Secretary, Department of Communities and Justice v OA - [2019] NSWSC 1457

Supreme Court

New South Wales

Medium Neutral Citation: Secretary, Department of Communities and Justice v OA [2019] NSWSC 1457
Hearing dates: 17 and 18 October 2019
Date of orders: 18 October 2019
Decision date: 25 October 2019
Jurisdiction: Equity - Adoptions List
Before: Sackar J
Decision:
Adoption Orders Made

Catchwords: FAMILY LAW AND CHILD WELFARE – adoption- whether adoption clearly preferable to any other order for all children – whether adoption in best interests of all children - evidence admissible in adoption proceedings – whether proposed adoptive parents are fit and proper for the purposes of the act –health and financial circumstances of the proposed adoptive parents – age of proposed adoptive parents
Legislation Cited: Adoption Act 2000 (NSW)
Cases Cited: Adoption of AT [2016] NSWSC 1971
Adoption of Hampton-Morgan [2018] NSWSC 2007
Adoption of Hogarth (No 2) [2019] NSWSC 9
Adoption of KH [2015] NSWSC 274
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of Taylor-Clay [2019] NSWSC 27
In the matter of O; In the matter of S [2019] NSWSC 20
Re H and the Adoption Act 62 NSWLR 245; [2004] NSWSC 1242
Re the Adoption of AJH [2017] NSWSC 751
Texts Cited: n/a
Category: Principal judgment
Parties: Secretary, NSW Department of Communities and Justice (Plaintiff)
O A (First Defendant, birth father)
Representation:
Counsel:
Ms K Shea (Plaintiff)
Ms M Fraser (First Defendant)
Solicitors:
NSW Crown Solicitor (Plaintiff)
No representation (First Defendant)

File Number(s): 2019/122595

Judgment

Procedural background

This matter concerns the adoption of four children, NA born June 2004, MA born July 2005, SA born May 2007, Y I born February 2010 (collectively referred to as the children). By amended summons dated 26 April 2019, the Secretary seeks an adoption of all the children in favour of MF and DF (the proposed adoptive parents).
All the children are the children of OA (the birth father) and U (the birth mother), the children are full biological siblings. Although the birth father is not named on Y’s birth certificate, it is believed that he is the birth father of Y. The Secretary also seeks a declaration naming OA as Y’s birth father as well as an order including the birth father’s name in the Register of Births, Deaths and Marriages as Y’s father.
The Secretary also seeks an order dispensing with the consent of both the birth parents in respect of the adoption of Y and an order approving all the children’s surname as “F”, and the given names of “N F” (F being the proposed adoptive mother’s middle name), “M M” (M being the name of the proposed adoptive parent’s son who passed away in 2016), “S D” (D being the first name of the proposed adoptive mother) and “Y R” (R being the late M’s middle name).
On 7 June 2019, the birth father filed an appearance in the matter. He indicated he was opposed to the adoption. He also expressed the wish that the children be returned to the birth mother, however this point was not pressed at hearing.
The birth mother has not filed any appearance and has not participated in the proceedings. The birth mother has expressed support of the proposed adoption, although she has not formally consented.
The matter was set down for hearing for two days on 17 and 18 October 2019. Counsel appeared for the Secretary and Counsel appeared for the birth father on a pro bono basis. Counsel for the birth father indicated to me that he continued to oppose the adoption and was further seeking contact four to six times a year (T2/5-16).
Shortly before hearing, the proposed adoptive father had broken his shoulder as the result of tripping over a rake and was unable to attend the Court (T1/32). The Court was also informed that he was on strong pain medication and therefore was unavailable for cross-examination.
On 18 October, after hearing oral submissions, I made orders approving the adoption of all four children. I gave a brief explanation, although indicated to the parties that this was not intended to replace more detailed written reasons which I publish now. At the conclusion of that short explanation, Counsel for the birth father informed me they had been instructed to apply for a stay of the orders. The Secretary opposed the stay. I indicated that, in my view, it would be appropriate to stay the orders for seven days only from the publication of written reasons.

Background facts

The birth mother and birth father commenced a relationship in 1996. They have six children together, the four children the subject of these proceedings as well as D born March 1998 and B born March 2000.
The children also have three older paternal half-siblings, E, C and H.
The birth parents were in a relationship until around 2011.
N was born in June 2004 and was admitted to the Special Care Nursery due to her low birth weight. In July 2004 N was discharged into the care of the birth mother. At this time the birth parents also had D, B, E in their care.
M was born in July 2005. Throughout 2004 and 2005, Family and Community Services attempted to engage with the birth parents and conducted monthly home visits to support the family. The records indicate that the birth father did not engage with services and the birth mother’s engagement was inconsistent. During this time Family and Community Services received reports relating to the birth father’s drug use, and domestic violence towards the mother as well as concerns about ongoing neglect of the children.
From January to August 2006, further reports were received in relation to ongoing neglect of the children including a lack of food and furniture in the house, the house being unsanitary and the children wearing dirty nappies and not attending school. There were also concerns about the birth parent’s alcohol and drug use and domestic violence in the house.
In August 2006, D, B, E, N and M were removed from the care of the birth parents.
N and M were placed with the proposed adoptive parents in February 2007, and have been living with them continuously since this time. At the time of placement, N was two years old and M was fourteen months. It was considered that there was no realistic prospect of restoration. At the time N and M were placed, the proposed adoptive parents already had the care of D and B. Final Orders were made by the Childrens’ Court in January 2007, allocating parental responsibility for N and M to the Minister until they reached the age of 18.
In the early part of 2007, Family and Community Services engaged with the birth mother in relation to the then unborn S. Records indicate that the mother’s engagement with parenting courses, antenatal appointments and meetings with Family and Community Services was inconsistent. S was born in 2007 and immediately assumed into care. It was considered that there was no realistic prospect of restoration. S was placed with the proposed adoptive parents in May 2007 and has been living with them continuously since this time. At the time of placement, S was five days old. Final Orders were made by the Childrens’ Court in June 2007, allocating parental responsibility for S to the Minister until she reached the age of 18.
In April 2007, the Joint Investigation Response Team at Parramatta reported they had substantiated allegations that the father had perpetrated sexual abuse towards D and N in the presence of the mother. Other allegations of sexual harm being perpetrated by the father towards the children were also made around this time.
In September 2008, allegations were made that N was exposed to sexual harm from B. B was removed from the care of the proposed adoptive parents. B was subsequently placed with authorised carers.
Between August 2009 and February 2010, Family and Community Services received multiple reports in relation to concerns about then unborn Y, primarily in relation to the birth mother’s drug use, the ongoing relationship between the birth father and the birth mother despite past domestic violence issues as well as the other siblings’ child protection history. Y was born in February 2010 and immediately assumed into care. It was considered that there was no realistic prospect of restoration. The birth father is not named on Y’s birth certificate. However, the birth father was named in documents before the Children’s Court. The birth father signed final orders of the Children’s Court as Y’s natural father. The birth father has since signed a consent to declaration of parentage (CB1/118). Y was placed with the proposed adoptive parents in February 2010 and has been living with them continuously since this time. At the time of placement, Y was two days old. Final Orders were made by the Children’s Court in August 2010, allocating parental responsibility for Y to the Minister until he reached the age of 18.
In October 2012, D’s placement with the proposed adoptive parents broke down. He was subsequently placed with the proposed adoptive parents’ adult son, X. D still lives with X and has frequent contact with the children.
The proposed adoptive mother was born in October 1957 and the proposed adoptive father was born in September 1946. They married in August 1979. They had five adult biological children, including M who passed away in November 2016. The proposed adoptive parents resided in Sydney until October 2014 when they relocated to the St George’s Basin area to help the children get to know their maternal grandmother who lived in the area. In 2016, the birth mother moved into the maternal grandmother’s home.
In 2018, the proposed adoptive father completed a medical report for an Authorised Carer applying to adopt a child. The report disclosed that the proposed adoptive father had hypertension and Type 1 Diabetes which was and had been for many years, successfully managed by medication. He also saw a renal specialist. He was also obese and had undergone a triple bypass surgery in 2016. An Out of home care adoption assessment completed in September 2018 (Ex P1) notes that despite the proposed adoptive parents’ advanced age and health concerns they manage to complete their roles as carers and enthusiastically. Both proposed adoptive parents have guardianship plans in place should they be needed. They rely primarily on their biological adult children for any support in caring for the children. The proposed adoptive parents’ biological children are supportive of the adoption and are frequent visitors at the family home.
The same OOHC Adoption Assessment notes that the proposed adoptive parents own their home outright; it has five bedrooms and is a five minute drive from the children’s’ school and a large shopping centre. Their monthly expenses are modest. Neither of the proposed adoptive parents are employed, but they are in receipt of both carers allowance and Centrelink payments. If there was an adoption they would continue to receive payments from the government in the form of the family tax benefit.
There have been several reports made against the proposed adoptive parents in relation to the children in their care:

In November 2013, a caseworker observed M lifting his hand as if to strike M, but did not actually strike M. This incident was investigated and it was deemed to not meet the threshold for reportable conduct;

In December 2013 the family was referred to family therapy, based on the November 2013 incident, N’s recent behavioural issues; and other concerns around the quality of care being provided;

In November 2015, Y reported to a caseworker that M had thrown an iPad and that it had hit him but it was an accident, there was no injury or marks on Y;

In June 2016, Y was observed with a head injury, it appears that the proposed adoptive father had done this accidently when he and the children were playing with a ball. This incident was investigated and not substantiated due to a lack of evidence;

Also in June 2016, the proposed adoptive father had apparently entered Y’s school and “verbally abused staff about dobbing him in in front of the class”;

From 2006 until 2010, the children had irregular and inconsistent contact with the birth mother. There was no contact between the birth mother and N, M and S between March 2008 and late 2012. The birth mother had some contact with Y during this time. Contact recommenced with all the children in late 2012, and between 2013 and 2014 contact between the birth mother and all four children occurred on four occasions for four hours. In 2015, three visits between the birth mother and the children occurred. In 2016, the proposed adoptive parents began arranging additional informal contact between the children and the birth mother and the maternal grandmother. In 2018, the birth mother and the maternal grandmother collected Y and S from school, once every two weeks, and the birth mother and the maternal grandmother attended the children’s school events and on one occasion the children had a sleepover.
Between 2006 and 2017, there was minimal contact between any of the children and the birth father, due to his frequent incarceration and the substantiated claims that he had sexually harmed the children. The children have expressed that they do not wish to see their father.
As noted the children have had frequent and ongoing contact with D who resides with the proposed adoptive parents’ adult son. He has indicated he is supportive of the adoption. After B was placed with other carers, there was ongoing contact between him and the children. After the proposed adoptive parents relocated, they would see B when he came to the area to visit the maternal grandmother. This happened less and less as B got older and became less interested in contact. The children do not have any contact with their paternal half-siblings. This is in accordance with their wishes.
On 3 January 2019, N and M each signed an Instrument of Consent to their respective adoptions. On 4 June 2019, S signed an Instrument of Consent to her adoption. N, M and S were all counselled and assessed as having capacity to consent to their adoptions.
At the time of the s 91 report made in April 2019, N was in year 9 and had no significant health concerns and was not currently seeing any health specialist. Although it was reported N had had some issues at school both academically and socially in the past, she was enjoying this year and looking to begin tertiary education in either social work or teaching.
In June 2012, M was diagnosed with ADHD and was reported as needing significant intervention and had a developmental disorder. It was also suspected that M may be on the Autism spectrum. In 2016, a paediatrician noted that M was of normal intelligence but had Autistic Spectrum Disorder which was been managed with extra help at school. M did not display any hyperactivity and the paediatrician did not recommend further treatment (Ex P2). At the time of the s 91 report, M had commenced year 8. M had previously been in an IM class, suitable for children with mild intellectual disabilities. M’s Autism Spectrum Disorder is being managed, and although he has had behavioural difficulties in the past and continues to have tantrums on occasion, on the whole M’s behaviour has improved.
S commenced year 6, and is involved in a wide variety of co-curricular activities including gymnastics, dancing and swimming. Although S has experienced some social troubles at school, she appears to be enjoying school more recently. It is reported that S may need orthodontic work in the future.
Y currently wears glasses and although there have been some concerns in the past with Y’s development; he is no longer required to attend speech therapy or occupational therapy.

Legal Principles

The best interests of the child

It is clear, when considering the potential adoption of a child or children, the best interests of that child/ren is to be the paramount consideration at all times. Relevantly ss 7 and 8 of the Act provide:

7   What are the objects of this Act?
The objects of this Act are as follows:
(a)   to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,
(b)   to make it clear that adoption is to be regarded as a service for the child concerned,
(c)   to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,
(d)   to recognise the changing nature of practices of adoption,
(e)   to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas,
(f)   to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements,
(g)   to encourage openness in adoption,
(h)   to allow access to certain information relating to adoptions,
(i)   to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents.

8   What principles are to be applied by persons making decisions about the adoption of a child?
(1)   In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles:
(a)   the best interests of the child, both in childhood and in later life, must be the paramount consideration,
(b)   adoption is to be regarded as a service for the child,
(c)   no adult has a right to adopt the child,
(d)   if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,
(e)   the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,
(e1)   undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare,
(f)   if the child is Aboriginal—the Aboriginal child placement principles are to be applied,
(g)   if the child is a Torres Strait Islander—the Torres Strait Islander child placement principles are to be applied.

(2)   In determining the best interests of the child, the decision maker is to have regard to the following:
(a)   any wishes expressed by the child,
(b)   the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,
(c)   the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,
(d)   any disability that the child has,
(e)   any wishes expressed by either or both of the parents of the child,
(f)   the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,
(g)   the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,
(h)   the nature of the relationship of the child with each proposed adoptive parent,
(i)   the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,
(j)   the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,
(k)   the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.

Moreover, in cases such as this where the children are older and able to express views about the adoption, regard should be had to s 9:

9   Participation of child in decisions
(1)   To ensure that a child is able to participate in any decision made under this Act that has a significant impact on his or her life, the decision maker is responsible for providing the child with the following:
(a)   adequate information, in a manner and language that the child can understand, concerning the decision,
(b)   the opportunity to express his or her views freely, according to his or her abilities,
(c)   information about the outcome of the decision and an explanation of the reasons for the decision,
(d)   any assistance that is necessary for the child to understand the information and to express his or her views,
(e)   appropriate counselling when the child’s consent is required to his or her adoption.
(2)   In the application of this principle, due regard must be had to the age and developmental capacity of the child.
(3)   Decisions about the adoption of a child that have a significant impact on the life of the child include, but are not limited to, decisions relating to the following:
(a)   the placement for adoption of the child,
(b)   the development of any adoption plan concerning the child and the views of the child’s parents about the plan,
(c)   an application for an order for the adoption of the child,
(d)   contact with birth parents or others connected with the child.

Who can adopt

The Act places certain restrictions on who can adopt a child or children in NSW. Part 1 of Chapter 4 of the Act, specifies particular requirements on persons applying to adopt, whether they be a couple, step parent, individual etc.
Section 28 provides the requirements when a couple seeks to adopt:

28   Adoption by couple
(1)   Basic requirements
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, and
(b)   both of them are of good repute and are fit and proper persons to fulfil the responsibilities of parents.
(2)   Requirements for step parent
The Court must not make an order in favour of a couple if one of them is a step parent unless section 30 is complied with.
(3)   Age requirements
The Court must not make an adoption order in favour of a couple if neither of them is a birth parent or relative of the child unless:
(a)   each of them is 21 or more years of age and 18 or more years older than the child, or
(b)   the Court considers that in the particular circumstances of the case it is desirable to make the order even though one or both of them do not fulfil the age requirements.
(4)   Length of relationship requirement
The Court must not make an adoption order in favour of a couple unless the couple have been living together for a continuous period of not less than 2 years immediately before the application for the adoption order.
(5)   The Court may make an adoption order in favour of a couple jointly even if one of them is a birth parent, or they are the birth parents, of the child.

Consent to an adoption

The Court must not make an adoption order unless, when required, consent has been given to the adoption.
Section 52 relevantly provides:

52   Consent of parents and persons who have parental responsibility generally required
(1)   The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given:
(a)   in the case of a child who has not been previously adopted by:
(i)   each parent of the child, and
(ii)   any person who has parental responsibility for the child, or
(b)   in the case of a child who has previously been adopted—by each adoptive parent of, or person who has parental responsibility for, the child.

Importantly, ss 54 and 55 provide for certain circumstances where consent is not required.

54   When consent of parent or person who has parental responsibility not required:
(1)   Consent is not required under section 52 if:
(a)   the requirement for the consent has been dispensed with by the Court, or
(b)   the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or
(c)   the child gives sole consent to his or her adoption in accordance with subsection (2), or
(d)   the child is 18 or more years of age.
(2)   A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years.
(3)   However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless:
(a)   the Court is satisfied that at least 14 days’ notice of the application for the adoption order has been given by the Secretary or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or
(b)   the Court dispenses with the giving of notice.
(4)   The regulations may prescribe the particulars to be contained in a notice under this section.
55   Consent of child
(1)   The Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless:
(a)   the child has been counselled as required by section 63, and
(b)   the counsellor has certified that the child understands the effect of signing the instrument of consent (as required by section 61), and
(c)   the child consents to his or her adoption by the prospective adoptive parent or parents or the Court dispenses with the requirement for consent.
(2)   The Court may make an adoption order in relation to such a child who is incapable of giving consent if the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order.

Division 2 then relevantly stipulates when consent will be considered effective. In particular, s 63 requires:

63   Child or other person consenting must be counselled
(1)   A child or other person giving consent must be counselled in accordance with this section within the period prescribed by the regulations before he or she signs the instrument of consent to an adoption.
(2)   A person is counselled in accordance with this section if a counsellor:
(a)   accurately explains to the person, in a way that the counsellor thinks will be understood by the person:
(i)   the legal effect of signing the instrument of consent and the procedure for revoking consent, and
(ii)   the effect of the mandatory written information, and
(b)   counsels the person on the emotional effects of the adoption and alternatives to adoption (including, in the case of birth parents, the feasibility of keeping the child).
(3) This section does not require the Minister administering the Children and Young Persons (Care and Protection) Act 1998 or any delegate of the Minister to be counselled before giving consent to the adoption of a child who is under the parental responsibility of the Minister.

If consent to an adoption is not obtained, the court may make a consent dispense order under s 67:

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 or the guardians for the child:
(i)   the child has established a stable relationship with those carers or guardians, and
(ii)   the adoption of the child by those carers or guardians 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.
(3)   In this section:
guardian has the same meaning as in section 79A (1) of the Children and Young Persons (Care and Protection) Act 1998.

Clearly Preferable

Section 90 provides:

90   Court to be satisfied as to certain matters
(1)   The Court must not make an adoption order in relation to a child unless the Court is satisfied:
(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 step 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.

(2) 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.
(3) 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.

Particularly, in accordance with s 90(3), the Court cannot make an adoption order unless it is clearly preferable to any other action that could be taken (for example, a long-term parenting order, restoration, etc). Brereton J said of the section, in Adoption of KH [2015] NSWSC 274 (at [46]):

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

In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J described the principles applicable with respect to s 8 (at [14]-[17]):

In speaking of adoption being a "service to the child", the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met.
Adoption Act, s 90(3), provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007]NSWSC 762;(2007) 37 Fam LR 595, [25]].
The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows:
• Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships;
• Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and
• Concerning to the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them.

In addition, all these are informed by the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption.

Later at [76]-[80]:

First, an adoption order will provide certainty and permanence for the child, both directly, and indirectly through the additional certainty it will afford the adoptive parents. The possibility of further changes, disruptions and separations will be minimised. The aspirations to restoration expressed by both birth parents, and re-affirmed by the mother in her oral evidence, however improbable as an outcome, will be practically foreclosed. An adoption order is also likely to minimise any remaining temptation for the birth mother to make comments or suggestions that the child will be returning to her care. In these ways, and others, adoption will contribute to providing for the child the stability, security and certainty that he plainly needs, and will be an important aspect of mitigating his current insecurity. In a case such as the present, where there has been extensive past turbulence and associated vulnerability, and where the child harbours fears of insecurity, this is a telling factor.
Secondly, the child would be raised in a legally recognised family, rather than remaining a State ward for the duration of his childhood. He would no longer be in "out-of-home" care, but in "in-home" care. The need for departmental intervention in his care, and departmental approval for significant decisions of the applicants, would be removed, as would be the stigma potentially associated with being a State ward.
Thirdly, the child's legal status would be brought into conformity with reality. Psychologically and residentially, he is a member of the proposed adoptive family. An adoption order would bring the legal position into line with this. His membership of the family that he regards as his own would be perfected, providing him a sense of security and permanent belonging in that family. And the child would be a member of the family not only during childhood, but for life.
Fourthly, his legal name would correspond with that of the family with which he lives and identifies. He would be enabled to choose for himself whom he tells of his status, without it being self-evident from his name.
While an adoption order would, of course, legally sever the parental relationship between the child and the birth parents, they are relationships which, in reality, have been practically devoid of parental responsibility. An adoption order would in fact serve the child's identity needs by perfecting his membership of the family with which he identifies, while providing a more secure foundation for an ongoing relationship with the birth parents through contact, which the applicants will be better able to support and facilitate when relieved of the insecurity or doubt that might attend it if some prospect of restoration remained open.

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

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

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

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

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

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

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

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

Contact and adoption plans

Adoption plans are frequently used to provide certainty around contact regimes between the child and the birth family in the context of open adoption.
The importance of an adopted child’s contact with their birth family has been noted in several cases (see e.g Adoption of AT [2016] NSWSC 1971; Adoption of NG (No 2); In the matter of O; In the matter of S [2019] NSWSC 20; Adoption of KH [2015] NSWSC 274).
In Re the Adoption of AJH [2017] NSWSC 751, Hallen J emphasised that contact was to be for the benefit of the child. His Honour stated (at [356]):

Furthermore, the terms regarding contact should be “realistic and achievable. Unduly generous promises of, or indications as to, future contact should not be made in order to achieve a resolution of a case, however tempting that may be. Agreements as to contact should not include provision for excessive contact which is not in the interests of the children”: Kate and William, Re– Reduction of Post Adoption Contact [2017] NIFam 13 at [16].

Recently in Adoption of Hogarth (No 2) [2019] NSWSC 9, Brereton J noted the following (at [121]):

As the parties to the adoption (being in the circumstances the Principal Officer and Ms Herriot) have agreed to an adoption plan, the Court may not make an adoption order unless satisfied that the arrangements proposed in the plan are in the child’s best interests and proper in the circumstances. Whether the arrangements are proper in the circumstances requires consideration of all the circumstances relevant to the arrangements, and in particular the purpose of “open adoption” – being one in which the child will know and have contact with her birth family. And although it may be observed that if there is no adoption plan providing for contact there is no such statutory hurdle, nonetheless the arrangements for birth parent contact are relevant to whether an adoption order should be made, regardless of whether or not there is an adoption plan, because they bear on whether the child’s identity needs will be adequately addressed, and thus whether adoption is in her best interests.
The Secretary proposed that the adoption plan be registered. Registration provides an additional measure of assurance to birth parents in respect of contact, as a registered plan is enforceable as if it were an order of the Court, and even if they are not parties to the plan, they have standing to enforce the deemed order in their favour. For that reason, and not least because of my sense that while Ms Herriot will comply with her legal obligations in respect of contact she may not proactively promote birth parent contact, I would register the plan were I satisfied, for the purposes of s 50(3)(c), that its provisions were in the child's best interests and proper in the circumstances.

With respect to adoption plans s 46 of the Act 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.
(3)   An adoption plan for an Aboriginal child or Torres Strait Islander child to be adopted by persons of whom neither is an Aboriginal or Torres Strait Islander, as the case may be, must make provision of the kind referred to in subsection (2) (a).
(4)   If provisions of the kind referred to in subsection (2) (a) are proposed to be included in an adoption plan, those provisions should be made after consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation.

Where there is an adoption plan, the Court may register that plan if it is satisfied that the plan does not contravene the principles of the Act and is in the best interests of the child and proper in the circumstances (s 50(3)).

Name Change

A Court may include a name change on an adoption order under s 101.

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.

Justice Brereton considered name change in the Adoption of Hampton-Morgan [2018] NSWSC 2007 (at [10]):

As one of the features of adoption is that it makes a child a permanent and full member of the adoptive family, and one of the most obvious indicators of that is the assumption of the adoptive family's surname, it would not be consistent to make an adoption order on the one hand, without the associated change of surname on the other. So, as it seems to me, if I come to the conclusion that adoption is in her best interests because it cements permanently her membership of the Prentice family, then it would be inconceivable that such an order would be made without also giving her the surname of that family.

Procedure and evidence under the Adoption Act

At the outset of the proceedings Counsel for the birth father took a number of objections to the s 91 report as well as some of the affidavits relied upon by the Secretary.
It is worth briefly outlining the use of evidence and procedure in the adoption context.
Adoption proceedings are to be conducted at all times, focussing upon the best interests of the child (s 7(1)(a)). It is this principle that guides the process and procedures of the court. In light of this, s 126 of the Act notes:

126 Matters admissible in evidence
Except as otherwise provided by this Act or the regulations, the Court, in the hearing of any proceedings or in determining any application or matter under this Act or the regulations, may act on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter of the proceedings or before it for determination whether or not the statement, document, information or matter would be admissible in evidence.

This provision gives the Court wide latitude with respect to the materials it can receive and rely upon in such proceedings. Provisions such as s 126 appear in many other contexts, some administrative, others disciplinary. It is not uncommon for particular legislation to exclude the rules of evidence.
Justice Young in Re H and the Adoption Act 62 NSWLR 245; [2004] NSWSC 1242, considered evidence in the adoption context. His Honour noted at ([22]):

I should repeat what has been said before that in uncontested matters and, indeed generally, under s 126 of the Adoption Act, 2000, the court accepts less than the best evidence. However, it endeavours to insist that:
(1) Affidavits contain facts not submissions;
(2) Where there is a contest, the facts should normally be presented on affidavit by the person best equipped to make the statement who is prepared to be cross-examined thereon.

NOT IMPLEMENTED: support for w:pgNum -

past actions, rather it is to assess the situation of the children as it currently stands taking into account their case history notwithstanding whether or not particular aspects of that case history have ever been proven in a criminal trial.

In that case, His Honour took issue with an affidavit from a delegate of the Secretary in which she made certain submissions as well as statements about a particular training seminar that she did not attend.
Given the particular nature of adoption proceedings, it is important to maintain a level of informality. Section 126 mandates that approach. However it is still apparent that some adoption proceedings are in effect adversarial and some are not. Generally they should not be. Further, it is clear, that the Court is obliged before making an adoption order, to satisfy itself to a level of actual persuasion that the various relevant requirements of the Act are met.
The very important focus on the best interests of the child, by itself requires the Court to receive and consider, the best possible evidence it can. Materials too flimsy or too far removed from the circumstances of the case are to be carefully scrutinised before any weight can be attached to them.
Equally, however, the Courts work is not to be stultified by too formal approach to the evidentiary materials it can rely upon. It is appropriate, in the best interests of the child, that as much information as possible is reviewed so the best and most appropriate decision can be made for the benefit of the child. In particular, given that the child the subject of the proceedings will often not participate, it is necessary and extremely important to rely upon the notes of case workers, and other various professionals working with the children, the birth parents and the proposed adoptive parents or parents. The care history will always be relevant, as will any medical reports, school reports and interviews. It is not possible to circumscribe in advance the particular materials that will be relevant in any particular case, or which are likely to carry most weight.
It is essential, however, to note that the rules of natural justice still apply in the adoption context. At a minimum, each party to the proceedings is entitled to an understanding of the issues in dispute and is, entitled through legal representation or otherwise to be heard. Further, the purpose of the proceedings is not to make any particular finding about an adult or impose a judgement on

Evidence

As noted above, objections were taken to some of the evidence filed by the Secretary.
I admitted all the material relied upon by the Secretary under s 126. I note that I make no particular factual findings with respect to some of the allegations that have been made against the birth father, however it is clearly uncontroversial that those allegations have been made and therefore form part of the children’s care history.
In the s 91 report of Ms Coiner, social worker, she describes N as a healthy young woman with excellent communication skills who is actively engaged in community radio and local fundraising. N enjoys a range of sports such as oz tag, swimming and hockey and wants to be a child care educator when she finishes school. She notes that M presented early in life with a range of complex behaviours but that he has improved significantly and was not receiving ongoing treatment. Ms Coiner describes M as shy but engaged with his family and enjoying school and is applying himself to the best of his ability. She described S as healthy and happy child who enjoys learning to cook. S is chatty and applies herself well at school although sometimes has trouble staying on task. Y is described as the baby of the family and is warm and well connected to his siblings. He does not enjoy school work but has lots of friends and shows independence in the house.
Ms Coiner notes that the children are Anglo-Australian as well as the proposed adoptive parents. She notes that the maternal grandmother is Maltese and the children are exposed to their Maltese heritage during their frequent contact and have all attended Maltese community events on occasion. She notes that the proposed adoptive parents have successfully raised their biological children into adulthood and do not feel worried about any particular challenges ahead of them. Ms Coiner notes that discipline takes the form of removal of technology, time out, and conversation and reflection. Although there have been some incidents where concerns were raised in the past there are no current concerns and the proposed adoptive parents have an understanding of the special vulnerabilities of the children in out of home care. She states that all the children are very attached to the proposed adoptive parents and all share a warm and loving relationship and that all the children have expressed a wish to be adopted. Ms Coiner states she is of the view that an adoption is the best option for the children, that it will give them a greater sense of identity beyond age 18 and provide them with legal certainty and recognition of the relationships that already exist.
During cross-examination, Ms Coiner admitted that she hadn’t asked why N was absent from school for 17 days in Semester 2 of 2018 (T21/47) and she admitted that M would likely require support after he leaves school (T23/31). She stated she had discussed adoption with each of the children and explained the benefits of remaining in the care of the minister, she had not discussed the possibility of an adult adoption (T23/33-47).
Ms Jamieson, delegate of the Secretary swore one affidavit in the proceedings. In her affidavit she outlines the children’s history in care. She was unavailable to give evidence at the hearing and Ms Garraway, another employee of the Secretary, instead gave evidence. She was only able to answer questions of a more general nature. She acknowledged that FACS would provide financial assistance to high needs children in care that was not available to adopted children (T14/23-27).
Of particular note was the letter of the birth mother dated 9 March 2019 (exhibited to the affidavit of the delegate Ms Jamieson) (CB1/463):

…
In 2006, 13 years ago I made the decision of putting my children in care for their safety and well being it was the hardest situation I put myself in knowing it was the right thing I had to do. This might be not relevant to this case I just thought you would like to know how it has come to this.
As a mother its so very hard to let go of your children they are your life. The right thing is for them to be happy, stable, well loved and they are. The contact I’m getting now is even better then I was receiving by courts from the start, I wouldn’t change a thing. I would love to be in their life for many years to come.

In the affidavit of delegate Mr Cohen dated 11 September 2019, he provides an update on the children, attaching their recent school reports and an email exchange between N and the birth father. N wrote:

Hi O it’s N. I don’t want you trying to contact us again. Stop trying to show interest. The only thing I want from you is to stop contesting our adoption. Don’t want to hear from you again, cya. N.

He also attaches a file note from FACS recording a September 2019 conversation with the birth mother. The file note records that the birth mother stated as much as she loves her children she needs to put their needs first, and would not go against their wishes to be adopted.
The proposed adoptive parents filed affidavits with the Court as well as two affidavits from referees.
The proposed adoptive father disclosed that he has Type 1 diabetes, cardiovascular disease and some kidney trouble. He states that he was brought up a ward of the state so he understands how important it is for the children to know their life story, he is open to them about their history and the adoption. He is encouraging the children at school and to lead active lives. He believes adoption is in their best interests as it will allow them a real sense of belonging to a real family.
I note that a submission written by the proposed adoptive father with assistance of the proposed adoptive mother, to the Senate Inquiry into Children in Institutional Care was also provided to the Court. The submission recounts the proposed adoptive father’s harrowing experience in institutional care, but also describes how he has overcome his trauma to live a happy and peaceful life.
In her affidavit, the proposed adoptive mother explains that she is open with the children about the adoption as well as their birth family and history. She states that she plans for the family to remain in the same home as the children are enjoying the school and contact with the birth mother. She states she believes adoption is in the best interests of the children because she wants them to have a true sense of belonging and the reassurance and sense of security that they will always have a home with us.
During cross-examination, the proposed adoptive mother stated that M had a diagnosis of autism, but recently a paediatrician had indicated that a diagnosis of ADHD was no longer appropriate (T26/6), she confirmed that he is not currently receiving any form of therapy, and no one has recommended that he should (T27/1-10). Further they planned to apply to the NDIS for M’s ongoing support if the adoption was approved (T41/28). She confirmed that Y has no current diagnosis and does not receive therapy (T27/12-16). She stated she has been receiving a carers allowance for the proposed adoptive father for years (T30/20-26), she stated that the triple bypass surgery has given him a new lease on life (T31/9). She stated that she would be supportive of the children having a relationship with the birth father in the future if they wanted and it was safe for them to do so (T40/25). She stated that the children really want to be part of the family and be like normal children (T42/47-48). As noted, the proposed adoptive father was unavailable for cross examination.
The birth father filed three affidavits in the proceedings. In his affidavit 28 August 2019, the birth father states that he opposed adoption and wishes for the children to be restored to the birth mother. In his 3 September 2019 affidavit the birth father states that the Secretary’s evidence is untrue. In his 15 October 2019 affidavit, the birth father asserts that the children were always well taken care of before their removal, he states he wants the children to know that he is there should they feel ready to re-establish a relationship ([57]). He states he loves his children and wants more contact ([53]). During cross-examination the birth father stated that he wished to discuss the allegations of sexual abuse with his children and persuade them that they were not true (T48/5-19). He admitted there had been little communication with the children since around 2007 or 2010 (T50/31-47). He indicated he wanted to see his children four to six times a year, he stated he would not force the older two children to see him but wanted to see S and Y regardless of their wishes (T49/7).

Submissions

The Secretary submits that all the children have expressed a clear wish to be adopted by the proposed adoptive parents. In particular N, M and S have all signed instruments of consent to their respective adoptions. Y has also expressed that he wants to be adopted and become a legal family member. The children have lived with the proposed adoptive parents for the majority of their lives. They have developed strong and secure relationships with the proposed adoptive parents, and call them ‘Mum’ and ‘Dad’. The Secretary submits that the children are thriving in the care of the proposed adoptive parents, who have demonstrated an ability to meet all the children’s medical, educational and emotional needs. They have effectively managed all the children’s development needs, in particular M who now no longer requires therapy. Further the proposed adoptive parents have demonstrated a commitment to maintaining birth family contact when it is appropriate for the children, and have recognised the importance of such contact for the children’s identity needs. In particular the proposed adoptive parents arrange and facilitate frequent and informal contact with the birth mother and the maternal grandmother. It is submitted that an adoption order is clearly preferable as it would cement the children into the family to which they are strongly and securely attached.

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

Consideration

Before making an adoption order, the Court must be satisfied that certain formal requirements of the Act have been complied with. Although, this is often uncontroversial, Counsel for the birth father made certain submissions with respect to the requirements under s 28. The thrust of the argument was not to suggest that the parenting of the children was somehow inadequate or inappropriate. Rather certain submissions were made as to whether they were ‘fit and ‘proper’ as required by the Act.
Attention was drawn to the ‘advanced’ age of the proposed adoptive parents. As far as the proposed adoptive mother is concerned, she impresses me as in reasonably good health, if not very good health. She has some medication which she takes. It is true that she is, perhaps, a little older than some of the persons I have dealt with in the courtroom, but I do not believe age in and of itself should ever be a barrier to somebody becoming a legal parent in New South Wales. That is fortified, in my view, by the terms of s 28 itself, which fixes a minimum age, but even in the case of two persons, one of whom has not reached 21, the Court can always make an order notwithstanding the minimum age has not been reached by one of the couple who may make application, but what is singularly important, and unsurprisingly in one sense, is that there is no upper limit which s 28 requires.
There was significant discussion at hearing as to the proposed adoptive father’s age (he is ten years older than the proposed adoptive mother) and health. In particular, it was noted that he is obese and is treated for Type 1 diabetes and in 2016 had a triple bypass surgery. Although it is clear that the proposed adoptive father does indeed have health concerns, some of which are significant, there is no evidence that these are impeding or have impeded on his ability to parent the children. It seems to me, that although health is clearly a relevant factor which should be taken into account under s 28, the section as a whole is directed to whether the proposed adoptive parents are of good character and repute. It seems to me clear that they are.
It further is clear, that what must be considered is whether or not the proposed adoptive parents are able satisfactorily to exercise their parental responsibilities. Although the health of an individual may be relevant, the particular parental responsibilities will vary over time. They will change in character from time to time because they necessarily must do to reflect the age of the children concerned and their particular requirements, both educational, health and otherwise. I am satisfied in this case, that despite the health concerns, the proposed adoptive father has successfully parented his five biological children into adulthood, including successfully raising one of their children who has a moderate intellectual delay and ADHD, and on all the evidence has provided the children in this matter a loving and stable home. His health concerns certainly do not prevent him from being a thoughtful, caring and loving parent and that is what he has been for the last 12 or 13 years in collaboration with his wife. They have been married some forty years.
There was a hint that somehow or other psychologically he may have been impaired as a result of experiences during his youth. Helpfully, if I may say so, Counsel for the birth father tendered a document, which was a submission jointly prepared by the proposed adoptive parents for the Senate Inquiry into Children in Institutional Care. It is a harrowing tale he tells, but it is also prophetic. It shows that there was light at the end of his tunnel, it shows that he has come out of a very dark time in his life, and notwithstanding the fact that he wrestled those demons for many years, he was able, successfully, to marry, to have a loving relationship and to bring up his own children without any difficulty at all, and although he suffered, it seems he suffered very much in private. He was able to come out of that tunnel, partly due to the cathartic exercise he undertook by giving his account of his terrible experiences to the Inquiry, and undoubtedly the love, support and devotion he received from his wife and children.
I do not believe that his health issues, such as they are, alone or in combination relevantly impair his ability to fulfil his responsibility as a parent. Both proposed adoptive parents are clearly experienced parents who have successfully brought up their own children. Although there are objective health concerns, there is no guarantee for any parent that they will be around forever. It is clear that both proposed adoptive parents have sought and obtained expert medical advice in relation to their health and have taken measures actively to manage their health concerns. The fact that these adoptive parents are older is not enough to negate an adoption order. It is always a matter of balance, and in this case the other factors weigh strongly in favour of an adoption.
I note now that I am satisfied that the other formal requirements have been satisfied, I am satisfied that the proposed adoptive parents have been selected in accordance with Part 3A (selection of authorised carers as adoptive parents) and the other factors in s 28 have been complied with. I am satisfied that the children were domiciled in NSW at the time an application was made (s 23).
I am satisfied that, taking into account the requirements under s 90 as well as the best interests of the child and the factors under s 7 and s 8, that an adoption order should be made.
In particular I considered the wishes of the children extremely important (in particular I refer to s 90(1)(b) and s 8(1)(d)). N, M and S have all given their informed consent to their adoption (s 90(1)(d)). I am satisfied that they have an understanding of what adoption means, and want to be legally part of the F family. All children refer to the proposed adoptive parents as ‘Mum’ and ‘Dad’. N has expressed annoyance and concern about the fact that she needs FACS permission before she can be in a school photograph. I note now, that despite argument from the birth father, I am satisfied that M has given his informed consent to the adoption, it is clear that a qualified professional, has spoken with M and has formed the view that he is able to understand the consequences of adoption, in particular he has said that he hates being in foster care and wants his mum to be his real mum. S has said she wants to be a normal kid. Y, although too young to have given his consent, has clearly expressed many times to many people that he wishes to be adopted and form a legal part of the F family. Y in particular is clearly acutely aware that he has a different last name to the rest of his siblings as well as his psychological parents, it is clear to me that he wants an adoption and legally become one family.
It is clear that some time was taken in explaining the adoption to N, M and S and ensuring that they fully understood the legal ramifications and were able to give legal consent. In September 2018, N and M were provided with a copy of the Mandatory Written Information on Adoption. In November and December 2018, N and M met with registered counsellor, Ms Kingston, who assessed the children’s ability to give consent. In January 2019, N and M signed the Instrument of Consent. In May 2019, S was provided with a copy of the Mandatory Written Information on Adoption. At the end of May, S met with registered counsellor, Ms Oliver, who assessed her ability to give consent to the adoption. In June 2019, S signed the Instrument of Consent. The evidence shows that the process of adoption has been discussed with all the children many times, and they have all been able to actively engage in discussions with their caseworkers about what it means to be adopted and the legal effects of such adoption. M indicated he could not wait to be adopted and become the proposed adoptive parents’ son ‘officially’. N stated that she knew that if an adoption order was not made and something happened to the proposed adoptive parents’ she could end up back in foster care, and she didn’t want that. S stated that she would be happy to have a new birth certificate and would be proud of this legal connection to her new family.
In cases such as this, when the children have been living in the same home for nearly their whole lives, where their primary psychological bonds are clearly with the proposed adoptive parents, and when they have expressed their views about the adoption, it would be misconceived to ignore the clear and informed wishes of the children. As is clear from the objects of the Act, adoption is to be a service for the child and not anyone else (s 8(1)(b)) and these children have a right to express their views and be consulted and considered when making decisions that significantly affect them. In my view, I am satisfied that I should take the children’s clear wishes into account.
I am moreover satisfied that the best interests of each child will be promoted by an adoption order. It is important that I consider the case of each child the subject of these proceedings and their separate needs, experiences and personalities.
N is described as a bright, engaging teenager. She enjoys playing a wide variety of sports and is actively engaged in the local community. The proposed adoptive parents have clearly given N the skills and confidence she needs to interact with the broader world around her and exercise her own independent decision making. They are supportive of her interest in tertiary studies, and she is at this stage interested in becoming a child care educator like the proposed adoptive parents’ son. This to me shows, that the proposed adoptive family have clearly had a significant and positive impact on N.
N initially had some high needs relating to her early experiences of trauma. Her care history shows that the proposed adoptive parents initially engaged a variety of therapies and counselling services to help assist N. It is clear that this therapeutic intervention was successful and N no longer feels the need to attend therapy. It seems that the proposed adoptive parents have demonstrated sensitivity to N’s needs and have demonstrated an ability to meet her emotional and developmental needs with therapy and other intervention as appropriate.
N has in the past, demonstrated some challenging behaviours that the proposed adoptive parents have managed in a calm and sensitive manner. In particular it appears that N has had some behavioural issues at school in the past that have been improving since the family relocated in 2014. N enjoys high school now that she can choose her own electives and her recent school report demonstrates that she is, on the whole, a thoughtful and engaged student.
N has a close relationship with the proposed adoptive parents, calling them ‘Mum’ and ‘Dad’. She has expressed a clear desire to be adopted
M is described as more shy than N, but as a generous boy who enjoys helping others at school. The proposed adoptive mother spoke how one of her biological sons is helping M learn some skills in his work in roof restoration. M is now engaged at the school learning life skills such as basic IT, cooking and money management. The proposed adoptive parents are clearly focused on assisting M gain independence and are actively making plans to help him in his future endeavours.
M initially presented with significant high needs when he was first placed in care. He has been diagnosed with Autism Spectrum Disorder and cognitive and language delay, and has also displayed challenging behaviours such as throwing tantrums. M’s care history shows the ongoing commitment of the proposed adoptive parents’ to engage in treatment to help support M and he has previously seen a variety of specialists and therapists. This has clearly been of great benefit to M who has thrived in the care of the proposed adoptive parents and has improved significantly in his behaviours. It is now agreed between M’s school, caseworkers, and doctors that further intervention as this stage is not needed, although maybe required in the future.
M has been improving both at school and socially with the support of the proposed adoptive parents. They have been able to care for and manage M’s Autism-Spectrum-Disorder by providing stability and routine. It is clear M has been supported by a loving and caring family home life. The proposed adoptive mother gave evidence that M’s tantrums have significantly decreased and are well-managed, I accept her evidence. The proposed adoptive parents are encouraging M to do some more activities, such as art classes or drama as he doesn’t enjoy contact sports.
M is clearly strongly attached to the proposed adoptive parents, he has commented an adoption will mean ‘mum will be my real mum’. His primary psychological bond is clearly with the proposed adoptive parents who have provided him with a loving home for many years.
S is described as a happy and healthy girl who has lived with the proposed adoptive parents since she was five days old. She enjoys dancing and gymnastics. The proposed adoptive parents have been able to create a loving and caring home environment whereby S feels confident speaking openly about her feelings. The proposed adoptive parents’ are open with S about how she came into care and are helping her learn about her own family history in an age appropriate way.
Although in the past S has experienced some social problems at school, she has been supported by her family and the proposed adoptive parents and is now enjoying school much more. Her latest school report describes her as a kind and caring student. The proposed adoptive parents encourage S to work hard at school and praise her for her achievements.
S has a close relationship with the proposed adoptive parents and is actively engaged with the family and eagerly chats with them. She likes cuddling with ‘mum’ and ‘dad’ and says that they like to make her laugh. It is clear that she feels supported and loved with the proposed adoptive parents who have provided her with a safe and happy home in which she feels able to be herself and express her thoughts.
Y is described as the baby of the family and enjoys socialising and has lots of friends. He has been with the proposed adoptive parents since he was two days old. Y enjoys playing in the backyard pool, ipad and socialising with family members.
Y was initially identified as having some developmental delay, but this appears to have been well managed through therapeutic intervention. Y no longer requires any therapy although receives additional support at school when required. The proposed adoptive parents have demonstrated a commitment to supporting Y and provided him with beyond adequate care in helping him reach all his developmental milestones.
Although Y is still experiencing some challenges at school, in particular staying focused on tasks, he is described as confident and eager to share with the classroom. Y has a strong attachment to the proposed adoptive family and wants to be part of their extended family.
Counsel for the birth father also questioned whether the proposed adoptive parents would be in an adequate financial position to care and raise the children. It was argued that allowing the children to remain in care would give them access to some level of financial support from the government as part of the transitioning from care allowance, and would therefore be in their best interests. There was some suggestion that the children were currently going without certain luxuries due to the proposed adoptive parents’ financial situation, in particular that they were unable to attend excursions and looked like ‘kids in care’ (although I do note that this report appears to be from 2013).
Despite these arguments, there is no evidence before me that there is financial depravation such that the children are not being properly schooled, or clothed or fed. All the children enjoy a wide variety of extra-curricular activities and enjoy happy and fulfilled lives. It is not suggested they are not provided with proper parental guidance from either proposed adoptive parent in the course of a week or a day about homework, about all sorts of things which, in my view, count much more seriously than necessarily whether one can afford an outing or not.
It seems to me, having considered the proposed adoptive parents’ financial position, that their home is their own, they own it outright. It is a commodious place, it keeps everybody happy and everyone seems to have their own space. Their monthly commitments are, it seems to me, relatively modest, and with the ongoing financial support that will be provided after the adoption order is made, it seems to me does provide adequate financial support for the proposed adoptive parents and the four children. The proposed adoptive parents’ have, in my view, also clearly considered the future endeavours’ of the children, as they turn 18. They have indicated that they will help support N as she studies at the nearby university campus and are encouraging M in learning a trade with their biological son. There is no evidence, in my view, that the ability to access a limited, although not necessarily insignificant, payment of Assistance after leaving out of home care, should prevent these children from being adopted.
It is clear, that for all the children, an adoption order would be clearly preferable. In my view, the psychological bond between all of the children and the proposed adoptive parents is so strong that it would be inappropriate to leave these children in limbo for any longer.
The proposed adoptive parents have more than adequately supported the children in understanding their birth family, and identity. They are open with the children about the adoption process and how they came into their care. The proposed adoptive mother shares family photos with the children and has labelled them with all the important people in the children’s’ lives. The children are open about discussing their family history and how they came into care. The proposed adoptive parents have facilitated an ongoing and constructive relationship with the birth mother and maternal grandmother, who have frequent and informal contact with. The birth mother in particular has noted the proposed adoptive mother’s commitment to the relationship. The children reportedly enjoy this contact and have benefited from a developing relationship with their biological mother. This type of relationship shows a commitment from both the birth mother and the proposed adoptive parents to fostering a positive relationship for the benefit of the children. There is clearly a commitment to helping the children understanding their identity and place in the world.

The proposed adoptive parents also remain open to a relationship with the birth father in the future, at the direction and safety of the children. The birth father first emailed the proposed adoptive parents in 2018, the proposed adoptive mother responded in a calm and respectful manner.
I also note now, that I would make a consent dispense order under s 67 dispensing with the needs of the consent of the birth parents as it relates to Y. Given my reasons above, and the fact that Y has, despite not being able to give consent yet, expressed a clear desire to be adopted and form a legal part of the family with whom he has lived his entire life, it seems clear to me that this would be in his best interests. Of course, a consent dispense order is not required for the older children who have already consented to their own adoption. I would also make the orders naming the birth father on Y’s birth certificate.
I would also make the name changes as requested by the children. It seems clear to me that providing the children with the same name as the people with whom they view as their psychological parents, would serve to enhance their sense of security and permanency going forward. They all already prefer to be known as ‘F’ and it seems to me that the making the name change would be in their best interests and clearly in line with their wishes.
Finally I would make orders registering the maternal and paternal adoption plans. I am satisfied that they are in the children’s best interests. The maternal adoption plan allows for the ongoing frequent and informal contact between the birth mother and the maternal grandmother which has clearly been of great benefit to all involved. Given the wishes of the children and the fact that there has been no significant contact between N, M and S since 2007 and Y since 2010, I believe that the paternal adoption plan is also suitable. It does not impose contact on the children but leaves future contact open if the children wish for it to occur. The birth father, ultimately, declined the opportunity to become a party to the adoption plan. I was assured by Counsel that he had been given advice as to the consequences of this.

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Decision last updated: 30 October 2019

Medium Neutral Citation:	Secretary, Department of Communities and Justice v OA [2019] NSWSC 1457
Hearing dates:	17 and 18 October 2019
Date of orders:	18 October 2019
Decision date:	25 October 2019
Jurisdiction:	Equity - Adoptions List
Before:	Sackar J
Decision:	Adoption Orders Made
Catchwords:	FAMILY LAW AND CHILD WELFARE – adoption- whether adoption clearly preferable to any other order for all children – whether adoption in best interests of all children - evidence admissible in adoption proceedings – whether proposed adoptive parents are fit and proper for the purposes of the act –health and financial circumstances of the proposed adoptive parents – age of proposed adoptive parents
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	Adoption of AT [2016] NSWSC 1971 Adoption of Hampton-Morgan [2018] NSWSC 2007 Adoption of Hogarth (No 2) [2019] NSWSC 9 Adoption of KH [2015] NSWSC 274 Adoption of NG (No 2) [2014] NSWSC 680 Adoption of Taylor-Clay [2019] NSWSC 27 In the matter of O; In the matter of S [2019] NSWSC 20 Re H and the Adoption Act 62 NSWLR 245; [2004] NSWSC 1242 Re the Adoption of AJH [2017] NSWSC 751
Texts Cited:	n/a
Category:	Principal judgment
Parties:	Secretary, NSW Department of Communities and Justice (Plaintiff) O A (First Defendant, birth father)
Representation:	Counsel: Ms K Shea (Plaintiff) Ms M Fraser (First Defendant) Solicitors: NSW Crown Solicitor (Plaintiff) No representation (First Defendant)
File Number(s):	2019/122595