Re the Adoption of CCS and FLS

[2019] NSWSC 71

Supreme Court

New South Wales

Medium Neutral Citation:	Re the Adoption of CCS and FLS [2019] NSWSC 71
Hearing dates:	28 – 29 November 2018; 6 December 2018
Date of orders:	06 December 2018
Decision date:	21 February 2019
Jurisdiction:	Equity
Before:	Hallen J
Decision:	See Paragraph 241
Catchwords:	FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Application for the adoption of two children, who are siblings, in favour of a married couple — Father of the children opposed orders until the hearing and then withdrew opposition, although did not consent to the adoption orders — Mother of the children does not consent but did not appear at the hearing despite notice of hearing having been given to her –– Whether consent of children’s birth parents should be dispensed with — Proposed relocation of proposed adoptive family interstate — Whether order for adoption of each child should be made in favour of proposed adoptive parents — Whether proposed name change for each child to include surname of proposed adoptive parents, and inclusion of the surname of the birth father, should be approved   FAMILY LAW AND CHILD WELFARE – Amended Adoption Plans — registration — where provisions were agreed between the parties and the proposed adoptive parents at the hearing — Where registration would mitigate residual risk in respect of birth family contact — Whether both amended Adoption Plans should be registered
Legislation Cited:	Adoption Act 1993 (ACT) Adoption Act 2000 (NSW) Adoption Regulation 2015 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Family Law Act 1975 (Cth) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	Adoption of BL [2018] NSWSC 391 Adoption of Hogarth (No 2) [2019] NSWSC 9 Adoption of JLK and CRK [2017] NSWSC 7 Adoption of NG (No 2) [2014] NSWSC 680 Adoption of RCC and RZA [2015] NSWSC 813 Adoption of Taylor-Clarke [2019] NSWSC 27 Application of H and H, child JW (2011) 45 Fam LR 681; [2011] NSWSC 93 CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 76 Department of Family & Community Services and LH; Re R [2011] NSWSC 551 Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521 Director General Department of Human Services; Re M [2011] NSWSC 369 Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 Harding v Commissioner of Taxation [2018] FCA 837 In re B (A Minor) (Adoption: Natural Parent) [2002] 1 WLR 258; [2001] UKHL 70 In the matter of Campbell [2011] NSWSC 761 In the matter of D (A Child) [2014] EWFC 39 In the matter of the Adoption Act, 2010, Section 49 (2), and in the matter of JB (a minor) and KB (a minor) [2018] IESC 30 J v C [1970] AC 668 Northern Territory v GPAO (1999) 196 CLR 553 at 584; [1999] HCA 8) Oxfordshire County Council v X [2010] Fam Law 790; [2010] EWCA Civ 581 Project Blue Sky v ABA 194 CLR 355; [1998] HCA 28 Re Adoption of KH [2015] NSWSC 274 Re B (A Minor) [2002] 1 WLR 258; [2001] UKHL 70 Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 Re Evelyn [1998] FamCA 55 Re G (A Child) [2013] EWCA Civ 965 Re K & The Adoption Act 2000 [2005] NSWSC 858 Re S-B (Children) (Care Proceedings: Standard of Proof) [2010] 1 AC 678; [2009] UKSC 17 Re W (A Child) (Adoption: Grandparents' Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793 Re WS (No 3) [2017] NSWSC 1160 Rice v Miller (1993) 16 Fam LR 970 Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD [2016] NSWSC 1926 Secretary, New South Wales Dept of Family and Community Services (by his delegate Principal Officer, Adoptions, Barnardos Australia); Re JLR [2015] NSWSC 926
Texts Cited:	“Adoption: Complexities Beyond the Law” (Speech delivered by Lord Wilson at the Denning Society Lecture at Lincoln’s Inn, 13 November 2014)
Category:	Principal judgment
Parties:	Secretary for the Department of Family and Community Services (Plaintiff) CMS (Defendant)
Representation:	Counsel: Ms T Stevens (Plaintiff) Ms M Barnett (Plaintiff) Mr D J Murray (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Coast Law (Defendant)
File Number(s):	A211/2017

Judgment

The Proceedings

1. HIS HONOUR: The Secretary for the Department of Family and Community Services (“the Secretary”) applies, in these proceedings, for the making of an adoption order under the Adoption Act 2000 (NSW) (“the Act”) with respect to two children, CCS, a male child, who was born in February 2014, who is now 5 years old, and FLS, a female child who was born in April 2015, who is now almost 4 years old. The Secretary also seeks orders dispensing with the consent of the birth parents of the children and orders approving the use of the surname of the proposed adoptive parents, “A-B”.

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

3. For the sake of preserving the anonymity of the parties, as is required by s 180 of the Act, I have referred to the children, rather impersonally, as "CCS" and “FLS” respectively, to the married couple in whose favour the adoption order is sought, as "RAB” and “DLAB", to the mother of the children, as “ALC”, and to the father of the child, as "CMS”. The medium neutral citation has been anonymised accordingly.

4. ALC has not played any part in the proceedings, and she is not a party. She is, presently, in custody serving a term of imprisonment of 18 months, with a non-parole period of 9 months. There will be reference to her involvement with the representatives of the Secretary later in these reasons.

5. In this case, the only parties are the Secretary and CMS. On 18 April 2018, pursuant to s 118 of the Act, which enables the Court, with consent, to permit such persons as the Court thinks fit to appear in, or be joined as, parties to the proceedings for an adoption order, CMS was joined as a Defendant to the proceedings.

6. CMS is currently subject to an intensive correction order made by the District Court on 28 April 2017, which order will expire on 27 April 2019 (for the offence of recklessly inflicting grievous bodily harm). An intensive correction order is an order of imprisonment of not more than 2 years made by a Court, which directs that the sentence is to be served by way of intensive correction in the community.

7. CMS engaged in the contested proceedings, by solicitor and counsel, and opposed the adoption of both children. Regrettably, it seems that counsel was unable to confer with him prior to the morning of the first day of the hearing. After they did have an opportunity to confer, further discussions took place between the legal representatives of the parties.

8. Following the adjournment which was taken to enable those discussions to occur, the Court was informed that CMS no longer opposed the adoption order (although did not feel able to consent either). In any event, he could not consent because of requirements of the Act regarding such consent.

9. The Court was also told that agreement had been reached on an amended Paternal Adoption Plan (which was a basis for no longer opposing the adoption order) and that there was no longer any real dispute to the change of each child’s name, subject to the Court approving the change. The parties were able to agree that the name “S” would remain as part of each child’s names: Tcpt, 28 November 2018, p 13(46) – 14(5), 19(18) – 19(32).

10. In the circumstances, and because some additional information was required, and because it was necessary for the Court to consider a matter raised by counsel for CMS prior to CMS’s opposition being withdrawn, the matter was adjourned until 6 December 2018.

11. By the adjourned date, I had read all of the affidavits that had been delivered to my Chambers (including those delivered after the hearing, to the filing of which there was no objection) to which I shall refer. I stated to the legal representatives of the parties that whilst I had read the papers, and was prepared to make orders, I had not had the opportunity to prepare the reasons for the orders, but would do so, and have the reasons published subsequently. Each agreed that this course was appropriate. I took this course to avoid any further stress and anxiety during the time it would take to prepare the reasons for judgment and as the long vacation was to commence. I also stated that I would make the orders for adoption as sought and I would publish reasons as soon as practicable.

12. In the presence of counsel for CMS, I then made the orders sought in relation to each child. These are my reasons for the making of those orders.

13. As I have written in other cases, in all contested adoption applications, one certain, and obvious, result is that, whatever decision is made, either ALC, the birth mother, and/or CMS, the birth father, or RAB and DLAB, the proposed adoptive parents, will have to bear deep sadness and emotional loss. Regrettably, but realistically, the Court is unable to resolve the dispute by providing a result that is satisfactory to all, and it cannot permit a comparative balancing of the degree of sadness and sense of loss felt by the adults involved to dictate the result of the case.

14. I should mention that on the adjourned date, CMS did not appear. It appears that he had found the experience of being in Court somewhat overwhelming, and did not feel able to attend again. Counsel proffered an apology on the part of CMS which the Court, naturally, accepted.

Procedural History

15. The Secretary filed the Summons on 28 December 2017. He filed an amended Summons on 7 November 2018, and a further amended Summons on 5 December 2018, in which the following relief was sought:

“1.   That pursuant to Adoption Act 2000, s. 67(1)(d), the consent of the children’s birth father, [CMS] be dispensed with.

2.   That pursuant to Adoption Act 2000, s. 67(1)(d), the consent of the children’s birth mother, [ALC] be dispensed with.

3.   That pursuant to Adoption Act 2000, ss. [sic] 50(3), the amended Maternal and Paternal Adoption Plans in relation to the children, signed by the proposed adoptive parents and a delegate of the Secretary, Department of Family and Community Services on 31 October 2018, and 30 November 2018 respectively, be registered.

4.   An order for the adoption of the children [CCS] and [FLS] in favour of the adopting parents [RAB] and [DLAB].

5.   An order approving the name ‘[AB]’ as the surname and ‘[CC]’ as the given names of the child [CCS].

6.   An order approving the name ‘[AB]’ as the surname and ‘[FL]’ as the given names of the child ‘[FLS]’.”

16. (The only additional relief sought in the amended Summons related to the registration of the amended Maternal and Paternal Adoption Plans in relation to CCS and FLS as set out in Paragraph 3 of the further amended Summons.)

17. Both the Secretary and CMS were represented, at the hearing, by separate counsel and solicitors. Ms T Stevens of counsel appeared, on the first day of the hearing, for the Secretary, and Mr D Murray of counsel appeared for CMS. On the adjourned date, Ms M Barnett of counsel appeared for the Secretary and Mr Murray, again, appeared for CMS. There was no appearance by, or on behalf of, ALC on either occasion.

18. As I stated in Court, I was extremely grateful for the way in which the case was presented. All of the legal representatives approached the matter, on each occasion, with empathy and with due consideration for all of the persons involved. It is a difficult case at a human level.

The Evidence relied upon

19. The application for the adoption orders was supported by:

1. Four affidavits, affirmed 22 December 2017, 24 July 2018, 20 September 2018 and 1 November 2018, respectively, of Ms W M Wilson, who is Manager, Client Services, at the Central Coast Child and Family District Unit of the Department of Family and Community Services (“the Department”). She is also a delegate of the Secretary by virtue of an order given under his hand pursuant to s 206 of the Act. She has been in her current role since 26 May 2016, although she has worked with the Department since April 2010. In preparing her affidavit, she gave evidence that she had access to the Department’s records in relation to CCS and FLS, a copy of many of which documents formed part of the exhibit to her affidavit;

2. An affidavit of Ms G Sedgwick, affirmed 7 December 2017, to which was annexed a confidential report, dated 21 November 2017, prepared under s 91 of the Act. Ms Sedgwick is an adoption assessor and an authorised person for the purpose of s 91(2A) of the Act. The report was based upon interviews with DLAB and RAB, with ALC, with CMS and with other interested persons;

3. A further affidavit affirmed on 5 December 2018, from Ms Sedgwick, was served and filed, without opposition, being an affidavit annexing an updated Court Report dated 5 December 2018;

4. Two affidavits, of RAB, affirmed 2 February 2018 and 1 November 2018 respectively;

5. Two affidavits, of DLAB, affirmed 9 February 2018 and 1 November 2018 respectively; and

6. An affidavit from three different referees, attesting to the good fame and character of RAB and DLAB.

20. For his part, CMS relied only upon his affidavit affirmed 13 June 2018. Although, on 18 October 2018, he had been directed to “serve any updating evidence or evidence in reply by 4:00 p.m. on 15 November 2018”, no other evidence was received by the Court or relied upon by him. He, also, was not cross-examined.

21. In the circumstances, no deponent was cross-examined.

Service of Documents

22. In an affidavit sworn 20 February 2018, Mr C Davies, a licensed process server deposed to having personally served ALC, on 22 January 2018, at 7:15 p.m., at Watanobbi, a suburb of the Central Coast region of New South Wales, with the following documents:

“3   …

a. Covering letter from the Crown Solicitor’s Office dated 10 January 2018;

b. Notice of Application for Adoption Orders and Notice of Application for Consent Dispense Orders for [CCS];

c. Notice of Application for Adoption Orders and Notice of Application for Consent Dispense Orders for [FLS];

d. Adoption Plan for [CCS] and [FLS]; and

e. Two brochures published by Legal Aid entitled ‘Are there court proceedings for the adoption of your child’ and ‘When kids in care are adopted – Information for birth parents’.”

23. In an affidavit sworn on 20 February 2018, Mr Davies deposed to having personally served CMS, on 18 January 2018, at 5:55 p.m., at Gosford, in the Central Coast region of New South Wales, with a copy of the same documents. Thus, there has been compliance with s 88(1)(a) (notice of the application for the adoption orders) and s 72(1) (notice of the application for consent dispense orders) of the Act.

24. ALC was provided with a copy of the Mandatory Written Information in regard to the adoption on 7 April 2017. CMS was provided with a copy of the Mandatory Written Information on 31 March 2017. Thus, there has been compliance with s 59(1) of the Act (ensuring that a person whose consent to an adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption).

25. There was an affidavit of service of Ms H G Radford, affirmed 4 December 2018, regarding notice that was given on 23 November 2018, to ALC, of the hearing of the proceedings; an email dated 27 November 2018 acknowledging receipt on behalf of ALC; a letter dated 30 November 2018 advising of the outcome of the proceedings on 28 November 2018 and advising of the date to which the matter was adjourned (6 December 2018); and an email dated 3 December 2018 acknowledging receipt on behalf of ALC. (A copy of the amended Maternal Adoption Plan was also sent to her.)

Other Formal Matters

26. Before an adoption order can be made in New South Wales, the Court must be satisfied that a number of other procedural factual safeguards required by the Act have been met.

27. I shall refer to the formal matters that are required by the Act, by reference to the facts of this case, as there is no dispute about what follows:

1. Each of CCS and FLS was less than eighteen years of age when the Summons was filed, and each still is: s 24(1)(a) of the Act.

2. RAB and DLAB, were both resident and domiciled in the State of New South Wales at the date when the application for the adoption order was filed: s 23(2)(b) and s 28(1)(a). Each is an Australian citizen.

3. RAB and DLAB have been married to each other since June 2005 and have lived together for a continuous period longer than 2 years: s 28(4).

4. RAB and DLAB each meets the age requirements prescribed by the Act: s 27(2)(a).

5. In May 2017, RAB and DLAB were invited to submit an application form to adopt CCS and FLS, pursuant to s 45D of the Act.

6. Later in May 2017, RAB and DLAB were assessed to determine their suitability to be approved to adopt pursuant to s 45F of the Act.

7. RAB and DLAB are authorised carers who have had the care and responsibility for CCS and FLS under out of home care arrangements pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”).

Section 135A(1)(a) of the Care Act, relevantly, provides that “statutory out-of-home care is out-of-home care that is provided in respect of a child or young person for a period of more than 14 days, pursuant to a care order of the Children’s Court”. RAB and DLAB had been approved as long term permanent carers.

8. CCS was placed into the care of RAB and DLAB on 2 March 2015, when he was 13 months old. FLS was placed into the care of RAB and DLAB on 30 January 2016, when she was 9 months old. Each has been in the care of RAB and DLAB continuously since then.

9. RAB and DLAB are not related to either of CCS or FLS. They have not made, or given, any person, a payment or reward for, or in consideration of, the proposed adoption of each of CCS and FLS.

10. RAB and DLAB signed an application form to adopt pursuant to s 43 of the Act.

11. In November 2016, RAB and DLAB attended a Preparation to Adopt Training Seminar, which covered a number of topics relating to the application for adoption.

12. RAB and DLAB have been selected according to the requirements of the Act. They were living, as a couple, with the children, in Terrigal, at the time the application was filed.

13. RAB and DLAB are of good repute and are fit and proper persons to adopt the children (as required in s 28(1)(b) of the Act). Affidavits of referees in evidence before me attest to the good fame and character of each of the proposed adoptive parents. Furthermore, National Police Certificates have been issued in respect of each of them, showing “no disclosable Court outcomes” or outstanding matters were present. Each of the proposed adoptive parents has received a Working With Children Check clearance from the New South Wales Office of the Children’s Guardian. In addition, the evidence of the referees and of caseworkers, establishes that they are able to fulfil the responsibilities of parents.

14. Consent to the adoption must be given by every person whose consent is necessary, unless that consent has been, or should be, dispensed with: s 90(1)(d) and s 52 of the Act. As stated, that consent has not been given by either ALC or CMS.

15. A copy of the Mandatory Written Information has been provided to ALC and CMS in person at an identified address respectively: s 59(1) of the Act.

16. For the purposes of s 87 of the Act, the application is made by the Secretary. The Secretary has consented to the adoption orders being made for CCS and FLS (as required by s 52(a) of the Act). The Minister, who has parental responsibility, has, by an authorised delegate, consented. As stated, the only persons whose consent to the adoption is required, and whose consent has not been given, are the birth parents. I am satisfied that at least 14 days’ notice of the application for the order, containing the prescribed particulars, has been given to each of them.

8. The Court may not make an order for the adoption of a child unless a report in writing concerning the proposed adoption has been provided to the Court: s 91(1) of the Act. I have referred to the two reports of Ms Sedgwick earlier in these reasons. I shall say more about her initial report and the subsequent report prepared by her following the adjournment, later in these reasons.

9. Each of CCS and FLS is not an Aboriginal, or Torres Strait Islander child.

10. The requirements for dispensing with consent of ALC and CMS under s 67(1)(d) of the Act have been met. CCS and FLS each has an established and stable relationship with RAB and DLAB, demonstrated by the report of Ms Sedgwick.

Move to Brisbane

28. For reasons to which I shall come, it is next necessary to refer to the evidence of RAB and DLAB that was served a little less than a month before the hearing.

29. In his first affidavit, RAB had stated that he planned to reside with his family members and the children in the home at Terrigal and “have no current plans to move”. DLAB also wrote that she had “no current plans to move”.

30. However, in his affidavit filed shortly before the hearing, RAB stated that he had “obtained employment in the Brisbane CBD. This was a wonderful career opportunity, being a secure role with an increased salary”. He has, apparently, been working there since about the middle of May 2018 and he currently works there during the week, returning to the family home at Terrigal every second weekend.

31. RAB stated in his second affidavit that he and DLAB had “purchased an acreage home north of Brisbane”. He said that they have “now planned and budgeted to relocate the family to our Brisbane house in December 2018, pending the outcome of the adoption proceedings in relation to” the children.

32. In fact, other evidence revealed that contracts for the purchase of the property in Brisbane were exchanged on 5 May, 2018, and that the settlement of the purchase had occurred on 5 July 2018.

33. In relation to the planned move, RAB stated that:

1. The move will enable DLAB and him “to split the household and parenting workload more evenly”; he will be able to assist in taking the older children to school each day and help out at night with the children’s bedtime routines;

2. The relocation will place the family “closer to our family, including my parents and sister” and DLAB’s aunt and cousins, all of whom live on the Sunshine Coast;

3. The children and DLAB have visited the Brisbane home, having been authorised to do so by the Department; and

4. He is aware of the importance and value of continuing each child’s contact with CMS and ALC, and “will ensure that contact proceeds as detailed in the [proposed] amended adoption plans”.

34. DLAB, in her affidavit of 1 November 2018, reiterated what had been written by RAB. She added that:

1. The children will attend a local state school in Queensland. The primary school selected for each of them is within a small community environment;

2. The high school that has been selected is local and is a reputable private school with a vast subject selection;

3. The home is situated in a rural community oriented area while still being less than 1 hour from the Brisbane CBD; and

4. A text message had been sent to each of CMS and ALC about the proposed move.      

35. The evidence also revealed that as at the date of hearing, DLAB, her two minor children and CCS and FLS, still remain living in Terrigal, New South Wales. It was said that they intend to move to Queensland later in December 2018. (This was confirmed by counsel for the Secretary on the adjourned date: Tcpt, 6 December 2018, p 30(50) – 31(05).)

36. One cannot be critical of RAB and DLAB wishing to relocate to the Brisbane area. However, the matter was before me on 14 June 2018, 21 August 2018, and on 18 October 2018, and the matter was not raised with the Court, although it appears notice of the relocation, after RAB accepted his new employment position, was given, by text message, to each of CMS and ALC, and must have been known to the Department before consent was given to take the children out of New South Wales, albeit for a short period of time.

37. (I should mention that there was a reference in an annexure to Ms Wilson’s affidavit of 20 September 2018, of there having been a discussion between DLAB and Ms K Nixon, on 7 August 2018, in which the latter said “that the family have no plans to move to Queensland albeit they have a holiday home there. [RAB] is fly in fly out for his job…”.)

38. The evidence regarding the events that had occurred, and the possible relocation of the proposed adoptive parents, and the children, to Queensland, ought to have been adduced much earlier than it was. Uniform Civil Procedure Rules, rule 56.3, provides that each party to proceedings in the Supreme Court under the Act has a duty to the Court to make known fully, and frankly, all matters relevant to the making of an adoption order, whether those matters tend to support, or tend not to support, making the order.

39. ALC, apparently, has stated that she is aware the adoptive parents are proposing to move to Queensland and that she is happy about that as the children will be closer to where she lives.

40. It is unlikely that planning the relocation would have promoted an ongoing harmonious relationship with, or alleviated the fears of, CMS, who had expressed concern about the children being relocated overseas in his June affidavit. However, at the hearing, with the evidence, any concerns of CMS were resolved.

41. It is fair to say that a move of the children to Queensland with RAB and DLAB may make it more difficult for the children to see CMS and ALC. However, each of RAB and DLAB has stated, and I accept, that they will endeavour to ensure continued contact between the children and CMS and ALC and with the other children. DLAB has stated, however, that she realises this will involve a minimum of 6 trips to NSW each year. When she and the children travel to NSW, they will stay with either of her parents, one of whom lives in Sydney and the other who lives in Newcastle. DLAB anticipates that the contact visits will occur in the school holidays.

42. There was discussion with CMS as to a new venue for, and an increase in the number of, future contact visits, and a place in Wyong was suggested. The meeting place is said to provide an opportunity to play and engage with the children, is wet weather appropriate and is further north than previous visit locations, making it easier for the children’s sibling, DJC-S, to attend.

43. DLAB has also stated that they are also “willing to facilitate two Skype, FaceTime or telephone sessions per year between the children and [CMS], in addition to his existing scheduled contact”. She and RAB will also provide both CMS and ALC with “an update on the children’s progress in all areas, as well as their school reports (once the children start school)…at least twice a year, either via email or in person. We will also send photographs to both [CMS and ALC] at least twice a year via text message or email”.

44. I shall refer to the further amended Adoption Plans later in these reasons.

Disputed Formal Matter

45. At the commencement of the hearing, and before CMS had arrived at Court, counsel stated that the move to Queensland raised an issue that CMS wished to agitate. (Although, following the discussions between the lawyers, the Court was told that CMS did not wish to agitate the issue further, it seems to me that I should identify the issue and deal with it. In this regard I was assisted, most helpfully, by the submissions of both counsel for the Secretary.)

46. Reference was made to s 23 of the Act, which section, relevantly, provides:

“(2) The Court must not make an adoption order unless, when the application for the order is filed:

(a) the child is present in the State, and

(b) the applicant, or if the application is a joint application, each of the applicants, resides, or is domiciled, in the State.

(3) For the purposes of this section, if the Court is satisfied that the child was present in the State, or that the applicant or each applicant was resident or domiciled in the State, for a period of 3 months immediately before the day on which the application was filed, the Court may, in the absence of evidence to the contrary, presume that:

(a) the child was present in, or

(b) that the applicant or each applicant was resident or domiciled in,

the State when the application was filed.” (Emphasis added.)

47. There was no dispute that, as at 28 December 2017, both RAB and DLAB were resident, and domiciled, in New South Wales.

48. Counsel for CMS then referred to s 28(1)(a) of the Act, which relates to the basic requirements for adoption by a couple, and relevantly provides that “two persons who are a couple may, subject to this Act, adopt a child only if (a) both of them are resident or domiciled in the State…”. As is clear from the sub-section, there is no specific reference, in this sub-section, as to when the couple must be either resident, or domiciled, in New South Wales.

49. Counsel for CMS submitted that, whilst RAB and DLAB were both resident and domiciled in New South Wales when the application for the adoption order was filed in December 2017, RAB was neither resident, nor domiciled, in New South Wales at the date of the hearing. In those circumstances, an order for the adoption of the children, jointly in favour of RAB and DLAB, as a couple, could not be made.

50. I have carefully considered the submission of counsel for CMS and could not ignore it even though the submission was withdrawn subsequently. However, I am not persuaded that it is a submission that should be accepted.

51. Section 28 of the Act, in my view, should be interpreted within the context of Part 1, and consistently with the objects, of the Act, as a whole.

52. In Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28, the High Court (McHugh, Gummow, Kirby and Hayne JJ) wrote, at 381-382 ([69] – [71]):

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘" by reference to the language of the instrument viewed as a whole’". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘"the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘"to determine which is the leading provision and which the subordinate provision, and which must give way to the other’". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘"a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’". (Citations omitted.)

53. Furthermore, s 33 of the Interpretation Act 1987 (NSW), which, on its face, is in mandatory terms, provides:

“Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”

54. With these matters in mind, the context of Part 1 of the Act and the surrounding provisions must be considered. That part specifically addresses the jurisdiction of the Court (s 23 of the Act); who can be adopted (s 24 of the Act); who can adopt a child (s 26 of the Act); that an adoption application can be made either by one person or a couple (s 27 and s 28 of the Act); and the requirements where an adoption application is made by a relative, step parent and where it relates to a non-citizen child (ss 29, 30 and 31 of the Act).

55. I respectfully agree with the Secretary’s submission that the temporal aspect of s 28(1)(a) of the Act should be read consistently with the jurisdictional requirements of s 23(2)(b) of the Act. It would not be consistent, or harmonious, for the legislature to have provided for a requirement of proof of residence or domicile of the proposed adoptive parents for jurisdictional purposes, being at the time of the filing of the Summons (in s 23(3) of the Act), whilst when dealing with the “basic requirements” for a couple seeking to adopt a child, requiring proof of their residence or domicile at the time of the making of an adoption order. To accept the interpretation advanced on behalf of CMS requires an additional hurdle to be satisfied where the proposed adoptive parents have already satisfied the requirements giving the Court jurisdiction under s 23(2)(b) of the Act.

56. Furthermore, it would serve no demonstrable purpose for there to be two different requirements regarding the time of residence or domicile of the proposed adoptive parents.

57. Moreover, if s 28 of the Act required the proposed adoptive parents to be resident or domiciled in the State at the time the adoption order was made, the Court could not make orders without receiving further evidence in order to be satisfied they were then resident or domiciled in the State, particularly if judgment were reserved. Such an interpretation would result in uncertainty and potential confusion for proposed adoptive parents.

58. An evidentiary anomaly would be created whereby there is a requirement for proposed adoptive parents to remain resident or domiciled in the State until an order is made, even though there is no requirement for the child, or children, the subject of the adoption order, to remain resident or domiciled in the State at the time the order is made.

59. Finally, I should refer to s 90 of the Act which provides that the Court must not make an adoption order in relation to a child unless the Court is satisfied of a number of matters. None of those matters relate to the proposed adoptive parents being resident or domiciled in New South Wales at the date of the making of the adoption order.

60. In case I am wrong in this construction of s 28 of the Act, I should mention that the evidence, overall, satisfies me, that at the date of the adjourned hearing, on which date I made the adoption order in relation to each child:

1. DLAB and the children remain living in Terrigal, and RAB flies from Queensland to New South Wales reasonably regularly.

2. RAB undertakes travel in order to engage in work, as is nowadays very common. (The ease with which people communicate with each other, regardless of where they are, has the consequence that a breadwinner of a family unit has the ability to work far from their home and yet remain in frequent contact with his, or her, spouse and children with the result that the impact of separation is minimised.)

3. RAB, whilst working in Queensland, has not ceased to be resident in New South Wales because he is physically absent when working. He seems to have maintained a continuity of association with his home and family, including with CCS and FLS. (It is clearly possible to have two places of residence, and whilst RAB cannot be physically present in both at the same time, he may be resident in each at the same time. People come and go from the place in which they are resident in a large variety of circumstances and on various occasions. It is always a question of fact and degree.)

61. In the circumstances, I am satisfied that at the date of the making of the orders, both RAB and DLAB remained resident in New South Wales. In this regard, as was written in Harding v Commissioner of Taxation [2018] FCA 837, per Derrington J, at [5] (albeit in relation to different countries):

“… Courts have seen numerous cases where the breadwinner or one of the breadwinners for a family unit is able to work in a foreign country on a full time basis without relocating their family there and maintain the family unit and residence in their country of origin.”

62. I am satisfied that the jurisdictional requirements of s 23(2)(b) and the “basic requirements” of s 28(1)(a) of the Act have been satisfied.

Uncontested Background Facts

63. A comprehensive account of the history is contained in the affidavits read in the case for the Secretary. It is, now, not necessary to repeat all of that history in detail. The following facts are clearly established.

64. Each of CCS and FLS was born in Gosford District Hospital. His and her birth certificate, respectively, identifies his, and her, parents as ALC and CMS.

65. ALC was born in January 1987 and is currently 32 years of age. CMS was born in July 1973 and is currently 45 years of age. CMS says that they were in a de facto relationship from September 2012.

66. CMS is said to be of Scottish heritage and of the Presbyterian religion. He is currently in good health, although he sustained a back injury that restricts some of the duties he is able to perform.

67. As well as CCS and FLS, ALC and CMS, together have another male child, DJC-S, who was born in February 2013. (DJC-S was assumed into care one day after his birth and on 3 June 2013, an order was made in the Children’s Court of New South Wales at Woy Woy, granting parental responsibility for him to SI and BI until DJC-S attains the age of 18 years. SI is the sister of CMS and BI is her husband.

68. ALC has 4 living children being BrF, born in November 2004, who is currently aged 14 years; BlF, born in September 2006, who is currently aged 12 years; ZW, born in January 2010, who is currently aged 9 years; and LG, born in September 2016, who is currently aged 2 years. (Another child, AC, who was born in March 2009, died in July 2009.)

69. Each of ALC’s children have been removed from her care and final orders placing him and her, respectively, under the parental responsibility of the Minister of the Department until he, or she, attains the age of 18 years, have been made. BrF and BlF live with their authorised carer, T, in Maitland. ZW lives with her paternal grandmother, G. LG lives with his carers, L and K, in Kariong.

70. The Department’s records reveal that ALC has a current partner, HG. Not very much is known about him.

71. It is not clear whether CMS is in a current relationship, and if so, the identity of any partner.

72. It appears to be accepted that CMS’s “lack of real and meaningful parenting responsibility for the children is significant”. Yet, “he maintains a firm view that a reasonable possibility of restoration to his care exists”. He also accepts that ALC is unlikely to support the return of the children to him: see paragraphs 2 and 3 of his counsel’s submissions.

73. RAB was born in October 1969 in Germany. He has resided in NSW for almost 18 years. He is now an Australian citizen having been granted citizenship in February 1983.

63. DLAB was born in Australia in June 1975. She has resided in NSW for all of her life.

64. RAB and DLAB married in June 2005. They have lived together at their current address in Terrigal, also on the Central Coast of NSW, since 2012.

65. They have two children, being a son, EtAB, who is 11 years old and a daughter, EAB, who is 9 years old. DLAB has a son, J, from a prior relationship, who is 21 years old.

66. RAB and DLAB are “authorised carers”.

67. On the day he was born, CCS was assumed into the care of the Director General, Department of Family and Community Services (as the Secretary was then known), under s 44 of the Care Act. Less than a week after his birth, the Children’s Court of New South Wales at Woy Woy made an interim order placing CCS under the parental responsibility of the Minister of Family and Community Services (“the Minister of the Department”). This order was continued, until 21 January 2015, when the Children’s Court of New South Wales at Woy Woy made final orders allocating parental responsibility for CCS to the Minister of the Department until CCS attained the age of 18 years.

68. Less than a week after her birth, the Secretary filed an application in the Children’s Court seeking interim and final orders allocating parental responsibility for FLS to the Minister until she attained the age of 18 years. On 11 May 2015, the Children’s Court of New South Wales at Woy Woy made an interim order placing FLS under the parental responsibility of the Minister of the Department. This order was continued, until 2 December 2015, when the Children’s Court of New South Wales at Woy Woy made final orders allocating parental responsibility for FLS to the Minister of the Department, until FLS attained the age of 18 years.

69. As previously stated, CCS was placed into the care of RAB and DLAB on 2 March 2015. He has remained living with them, continuously, since that time.

70. As previously stated, FLS was placed into the care of RAB and DLAB on 30 June 2015. She has remained living with them, continuously, since that time.

71. It is not necessary to set out all of the details relating to the child protection history in relation to each of the siblings, and siblings of the half-blood, of CCS and FLS. It is fair to say, however, it is lengthy and detailed. It is equally fair to say that it involves events that occurred prior to about 2015, other than in relation to LG, where Risk of Significant Harm Reports were received in 2016.

The Birth Parents

83. ALC and CMS shared a troubled and turbulent history. There is said to have been a history of drug and alcohol abuse and some domestic violence between them. In addition, each has some criminal history.

84. Currently, ALC is incarcerated. In relation to CMS, he was incarcerated between November 2014 and October 2016.

85. In his affidavit of 13 June 2018, CMS stated:

“27.   I was in jail, either bail refused, or serving a sentence, from 10 November 2014 to 1 October 2016.

28.   I have undertaken at least six (6) random supervised urine analysis at the request of officers of Family and Community Services. The first test, which was taken on 4 March 2014, was positive, but that was a result of being in the presence of someone else using illegal drugs. The other tests have all been negative for drugs and / or alcohol.

29.   I have also undergone urine analysis as directed from Probation and Parole, and they have all been negative.

30.   I have completed a relapse prevention course in March 2014.

31.   I have completed four our [sic] of eight sessions of “Pathways to Parenting”.

32.   I have completed the ‘Equips’ Domestic Violence course, and have a certificate of completion.

33.   I have one month remaining in the ‘Equips’ Aggression course.

…

35.   I have attended counselling with a psychologist, [P] - Stoker.”

86. Since 7 February 2014, information obtained by the Department from NSW Police, reveals that ALC has undertaken 5 random urine screens, with each one negative for drugs or alcohol. However, she is said to have confirmed that she had used cannabis during her pregnancy with LG.

87. There has been some contact between ALC and CMS, and CCS, since he was taken into care. Both attended supervised contact visits with him, between 14 March 2014 and 22 July 2014, on 28 occasions, and “the contact sessions were reported as being positive”. However, on 31 July 2014, the Wyong Local Court made an apprehended domestic violence order prohibiting CMS from, amongst other things, assaulting, molesting, harassing, threatening, or otherwise interfering with, ALC.

88. Following the making of the apprehended domestic violence order, it became necessary to vary the contact arrangements so that ALC and CMS had separate contact visits from each other with CCS. Both parents were consistent in attending the separate contact visits and the visits were reported as being positive.

89. In 2015, there were 15 contact visits between CCS and ALC and the visits were reported as being positive.

90. In relation to FLS, supervised contact was to take place on one occasion per week for the first month, and then on one occasion per fortnight for two months and on one occasion per month for three months and then on one occasion every two months.

91. Throughout 2016, the supervised contact visits with ALC and CMS and CCS and FLS occurred every two months. ALC had supervised contacts, once in each of March, April, July, September, October and December, 2017. Each contact was organised and supervised by RAB and DLAB, occurred at a park, and was reported to have been positive, with no concerns raised.

92. There appears to be no dispute that ALC has a positive, and important, relationship with each of CCS and FLS. ALC, consistently, has maintained contact with the children since the removal of each of them. The children call ALC “Mummy A”.

93. The maternal adoption plan proposes that the contact regime continue for ALC at a minimum of six times per year. It provides that 4 of those visits are with the maternal siblings of the half blood.

94. The evidence given by DLAB reveals that contact with ALC has occurred this year as scheduled other than she missed two contact visits on 29 June 2018 and 8 October 2018. In relation to the latter contact visit, ALC was unable to attend as she was then incarcerated at Berrima Correctional Centre.

95. During the period of his incarceration between November 2014 and October 2016, contact visits between CMS and CCS and FLS were suspended. However, whilst serving his sentence, CMS was sent photographs on one occasion, and on another was informed about FLS having been placed with RAB and DLAB.

96. Upon his release from prison, CMS had contact with CCS and FLS once in November 2016 (at which time his mother was also present and met the children for the first time), and then twice in 2017, once in March and once in September. Each contact was organised by RAB and DLAB, and supervised by a representative (a case worker) from Wesley Dalmar at its offices. Each contact was reported to have been positive, with no concerns raised. More recently, RAB and DLAB have begun supervising contact. The children call CMS “Daddy C”.

97. In 2018, CMS has had visits with the children according to the paternal family visit schedule prepared by DLAB: on 25 February, 10 July and 9 October 2018. The next visit was scheduled for 20 December 2018.

98. There has been intermittent, sporadic, and not very much contact (3 visits in total) between both children and his, and her, sibling, DJC-S. He usually attends with CMS, although did not do so on the visit of 9 October 2018 as he was on holiday.

99. They have had slightly more contact with their siblings of the half blood. Their contact is usually at the same time as ALC’s contact visits. RAB and DLAB planned to have a Christmas visit scheduled in December 2018.

100. Historically, ALC has been resistant to any application for adoption. In 2016, she expressed to the caseworker that she did not want the children to be adopted. Despite that view, she has enjoyed a respectful and consistent relationship with the proposed adoptive parents.

101. In August 2017, Ms Sedgwick met with ALC in Gosford and ALC spoke with her positively about the proposed adoptive parents and acknowledged the level of care both the children were receiving under the care of RAB and DLAB. However, ALC maintained that she did not want CCS and FLS to be adopted and that she would like them to remain under the parental responsibility of the Minister so that contact could be guaranteed.

102. In a more recent meeting with Ms Sedgwick in October 2017, ALC having heard the explanation of the adoption process, stated that she was not agreeing to the adoption as it meant that each child could not return to her care when he, or she, was old enough to make his or her own decision. ALC informed Ms Sedgwick that she had read the adoption plan and “agree[s] with the Adoption Plan” but will not sign the Plan as she does not agree to the change to each child’s names.

103. CMS, until the hearing, had consistently maintained his opposition to the adoption. Throughout 2016 and 2017, he consistently informed caseworkers that he did not consent and that “they’re my kids, no way in the world is anyone going to adopt them”; that he would contest the matter at hearing; and in his affidavit of 13 June 2018, stated that he has concerns about the children not being raised by reference to his Scottish heritage, that he believes that there is insufficient contact permitted under the adoption plan, and he has concerns that the proposed adoptive parents might move the children overseas.

104. CMS also states that “ideally” the children would be in his care, but he has not made any application for restoration. At the hearing, it seemed to be accepted that such an application is unlikely to be made.

105. It is fair to say that whilst CMS has had only a limited relationship with the children, the steps that he has taken indicate that he wishes it to be a growing relationship.

The Proposed Adoptive Parents

106. The proposed adoptive parents identify as being Australian and being of the Protestant religion.

107. RAB is employed as a senior Information Technology Security Consultant whilst DLAB is employed as a company director. Between them, they have sufficient financial resources to meet the needs of both the children. They live in a two storey home with many amenities. Material circumstances are important but not necessarily decisive.

108. Having raised their own child, or her own son, both RAB and DLAB understand the significant responsibilities and challenges of parenting.

109. The needs of both children are very well met under the care of the proposed adoptive parents. They are well bonded to the proposed adoptive parents and to the three other children in the family. They are also very close to each other as siblings. Both of the children share a stable, and nurturing, relationship with RAB and DLAB and refer to the proposed adoptive parents as “daddy” and “mummy” respectively.

110. I am satisfied that each child has a warm, positive, strong, and loving relationship, and each shares his, and her, primary attachment, respectively, with the proposed adoptive parents. They all have a close bond.

111. These matters are clearly endorsed by the referees.

112. The proposed adoptive parents have demonstrated a strong commitment to both children’s ongoing care and a wish to provide them with a strong sense of stability and permanency.

113. Reports that I have read suggest that the proposed adoptive parents interact with FLS in a loving, calm and gentle manner and are attempting coping strategies in relation to the behaviour of CCS.

114. Despite the concerns of CMS, the birth parents share an Anglo-Australian cultural heritage. No additional requests have been made by either CMS or ALC regarding the children’s religious or cultural heritage.

115. RAB and DLAB have exchanged mobile telephone numbers with CMS and with ALC “to provide updates of the children and to facilitate contact”. They have also agreed to provide regular written updates regarding each child’s health, education and development in person at contact visits. They appear to be committed to maintaining the contact between the birth parents and the children and have demonstrated this commitment by the regular scheduling of contact visits between them.

116. RAB supports the children with their life stories by taking photographs at family events. Currently, at his and her age, respectively, neither child asks any questions about his, or her, life story.

117. DLAB has prepared paternal and maternal contact schedules each year.

The Children – CCS and FLS

118. Both children have been developing well and have not had any significant health concerns. However, in 2017 it was reported that CCS did not like routine and DLAB commented that occasionally CCS’s reactions were “over the top” (such as excessive crying).

119. In 2018 it has been apparent that CCS has a delay in learning and some behavioural challenges. Between February and June 2018, he attended sessions with a psychologist and completed the Autism Spectrum Rating Scale Test. It has been recommended that he have an Autism Diagnostic Observation Schedule assessment in the near future. The proposed adoptive parents have been advised to use some therapies such as a weighted blanket and use of straws rather than cups.

120. RAB and DLAB have not raised any concerns in relation to the behaviour of FLS since she was placed in their care.

121. The children attended pre-school until July 2018. Since then, they have been at home with DLAB. It is proposed that each will recommence pre-school in the 2019 term, with CCS attending at a smaller, and more appropriate, pre-school.

122. No concerns have been raised about this temporary arrangement and both children are developing well and meeting their educational milestones. They are surrounded by siblings at home and are still being well socialised. Each child’s behaviour appears to be age and developmentally appropriate.

123. Importantly, both children have a close and loving relationship with the children of RAB and DLAB, and with J, DLAB’s son. Similarly, DLAB reports that the other children have bonded well, particularly with FLS.

124. The children have also bonded well with DLAB’s mother.

125. There is evidence that each of CCS and FLS, respectively, appears to be developing an age appropriate understanding of his and her birth. RAB and DLAB talk readily with each about birth family members in an age appropriate way.

126. Each of CCS and FLS is very young and does not understand the adoption process. Each is presently meeting developmental milestones but the level of understanding is such that the wishes of each are not relevant in the circumstances.

The Adoption Plans, as amended

127. Section 46 of the Act, relevantly, provides:

“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.

…”

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

129. 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. Thus, it is necessary to consider this aspect also.

130. I am satisfied that each of CMS and ALC, being a birth parent who has not consented to the adoption of either CCS or FLS, has been given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the children.

131. The initial Maternal Adoption Plan provided for face-to-face contact between the children and ALC to occur at least six times per year for a period of two hours. The contact was to be arranged directly between the proposed adoptive parents and ALC, and was to occur at a mutually agreed location. The children’s siblings were also to be included in four of the six visits.

132. The initial Paternal Adoption Plan provided for face-to-face contact between the children and CMS to occur at least four times per year for a period of two hours. The contact was to be arranged directly between the proposed adoptive parents and CMS, and was to resemble the current contact schedule of March, July, September and December each year.

133. The initial Adoption Plans also provided for RAB and DLAB to share information about the children’s progress with the birth family through letters and photographs.

134. The contact proposed maintained the level of face-to-face contact between the birth parents and the children as provided for in the children’s Care Plans, and allowed an opportunity for the children to build on their knowledge of the birth family and their own growing sense of identity.

135. The initial Adoption Plans also took into account the children’s and the proposed adoptive parents’ sharing of a common cultural background, and where the proposed adoptive parents and the birth family would contribute to the development of the children’s cultural heritage throughout their upbringing.

136. Following a mediation that occurred on 9 October 2018, the Department prepared further amended Maternal and Paternal Adoption Plans. Each of the Department and RAB and DLAB has agreed to those further amended Adoption Plans.

137. The amendments to the Maternal Adoption Plan maintain the frequency of contact at no less than six times per year and confirm that contact is to occur in NSW. The amendments also provide that ALC is to confirm her attendance at contact at least one week prior to contact occurring, and if she does not, that the visit may not proceed. This will provide a degree of certainty for all parties involved.

138. ALC has confirmed that she has read the maternal Adoption Plan and agrees with the adoption itself, but will not sign the Maternal Adoption Plan as she does not agree with the change of name of each child.

139. The amendments to the Paternal Adoption Plan made arrangements for contact including increasing the frequency of contact with CMS from four times per year, to include two additional Skype, or telephone contact on each child’s birthday. The amended Paternal Adoption Plan also confirmed that contact is to occur in NSW and specified the specific venue for that contact which had been agreed to by the birth father.

140. The amendments also provide that CMS is to confirm his attendance at contact at least one week prior to contact occurring, and if he does not, that the visit may not proceed. This will provide a degree of certainty for all parties involved.

1. Orders pursuant to the Adoption Act 2000 (NSW), s 67(1)(d), that the consent of the child’s birth mother, ALC, be dispensed with.

2. Orders pursuant to the Adoption Act, s 67(1)(d), that the consent of the child’s birth father, CMS, be dispensed with.

3. Orders pursuant to the Adoption Act, s 50(3), the amended Maternal Adoption Plan (being Ex. ALC1) in relation to the children, signed by the proposed adoptive parents and a delegate of the Secretary, Department of Family and Community Services on 31 October 2018, be registered.

4. Orders pursuant to the Adoption Act, s 50(3), the amended Paternal Adoption Plan (being Ex. CMS1) in relation to the children, signed by the proposed adoptive parents and a delegate of the Secretary, Department of Family and Community Services on 30 November 2018 be registered.

5. Makes an order for the adoption of CCS in favour of the adopting parents, RAB and DLAB, and approves the names “AB" as the surname and “CCS" as the given names of the child CCS.

6. Makes an order for the adoption of FLS in favour of the adopting parents, RAB and DLAB, and approves the names “AB" as the surname and “FLS" as the given names of the child FLS.

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