Secretary, NSW Department of Communities and Justice v Gabrielle; Re Olivia and Ava

[2020] NSWSC 281

Supreme Court

New South Wales

Medium Neutral Citation:

Secretary, NSW Department of Communities and Justice v Gabrielle; Re Olivia and Ava [2020] NSWSC 281

Hearing dates:

16 March 2020

Date of orders:

16 March 2020

Decision date:

23 March 2020

Jurisdiction:

Equity - Adoptions List

Before:

Kunc J

Decision:

Adoption and dispense consent orders made; children’s names changed; maternal adoption plan registered

Catchwords:

FAMILY LAW – Children – Adoption – Whether adoption or parental responsibility orders in best interests of children

Legislation Cited:

Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1998
Family Law Act 1975 (Cth)
Succession Act 2006 (NSW)

Cases Cited:

Adoption Director-General, Department of Family & Community Services; Re TVK [2012] NSWSC 1629
Adoption of JLK and CRK [2017] NSWSC 7
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of PRC [2019] NSWSC 855
Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762
The Director General Department of Human Services by her delegate, the Principal Officer, Adoptions, Barnardos Australia [2011] NSWSC 1438

Category:

Principal judgment

Parties:

Secretary, NSW Department of Communities and Justice (Plaintiff)

  Gabrielle (Defendant)

Representation:

Counsel:

 

C Spain (Plaintiff)
K Shea (Defendant)

 

Solicitors:

  Crown Solicitor’s Office NSW (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2019/230636

Publication restriction:

No

Judgment

Summary

1. At the conclusion of a contested hearing on 16 March 2020, the Court made orders approving the adoption of Olivia and Ava by Charlotte and William and dispensing with the consent of Olivia and Ava's birth parents, Gabrielle and Noah. These are the reasons for those orders.

2. Other than counsel and the departmental witness, all of the names in this judgment are pseudonyms. No disrespect is intended by the use of given names.

3. Ms C Spain of Counsel appeared for the plaintiff. Ms K Shea of Counsel appeared for the defendant, Olivia and Ava's birth mother Gabrielle. Their birth father, Noah, took no part in the proceedings.

4. At the start of the hearing, Gabrielle abandoned her claim that the children should be restored to her. In a commendable example of considered advocacy, counsel for the parties accepted that all the formal requirements for the making of adoption and dispense consent orders were satisfied, such that there was only one question in issue: which of adoption or parental responsibility orders in favour of Charlotte and William were in the best interests of Olivia and Ava?

5. Without in any way intending to limit the circumstances in which the Court might make a parental responsibility order in lieu of an adoption order, the Court has concluded that generally a parental responsibility order should only be made to provide an interim measure where:

1. there is a realistic prospect of the child being restored to a birth parent within a reasonable time; or

2. but for some circumstance that warrants a delay in the making of the adoption order, an adoption order would otherwise have been made.

6. This was not a case of either kind. Despite Ms Shea persuasively putting everything that could properly be said in support of Gabrielle's submission that a parental responsibility order should be made, the Court was satisfied at the end of the hearing that there was no basis on which it would have been appropriate to make such order.

7. Olivia and Ava are well settled and thriving in the care of Charlotte and William. They are publicly and socially members of their family and regard them as their parents. Adoption by Charlotte and William was clearly preferable in Olivia and Ava's best interests over any other alternative to give permanent legal effect to what is already their social and psychological reality: s 90(3) of the Adoption Act 2000 (NSW) (the "Act").

Olivia and Ava

8. Olivia and Ava were 9 and 8 years old respectively at the time of the hearing. They are full siblings.

9. Olivia and Ava were assumed into the care of the then Minister for Family and Community Services in February 2015 when they were aged 4 and 3 years old respectively. Final orders placing them in the parental responsibility of the plaintiff were granted in August 2015.

10. Olivia and Ava's assumption into care and consequent Children's Court proceedings arose from the fact that between September 2010 and February 2015, the Department of Family and Community Services (as it then was) received five Risk of Significant Harm Reports and twelve further reports (that did not meet this threshold) in relation to the children. The concerns raised in the reports included domestic violence, failure to maintain a hygienic and appropriate domestic environment, failure to provide appropriate parental supervision and support, and risk of physical and sexual harm.

11. The plaintiff's records show that Gabrielle had her own significant child protection history, which offers some explanation for Gabrielle's apparent inability at the time to provide appropriate care for the children. To her credit, Gabrielle's evidence was that she accepted that at the time Olivia and Ava were assumed into care, she was not able to care for them.

12. Olivia and Ava have lived continuously with Charlotte and William since April 2017. By the time they came into their care, the children had already been through six foster placements.

13. Olivia and Ava are not of an age to consent formally to adoption, however both are aware that an adoption application had been made to the Court. The Court accepts the plaintiff's evidence that adoption has been difficult to raise with the children because any discussion about change, or that highlights their current status, can trigger anxiety for both and, in some cases, causes a physical reaction (such as unsettled behaviour, regressive behaviour or incontinence).

14. Notwithstanding these challenges, Olivia has indicated she wants to be adopted by Charlotte and William. Ava is unable to verbalise her views about adoption, however there is evidence, which the Court accepts, that she has expressed views consistent with a desire to be adopted by Charlotte and William. As is required by s 8(1)(d) of the Act, I took into account the children's views, giving them "due weight in accordance with the developmental capacity of the children and the circumstances". Because of their age, I have given their views minimal weight in exercising the Court's discretion to make an adoption order.

Noah

15. The children's birth father, Noah, did not consent to the adoption. He did not file an appearance and has otherwise not contested these proceedings.

16. Noah has had limited involvement in the children's lives to date and minimal contact, owing in large part to his significant criminal history, including convictions for stealing, driving offences, assault, contravention of Apprehended Domestic Violence Orders ("ADVOs") and indecent assaults of young persons. He is currently on the Child Protection Register until September 2029.

17. The plaintiff holds ongoing concerns about the risk of sexual harm to the children from Noah, given his previous criminal convictions. In 2015, the Joint Investigation Response Team investigated allegations made by Ava of sexual harm by Noah, however no criminal action was taken as there was insufficient evidence to charge him. In November 2015 an ADVO was made against Noah, preventing him from having contact with the children for 2 years.

Gabrielle and her decision in relation to these proceedings

18. Until the commencement of these proceedings - as to which see further in paragraph 21 below - Gabrielle has long expressed her desire to have Olivia and Ava returned to her care and for the children to live with her and their two maternal half-siblings, Jack (aged 2 years) and Amelia (8 months) as one family unit. Jack and Amelia currently both live with Gabrielle.

19. In June 2018, Gabrielle filed a s 90 application pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the "Care Act") at Campbelltown Children's Court, seeking restoration of the children to her care. In September 2018, the application was dismissed by that court. This Court has not been provided with any reasons for that decision.

20. Whatever those reasons may have been, this Court accepts that Gabrielle has made remarkable progress in turning her life around, including through her engagement with the plaintiff's "Brighter Futures" program since around October 2017, and attendance at counselling and courses between November 2014 to around April or May 2019. Her success may be measured by the fact that Jack and Amelia remain in her care.

21. Another sign of Gabrielle's progress was what the Court readily accepts was the very difficult but mature decision she made at the outset of the hearing to abandon her application for restoration of Olivia and Ava to her care. Ms Shea informed the Court that her client instructed her "that she would desperately like both children to be returned to her care, to live with her and the children's siblings, [but] she recognises that they are settled and does not believe the disruption would be in their best interests" (T1:32-34). It is no criticism of Gabrielle that she instructed her counsel to contend instead that the Court should make a parental responsibility order rather than an adoption order.

22. As I assured her I would do, I record in these reasons what I said to Gabrielle when I was informed of her changed instructions (T3:40-48):

HIS HONOUR: I can only offer on behalf of the Court every encouragement that you continue to do what you've been doing because it reflects extremely well on you, as does the very difficult decision that I appreciate you have made in deciding not to contest the question in terms of restoration. I understand from everything that I have read how hard that is and, as I say, that shows wisdom and maturity and understanding on your part, which reflects only well on you. I appreciate that it will be difficult for you to sit through the rest of the proceedings, but I hope that offers you some comfort that the Court is very well aware of what you've been doing and you are to be commended for it.

Charlotte and William

23. Charlotte and William are, respectively, a registered nurse/midwife and an occupational therapy assistant. They are both in their 40s and were married in 2013, having been in a relationship since 2010. They are in regular employment, good health and jointly own a home which is subject to a mortgage that they service as part of their ordinary outgoings. It is sufficient to record that the Court is satisfied that, in a material sense, they are well able to provide for Olivia and Ava's needs.

24. All of the evidence points to the conclusion that Olivia and Ava have formed a close and loving relationship with Charlotte and William. Emotionally, socially and practically they are a family unit. Charlotte and William have already demonstrated their practical willingness and capacity to deal with the children's challenging behaviour from time to time. It is clear that they love them unconditionally, are proud of them, and can and will do everything necessary to ensure they develop to the best of their potential as and when they are able.

The real question in issue

25. The only real question in issue was whether an adoption order was preferable to making a parental responsibility order in favour of Charlotte and William. The parties agreed that, without suggesting any relevant onus had shifted, it was appropriate for Gabrielle's submissions for a parental responsibility order to be heard first.

Gabrielle's submissions

26. In light of Gabrielle's instructions not to proceed with her application for restoration of the children, Ms Shea accepted that, if the Court was not to make an adoption order, the only alternative options to adoption available to the Court under s 92 of the Act were the maintenance of the status quo (continuing parental responsibility to the Minister), or an order for parental responsibility in favour of Charlotte and William. She submitted it should be the latter because there was no real or practical difference between the theoretical outcomes or benefits of an adoption order vis-à-vis an order for parental responsibility, such that it could not be demonstrated by the plaintiff that it was in the best interests of the children to be adopted. In those circumstances the Court could not form the requisite state of satisfaction (which was not as stringent as beyond reasonable doubt) that adoption was obviously, plainly or manifestly preferable, in the best interests of the children: see Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 at [25] per Brereton J (as his Honour then was).

27. Ms Shea's submissions in favour of a parental responsibility order were directed to the importance of maintaining the legal connection of the children to their birth family. Five matters were advanced to establish the benefits of a parental responsibility order over an adoption order in the present case so that the Court could not be satisfied that an adoption order was preferable to any other legally available outcome.

28. First, Olivia and Ava had been in the care of Charlotte and William and lived continuously with them since April 2017. Olivia and Ava already consider themselves, Charlotte and William as a family, so that in an emotional and psychological sense their relationship would not be any different if an adoption order were not made.

29. Second, if an order were made for parental responsibility to be allocated to Charlotte and William, they would have the full legal authority to make decisions for the children as if they were the parents. In the sense that Charlotte and William would be able to made decisions for the children, an order for parental responsibility would have the same effect as an adoption order. A parental responsibility order would similarly remove whatever stigma was felt to attach to being a State ward.

30. Third, Charlotte and William had expressed and demonstrated their long term commitment to the children, considering Olivia and Ava as their own. In light of this, an order for parental responsibility would guarantee the same permanency, stability, security and predictability to the children as if an adoption order were made. The Court could be confident that Charlotte and William would continue to provide good quality care to the children, regardless of the nature of the legal relationship between them. If an order for parental responsibility to be allocated to Charlotte and William were made, they would also have the authority to change the children's surname to the name which they had agreed they would take upon the making of an adoption order. To remove any doubt over this last point, Gabrielle consented to the name change.

31. Fourth, in the event adoption orders were made, there was a potential disadvantage to the children in the permanent severing of their legal relationships, first with their mother, and also with their half-siblings Jack and Amelia. This was not a case where the birth mother had no connection to the children. All parties accepted that the contact visits were positive occasions and that it was important to maintain the relationship between the children, Gabrielle and their half-siblings. A parental responsibility order would ensure that Olivia and Ava maintained "parity" with their siblings in the long term, given sibling relationships will often endure beyond parent-child relationships.

32. There was also a risk in the longer term when the children gained a deeper understanding of what adoption means, that they could feel abandoned by their birth mother, particularly when they knew that their two half-siblings remained in her care. A factor which operates in favour of parental responsibility was the potential impact of adoption on already vulnerable relationships: see Adoption of JLK and CRK [2017] NSWSC 7 at [90] per Brereton J (as his Honour then was).

33. I should note immediately two matters which negate this last submission. First, there was no evidence of a presently vulnerable relationship between Gabrielle and the children. Second, I accept the evidence of Ms Leigh-Anne Norris, the expert who prepared the report under s 91 of the Act when cross-examined by Ms Shea (T10:6-25):

“SHEA Q. Would you agree with me that firstly a potential disadvantage to the children is the permanent severing of their legal relationship with their mother, firstly, and with their siblings?

NORRIS A. In some cases that would be true.

Q. Because there is a risk, isn't there, that that legal severing of the relationship would weaken the relationship that they have with their birth family?

A. I don't believe that's the case for Olivia and Ava.

…

Q. …The legal severing of the relationship between the children and their birth family could result in a weakening of their relationship with the birth family, couldn't it?

A. I believe it might strengthen the relationship actually. It might mean that contact visits are more relaxed, and they feel safer and secure.”

34. Fifth, in response to a concern about the maintenance of contact between the parties in the event an order for parental responsibility were made, Ms Shea submitted that the Court has cross-vested jurisdiction under the Family Law Act 1975 (Cth) to make contact orders: Adoption Director-General, Department of Family & Community Services; Re TVK [2012] NSWSC 1629; Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762. Such an order would give everyone involved the same degree of certainty in terms of future contact arrangements as would an adoption plan registered under s 50(4) of the Act.

35. Ms Shea accepted that there clearly remained a legal difference between the alternatives of an adoption order and parental responsibility order, particularly that the latter would expire upon the children turning 18. In looking to the requirement in s 8(1)(a) of the Act ("the best interests of the child, both in childhood and in later life, must be the paramount consideration"), Ms Shea acknowledged that the parental responsibility order would result in the children being raised by people who were not in law their parents and whose legal responsibility ceased when they turned 18. However, she submitted that, in general, legal responsibility ceases for natural parents when their children turn 18. Ms Shea emphasised again that in an emotional and psychological sense, the Court could be confident there would be no difference in later life in the quality of the relationship that Olivia and Ava would enjoy with Charlotte and William (T19:15-22):

“SHEA: In a legal sense perhaps, but in an emotional and psychological sense one would hope, given how long they will have been in the care of Charlotte and William by that time, given the very good quality care that they've been provided to date and the nature of the relationship and strong bond that they've developed with their proposed adoptive parents to date, in my submission, again coming back to in a real and practical sense and in terms of emotional and psychological connection, your Honour would be confident that that wouldn't make any difference in later life.”

36. One final issue that arose in the course of Ms Shea's submissions was whether making a parental responsibility order would leave open the possibility that, at any time, an application could be made by Gabrielle under s 90 of the Care Act. During her cross-examination, Ms Norris had relied on this possibility in support of her view why an adoption order was clearly preferable. There is no doubt that if this Court refuses to make an adoption order, it can make a parental responsibility order under s 92 of the Act. However, if that is done, the Act makes no provision as to what is to happen to the care order that was made in the Children's Court. It would be theoretically possible for the Children's Court to have made a care order in favour of the Minister and this Court to make an order in favour of someone else, such as the proposed adoptive parents. This potentially anomalous situation was considered, but did not have to be resolved, by Robb J in Adoption of PRC [2019] NSWSC 855 at [48] and following. Because the Court has determined to make an adoption order in this case, like Robb J I do not have to resolve that potential anomaly.

The plaintiff's submissions

37. The plaintiff's essential submission was that, in accordance with s 8(1)(a) and s 90(1)(a) of the Act, the application of the paramount consideration of the best interests of Olivia and Ava, both in childhood and in later life, necessarily meant that what was already their social reality should become a legal reality. Ms Spain contended that the submissions put forward by Ms Shea were essentially a "half and half order". An adoption order was in the best interests of the children and clearly the most preferable option.

38. Ms Spain relied on six points.

39. First, Olivia and Ava were children who had had six placements with foster parents and had suffered significant trauma in their lives for which they had received counselling, and continue to do so. Of all the people in their life, Charlotte and William had proved best able and willing to meet the children's physical, emotional and educational needs.

40. Second, Olivia and Ava now had a secure relationship with Charlotte and William and strongly identify as members of their family (including extended family), with Charlotte and William as their parents. Accordingly, an order for adoption would ensure their legal status would then conform to their social and psychological reality.

41. Third, the children's development would be improved through adoption. Olivia and Ava had thrived, and continue to do so, under the care of Charlotte and William. However, any certainty about their future would be erased in the event only a parental responsibility order was made. In particular, the children would be left in "limbo" when they turned 18. If Gabrielle remained legally their parent, this would not reflect the reality of the children's care and upbringing by Charlotte and William for more than a decade.

42. Fourth, Olivia and Ava were acutely aware of what is going on, in terms of the proposal of them for to be adopted. The uncontradicted evidence was that Olivia, in particular, is aware that she is a foster child and doesn't want to be different from her friends. Ms Norris gave evidence in cross-examination that supports the conclusion that the children understand adoption means they will stay with Charlotte and William forever, and the Court could not be satisfied of what it would do to the children psychologically and from a behavioural point of view if only an order granting parental responsibility were made. An order for parental responsibility would not provide the level of certainty that is critical in the minds of Olivia and Ava.

43. Fifth, an order for adoption may result in benefits to the children's relationship with Gabrielle. As identified by Ms Norris during her cross-examination, it is possible the children might be more relaxed around contact visits with Gabrielle because they may feel more settled knowing there is no prospect that Gabrielle may come back at some stage and seek to have them restored to her care.

44. Sixth, with no disrespect intended to Gabrielle, this was a matter where there was no realistic prospect of restoration to the birth mother. To her credit, Gabrielle had recognised there was no realistic prospect of restoration of the children to her care at this point in time, and with the passage of time that possibility of restoration would become even more unlikely. Accordingly, one of the benefits of an adoption order in such circumstances is that Olivia and Ava would be raised within a legally recognised family unit.

45. In addressing her submission that there was no realistic prospect of restoring a child to a birth parent, Ms Spain referred the Court to these observations of Brereton J (as his Honour then was) in Adoption of NG (No 2) [2014] NSWSC 680:

“75.   While an adoption order would not effect any overt improvement in respect of the arrangements for the child's residence, education, and care, that does not mean that it would have no beneficial impact.

76.   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.

77.   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.

78.   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.

79.   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.

80.   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.”

46. In addressing the alternative order for parental responsibility, Ms Spain submitted that not only could there be difficulties in understanding the implications of such an order by the community, but, and perhaps more critically, that lack of comprehension could extend to the children themselves (T32:41-49):

“SPAIN: …If it is difficult for a hospital to understand that, it will be difficult, in my submission, for a seven and nine year old to understand that. When they understand what being a foster child is and they understand what adoption is, but this hybrid or half and half order, given that we might grapple with understanding what it is, they would do even more so than us and it does not give them that certainty and that sense of stability that they crave and that they need for their growth in the future, and particularly for their psychological wellbeing in the future. It doesn't give them that sense of identity that an adoption would.”

47. Ms Spain also submitted that where a parental responsibility order had been made in favour of the proposed adoptive parents, this was usually as a form of "interim order" pending some act or event taking place. This was certainly the case in what the parties agreed were they only two authorities which they had been able to find where a parental responsibility order had been made in favour of prospective adoptive parents.

48. In The Director General Department of Human Services by her delegate, the Principal Officer, Adoptions, Barnardos Australia [2011] NSWSC 1438 there was an issue with physical discipline of one of the children by the proposed adoptive parents. Windeyer AJ made an order for parental responsibility in favour of the proposed adoptive parents, standing the matter over for a year. An adoption order in favour of the proposed adoptive parents was ultimately made at the end of that time.

49. Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 involved a baby who was born to a Sudanese mother, but placed at a very young age with a white Anglo-Saxon family. The Court was concerned with cross-cultural issues and preservation of the child's identity, particularly knowledge of her ethnicity and her heritage. This appears to have been the main reason why an order for parental responsibility in favour of the proposed adoptive parents was made in 2007, so that flexibility surrounding the child's identity could be maintained. I was informed by Ms Spain that an order for adoption of the child was recently made on 9 March 2020.

50. Ms Spain contended that those cases bore no similarity to the case at bar. There was no need for an "intermediate order". No extraneous factor was standing between Charlotte and William and their adoption of the children.

51. Ms Shea accepted that this case was unlike those cited for the plaintiff. However, she submitted that just because a parental responsibility order had not been made before in circumstances such as the present did not mean that it could not be done.

Resolution of the real question in issue

52. The Court accepts the submissions of the plaintiff. That acceptance may be summarised in three conclusions.

53. First, Part 11 of the Act sets out the effect of adoption orders. Among the most important effects is that "the adopted child is regarded in law as the child of the … adoptive parents and the … adoptive parents are regarded in law as the parents of the adopted child" (s 95(2)(c) of the Act). Section 95(2)(d) provides for the corollary, being the cessation of the legal relationship between the birth parents and the adopted child.

54. It cannot be denied that the legal incidents of parenthood and a parental responsibility order are to a large extent identical while the latter is in force. However, in focussing on how similar they were, the argument advanced for Gabrielle could only succeed if the status of parent and child was reduced to a mere legal technicality. It is far more than that.

55. Legal status or relationships, which confer legally recognised rights and responsibilities, are no less real because they are invisible. Nor is their importance diminished because their existence and application in day to day life may be subtle or subliminal. They are always present, although perhaps not called to conscious attention until they are threatened with breach or relied upon to justify some action. Ms Shea's argument would reduce the legal aspect of the status of parent and child to a technicality or incidental detail. But if it is only a technicality, one might ask rhetorically why it is so important to Gabrielle for it to be maintained?

56. The fallacy in the argument is demonstrated when this contradiction is exposed: on the one hand it is argued for Gabrielle that the legal status of parent and child is of so little importance in the best interests of the children that it need not be conferred on Charlotte and William, but on the other hand it is so important that it must not be taken from Gabrielle (and Noah). The Court has no hesitation in concluding that the legal status of parent and child is of vital importance as part of the parent child relationship throughout the lives of each. Only an adoption order will confer it on Charlotte and William, who all were agreed should raise Olivia and Ava children as much loved members of their family.

57. Second, I have just referred to "throughout the lives of each" advisedly. It is important to recall that s 8(1)(a) of the Act refers to the best interests of the child "both in childhood and in later life" (my emphasis). A parental responsibility order ceases when a child turns 18 and any legal relationship is at an end. However, the legal relationship of parent and child does have real importance in later life. It is not a sufficient answer to say that the emotional or psychological connection will endure past the expiration of the legal relationship created by a parental responsibility order.

58. The note to s 95 of the Act itself refers to important consequences under the Succession Act 2006 (NSW) in relation to intestate succession (see s 109 of the latter act). The same applies to eligibility to apply for a family provision order (see, for example, s 57(2) of the latter act). Another example is the rights and responsibilities which children may be called upon to exercise in the interest of parents who have become mentally or physically infirm. In the ordinary course of nature, these issues generally only arise in the later life of children. I am respectfully unable to see how it could possibly be in the children's best interests to make a parental responsibility order that will leave them, in later life, in the legal and emotional Alsatia of having a legal relationship with someone who has not nurtured and raised them as a member of their family but no legal relationship with the people who have done exactly that.

59. Third, I accept, on the basis of the authorities referred to in paragraphs 48 and 49 above that parental responsibility orders will usually only be made in relation to prospective adoptive parents where, there being no realistic prospect of restoration to a birth parent, some interim regime in expectation of adoption is required. Without in any way intending to limit or gloss the circumstances in which the Court might make a parental responsibility order in lieu of an adoption order, generally a parental responsibility order should only be made to provide an interim measure where:

1. there is a realistic prospect of the child being restored to a birth parent within a reasonable time; or

2. but for some circumstance that warrants a delay in the making of the adoption order, an adoption order would otherwise have been made.

Consequential matters

60. Having reached the conclusion that it is obviously, plainly or manifestly preferable in Olivia and Ava's best interests to any other outcome that an adoption order should be made in favour of Charlotte and William, there are three final matters that should be briefly noted.

61. First, the plaintiff sought an order dispensing with the consent of each of the birth parents pursuant to s 67(1)(d) of the Act. There was no dispute that the prerequisites for making such an order had been satisfied, subject only to the question of the Court being satisfied that it was in Olivia and Ava's best interests to make the order (see s 67(2) of the Act). Because that order was necessary to enable the adoption orders to be made, the Court was satisfied that it was in the best interests of Olivia and Ava for the consent dispense orders to be made.

62. Second, I record that the Court was satisfied that the maternal and paternal adoption plans proposed in relation to Olivia and Ava are also in their best interests and are proper in the circumstances for the purposes of s 90(2) of the Act. The maternal adoption plan (which the parties agreed should be registered if an adoption order were made) provides for ongoing contact between Olivia and Ava, Gabrielle and their maternal half-siblings, Jack and Amelia. The Court accepts that Olivia and Ava have particularly enjoyed the contact with their maternal half-siblings and that they frequently demonstrate care and affection for Jack and Amelia.

63. Finally, the orders which the Court made provided for the children's surname to be changed to a hyphenated compound of the surnames of Charlotte and William (s 101(1)(b) of the Act). As I have already noted (see paragraph 30 above), Gabrielle consented to the name change (although her consent was not legally required).

64. The Court accepts that the change in surname is very important to the children. Changing Olivia and Ava's name in the way proposed is in their best interests because it confirms to the children, and manifests to all the world, that their social reality as Charlotte and William's daughters is also now their legal reality.

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Decision last updated: 23 March 2020