Secretary, New South Wales Department of Family and Community Services v KZ

[2019] NSWSC 474

Supreme Court

New South Wales

Medium Neutral Citation:	Secretary, New South Wales Department of Family and Community Services v KZ [2019] NSWSC 474
Hearing dates:	29 April 2019
Date of orders:	29 April 2019
Decision date:	29 April 2019
Jurisdiction:	Equity - Adoptions List
Before:	Sackar J
Decision:	Adoption Orders made
Catchwords:	EQUITY – adoption – whether adoption proposed will promote the best interests of the child – whether dispensing with consent of maternal grandmother and birth parents 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– whether the Paternal and Maternal Adoption Plans should be registered– whether the court should order the child’s surname to be changed
Legislation Cited:	Adoption Act 2000
Cases Cited:	Adoption of Taylor-Clay [2019] NSWSC 27
Category:	Principal judgment
Parties:	The Secretary, New South Wales Department of Family and Community Services (Plaintiff) Birth Father (First Defendant) Maternal grandmother (Second Defendant)
Representation:	Counsel: C McGorey (Plaintiff)   Solicitors: NSW Crown Solicitors (Plaintiff) Dean Lawyers, Dean M Russo (Defendant)
File Number(s):	A142/2018

Judgment

The Proceedings

1. The Secretary for the Department of Family and Community Services (the Secretary) by summons filed 27 July 2018 seeks the making of the following Orders:

1.   A declaration that birth father is the father of the child;

2.   Including the father’s name in the Register of Births, Deaths and Marriages as the child’s father;

3.   Dispensing with the consent of the birth parents;

4.   Providing for the adoption of the child by the proposed adoptive parents; and

5.   Approving the child’s surname as “M” and given names RRS.

2. The Secretary and the proposed adoptive parents have agreed to two Adoption Plans, dated 27 July 2018.

Background Facts

3. The child RRS was born on 13 November 2014. By reason of the birth mother’s previous history with two other children she was immediately assumed into care and then placed into short term foster care on 14 November 2014.

4. On 18 November 2014 a care application was filed and in March 2015 a psychological report was prepared and filed by Dr Mason dealing with RRS.

5. On 20 March 2015 RRS’s birth mother (birth mother), attempted to abscond with her during a contact visit and there was an altercation which occurred between her and contact workers as a result of which the police had to be called.

6. From time to time since RRS’s the birth father has identified himself as RRS’s father.

7. On 23 March 2015 a Care Plan for RRS was filed recommending that she remain in out of home care. The report noted concerns as to the possible impact of the birth mother and/or the maternal grandmother’s behaviour on RRS’s placement.

8. On 16 October 2015 contact occurred between RRS and her two half sisters (A B and J, born respectively in 2007 and 2008), as well as the birth mother, maternal grandmother and maternal great grand parents. It was noted that there was a verbal altercation between the birth mother and the maternal grandmother. This would appear to be the last contact between the birth mother and RRS.

9. On 18 September 2015 the Children’s Court made orders vesting parental responsibility for A B and J and RRS until they each reach 18 years of age. Those orders remain in force.

10. On 9 October 2015 RRS was placed in the care of the proposed adoptive parents and remains with them.

11. On 9 December 2015 day to day case management for RRS was assumed by the Benevolent Society of New South Wales, the Minister however retained parental responsibility.

12. During 2016 RRS had four to six supervised contacts with the maternal grandmother and other family members and in addition the proposed adoptive parents arranged contact for RRS with her two half sisters and their carer.

13. During 2016 and 2017 further contact visits occurred between the proposed adoptive parents, RRs and the maternal grandmother.

14. On 13 November 2017 the maternal grandmother filed a Section 90 application seeking orders vesting parental responsibility for A B, J and RRS to her.

15. On 13 April 2018 the maternal grandmother’s Section 90 application was refused.

16. During 2017 and 2018 Ms Elizabeth Shepherd an Adoptions Assessor and social worker made various visits for the purposes of preparing reports for these proceedings.

17. On 10 May 2018 the maternal grandmother filed a summons appealing the refusal of her Section 90 application which on 24 July 2018 she amended so as to no longer press the appeal in relation to RRS.

18. On 27 July 2018 the Secretary filed the present summons for adoption.

19. On 8 August 2018 Wilson DCJ dismissed the maternal grandmother’s appeal.

20. On 10 August 2018 the birth mother was personally served with the application for adoption.

21. On 17 September 2018 the birth father (as alleged) was served with the application.

Relevant Principles

22. By Section 8(1) of the Adoption Act the Court is to have regard to specified principles when making a decision about the adoption of a child, including the best interests of the child both in childhood and in later life which must be the paramount consideration. Adoption is to be regarded as a service for the child and that no adult has a right to adopt the child. The focus in any proceedings must be in the best interests of the child and how making an adoption order would benefit the child rather than how the order would benefit others.

23. Section 90 of the Act reinforces those considerations but in addition the child’s age and understanding and wishes if they can be ascertained should be taken into account. The proposed adoptive parents must be regarded as appropriate and those persons who may give consent have either done so or that consent has been dispensed with.

24. Due consideration should be given to cultural issues, language, and religion in making any order for adoption.

25. Further the Court should not make any order for an adoption if the parties to the adoption have agreed to an adoption plan unless the Court is satisfied that the arrangements proposed are again in the best interests of the child and are proper in the circumstances.

26. Importantly the Court may not make an order for adoption unless it considers that the making of the order would be clearly preferable and in the best interests of the child and other order that could be taken by law in relation to the care of the child.

The Evidence

27. Numerous affidavits were read on behalf of the Secretary and two witnesses were briefly cross examined.

28. Miss Elizabeth Shepherd prepared a court report dated 16 May 2018. After an evaluation of the matters therein described including careful examination of RRS’s current care situation and the proposed adoptive parents, Ms Shepherd considered that the most appropriate course was adoption because of the bond which existed between the proposed adoptive parents and RRS and because it would be the most appropriate permanent case plan goal. Ms Shepherd was cross examined by Mr Russo, who appeared for the maternal grandmother. She did not alter her views in the course of that cross examination. I accept her evidence.

29. Miss Catherine Louise Davis was also called by the Secretary to give evidence. She prepared two affidavits, one of 27 July 2018 and more recently 22 February 2019. In the first she expressed the view that RRS had formed a stable and loving relationship with the proposed adoptive parents, that she had never lived with her birth family and that the proposed adoptive parents had been the most consistent care givers she had known.

30. She expressed the view that there were distinct advantages in adoption for RRS because it would provide her with a sense of belonging which in her view could not be achieved within long term foster care or under an order for parental responsibility even with the current proposed adoptive parents.

31. In her subsequent report she adhered to her previous views and further expanded by way of update on a number of additional matters. Again she was cross examined by Mr Russo and was undeterred in the views that she had previously expressed. Again I accept her evidence.

32. Evidence was filed from the maternal grandmother by way of an affidavit of 11 December 2018. She was not cross examined. However in her affidavit she quite candidly acknowledged the problematic mental health of her daughter, the birth mother and that the latter did not attend contact with the children. In relation to adoption her concerns were that the biological connection of RRS would be severed and would not be in her best interests if adoption were ordered. Further her submission in effect was that the proposed adoptive parents should seek to have their own children although she acknowledged that the placement of RRS with them has been successful and further she acknowledged that the carers had formed a strong bond with RRS.

The Submissions of the parties

33. The Secretary’s case is that adoption is the preferable course in the circumstances the Court is here presented with. For various reasons developed in detailed written submissions it is submitted that first there is no jurisdictional impediment to making such an order. The proposed adoptive parents, as a couple, are suitable, and in a stable relationship and their eligibility to make such an application is clear by reason of the 2010 amendment to the Adoption Act.

34. It is also submitted they have provided a loving environment for RRS and that adoption is the more preferable course because it will create a sense of permanence and stability which will be in RRS’s best interests. In addition it is submitted that the proposed adoptive parents well understand their obligations and have been successful in parenting RRS to date and it is submitted will continue to do so. They have agreed to both a Maternal and a Paternal Adoption Plan and which will continue to provide opportunities for contact between RRS, her birth family and indeed her half sisters and the exposure to for example Croatian culture.

35. The maternal grandmother on the other hand although acknowledging the strong bond which exists advances a number of arguments as to why adoption is not currently the preferred course.

36. First it is submitted because of RRS’s age and her inability properly to understand the proceedings the order for adoption should at least be deferred until RRS turns 12 at which point she can express her own views about the matter. Further that the proposed adoptive parents should attempt to have their own children and further that an order for adoption would sever the biological bond that currently exists.

Considerations

37. In my view in the present circumstances adoption is the more preferable course.

38. RRS is described as a loving, affectionate, active and curious child. She has been in the continuous care of the proposed adoptive parents since 9 October 2015 when she was about 11 months of age. Her only relevant psychological bond in my view is with the proposed adoptive parents and not her birth family.

39. RRS’s maternal family has clearly experienced numerous difficulties partly due to the problematic mental health of the birth mother. RRS’s half sisters were removed from the care of the mother owing to concerns about the mother’s mental health and domestic violence which then existed between the parents.

40. RRS is making good progress at school. She attends speech therapy, she also attends a podiatrist for treatment of her gait. She engages in physical activities such as swimming. She is happy and content in her pre school environment.

41. RRS’s birth family are of Croatian background. The proposed adoptive parents are Scottish and Irish on the one hand and Slovenian and German on the other. RRS has been baptised a catholic and the proposed adoptive parents are supportive of RRS’s engagement in her Croatian heritage.

42. Neither birth parents have given their consent to the adoption, and of course I note that the maternal grandmother opposes the order.

43. It is clear from the evidentiary materials that RRS has developed strong and loving bonds with the proposed adoptive parents entirely consistent with her spending the vast majority of her life in their care.

44. Ms Shepherd observed during May 2018 that the relations between the proposed adoptive parents and RRS were both natural and loving.

45. I have carefully considered the evidence of the proposed adoptive parents and in my view I consider they have ably demonstrated their capacity to meet RRS’s needs. This is also corroborated by the Referee affidavits. The proposed adoptive parents are maintaining a life story for RRS along with photographs of her birth family and they have actively facilitated her contact with her maternal half sisters and extended maternal family. They acknowledge the benefits to RRS to further this contact and encourage her to describe the maternal grandmother as “Bubba” which is a traditional Croatian term for grandmother.

46. Clearly in cases such as this the Court must choose between a number of options. The status quo being the most obvious. Another possibility is an order for parental responsibility in favour of the proposed adoptive parents, or as is suggested, deferral of the application until RRS is 12 years of age when she can give her consent.

47. She is clearly at an age where she is unable to express her own views. In considering the various options and/or alternatives and weighing their comparative benefits and detriments obvious care must be taken. Here there is simply no prospect in any realistic sense in my view of restoration of RRS to either of her birth parents. However nor is it sought.

48. However it must be acknowledged that RRS would not be placed at risk of physical harm if an order for adoption is not made. The question is whether her psychological well being would be adversely impacted if an adoption order was not made. In my view I think there is a real risk of that occurring. She has, and enjoys happily from her point of view, a stable relationship with the proposed adoptive parents. They are clearly attuned to the current and perhaps future difficulties that may be encountered with contact visits from time to time. Their love and their courage in these circumstances in my view is obvious.

49. 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.

50. 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 in conformity with the practical realities of the situation provides enhanced stability and certainty for all concerned, and that by and large such orders are to be regarded being in the best interests of the child or children concerned. The facts of any particular case must however be carefully evaluated.

51. In my view here an order for adoption in the circumstances of this particular case will enhance RRS’s sense of security and permanence with people who are eminently suitable as loving and caring parents, and is clearly the preferable course and in her best interests. Such an order will not prevent, or at least should not prevent the love and emotional connection with her maternal birth family or the manner in which she identifies with them. The proposed adoptive parents have been pro active in that regard and I see no reason to reject their intentions which to a large extent are enshrined in the proposed adoption plans. In my view there is no practical advantage in maintaining the status quo. Worse in my view it perpetuates uncertainty for all concerned which in the circumstances is entirely unnecessary and not in my view in RRS’s best interests.

52. Deferring the decision making process until she turns 12 in my view would be contrary to her best interests. It would perpetuate speculation, uncertainty, and in my opinion instability, which given the nature of the bond that currently exists between her and the proposed adoptive parents would place relationships under unnecessary stress and uncertainty for no gain.

53. Again in my view notwithstanding the birth parents have not consented to the proposed orders consent should be dispensed with under Section 67(1)(d). Although not a course to be taken lightly. I am satisfied that RRS has a stable and loving relationship with the proposed adoptive parents. In my view her best interests are in the making of the Adoption order and I therefore consider it is entirely appropriate to dispense with the consent of either birth parent.

54. I should say in passing that there is adequate evidence before the Court that the person identified as the Birth Father is RRS’s birth father and I would propose to make a declaration to that effect.

55. I am also satisfied that RRS’s cultural heritage will be maintained at least in practical terms by reason of the particular Maternal Adoption Plan.

56. I note that I have carefully considered the proposed Adoption Plans and I regard them as proper and appropriate in the circumstances.

57. The Secretary seeks a name change to given names, RRS with a surname M. This proposal involves the insertion of the mother’s first name, R as a middle name, rather than preserving her original surname as a middle name. In my view the change of name will have the effect of recognising RRS’s place in the adoptive family and reinforcing everyone’s sense of permanency and belonging. I am satisfied that the proposed name change is appropriate in the circumstances.

58. In addition RRS was clearly present in the state of New South Wales when the Summons was filed as were the proposed adoptive parents. It is clear from the materials filed that I am additionally satisfied that the proposed adoptive parents are of good repute and are fit and proper persons to fulfil their responsibilities as parents. RRS’s emotional, physical, educational and health needs in my view are well met in their care.

59. The proposed adoptive parents have also been living together for a continuous period of not less than two years immediately prior to the application.

60. In my view it is appropriate that the Orders proposed in the Summons should be made and I propose to do so.

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Decision last updated: 15 May 2019