Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW

[2017] NSWSC 1087

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087
Hearing dates:	11 April, 20 June, 15 August 2017
Date of orders:	15 August 2017
Decision date:	15 August 2017
Before:	Sackar J
Decision:	See paragraph [24]
Catchwords:	EQUITY – adoption – whether adoption by the proposed applicants will promote the welfare of the child – whether dispensing with the birth parents’ consent is in the best interests of the child – whether the best interests of the child will be promoted by the making of an adoption order and preferable to any other action that could be taken by law in relation to their care – whether the Paternal and Maternal Adoption Plans should be registered – whether the court should order the child’s surname to be changed
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Adoption Amendment (Same Sex Couples) Act 2010 (NSW)
Cases Cited:	Barnardos Australia v HR and CD [2016] NSWSC 1926
Texts Cited:	n/a
Category:	Principal judgment
Parties:	Secretary, Department of Family and Community Services, by its principal, Barnardos Australia (Plaintiff) MB (birth father) JW (birth mother)
Representation:	Counsel: M Anderson (Plaintiff) No appearance (birth father) Appeared in person (birth mother)   Solicitors: Crown Solicitors Office (Plaintiff) No representation Appeared in person
File Number(s):	A79 of 2016

Judgment

1. These proceedings commenced by application filed on 29 June 2016 concern the adoption of J (born 30 June 2009) and her brother Z (born 20 October 2011). The application is brought by the Secretary, NSW Department of Family and Community Services by his delegate the Principal Officer of Barnardos Australia which is the designated agency under section 139 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

2. The children have been under the parental responsibility of the Minister for Family and Community Services as a result of orders of the Children’s Court on 22 April 2014.

3. The proposed adoptive parents Mr PW and Mr TS have had both children in their care since 4 September 2014.

4. The adoption is not opposed by the children’s birth mother Ms JW or the father Mr MB. Mr MB does not however consent to the current Parental Adoption Plan in particular in relation to the frequency of contact for him and he would like to have some contact visits with the mother also present, so they could see the children as a “family”.

5. When the matter was last before the court on 20 June 2017 the mother did not appear but the father appeared by videolink. He was then incarcerated. He has since been released.

6. At the last hearing I requested an expert report be prepared. That has been done and Ms S a clinical psychologist operating under some considerable time constraints prepared a comprehensive, thorough and insightful report dated 11 August 2017. For that purpose she interviewed Mr TS, Mr PW, Ms JW and Mr MB and made pertinent clinical observations of the children’s interaction especially with the proposed adoptive parents.

7. Ms S was supplied with a good deal of material identified in [8] and [9] of her report. I have had the advantage of carefully reading all of those same materials together with her report.

8. I have also received detailed written submissions from Mr Anderson of counsel, who appears for the Secretary.

Legal Principles

9. Although judges undertake important work arguably the most important work at least in this Division of the court by a very large margin in my view is determining applications for adoption. It is one of the most profound and important decisions a judge can be called upon to make.

10. Section 8(1) of the Adoption Act, 2000, requires that as far as is practicable or appropriate the best interests of the child both in childhood and in later life be the paramount consideration. There are of course a number of other factors to be taken into account (Section 8(2)). The provisions of Section 90 are also relevant and to similar effect.

11. The order for adoption should be regarded as the clearly preferable option in the child’s best interests.

12. Where a birth parent does not give consent to the adoption for any reason Section 67(1)(d) allows the Court to dispense with the consent if the application for adoption is made by authorised carers with whom the child has a stable relationship and where adoption by those carers will promote the child’s welfare. Dispensing with consent is a serious step and should not lightly be taken.

13. As a result of the Adoption Amendment (Same Sex Couples) Act 2010 (NSW) the law in New South Wales allows same sex couples to adopt a child. I have recently reviewed the authorities and the legislation in Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Barnardos Australia v HR and CD [2016] NSWSC 1926 at [53] - [55].

Consideration

14. The adoption is not in any material sense opposed but the birth father in particular wanted to be heard on the question of increased access. He did not however appear at the hearing although he was notified of the date and served with the relevant material including Ms S’s report.

15. Nature will generally put biological parents in a special place especially in the hearts and minds of their offspring. The significance however of that bond varies over time and sadly in some instances may amount to no more than a theoretical concept.

16. Unsurprisingly when children are placed in care in their early years and it is a positive experience the child usually grows in that environment. Most experts agree that interfering with that bond will frequently cause harm to the child concerned by destabilising his/her world. The security and predictability which flows from such a positive environment is paramount in the nurturing and maturing process.

17. The proposed adoptive parents have been together since 2004 and were able to marry in Switzerland in June 2012. The report of Ms S reveals the intelligent, loving, supportive nature of the proposed adoptive parents. Sadly it also realistically identifies the significant psychiatric and lifestyle problems of both biological parents.

18. Both birth parents have had and are still it seems experiencing ongoing mental health and other issues of significant concern. There is of course here no question of restoration of the children to either parent. Independently of Ms S’s views I have made that assessment on the materials I have reviewed.

19. On the materials before the Court in my view adoption of both children is the clearly preferable course. To that end and insofar as Mr MB opposes the orders that are sought I will dispense with his consent in the circumstances. I would also dispense with the consent of the birth mother.

20. I have no doubt that it is in the best interests of J and Z to be adopted by the proposed adoptive parents and in this regard I concur with Ms S that such a course of action would promote their wellbeing.

21. For the reasons set out in Ms S’s report especially at paragraphs [226] to [233] it is not appropriate in my mind to provide Mr MB with additional visits over and above those proposed in the Paternal Adoption Plan. There are at least two reasons for this. His current mental health is problematical. Equally relevant however is the fact there is in place an AVO preventing contact between him and the mother, which is in force until 17 December 2020.

22. It is hoped no doubt by him and perhaps his family that he can restore his mental health, shake his addiction and engage in a constructive future. On that basis and over time if that situation is realised he could arguably seek a variation of the Paternal Adoption Plan or it may be that the parties could co-operate with each other in providing a variation to it from time to time. That is a matter for the future and as I say very much dependent upon whether Mr MB can get his life in order.

23. The court has power pursuant to section 101 of the Act to approve a change of name. It should only do so where the court regards it in the best interests of the child for that to occur. Again I dealt with this recently in the authority I have previously made reference to at [49] – [50]. Apart from there being no objections here from the birth parents Ms S points out a view with which I agree that a change of name to the name of the proposed adoptive parents will assist the children in developing a sense of belonging and assist the adoptive parents in feeling like the children are their children. In this case in my view it will just confirm a true sense of belonging that already exists. It has the obvious but important effect of creating in a formal sense a family unit.

24. I formally made the orders when the matter came before me on 15 August. I said I would elaborate on my reasons. These are they.

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Amendments

17 August 2017 - typos - para [13] remove "the" - para 24 "mother" to "matter"

Decision last updated: 17 August 2017