The Adoption of MR

[2022] NSWSC 352

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of MR [2022] NSWSC 352

Hearing dates:

16-18, 24 March 2022

Date of orders:

30 March 2022

Decision date:

30 March 2022

Jurisdiction:

Equity - Adoptions List

Before:

Sackar J

Decision:

Adoption Orders Made

Catchwords:

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether the consent of the birth mother ought to be dispensed with — Change of name — Registration of adoption plans

Legislation Cited:

Adoption Act 2000 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

Status of Children Act 1996 (NSW)

Cases Cited:

Adoption of BS (No 3) [2013] NSWSC 2033

Adoption of Hogarth (No 2) [2019] NSWSC 9

Adoption of JLK and CRK [2017] NSWSC 7

Adoption of NG (No 2) [2014] NSWSC 680

Adoption of Taylor-Clay [2019] NSWSC 27

Director-General, Department of Community Services (NSW) v D and Others (2007) 37 Fam LR 595; [2007] NSWSC 762

ReAdoption of RCC and RZA [2015] NSWSC 813

Re B (A Minor) [2002] 1 WLR 258; [2001] UKHL 70

Re D, Application of A [2006] NSWSC 1056

Re Peter [2009] NSWSC 697

Re the Adoption of CCS and FLS [2019] NSWSC 71

Re W (A Child) (Adoption: Grandparents' Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793

Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnados Australia; Re JLR [2015] NSWSC 926

Rice & Asplund, In the marriage of (1978) 6 Fam LR 570

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (plaintiff)
Birth mother

Representation:

Counsel:
Ms R Dart (plaintiff)
Mr B Kelly (birth mother)

Solicitors:
Crown Solicitors of NSW (plaintiff)
Mr M Dampney (birth mother)

File Number(s):

2020/260619

Publication restriction:

Nothing which identifies the parties in the matter.

Judgment

1. The Secretary, Department of Communities and Justice has by way of Summons filed in September 2020, and Further Amended Summons dated March 2022, made an application for the adoption of MR in favour of her authorised carers, the proposed adoptive parents, and other consequential orders.

2. The orders sought are opposed by the birth mother who was joined to the proceedings in November 2020. The plaintiff seeks for the consent of the birth mother to be dispensed with pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW).

Background

3. The birth mother was born in July 1999 and is currently 22 years old.

4. MR was born in April 2015. She is 6 years old.

5. There was no father recorded on the birth certificate at the time of MR’s birth. In late 2021, MR’s biological father was identified, as discussed further below.

6. MR was assumed into care of the Secretary at 4 months old in August 2015. She presented at hospital with non-accidental injuries including multiple bruises, old and healed fractures to the rib and injuries to her right arm.

7. In August 2015, the birth mother was charged with assault occasioning actual bodily harm in relation to the injuries sustained by MR. The birth mother was convicted in December 2015 and sentenced to 18 months of probation pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 (NSW).

8. MR was placed in the care of the proposed adoptive parents on the day she was removed from the birth mother’s care. The proposed adoptive parents have a daughter, JR, born August 2004 who is 17 years old and resides with them.

9. In August 2015, the Secretary commenced care proceedings in the Port Macquarie Children’s Court.

10. An interim order was made in August 2015 placing MR in the parental responsibility of the Minister.

11. In September 2015, the Children’s Court at Kempsey found that MR was a child in need of care and protection pursuant to ss 71(1)(c) and 71(1)(d) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”).

12. In a Care Plan and Cultural Support Plan which DCJ filed in October 2015, DCJ assessed that there was no realistic possibility of restoration of MR to the birth mother’s care and proposed that parental responsibility for MR be allocated to the Minister until she attains 18 years of age.

13. MR was identified as being Aboriginal during Children’s Court proceedings, so a cultural plan was filed. However, following enquiries including a review by a genealogist, there was no evidence to support that MR had Aboriginal heritage.

14. In early December 2015, DCJ filed an Addendum to the Care Plan for MR outlining the minimum objectives to be met by the maternal grandmother in order for the Secretary to support an application filed pursuant to section 90 of the Care Act in future.

15. In December 2015, the Children’s Court at Kempsey made a final order allocating parental responsibility for MR to the Minister until she attains the age of 18 years.

16. Then, in mid-December 2016, the maternal grandmother filed an application pursuant to s 90 of the Care Act seeking to rescind the final order made with respect to MR.

17. In March 2017, the maternal grandmother withdrew her s 90 application which appeared to be on the basis that the application was to be refused by the Presiding Magistrate if she continued to use drugs.

18. In December 2017, the maternal grandmother enquired with DCJ as to whether they would support her if she filed a further s 90 application given that her urinalysis results were negative.

19. In April 2018, a Uniting Caseworker filed concerns relating to the history of violence and verbal abuse by the maternal grandmother’s partner. A Kinship Placement Assessment was undertaken by Leonie Martin, a Consultant Social Worker. Her March 2018 report recommended against moving MR due to, amongst other things, the maternal grandmother and her partner’s history of providing safe and adequate care for their own children as well as MR’s attachment to her carers, the proposed adoptive parents. That report raised a number of concerns about whether the maternal grandmother’s partner’s attendance at contact was in MR’s best interests.

20. In November 2019, the birth mother gave birth to JM, MR’s maternal biological sibling (who has a different birth father).

21. In May 2020, JM was presented to Kempsey Hospital by his paternal grandmother. It was reported that the birth mother had hit JM’s father in the back of his head whilst he was holding JM. The birth mother also presented to hospital that day with injuries.

22. JM was transferred to Port Macquarie Base Hospital and then Sydney Children’s Hospital where he was found to have fractured ribs. He was originally believed to have suffered a bilateral subdural haematoma, this was found not to be the case by Sydney Children’s Hospital.

23. JM was assumed into care in late May 2020. Care proceedings were commenced and interim orders were made in early June 2020 placing him in the parental responsibility of the Minister.

24. JM was placed with the proposed adoptive parents on the day that interim orders were made in early June 2020.

25. In mid-June 2020, an AVO was made for the protection of JM’s birth father against the birth mother which expires on 14 June 2022.

26. JM was found to be a child in need of care and protection on 8 July 2020.

27. On 31 July 2020, an AVO was made for the protection of JM against his birth mother. The AVO includes a provision that the birth mother cannot approach JM other than in a supervised setting with JM’s approved carers.

28. On 4 August 2020 an investigation by the Joint Child Protection Response Program concluded that the birth mother was found to be the person who caused harm to JM due to her own admission to police that she “squeezed JM so hard she could feel his ribs in her hands” coupled with medical opinions that this would have been sufficient to cause his injuries.

29. The birth mother is currently facing criminal charges in relation to those injuries in Kempsey Local Court. These are not yet finalised.

30. In December 2020, the Children’s Court at Kempsey made final orders restoring JM to the care of JM’s birth father who now has parental responsibility for him to the exclusion of the birth mother until he attains the age of 18 years.

31. JM was restored to his birth father’s care in March 2021, having lived with the proposed adoptive parents with MR up until that time. MR has continued to have regular contact visits with JM. These often include weekly overnight visits in the proposed adoptive parents’ home.

32. MR’s birth father was identified by the birth mother at the time of birth as being the biological father of MR. He was not named on the birth certificate and between August 2015 and January 2020, denied paternity, declined DNA testing and did not respond to attempts made by DCJ to contact him. There was also the possibility that another man may have been the biological father of MR. Both the birth father and the other possible biological father agreed to undergo DNA testing and did so in August and September 2021 respectively. The results of those tests showed that the birth father was the biological father of MR.

33. The birth father introduced himself to MR in October 2021 via letter and met MR in person in January 2022, following consultation with Ms Diane Edwards, who drafted a Paternal Adoption Plan. The Paternal Adoption Plan developed by Ms Edwards has been agreed and signed by each of the birth father and the proposed adoptive parents.

34. The birth father has two biological children with his current partner – H born 9 November 2016 and O born 2 July 2021. H and O are MR’s paternal biological siblings.

35. The birth father has consented to the proposed adoption of MR by the proposed adoptive parents.

36. The birth father informed DCJ that his maternal grandmother identified as Aboriginal. Neither he nor his mother identified as Aboriginal. DCJ representatives undertook research and were unable to make any conclusive finding as to Aboriginal descent for MR.

37. In December 2020, the birth mother moved to Queensland to live with her sister.

38. In May 2021, the birth mother gave birth to CM who is the maternal biological sibling of MR. The birth mother’s sister has been approved to care for CM and fully supervise the birth mother’s time with him.

39. In December 2021, one of the proposed adoptive parents, was diagnosed with a rare form of liver cancer.

Procedural history

40. This matter has a lengthy procedural history.

41. The proceedings were commenced on the Adoption List on 11 November 2020. I fixed the matter to be heard on two days in June 2021.

42. Two days before the hearing in June, the matter was before me and there were two issues raised. First, there was a question about paternity. Secondly, there was an issue about some criminal proceedings concerning the birth mother. As a result, the June dates were vacated.

43. On 9 July 2021, the matter was fixed for hearing on three days in October 2021. About ten days before the hearing was due to commence, the hearing date was again vacated and relisted for three days in March 2022.

44. On the first day of the hearing, counsel for the birth mother sought to have the proceedings further delayed. Counsel claimed that he was unaware of matters relating to the Paternal Adoption Plan and the cancer diagnosis of the proposed adoptive parent. References to both of those factual matters were included in the submissions of the birth mother, prepared by her solicitor dated 10 March 2022.

45. Section 8(1)(e1) of the Adoption Act states that “undue delay in making a decision relating to the adoption of the child is likely to prejudice the child’s welfare” is a consideration to which the Court should have regard. Accordingly, and given the delays which had already occurred in the matter, I decided that an application for further adjournment should be refused.

Legal principles

46. The Court must not make an adoption order unless it is satisfied of the matters listed in s 90(1) of the Act. By s 90(1)(a), the Court must be satisfied that the best interests of the child will be promoted by the adoption. The Court is required to have regard to the following matters in determining the best interests of the child: s 8(2). These matters are:

8 What principles are to be applied by persons making decisions about the adoption of a child?

…

(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.

47. By s 90(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.”

48. Under s 90(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.”

49. The Court may not make an adoption order unless the making of the order would be clearly preferable in the best interests of the child than any other action could be taken by law in relation to the care of the child: s 90(3) of the Act. The answer to the question is informed by the matters relating to the child’s best interests in s 8(2).

50. In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J explained at [74], and then [83]-[84], that consideration of whether adoption would promote the best interests of the child and whether it is clearly preferable to any other order, involves the identification of the likely effects of adoption, and examining the benefits and detriments of each alternative.

51. The reference to “clearly preferable” does not require satisfaction “beyond reasonable doubt”: Re D, Application of A [2006] NSWSC 1056 at [53] per Palmer J. It requires 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) 37 Fam LR 595; [2007] NSWSC 762 (“Director-General v D”) at [25] per Brereton J (as his Honour then was). This is “something more than a slight preponderance of considerations in favour of adoption over the alternatives”: ReAdoption of RCC and RZA [2015] NSWSC 813 (“Re Adoption of RCC and RZA”) at [14] per Brereton J (as his Honour then was). It will require “a degree of conviction in favour of adoption which is commensurate with the gravity of the decision”: Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnados Australia; Re JLR [2015] NSWSC 926, Bergin CJ in Eq at [99].

52. It is not the role of the Court in these proceedings to review decisions that were previously made by the Children’s Court in respect of parental responsibility; rather, it is to judge which of the competing proposals would best serve the interests of the children: Re Adoption of RCC and RZA at [17] per Brereton J (as his Honour then was).

53. With most alternatives to adoption, there would be no change to the child’s living circumstances. However, the fact that there would be no “radical change” effected by an adoption order does not mean that there would be no beneficial impact: Adoption of BS (No 3) [2013] NSWSC 2033 (“Adoption of BS”) at [55] per Brereton J (as his Honour then was).

54. The Court must have regard to various principles including, pursuant to s 8(1)(a), that “the best interests of the child, both in childhood and in later life, must be the paramount consideration”.

55. In Adoption of JLK and CRK [2017] NSWSC 7 (“Adoption of JLK and CRK”), Brereton J (as his Honour then was), at [12], referred to the paramountcy principle:

The “paramountcy principle” contained in par (a) means that the inquiry is child and future focussed: as the best interests of the children, both in childhood and in later life, must be the paramount consideration, so it is necessary to evaluate the competing proposals (and any viable alternatives) so as to ascertain which will best serve the interests of these children now and in the future, given what has already happened, rather than revisiting the actual or perceived rights and wrongs of the past (save insofar as they may be indicative of the future).

56. Section 26 of the Act provides that an adoption may be made on behalf of one person or jointly on behalf of a couple. Section 27 of the Act provides for adoption by one person and s 28 provides for adoption by a couple.

57. The birth parents’ consent to an adoption order is required pursuant to s 52 of the Act unless, relevantly, consent has been dispensed with or the child has provided sole consent to their own adoption: s 54 of the Act.

58. The Court may make a consent dispense order if it is satisfied of the matters in s 67(1) of the Act. Section 67(1)(d) provides that an order may be made in the case of an adoption by a person who is an authorised carer, if the Court is satisfied the child has established a stable relationship with that carer, and that the adoption by that carer will promote the child’s welfare: s 67(1)(d(i) and (ii) of the Act. The Court must also not make a consent dispense order unless satisfied that to do so is in the best interests of the child: s 67(2).

59. On the making of an adoption order, a child is to have as their name such name as the Court, in the adoption order, approves: s 101(1)(b) of the Act. Before changing the child’s name, 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: s 101(2) of the Act.

60. There are a number of cases in which adoption as against permanent care orders have been discussed as follows.

61. In Director-General v D at [236]-[237], Brereton J as his Honour then was discussed the relevant considerations as follows.

[236] As to the respective merits of E being placed with Mr and Mrs F under a parental responsibility order, or under an adoption order, the major argument in favour of adoption is that it is more beneficial than long-term fostering, because it removes uncertainty and encourages a lifetime commitment between the adoptive parents and the child. On the other hand, it represents a permanent termination of D’s legal parental status, and to that extent a weakening of the bond — a severing of the legal bond — between E and her natural mother.

[237] I am not unmindful that a parental responsibility order is a less permanent solution than adoption, may result in some competition between D and Mr and Mrs F for E’s loyalty and resultant conflict, and carries a greater risk that there will be further litigation — whether instituted by D to seek additional contact or custody or parental responsibility, or by Mr and Mrs F if they form the view that contact is not working satisfactorily. The desirability of an adoption order, to foreclose the possibility of further litigation, has sometimes been emphasised. …

62. In Adoption of BS (No 3) at [77]- [79], Brereton J, as his Honour then was, made the following comments.

[77] There is no advantage in leaving parental responsibility vested in the Minister, generally or for birth parent contact. Where restoration is not a realistic prospect, the preservation of the possibility is as much a disadvantage as an advantage. The Department did little to facilitate contact in the past. The proposed adopting parents have done much more. They are in a much better position to facilitate contact than the Department, and their past track record provides ample grounds for confidence that they will continue to do so.

[78] A parental responsibility order would still leave the child an incomplete member of the household, and not exclude doubt as to the permanence of his placement.

[79] The child is unquestionably doing well in the care of the proposed adoptive parents. They are plainly taking all proper steps for his welfare. No criticism of their care for him has been suggested. The only real issue with adoption is whether it would be adverse to the child's identity needs. In my view, adoption would serve this child's identity needs better than any potential alternative, because it would confirm the child's identification with his psychological family, which is overwhelmingly the greatest feature of his identity, while preserving the opportunity for him to know his birth parents and to understand why he does not live with them. Adoption is also superior to all alternatives in respect of the provision of a sense of security and stability to the child, because it would provide what Ms Hogan described as "felt security", and resolve any outstanding concerns that the child might not be a permanent member of the family. In doing that, it would also provide a sound and secure basis for the child to explore and develop his relationship with his birth parents.

63. In Adoption of JLK and CRK [81], Brereton J (as his Honour then was) stated, citing Rice & Asplund, In the marriage of (1978) 6 Fam LR 570:

However, such an order would not provide the same absolute sense of stability, security and permanence as a member of the adopters’ family forever that would be provided by adoption: such an arrangement would last only until 18 years of age and would not provide a lifetime family for the children. Nor would it give the children equivalent status to the other children of the proposed adoptive parents, as adoption would. And such an order is, at least in theory, amenable to variation, whereas an adoption order is not. While, as Ms Dart rightly submitted, an order allocating parental responsibility to the proposed adoptive parents under Adoption Act, s 92, would not be amenable to an application (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90, which is confined to “care orders” under that Act, a parental responsibility order under s 92 of the Adoption Act, could be re-opened in the event of a significant change of circumstances.

64. The judgment of Hallen J in Re the Adoption of CCS and FLS [2019] NSWSC 71 at [204]–[213] summarises the relevant authorities as follows.

204 In Adoption of Hogarth (No 2) [2019] NSWSC 9, Brereton J wrote, at [18]:

“Consideration of whether adoption is clearly preferable to any other action that could be taken requires identification of the likely effects of adoption, and of the various available alternatives, weighing their comparative benefits and detriments from the perspective of the best interests of the child, and concluding whether that shows adoption to be “clearly preferable”, in the child’s interests, to the alternatives. The alternatives to adoption that require consideration in this case – some in greater depth than others – are (1) restoring [the child] to the care of her birth parents; (2) a parental responsibility order in favour of [the proposed adoptive parent]; (3) maintaining the status quo, with the Minister having parental responsibility and the child in foster care, albeit residing with [the proposed adoptive parent]; and (4) deferring making a decision about adoption. The fundamental issue is whether [the child] should be restored to the care of her birth parents, or should remain in the care of [the proposed adoptive parent], and if the latter whether under the legal construct of adoption, parental responsibility to [the proposed adoptive parent], or parental responsibility to the Minister.”

205 It is often referred to in the literature that a child placed with foster carers has an abiding need for a sense of security and identity and that she, or he, will feel most secure when she, or he, is assured that no one can take her, or him, away from the family of which she, or he, is a legal member. It is recognised that the sooner a child can feel this sense of security, the better for her, or his, development in the future: see Re Peter [2009] NSWSC 697 (“Re Peter”), per Palmer J, at [35].

206 As was written in Re W (A Child) (Adoption: Grandparents' Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793, by McFarlane LJ, with agreement of the other two members of the Court of Appeal (Jackson and Lindblom LJJ), at [64]:

“One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters.”

207 More recently, in Adoption of Taylor-Clarke [sic] [2019] NSWSC 27, Brereton J wrote, at [58]:

“… [A]doption serves the identity needs of such children – in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family – by bringing their legal status into conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own (and – because it is not limited to age 18 – not only during childhood, but for life). Adoption also places the children on an equivalent basis, with equivalent rights, as any biological children of the adoptive parents.”

208 Also, if the carers who have developed a strong bond of family relationship with the child feel that they are under threat of an application to the Children's Court, at any time, for vacation of a care order and the consequent removal of the child from them, then they could be subjected to a level of stress and anxiety that must affect the parental relationship with the child who is in their care: Re Peter, at [36].

209 In stating the above, I make clear that it is not being suggested that there is any general rule that adoption is more likely to be in the best interests of a child than long-term fostering or, indeed, any other form of care. The Act emphasises that the Court must have regard to the particular circumstances of the individual case in order to assess whether an adoption order, or some other form of care, best serves the child's best interests.

210 As was stated in Re B (A Minor) [2002] 1 WLR 258; [2001] UKHL 70 at [16]:

"[T]here is no objectively certain answer on which of two or more possible courses is in the best interests of the child ... There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this course or that course will or may have for the child."

211 Section 92 of the Act provides that if the Court refuses an application for an adoption order, the Court may make such orders in relation to the parental responsibility for the child concerned as it thinks fit. In this case, if that occurs, it will be necessary to consider only the claim that the parental responsibility for CCS and FLS remain with the Minister, thus preserving the status quo.

212 As noted by Brereton J in Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 at [237]:

“I am not unmindful that a parental responsibility order is a less permanent solution than adoption, may result in some competition between [the Defendant] and [the proposed adoptive parents] for [the child’s] loyalty and resultant conflict, and carries a greater risk that there will be further litigation – whether instituted by [the Defendant] to seek additional contact or custody or parental responsibility, or by [the proposed adoptive parents] if they form the view that contact is not working satisfactorily. The desirability of an adoption order, to foreclose the possibility of further litigation, has sometimes been emphasised.”

213 More recently, in Adoption of JLK and CRK, Brereton J also considered the comparative benefits of a parental responsibility order compared with an adoption order, stating at [79]-[81]:

“A parental responsibility order in favour of the proposed adoptive parents would also provide a number of the benefits of adoption. It would alleviate the requirement for the intervention of the Department in significant decisions about the children. As the children would no longer be in the parental responsibility of the Minister, they would in that sense no longer be “wards of the State”, and as the birth parents agree that under a parental responsibility order the children could nonetheless use the surname of the proposed adoptive parents, it would not be obvious to outsiders that they were not living with their family of origin.

A parental responsibility order in favour of the proposed adoptive parents would avoid severing the legal relationship between the children and their birth family, thus maintaining the legal status of the birth parents, albeit without parental responsibility. It would also maintain the legal relationship between the children and their brothers.

However, such an order would not provide the same absolute sense of stability, security and permanence as a member of the adopters’ family forever that would be provided by adoption: such an arrangement would last only until 18 years of age and would not provide a lifetime family for the children. Nor would it give the children equivalent status to the other children of the proposed adoptive parents, as adoption would. And such an order is, at least in theory, amenable to variation, whereas an adoption order is not. While, as Ms Dart rightly submitted, an order allocating parental responsibility to the proposed adoptive parents under Adoption Act, s 92, would not be amenable to an application (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90, which is confined to “care orders” under that Act, a parental responsibility order under s 92 of the Adoption Act, could be re-opened in the event of a significant change of circumstances.”

Submissions

65. The plaintiff made written submissions in three documents. The first were prepared for the matter when it was to proceed in June 2021 and are titled “Outline of Submissions for the Plaintiff” and dated 24 May 2021 (“Plaintiff’s May 2021 Submissions”). Those submissions provided a detailed outline of the factual background of the care history and proceedings in relation to MR.

66. For these proceedings which took place in March 2021, the plaintiff made opening submissions received on 14 March 2022 (dated 14 March 2021 in error) titled “Updated Outline of Submissions for the Plaintiff” which address, amongst other issues, the circumstances which arose between mid-2021 and March 2022, when the proceedings were heard (“Plaintiff’s Updated Submissions”). In particular, the updated submissions address the paternity of MR and the diagnosis of liver cancer received by one of the proposed adoptive parents.

67. The orders sought by the plaintiff remained unchanged between the Plaintiff’s May 2021 Submissions and the Plaintiff’s Updated Submissions, with the exception of orders relating to the birth father. Originally, the plaintiff sought an order that the consent of the child’s birth father be dispensed with and an order that the giving of notice on the child’s birth father be dispensed with. In the interim, the birth father has been identified and he has consented to the adoption. That order was therefore no longer sought by the plaintiffs.

68. The plaintiff seeks an order for the adoption of the child MR in favour of the proposed adoptive parents. The plaintiff seeks an order that the consent of the birth mother be dispensed with. Further, the plaintiff seeks an order whereby the Court approves the surname of one of the proposed adoptive parents as MR’s surname. The plaintiff submitted that these orders are in the best interest of the child. Amongst other things, the plaintiff submitted that MR has expressed that these orders are in line with her wishes and suitable considering her maturity, her circumstances where she has amongst other things experienced instability in relation to her half-sibling JM no longer residing with her and her identity as part of the family of the proposed adoptive parents, including as being the sister of JR.

69. The plaintiff provided further written submissions on 24 March 2022 (“Plaintiff’s Closing Submissions”). The plaintiff submitted that given the serious child protection history concerning MR and her siblings and the length of time she has been with the proposed adoptive parents and the lack of attachment that she has with the birth mother as well as the birth mother’s residence in Queensland, the likelihood of any application being successful is highly improbable. The plaintiff also submitted that any such proceedings are likely to be highly disruptive and stressful for MR. The plaintiff submitted that adoption is the preferable order which is in the best interests of MR.

70. The birth mother made written submissions on 10 March 2022 (“Birth Mother’s Opening Submissions”) and in closing on 23 March 2022 (“Birth Mother’s Closing Submissions”).

71. The birth mother submitted that, while she does not oppose a permanent care order, adoption is not the appropriate course. The birth mother submitted that she does not wish for the option of bringing a s 90 application to be extinguished as, whilst she faced difficult circumstances earlier in her life, she is making steps to improve her life including by stopping using drugs.

72. The birth mother also submitted that contact visits should not be reduced under the maternal adoption plan, as was proposed by the plaintiff.

73. The birth mother also submitted that the cancer diagnosis of one of the proposed adoptive parents may affect whether she is a fit and proper person to fulfil parental responsibilities.

74. Furthermore, the birth mother submitted that MR’s name need not be changed.

Consideration

75. These proceedings were originally due to be heard over three days commencing on 15 March this year. On the first day, 15 March 2022, an application was made by counsel for the birth mother for yet another adjournment because of what was said to be the late service of materials (dated 9 and 10 March 2022) and the belated revelation of consent to the adoption forthcoming from the birth father and the disclosure of one of the proposed adoptive parent’s diagnosis of a rare form of liver cancer.

76. I should say that although these two issues were perhaps belatedly conveyed to the birth mother, her solicitor was well able to deal with both in his written submissions dated 10 March 2022. Secondly in the day that I adjourned the plaintiff was able to obtain a report and secure the attendance of the proposed adoptive parent’s treating oncologist (who was cross examined). Both matters were matters over which the birth mother had no control and was not able to address directly in any event. I did permit her however belatedly to give evidence of a conversation between herself and the birth father about his alleged drug use.

77. For reasons which are elsewhere recorded I did not grant the application for adjournment. However I did not commence the hearing on the scheduled day (15 March 2022). Instead the hearing proceeded on 16 March 2022 and for an additional two days thereafter. I then adjourned the matter to enable the parties to access the transcript and provide written submissions. Oral submissions were then made on 24 March 2022.

78. The first issue in the case which is in my view is inextricably bound with what I may call the second issue is whether there should be an order for adoption and whether there are realistic prospects of restoration.

79. One thing is clear and that is the birth mother in her counsel’s written opening accepted that MR would continue to remain in the care of the proposed adoptive parents (at [22] of Birth Mother’s Opening Submissions) and that MR has a strong attachment to the proposed adoptive parents, their sibling and to the family of the adoptive parents (at [27] and [32] of Birth Mother’s Opening Submissions). She made no secret however of the fact that she wanted to keep open the possibility of a s 90 restoration application.

80. As to restoration it has been submitted on behalf of the birth mother that she was extremely young when she had her daughter and she would wish to apply at some point in the future for her restoration. It should be noted that the maternal grandmother made a s 90 application back in 2016 but she withdrew it in 2017 (Court Book (“CB”) p 22).

81. This question obviously involves a consideration of the child’s circumstances and the evidence as to whether parent is capable of parenting by addressing satisfactorily the issues which led to MR being taken into care. Consideration of this issue requires the possibility of being real or practical and not fanciful, sentimental or idealistic. Under the Care Act such an application must be made with in a reasonable period. But in a case like this there are other considerations.

82. In my view that prospect is so remote and fanciful as to be unrealistic. For a start MR has been with the proposed adoptive parents for some almost seven years (since August 2015, when she was four months old) and has not known any other parents. She has had very little if any real contact with the birth mother. The birth mother has no doubt because of her very unfortunate history not been a successful parent and she has faced criminal proceedings in relation to the child the subject of these proceedings. She was also charged with common assault in 2020 in relation to a former partner and there is an AVO in place for his protection which does not expire until June 2022.

83. She has also been charged with offences relating to her child JM which was heard over four days in 2021 and has been adjourned to March 2022. Although she has her youngest child CM in her care she is subject to some form of supervision regime by the Queensland authorities. The regime is supervised by her sister who lives with her. She also said in her evidence that she has no immediate plans to bring such an application for restoration and she had started to speak to her lawyer about how to bring such a case (T 180/40-45). She said nothing about JM for example and her plans in that regard although in fairness it may depend on the outcome of the criminal prosecution.

84. There is no evidence before the Court nor does it seem to be readily available from an appropriate expert as to her parenting capacity. There is very little information before the court about her current financial situation or her current living arrangements although the evidence that she is living with her sister. Her sister did not give evidence.

75. I am of the view that given the child protection history and her other child JM and his protection history, nothing short of influential and persuasive expert opinion would have to be available to display her drug and anger free capacity to parent. That leaves aside at some future time severing the bond between MR and the adoptive parents. There is not the slightest suggestion that such material will become available. Although it is undoubtedly true the mother has had an unfortunate life she nonetheless must at some point take some measure of responsibility for her various predicaments.

76. I accept the mother’s evidence that at the moment she does not currently use drugs although in a report of her psychologist in Queensland known only as “Matt” it was observed by him in 2021 one of the stressors identified for her was “triggers and stressors are the in-laws and my own family smoking cannabis around me” (CB p 894). This was said to be a high risk situation for the birth mother.

77. But the real difficulty as I see it is the unreality of a court at some time in the future considering that it would be in the best interests of the child to sever the bond between the proposed adoptive parent or parents for the purposes (even if she does not then live in Queensland) of restoration. Obviously if MR has any views about that she would be consulted and her voice would be heard.

78. MR has already expressed views as recorded in the various file notes that she wants to live with the proposed adoptive parents “forever” in an interview she had with Ms Edwards on 12 and 13 April 2021 and she is clearly attached to them and their daughter JR who she regards as her sister (CB p 351). They share the same middle name which very much pleases MR (CB p 508).

79. MR is indeed unsurprisingly strongly attached to the proposed adoptive parents and in my view that situation is unlikely to change notwithstanding the proposed adoptive mother’s diagnosis. To contemplate breaking that bond is in my view in the circumstances nothing short of perilous as far as the child’s psychological well-being is concerned but also cruel.

80. For at least the above stated considerations I regard the possibility of restoration at any time in the future unrealistic.

81. The next question is what is the appropriate order to make. The parties’ views on this are diametrically opposed.

82. It is the received wisdom frequently reiterated by judges deciding these types of cases that adoption provides the most secure setting in which to nurture a child. See [61]-[64] of this judgment.

83. In all the circumstances I consider it is very much in the child’s interests not to have to go through the uncertainty and stress of a s 90 application which on the balance of factors in my view is doomed to fail. It would take the presence of in my view very special reasons, not immediately obvious at the moment, for the bond existing between the child and the proposed adoptive parents to be disturbed and severed. Absent some extraordinary event I could simply not imagine it ever being in the child’s best interest for that to happen. Nor is it in her best interests to keep a theoretical and fanciful possibility alive for the mother. It is in my view vitally important that the child be given the security and stability she deserves. Adoption will make her as with her “sibling” Jorja, legally a member of the family in which case the de facto position will equate with the legal position.

84. In the almost six and a half years since MR has been in the care of the proposed adoptive parents there have been no material concerns raised about the level of care which has been provided. They in my view as a family need no longer to be supervised nor should they be required to ask the permission to make decisions concerning MR’s health and schooling. Both proposed adoptive parents are relevantly qualified in health care and I am confident that as a family the right, appropriate and safe choices will be made.

85. It is my view that in the circumstances of this case that adoption is the clearly preferable course. None of the other available options would in my view be in the child’s best interests. Any other form of order would create its own stress and would be an unnecessary intrusion into MR’s psychological and emotional development and wellbeing and into the orderly conduct of family affairs.

86. Adoption is also the course that all of the caseworkers and Ms Edwards recommends. There is no expert or other material which is in my view contrary to such a course but for the birth mother’s opposition. The court must give priority to the paramountcy principle and make a decision which is in the best interests of the child. I am in no doubt that adoption is the best course in all the circumstances.

87. In my view the proposed adoptive parents are more than suitable and have proven their ability in difficult circumstances to provide a loving stable and secure home and continue to do so. They have been in my view in good faith and considerable commitment able to navigate between the various home commitments to form a relationship with the child’s sibling JM and conduct cordial and so far constructive relations with two of the birth mother’s former partners which if I may say so is very much in the interests of the child. I am also satisfied there is a bond which has it seems formed with the biological child of the proposed adoptive parents, JR, which is of clear significance to MR.

88. This is a family unit that in my view in the child’s best interests should be now removed from the “care system”. They should have authority to make major decisions without the unnecessary intrusion of caseworkers and the like. It is of course relevant that both proposed parents are health professionals. They have successfully attended to and catered for the child’s educational, health and emotional needs.

89. So far as the proposed adoptive parent’s illness is concerned and the possible deterioration of her condition or worse, it will of course have an effect on each member of the family and the family as a whole. Such a situation would have an impact on any family. But a number of things must be noted. First on one view that is at least a year away and possibly longer subject to her treatment. Secondly, she is of course is not the sole carer and I am satisfied that the other proposed adoptive parent is well organised with various fall-back plans including the involvement of family members who it has already been observed have a close relationship with the child (CB p 509).

90. Her actual prognosis as opposed to her diagnosis was only known to the proposed adoptive parent on 15 March 2022 at the same time as a matter of practical reality as the birth mother found out.

91. The information about her diagnosis did not change for example the view of Ms Edwards as to her opinion that adoption was the preferable course and in the child’s best interests. Indeed in her evidence she said that she thought that adoption was “imperative for her stability and for her security” (T 176/4-21). Her evidence was thoughtful and considered and I accept it. It was not nor could it have been seriously challenged. She is in my view perfectly well qualified and given her exposure to the relevant persons concerned uniquely equipped to express such opinions.

92. The proposed adoptive parent’s diagnosis does not in my view provide any legitimate obstacle to adoption. The plain reality is that many children have to suffer the childhood trauma of the loss of a parent. The child will of course have the other proposed adoptive parent and JR and other family members around her if and when that happens.

93. Having decided that adoption is the preferable outcome I would therefore dispense with the consent of the birth parents although I note the birth father has after the requisite counselling consented to the adoption (CB pp 808-813). There is no credible evidence that his consent was not appropriately obtained and that all relevant formalities have not been attended to.

94. Although a serious step and not to be taken lightly I propose to dispense with the consent of the birth mother because in my view it is in the child’s best interests to do so.

95. I should also note although I do not consider it is in dispute that all other formal requirements of the Adoption Act have been complied with. I have not detected any submission to the contrary.

96. For completeness I should also observe that in the appropriate case the wishes of the child are to be taken into account, see ss 8(2)(a), 9(2), 126-129 of the Adoption Act. Here the child has been recorded as having expressed views which are only consistent with her wanting to remain with the proposed adoptive parents and JR (see CB pp 345, 462). Here however the child I consider is too young to consider a case plan for adoption or what adoption means but she nonetheless should be given a voice.

97. On a different topic I am satisfied that I should as requested make a declaration of paternity. The evidence is now clear. There is no doubt the plaintiff is able to bring such an application (s 21(2) of the Status of Children Act 1996 (NSW)). See also s 21(1)(d) of that Act.

98. The birth father in respect of whom the declaration is sought was previously identified (along with another person) as a putative father of the child. His paternity has been confirmed by DNA testing and he has acknowledged he is the birth father and he has been introduced to her as such.

99. His name should be added to the child’s birth certificate as it is important for her that that should be done. See Adoption of BS (No 3) at [100] per Brereton J (as his Honour then was).

100. Another issue is contact. The birth father has recently come onto the scene and has had one successful contact with the child. The proposed paternal adoption plan provides for him to have six visits per year (face to face). The birth father has consented to that and other matters contained within the proposed paternal adoption plan.

101. A question arose as to the possible Aboriginality of MR. The plaintiff filed an Affidavit affirmed 16 February 2022 from a Mr Timothy Dauth, the effect of which was to reject that notion (CB p 680). Mr Dauth was not cross-examined and the point was not pressed.

102. As best I understood the birth mother’s position she opposed the approval of such a plan for a number of reasons. First she belatedly was told the birth father had consented to the adoption. Secondly she at least requested again as best I understand it the same contact arrangements. Indeed evidence which I permitted her belatedly to call was a conversation between her and the birth father so as to show that he (notwithstanding his representations to Ms Edwards) was in fact using drugs and was therefore it seems disentitled to have access to the child.

103. Ms Edwards gave evidence that she had spoken to the birth father on at least three occasions (T 147/20-25) and he did not on those occasions seem to be under the influence of illicit substances. She also said that there are many biological parents in these situations who use drugs and she emphasised the need to ensure that it not happen during contact visits which will be in the company of at least one of the proposed adoptive parents (T 150/5-35).

104. The birth mother lives in Queensland and proposes to continue to do so (see T 182/1-2). She currently has no driver’s licence and her movements are therefore restricted.

105. An Amended Maternal Adoption Plan has been prepared as a result of recommendations of Ms Edwards whose experience and expertise I accept. No contrary expert opinion was proffered. Although Ms Edwards was cross examined at some length she gave credible and cogent answers and was unmoved in her recommendation for the amended plan.

106. At the centre of reasons for the amendments are behavioural issues surrounding contact in recent times with the mother. It has been reported that the child experiences psychological distress and anxiety following maternal family contact. She has been voicing her views and demonstrating a reluctance to have visits with her mother (CB p 753).

107. I am satisfied on the evidence that the child has reacted in the way suggested and I am also satisfied it is not behaviour caused by the proposed adoptive parents. When challenged Ms Edwards explained that she thought the proposed adoptive parents were coping themselves with the situation and at the moment the child is not yet in need of a therapist (T 167/25-35). I accept her opinion on that issue.

108. She was also supportive of the strategies the proposed adoptive parents have adopted as appropriate (T 168-169).

109. The problem for the mother is that the questions asked by her counsel and the suggestions made by those questions are not founded in any credible alternative expert opinion and the proposed amended plan does not in the circumstances appear to me to be an unreasonable position to adopt. For a start Ms Edwards has had a good deal of exposure to the proposed adoptive parents and the child and she has had I am satisfied regular contact with other persons such as caseworkers from whom she has no doubt gained additional insight.

110. The reality is that the child came into care in somewhat traumatic circumstances caused by as found to a large extent by the mother. She has also had limited supervised contact with the mother over the years and it is clear she has not been able to develop a secure bond with her. This is to be contrasted with the child’s obvious bond with her sibling JM and no doubt to the dismay of the mother with her birth father but as to the latter I accept it is very early days.

111. Each aspect of the decision-making process in cases such as this must be made with the best interests of the child in mind. There is little doubt that in principle it is any child’s best interests to have access to his/her birth parent(s). Open adoptions although a necessity under the current law can be a burden especially on adoptive parents in whose favour orders are made, for it is more often than not they who have to navigate between what can be a complex labyrinth of family contacts as here. The balance if all is well can be stimulating and constructive for the child and all concerned but it can also descend into competing claims and unrealistic expectations.

112. The child here is understandably desirous to maintain contact with JM and so far has had the start of what is hopefully a relationship with her father and his family.

113. I put to one side that the mother intends to live in Queensland at the moment and is lacking in her ability to get into New South Wales. Her position in relation to her most recent child is the subject of supervision. The fact remains that MR has been distressed and anxious when she has seen her mother. With everything else that is going on in her life I consider Ms Edwards recommendations are sensible, based on an expert assessment and in my view should be implemented.

114. There have been criticisms of the proposed adoptive parents in the way they chose to deal with the attempted contact by the birth mother with them for contact in early 2022. I do not in all the circumstances regard that criticism as either reasonable or fair. The birth mother could equally be criticised for not making earlier contact so as to arrange contact. The complaint in my view goes nowhere in the scheme of things. A further criticism was also levelled at the proposed adoptive parents for failing to organise FaceTime contact. Again I am not satisfied the criticism is either reasonable or fair.

115. A great deal has occurred in the first part of this year especially with the proposed adoptive parent’s diagnosis together with the child’s birth father now on the scene.

116. I am of the view that the proposed paternal and amended maternal plans will achieve with the necessary goodwill expected from all concerned the desired outcome in the best interests of the child and I would approve them.

117. The court again if it is satisfied it is in the child’s best interests can make orders about a change of name. The rationale generally behind such an order is again to aid and abet the stability and security of the relationship with the adoptive parent. Again I am of the view that a change of name will be in the child’s best interests and I would make an order accordingly. The change proposed in paragraph [5] of the Further Amended Summons for Adoption is not a childlike choice without any rational basis but rather a choice which will add to MR’s security and sense of family.

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Decision last updated: 04 April 2022