Re JLR

[2015] NSWSC 926

Supreme Court

New South Wales

Medium Neutral Citation:	Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926
Hearing dates:	14, 15, 16, 17 April 2015; 22 May 2015
Date of orders:	14 July 2015
Decision date:	14 July 2015
Jurisdiction:	Equity Division - Adoption List
Before:	Bergin CJ in Eq
Decision:	Orders dispensing with consent of birth parents; order for adoption; order for registration of Adoption Plan; approval of the changes to child’s names.
Catchwords:	ADOPTION – where child taken into care in infancy – where birth parents have little or no contact with child – where paternal grandmother opposes adoption order – where position changes during hearing – where access visits with birth family subject of Adoption Plan - whether order for adoption in best interests of child – whether Adoption Plan should be registered.
Legislation Cited:	Adoption Act 2000 (NSW) Adoption Amendment (Same Sex Couples) Act 2010 Children and Young Persons (Care and Protection) Act 1998 (NSW) Family Law Act 1975 (Cth)
Cases Cited:	Adoption Director-General, Department of Family & Community Services; Re TVK [2012] NSWSC 1629 Adoption of KH [2015] NSWSC 274 Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 Application of H & H, child JW [2011] NSWSC 93; (2011) 45 Fam LR 681 D v Director-General, Dept of Community Services [2005] NSWCA 474; (2005) 34 Fam LR 445 Director-General, Department of Community Services NSW v D [2007] NSWSC 762; (2007) 37 Fam LR 595 Director-General, NSW Department of Family and Community Services Re JS [2013] NSWSC 306 Director General Department of Human Services; Re M [2011] NSWSC 369 Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521 Re G [2006] 1 WLR 2305 Re K & The Adoption Act 2000 [2005] NSWSC 858 Re KSE and The Adoption Act 2000 [2006] NSWSC 92 Re WJP and the Adoption Act 2000 [2014] NSWSC 783 William and Jane, Re [2010] NSWSC 1435; (2010) 44 Fam LR 292
Texts Cited:	J Triseliotis, “Long-Term Foster Care or Adoption? The Evidence Examined” (2002) 7 Child and Family Social Work 23 J Cashmore, “What the Research Tells Us: Permanency Planning, Adoption and Foster Care reported in Children Australia” (2000) 25(4) Children Australia 17
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia (Plaintiff) Birth Mother - BM (1st Defendant) Paternal Grand Mother – PGM (2nd Defendant)
Representation:	Counsel: DL Ward (Plaintiff) M Neville (1st Defendant) EA Lawson (2nd Defendant)   Solicitors: Crown Solicitor (Plaintiff) Aboriginal Legal Service (1st Defendant) Leonie Miller (2nd Defendant)
File Number(s):	A67/2014
Publication restriction:	Nil

Judgment

1. This is an application by the plaintiff, Secretary New South Wales Department of Family and Community Services (the Department), by his delegate the Principal Officer, Adoptions, of Barnardos Australia (Barnardos) for an order pursuant to s 23 of the Adoption Act 2000 (the Act) for the adoption of a four year old girl (“JLR”) in favour of her present carers, “P1” and “P2”. The first defendant, “BM”, is JLR’s birth mother. The second defendant, “PGM”, is JLR’s paternal grandmother. In accordance with s 180 of the Act all parties and witnesses (other than the plaintiff and its officers and the expert consultant psychiatrist) are referred to using pseudonyms.

2. JLR was born on 19 February 2011 in a hospital in Sydney, New South Wales and is presently 4 years and 5 months of age. The Department assumed the care of JLR whilst she was still in hospital because of BM’s past drug use and limited insight into the impact of such drug use on parenting; her lack of appropriate treatment for relapse prevention; allegations of domestic violence; and BM’s limited insight into the effect of domestic violence on JLR’s development.

3. JLR has been in P1 and P2’s care since June 2011 in consequence of orders of the New South Wales Children’s Court on 12 May 2011 granting parental responsibility to the Minister. She is the second child of BM and her birth father, “BF”. Her brother, “JR”, was born on 6 April 2007 and was removed from BM and BF’s care on 15 October 2010 due to concerns, inter alia, of domestic violence and parental drug and alcohol abuse. On 12 May 2011, the Children’s Court made final orders placing JR under the parental responsibility of the Minister of Community Services until he attains the age of 18 years. The orders made pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care and Protection Act) allocated various aspects of parental responsibility jointly to PGM and the Minister (including JR’s residence and education) and some aspects solely to PGM (including JR’s day-to-day care).

4. BM is currently the subject of an involuntary treatment order, having been diagnosed with schizophrenia. There is a history of substance abuse. She was admitted as an inpatient of a Mental Health Unit in Queensland on 24 September 2014 and was deemed not fit to attend court. She requires ongoing inpatient treatment.

5. BF visited JLR in hospital immediately after her birth but has not seen her since she was discharged from hospital. PGM has advised Departmental case workers that BF does not wish to have contact with JLR. BF is not a party to the proceedings. He is not recorded on JLR’s birth certificate but BM has always claimed that BF is the birth father and BF has not denied paternity. It is common ground that BF also suffers from mental health issues associated with schizophrenia. He has a history of domestic violence and substance abuse. Attempts to locate BF have been unsuccessful and he has not given his consent to the adoption.

6. PGM is of Tanzanian heritage and came to Australia in 1976. She is 66 years of age and lives in an inner-west suburb of Sydney. She is one of 12 children and her siblings remain in Tanzania. PGM was joined to the proceedings by consent on 5 September 2014 pursuant to s 118 of the Act.

7. P1 was born in New Zealand but has lived in Australia for 25 years. She became an Australian citizen on 11 April 1996. She is self-employed in private practice as a Family Therapist. P2 was born in Grafton, New South Wales. She is employed as a Creative Director. P1 and P2 are a same-sex couple. They live in an inner-west suburb of Sydney. They have been together in a committed relationship for over 14 years. In 2008, they spent 3 months in Tanzania as part of a charity project working with teachers and pre-school age children. Upon their return, they approached the Department to become authorised carers pursuant to the Care and Protection Act. In 2012, they informed the Department that they wished to be transferred to Barnardos, apparently as a step towards the adoption application.

8. Although there is provision under the Act (ss 26 and 87) for P1 and P2 to have made the application for an order for the adoption of JLR with the consent of the Director-General of the Department they have not been joined as parties to the proceedings.

9. JLR’s maternal grandfather, “MGF”, gave evidence in BM’s case. He has been researching his cultural heritage and family history and identifies as a Torres Strait Islander person of mixed culture from Thursday Island. Although it was originally thought that there may be an issue in the proceedings that JLR may be a Torres Strait Islander, that issue has fallen away. It is accepted that the evidence does not support such a finding.

Background

10. On 5 November 2010 the Department was notified in a pre-natal risk of harm report that BM was misusing buprenorphine (a treatment for heroin dependence) and smoking heroin on the weekends during her pregnancy with JLR. On 22 November 2010 BM agreed to participate and engage in a case plan, a condition of which required BM not to use any illicit substances. BM was managed for substance misuse at the hospital when she was booked to deliver JLR. JLR was treated from birth with oral morphine for 3 days due to persistently high neonatal abstinence scores 7 days after her birth.

11. On 24 February 2011, BM advised Departmental caseworkers that she had used heroin while pregnant with JLR. On the basis of this information, a child protection caseworker of the Department, acting as Delegate of the Director-General, assumed the care and protection of JLR pursuant to s 44 of the Care and Protection Act.

12. On 28 February 2011 an Application and Report initiating care proceedings pursuant to s 61(2) of the Care and Protection Act was filed with the Bidura Children’s Court. The application sought interim orders allocating parental responsibility of JLR to the Minister.

13. On 2 March 2011 JLR was discharged from hospital into the care of the Department. As an interim arrangement, she was placed with a foster carer through the agency Wesley Dalmar in Sydney’s western suburbs.

14. On 3 March 2011, the Children’s Court made an Interim Order allocating parental responsibility of JLR to the Minister. On 10 March 2011, the Court made a finding that JLR was in need of care and protection on grounds set out in s 71(1)(e) of the Care and Protection Act. The Court ordered that the Interim Order continue until further order.

15. On 31 March 2011 the Department filed a Care Plan with the Children’s Court in accordance with s 78 of the Care and Protection Act. The Care Plan recommended that in JLR’s best interests a long term out-of-home care placement with foster carers be approved. It recorded the Department’s view that there was no realistic possibility of JLR being restored to the care of her birth parents. It also recorded, without reasons, that the Department was “not considering adoption as it is not viewed as appropriate”.

16. The Care Plan recorded that PGM had advised that she was not physically capable of providing long term care for JLR because of arthritis causing inflammation of the neck and back that prevented her from picking up heavy objects. However, it was noted that PGM was supportive of maintaining contact with JLR and would encourage contact between JLR and JR including having JLR in her home to have contact with JR in the future.

17. Section 4 of the Care Plan entitled ‘Case Plan’ (to be reviewed within four months of the final orders and then annually until JLR attains the age of 18 years) included proposed arrangements for contact between JLR, BM, BF, JR, PGM and MGF with the stated objective of maintaining significant relationships. The proposed contact between JLR and BM and BF was for supervised contact for a minimum of 8 times per year for BM and 4 times per year for BF for a minimum of two hours. The proposed contact between JLR and JR was for supervised contact a minimum of 12 times per year for a minimum of 2 hours. It was noted that JLR’s relationship with JR is to be promoted and supported.

18. The Plan provided that contact with the extended family should occur during the weekends, school holidays and special occasions as appropriate. It also recorded that the contact between JLR, PGM and MGF is “to be liberal as this relationship is to be promoted and supported”. The responsibility of meeting these objectives and regimes for contact was placed with the Department, JLR’s long term carers and extended family members.

19. The Plan recorded that BM would like JLR restored to her care or preferably in a family placement.

20. On 27 April 2011, a referral form was forwarded to the Metro Central Child and Family Regional Unit to assist in the identification of a long-term placement for JLR with a preference for families residing in Sydney’s inner-west because of the close proximity to PGM and JR facilitating regular contact.

21. In an addendum to the Care Plan dated 4 May 2011, the Department advised the Children’s Court that it had not been possible to identify a family placement at that time.

22. On 12 May 2011 Final Orders were made by the Bidura Children’s Court under the Care and Protection Act placing JLR under the parental responsibility of the Minister until she attains the age of 18 years.

23. JLR’s short term placement with the initial carers was from 2 March 2011 until 29 June 2011. On 29 June 2011, and after a series of transition days, JLR was moved to her long-term placement with P1 and P2. She has been living in their care continuously since this date.

24. Barnardos is a ‘designated agency’ under s 139 of the Care and Protection Act. It is also an accredited adoption service provider pursuant to the Act. As part of its Find-a-Family program, Barnardos provides an integrated service of permanent family care and adoption for children who have been removed from their birth families by the courts. Children are referred to Barnardos by the Department.

25. The Principal Officer of Barnardos, Ms Lisa Maree Vihtonen, has the overall supervision of the provision of adoption services by Barnardos and is the principal officer concerned with JLR’s adoption.

26. At a meeting on 21 November 2012, the case management and parental responsibility of JLR was transferred from the Department to Barnardos in accordance with a Deed of Agreement between the two entities. The minutes of this meeting record the “Agreed Action” that JLR “remain with current carers until her 18 Years of Age. Adoption Plan”.

27. The notes of a meeting between P1 and P2 and Barnardos on 13 February 2013, record that “the Court needs to be fully assured that carers will manage contact with birth family post adoption and how this will be portrayed to the child”.

28. On 9 September 2013, an Adoption Approval Panel Meeting was held at Barnardos. The Panel recommended that approval be given to commence adoption proceedings. On 20 September 2013, the CEO of Barnardos gave approval for an adoption care plan for JLR and for the commencement of the adoption application. On 11 October 2013, Barnardos consented to the making of an adoption order pursuant to s 52(a)(ii) of the Act in favour of P1 and P2.

29. On 3 November 2013, P1 and P2 signed an application to adopt JLR pursuant to s 43 of the Act. The Adoption Plans that accompanied the application for adoption were signed by P1 and P2 on 8 May 2014 and by Ms Vihtonen on 20 May 2014. The Adoption Plans acknowledged that the mutually agreed arrangements between the parties would support JLR and her development and assist her with her knowledge of her family at birth and sense of identity. It recorded that she is Anglo-Australian and Tanzanian being raised by Anglo-Australian and New Zealander carers. It recorded that she is not identified as Aboriginal or Torres Strait Islander. It recorded that it was to have effect until JLR reaches 18 years of age unless the plan is reviewed prior to that time. The Adoption Plan in respect of BM included the following:

5.   The Arrangements for Contact

It is recognised that the nature of contact should be structured in such a way that will best meet JLR’s needs, taking into consideration at all times her age and stage of development. It must also be recognised that contact will occur whilst JLR continues to agree with it. JLR’s capacity to express her agreement to contact will depend on her age and stage of development. JLR will be encouraged and supported to attend contact visits, however, should she indicate that she does not wish to attend contact visits, the reasons behind this would be explored with the possibility of adjusting arrangements to better suit JLR. The Department and/or Barnardos can be consulted if any party to this agreement feels that the structure of contact is not meeting JLR’s needs.

a.   Face-to-Face Contact Visits

i.   JLR has a full sibling JR born 6 April 2007.

ii.   JR is under the shared responsibility of the Minister and PGM, the paternal grandmother until he turns age 18 years of age.

iii.    Visits between JLR and JR will occur twelve times per year (monthly) on dates to be agreed between P1 and/or P2 and PGM at the beginning of each year.

iv.    In addition to the monthly visits, other opportunities for contact may be planned by mutual agreement between P1 and/or P2, PGM and the children as they get older.

v.    Each visit will last for a minimum of one hour, extended by mutual agreement depending on JLR’s needs. It is likely as the children get older that a longer visit will be more appropriate so as to allow for a meaningful activity. The venue for two of the visits each year is to be at PGM’s home. The venue for the remaining visits will be agreed between P1 and/or P2 and PGM. If a venue cannot be agreed upon the Department and/or Barnardos may be consulted. P1 and/or P2 will be present at visits. PGM may be present at visits.

vi.   BM has not been consistent in attending contact visits with JLR to date with her last contact visit with JLR being in April 2012. P1 and P2 have met BM and would like for her to have contact with JLR. However, a transition process may need to occur to re-establish contact between JLR and BM prior to face to face contact including an exchange of letters and photographs. Following this process BM may attend up to two of the contact visits between JLR and JR per year. Any further children that BM may have in the future may also attend these visits with BM.

vii.   Visits may take place on an informal basis between JLR and her maternal grandfather, MGF and her maternal great grandmother, MGGM. Such visits will be arranged and supervised by P1 and/or P2. These visits will occur on a minimum of two times per year.

30. The Adoption Plan also made provision for telephone contact and electronic communication, exchange of information and the provision of contact details.

31. The Adoption Plan in respect of BF was in similar terms to the Adoption Plan in respect of BM but included the following:

…

vi.    BF has not had any contact with JLR since she was discharged from hospital following her birth.

vii.    Should BF wish to re-establish contact with JLR a transition process will need to occur prior to having face to face contact with JLR. The transition process would include an exchange of letters and photographs. Following this process BF may attend one contact visit between JLR and JR per year.

32. On 20 May 2014, the case manager with responsibility for JLR prepared a report concerning the proposed adoption pursuant to s 91 of the Act. The report reveals the background history with a recommendation that an adoption order is the preferable course and in all the circumstances would be in JLR’s best interests.

33. BM has only attended four or five scheduled contact visits since JLR left the hospital. A contact visit was arranged for 12 August 2011 however BM failed to confirm her attendance and the visit was cancelled. P1 and P2 provided a letter and photographs to BM after the visit was cancelled. Another visit was arranged for 17 October 2011. BM attended and met P1 and P2 for the first time. An updated letter with photographs of JLR was provided to BM who expressed her gratitude stating that she enjoyed receiving them. From all accounts this meeting “appeared to go smoothly”.

34. BM apparently spent some time at Christmas 2013 with MGF. The plaintiff’s case worker advised BM that P1 and P2 would be happy to arrange a visit with JLR as they were “keen” for her to see JLR. BM advised the case worker that she “wasn’t sure” whether she wished to have any contact with JLR at that time. MGF contacted P1 and P2 to advise that BM would be staying with him over the Christmas period and that she did not want to see JLR or P1 and P2 at this time.

35. BM and PGM were provided with a schedule of planned visits on a bimonthly basis between JLR and BM and monthly contact between JLR and JR. The initial contact between JLR and JR occurred on 24 September 2011 at PGM’s home unit.

36. The regime for contact in the Care Plan filed in the Children’s Court was not implemented. From 24 September 2011, contact between JLR and JR occurred in monthly visits of approximately one hour, not two hours as set out in the Care Plan. This did not change when case management for JLR was transferred from the Department to Barnardos in 2012. It is also apparent that the contact on weekends, school holidays and special events envisaged by the Care Plan was not implemented.

32. While JLR was in the care of her short-term carers during the first four months of her life, PGM and JR would visit her on a weekly basis. Contact visits then ceased for a 3 month period between 24 June 2011 and 24 September 2011 during JLR’s transition to the long-term placement with P1 and P2. This arrangement appears to have been made to allow JLR time to settle and adjust to her new carers. The first contact visit between JLR, JR and PGM (also with P1 and P2) after this period was on 24 September 2011. This visit took place in PGM’s home. JLR’s paternal aunt, PA, who resides with PGM was also present.

33. In late 2012 P1 and P2 spoke to the Department with a view to reducing the number of contact visits per year from 12 to 4 in line with school holidays. The issue was discussed again on 21 November 2012 during the transfer of the care management from the Department to Barnardos. No action was taken in respect of this request and monthly visits of approximately one hour duration have continued up to the present, most often at a local park. All of these visits have been “supervised” in the sense that PGM has not been allowed to spend time with JLR away from P1 and P2.

34. When the plaintiff’s case worker discussed the request to reduce the number of contact visits from 12 to 4 with P1, it was explained on the basis that P1 and P2 “felt longer contacts in the school holidays would be more beneficial” for JLR “as the children could do more activities in a longer stretch of time than they could do in one hour”. P1 also advised that the “one hour contacts were very limiting in terms of what activity the children could enjoy together”. P1 and P2 said they felt that “longer visits would improve the quality of the contacts” and they saw the “quality rather than quantity as being the key goal for contact”. They also explained that they were thinking ahead to the time when JLR would be at school and how the logistics of the contact would fit in with each child’s extracurricular activities. P1 had taken approximately 2 years off work to provide full time care to JLR and there was also the prospect that she may increase her hours of employment.

35. When the plaintiff’s case worker discussed the prospect of such a change with PGM, she advised that she did not want any change to the frequency of contact visits between the children.

36. One of the concerns raised by P1 and P2 was that if JLR visited JR at PGM’s home BF may “turn up unannounced”. This concern stemmed from their understanding of the apparent substance abuse and domestic violence issues of which they had been made aware. This concern was raised with PGM who advised that BF would not be present at any of the contact visits “unannounced”.

37. The relationship between PGM and P1 and P2 also became strained after a contact visit organised in April 2012. PGM and JR were driven to the visit by MGF and his partner. PGM’s physical movement at the time was impaired and, rather than cancel the visit, she asked MGF to take her and JR to the contact location. P1 (P2 did not attend the visit) was unaware that MGF would be attending. It was also MGF’s first contact with JLR since she had been discharged from hospital after her birth. This sequence of events contributed to what P1 described as a “highly anxious visit”, attributable in part to the lack of notice that MGF, whom she had not previously met, would be present and that she thought that he may have been BF. The fact that P1 thought that MGF might in fact be BF combined with her knowledge of BF’s history of domestic violence contributed to this anxiety. Indeed, Barnardos acknowledged that it had tried to prevent contact visits occurring at PGM’s home because of the concern that BF might be present.

38. When the plaintiff’s officers first discussed the prospect of P1 and P2 adopting JLR with PGM in December 2012, she said that she was “happy for the adoption to happen as long as” she and JR still saw JLR. However at the same time PGM discussed with the plaintiff’s officers that she wanted more contact with JLR than had been arranged as at December 2012.

39. Contact continued on a monthly basis for one hour, usually in a park. This contact was supplemented by the substantial contact visits referred to below.

40. In early 2014 P1 advised the plaintiff that contact with JR and PGM had been going well. At this time P1 felt that everyone was in a “positive place” in their relationship and that visits to PGM’s home was a “natural thing to do and that their relationships have developed enough for that to happen in an appropriate way”. However there was controversy about what was said at a contact visit in April 2014. It was claimed that PGM made a statement in front of the children that she was “going to court” to get JLR “taken off” P1 and P2. It was also claimed that PGM said that the only reason JLR was with P1 and P2 was because PGM had asked that she be placed closer to her in the inner- west. After this visit P1 and P2 advised the plaintiff that JLR became unsettled with a need for “lots of reassurance”.

41. The plaintiff’s case worker later suggested that there might be a “mediation type meeting” but P1 and P2 were hoping to openly discuss the issues with PGM and were concerned that a formal meeting with professionals may “blow things up” and not be beneficial for the relationship.

42. No contact visits have taken place in P1 and P2’s home. Neither PGM nor JR has ever visited their home. P1 and P2 arranged three substantial contact visits outside the casual monthly visits. They arranged two Christmas picnics in December 2013 and December 2014 attended by themselves, JLR, JR, PGM, MGF, PA and the maternal great grandmother, MGGM. On 19 January 2015, P1 took JLR, JR, and PGM to Taronga Zoo, an outing between 9 am to 2:30 pm.

43. Although the relationship with PGM was perceived by P1 to be “in a positive place” in February 2014 PGM’s position changed by April 2014. PGM wrote to the plaintiff on 17 March 2014 in relation to a letter that she had seen that was directed to BF that included a report and the Adoption Plan. The letter included the following:

The letter also refers to a court case but does not indicate the dates of the court case, which court any application will be in, or whether I am entitled to make a submission to the court, which I believe I am.

I consider that any contract for adoption of JLR should have included me as a signatory, as I have the ongoing relationship with JLR. I have been reliable and have maintained access to my granddaughter under humiliating conditions.

…

Initially JLR was placed with a family in Penrith and I travelled regularly to Penrith to gain access to her. After a few months, I asked FACs to place JLR with a family closer to me, so that my access to her would be easier. In response to my request, JLR was then placed with P1 and P2, who live closer. P1 and P2 initially denied me access to my granddaughter for three months on the basis that she was “settling in” with them.

My access to my granddaughter was then reduced to one hour, once a month, at a park, under supervision.

I now find myself in a position in which my granddaughter is not allowed to visit me at my home.

While I initially requested that we meet at a park in Erskineville close to where I live, P1 and P2 did not agree to this and I was obliged for two years to meet them for one hour at Sydney Park, which required me to get a cab there and back. When I had knee troubles and was walking with the aid of sticks, they did not offer to pick me up or drop me off. It has been a difficult relationship to maintain because they do not trust me to have access to my granddaughter without their supervision.

…

I do not understand why I have been given supervised access to my granddaughter of only one hour a month when I am fully trusted to care for my grandson JR who is a happy, sociable, and polite boy. It is clear from your report that JLR has had no contact with my son BF, since she was born, and that BM now lives in Queensland. I feel the current foster carers have removed my grandparental rights to an unacceptable minimum.

In January last year P1 changed the arrangement to allow my access to JLR in a park in Wilson St Newtown, which has been better, but like any grandmother I would like to have my granddaughter visit me unsupervised, in my home, on a regular basis.

…

By denying JLR unsupervised access with me, the proposed adoption plan is denying JLR a normal relationship with me, her grandmother, and JLR’s aunt and brother. If I were to allow JR to spend time with two people who don’t trust me, it also could send an unconscious message to JR that I am not to be trusted in some way.

49. On 7 May 2014, the Department held a meeting with Barnardos requesting: (i) that PGM be given more contact time with JLR (specifically requesting an increase in the duration of contact visits from one hour to half a day); and (ii) that the need for supervision on these visits be lifted. Both of these requests were rejected by Barnardos.

50. The plaintiff’s officers discussed the proposed Adoption Plan with P1 and P2. They also discussed the Adoption Plan with BM and forwarded a copy to her. The Adoption Plan was signed by P1 and P2 on 8 May 2014 and by Ms Vihtonen on 20 May 2014.

The proceedings

51. By Summons for Adoption filed on 21 May 2014, the plaintiff seeks an order in favour of P1 and P2 for the adoption of JLR; orders dispensing with the consent of BM and BF as well as dispensing with the requirement of notice on BF; and an order changing JLR’s name.

52. By Notice of Motion filed on 23 June 2014, PGM sought to be joined to the proceedings pursuant to s 118 of the Act. Solicitors for BM also contacted the Crown Solicitor’s Office seeking to have her joined to the proceedings. On 5 September 2013, Brereton J made orders by consent joining BM and PGM to the proceedings as first and second defendant respectively. The matter was then adjourned to 6 November 2014 for preliminary hearing. On 6 November 2014, Brereton J fixed the proceedings for final hearing on 14 April 2015 for four days.

53. On 3 February 2015, PGM’s solicitor wrote to the Crown Solicitor’s Office to inform the plaintiff that PGM had obtained a grant of legal aid to engage an expert to assess PGM and her family. On 5 February 2015, PGM’s solicitor wrote by email to Brereton J’s associate advising that it intended to have PGM and her family assessed by the expert and sought the leave of the court to provide all materials filed in the proceedings to the expert. That leave was granted on 6 February 2015.

54. The plaintiff filed an Amended Summons for Adoption on 26 March 2015 seeking the same orders as in the original Summons with reliance on an additional section of the Act (s 67(1)(a)) in support of the orders for the dispensation of BF’s consent.

55. Evidence in the proceedings was heard over four days from 14 April 2015 to 17 April 2015. Ms DL Ward, of counsel, appeared for the plaintiff. Ms M Neville, of counsel, appeared for BM and Ms EA Lawson, of counsel, appeared for PGM.

56. The plaintiff relied upon a number of affidavits of its officers, the only one of which to be cross-examined was Ms Vihtonen. The plaintiff also relied upon the affidavits of P1 and P2 who were also cross-examined. PGM, PA and MGF gave affidavit evidence and were also cross-examined. Dr Peter Krabman, consultant psychiatrist, provided a report and was also cross-examined.

Adoption Plan

57. On the second day of the hearing the Adoption Plan was abandoned in the following exchange during Ms Vihtonen’s evidence (tr 20):

HER HONOUR

Q.    Can I just ask you a question there about the certainty with which you express that view. One hour for one month I think is what you propose?

A.    That was what is proposed in the current adoption plan before the Court, your Honour. I am saying I have taken on board these comments and I believe that we can certainly extend the duration of those visits. That is something that the adoptive – proposed adoptive parents are also in support of.

Q.    I suppose when you’ve got a little girl who is about four, a little boy who is about eight, the interaction between those two siblings is an important aspect of their growth and development?

A.    Absolutely.

Q.    And recognising that their grandmother is also present might be a very significant matter?

A.    Yes definitely.

Q.    One hour wouldn’t achieve that, would it?

A.    We would be looking at – certainly at least doubling of that and if not even extending that even more.

Q.    So am I right in assuming that the adoption plan before the Court is no longer pressed?

A.    That’s correct. I certainly want to make amendments.

58. At the conclusion of the evidence on 17 April 2015 an order was made by consent that the plaintiff’s proposed Adoption Plan be filed and served on the other parties by no later than 1 May 2015. Orders were made for the filing and service of written submissions and the matter was listed for final oral submissions on 22 May 2015.

59. The plaintiff filed a Further Amended Summons on 1 May 2015. In addition to the relief claimed in the Amended Summons it sought an order that the Adoption Plan dated 30 April 2015 and filed 1 May 2015 (to which I shall refer as the Amended Plan) be registered in accordance with s 50 of the Act.

Amended Plan

60. The Amended Plan is signed by P1 and P2 and by Ms Vihtonen on behalf of Barnardos. BM and BF are named as parties to the Plan but are not signatories. JR, PGM, PA and MGF are referred to as third parties to the Plan. The contact arrangements set out in the Amended Plan between JLR and JR, PGM, PA and MGF are considerably more detailed than in the original Adoption Plan.

61. The Amended Plan sets out some important aspects of JLR’s cultural, maternal and paternal heritage. It includes the arrangements for face to face contact visits, telephone contact and electronic communication and exchange of information, letters, photographs, cards and the like. It is the face to face contact visits that are of significance to all the parties to this litigation both from the point of view of having something in place to which they can work and a similar expectation. The face to face contact visits in the Amended Plan in relation to JLR, JR and PGM are as follows:

a.   JLR has a full biological brother, JR, who is under the shared parental responsibility of the Minister and his paternal grandmother PGM until he turns age 18 years of age. JR may, at any time with the assistance and approval of PGM, make a request to P1 and P2 to spend additional time with JLR to that which is provided for in paragraphs 7d to 7g below. This may include overnight stays at P1 and P2’s home, day time visits or activities or visits to P1 and P2’s home on the weekends and/or school holidays.

b.   Visits between JLR, JR and PGM will occur twelve times per year (monthly), on dates to be agreed between P1 and/or P2 and PGM at the beginning of each year. In the event that agreement cannot be reached, a fall-back position has been provided for in paragraphs 7d to 7f below.

c.   At the time of signing this plan, PA is residing with JR and PGM. Regardless of where she is living, PA may attend any of the visits between PGM, JR and JLR and in particular, will attend the visits as outlined at paragraphs 7d(v) and 7e(iv) to assist PGM with the physical demands of caring for JLR given her current age and capacity to run away from adult supervision.

d.   For the remainder of 2015:

i.   Two visits will take place in P1 and P2’s home; two will take place in PGM’s home; two will be an activity or outing agreed between PGM, P1 and P2; and one will be the Christmas family picnic;

ii.   The visits will be a mixture of weekends and after school visits, as agreed between PGM, P1 and P2. Failing agreement, the after school visits will take place on the first Monday of May, July, September and November and the weekend visits will take place on the first Sunday of June, August, October and December;

iii.   Any visit on the weekend will be for duration of 4 hours;

iv.   Any visit after school will be for duration of 2 and a half hours;

v.   For three of the visits (two in PGM’s home, and one an activity/outing), P1 and P2 will participate for up to an hour at the commencement of the visit, and then leave JLR in PGM’s care for the remainder of the visit, unless PGM invites them to stay longer. PA will be present during these three visits, and will remain for the duration of the visits.

e.   In 2016 (noting that JLR will commence school that year):

i.   Three visits will take place in P1 and P2’s home; three will take place in PGM’s home; five will be an activity or outing agreed between PGM, P1 and P2; and one will be the Christmas family picnic;

ii.   The visits will be on dates agreed between PGM, P1 and P2, however, failing agreement on the first Sunday of each month, excluding the visits referred to at v below;

iii.   The visits will be for the duration of 6 hours, subject to paragraph 7e(v) below and 7e(vi) below;

iv.   For the three visits in PGM’s home and two of the visits involving an activity or outing P1 and P2 will participate for half an hour at the commencement of the visit, and then leave JLR in PGM’s care for the remainder of the visit, unless PGM invites them to stay longer. PA will be present during these five visits, and will remain for the duration of the visits.

v.   During two of the visits (failing agreement in August and November), JLR will spend an overnight visit at PGM’s home commencing at 4pm Saturday and concluding at 11am Sunday;

vi.   The three visits in the home of P1 and P2 will be for a minimum duration of 4 hours. JR may, if he wishes and PGM agrees, spend the night at P1 and P2’s home following the visits in their home. PGM may also be invited to spend the night at P1 and P2’s home.

f.   In 2017 until JLR attains eight years of age on 19 February 2019:

i.   Four visits will take place in P1 and P2’s home; six will take place in PGM’s home; one will be an activity or outing agreed between PGM, P1 and P2 and one will be the Christmas family picnic;

ii.   The visits will be on dates agreed between PGM, P1 and P2, however, failing agreement commencing on the first weekend of each month.

iii.   The six visits at PGM’s home will commence in February 2017 and each alternate month thereafter. JLR will stay for an overnight visit at PGM’s home, commencing at 2pm on Saturday and concluding at 4pm on Sunday. PGM will be responsible for collecting JLR at the commencement of the visit, and P1 and P2 will be responsible for collecting her at 4pm on Sunday;

iv.   The four visits in the home of P1 and P2 will be for a minimum duration of 4 hours. JR may, if he wishes and PGM agrees, spend the night at P1 and P2’s home following the visits in their home. PGM may also be invited to spend the night at P1 and P2’s home;

v.   For the activity visit (being the contacts taking place outside of P1 and P2’s home and PGM’s home), P1 and P2 will participate for half an hour at the commencement of the visit, and then leave JLR in PGM’s care for the remainder of the 8 hour visit, unless PGM invites them to stay longer;

g.   Once JLR attains 8 years of age in February 2019:

i.   Six weekend contact visits at PGM’s home, commencing after school on Friday afternoon, and concluding 5pm on Sunday evening. These visits will be on dates agreed between PGM, P1 and P2, however, failing agreement on the first weekend of each alternative month starting in April 2019. PGM will be responsible for collecting JLR from school or during school holidays from JLR’s home, and P1 and P2 will collect JLR on Sunday evening;

ii.   Six visits for a whole day, up to 10 hours, between PGM, JLR and JR. To ensure a continuing relationship with PGM, P1 and P2 would like to be included for at least part of these visits, if PGM is agreeable. The visits to take place either on a weekend or during the school holidays, however, failing agreement on the first weekend on each alternative month starting in March 2019;

iii.   JR may, if he wishes and PGM agrees, spend the night at P1 and P2’s home following each of the visits referred to in ii above. This will enable the children to have overnight visits each month in each other’s homes, alternating between JR’s home and JLR’s home. PGM may also be invited to spend the night at P1 and P2’s following visits referred to in paragraph 7g above.

h.   The parties to the Plan agree to contact taking place at PGM’s home, on the understanding that:

i.   BF will not be present at PGM’s home, and that BF would be requested to leave the home if he arrived unannounced. This condition does not apply to contact outlined at paragraph 9 below;

ii.   PGM will contact P1 and/or P2 if JLR becomes distressed, and/or says that she wants to return home and she cannot be settled by PGM within a reasonable period;

iii.   PGM and PA will be present and accompany JLR for any collections or drop offs; and

iv.   PGM will ensure that JLR is able to participate in any scheduled activities which fall during times JLR is spending with her, such as sporting or extra curricula activities. Likewise, P1 and P2 agree to ensure that JR attends any scheduled activities which fall during times he is spending with JLR, such as sporting or extra curricula activities.

i.   In addition to the contact outlined above, P1 and P2 may request the assistance of PGM to babysit JLR. Babysitting would occur at P1 and P2’s home (unless otherwise agreed), for such time as requested by P1 and P2. PGM is under no obligation to assist unless the arrangement is suitable to her.

62. The arrangements for face to face contact between JLR and BF outlined in the Amended Plan are as follows:

8.   BF has not had any contact with JLR since she was discharged from hospital following her birth.

9.   Should BF wish to re-establish contact with JLR a transition process will need to occur prior to having face-to-face contact with JLR. The transition process would include an exchange of letters and photographs. Following this process BF may attend one contact visit between JLR, JR and PGM per year. P1 and P2 would be present for any contact between JLR and BF.

10.   Barnardos does not have any contact details for BF, therefore, any future contact will need to be arranged with the assistance of PGM.

63. The arrangements for contact between JLR and BM in the Amended Plan are as follows:

11.   At the time of signing this plan BM is an in-patient in a mental health facility in Queensland. BM has not been consistent in attending contact visits with JLR to date, with no contact occurring during 2013 and only one visit occurring in 2014. P1 and P2 have met BM and would like for her to have more contact with JLR. However, a transition process would need to occur to re-establish contact between JLR and BM prior to face to face contact including an exchange of letters and photographs.

12.   Following the exchange of photographs and letters, BM may commence attending two contact visits with JLR per year. P1 and P2 will attend for the duration of the visits. Any further children that BM may have in the future may also attend these visits with BM.

13.   In addition to these two visits, BM may also attend any of JLR’s visits with PGM and JR, provided that PGM agrees to BM attending, and the agreement of P1 and P2 is obtained prior to BM’s participation.

64. The arrangements for contact between JLR and MGF are as follows:

14.   MGF, his wife and his mother are welcome to attend any of the twelve visits that occur with PGM, JLR and JR.

15.   In addition, P1 and P2 agree to MGF, MGGF or his wife contacting them directly to arrange visits in addition to the twelve visits occurring between PGM, JR and JLR each year.

Submissions

65. The plaintiff submitted that an adoption order is in JLR’s best interests because it will give effect to her “lived experience” with the proposed adopting parents. It is not in dispute that P1 and P2 have provided JLR with a stable and loving family environment and that they have been able to meet her physical, emotional and educational needs. It was submitted that preserving the continuity of, and giving legal effect to, these living arrangements will ensure stability in JLR’s life in her formative years. The touchstone of stability is said to be particularly important in this case because of the mental illnesses affecting both of JLR’s birth parents and the possible risk that she may inherit, or be predisposed to developing, a similar illness in the future. The plaintiff adopts the conclusions of Dr Krabman (referred to below) who gave evidence in PGM’s case.

66. The plaintiff also submitted that an adoption order is “clearly preferable” in the circumstances because it will provide JLR with the most secure family arrangement available at law for a child who does not live with a biological parent. This submission stresses the importance of JLR’s primary attachment to P1 and P2 in their parenting role. The plaintiff again points to the evidence of Dr Krabman, this time in recognising the importance of “permanence and security” in P1 and P2’s parenting role and the potential for beneficial flow-on effects to JLR as she develops an understanding of her family.

67. The plaintiff submitted that the Amended Plan provides a defined regime which everyone can understand and plan around in advance, balanced with the obvious fact that JLR is only four years old and requirements will need to be flexible enough to change as she develops.

68. Although PGM originally opposed an adoption order in favour of P1 and P2 and sought orders that JLR be placed in her care, her position in final submission was that she “is aware and understands the preponderance of the evidence, even that of her own expert, which favours the making of an adoption order” (tr 202). She indicated that she could not bring herself to consent to the making of an adoption order, but said she “leaves it in the Court’s hands” (tr 202). PGM also indicated that her desire is to safeguard the relationship between JLR and JR and herself.

69. PGM opposes the plaintiff’s proposal that contact between JLR and PGM and JR be guided by the arrangements set out in the Amended Plan. It was submitted that in the event that an adoption order is to be made, a contact order should be crafted in the form of a Family Law order made under the Family Law Act 1975 (Cth). That is, this Court is asked, in its cross-vested jurisdiction, to make an order under the Family Law Act contemporaneously with the making of an adoption order under the Act.

70. The minimum contact arrangements that PGM seeks differ materially from the contact regime provided for in the Amended Plan.

71. The orders sought pursuant to the Family Law Act are that JLR spend time with PGM as agreed with P1 and P2 but failing agreement there be a specific regime put in place for such time to be spent with PGM.

72. The proposed default position is as follows: (a) from the date the orders are made until term three 2016 (during which period JLR will be 4 and 5 years of age), JLR spend three hours per week with PGM at a time and day to be determined by P1 and P2 at the outset of every school term; that JLR spend one weekend day per month from 9.00 am to 5.00 pm with PGM, on a day to be determined by P1 and P2 at the outset of every school term; (b) commencing from term three 2016 until term four 2016 (during which period JLR will be 5 years of age) that JLR spend every second Friday afternoon from 3.00 pm after school until 5.00 pm on Saturday with PGM; (c) commencing term four 2016 (during which period JLR will be 5 and 6 years of age) that JLR will spend from 3.00 pm on Friday after school until 5.00 pm on Sunday every second weekend until term one 2017; and (d) commencing term one 2017 and continuing thereafter (from the age of 6 years) JLR spend from Friday after school from 3.00 pm until Monday morning before school at 9.00 am on every second weekend.

73. Orders are also sought that for a period of two hours on JLR’s birthday time is spent with PGM at a time to be determined by P1 and P2 and that for a period of two hours on JR’s birthday, JLR spends time with PGM and JR at a time to be determined by PGM.

74. A further regime is suggested from the conclusion of term one 2017 and thereafter that one half of the school holidays are spent with PGM in the following way:

i.   During the autumn, winter and spring school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year; and

ii.   During the summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commencing in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.

iii.   Order (ii) hereof is suspended during the following period: (a) From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period JLR shall spend time with P1 and P2 from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with PGM from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years.

75. The proposed regime provides that P1 and P2 be at “liberty” to suspend PGM’s time with JLR for a period of “two weeks per year” for the purpose of overseas travel provided that they give PGM no less than two months’ notice. The proposed regime restrains PGM from allowing BF or BM to have any unsupervised time with JLR.

76. PGM contended that Barnardos should, in the particular circumstances of this case, arrange and fund mediation and/or therapy between P1, P2 and PGM with a view to fostering an improvement in the relationship between the parties to the litigation for the benefit of JLR.

77. BM is supportive of whatever contact arrangements facilitate the greatest relationship between JLR and her biological family, particularly JR. BM is supportive of the plaintiff’s proposal to register the Amended Plan under the Act. BM submitted that if any Family Law orders are to be made they should include provisions similar to those outlined in the Amended Plan in connection with the maternal birth family.

Consideration

78. Much of the evidence to be considered in determining whether an order for adoption should be made is also relevant for consideration in determining whether orders dispensing with the consent of the birth parents and/or changing JLR’s surname and given names should be made.

79. The majority of the evidence given by each of the witnesses related to the unsatisfactory arrangements that were made in respect of the contact visits between P1, P2, JLR and her birth family. There is no doubt that these arrangements caused anxiety both to P1 and P2 and to PGM. Thankfully it appears that such anxiety was kept from JLR and JR. It has never been made clear to me why the original contact visits of two hours in the Care Plan were reduced to one hour when the contact visits commenced between PGM and JR with P1, P2 and JLR. It was also not made clear why the plaintiff’s requests of Barnardos to increase the length of the contact visits were rejected in May 2014.

80. I have no doubt that the plaintiff’s officers and Barnardos were intending to support not only the adoption process for P1 and P2 but also the fostering and nurturing of JLR’s relationship with members of her birth family. It appears that things became difficult at about the time when PGM saw the original Adoption Plan in a letter addressed to BF. PGM had been supportive of an adoption order being made in favour of P1 and P2. However that support evaporated when there was a failure to consult with her in respect of the Adoption Plan and to support an increase in the timeframe for the contact visits.

81. After PGM engaged lawyers the process became more difficult. PGM opposed the adoption order and sought an order in her favour for the care of JLR. Much of PGM’s evidence focused upon the unsatisfactory arrangements to which I have referred. Having regard to PGM’s position in final submissions and that of BM it is unnecessary to say anything further about those arrangements other than to observe that it is most regrettable that the process became so difficult. Although the parties have had to tolerate the strain not only of that process but of contested litigation, there is a silver lining to it. P1 and P2 accept that they have learnt much more about PGM and PGM has learnt more about P1 and P2. P1, P2 and PGM have each acknowledged the goodness in each other and have moved closer to what will hopefully be a more co-operative environment in which both JLR and JR can be nurtured as they develop their sibling relationship.

82. The plaintiff relied upon research both in the United Kingdom and in Australia in support of the submission that adoption would be in JLR’s best interests. The first of two articles relied upon in this regard is by the late John Triseliotis, Emeritus Professor, University of Edinburgh and Visiting Professor, University of Strathclyde UK, entitled “Long-Term Foster Care or Adoption? The Evidence Examined”, reported in Child and Family Social Work 2002 vol 7 at 23. The second article is by Dr Judy Cashmore, then Honorary Research Associate, Social Policy Research Centre, University of New South Wales, entitled “What the Research Tells Us: Permanency Planning, Adoption and Foster Care” reported in Children Australia 2000 vol 25(4) at 17.

83. Each of these articles analyses the evidence available at the time of publication for the purposes of comparing long term foster care with adoption. Dr Cashmore said relevantly at 18:

Where parental substance abuse, violence, and/or mental illness mean that it is unlikely that some young children will ever be able to return to live at home safely, concerns about the inadequacies of the care system and the need for some stability and ‘permanence’ for these children have led to heightened pressure in England, the US, and now in Australia to find ways to provide a ‘permanent’ home for these children.

84. After referring to the research conducted both in Australia and overseas, Dr Cashmore dealt with the evidence in relation to contact with family at 20:

In particular, the research as yet provides little guidance as to the children for whom contact is not helpful or even harmful nor to the value, meaning and necessary frequency of contact for children who are permanently placed at a very young age. At this stage, however, there is no evidence that contact in general undermines or disrupts placements. There is, however, clear information from children and young people that they generally want more contact than they are able to have. This is an area in which more careful research and carefully structured and supported contact is needed.

85. Dr Cashmore referred to the “sense of permanence, a feeling of belonging, and the ‘status’ of being adopted as opposed to the stigma of being in care” and continued at 20-21:

Adoption may also remove some of the ambiguity and apprehension young people may feel about their status in the family after being discharged from care.

86. Professor Triseliotis concluded at 31 that:

Compared with long-term fostering, adoption still provides higher levels of emotional security, a stronger sense of belonging and a more enduring psychosocial base in life for those who cannot live with their birth families.

87. Dr Krabman practises as a child, adolescent and family psychiatrist and provided a report dated 24 March 2015 at the request of PGM’s lawyers. Dr Krabman accepted that there were constraints on his opinions having regard to the fact that he had not met JLR or P1 or P2 or indeed JLR’s birth parents. Dr Krabman expressed the view that PGM showed a strong capacity to raise JR and has shown a strong capacity in raising PA. He observed that both JR and PA had a “continuous positive and connected relationship” with PGM during their upbringing and to this day. His impression was that JR has a “positive and warm relationship and family life” but that he is also given space to enjoy the “broader world in terms of school, and peers at school and in the local area”.

88. Dr Krabman observed that in PGM’s heart and mind, she has a relationship with JLR, continuous from the time she was born which “has been maintained, but disrupted and frustrated” since JLR has been in P1 and P2’s care. He thought that PGM appeared to be grieving, distressed, confused and angry about her ongoing loss of an expected rich, warm and connected grandmotherly relationship with JLR and a rich and warm sibling relationship for JR.

89. Dr Krabman said that there is “some risk” associated with PGM’s physical capacity and age in respect of caring for JLR. He also observed that there would be risks associated with attachment disruption for JLR if she were to be moved to PGM’s care. He concluded that it would be a “major attachment disruption” for JLR who is already anxious and prone to insecurity and that she would experience “a storm of insecurity and distress”.

90. Although Dr Krabman expressed the view that PGM could “contain this storm” he said that any such move could impact upon JLR’s “wellbeing, mental health and relationship security in future”. Dr Krabman’s report included the following:

I am particularly concerned about the risk of secondary harm to the child through disruption of adult wellbeing and security if there is a persistent unresolved tussle between the paternal grandmother and the prospective adoptive parents during the child’s upbringing.

…

If the paternal grandmother did achieve greater time with the child, but with the containment of permanent orders clearly supporting the primary parenting role of the adoptive parents and clearly outlining the paternal grandmother’s contact time, I feel that this would carry the least risk.

91. Dr Krabman referred to PGM as a “marvellous resource” for linking JLR to her African heritage and large African extended family. He concluded as follows:

190.   In my view, the child’s needs may best be served by proceeding with adoption by the prospective adoptive parents, in the context of the paternal grandmother having a defined and significant role in the raising of the child.

191.   Such an approach would provide continuity of attachment for the child and a secure base upon which the prospective adoptive parents can raise the child, as well as strong legal boundaries within which the paternal grandmother can play a significant role, but not be perceived as threatening to the adoptive parents’ role. It would provide some certainty to the child and the involved adults.

Will JLR’s best interests be promoted by an adoption order?

92. The Dictionary to the Act defines the expression “parties to an adoption” to mean: (a) the child; (b) birth parent or birth parents who have consented to the child’s adoption; (c) person or persons selected to be the prospective adoptive parent of the child; (d) the Director-General; (e) the appropriate principal officer.

93. The objects of the Act and the principles to be applied, as far as is practicable or appropriate, in making decisions about the adoption of a child and as to what is in the best interests of the child are set out in ss 7, 8 and 32 of the Act. Hallen AsJ, as his Honour was then, explained that “these sections point to the principle that the best interests of the child, both in childhood and in later life, must be the paramount consideration”: Application of H & H, child JW [2011] NSWSC 93; (2011) 45 Fam LR 681 at [33]. His Honour elaborated on the paramount consideration under the Act in Director General Department of Human Services; Re M [2011] NSWSC 369 as follows:

89    Of course, and unsurprisingly, there is no definition of either of the terms "the best interests" or "the paramount consideration" in the Act. However, judicial statements as to the meaning of the latter term abound. The thrust of Australian authority is that "paramount" means "overriding": In the Marriage of Kress [1976] FLC 90-126; In the Marriage of H [1995] FLC 92-599 (at 81,974). The word does not indicate exclusivity.

90   The test to determine the best interests of the child cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. There must be a judicial evaluation and balancing of many factors from which an overall conclusion is reached on a concept that is inherently imprecise: Re B (A Minor) [2001] UKHL 70 at [16]; [2002] 1 All ER 641. The approach to be adopted is for the Court to weigh, and balance, those factors, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have.

94. In Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 Palmer J said that “an adoption order is not to be made lightly. The relationship between a child and its natural parents is to be preserved unless the Court is satisfied that the child’s best interests dictate otherwise” (at [52]).

95. Section 90(1) prohibits the making of an adoption order unless the Court is satisfied as follows:

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

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

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

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

(e)    if the child is an Aboriginal child - that the Aboriginal child placement principles have been properly applied, and

(f)    if the child is a Torres Strait Islander child - that the Torres Strait Islander child placement principles have been properly applied, and

(g)    if the child is a non-citizen child from a Convention country or other country outside Australia - that the applicable requirements of this Act and any other relevant law have been satisfied, and

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

96. It is not necessary to review every item in s 90 as a checklist: D v Director-General, Dept of Community Services; [2005] NSWCA 474; (2005) 34 Fam LR 445 at [44] (Hodgson JA, Ipp JA and Hunt AJA agreeing). However, in a difficult or finely balanced case, it is a great help to address each of the factors in the list, along with any others which may be relevant, so as to ensure that no particular feature of the case is given more weight than it should properly bear: Re G [2006] 1 WLR 2305, 2317 at [40] (Baroness Hale); adopted by Brereton J in Director-General, Department of Community Services (NSW) v D [2007] NSWSC 762; (2007) 37 Fam LR 595 at [200].

97. Section 90(2) of the Act provides that the Court “may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances”.

98. Section 90(3) of the Act 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”. As 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 the others.

99. The words ‘clearly preferable’ in s 90(3) do not require the court to be satisfied ‘beyond reasonable doubt’. Rather “the word ‘clearly’ serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision”: Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 at [53] (Palmer J) and that the order for adoption be “obviously, plainly or manifestly preferable” to any other alternative: Director-General, Department of Community Services NSW v D at [25] (Brereton J).

100. In the first adoption application by a same-sex couple after the Adoption Amendment (Same Sex Couples) Act 2010 (which took effect on 15 September 2010) William and Jane, Re [2010] NSWSC 1435; (2010) 44 Fam LR 292 Palmer J said relevantly at [106]:

Doubtless the Court and the community will grapple for some time with the novelty of same sex couple adoptions. However, novelty does not justify the imposition of any special test for same sex couple adoption applications, nor does it warrant a specially cautious approach by the Court to such applications. That is because the Adoption Act prescribes only one test for all adoption applications: in the particular factual circumstances of every case, what is in the best interests of the child? The assessment procedures and the policies of the Adoption Act as they presently stand are perfectly adequate to ensure that, regardless of sexual orientation, only those who are able to promote the best interests of the child will be approved as adoptive parents.

101. Having regard to JLR’s age and the fact that she has not had any contact with BF and very little contact with BM, it is not appropriate to ascertain her “wishes and feelings” directly from her in respect of the proposed adoption order in accordance with s 90(1)(b) of the Act. However JLR’s wishes and feelings generally towards a life with P1 and P2 can be ascertained from the evidence that was given by P1 and P2, PGM, MGF and Ms Vihtonen and from the documentary material generated by the plaintiff in reviewing JLR’s placement with P1 and P2 over the last 4 years.

102. Although there was evidence that MGF may identify as a Torres Strait Islander person of mixed culture from Thursday Island, it is common ground that the provisions of ss 90(1)(e), (f) and (g) of the Act are not applicable.

103. JLR has thrived and developed a happy and secure relationship with P1 and P2. She commenced attending day care for one day per week and then for two days per week in 2013. It appears that there is usually a difficult separation from P1 at the beginning of the day but the members of the staff at the day care centre help JLR to cope with the process. Notwithstanding her initial anxiety at being separated from P1 and/or P2 she has settled and enjoys her attendances at day care.

104. The evidence establishes that JLR has a great sense of humour and loves to have a joke and make those around her laugh. She loves dancing and music and loves the performances by the very popular Wiggles and Lady Gaga.

105. The staff at the day care centre advised P1 and P2 that JLR was more advanced with her speech and language than the other children in her group and that she would benefit from being with a more advanced group with which she coped well. That was arranged and she was moved into the more advanced group. During 2013 JLR attended ballet, dance and movement class once a week, swimming on the weekend with either P1 or P2 and regular play dates with other children. JLR was observed to be very alert and aware of what was happening around her often repeating things to P1 and P2 to whom she refers as “mummy” and “mumma” respectively.

106. In 2014 JLR continued to attend day care two days per week moving later to three days per week. She has made many friends and looks forward to seeing them. She is keen to start “big school” in 2016. JLR is meeting all of her developmental milestones. In 2013 she was diagnosed with asthma for which she is being treated and this is being well managed.

107. All assessments of the relationship between P1, P2 and JLR conclude that it is a very stable, loving and caring relationship in which JLR feels secure and happy.

108. JLR’s interaction with JR is positive and appropriate. It is clear that she has a connection to her brother and that the nurturing of this significant relationship will be beneficial not only to JLR but also to JR.

109. JLR’s understanding of her birth family is being facilitated by P1 and P2 through their efforts to maintain contact with PGM, JR and MGF and with photographs and story books that have been prepared for her. There are wonderful opportunities for JLR to connect with her heritage through contact with and learning from PGM and MGF. These opportunities must be taken up by P1, P2, PGM and MGF so that the fabric of JLR’s life is enriched. JLR will then be in a position at a later age to pursue these opportunities in her own right.

110. JLR also has contact with P1 and P2’s parents and extended family. Those contacts are not regular or often, however they do include contact within P1 and P2’s home when they stay with P1 and P2.

111. The relationship between P1 and P2 and JLR has clearly grown closer and stronger the longer JLR has been in P1 and P2’s care. It is a credit to P1 and P2 and PGM that their focus has been on JLR’s best interests notwithstanding the difficulties they have experienced with the arrangements as described earlier in these reasons. From my observations I am satisfied that P1, P2 and PGM are all committed to acting in JLR’s best interests notwithstanding that their views on this topic have differed over the years. There has been a level of tolerance displayed for these different views that augurs well for JLR’s future.

112. I am satisfied that it is clearly preferable for JLR to have the security of the certainty of P1 and P2’s relationship with her as her parents as opposed to being “in care”. This certainty will enable her to fit in well at school and have a secure life beyond whilst also maintaining her connection to her birth family.

113. For the purposes of s 90(1)(a), I am satisfied that the best interests of JLR will be promoted by adoption by P1 and P2. For the purposes of s 90(1)(b), so far as practicable having regard to JLR’s age and understanding, I have, as referred to above, ascertained and given consideration to her wishes and feelings. For the purposes of s 90(1)(c), I am satisfied that P1 and P2 have been selected in accordance with the Act.

Regime for contact

114. On the one hand the plaintiff, P1, P2 and to an extent BM, support the registration of the Amended Plan under s 50 of the Act and on the other, PGM favours the making of orders under the Family Law Act in respect of a regime for contact with JLR. In this regard PGM relied upon the process followed by Brereton J in Adoption Director-General, Department of Family & Community Services; Re TVK [2012] NSWSC 1629 in which his Honour made an order under the Family Law Act for the child in that case to have “reasonable contact” with his birth father. The order was that the contact was to be agreed between the adopting parents and the birth father and failing agreement, his Honour fixed the first Tuesday of each month for contact during a particular period at a specific location. In that case his Honour said at [20]:

Developments in adoption law and practice over the last couple of decades have made reasonably clear that contact between an adopted child and birth parents is normally beneficial for the child. Such contact is most likely to work best in the child’s interests when it accords with arrangements made between the parties.

115. Part 4 of the Act entitled “Adoption plans” provides relevantly as follows:

46.   What is an adoption plan?

(1)   An adoption plan is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to:

(a)   the making of arrangements for the exchange of information between the parties in relation to any one or more of the following:

(i)   the child’s medical background or condition,

(ii)   the child’s development and important events in the child’s life,

(iii)   the means and nature of contact between the parties and the child, and

(b)   any other matter relating to the adoption of the child.

(2)   Without limiting the matters for which an adoption plan may make provision:

(a)   it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and

(b)   it may provide for the giving of certain financial and other assistance as referred to in section 201.

(2A)   A birth parent who has not consented to the adoption of a child (a non-consenting birth parent) is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child.

(2B)   A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child.

…

47.   How is an adoption plan made?

(1)   Before the making of an order for the adoption of a child, parties to the adoption may agree on an adoption plan.

(2)   An adoption plan is to be in writing and is to contain the particulars (if any) required by the regulations.

48.   Adoption plan to accompany application for adoption order

If the parties to an adoption agree to an adoption plan, a copy of the plan must (unless registered under section 50) accompany the application for an adoption order.

49.   Notice to be given of adoption plan

The Director-General or appropriate principal officer is to give notice to any person who has the care responsibility for the child of the terms of the adoption plan.

50.   Registration of adoption plans

(1)   The parties to an adoption who have agreed to an adoption plan may apply to the Court for registration of the plan.

(2)   The regulations may make provision for or with respect to such an application.

(3)   The Court may register an adoption plan if it is satisfied that:

(a)   the plan does not contravene the adoption principles, and

(b)   the parties to the adoption understand the provisions of the plan and have freely entered into it, and

(c)    the provisions of the plan are in the child’s best interests and is proper in the circumstances.

(4)   An adoption plan that is registered has effect, on the making of the relevant adoption order, as if it were part of the order.

51.   Review of adoption plans

(1)   The Court may review an adoption plan on application of one or more of the parties to the plan.

(2)   Unless the Court otherwise determines, the Court is to give each party to the adoption who agreed to the adoption plan an opportunity to make submissions concerning the application.

(3)   Following its review, the Court may, by order:

(a)   make such changes (if any) to the provisions of the adoption plan as it considers appropriate, or

(b)   revoke the plan, or

(c)   confirm the plan.

(4)   The Court may change the provisions, or revoke, an adoption plan only if it is satisfied that it is in the best interests of the child and proper in the circumstances to do so.

(5)   An adoption plan that is changed by an order of the Court has effect as if it were the plan originally agreed to by the parties.

116. PGM submitted that as she is not one of the “parties to an adoption” as defined in the Act there is an impediment to her having any capacity to “enforce” any aspects of the Amended Plan even if it were to be registered under s 50 of the Act. In Director-General, NSW Department of Family and Community Services; Re JS [2013] NSWSC 306 Brereton J identified what his Honour regarded as a lacuna in the legislation in respect of adoption plans. His Honour said at [8]:

It will be apparent that it is only those parties to an adoption who have agreed to an Adoption Plan who may apply to the Court for registration of the plan. The parties to an adoption include the Director General, the adopting parents and any consenting birth parent, but do not include a non-consenting birth parent. This is a matter which, to my mind, is a lacuna in the current legislative structure and requires the attention of the Law Reform Commission or the Minister with a view to addressing the situation. There are many birth parents who, like the father in this case, feel unable to consent to an adoption while not formally opposing it. They would feel much less reticent if their rights of contact could be secured by an Adoption Plan.

117. The Act was amended on 29 October 2014 by the Child Protection Legislation Amendment Act 2014 No 8 to insert ss 46(2A) and (2B) into the Act (the 2014 amendment).

118. Also in that case Brereton J said at [12]:

However, as a person having the benefit of a deemed order, as the plan becomes upon registration, even though not a party to the plan, as a result of s 50(4) would have standing to apply for enforcement of the deemed order arising from registration of the Adoption Plan, even if not for its review.

119. Irrespective of whether PGM could establish that she is a person “having the benefit of a deemed order”, I trust that there will be no imminent need for a review of the Amended Plan having regard to the provision for agreement between P1, P2 and PGM and the very sensible regime for contact between JLR, JR and PGM, P1 and P2. In any event if PGM is of the view that there should be such a review she can approach one of the parties to the Plan including her son BF or Barnados to make such an application under s 51(1) of the Act.

120. I am satisfied that it is not appropriate in the circumstances to make any orders under the Family Law Act. I regard the machinery under the Act to be appropriate in the circumstances of this case.

121. I do not regard the regime put forward on behalf of PGM as being in JLR’s best interests or proper in the circumstances. I am of the view that such a regime would create further difficulties for P1, P2 and PGM which would then have a secondary adverse effect on JLR and JR. The restrictions and expectations in the regime are not conducive to the development of mutual respect and understanding. JLR’s opportunity to grow and develop in this loving family arrangement of the adopting parents and the birth family requires more flexibility and gradual implementation consistent with her tender years.

122. I am satisfied that the regime put forward in the Amended Plan is flexible, sensible, considerate and viable for meeting JLR’s best interests and in nurturing her relationship with her sibling and her extended birth family. I am satisfied that the proposed arrangements in the Amended Plan are in JLR’s best interests and are proper in the circumstances.

123. Although there is no express provision in the Act that an Adoption Plan be registered with the Court (as opposed to elsewhere) I am satisfied having regard to the scheme of Part 4 and the provisions of s 51(1) of the Act that the legislative intention is that the Adoption Plan is registered with the Court. Importantly an adoption plan that is registered has effect, on the making of the adoption order, “as if it were part of the [adoption] order”: s 50(4) of the Act.

124. I am satisfied that the Amended Plan should be registered.

Should orders be made dispensing with consent?

125. Section 52 of the Act provides relevantly that the Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by each parent of the child, and any person who has parental responsibility of the child. Section 54(1)(a) of the Act provides that consent is not required under s 52 if the requirement for the consent has been dispensed with by the Court. Section 67 of the Act provides as follows:

67    When can Court dispense with consent of person other than the child?

(1)    The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that:

(a)    the person cannot, after reasonable inquiry, be found or identified, or

(b)    the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or

(c)    if the person is a parent of, or person who has parental responsibility for, the child-there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or

(d)    if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child:

(i)    the child has established a stable relationship with those carers, and

(ii)    the adoption of the child by those carers will promote the child’s welfare, and

(iii)    in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.

(2)    The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.

126. As White J explained in Re K & The Adoption Act 2000 [2005] NSWSC 858 at [21]:

Before consent can be dispensed with under s 67, it is necessary, but it is not sufficient, that the Court is satisfied that dispensation of consent is in the best interests of the child. In order to dispense with the consent, one of the paragraphs in subs 67(1) must be satisfied.

127. Whether reasonable inquiry has been made for the purposes of s 67(1)(a) “is to be evaluated from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made”: Re K & The Adoption Act 2000 at [22] (White J) applied by Brereton J in Re KSE and The Adoption Act 2000 [2006] NSWSC 92 at [10] and by Kunc J in Re WJP and the Adoption Act 2000 [2014] NSWSC 783 at [18].

128. Section 67(1)(d) “has a different focal point” to ss 67(1)(a)-(c): Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521 at [58]-[59] (Slattery J). It focuses on the child’s relationship with the carers and the promotion of the child’s welfare. The Court must focus on the “best interests of the child” (s 67(2)).

129. Neither BM nor BF have consented to the adoption. Although BM supported PGM’s original position in opposing the adoption order and seeking to have JLR placed with PGM that was withdrawn in final submissions (tr 211). BM supported “whatever contact arrangements” that will facilitate the greatest relationship between JLR and JR (tr 211).

130. It is clear that at this stage BF does not wish to have any contact with JLR. Albeit that the plaintiff has gone to great lengths to attempt to communicate with BF and to locate him, it has not been possible. However I am satisfied that BF is aware of the proceedings and PGM has advised the plaintiff that BF has informed her that he does not consent to the adoption.

131. I am satisfied that JLR has established a stable relationship with P1 and P2 and that her adoption by P1 and P2 will promote her welfare. I am also satisfied that it is in the best interests of JLR to dispense with BF’s consent.

132. I am satisfied that an order dispensing with BF’s consent should be made. I am also satisfied in the circumstances that an order should be made dispensing with any requirement to give notice to BF.

133. BM’s position is more complex. Sadly her psychiatric condition is most serious and her prognosis is guarded. I am not satisfied that there is any prospect of JLR’s restoration to BM’s care. BM’s sadness in respect of her predicament is clear from the documentary material from the hospital and in the plaintiff’s records. However the evidence establishes that BM had little or no insight into the impact on JLR of the illicit drug use and lifestyle that she had been leading before she was admitted to the mental health unit. The complexities of her psychiatric condition compound this aspect of her life.

134. I am satisfied that in respect of BM’s position JLR has established a stable relationship with P1 and P2, that the adoption by P1 and P2 will promote her welfare and that dispensing with BM’s consent is in JLR’s best interests.

135. I am satisfied that an order dispensing with BM’s consent to the adoption should be made.

Should changes to JLR’s name be approved?

136. Section 101 of the Act provides as follows:

101 Names of adopted children

(1)    On the making of an adoption order:

(a)    an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made, and

(b)    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.

(2)    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.

(3)    If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname.

(4)    An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change.

(5)    The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless the Court is satisfied that the name change is in the best interests of the child.

Note:    Section 8 sets out the principles that are to be applied by persons making decisions about the adoption of a child, and includes the principle that a child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved.

(6)    Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, under the law of New South Wales

137. In Application of H & H, child JW [2011] NSWSC 93; (2011) 45 Fam LR 681 Hallen AsJ said:

38   The court may only order a change of given name under s 101(5) if it "is satisfied that the name change is in the best interests of the child". Thus, the section, like others in the Act, contemplates individual justice. The decision maker is obliged to consider the best interests of the particular child in the particular circumstances of the case.

39    How the court determines what is in the best interests of that child is not prescribed. Of course, there is, in sub-s. (2), the requirement to 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.

40    However, the ultimate, and only, principle that guides the test under s 101(5) is what is in the best interest of the child. The test cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. The approach to be adopted is for the Court to weigh, and balance, the factors that are relevant, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have.

41    Importantly, the focus is on the best interests of the child, not the interests of the applicants as the adoptive parents. This does not mean that their legitimate interests and desires, or their views on what is in the best interest of the child, should be ignored. However, the touchstone for the Court's ultimate decision on whether to permit the change of a given name, remains the best interests of the child.

42   Thus, in deciding whether it would be satisfied, the Court should consider all of the circumstances of the particular case before it, and decide whether those circumstances, taken together, justify a name change in the best interests of the child.

138. P1 and P2 seek approval for a change in JLR’s given names to reflect both the name that is on her birth certificate and the name by which she is known by both P1 and P2 and by her birth family. They also seek approval for the change in her surname from that of her birth mother to an hyphenated combination of their surnames.

139. There is force in the submission that when JLR attends school from 2016 it would be in her best interests that her surname is that of her parents. I am satisfied that a combination of the surnames with the approval for the given names will ensure that JLR’s identity is preserved.

140. An order will be made approving the given names and surname as sought in the Further Amended Summons filed on 1 May 2015.

Orders

141. I make the following orders:

1. Pursuant to section 67(1)(d) of the Adoption Act 2000 the consent of the child’s natural mother is dispensed with.

2. Pursuant to section 67(1)(a) and section 67(1)(d) of the Adoption Act 2000 the consent of the child’s natural father is dispensed with.

3. Pursuant to section 88(4) of the Adoption Act 2000 the giving of notice to the child’s natural father is dispensed with.

4. Pursuant to section 50 of the Adoption Act 2000 the Adoption Plan dated 30 April 2015 is registered.

5.   An order is made for the adoption of the child JLR in favour of the adopting parents P1 and P2.

6.   An order is made approving the names for the child sought in the Further Amended Summons filed on 1 May 2015.

142. The orders that will be entered will contain the names of the parties and to that extent will be suppressed.

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Decision last updated: 14 July 2015