoration expressed by the birth mother will be practically foreclosed. In these ways, and others, adoption will contribute to providing for the children the stability, security and certainty that they need - particularly in a case such as the present, where there has been considerable past turbulence and associated vulnerability.

66. Secondly, the children would be raised in a legally recognised family, rather than remaining State wards for the duration of their childhood; they would no longer be in “out-of-home” care, but in “in-home” care. The need for departmental intervention, and departmental approval for significant decisions of the applicants, would be removed, as would be the stigma potentially associated with being State wards.

67. Thirdly, the children’s legal status would be brought into conformity with reality, and their identity needs would be served by perfecting their membership of the family with which they identify, while preserving the opportunity for them to know and have some relationship with their birth parents through contact. Psychologically and residentially, they are members of the proposed adoptive family. An adoption order would bring the legal position into line with this, and would perfect their sense of permanent belonging in the family which they identify as their own, not only during childhood, but for life. One important aspect of this is that their legal name would correspond with that of the family with which they live and identify, and they would be enabled to choose for themselves whom they tell of their status, without it being self-evident from their names. While an adoption order would, of course, legally sever the parental relationship between the children and the birth parents, those relationships have, in reality, been (in the case of the birth father) devoid of parental responsibility, and (in the case of the birth mother) involved limited parental responsibility, for less than three years.

68. While it is accepted that adoption carries a risk that the children may feel unwanted or abandoned, such risk is incidental more to the circumstance that they do not reside with their birth parents, than to an adoption order per se: whether in foster care, or under a parental responsibility order, or adopted, there is the same potential for the question, “why do we not live with our birth parents?”. Thus, declining to make an adoption order in favour of some other solution, short of restoration, does not remove the risk of a sense of loss or abandonment. However, the risk is mitigated by the circumstances that the children know their birth parents, and can continue to have a relationship with them. While the legal parental relationship with the birth parents would be severed, they would not cease to be the birth parents; the relationship with them can be maintained through contact, while legal parenthood would appropriately reside with those who are discharging the responsibilities of parenthood.

Restoration?

69. The birth mother propounds restoration, in the future if not immediately, as an alternative. Moreover, because of the permanency of an adoption order, and the general preference based in human nature and experience that, where practicable, children are best raised by their birth parents, the Court must in any event consider that once an adoption order is made, the possibility of restoration is practically foreclosed, and future decision-making in respect of the children is vested in the adoptive parents. However, although I have previously suggested that the Court would not likely make an adoption order if there were a realistic prospect of restoration [see, for example, Adoption of NG (No 2) [2014] NSWSC 680, [83]], on reflection that overstates the position, which is more accurately stated as that the Court would not make an adoption order unless satisfied that the advantages of adoption clearly outweighed the benefits of preserving the possibility of restoration.

70. The concept of a “reasonable possibility of restoration” is one derived from the Care and Protection Act, s 83(1), which provides that on an application for a care order, the Secretary must assess whether there is a realistic possibility of a child being restored to his or her parents, having regard to the circumstances of the child and the evidence that the parents are likely to be able to satisfactorily address the issues that have led to the child’s removal. In In the matter of Campbell [2011] NSWSC 761, Slattery J (at [55]ff) explained that a possibility involved something less than a probability – that is, something that is not impossible; and that to be realistic, it had to be real or practical - not fanciful, sentimental or idealistic or based upon “unlikely hopes for the future”.

71. There is no equivalent statutory concept in the Adoption Act. Moreover, in a case such as the present, there will already be in place an order of the Children’s Court allocating parental responsibility to the Minister until the children attain 18 years of age, implicit in which is a conclusion that restoration is not a realistic possibility. While that conclusion does not bind this court - and between the time when a care order is made in the Children’s Court, and an adoption application is considered in this court, much can change (indeed, the Care and Protection Act itself admits, by s 90, of an application for restoration, by way of rescission of the care order, in the event of a change of circumstances, notwithstanding that a final order allocating parental responsibility to the Minister until 18 is in place) - nonetheless, there will have already been a judicial decision, by a specialist court, that the children cannot be satisfactorily cared for by the birth parents, such as to require long-term removal, and that restoration is not a realistic possibility.

69. If this Court were satisfied that restoration, now or in the future, was in the best interests of the children, it could not be satisfied that adoption was “clearly preferable”. But short of such a conclusion, while the Court should take into account, on the one hand, that an adoption order would practically preclude the possibility of restoration, that must be weighed on the other against any disadvantages of preserving that prospect, and the advantages of adoption. Typically, countervailing considerations will include the undesirability of uncertainty and associated instability and insecurity, the risks associated with disturbing an established and functional status quo, and the relative parenting capacities of the birth parents and the adoptive parents.

70. At the time of the hearing, it was close to two years since MB had returned home to his mother, and 18 months since EjB and EzB had done so. No breach has been identified of the formal undertakings given by the birth mother to the Children’s Court in connection with the restoration. While some concerns have been expressed, all in all the restoration has been reasonably successful: the older children remain with their mother; MB appears to be doing very well in many respects; EjB and EzB appear to be coping, and no longer to require the ADHD medication they were administered when in foster care. All three are plainly happy to be back in their mother’s care. All that suggests that there is a realistic possibility that if the children were returned to the birth mother, perhaps when they are a few years older and able to assume some responsibility for themselves, they may cope.

71. But the prospects are significantly less than in the case of the older children, because there are very great differences between circumstances of the subject children and the older children; and even if successful, restoration would come at a cost. The older children were well-attached to their mother, and the bond was not severed despite their placement in foster care; in the case of the subject children, such attachment as there was has been well and truly severed. The older children (other than IB) had a bad experience in foster care, which drove their desire to return to their mother, while IB - who did not share their bad experience - wishes to remain in foster care despite their urgings; the subject children have had an excellent experience in the care of the applicants. The older children do not appear to have become attached to their foster carers; the subject children clearly have. The older children are of an age where they can attend to many of their own needs; the subject children are much younger and still dependent on their carers for many of their daily needs. Moreover, the vulnerability of the children to attachment disorder arising from their disrupted early years increases the risk that they would not re-attach to their birth mother; and, as already observed, the disruption involved would likely be harmful to the children’s emotional development.

72. Even if it were demonstrated that the birth mother could provide care for the children of a quality equivalent to that provided by the applicants, that would be insufficient to make restoration preferable in the interests of the children, now or in the future. Restoration would involve a move from the residence, the family, the connections and the environment which has provided these children’s longest by far period of stability. It would disrupt current well-established, stable, secure and supportive arrangements. As Ms Starkey has said, it would involve severing their present bonds of attachment in a context where their disrupted early years have already left them vulnerable, and thus still further jeopardise their already compromised ability to form and establish secure attachments. The birth mother tentatively proposed a gradual restorative process, perhaps over between three and nine months, supported by psychologists and appropriate professionals, during which the children would spend increasing periods with her, culminating in permanent restoration. For the children, this process of increasing contact, while residing primarily with the applicants, against the prospect of separating from them at the end, when their bonds of attachment with the applicants are the strongest they have ever known, would plainly be a highly stressful, difficult and emotionally taxing situation – as it would be also for the applicants. I do not think it is in the children’s interests to be subjected to such a process.

73. In this case, additional factors point against restoration being in the children’s best interests. First, as I have already concluded, while the birth mother has made steps to improve her parenting capacity, the applicants’ capacity to parent these children is clearly superior to that of the birth mother. Secondly, restoration would still involve unknowns and risks, which are absent from the status quo. Not least among them is that on any appraisal, the risk of the children being subjected to abuse, including sexual abuse, is higher if they are in the care and residence of the birth mother than the applicants. There is no suggestion that in the care of the applicants the children are at any risk of abuse. But as already explained, although there is no suggestion that the birth mother would herself abuse the children, there is an unhappy history of abuse in her environment, and her ability to protect the children from abuse is compromised. This is a significant consideration, given the history.

74. As it seems to me, accepting that there is a realistic possibility – falling well short of a probability - of the children being successfully restored to their mother’s care, doing so would be significantly more difficult to manage than was the case with the older boys, and there would be a greater risk of failure; and even if successful, it would be associated with a considerable risk of harm to the children from disrupting their secure attachment to the applicants, and with a lesser quality of care and greater risk of abuse than the status quo.

75. Thus, though were I the Children’s Court contemplating for the first time whether in the current circumstances a permanent care order should be made I would incline to the view that there was a realistic possibility of restoration and not make a permanent care order, that hypothetical situation is not what confronts me. A permanent care order was made, albeit when different circumstances prevailed, five years ago. Since then, new relationships and environments have been established, and with them new bonds of attachment. Restoration would fracture those bonds, and move the children to a less safe and beneficial alternative. It is not in their best interests to be uprooted from where they are well-established, happy, safe and progressing well, for the perceived advantages of residing with their birth family in an environment which, though no longer unacceptable, is not as satisfactory as that which the applicants offer. Any advantages there may be in preserving the possibility of restoration are outweighed by the impact of continued uncertainty on the security of a well-established and beneficial placement.

Parental responsibility order in favour of applicants?

79. While a parental responsibility order in favour of the applicants, as distinct from an adoption order, would alleviate the requirement for the intervention of the Department in significant decisions about the child, while avoiding the irrevocability of an adoption order, it does not offer the other benefits of adoption, referred to above. I have elsewhere accepted a description of the status that would result as being “like living together but not married” [Adoption of BS (No 3) [2013] NSWSC 2033, [75]]. In particular, such an arrangement would last only until 18 years of age, and would not provide a lifetime family for the children. Further, having concluded that restoration is not in the best interests of the children, the advantages of flexibility in preserving the possibility of restoration in the future is outweighed by the disadvantages of not extinguishing the remaining uncertainty about the permanency of the child’s placement.

80. Moreover, neither the Secretary nor the applicants sought a parental responsibility order, even as an alternative, because the applicants do not wish to assume the burden of parental responsibility – including, in particular, the conduct and costs of future litigation, such as the s 90 application foreshadowed by the birth mother - without the security of an adoption order. It would not be fair to foist on them that responsibility upon terms which they have never accepted [cf Adoption of SRB, CJB and RDB [2014] NSWSC 138, [52]]. This practically excludes a parental responsibility order as a viable alternative.

Maintain the status quo?

81. Where a parental responsibility order is not sought, and restoration is not in the best interests of the children, the only realistic alternative to adoption is maintenance of the status quo, with the children remaining in “out-of-home” care under the responsibility of the Minister and residing with the applicants as foster parents. This would maintain a situation in which the children were less than complete members of the family of which they are de facto members, and leave a state of uncertainty as to their future, particularly in the light of the birth mother’s stated intent of bringing a s 90 application if an adoption order is not made. Again, given the conclusion that restoration is not in the best interests of the children, the “benefit” of flexibility in this respect is more a detriment.

82. This course would have the significant further disadvantage of leaving the children as wards of the Minister, with the consequence that departmental approval of significant decisions concerning their care and welfare is required. The applicants are well able to exercise decision-making responsibility for the children, as they have demonstrated since assuming responsibility for their care, and it is preferable that such decisions be entrusted to those who love the children and know them far better than responsible departmental officers, however well-intentioned, ever could. And as with a parental responsibility order, such an arrangement would not give the children a family for life.

Defer consideration?

83. Theoretically, the Court could defer final determination of the adoption question until the children are older, for example aged twelve, when they could themselves decide whether or not to consent to adoption. However, it is not in the children’s interests to defer making a decision, when the consequence would be to preserve uncertainty and promote instability. To do so would also contravene the principle in s 8(1)(e1) of the Act, which provides that ‘undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare’.

Is adoption clearly preferable?

84. For the purposes of s 91(1), a report in writing dated 22 May 2013 concerning the proposed adoption was provided to the Court. The reporter Ms Sprent concluded that adoption was the most appropriate plan for the children; that the environment provided by the applicants was loving, nurturing and supportive; and that adoption would promote their welfare and ensure stability and certainty, and give legal effect to what they already feel (in the sense of membership of the family). It would also remove the threat of an application for restoration. On the other hand, a parental responsibility order would leave open the possibility of an application for restoration, would not afford the benefits of the legal status of membership of the applicants’ family, and would not meet the children’s and the applicants’ needs for certainty.

85. In addition, the parties’ single expert Ms Starkey was of opinion that adoption would be in the best interests of the children in terms of their long-term stability, their emotional security, and their long-term personality development.

86. In my view, likewise, adoption is clearly preferable, as it would provide a degree of stability and security, and a life-long family, that no alternative offers. Given the well-established and beneficial status quo, in which the children are happy, safe and making good progress; their attachment to the applicants; the undesirability of further disruption, especially against the background of their disrupted early years; the considerable challenges posed by and risks associated with restoration; the superior parenting capacity of the applicants; and the elevated risk of abuse in the care and residence of the birth mother; restoration is not in the best interests of the children. A parental responsibility order would still leave the children incomplete members of their household and the family of which they identify as members, and maintain uncertainty as to the permanence of their placement. In any event, as such an order is not sought, it is not a viable alternative. Leaving the children in permanent out-of-home care, albeit placed with the applicants, would have all the disadvantages of a parental responsibility order, and in addition leave the children as wards of the Minister, requiring ongoing departmental supervision and intervention. Any advantages in the flexibility afforded by not making an adoption order (and thus preserving the possibility of restoration) are manifestly outweighed by the impact of continued uncertainty on the security of a well-established and beneficial placement, and the benefits of providing these children with certainty and security in a family which they will be able to consider theirs for life. This is of increased importance given their disrupted early years. It is not in their interests that the possibility of restoration be preserved. While adoption will sever the legal parental relationship with the children’s birth parents, links can be maintained through contact. In any event, these children plainly identify as members of the applicants’ family. Adoption is superior to all alternatives in respect of the provision of certainty and security, perfection of their relationship with the family with which they identify, conformity of the legal parental relationship with the factual situation that the applicants - and not the birth parents - practically have and exercise parental responsibility, and is consistent with the wishes of the children.

87. In my judgment, therefore, subject to securing appropriate birth parent contact, the best interests of the children will be promoted by adoption by the proposed adopting parents, and the making of an adoption order would be clearly preferable in the best interests of the children to any other action that could be taken by law in relation to their care.

The adoption plans

88. Birth parent contact is an important aspect of satisfying the identity needs of children who do not reside with their birth family, and mitigating the risks of later identity issues. The proposed arrangements for birth parent contact are detailed in two adoption plans – one making provision for contact with the birth mother and the children’s siblings, and the other with the birth father – which have been agreed between the Principal Officer of Barnardos and the applicants.

89. Although a non-consenting birth parent is not otherwise a party to the adoption, under Adoption Act, s 46(2B), a non-consenting birth parent who agrees to an adoption plan is to be treated as if he or she were a party to the adoption for the purposes of the making, registration and review of the adoption plan. While the birth mother has not agreed to the maternal adoption plan, nonetheless as the parties to the adoption (being in the circumstances the Principal Officer and the applicants) have agreed to an adoption plan, the Court may not make an adoption order unless satisfied that the arrangements proposed in the plan are in the children’s best interests and are proper in the circumstances [Adoption Act, s 90(2)]. Further, the arrangements for birth parent contact are relevant to whether an adoption order should be made, because they bear on whether the children’s identity needs will be adequately addressed, and thus whether adoption is in their best interests.

90. The paternal adoption plan provides for twice yearly contact with the birth father. That accords with what he seeks, and will provide an opportunity and means, if a limited one, for the children to continue to know the identity of their birth father. There is no issue about that plan.

91. The maternal adoption plan - as amended in the course of the hearing - provides for contact five times per year with the birth mother and the older children. This reflects the current pattern of contact, and the recommendations of Ms Starkey. The plan was amended in the course of the hearing, to accommodate concerns expressed by the Court to the effect that such plans should not generally contain provisions – as this plan originally did - that contact will occur only if the children agree; this was replaced by a provision that after they attain 12 years of age, their wishes in relation to contact will be taken into account.

92. Although no submissions were made in respect of the maternal adoption plan, two issues were touched on in the course of the evidence. The first was the supervisory role of the birth parents. The Adoption Plan provides for Barnardos to continue to supervise contact for up to 12 months, supporting the applicants gradually to assume the role of supervision. Ms Starkey said:

I know that [the birth mother] is not happy about the idea of the adoptive parents being the supervisors. I wonder if there would need to be some kind of work and during an adversarial Court process isn’t the time to do it, but afterwards that may need to be done in order for them to build up some kind of relationship in which they would be able to do that, because it would not be constructive for the boys to be at contact with the natural mother, if there’s a tension and antagonism between the mother and the adoptive parents.

Those things would make contact negative for the children and may affect the possibility that the mother would be able to have, you know, a close relationship with them, because they are more likely to blame her than the adoptive parents, given their attachment base is with the adoptive parents. One needs to be careful about that, so that might need to be reviewed at 12 months, whether Barnardos are able to step out during the 12-months to try and bring that about in a positive way rather than it being a negative experience for all involved.

93. In my view, the provision made by the plan for ongoing supervision by Barnardos for the time being, with a view to the applicants ultimately becoming the supervisors, is in the children’s best interests and proper in the circumstances. This should enable the position post-adoption to settle, and work to be done to improve the relationship in the meantime. The birth mother will need to appreciate that the interests of the children are that her relationship with the applicants, post-adoption, be a cordial one, and that establishing such a relationship will also promote her prospects of sustaining an enduring relationship with the children.

94. The second was contact with the adult children, and in particular FA and RA. The plan makes no provision in respect of contact with them (save that it provides that MS may be permitted to attend contact if notice is given and the applicants consider that it is in the children’s interests that she do so). Ms Starkey was of the view that the children should not have unsupervised contact with FA and RA:

A. I think probably all of the children should have no contact with them unsupervised. I don’t see any benefit for these boys in actually having contact with the older boys that have no reality in their life, while they are so young. When they are older perhaps, you know, in high school or maybe 10, 12-ish when they can make an informed decision about whether they want to meet them that may be a reasonable thing. But I think for these boys it’s going to be quite a lot of – there’s a lot of people in the family that they kind of need to have relationships with them already. It’s preferable that they have relationships with the safe ones.

Q. I’m going to suggest to you that if the contact between [FA] and [RA] is appropriately supervised that they should know who their brothers are and provided of course that [RA] and [FA] behave appropriately for the purposes of that contact visit; so rather than those two members of the family that are excised from the family that there is still benefit for [RCC] and [RZA] to know, to be able to identify [RA] and [FA]?

A. I think that may be a possibility in the future. I think that these children are too young to make an informed decision about that. I think they should have a choice between whether they meet these adult siblings, who are – they are risk factors, they are part of the reason why the children were removed. I think that needs to be taken into account in looking at contact with them in the future. It’s also the case that one would need to perhaps have external supervision of that sort of process, because I don’t think that the adoptive parents are probably experienced enough with the kind of subtle things that alleged perpetrators can do at contact visits to be able to supervise that effectively.

95. When pressed that even abusive parents had identity contact with children because it is for the benefit of the child to know who they are, in order to fit within their understanding of what constitutes their family, she said:

I think the issue around biological parents is a bit different to half siblings that even though there is a suggestion that the natural father was abusive in the sense of exposing them to domestic violence and so forth him having contact with them in a supervised setting is going okay and that’s a positive thing and they are able to get their identity though that. Plus there are four other siblings who they can get to know.

I think the issue of the older half siblings, perhaps with the exception of [MS], they don’t really need to have that close identity formation with them. I think they will be able to establish their identity quite clearly without necessarily having contact with them. The issue of perhaps looking at it when they are older and are able to be taught safe behaviours, so they know not to go off with this person or whatever I think that’s a really important thing. It is alleged in the documentation that these older boys have sexually abused all six of the younger children in different parts and I don’t know whether – some of those things are not substantiated, I know. But we need to be really careful about exposing these children to such risks.

96. While I do not subscribe to the view that whether there should be such contact is primarily a matter for the children to decide, I am unpersuaded that it is appropriate or necessary to make provision by order or in the adoption plan for contact with the children’s adult half-siblings. Decisions about such contact can be made by the applicants, in consultation with the children as they mature. There is little evidence that it is something in which the adult children have much interest. In my view, the proposal for such contact is more a reflection of the birth mother’s need to sustain a sense of family than addressed to any needs of the subject children. The Adoption Plan is not other than in the children’s best interests and proper in this respect.

97. Accordingly, I am satisfied that the arrangements proposed in the adoption plans are in the children’s best interests and are proper in the circumstances, and are likely to mitigate the risks to the children’s identity needs that would otherwise arise from separation from their family of origin.

98. The Secretary proposed that the maternal adoption plan be registered. Registration will provide an additional measure of assurance to the birth mother in respect of contact, as a registered plan is enforceable as if it were an order of the Court [Adoption Act, s 50(4)] and, although she is not a party to the plan, she is entitled to enforce the deemed order for her benefit [Director-General, NSW Department of Family and Community Services; Re JS [2013] NSWSC 306]. I am satisfied, for the purposes of s 50(3), that the plan does not contravene the adoption principles, that the parties to the adoption understand its provisions and freely enter into it, and that its provisions are in the children's best interests and proper in the circumstances. Accordingly, I will register the plan.

Formal requirements

99. For the purposes of s 87, the application is made by the Secretary, by his delegate the Principal Officer Barnardos. The Minister, who has parental responsibility, has, by an authorised delegate, consented. For the purposes of s 88, the only person whose consent to the adoption is required and has not been given is the birth mother. I am satisfied that at least 14 days’ notice of the application for the order, containing the prescribed particulars, has been given to her.

Consent dispense order

100. I have already referred to the policy, embodied in s 67(1)(d), that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is 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.

101. For the purposes of s 59, the birth mother was provided with a copy of the Mandatory Written Information on 7 July 2011 (when she refused to accept it), 13 June 2012 (by registered post, returned unclaimed) and, finally, 7 July 2012. For the purposes of s 72, I am satisfied that at least 14 days’ notice of the application for a consent dispense order has been given to her; she has been joined as a defendant having filed notice of appearance in the proceedings and has appeared by counsel to oppose the orders. For the purposes of s 67(1)(d), the applicants are authorised carers and each of the children plainly has established a stable relationship with them. As I have concluded that making an adoption order would promote the children’s welfare and be in their best interests, it is necessarily also in their best interests to make a consent dispense order, so as to allow the adoption order to be made notwithstanding that the birth mother does not consent to it. The conditions for making a consent dispense order in respect of the birth mother are therefore satisfied.

102. Accordingly, I will make an order pursuant to s 67(1)(d) that the consent of the birth mother be dispensed with.

Names

103. The Secretary seeks an order that the children be known by the given names "RdC” and “RnZ” respectively, and the surname “P”, where the proposed given names are their current given names, and the proposed surname is the family name of the applicants.

104. Adoption Act, s 101, relevantly provides that on the making of an adoption order, an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents. Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes. The Court must not approve a change in the given name or names of a child who is more than one year old unless the Court is satisfied that the name change is in the best interests of the child. The adoption principles set out in s 8 include, in (e), that a child’s given name or names, and identity, should, as far as possible, be preserved.

105. Upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child’s family name accords with that of his or her legal family. Indeed, children see that outcome as one of the most significant indicia of the sense of “belonging” that adoption is intended to nurture, and not to do so would detract from the benefits of adoption. The proposed surname P accords with this approach, and will recognise the children’s place in the adoptive family and reinforce their sense of permanency and belonging, in that they will be in name as well as in law a member of the adoptive family. Moreover, the children have expressed a wish to have the surname P.

106. No change is proposed to the children’s given names which, in conformity with adoption principle (e), will be preserved.

107. The children are therefore to have the surname “P”, and the given names "RdC” and “RnZ” respectively.

Conclusion

108. For the reasons summarised in [86] above, in my judgment, the making of an adoption order would be clearly preferable in the best interests of the children to any other action that could be taken by law in relation to their care. For the purposes of s 90(1)(a), I am satisfied that the best interests of the children will be promoted by adoption by the proposed adopting parents. For the purposes of s 90(1)(b), so far as practicable having regard to the age and understanding of the children, I have, as recorded above, ascertained and given due consideration to the wishes and feelings of the children, which favour adoption. For the purposes of s 90(1)(c), I am satisfied that the prospective adoptive parents have been selected in accordance with the Act. For the purposes of s 90(1)(d), I am satisfied that consent to the adoption of the children has been given by every person whose consent is required under the Act, other than the birth mother. For the purposes of s 67(1)(d), the applicants are authorised carers and each of the children has established a stable relationship with them, and I am satisfied that it is in the best interests of the children to make a consent dispense order, so as to allow the adoption order to be made, notwithstanding that the birth mother does not consent to it. In respect of birth parent contact, I am satisfied that the arrangements proposed in the adoption plans are in the children’s best interests and proper in the circumstances, and that the maternal adoption plan should be registered. Upon adoption, the children are to have the surname “P”, and the given names "RdC” and “RnZ” respectively.

109. Accordingly, the Court orders that:

110. A. In respect of the child RdCC

(1)   pursuant to (NSW) Adoption Act 2000, s 67(1)(d), the consent of the child's natural mother FB be dispensed with.

(2)   the child RdCC be adopted by the adopting parents DP and AP, and approves the name 'P' as the surname and RdC as the given names of the child.

(3)   pursuant to Adoption Act, s 50(3), the maternal adoption plan dated 12 June 2014, being exhibit PX12 herein, be registered.

B.   In respect of the child RnZA:

(4)   pursuant to (NSW) Adoption Act 2000, s 67(1)(d), the consent of the child's natural mother FB be dispensed with.

(5)   the child RnZA be adopted by the adopting parents DP and AP, and approves the name 'P' as the surname and RnZ as the given names of the child.

(6)   pursuant to Adoption Act, s 50(3), the maternal adoption plan dated 12 June 2014, being exhibit PX12 herein, be registered.

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Decision last updated: 24 June 2015