The Adoption of Thomas (a pseudonym) and Georgia (a pseudonym)

[2024] NSWSC 1023

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Adoption of Thomas (a pseudonym) and Georgia (a pseudonym) [2024] NSWSC 1023

Hearing dates:

30 July 2024

Date of orders:

30 July 2024

Decision date:

15 August 2024

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Declaration of parentage and adoption orders made.

Catchwords:

CHILD WELFARE – adoption – adoption plan –where it is in the children’s best interests for declaration of parentage and adoption orders to be made – where applicant seeks registration of adoption plans providing for means and nature of contact with birth family post-adoption – where children’s treating expert recommends a staged approach to contact with birth parents post-adoption – where birth parents seek increased contact beyond what is proposed in adoption plans – whether adoption plans are in the children’s best interests and proper in all the circumstances

Legislation Cited:

Adoption Act 2000 (NSW)

Births, Deaths and Marriages Registration Act 1995 (NSW)

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

Status of Children Act 1996 (NSW)

Cases Cited:

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

Adoption of RCC and RZA [2015] NSWSC 813

Adoption of Taylor-Clay [2019] NSWSC 27

Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142

Re Peter [2009] NSWSC 697

Re the Adoption of AJH [2017] NSWSC 1751

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (Applicant)
“Tim” (a pseudonym) (First Defendant)
“Belinda” (a pseudonym) (Second Defendant)

Representation:

Counsel:
R D Turnbull (Applicant)
K Fitzgerald (Second Defendant)

Solicitors:
Crown Solicitor’s Office (Applicant)
First Defendant (self-represented)
Rafton Family Lawyers (Second Defendant)

File Number(s):

2023/156577

Publication restriction:

This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

1. These proceedings concern the adoption of two children, who I will call “Thomas” (not his real name), aged 6 years, and “Georgia” (not her real name), aged 5 years.

2. By Amended Summons filed 25 July 2024, the Secretary of the New South Wales Department of Communities and Justice by his delegate the Principal Officer, Adoptions, for Barnardos Australia, sought the following orders:

1. That pursuant to Status of Children Act 1996 (NSW), s 21(2), “Tim” (not his real name) is the father of Georgia.

2. That pursuant to Births, Deaths and Marriages Registration Act 1995 (NSW), s 19(2), orders be made for the inclusion of Tim as the father of Georgia in the Register of Births, Deaths and Marriages.

3. That pursuant to Adoption Act 2000 (NSW), s 67(1)(d), the requirement for the consents of the birth mother, who I will call “Belinda” (not her real name), and the birth father, Tim, be dispensed with.

4. Orders pursuant to Adoption Act 2000 (NSW), s 23, for the adoption of Thomas and Georgia in favour of the adoption parents, who I will call “Laura” (not her real name) and “Craig” (not his real name).

5. That pursuant to Adoption Act 2000 (NSW), s 101(1), the Court approves new surnames for Thomas and Georgia;

6. That pursuant to Adoption Act 2000 (NSW), ss 50(1) and 50(3), the Amended Maternal Adoption Plan and Amended Paternal Adoption Plan be registered.

7. That pursuant to Adoption Act 2000 (NSW), leave be granted to provide copies of the Amended Maternal Adoption Plan to Belinda, the maternal grandfather, and the maternal aunt, and copies of the Amended Paternal Adoption Plan to Tim and the paternal grandmother.

3. Thomas and Georgia’s mother, Belinda, filed a Notice of Appearance and was joined as the second defendant in these proceedings on 5 July 2023.

4. Thomas and Georgia’s father, Tim, is registered on Thomas’s birth certificate but is not registered on Georgia’s birth certificate. He is the first defendant in these proceedings. He is currently serving a term of imprisonment and participated in these proceedings via AVL

5. On 30 July 2024, I made the adoption orders sought and indicated that I would give reasons later. These are my reasons.

6. The circumstances I describe below reflect the commitment that everyone involved in these proceedings has shown to promoting the best interests of these children.

The circumstances

7. Thomas and Georgia were removed from the care of Belinda and Tim in July 2020 and placed into a Barnardos Temporary Foster Care (“TFC”) arrangement. Thomas was then 2 years of age and Georgia was one year of age.

8. From November 2020, Laura and Craig provided weekend respite care to Thomas and Georgia to support their TFC carer at that time.

9. In September 2021, the Children’s Court at Port Kembla made orders allocating parental responsibility for the children to the Minister for Families and Communities until they each reached 18 years of age pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”). The children were identified as requiring a long-term placement together that could provide them with a stable and secure environment, with dually authorised carers who had a sound understanding of the impact of trauma on child development and were committed to facilitating birth family visits. Laura and Craig were selected as appropriate carers due to their established and familiar relationship with the children as weekend respite carers.

10. Following the formal matching process, Thomas and Georgia came into Laura and Craig’s care in November 2021. Thomas was then 3 years of age, and Georgia was 2 years of age. They have lived with Laura and Craig continuously since that time.

11. In May 2023, the Secretary commenced proceedings in this Court seeking adoption orders for the children in favour of Laura and Craig.

12. In September 2023, Belinda filed in the Children’s Court an application pursuant to s 90 of the Care Act seeking rescission of the final orders made in September 2021 and allocation of parental responsibility for the children to her, to the exclusion of Tim. The Secretary opposed Belinda’s application.

13. In October 2023, Belinda, Laura, Craig, and the Department of Communities and Justice and Barnardos casework teams participated in a mediation facilitated by Legal Aid NSW.

14. In November 2023, the parties attended a preliminary hearing before me. Belinda appeared via telephone link, and Tim appeared via AVL from South Coast Correctional Centre. At that occasion, Belinda, Tim, Laura, and Craig were each given an opportunity to speak to me and to each other about what they believed to be the best course forward for Thomas and Georgia.

15. In February 2024, Belinda withdrew her s 90 application in the Children’s Court. At the next directions hearing in this Court, Belinda indicated, with the assistance of the Legal Aid NSW duty solicitor, that she required further time to consider her position in respect of these adoption proceedings.

16. In March 2024, a solicitor from Legal Aid NSW assisting Belinda informed the Crown Solicitor’s Office that Belinda would oppose the adoption order being made on the basis that the contact proposed in the Amended Maternal Adoption Plan is inadequate and did not in her view promote the children’s best interests.

17. Thomas and Georgia have one maternal half-sibling, Ava (not her real name), and three paternal half-siblings. Ava remains in Belinda’s care. The paternal half-siblings reside with their mother.

Georgia’s parentage

18. I will deal first with Georgia’s parentage.

19. The Secretary seeks an order that Tim be declared as Georgia’s father. As I have said above, Georgia’s birth certificate does not name her father.

20. The Secretary is a nominated person authorised to bring an application for a declaration of parentage. ^[1] On any such application, the Court may make a declaration that a named or identified person is a child’s parent. ^[2]

    1. Status of Children Act, s 21(1)(d); see Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142 at [11] (Sackar J).

    2. Status of Children Act, s 21(2).

21. The Secretary relied on s 10 of the Status of Children Act to give rise to a rebuttable presumption of parentage, relevantly that a child born to a woman is presumed to be a man’s child if, at any time during the period not earlier than 44 weeks and ending not less than 20 weeks before the birth, the man and the woman cohabit but are not married. The evidence points to the likelihood that the Belinda and Tim were cohabiting in the relevant period.

22. I was satisfied that Georgia’s paternity is proven on the balance of probabilities on the evidence before me.

23. First, Tim considers himself to be Georgia’s father, and has consistently identified himself as Georgia’s father during dealings with the Department of Communities and Justice and Barnardos. Indeed, at the preliminary hearing before me in November 2023, Tim stated in reference to Georgia, “Yeah, she’s my daughter, 100%, like there’s no doubt about it”.

24. Second, Belinda has consistently identified Tim as Georgia’s father, including in her Affidavit filed 18 July 2024.

25. Third, DNA testing results have indicated that a full sibling relationship between Thomas and Georgia is “practically proven”.

26. I was also satisfied that it is in Georgia’s best interests that a declaration of parentage be made that Tim is her father. The inclusion of Tim’s name on her birth certificate will support her ongoing relationship with her birth father and support her understanding of her identity as she grows up. It will also enable Georgia to access information about Tim in due course, if she so wishes, pursuant to the information provisions contained in the Adoption Act. ^[3]

    3. Adoption of BS (No 3) [2013] NSWSC 2033 at [100] (Brereton J, as the Commissioner then was); Adoption Act, Pt 8.

27. Thus, I made the declaration pursuant to s 21(2) of the Status of Children Act that Tim is the father of Georgia. In accordance with my finding, I made an order pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act that the Registrar of Births, Deaths and Marriages include Tim as the father of Georgia in the Register of Births, Deaths and Marriages.

Orders for adoption

28. I will now deal with the orders sought by the Secretary in relation to the adoption of Thomas and Georgia.

The formal requirements for adoption

29. I was satisfied that the formal requirements of the Adoption Act have been satisfied, namely:

1. the children were present in New South Wales when the proceedings were commenced; ^[4]

2. Laura and Craig were resident and domiciled in New South Wales when the proceedings were commenced; ^[5]

3. Laura and Craig are of good repute and are fit and proper persons to fulfill the responsibility of parents; ^[6]

4. Laura and Craig have been selected in accordance with the Adoption Act; ^[7]

5. Laura and Craig satisfy the age and length of relationship requirements. ^[8]

   4. Adoption Act, s 23(2)(a).

   5. Adoption Act, s 28(1)(a).

   6. Adoption Act, s 28(1)(b).

   7. Adoption Act, s 90(1)(c).

   8. Adoption Act, ss 28(3)-(4).

Whether adoption is in the best interests of the child

30. Adoption is to be regarded as a service for the children,^[9] and not as a right of the adults with whom they are placed. ^[10]

    9. Adoption Act, s 8(1)(b).

    10. Adoption Act, s 8(1)(c).

31. The paramount consideration in an application for adoption is the best interests of the child or, in this case, the children the subject of the application. I am not able make an adoption order unless satisfied that the best interests of Thomas and Georgia would be promoted by the adoption and that, as far as practicable and having regard to her age and understanding, Thomas and Georgia’s wishes and feelings had been ascertained and due consideration given to them. ^[11] I must have regard to the best interests of Thomas and Georgia, both in childhood and later life. ^[12]

    11. Adoption Act, ss 8(1)(a), 90(1)(a).

    12. Adoption Act, s 8(1)(a).

32. When considering Thomas and Georgia’s best interests, I had regard to the matters set forth in s 8(2) of the Adoption Act, relevantly:

1. Thomas and Georgia’s respective ages, maturity, levels of understanding, gender, background and family relationships and any other characteristics of the children that I consider relevant; ^[13]

   13. Adoption Act, s 8(2)(a).

2. Thomas and Georgia’s physical, emotional and educational needs, including their sense of personal, family and cultural identity; ^[14]

3. Laura and Craig’s attitudes to the children and to the responsibilities of parenthood; ^[15]

4. the nature of the relationship that Thomas and Georgia have with each of Laura and Craig; ^[16]

5. the suitability and capacity of each of Laura and Craig to provide for Thomas and Georgia’s needs, including their emotional and intellectual needs; ^[17] and

6. the need to protect Thomas and Georgia 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. ^[18]

   14. Adoption Act, s 8(2)(c).

   15. Adoption Act, s 8(2)(g).

   16. Adoption Act, s 8(2)(h).

   17. Adoption Act, s 8(2)(i).

   18. Adoption Act, s 8(2)(j).

33. I was comfortably satisfied that an order for adoption would be in Thomas and Georgia’s best interests.

34. I have been greatly assisted in hearing the voices of Thomas and Georgia, that is their wishes and feelings about the adoption, through the court reports prepared pursuant to s 91 of the Adoption Act by Ms Gibbs filed 24 March 2023, and by Ms Robinson filed 22 May 2024.

35. Thomas and Georgia are too young to provide their consent to their adoption. Nevertheless, I was satisfied that the children have an age-appropriate understanding of adoption. It is clear that the children have developed a strong and warm connection with Laura and Craig. They call Laura and Craig “Mum” and “Dad”. Georgia often shares with her educators and peers, “I grew in my mummy’s heart”, showing her deep bond with Laura and Craig and her age-appropriate understanding of what adoption would mean for their relationship. Thomas is known by Laura and Craig’s surname at school at his own request, showing his sense of belonging within the adoptive family and his age-appropriate understanding of adoption. Georgia also calls herself by Laura and Craig’s surname. Laura and Craig are supporting the children to understand their birth family history, and will help them to understand what open adoption means through life story work as they grow older.

36. Laura and Craig have demonstrated a high capacity to provide for Thomas’s and Georgia’s physical, emotional and educational needs. Laura and Craig provide the children with a loving home environment. They have taken extensive steps to support Thomas with his diagnosis of complex trauma and symptoms of Post Traumatic Stress Disorder, and Georgia with her diagnosis of speech articulation disorder and experiences of complex trauma and sleep disturbances. They have worked alongside Thomas’s and Georgia’s educators to arrange additional support for the children at school and preschool respectively. They are both fierce advocates for Thomas and Georgia and are very attuned to their individual needs.

37. Laura and Craig have demonstrated their positive attitude to the responsibilities of parenthood, and their loving commitment to the children. At the preliminary hearing, Laura and Craig told me the following:

“[Laura]: … [Thomas] and [Georgia] are doing really well in our care. They’re very happy. We love them endlessly. They’re a part of our extended family now. They’re in a great routine. They’re well supported… I’ll give a bit of an update. [Thomas is] at school and he feels like he belongs there. He’s really well known and valued. Some days are challenging for him in terms of his regulation and behavioural, but we know him really, really well and we’re putting in those supports for him so he can thrive. He’s a very clever little boy. Academically, he’s … at or beyond his outcome level.

And [Georgia] - she’s the funniest little thing. She loves unicorns and rainbows and dancing and singing. She’s a very creative little girl who enjoys spending time with me one-on-one. We do that twice a week. And yeah, she’s got some great friends at preschool. [Thomas] just started cricket. They both enjoy swimming and our family holidays. Did you want to add anything, [Craig]? I could talk about them endlessly.

[Craig]: Yeah. From our point of view, we can see … improvements in the kids.

[Laura]: Yep.

[Craig]: And for their outcomes … our thoughts are that … the best thing for the kids would be to continue the way they’re going.”

38. It is clear that the children are thriving in the care of Laura and Craig, despite the challenges they face.

39. As for the relationships between Laura, Craig, Thomas, and Georgia, it is clear that the children share a strong connection with Laura and Craig. They enjoy doing family activities and travelling on family holidays together. Thomas and Georgia are comfortable enough to share their worries and fears with Laura and Craig because of the loving and safe environment that Laura and Craig provide for them.

40. I have no doubt as to the suitability and capacity of Laura and Craig to parent Thomas and Georgia. Ms Robinson notes in her court report that Laura and Craig’s “capacity to give love to [the children] is evident in how they respond to Thomas and Georgia, especially in challenging situations”.

41. The children were removed from the birth parents’ care in response to a number of Risk of Significant Harm reports, known as ROSH reports. These related to concerns for the birth parents’ ongoing and persistent drug use, mental health concerns, exposure to family and domestic violence, physical abuse, and neglect. Both children have made disclosures of being harmed, and being present while a third person was harmed, while in their birth parents’ care. Both children have histories of complex, early trauma in their birth parents’ care. It is clear that the children have made significant gains in the care of Laura and Craig.

The parents

42. When considering Thomas and Georgia’s best interests, I also had regard to the relationship that Belinda and Tim have with Thomas and Georgia and any wishes they, as the children’s birth parents, have expressed about the adoption. ^[19]

    19. Adoption Act, ss 8(2)(e)-(f).

43. Thomas and Georgia have a good understanding of their relationship to their birth family. Thomas and Georgia call Belinda and Tim “Mummy Belinda” and “Daddy Tim”. However, it is a difficult relationship associated with complex trauma for the children.

44. Both children experience significant emotional dysregulation before and after family visits with Belinda. As a result of concerns for the children’s behaviour, face-to-face family visits with Belinda were placed on hold from December 2022 to December 2023.

45. The children have not had contact with Tim since November 2020 due, in part, to his incarceration.

46. Laura and Craig are committed to maintaining relationships with Belinda, Tim, and the wider maternal and paternal families. Through ongoing life story work, they are supporting Thomas and Georgia to develop an understanding of their connections with their birth family. They have worked closely with Barnardos and the children’s therapeutic supports to support the children to positively engage in family visits. This allowed face-to-face family visits with Belinda to resume in December 2023.

47. Both Belinda and Tim opposed the adoption.

48. At the preliminary hearing before me on 22 November 2023, I was able to hear directly from Belinda and Tim about their wishes for the children.

49. When asked about her position, Belinda told me:

“[Belinda]: … I’m glad that [Thomas] and [Georgia] are feeling safe and starting to feel like they have a sense of belonging. And I’m happy that they seem to be thriving and I’m thankful for that. I – in saying that, I don’t want them to be adopted.”

50. When asked about his position, Tim told me:

“[Tim]: … Obviously, I don’t want to see them get adopted … I’ve got a lot of regrets and everything but … I want them to see their mother … I just want to start seeing them and that. Like, I’m in gaol at the moment … but, like, I just want to start seeing them. I just want the best for them, you know.

… I would like to see them with their mum and that. Like, I know she’s doing good and, like, me and her had a toxic relationship, you know. But, like, me and her are not together no more. And like that - that - the arguing and the fighting is not there no more … So there’s not going to be, like, that problem what that was before, you know. Like, I’m out of the picture and that. Like, I’ll - I’ll be happy to see them, you know, every now and again and that. I just want … her just to be able to have them and … them to be back with their mum.”

51. I am grateful to both Belinda and Tim for the dignity with which they expressed their feelings at the preliminary hearing.

52. At the time of the final hearing, Belinda opposed the adoption order being made on the basis that the contact provided in the proposed Amended Maternal Adoption Plan was in her view inadequate and did not promote the children’s best interests. Belinda expressed her feelings on this issue in her Affidavit filed 18 July 2024. I will return to this below.

Whether adoption is clearly preferable in the best interests of the child

53. When considering Thomas and Georgia’s best interests, I also had to be satisfied that the making of an order for adoption is “clearly preferable” in the best interests of Thomas and Georgia than any other action that could be taken by law in relation to their care. ^[20] The making of an adoption order must be obviously, plainly or manifestly preferable to any other action that could be taken by law. ^[21]

    20. Adoption Act, s 90(3).

    21. Adoption of RCC and RZA [2015] NSWSC 813 at [14] (Brereton J, as the Commissioner then was).

54. I was not satisfied that restoration of the children to either Belinda or Tim is a realistic prospect, nor in the best interests of Thomas and Georgia. ^[22]

    22. I must consider restoration as an alternative to adoption: see Adoption of Taylor-Clay [2019] NSWSC 27 at [66] (Brereton J, as the Commissioner then was); Adoption of RCC and RZA (supra) at [69]‑[72] (Brereton J, as the Commissioner then was).

55. If I were to make no order and maintain the status quo, Thomas and Georgia would remain in the care of Laura and Craig, but parental responsibility would remain with the Minister. In those circumstances, Laura and Craig would be unable to make significant decisions regarding the children without approval of the Minister’s delegate, Barnardos.

56. If I were to make orders for parental responsibility for Thomas and Georgia to Laura and Craig, that would alleviate some of the disadvantages of taking no step, but these would be temporary orders that would expire when Thomas and Georgia attain 18 years of age.

57. I was satisfied that the making of adoption orders is clearly preferable in the best interests of the children. Adoption will provide Thomas and Georgia with certainty, stability, and security. It will enable Thomas and Georgia to achieve a sense of belonging in the adoptive family, to a degree that no other lawful action could achieve. Indeed, adoption will bring their legal status into conformity with reality, and perfect their sense of permanent belonging in the family with which they identify as their own. ^[23]

    23. Adoption of Taylor-Clay (supra) at [58] (Brereton J, as the Commissioner then was).

58. In reaching this conclusion, I have considered Hallen J’s remarks in Re the Adoption of AJH:^[24]

“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, per Palmer J, at [35].”

24. [2017] NSWSC 1751 at [297].

Consent to the adoption

59. Before making an adoption order, I must deal with the consent requirements under the Adoption Act. As the children’s birth parents, Belinda and Tim’s consent would be required to the proposed adoption of Thomas and Georgia unless, relevantly, consent was dispensed with. ^[25] Belinda and Tim did not consent to the adoption. Accordingly, the Secretary sought an order pursuant to s 67(1)(d) of the Adoption Act to dispense with their consent.

    25. Adoption Act, ss 52, 54.

60. I may not make a consent dispense order unless satisfied that, relevantly, Thomas and Georgia have established a stable relationship with Laura and Craig, and that the adoption by Laura and Craig will promote Thomas and Georgia’s welfare. ^[26] I must also be satisfied that to do so will be in the best interests of Thomas and Georgia. ^[27]

    26. Adoption Act, ss 67(1)(d)(i)-(ii).

    27. Adoption Act, s 67(2).

61. Dispensing with the consent of parents to the adoption of their child by proposed adoptive parents is a grave step, not lightly to be taken. ^[28]

    28. See, for example, Adoption of RCC and RZA (supra) at [17] (Brereton J, as the Commissioner then was).

62. Nonetheless, I was comfortably satisfied that I should dispense with the requirement for Belinda and Tim’s consent. It is clear that Thomas and Georgia have established a strong and secure attachment to Laura and Craig. Their relationship with Laura and Craig is loving and supportive, and I have no doubt the adoption will promote Thomas and Georgia’s welfare. The making of a consent dispense order is in the best interests of Thomas and Georgia.

The Adoption Plans

63. The primary issue in dispute in these proceedings was the proposed contact to take place post-adoption between Thomas and Georgia and their birth family.

64. The Secretary prepared adoption plans pursuant to s 46 of the Adoption Act that included provisions for the means and nature of contact between the children and their birth family. Despite Belinda and Tim not consenting to the adoption of Thomas and Georgia, the Secretary has given them, as far as possible, the opportunity to participate in the development of, and agree to, the Adoption Plans. ^[29]

    29. Adoption Act, s 46(2).

65. The question before me is whether those proposed Adoption Plans are in the children’s best interests and proper in the circumstances, and, if so, whether those Adoption Plans should be approved and registered.

66. I have been greatly assisted by the expert reports of Dr Jodie Park, Thomas’s treating expert, dated 26 April 2024 and 19 May 2024, in considering what is in the best interests of the children for contact post-adoption.

Amended Maternal Adoption Plan

67. There is an Amended Maternal Adoption Plan which relates to the children, Belinda, Ava, and the maternal family. At the recommendation of Dr Park, the Plan provides a three-stage contact arrangement for post-adoption visits with Belinda, which Ava will attend jointly:

1. In Stage 1, for at least the first 12 months after an adoption order is made, there will be structured planned face-to-face contact twice per year, and video/phone contact twice per year, for one hour minimum duration. The criteria to progress to Stage 2 is a “reduction in emotional dysregulation after contact”.

2. In Stage 2, for at least 12 months after completing Stage 1, there will be structured planned face-to-face contact four times per year for one hour minimum duration. The criteria to progress to Stage 3 is:

1. A “reduction in emotional dysregulation … before, during and after contact”;

2. “The children are positive about attending contact”; and

3. “After contact visits, the children are easily able to transition to their daily routine.”

3. In Stage 3, being the long-term plan for contact until the children attain 18 years of age, there will be face-to-face contact at a venue to be agreed upon by the parties four times per year for two hours minimum duration.

68. “Emotional dysregulation” is defined in the Amended Maternal Adoption Plan as meaning:

“(a) changes in behaviour or emergence of previous behaviours or verbal expressions that have been linked to the children feeling anxious in the past. Changes in behaviour can include the children physically and emotionally withdrawing from adults during and after contact or demonstrating an increase in external anger or fear-based behaviours during or after contact;

(b) an increase in negative statements about [Belinda] such as words like ‘unsafe’ or ‘bad’;

(c) ongoing dysregulated behaviours after contact where the children are difficult to calm and do not respond to usual parenting strategies;

(d) ongoing dysregulated behaviours that remain in place for days/weeks.”

69. The Amended Maternal Adoption Plan also provides for future contact with the maternal grandfather and maternal aunt.

70. As I have said above, Thomas and Georgia face immense challenges in relation to attending and participating in family visits with Belinda. At the preliminary hearing, Laura told me:

“[Laura]: Family time can be really challenging for the kids. We tell them on the way in the car where they’re going because we wouldn’t be able to get them - it’d a struggle to get them in the car. … And then during contact, they do hold it together but show signs that they are struggling. But it’s the after that it’s serious regression. [Thomas] self-harms. [Georgia] has ten to 12 nightmares every night. It’s - it’s really hard for them.”

71. At the time of the preliminary hearing in November 2023, family visits had been paused for some 11 months because of these challenges. It was hoped that the pause would allow the children time to access therapeutic supports and develop coping strategies for family visits.

72. At the final hearing, Laura gave evidence about the three family visits between the children and Belinda that have taken place since the preliminary hearing: a face-to-face visit in December 2023, a face-to-face visit at or around Easter in 2024, and a video call in June 2024. Laura gave evidence that the children displayed dysregulated, reactive behaviours in anticipation of the December 2023 and Easter 2024 visits. In advance of the Easter 2024 visit, Georgia had her “most extreme reaction” and displayed out-of-character behaviour at preschool. Both children made disclosures about their time in the care of their birth parents. While both children managed to use the coping strategies they had developed to participate meaningfully during contact, the children’s daily lives were significantly impacted for some weeks after the family visits.

73. Laura observed that the children displayed “less extreme” reactions prior to and after the June 2024 video call. Laura said that Thomas told her that FaceTime contact with Belinda was “much easier”, and Georgia agreed with him.

74. I was grateful to Laura for the dignity with which she expressed herself when giving this evidence.

75. I have had regard to Belinda’s wishes about the proposed levels of contact with Thomas and Georgia. At the preliminary hearing in November 2023, Belinda expressed her position on the levels of contact occurring at that time:

“[Belinda]: … So I’m doing everything I possibly can to better myself so that I can build a better relationship between myself and [Thomas] and [Georgia] because I just want - I understand that [Thomas] and [Georgia] and myself - we all have shared trauma. And they place me with that trauma. And I understand that. But … I just want to get to a place where that we can all be happy and content to see each other because all I want is to have the best relationship possible with my children if I can’t get them back in my care full-time.

Yeah, I just don’t think that we have any agreements about visitations. So I haven’t seen the kids since December last year face-to-face. I think that that’s the reason that the kids are reacting to the visits so badly is because last year I was seeing them once a month … the first weekend of every month. And then this year, I didn’t - I have not seen them one time. So I think that it’s just contributing because it just got ripped away from under their feet out of nowhere - the visitations.”

76. Belinda also expressed her position in relation to the Amended Maternal Adoption Plan in her Affidavit affirmed 18 July 2024:

“I believe that the limited contact that has recently been occurring is contributing to the children’s anxiety around contact. If contact were to occur on a more regular basis for short periods of time I believe that the children’s experience of contact would be positive.

…

I do not want to force the children to have contact and will always be guided by what is in their best interests, and would like the adoptive parents and Barnardos to support more frequent contact that would provide the children with opportunities to build their trust and confidence around contact.

This proposed contact does not consider the need for the children to have a meaningful relationship with [Ava].”

77. At the final hearing before me on 30 July 2024, I had this exchange with Laura:

“HIS HONOUR

Q. Mr Fitzgerald [who appeared for Belinda] didn't ask, but I'd like to know. Do you have anything you'd like to say about how [Belinda] has managed the face to face, and then the [FaceTime] encounters?

A. Great. She's taken on all.

Q. She is trying hard?

A. Yep, taken on all the strategies that have been asked. And from our perspective, we're so grateful because the kids are able to, you know, try these strategies and everybody is working together.

Q. Doing the best she can?

A. Yes. Like I said, at the end of the last face to face visit, we just want it to be positive for everyone. We just want this to be, everybody to come together and have a positive time together and leave and not have, you know, hardships after. Like, we want it to be positive for everyone involved.”

78. I am grateful to Laura for her generosity in giving this evidence about Belinda. I have no doubt that Belinda is doing her best positively to engage with the children at family visits. Nevertheless, my focus must be on whether the contact arrangements in the Amended Maternal Adoption Plan are in the children’s best interests and proper in the circumstances.

79. I have had regard to the children’s emotional needs,^[30] the children’s relationship with Belinda,^[31] and the need to protect the children from the physical and psychological harm that has been caused to them. ^[32] It is clear that family visits play a part in reactivating the children’s histories of trauma. Thomas’s and Georgia’s relationship with Belinda is significantly affected by the harm they experienced whilst in her care, and the children require time to overcome their fear and regain trust with Belinda.

    30. Adoption Act, s 8(2)(c).

    31. Adoption Act, s 8(2)(f).

    32. Adoption Act, s 8(2)(j).

80. I was satisfied that Dr Park’s recommended three-stage approach to family visits with Belinda and Ava is in the children’s best interests and is proper in the circumstances. The approach is responsive to the needs of the children, and allows visits to be increased gradually and when the children are ready.

81. Laura and Craig have diligently worked to support family visits between the children and Belinda, and I have no doubt they will continue working closely with the children to help them develop and use coping strategies to positively engage in family visits with Belinda in accordance with the stages of the Amended Maternal Adoption Plan. I was not prepared to impose any further family visit requirements on Thomas and Georgia at this time.

82. If an adoption plan is registered, it has the effect, on the making of an adoption order, as if the adoption plan were part of the order. ^[33] A party to an adoption plan, that is someone who has signed it, can, once it is registered, seek to enforce it as an order of the Court. A party to an adoption plan can also apply the Court for a review of an adoption plan. ^[34] The Court may make such changes, if any, to the provisions of the adoption plan as it considers proper in the circumstances and in the best interests of the child. ^[35]

    33. Adoption Act, s 50(4).

    34. Adoption Act, s 51(1).

    35. Adoption Act, ss 51(3)-(4).

83. During a short adjournment at the final hearing, following Laura’s evidence, Belinda signed the Amended Maternal Adoption Plan. Even though Belinda aspires to increased contact with Thomas and Georgia than what is provided in the Amended Maternal Adoption Plan, I hope she may take comfort that she is a party to the plan, and can apply to the Court at any time for a review of the plan. The Amended Maternal Adoption Plan also allows the parties to approach a Family Dispute Resolution Practitioner to seek a mediation to resolve any difficulties in relation to the implementation or review of the plan.

Amended Paternal Adoption Plan

84. There is an Amended Paternal Adoption Plan which relates to the children, Tim, and the paternal family. At the recommendation of Dr Park, the Plan provides a four-stage contact arrangement for post-adoption visits with Tim:

1. In Stage 1, for at least the first 12 months after an adoption order is made, Tim is to provide photographs, cards and letters to in effect “re-introduce himself” to the children. The criteria to progress to Stage 2 is that Tim provides the information, and Tim is not incarcerated. ^[36]

   36. Tim informed me at the final hearing that he may be released from prison in or about October 2024.

2. In Stage 2, for at least 12 months after completing Stage 1, there will be video/phone contact twice per year for 30 minutes minimum duration. The criteria to progress to Stage 3 is:

1. completion of Stage 2;

2. “Limited emotional dysregulation”;

3. “The children are positive about attending contact”;

4. “After contact visits, the children are easily able to transition to their daily routine.”

3. In Stage 3, for at least 12 months after completing Stage 2, there will be structured planned face-to-face contact once per year, and video/phone contact once per year, for one hour minimum duration. The criteria to progress to Stage 4 is:

1. “Limited emotional dysregulation … demonstrated by the children before, during and after contact”;

2. “The children are positive about attending contact”;

3. “After contact visits, the children are easily able to transition to their daily routine.”

4. In Stage 4, being the long-term plan for contact until the children attain 18 years of age, there will be face-to-face contact two times per year for one hour minimum duration.

85. “Emotional dysregulation” is given the same definition in the Amended Paternal Adoption Plan as in the Amended Maternal Adoption Plan, with the exception that it inserts Tim’s name in the place of Belinda’s name.

86. The Amended Paternal Adoption Plan also provides for future contact with the paternal half-siblings and the paternal grandmother.

87. As I have said above, Thomas and Georgia have not had contact with Tim since November 2020. The Secretary submitted that the staged approach provided in the Amended Paternal Adoption Plan is necessary to re-establish contact between the children and Tim overtime. Stages 1 and 2 may occur concurrently in the first 12 months after an adoption order is made, provided the criteria to progress to Stage 2 is satisfied.

88. At the final hearing, I had this exchange with Tim:

“HIS HONOUR

Q. The second stage during the first 12 months, when I make the order you will have video contact with the children but it would lead in due course, perhaps over some years, to face to face and, ultimately, actually seeing them. That looks to me as if it is a very sensible and gradual, no doubt from your point of view, slow, but simple way of re establishing the kids' relationship with you.

A. Yes.

Q. How do you feel about that?

A. Well, it is a long time, you know, but I know what I have got to do, but over a few years, that is a long time.”

89. Having regard to the children’s emotional needs,^[37] the children’s relationship with Tim,^[38] and the need to protect the children from the physical and psychological harm that has been caused to them,^[39] I was satisfied that the Amended Paternal Adoption Plan is in the children’s best interests and is proper in the circumstances. It will enable the children to re-establish a safe and positive relationship with Tim.

    37. Adoption Act, s 8(2)(c).

    38. Adoption Act, s 8(2)(f).

    39. Adoption Act, s 8(2)(j).

90. Tim did not sign the Amended Paternal Adoption Plan, and so is not a party to it. He cannot apply for review of the plan in this Court. However, I note that the Amended Paternal Adoption Plan does allow Tim to approach a Family Dispute Resolution Practitioner to seek a mediation to resolve any difficulties in relation to the implementation or review of the plan.

Proposed name change

91. It was proposed that, on the making of the adoption orders, the children would take Laura and Craig’s surname, and retain their given names.

92. Before changing the names of the child, I must consider any wishes expressed by the child and any factors relevant to the weight that should be given to those wishes. ^[40]

    40. Adoption Act, s 101(2).

93. The children have expressed a clear wish to change their names to take Laura and Craig’s surname. As I have said above, Thomas has already chosen to be called by that surname at school, and Georgia calls herself by that surname.

94. I was satisfied that the proposed name changes are in the children’s best interests. The proposed surname will reflect Thomas and Georgia’s membership of the adoptive family, and enhance their sense of belonging and stability. The children will continue to have their birth middle names, which will preserve their ongoing connection to their birth family.

Conclusion

95. Adoption serves the identity needs of the child in question, in circumstances where they are emotionally, psychologically and as a matter of fact already members of the proposed adoptive family, 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, not only during childhood but for life. ^[41]

    41. Adoption of Taylor-Clay (supra) at [58] (Brereton J, as the Commissioner then was).

96. I had no doubt that it was in the best interests of these children to make the adoption orders sought.

97. Integrated Birth Certificates will be created for Thomas and Georgia which will include details of Belinda and Tim. Those certificates will form an important part of the children’s life story.

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Endnotes

Amendments

15 August 2024 - Name anonymised at [46].

Decision last updated: 15 August 2024