Re: Adoption of ‘T': Anonymised

[2020] NSWSC 158

Supreme Court

New South Wales

Medium Neutral Citation:	Re: Adoption of ‘T’: Anonymised [2020] NSWSC 158
Hearing dates:	3 February 2020
Date of orders:	03 February 2020
Decision date:	03 February 2020
Jurisdiction:	Equity - Adoptions List
Before:	Sackar J
Decision:	Adoption order made
Catchwords:	FAMILY LAW – Children – Adoption – Whether adoption clearly preferable – whether adoption is in child’s best interests – consent –change of name
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	Adoption of Hogarth (No 2) [2019] NSWSC 9 Adoption of KH [2015] NSWSC 274
Texts Cited:	n/a
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Communities and Justice (Plaintiff) Birth mother (Defendant)
Representation:	Solicitors: Crown Solicitor of NSW (Plaintiff) Self-represented (Defendant)
File Number(s):	2019/261996

Judgment

1. These proceedings concern the adoption of TSU (‘T’) in favour of VNX (‘the proposed adoptive parent’).

2. The Secretary, New South Wales Department of Communities and Justice (‘the Secretary’) by Summons filed 22 August 2019, seeks the making of the following Orders:

An order for the adoption of the child TSU in favour of the adopting parent VNX.

That pursuant to Adoption Act 2000, s.101(1) the court approves the name “X” as the surname and “TS” as the given names of the child.

3. The birth mother filed a notice of appearance on 4 September 2019. However, on 20 January 2020, she wrote to the Court to advise that she no longer wished to participate in the proceedings although she did not support the adoption. In her letter she stated:

I am writing this letter to say I am not happy about the adoption and never will be but I fully understand that is T’s choice and I fully understand and respect that. I just want her to be happy and that what really matters to me (sic).

4. The birth mother confirmed the intentions expressed in her letter via telephone during the hearing. The birth father passed away before T was born.

5. The proceedings were conducted before me on 3 February 2020. At the conclusion of the hearing, I gave short reasons and made the orders sought by the Secretary. I now publish my reasons in full.

Background Facts

6. T was born in January 2005. She was placed in the proposed adoptive parent’s care in July 2014 when she was nine and a half years old. She has remained in the proposed adoptive parent’s care since that date and is now 15 years old.

7. T has two full siblings, JLS (born December 2001) and JWS (born August 2003), and two maternal half siblings, AM (aged approximately 35) and KC (aged approximately 33).

8. Communities and Justice’s records show a significant and lengthy child protections history in relation to T and her siblings. Between January 1998 and June 2010, Communities and Justice received 30 risk of significant harm (‘ROSH’) reports in relation to T and/or her siblings alleging physical abuse, neglect, risk of sexual harm and alcohol and drug use by the mother.

9. Of particular note, on 5 November 2009, Communities and Justice received a ROSH report which alleged that T’s sister, A, had been sexually assaulted by a friend of her mother, Mr L. This led to an Apprehended Violence Order (‘AVO’) being put in place which prevented Mr L from entering the mother’s home for a period of three years.

10. Further, on 15 June 2010, Communities and Justice received a ROSH report which stated that a male (who is now married to the birth mother) was due to finish his parole in Queensland and was planning to move in with the birth mother the next day. Community and Justice’s enquiries indicated that this man’s criminal history included crimes against children, including possession and distribution of child pornography and indecent treatment and dealings with a child under 16 years old. On 16 June 2010, Acting Child Protection Manager, Ms Archibald, informed the birth mother that if this male came to her home, the children would be removed from her care.

11. On 17 June 2010, a caseworker attended the birth mother’s home and found Mr L at the home in breach of the AVO. On 18 June 2010, the police conducted a welfare check of the birth mother’s home and found Mr L inside. On 19 June 2010, Ms Archibald, the caseworker and the police attended the birth mother’s home and again found Mr L inside the home. T, A and J were removed from the birth mother’s care due to risk of sexual harm. Once in care, T and V made numerous disclosures of sexual abuse by multiple men whilst they were in their birth mother’s care.

12. On 25 November 2010, the Children’s Court found that there was no realistic possibility of the children returning to the birth mother’s care and made final orders placing the children under the parental responsibility of the Minister until they attain the age of 18 years.

13. T has experienced seven placement changes since her removal from the birth mother’s care. Initially, she was placed along with A and J. On 16 August 2010, J was moved to a separate placement due to difficult behaviours. On 25 July 2014, T was moved from her placement with A and placed with the proposed adoptive parent. Life Without Barriers’ files indicate that T’s placements were changed due to sexualised behaviour between the siblings and A causing harm to T; an individual placement with the proposed adoptive parent was deemed to be in T’s best interests.

14. In 2011, T was diagnosed with Reactive Attachment Disorder. Prior to her placement and, over time, her behaviour has been impacted by her trauma and Reactive Attachment Disorder. The proposed adoptive parent has educated herself about how best to parent a child with trauma and T has received regular counselling. T’s Semester Two, 2018 school report noted that T has worked hard to receive sound results across a range of subjects and that there was a consensus from teachers that T is polite and energetic. Her Individual Education Plan for 2019 stated that T was not presenting with significant symptoms or behaviours associated with Reactive Attachment Disorder. T is passionate about horse riding and has her own horse which is cared for on the proposed adoptive parent’s property.

15. At present, T chooses not to have contact with her birth mother. However, she contacts her siblings, A and J, via messenger, phone and face time regularly. She sees J at least once a fortnight, usually for an outing or a meal together with members of their foster parents’ extended families. A comes to stay with T for block periods during school holidays.

Legal Principles

16. When considering adoption, the best interests of the child concerned must be the paramount consideration at all times: ss 7 and 8 of the Adoption Act 2000 (NSW) (‘the Act’).

17. Section 8(2) sets out certain factors that the decision maker must take into account when determining the best interests of the child. These include any wishes expressed by the child (s 8(2)(a)); the child’s age, maturity, level of understanding, etc (s 8(2)(b)); the child’s physical, emotional and educational needs (s 8(2)(c)); the relationship the child has with the proposed adoptive parent/s (s 8(2)(h)); the child’s relationship with their birth family (s 8(2)(f)); and the need to protect the child from physical or psychological harm (s 8(2)(j)).

18. In addition, s 90(1) of the Act prevents the Court from making an adoption order unless it is satisfied that that the adoption will promote the best interests of the child; that the wishes and feelings of the child have been ascertained and due consideration given to them; that the proposed adoptive parents have been chosen in accordance with the Act; that consent to the adoption has been given by every person whose consent is required under the Act; and that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account.

19. Section 90(2) provides that if the parties to the adoption have agreed to an adoption plan, the Court may not make an adoption order unless it is satisfied that the plan is in the child’s best interests and proper in the circumstances.

Section 90(3) prevents the Court from making an adoption order unless it considers that the making of the order would be clearly preferable to the best interests of the child than any other action that could be taken. In relation to this requirement, Brereton J said in Adoption of KH [2015] NSWSC 274 (at [46]):

This requires identification of the likely effects of adoption, and of the various available alternatives, and their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is or is not clearly preferable to all others.

20. Further, in Adoption of Hogarth (No 2) [2019] NSWSC 9, Brereton J considered the benefits of adoption over long-term foster care (at [51]-[52]). His Honour considered that in general an adoption order will contribute to providing the stability, security and certainty that children who cannot be raised by their birth family need. His Honour also considered that adoption serves the identity needs of such children by bringing their legal status in conformity with their reality and allowing them to be raised in a legally recognised family rather than remaining “State wards”.

21. In relation to consent, s 52 of the Act prevents the Court from making an adoption order unless the consent of each birth parent is obtained. However, s 54(1)(c) provides that consent is not required under s 52 if the child gives sole consent to their adoption in accordance with s 54(2). Relevantly, s 54(2) provides:

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

22. The child’s consent must be given in accordance with s 55, which requires the child to be counselled in accordance with s 63. At least 14 days’ notice of the application for the adoption order must be given to the parent whose consent would otherwise be required (ss 54(3), 88).

23. Finally, a Court must not order a name change for the child unless satisfied that the name change is in the best interests of the child (s 101(5)).

Evidence

24. The Secretary relied on several affidavits. In particular I note the affidavit annexing the s 91 court report by Ms Griffin (dated 15 August 2019). In her report, Ms Griffin notes that:

When the Assessor asked t why she wanted to be adopted she said that she wants to be part of [the proposed adoptive parent’s] family and for [the proposed adoptive parent] to be her mum… She said that [the proposed adoptive parent] keeps her safe and provides her with a loving home and lots of fun and things to do… T said that she could “stay here permanently” and that she would “be part of a family that will have unconditional love for me and I will be safe.”

25. In relation to the proposed change of name, Ms Griffin notes that:

T has requested that she retain her current first and second names and replace U with X. She told the Assessor in her last conversation on 1 August 2019 that she believes removing U from her name will “give me a fresh start”.

26. Ms Griffin is of the view that ‘the positives of adoption far outweigh any negatives and that adoption is determined to best meet the needs of T now and into the future.’

27. I also note Ms Griffin’s later affidavit (dated 25 November 2019). Ms Griffin states that on 29 October 2019, she visited T at the office of T’s psychologist where she informed T that the birth mother was contesting the adoption. On 12 November 2019, she received an email from T’s psychologist stating that T had written a letter to the Court regarding her feelings about the birth mother contesting the adoption and attaching a scanned copy of the letter. That letter is annexed to the affidavit and expresses T’s disappointment at her mother’s response to the proposed adoption.

28. I note the affidavit of the delegate, Mr O’Brien (affirmed 16 August 2019), which, along with the attached exhibit A01, outlines T’s placement and care history. Included in exhibit A01 is a letter from T to her birth mother, dated 23 October 2018, which states:

I would like you to know that it is my decision not to see you because of [male] after knowing what he did to us, Mum I’m also not ready to have visits with you yet because I don’t want to bring back the sad and miserable past into the happy and joyful future… I have decided I would love to be adopted by [the proposed adoptive parent].

29. The exhibit also includes a s 63 Capacity to Consent report completed by registered counsellor, Ms Mole, and dated 18 March 2019. It states that ‘T is a 14-year-old adolescent whom has sufficient maturity and is capable of understanding the effect of signing the instrument of consent in giving her consent to adoption.’ Ms Mole assessed T’s capacity to consent again on 5 August 2019 via telephone and reached the same conclusion.

30. The proposed adoptive parent swore one affidavit on 26 August 2019. She states that she is assisting T to know her life story by seeking out information as T requests it. She also states that T asked her to adopt her in August or September 2014 and that they have had regular conversations about adoption since that time.

31. I also note the affidavits of the referees and the affidavits of service.

Consideration

32. Having regard to all the circumstances and the factors contained in ss 7 and 8 of the Act, I am of the view that an adoption order is in T’s best interests and clearly preferable to any other action that could be taken in this case.

33. Restoration is not possible given the lack of any positive relationship between T and her birth mother at present. In addition, the birth mother is now married to, and still resides with, one of the alleged perpetrators of sexual abuse. Other alternatives, including a continuation of the status quo or guardianship, are unlikely to give T the stability she needs, particularly having regard to the fact that T had seven placements before being placed with the proposed adoptive parent and now seeks permanency.

34. T has expressed a strong wish to be adopted by the proposed adoptive parent who has been diligent in developing her parenting skills so that she can meet T’s complex needs. T has demonstrated a strong sense of attachment to the proposed adoptive parent and the proposed adoptive parent’s family. Adoption will fulfil T’s desire to become part of a family where she feels supported, loved and safe, and will give her a sense of stability, security and certainty as she moves into the future.

35. I am satisfied that T is over the age of 12, has been cared for by the proposed adoptive parent for more than two years, and is of sufficient maturity to give sole consent to this adoption. She was given the Mandatory Information in mid-2018, has been counselled in accordance with s 63, and the registered counsellor has certified that T understands the effect of signing the consent instrument. In accordance with s 55, T signed the Instrument of Consent on 9 August 2019.

36. I am of the view that the other formal requirements of the Act have been met. T was present in the State when the adoption application was filed (s 23(2)(a)) and less than 18 years of age when the summons was filed (s 24(1)(a)). The appropriate notice was given to the birth mother (ss 54(3) and 88). For the purposes of s 87, the application was made by the Secretary.

37. I am satisfied that the proposed adoptive parent is domiciled in the State (ss 23(2)(b) s 27(1)(a)) and meets the age requirement in s 27(2). I am also entirely satisfied that the proposed adoptive parent is of good repute and a fit and proper parent to fulfil the responsibilities of a parent, in particular taking into account the commitment she has shown to developing her parenting skills and the quality of the care she has provided to T since 25 July 2014.

38. T also expressed strong views in relation to the name change. I am satisfied that that it is something T wants. It will assist her in establishing her new sense of identity and stability and for that reason is clearly in her best interests.

39. Department of Communities and Justice, T and the proposed adoptive parent have agreed to an adoption plan. It makes provisions for the continuation of the frequent and informal contact between T, A and J, and gives T autonomy to make her own decisions about future contact with her mother. This represents a continuation of the current arrangements and I am satisfied that it is in T’s best interests and proper in the circumstances. The parties do not wish to register it at this time.

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Decision last updated: 10 March 2020