The Adoption of ‘O’ (Anonymised)

[2021] NSWSC 1517

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Adoption of ‘O’ (Anonymised) [2021] NSWSC 1517

Hearing dates:

17, 18 & 19 November 2021

Date of orders:

26 November 2021

Decision date:

26 November 2021

Jurisdiction:

Equity - Adoptions List

Before:

Sackar J

Decision:

See paras [128], [132], [144]-[145]

Catchwords:

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — whether the consent of the birth parents ought to be dispensed with — change of name — de-identification of a child as Aboriginal — maternal and paternal adoption plans

Legislation Cited:

Adoption Act 2000 (NSW) ss.4, 7, 8, 9, 23, 24, 26, 27, 28, 45F, 52, 54, 67, 69, 72, 87, 88, 90, 91, 101, 127, 128, 129

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss. 86, 90

Cases Cited:

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

Adoption of LJK and CRK [2017] NSWSC 7

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

Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762

Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83

Re Adoption of RCC and RZA [2015] NSWSC 813

Re D, Application of A [2006] NSWSC 1056

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

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (Plaintiff)
Birth father (First Defendant)
Birth mother (Second Defendant)

Representation:

Counsel:
Ms T Stevens (Plaintiff)

Solicitors:
NSW Crown Solicitors (Plaintiff)
Self represented (First Defendant)
Self represented (Second Defendant)

File Number(s):

2021/66031

Publication restriction:

Nothing that would identify the parties

Judgment

1. Application is made by Amended Summons of 28 October 2021 for the adoption of “O” (born June 2011).

2. Application is also made pursuant to s.67(1)(d) of the Adoption Act 2000 (NSW) (“Adoption Act”) that the consent of the birth parents be dispensed with. Further orders are sought for the approval of an amended surname (while retaining “O” existing given names).

3. The hearing in this matter was conducted over the best part of three days. The Secretary (the plaintiff) was represented by Ms Stevens of counsel. The birth parents (the first and second defendants) were self-represented. A good deal of evidence was before the Court.

4. The birth parents cross examined a number of the Secretary’s witnesses. Although there was a statement from the birth mother in the Court Book it was unsigned and she indicated that aspects of it were not currently the views she held (see, for example T.172/48-T.173/7). The birth father on the other hand had sworn two statements which were in the Court Book. In addition he tendered and relied upon numerous statements made by him over time, (Ex.D1).

5. The birth parents opposed all of the orders sought by the Secretary.

Background Facts

6. On 29 November 2010, the birth mother provided confirmation to the Department of Communities and Justice (“DCJ”) that she was pregnant: CB 17[74].

7. On 29 December 2010, the birth mother and her partner at the time stated that, in the event Court action was commenced for the removal of their unborn baby, they wanted the current proposed adoptive parent to be considered as a relative carer: CB 17[5].

8. On 13 January 2011, DCJ received a pre-natal Risk of Significant Harm (“ROSH”) report, detailing the birth mother’s historical and recent drug use whilst pregnant with “O”: CB 18[76].

9. On 18 March 2011, a High Risk Birth Alert was sent to hospitals in the South Eastern Sydney Illawarra area relating to the birth mother’s unborn child: CB 18[81].

10. On 27 May 2011, the birth mother and her partner agreed to and signed a Care Plan: CCB 19[84].

11. On 9 June 2011 DCJ received a High Risk Birth Alert in relation to “O”: CB 19[85].

12. “O” was born on 10 June 2011. “O”’s given names and surname were chosen by the birth mother and the man originally thought to be the father: CB 19[85]; 9[25].

13. On 11 June 2011, DCJ received a ROSH report in relation to “O” (CB 19[85]) and the birth mother signed a Temporary Care Agreement for one month: CB 19[86].

14. “O” was discharged from hospital into the proposed adoptive parent’s care on 20 June 2011: CB 7[12].

15. On 22 June 2011 the first defendant (birth father) contacted DCJ to advise that he believed he was “O’s” father: CB 9[26].

16. On 8 July 2011, the birth mother signed a subsequent Temporary Care Agreement for a further 3 months: CB 19[87].

17. A paternity test confirmed that the first defendant is “O’s” birth father on 2 August 2011: CB 9[26].

18. On 9 August 2011, DCJ filed an Application in the NSW Children’s Court commencing care proceedings and seeking Interim and Final Orders allocating parental responsibility for “O” to the Minister: CB 19[90].

19. On 12 August 2011, interim orders were made allocating parental responsibility to the Minister. The Children’s Court made a finding that “O” was a child in need of care and protection: CB 20[91].

20. On 14 May 2012, a s. 78 Care Plan was filed in the Children’s Court, recommending that parental responsibility be allocated to the Minister until “O” attained 18 years of age. It was proposed that “O” remain in his placement with the proposed adoptive parent and her then-husband until this time: CB 20[93].

21. On 30 August 2012, the Children’s Court made a finding that there was no realistic prospect of restoration to the mother, but that there was a realistic possibility of restoration to the father: CB 20[94].

22. In September 2012, the birth mother requested that “O’s” surname be changed in accordance with her wishes and his birth certificate was amended to reflect this: CB 9[27].

23. On 6 September 2012, an amended Care Plan was filed reflecting the plan of restoration to the father: CB 20[95].

24. On 7 September 2012, Final Orders were made allocating parental responsibility for “O” to the Minister for a period of 9 months, after which time all aspects of PR were to be allocated solely to the father until “O” attained 18 year of age. The father also signed undertakings and a final order for supervision was made.

25. On 6 November 2012, the father was involved in an assault on his neighbour. He received a $1,500 fine and 2-year s.9 bond for this offence: CB 21[97]; Proposed Tender Bundle, Tab 1.

26. On 13 December 2012, DCJ filed a notification for breach of undertaking following the father’s criminal conduct in the Children’s Court: CB 21[99].

27. On 3 January 2013, “O’s” middle name and surname were both changed in accordance with the father’s request (made shortly after the paternity test results were received). “O’s” birth certificate was amended to reflect this: CB 9[27]; 10[28].

28. On 8 February 2013, the Children’s Court granted the birth father’s application to vary contact orders. Interim Orders were made to the effect that the father was to have 2 hours of supervised contact per week: CB 21[100].

29. On 27 March 2013, the Children’s Court found the majority of the breaches of the birth father’s undertakings to be proven: CB 21[101].

30. On 3 May 2013, Interim Orders were made granting parental responsibility for “O” to the Minister: CB 21[102].

31. On 31 May 2013, an amended Care Plan was filed: CB 21[103].

32. On 4 September 2013, the Children’s Court made a finding that there was no realistic possibility of restoration to the birth father, and made Final Orders allocating parental responsibility to the Minister until “O” attains 18 years of age. Contact orders were made providing for a minimum of 4 hours contact between “O” and the father to occur once per month: CB 21[104].

33. In April 2014 the proposed adoptive parent and her husband separated: CB 7[13].

34. In April and May 2015, the birth father and the paternal grandmother both filed s.90 applications seeking parental responsibility for “O”: CB 22[106].

35. On 30 August 2015, the proposed adoptive parent commenced a relationship with her current husband: CB 8[14].

36. On 20 November 2015, the Court refused leave in relation to the birth father’s and maternal grandmother’s s.90 applications. Both applications were dismissed: CB 22[106].

37. The last occasion that “O” had face-to-face contact with the birth father was on 17 December 2016: CB 263.

38. On 25 January 2017, the father was arrested in relation to the assault for which he is currently imprisoned: CB 2[107].

39. On 24 February 2017, the proposed adoptive parent and her former husband officially divorced: CB 7[13].

40. The birth father was sentenced to 11 years’ imprisonment with a non-parole period of 7 year and 6 months. He will first be eligible for release on 24 July 2024: CB 10[30].

41. The last occasion “O” had face-to-face contact with the birth mother was on 23 January 2019: CB 887[39].

42. On 24 January 2019, the birth father filed a further s.90 application seeking face-to-face contact with “O” at the South Coast Correctional Facility. The application was subsequently treated as a s.86 application: CB 22[108].

43. On 22 October 2019, the current AVO against the father listing the proposed adoptive parent and her daughters as protected persons was made. The AVO is set to expire on 21 October 2024: CB 10[32].

44. On 13 February 2020, an OOHC Health Assessment recorded that “O” meets DSM-V criteria for diagnosis of ADHD: CB 27[127].

45. June 2020 was the last occasion that “O” had phone contact with the birth mother. This was around “O’s” birthday: CB 886[38]. On 26 June 2020 the proposed adoptive parent received the last email correspondence from the birth mother: CB 885[29].

46. The last occasion “O” had phone contact with the father was 9 July 2020: CB 885[27].

47. On 10 November 2020, the Children’s Court ordered, pursuant to s.86, that, subject to “O’s” wishes, the father is to have indirect contact with “O” on a monthly basis for a period of 12 months, by the sending of letters or cards to “O”. The Court noted that the present adoption proceedings would provide an opportunity to review contact arrangements: CB 22[110].

48. On 6 March 2021, the proposed adoptive parent married her current husband: CB 8[14]; 882[2].

49. On 8 March 2021, the Adoption Application, including Summons, was filed in the Supreme Court of NSW: CB 1.

50. On 28 July 2021, “O” last received a letter from the birth father: CB 884[16].

51. On 7 July 2021, the matter came before me for directions and to set the matter down for hearing. The birth father had recently been granted Legal Aid and a solicitor appeared on his behalf. The birth father’s position was that the matter should be set down for 2022 (Transcript of 7 July 2021 at T.1/26-32). The birth mother at the time supported the adoption proposal and hoped that this could happen as soon as possible in the best interests of “O” (T.2/15-16). I set the matter down for hearing on 17^th to 19^th November 2021.

52. On 13 October 2021, at a subsequent directions hearing the plaintiff explained that the birth parents had each just recently received the court book (Transcript of 13 October 2021 at T.1/42-47). The birth father explained that his grant of Legal Aid had ceased and he had not had the opportunity to read any of the paperwork (T.2/1-5). The birth parents were accordingly given time to read the material and consider which witnesses they would like to call.

53. The witness list was finalised on 28 October 2021 and the Amended Summons was filed on that same date.

Legal Principles

54. 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.

55. If a child is an Aboriginal child then the Aboriginal child placement principles must have been properly applied: s.90(1)(e). The meaning of “Aboriginal child” is found in s.4(1)-(2) of the Act as follows:

(1) In this Act —

Aboriginal has the same meaning as Aboriginal person has in the Aboriginal Land Rights Act 1983.

Aboriginal child means a child descended from an Aboriginal and includes a child who is the subject of a determination under subsection (2).

…

(2)  Despite the definition of Aboriginal in subsection (1), the Court may determine that a child is an Aboriginal for the purposes of this Act if the Court is satisfied that the child is of Aboriginal descent.

56. In Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83, Leeming JA (Basten and McCallum JJA agreeing) commented on the operation of s.4(2) of the Act, stating at [82] that:

… The section authorises the Court to make a determination, if it is satisfied that the child is of Aboriginal descent. The second, inclusive limb of the definition only applies if such a determination is made. There is no obligation to make such a determination, and such a determination will only be made if the Court reaches the specified state of satisfaction. I referred to the provision as a “discretionary power” above because that is an accurate statement of the provision: the Court is empowered to make a determination in certain circumstances, which will have consequences for the status of the child, but also has a discretion whether or not to exercise that power. Contrary to the question framed by the Secretary’s written submissions, the distinction whether the provision is discretionary or empowering is unhelpful. It is both. However, children of Aboriginal descent, however remote, are not automatically “Aboriginal children” by reason of s 4(2).

57. 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.”

58. 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.”

59. 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).

60. 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.

61. 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] NSWSC 762 at [25] per Brereton J. 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. 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].

62. 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.

63. 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 at [55] per Brereton J.

64. 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”.

65. In Adoption of LJK and CRK [2017] NSWSC 7, Brereton J, 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).

66. 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.

67. 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.

68. 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).

66. 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.

Submissions

The Plaintiff’s Submissions

70. The plaintiff submitted that the Court would be satisfied that the formal requirements of an adoption application have been met:

1. At the time the Summons was filed, “O” was present in the State and was under 18 (CB 31[153]): ss.23(2) and 24(1)(a) of the Act;

2. The proposed adoptive parent is resident in the State of New South Wales (CB 684[7]): ss.23(2)(b) and 27(1)(a) of the Act;

3. The proposed adoptive parent is of good repute and a fit and proper person and meets the age requirement (CB 481, 490, 704): ss.27(1)(b) and (2) of the Act;

4. The proposed adoptive parent’s spouse consented to the adoption on 18 February 2021 (CB 449, 714), as does her previous husband / “O’s” psychological father (CB 706): s.27(3);

5. The proposed adoptive parent is suitable to adopt pursuant to s.45F of the Act (CB 32[156]);

6. The birth parents were each provided with a copy of the mandatory written information between 3 and 6 December 2018 and 15 January 2019 respectively (CB 35-66 at [177]-[178] and 36-37 at [179][181]);

7. The parents were provided with written notice of the adoption application and intention to seek a consent to dispense order on 31 March 2021 (mother) and 9 March 2021 (father) (CB 731-732 and 725-726): ss.72(1) and 88(1)(a) of the Act;

8. The Minister, by his delegate, gave consent to “O’s” adoption on 27 July 2020 (CB 34[164]), and the Secretary seeks to dispense with the consent of the parties: s.87 of the Act;

9. A report concerning the proposed adoption has been provided to the Court (CB 458-480): s.91(1) of the Act.

71. The Secretary submitted that the birth parents’ consent should be dispensed with. The proposed adoptive parent is an authorised carer and has care and responsibility for “O” under out-of-home care arrangements made under the Care Act: s.67(1)(d) of the Act and the definition of the Act. “O” has an established relationship with the proposed adoptive parent having lived with her since he was 10 days old: s.67(1)(d).

72. Adoption is in the best interests of “O”. The proposed adoptive parent has met his needs throughout his life and they have a strong and loving relationship. Adoption would confer a sense of belonging, certainty and stability.

73. “O” has a mature understanding of adoption and wishes to be adopted by the proposed adoptive parent: s.8(2)(d).

74. “O’s” physical, emotional and educational needs are being exceptionally well met. Although he was originally considered to be an Indigenous child on the understanding of his birth mother, inquiries and research conducted into “O’s” family history and ancestry by Mr Timothy Dauth indicated no Indigenous ancestry (CB 512). The proposed adoptive parent is supportive of “O” finding out more about his cultural heritage if he seeks to pursue such connections. The proposed adoptive parent also has two friends who are Aboriginal and involved in “O’s” life who have expressed their willingness to act as mentors for “O” should he want to know more about Aboriginal culture (CB 890): s.8(2)(c).

75. The plaintiff submitted that the proposed adoptive parent is committed to “O” and the adoption process: s.8(2)(e). She has demonstrated she is capable of providing for all of “O’s” needs: s.8(2)(i). Furthermore, she and “O” have a loving relationship and her extended family forms part of “O’s”, including her ex-husband who is “O’s” psychological father and her current husband who provides another father figure: s.8(2)(h).

76. “O” has been protected while in care from physical or psychological harm: s.8(2)(j). He has expressed some fear around his father especially while his father is serving a term of imprisonment. There is an apprehended violence order protecting the proposed adoptive mother and her family against the birth father and it is necessary to protect “O” accordingly. Therefore, the paternal adoption plan provides that contact with the father must be according to “O’s” wishes and supervised by the proposed adoptive parent.

77. Both the amended Maternal Adoption Plan (CB 849-853) and the Paternal Adoption Plan (CB 854-857) provide for “O’s” relationship with both the birth parents while recognising the importance of “O’s” wishes in this regard: ss.90(1)(h) and 90(2).

78. The plaintiff submitted that adoption is clearly preferable and in the best interests of the child: ss.90(3), 8(1)(a). The alternatives to adoption would be restoration or the preservation of the status quo. The Children’s Court has found that there is no realistic possibility of restoration to either the mother or father.

79. In the event that an adoption order is not made, “O” will remain under the parental responsibility of the Minister until he attains 18 years of age. The Minister and caseworkers would continue to be involved in decision making for “O”. The proposed adoptive parent has amply demonstrated her capacity (together with “O’s” psychological father, her ex-husband) to care for “O”. The preservation of the status quo lacks certainty and permanency and there is a risk “O” may face stigma from being a “foster child” rather than part of the family legally. The plaintiff submitted that adoption was therefore clearly preferable in the circumstances.

80. The plaintiff recognised that there is no provision in the Act to allow for an application for adoption by two people who were previously a couple. Accordingly, there is no provision for both the proposed adoptive parent and her ex-husband, “O’s” psychological father, to adopt him. Therefore while this application for adoption is made in relation to the proposed adoptive parent alone, she is not a single parent and it is not the case that there are no other significant figures in “O’s” proposed adoptive family. The proposed adoptive parent is financially secure and equipped to provide for “O”.

81. The plaintiff submitted that it is in “O’s” best interests to share the same surname as the proposed adoptive parent and her ex-husband’s birth daughters, whom “O” views as his primary siblings (CB 889[64]). “O” should retain his current given names to preserve his link to his birth father and mother.

Birth father’s submissions

82. The birth father made oral submissions at TT.167-169.

83. The birth father began by noting that his questioning of Ms Rose McGoldrick was cut short which he believed put him at a disadvantage. He added that while Ms McGoldrick had apologised for the delay in acknowledging paternity he believed it could have happened ten years prior.

84. The birth father submitted that it could not be ruled out that “O” was being compliant when talking to Dr Park or Sarah Collett, especially when the proposed adoptive parent was present as he wished to please her.

85. He believed that “O” would have a more realistic view of him if contact had continued after his incarceration. Further, he believed that “O” did not understand the difference between a criminal kidnapping and the possibility of restoration, and that this lack of understanding demonstrated the bias that had been instilled in him during his time in foster care.

86. The birth father submitted that there were a lack of options presented to ensure there was contact between “O” and the birth mother.

87. He argued that the changing of “O’s” surname had no connection to the proposed adoptive parent, rather to her ex-husband who was not a party to the proceedings. To change “O’s” name would be to change his identity and he would lose any connection to the proposed adoptive mother’s daughters if they married and changed their names.

88. The birth father submitted that it had not been shown with complete certainty that “O” was not Aboriginal. He believed his son was Aboriginal and that therefore long-term placement should be preferred to adoption. Overall, however, he supported restoration to the birth mother.

Birth mother’s submissions

89. The birth mother gave oral submissions at TT.169-173.

90. The birth mother expressed her opposition to the adoption, the proposed name change and the proposed de-identification of “O” as Indigenous.

91. The birth mother submitted that she had been a victim of domestic violence and had asked the Department for help, although never received this. She stated that during her pregnancy the proposed adoptive parent and the Department coerced her into believing that she would never be allowed to raise “O”. After fleeing the violence of her partner she asked for “O” back and was told she would have to demonstrate she was able to stay away from her partner. Then when she became pregnant with her daughter she had to prove that she could keep that baby before restoration of “O” would be possible.

92. Following her daughter’s birth she asked if she could then have “O” restored. She was told that the birth father was seeking restoration and she would have to work with the Department to ensure this did not happen. She was not, however, given contact with “O”. By this time she felt the Department was working in the best interests of the proposed adoptive parent and not her son. She was unable to get Legal Aid in her s.90 applications and despite her ongoing attempts to have “O” restored feels this may never happen.

93. The birth mother submitted that she has turned her life around and this has not been recognised as being in “O’s” best interests. It is in his best interests to be with his birth family and to reconnect with them in a gradual process.

Consideration

94. As is clear from the above the Adoption Act mandates that the Court must give paramount consideration to the best interests of the child, ss.7(a) and 8(a).

95. And although the wishes of the parents and the attitude of the proposed adoptive parent are important and are to be taken into account it is clear that where and when appropriate the wishes of the child are to be given considerable weight, ss.8(1)(d), 8(2)(a) and 9. Children over the age of twelve are of course able with the statutory safeguards to consent to their own adoption, s.69.

96. Sections 127, 128 and 129 serve to further emphasise the importance of the wishes of the child and the fact that the Court must take into account these wishes but cannot require a child to express his or her views. The reason I am labouring the point is that as will later appear, the parents and the birth father in particular expressed in his submissions and in the approach he took to cross examining the witnesses, that “O” had been coached, was compliant and in effect given his age was not able to convey his real views as opposed to those he thought some people wanted to hear, particularly in relation to wishes about adoption, name change and his attitude towards his birth parents.

97. I should say at the outset that it will sometimes be difficult when the views of the child are conveyed to the Court, usually indirectly to make an assessment about the reliability of such evidence. Much will turn on obviously the age of the child or the experience and qualifications of the person conveying his or her alleged views. Although there will be exceptions I am of the opinion that generally it will be inappropriate to call the child as a witness or for the judge to interview the child. Although indirect, it is far more desirable for the judge to assess the evidence of the professional social worker or psychologist who has worked with the child as often is the case over many years. These persons will not generally be shown to have any reason other than to objectively and accurately report their discussions with the child concerned.

98. That said, there are some important factual materials that are not controversial. “O” has been in the care of the proposed adoptive mother since he was approximately one month old. He has therefore lived with her for ten years. He has, I am satisfied on the evidence, established a stable and loving bond with his proposed adoptive parent and her three birth children who he regards as his sisters. Although no longer married I am also satisfied that he regards the proposed adoptive mother’s former husband as his psychological father. He has for some time called himself by his proposed new surname which is his proposed adoptive mother’s former married name. That name is still the surname of his “sisters” and his psychological father. He is known by that surname at school and that name appears on his work and text books. His birth certificate at the moment has his surname as his birth father’s surname. He previously had other names. Again I will return to this aspect of the matter.

99. But the first issue that in my view that needs to be addressed is whether “O” is an Aboriginal child.

100. The Secretary initially it seems relying to a large extent upon a history given by the birth mother proceeded upon the basis that “O” was Aboriginal but more recently as a result of further investigation has de-identified him as Aboriginal. Both birth parents have complained about this outcome and made submissions to the effect although they did not put it explicitly that the Court pursuant to s.4 of the Adoption Act and perhaps more accurately s.4(2), should find him to be an Aboriginal child.

101. The genesis of the belief that “O” is and should be regarded as Aboriginal is that the birth mother and her sister identity as such. The birth mother has been the Northern Rivers Department of Education Indigenous Liaison Officer (T.63/4-6) and had previously been accepted by an Aboriginal community in Port Augusta in South Australia. There is no suggestion that there are any Aboriginal connections on the birth father’s side.

102. The birth mother in turn however got her family history from her mother (“Stephanie”) who told her daughter that she was an Aboriginal person and a member of the Stolen Generations. In turn however it seems “Stephanie” was told she was Aboriginal by her foster parents who in turn had apparently been told by nuns in a child care facility called Nazareth House in Ballarat. I should add this material comes in part from some evidence given by the birth mother in her oral testimony and material gleaned by Mr Timothy Dauth a research officer from the State Crown in his interviews with the birth mother’s sister. The statement (unsworn) provided to the Court from the birth mother is entirely silent on this issue.

103. The sister of the birth mother said in an interview with Mr Dauth that she had seen records (seemingly not immediately available) which referred to her mother as Aboriginal.

104. Mr Dauth who has twenty years’ experience working in the area of native title, anthropological, and genealogical research has undertaken a most thorough search of various records plus conducted interviews. It must be accepted that undertaking this kind of research in this area in particular is not only daunted by the usual problem with institutions and their record keeping but the fact that many persons in the past were not, sadly for many reasons prepared to admit to their Aboriginal heritage.

105. In this case there were apparently some records that suggested that “Stephanie” and been sent to a children’s home in Kempsey before going to the Cootamundra Aboriginal Girls Home. Such a suggestion is quite inaccurate. “Stephanie” (deceased in 2008) was born in Geelong in 1951. There is no doubt that “Stephanie” was born in Geelong. There is also no doubt who her mother, “Jolene” was. Her mother was not it seems Aboriginal. The difficulty however is precisely identifying who “Stephanie’s” father was.

106. In addition “Stephanie” it would seem, had formed a belief as to her being Aboriginal after a meeting with members of the Aboriginal community in Victoria. The community thought she bore a resemblance to a person called “Josephine” which she believed was her mother’s name and who was a member of that Aboriginal community in Victoria.

107. The family history is in one sense based on hearsay upon hearsay which is in itself not fatal, especially as the rules of evidence do not strictly apply. Regrettably, “Stephanie” however is no longer alive to give evidence.

108. In the searches undertaken by Mr Dauth there is no proof of anyone in the birth family being Aboriginal. There was a belief passed down to the birth mother which may be wholly inaccurate and is incapable of being verified. Mr Dauth, having conducted what was obviously a thorough and comprehensive search, concluded that as far as “Stephanie’s” birth parents are concerned, he could not find any Indigenous ancestry. He is unsure about her birth father. It is still however a work in progress.

109. The finding that a child is Aboriginal is of considerable significance. It has certain consequences under the legislation. It is too important a finding to be made in my view on what now appears to be a misconceived basis. There is of course no difficulty in the birth mother in these proceedings continuing to believe she is Aboriginal, but if that belief is based in turn on the belief of her mother which cannot be verified, then it is on the basis of Mr Dauth’s detailed investigation a flawed reasoning process.

110. On the basis of the materials as I understand them I could not criticise the Secretary for de-identifying “O” as an Aboriginal child. I would not certainly on the basis of what I have read in Mr Dauth’s report make a finding that “O” is an Aboriginal child and I cannot in the circumstances reach the requisite satisfaction pursuant to s.4(2).

111. That said the fundamental question is whether the Court should make an order for adoption.

112. The fact is that “O” has never lived with or had very much contact with either birth parent. The father does not seek restoration, however, the birth mother does as I understood her position. In my view restoration is not a realistic possibility for either parent but especially the mother. There are many reasons for this.

113. First to order such would involve severing the physical ties with “O’s” de facto and psychological mother and his psychological father that currently exist and which forms part of his routine for the last ten years. That would be cruel in the extreme and in my view would not be in “O’s” best interests.

114. The birth mother put the submission that she had managed her youngest child since birth and was capable of looking after “O”. There is no doubt that the birth mother, and she accepts this herself, has had a very difficult past. She has to her credit turned her life around and will it seems in the near future qualify as a nurse. She is already working in the health care industry. But she has provided very little detail about her living arrangements other than she shares a house with her ex-partner and friend. She has provided no details about her employment and matters of that sort.

115. She is bitter about the Department by reason of the fact they did not provide adequate support for her at or around “O’s” birth. She acknowledges she was using drugs at the time of “O’s” birth. And she must accept that at his birth and for a time she believed her then partner at the time was “O’s” father. That position was rectified however in due course.

116. She remains frightened of her ex-partner (who is the proposed adoptive parent’s half-brother). This has been she asserts the principal reason she will not travel south even to Sydney for contact visits with “O”.

117. However it is not just the entire lack of a comprehensive and considered case in support of restoration that causes me to think it is completely unrealistic. It is that it fails to address and recognise the realities. “O” has for ten years lived with the proposed adoptive parent and regards her as his de facto and psychological mother. He regards her daughters as his sisters. He knows there are other people in his life, including his birth mother, who he realises has had many children. He also knows his birth father is in gaol.

94. In my view the fact that the adoptive mother has divorced and remarried is not really to the point. It is the home environment she has created and maintained that is important. Her former husband who provided an affidavit for the proceedings says, and it was not disputed, that “O” calls him “Dad”. He explains the family dynamic which involves a new partner for him as well. It involves having good and constructive relations with the proposed adoptive mother and her husband and that he has ongoing contact with “O” and regards him as his son.

95. In my view restoration to the birth mother is simply not a realistic possibility. It is not in “O’s” interests to be placed with a person he hardly knows and according to what he has told various people does not want to have contact with.

96. The question however is whether adoption is the clearly preferable option and in the best interests of “O” over any other available option. That question should be answered in the affirmative. Adoption is clearly preferable because it will consolidate in my view “O’s” sense of belonging and it will provide finality and therefore certainty in his life.

97. The proposed adoptive parent is committed to “O” as her child. She has been able to provide him along with her daughters with a loving and inclusive home environment. She has supported him in school activities and his health requirements and dealing with his behavioural issues which have in the past and quite possibly might arise from time to time in the future.

98. There has been concern about “O’s” birth father and there remains in place an apprehended violence order. That is indeed unfortunate. At the moment it is of no practical significance as the birth father is incarcerated for serious crimes of violence and will it seems not be released until at least 2024.

99. I am satisfied that the proposed adoptive parent, together with others with whom she will have ongoing contact, will provide “O” with the necessary love and support he requires.

100. I should add that all relevant caseworkers and experts support adoption as the preferable course. Ms McGoldrick is the manager client services. She provided two statements to the Court on 2 March and 6 October 2021. Her evidence, which I accept, favours adoption, as does Ms Sarah Collett, an independent assessor, in her statement of 21 January 2021. It should be noted that Ms Collett has conducted approximately forty eight interviews in person and by phone with “O”, caseworkers, the birth mother and birth father and the proposed adoptive parent.

101. I am also of the view that on the evidence as a whole “O” also wants to be adopted. In her discussions with “O” on 7 January 2019 and 20 June 2020 Ms Collett formed the view that “O” displayed a basic understanding of adoption given his age. He has expressed excitement at the prospect when interviewed by a caseworker in September 2021. And he told Dr Jodie Park on 20 October 2021 that he would like the order to be made as soon as possible.

102. Given the various persons all of whom are qualified to evaluate and consider responses from children in this type of situation there does not appear to be anything contrived or compliant in the accounts of such conversations I have read. There is both a consistency and spontaneity about them. None of the witnesses expressed that they had formed the view that “O” was just saying those things because he thought that is what those persons wanted to hear. I am satisfied that is “O’s” genuinely held view. Notwithstanding his age I am satisfied that although they are not able to be determinative, “O’s” views should be given appropriate recognition.

103. In all other respects I am of the view that all formal requirements of the Act have been complied with. I should add for completeness that there is no legislative impediment to the adoption by a single person (s.27 of the Act) and therefore an order can be made in favour of the proposed adoptive parent alone.

104. In all the circumstances I consider adoption is the preferable option and in “O’s” best interests. In those circumstances I would notwithstanding its gravity dispense with the consent of the birth parents to the adoption.

105. The next issue is whether there should be a change of name. Both birth parents object to a name change. The birth mother makes the point that over time his name has been changed and in effect enough is enough.

106. The photographs of “O’s” school work books in the Court Book and the awards he has won at school indicate he uses the proposed surname whilst at school. The proposed adoptive parent’s three birth daughters also use the that surname and “O’s” psychological father shares this name. The proposed adoptive parent has since her divorce changed her name. The birth father was keen to emphasise that the three daughters of the proposed adoptive mother would likely marry and change their names. Those daughters are 19, 17 and 15 years respectively and any change of name cannot be presumed but if it did happen it is likely not to happen for some years.

107. A more substantial point made by the birth father is that “O” currently bears his surname on his birth certificate and that “O” is his only child.

108. Again, “O” has expressed his views about the matter. He has, I am satisfied, a very strong bond with the proposed adoptive parent’s daughters who he regards as his sisters. They are the people he has the closest and most regular contact with given they are all under the same roof. Further he recently told a caseworker he was excited about having the proposed new surname. Dr Park also gained the same clear understanding recently in an interview with “O”. Again on the evidence as a whole I consider his views should be recognised but given what is already happening at school a change would reflect the reality of his daily routine. The name “O” was chosen by his birth mother and his second name was chosen by his birth father. He will be retaining those names.

109. The next question is whether the Court should approve the Maternal and Paternal Adoption Plans.

110. Both birth parents again object to both the frequency and location of the contacts. The birth mother says as she is frightened of her former partner contact should take place nearer where she lives. The added advantage she suggests is that “O” can have contact with her youngest child as well. The birth father on the other hand wants more contact and suggests it should happen even whilst he is in gaol.

111. There is no doubt that “O’s” views on contact have changed over time but on the evidence I am not satisfied that his views have been unreasonably influenced by others importantly the proposed adoptive parent.

112. On the materials as I see it there is a basis for “O” thinking that his mother has simply not made sufficient effort to make contact with him. He told Dr Park he was upset with his birth mother because she did not make contact with him on his birthday. Unlike with the birth father, there is no evidence before the Court to support any attempts on the part of the birth mother to make contact in writing or by other means than travelling done to “O”. Her fear of travelling south cannot explain a failure to communicate in other ways. Currently “O” is it seems angry with his birth mother and does not want to have contact with her.

113. “O” has recently said he is frightened of his birth father. Dr Park recently recorded “O’s” thoughts on these matters. His thoughts as recorded by Dr Park must be recognised and respected. The sentencing remarks for the birth father expose a very violent person prone on the occasion described in detail by the learned sentencing judge to pay little regard for the well-being and safety of others. I do not consider it appropriate for example that “O” visit his birth father in gaol.

114. I have carefully considered the proposed Paternal and Maternal Adoption Plans. Both in my view appropriately acknowledge that contact is for the purpose of developing and assisting “O”, building on his knowledge of his birth family and sense of identity. Both plans also acknowledge and respect “O’s” wishes.

115. In particular the Paternal Adoption Plan necessarily addresses alternative situations where the birth father is or is not incarcerated. Whether or not “O” visits the birth father whilst in custody again is a matter largely for “O’s” wishes. I consider that entirely appropriate given the remarks made to Dr Park. Appropriate arrangements are also in place for “O” to have access to his paternal grandmother and paternal uncle and aunt. In my view the contact by telephone and by way of letter is appropriate in the circumstances.

116. So far as the Maternal Adoption Plan is concerned, again I regard the level of contact as appropriate and notwithstanding the birth mother’s concerns, on the evidence as a whole I see no reason why contact should not be in Sydney. I note that reasonable additional face to face contact is to occur in the event that “O” is travelling near the birth mother’s home. Contact with his maternal half siblings is also in my view appropriate, as is the contact proposed with his maternal aunt and grandfather.

117. I am satisfied that the proposed adoptive parent will act in good faith and facilitate contact as is proposed in both of those Plans.

118. There are some insightful remarks made by Dr Park concerning “O’s” relationship with his birth father (at CB 1007-1008):

“O” was asked what he calls his dad Tim and he said “at home I call him Tim, when I’m talking to him I call him dad otherwise he gets mad”. “O” was asked whether he would like to go and visit Tim and he said “going to jail would be weird. It would be weird because you’re in jail and looking for your dad and evil is in your face.” When asked what he meant by “evil being in your face” “O” said it would be in your face and then it will “get annoying”.

“O” was asked again if he remembers what he talks about with dad on the phone and he said “school and stuff”. “O” was asked again if he wanted to see dad and he said “yeah it would be weird. I’m not really interested in seeing dad.”

143. Dr Park made further comments at CB 1011-1014. Her observations about “O’s” reaction I accept as accurate and as a consequence I accept her views.

144. As a result of the above, I am satisfied, having given the matter very careful consideration that the proposed Maternal and Paternal Plans are in all of the circumstances appropriate.

145. I would therefore make the orders as proposed.

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Amendments

07 December 2021 - [98] deletion of one word -

Decision last updated: 07 December 2021