The Adoption of X and Y (anonymised)

[2020] NSWSC 918

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Adoption of X and Y (anonymised) [2020] NSWSC 918

Hearing dates:

14 and 15 July 2020, further written submissions and materials received on 16 July and 22 July 2020

Date of orders:

31 July 2020

Decision date:

31 July 2020

Jurisdiction:

Equity - Adoptions List

Before:

Williams J

Decision:

Consent of the birth parents dispensed with. Adoption orders to be made in favour of the proposed adoptive parents in respect of both X and Y.

Catchwords:

FAMILY LAW – children – adoption – whether adoption clearly preferable and in the best interests of the child – whether consent of birth parents ought to be dispensed with – whether adoption plan in the child’s best interests and proper in the circumstances — change of name

Legislation Cited:

Aboriginal Land Rights Act 1983 (NSW), s 4

Adoption Act 2000 (NSW), ss 4, 8, 22, 23, 24, 26, 28, 35, 52, 54, 58, 59, 61, 62, 67, 68, 70, 72, 73, 88, 90, 91, 101, 126, 206

Adoption Regulation 2015 (NSW), reg 44, 45, 80 and 81

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 78, 79, 90, 137 and 139

Children’s Guardian Act 2019 (NSW), Sch 4

Cases Cited:

Adoption of BL [2018] NSWSC 391

Adoption of J K (anonymised) [2020] NSWSC 789

Adoption of RCC and RZA [2015] NSWSC 813

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

OA v Secretary, Department of Communities and Justice [2019] NSWCA 322

Category:

Principal judgment

Parties:

Barnardos Australia (Plaintiff)
Birth mother (First Defendant)
Birth father (Second Defendant)

Representation:

Counsel:
C McGorey (Plaintiff)

Solicitors:
NSW Crown Solicitor’s Office (Plaintiff)

File Number(s):

2019/113094

Publication restriction:

Parties’ names and other details which may reveal the identities of the parties to the proceeding anonymised to be consistent with Adoption Act 2000 (NSW), s 119.

Judgment

INTRODUCTION

1. This proceeding concerns the proposed adoption of two brothers, the eldest of whom is currently six years old (turning seven in November) and the youngest of whom is currently five years old (turning six in December). In these reasons, the eldest brother is referred to by the pseudonym “X” and the youngest brother is referred to by the pseudonym “Y”.

2. X and Y were removed from the care of their birth parents in June 2015, when they were aged approximately 18 months and six months.

3. On 25 October 2016, the Children’s Court of New South Wales made orders granting parental responsibility for X and Y to the Minister for Families, Communities and Disability Services until X and Y reach the age of 18 years.

4. On 18 November 2016, the Minister delegated parental responsibility for the children to Barnados Australia. Barnados Australia is a designated agency for the purpose of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the CYP Act) and the Children’s Guardian Act 2019 (NSW) (the CG Act). [1]

   1. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 5. Pursuant to the transitional provisions in Part 2 of Schedule 4 to the CG Act, the designated agency status under the CYP Act means that Barnardos is taken to have been accredited as a designated agency under the CG Act.

5. The children have been in the care of the proposed adoptive parents since 22 November 2016 – that is, since X was three years old and since Y was almost two years old.

6. The proposed adoptive parents are authorised carers under the CYP Act and the CG Act. [2]

   2. CYP Act, s 137; the CG Act defines “authorised carer” as having the same meaning as in the CYP Act; affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 24.

7. By Summons filed on 11 April 2019, the Principal Officer of Barnardos Australia (as the delegate of the Secretary, New South Wales Department of Family and Community Services – now the Department of Communities and Justice – pursuant to an order made by the Secretary under s 206 of the Adoption Act 2000 (NSW) (the Act)) [3] applied for:

   3. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraphs 2 and 214; affidavit of Deborah Willick affirmed on 9 October 2019, paragraph 2.

1. an order for the adoption of X in favour of the proposed adoptive parents;

2. an order approving the surname of the proposed adoptive parents as the surname of X and approving as the given names of X the same given names he has had since birth;

3. an order for the adoption of Y in favour of the proposed adoptive parents;

4. an order approving the surname of the proposed adoptive parents as the surname of Y and approving as the given names of Y the same given names he has had since birth; and

5. orders under s 67(1)(d) of the Act dispensing with the consent of the birth mother and birth father of X and Y to the proposed adoptions.

8. On 28 April 2019, each of the birth parents was served personally with a Notice of Application for Adoption Orders, Notice of Application for Consent Dispense Orders, the Adoption Plan and certain Legal Aid materials relating to adoption hearings. [4]

   4. Affidavit of John Rae sworn 29 April 2019.

9. On 6 May 2019, each of the birth parents filed a notice of appearance in the proceedings stating that they opposed the adoption orders.

10. On 12 June 2019, the Court made orders joining each of the birth parents to the proceedings as defendants, and directions for the service of evidence (including any evidence on which the birth parents wished to rely). Subsequent directions extended time for the service of evidence. Ultimately, the birth father filed and served an affidavit on 26 August 2019 and a further affidavit on 23 October 2019 and the birth mother served an affidavit signed but not witnessed that is dated 5 November 2019.

11. On 20 November 2019, the proceeding was listed for hearing on 14, 15 and 16 July 2020. At that time, the birth mother and birth father were each legally represented in the proceedings.

12. The birth mother’s solicitor filed a notice of ceasing to act in March 2020 and the birth father’s solicitor filed a notice of ceasing to act in June 2020.

13. Until 14 July 2020, the birth father consistently said that he opposed the proposed adoption and intended to make an application to have X and Y restored to his care. [5] However, as at the date of the hearing, he had not taken any steps to make such an application.

    5. CYP Act, s 90. See, for example, sections 8(a) and 8(b) of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018 and the file note and review meeting notes at pages 64, 77, 135 and 148 of Exhibit DW-1 to the affidavit of Deborah Willick affirmed on 9 April 2019; affidavit of the birth father affirmed on 26 August 2019, paragraphs 19–29; affidavit of the birth father filed on 23 October 2019, paragraphs 21 and 23 (I note that this affidavit bears the date 26 August 2019, but refers to events in October 2019 and I infer that it was affirmed at some time in October 2019).

14. Until 14 July 2020, the birth mother had opposed the proposed adoption but considered that the proposed adoptive parents should remain the primary carers of X and Y. In her affidavit dated 5 November 2019, the birth mother said: [6]

“18.   I don’t think that [X] and [Y] should be adopted.

19.   I will always want [X] and [Y] to be returned to my care. I love them so much. That’s why I have always said I would apply for their restoration through the Children’s Court.

20.   I understand that I am not in a position to seek their restoration now that [Z] has been removed from my care.

21.   I know that [the proposed adoptive parents] are going to stay [X]’s ad [Y]’s primary carers. I can see how much [the proposed adoptive parents] love them and how well they look after them.”

6. Affidavit of the birth mother dated 5 November 2019, paragraphs 18–22.

15. On 13 July 2020, my Associate sent an email to the birth parents confirming the time and location for the hearing commencing on 14 July 2020.

16. At the commencement of the hearing on 14 July 2020, there was no appearance for the birth parents. The matter was stood down while the plaintiff’s legal representatives attempted to make contact with the birth parents.

17. At 10.28am on 14 July 2020, the birth father sent an email to my Associate in the following terms: [7]

“Unfortunately, we will not be attending court today as I’m unwell due to this and other circumstances we are not objecting to the adoption being granted for various reason.

…

I apologize for not being present but I am putting myself into isolation for the next 14 days as I have flu like symptoms”

7. Exhibit 1.

18. A copy of that email was provided to the plaintiff’s legal representatives.

19. As the email suggested a significant change in the position of at least the birth father concerning the proposed adoption orders, and it was not clear on the face of the email whether or not the birth mother also shared that change of position, and the birth parents were not legally represented, the Court made arrangements to resume the hearing at 11.30am on 14 July 2020 with the birth parents connected to the hearing by telephone. The birth parents were in the same location and were contacted using the only mobile telephone number that the Court has on file for both birth parents. When the hearing resumed, I confirmed that both the birth mother and the birth father on the telephone call.

20. As the transcript records, I informed the birth parents that I would adjourn the hearing until the afternoon of 15 July 2020 to allow them time to consider their position, to consider whether they wished to participate in the hearing (noting the option of participating by telephone, or applying to adjourn the hearing until the birth father was well enough to attend) and to seek any legal advice they may wish to obtain. I also requested the birth parents to provide some indication to the Court by email by 11am on 15 July 2020 as to how they wished to proceed. I gave them the option, even if they did not wish to participate in the hearing, of placing before the Court in writing any additional information that they may wish the Court to take into account. I also identified the material that had already been filed and that the Court would take into account in determining the proceedings, and the birth parents confirmed that they had received all of that material.

21. During the course of the short hearing on 14 July 2020, I referred to the email received from the birth father that morning which stated that “we are not objecting to the adoption being granted”. The birth father replied:

“That’s right, your Honour. Like we, we still in a way we oppose the adoption because we wanted the children home, but they’ve been with [the proposed adoptive parents] now for three and a half years. They’re settled. They’re doing well. We don’t know if not – like continue to oppose the adoption, not allowing the adoption to go through and then pulling out s 90 and getting them home is in their best interests.”

22. No communication was received from the birth parents by 11am on 15 July 2020. My Associate sent a follow up email to the email address for each of the birth parents at 11.32am on 15 July 2020, reminding the birth parents that the hearing would resume that afternoon and would proceed in their absence if no further communication was received from them. The email reminded the birth parents that it was open to them to participate in the hearing by telephone and that the Court would facilitate this. [8]

    8. Exhibit 1.

23. No further communication was received from the birth parents, and there was no appearance for them when the hearing resumed on the afternoon of 15 July 2020. At my request, Mr McGorey of counsel, who appeared for the plaintiff, arranged for a senior representative of the plaintiff to telephone the birth parents while the matter was stood down for a short time. When the matter resumed, the Court was informed that three attempts to contact the birth parents by telephone had not been successful and that the senior representative of the plaintiff had then sent a text message to the birth parents to which there had been no response. The text message stated: “The judge would like to know if you want an opportunity to connect via phone to the hearing today, can you please let me know immediately?” [9]

    9. Transcript, page 16, lines 15–19.

24. The hearing proceeded, and the following response to the text message was received within a few minutes: [10]

“I sent the email this morning stating that I did not wish to be in the hearing, that I wasn’t opposed to the adoption due to totbue [sic] reasons and what I requested in regards to the visits and the birth certificates and the name change and also the reasons for those requests. …”

10. Transcript, page 16, lines 20–34.

25. The mobile telephone number from which the above text message was received is the same telephone number that the Court telephoned in order to facilitate the birth parents participating in the hearing on 14 July 2020.

26. In those circumstances, the hearing proceeded on 15 July 2020 with no appearance from the birth parents. Given the very mixed emotions revealed by the birth father’s statement to the Court on 14 July 2020, and the lack of formal consent to the adoptions, the hearing proceeded on the basis that the birth parents had not consented to the adoptions.

27. Although the birth parents did not actively oppose the adoption orders, the birth father’s email of 14 July 2020 and text message of 15 July 2020 requested more contact visits with X and Y than the four annual visits provided for in the Adoption Plan. They requested 12 contact visits per year, and that each visit should be longer than two hours.

28. The birth parents also oppose the proposed change of the surname of X and Y and requested that they continue to be named on the boys’ birth certificates as their birth parents. This was also communicated in the birth father’s email of 14 July 2020 and text message of 15 July 2020.

ACKNOWLEDGEMENT

29. Before embarking on detailed consideration of the relevant provisions of the Act, the applicable legal principles and the evidence, it is important to acknowledge the love that the birth parents have for their sons, X and Y. I note that this was also acknowledged in the plaintiff’s written submissions, which also stated that:

“Irrespective of the outcome of these proceedings, nothing will alter the fact that they are the Children’s birth parents and the Children’s best interests are promoted by their ongoing connection with them.”

THE APPLICABLE PRINCIPLES

30. I gratefully adopt the following summary of the applicable principles set out by Sackar J in Adoption of J K (anonymised) [2020] NSWSC 789 at [11]–[15]:

“11. Sections 7 and 8 of the Adoption Act emphasise the requirement that the decision maker have regard to the best interests of the child both in childhood and in later life which must be the paramount consideration. An adoption order is a service to the child and no adult has a right to adopt the child. The Court should also give consideration to the wishes of the child if the child is able to express his or her own views on a matter concerning the adoption. The child is to be given the opportunity freely to express those views and they are to be given due weight in accordance with the developmental capacity of the child and the circumstances of the case (ss 8(1)(d), 8(2)(a), 9, 127-129).

12. In assessing the child’s best interests there are a series of factors to which regard must be had (see s.8(2)). Without intending to be exhaustive, these include the wishes of the child, the wishes of the birth parents, the attitude of the adoptive parents, their suitability, and the nature of the relationship the child has with the parents and the adoptive parents. It is necessary to consider the child's physical and emotional needs and importantly to consider the need to protect the child from physical or psychological harm. In addressing these and the other factors mandated by s.8 consideration is to be given to an adoption order and its likely effect on the child in the short and longer term and the changes in circumstances caused by the adoption so that it is determined against alternative forms of care (s.8(2)(k)).

13.   Before making an order for adoption, the Court must be satisfied of certain matters in s 90. The consent of the parents is not a necessary requirement in the making of an adoption order, and can if not forthcoming be dispensed in certain circumstances if in the child's best interests (ss 54(1)(a), 67). But such an order is not lightly to be made. Indeed it is considered a grave step for obvious reasons: see Application of A; Re D [2006] NSWSC 1056, per Palmer J at [52] and Adoption of RCC and RZA [2015] NSWSC 813 at [17]. Appropriately counselled a child once twelve can give consent to his or her adoption: ss 54(1)(c), 54(2), 55 and 63 of the Act.

14. Section 90(3) prohibits a Court from making an adoption order unless it considers that such an order is 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. The answer to the question whether an adoption is "clearly preferable" is informed by the various considerations referred to in s 8(2). While not amounting to satisfaction "beyond reasonable doubt" the Court needs “something more than a slight preponderance of considerations in favour of adoption over the alternatives”. It is accepted that an order for adoption would be made if the court was satisfied that such an order would “obviously, plainly or manifestly” be preferable over any other action: see Adoption of NG (No 2) [2014] NSWSC 680 at [14]-[17].

15.   The Court, where it is of relevance, must give careful consideration to any proposed adoption plan. This is the regime for the all-important contact between the child, his or her birth parent or parents, and/or other significant persons in the child's life. Unless the Court is satisfied that the plan is in the child's best interests and is proper in the circumstances it is not able to make an adoption order (s 90(2)). In this regard, birth parents have special and important rights. A parent has a right not to consent to an adoption plan. The relationship between a child and its natural parents is to be preserved unless the Court considers that a child's best interest dictate otherwise. The maintenance of a relationship with a child's birth family is an important consideration, but the terms of the level of contact should be "realistic and achievable", and in some circumstances excessive contact may very well not be in the child's best interests: see Re the Adoption of AJH [2017] NSWSC 751 at [356]; see also Kate and William, Re – Reduction in Post Adoption Contact [2017] NIFam 13 at [16]. Whether an adoption plan is appropriate in the circumstances requires consideration of all of the relevant circumstances and in particular the purpose of "open adoption" – being one in which the child will know and have contact with his or her birth family: see Adoption of Hogarth (No 2) NSWSC 9 at [121].”

31. In the case of a child who is an “Aboriginal child” within the meaning of the Act, the provisions of Division 2 of Part 2 of the Act apply and the Court must apply the Aboriginal child placement principles in s 35 of the Act, in addition to applying the other principles in s 8(1) of the Act. The paramount consideration remains the best interests of the child, in childhood and in later life: Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 at [16]–[18] (Leeming JA, Basten and McCallum JJ agreeing).

THE EVIDENCE

32. In reviewing the evidence, I have had regard to the provisions of s 126 of the Act.

Background to the removal of the children from the birth parents

33. The birth mother and birth father of X and Y are currently aged 38 years and 43 years respectively. [11] They have been in a relationship since 2013. The birth mother has described the relationship as “off and on”. [12]

    11. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 27.

    12. Affidavit of the birth mother dated 5 November 2019, paragraph 7.

33. On 17 November 2013, X was born. His younger brother Y was born on 13 December 2014. [13]

    13. Affidavit of the birth mother dated 5 November 2019, paragraph 2.

34. During the period from September 2014 to June 2015, Family and Community Services received thirteen risk of significant harm reports relating to X and Y and the birth mother’s three other children who were living together with X, Y and the birth parents. [14]

    14. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 44.

35. As at May 2015, the birth mother and birth father were living together with X and Y and three of the birth mother’s five other children.

36. On 16 May 2015, Family and Community Services received a risk of significant harm report regarding the children’s exposure to domestic violence, following an incident which led to the birth father being charged with choking with recklessness and assault occasioning actual bodily harm. An interim Apprehended Violence Order was made on 26 May 2015 against the birth father, protecting the birth mother, X, Y and the birth mother’s three children who were then living with them. [15]

    15. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraphs 45–46.

37. A home visit by Family and Community Services on 1 June 2015 revealed that the children were living in unsafe conditions and that the house was in an unfit state for children. In particular, there were serious concerns relating to the unmanaged mental health issues of the birth mother and birth father, and the children’s exposure to domestic violence. [16]

    16. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 47.

38. X was 18 months old and Y was six months old at this time.

39. The birth mother made an affidavit in this proceeding, but did not give any evidence concerning her mental health or the other circumstances in which X and Y were removed from her care in June 2015. [17]

    17. Affidavit of the birth mother dated 5 November 2019.

40. In his affidavit affirmed on 26 August 2019, the birth father acknowledged that his mental health was poor in 2015. [18] He does not give evidence disputing the concerns that led to X and Y being removed from his care in June 2015. Indeed, he implicitly acknowledges those concerns in that he says: [19]

“…[the birth mother] and I have proven we have addressed the issues that gave rise to the removal of the children and this can be seen by the fact that [Z] has remained safely in our care without any statutory intervention.”

18. Affidavit of the birth father affirmed on 26 August 2019, paragraphs 12–13.

19. Affidavit of the birth father affirmed on 26 August 2019, paragraph 24.

42. As will be referred to later in these reasons, Z was removed from the care of the birth parents on 30 August 2019.

43. On 2 June 2015, X and Y were assumed into care at Penrith Community Services. The birth mother’s three other children who had also been living in the household were assumed in the care of their maternal great grandparents. [20]

    20. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 48.

44. Between 3 June 2015 and 22 November 2016, X and Y were placed in Barnardos Temporary Foster Care.

45. On 8 June 2015, the Children’s Court of New South Wales made interim orders allocating parental responsibility for X and Y to the Minister. [21]

    21. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraphs 50–51.

46. On 25 October 2016, the Children’s Court of New South Wales made orders granting parental responsibility for X and Y to the Minister for Families, Communities and Disability Services until X and Y reach the age of 18 years. [22]

    22. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 53 and Exhibit DW-1, pages 44–47.

47. On 18 November 2016, the Minister delegated parental responsibility for X and Y to Barnados Australia. [23]

    23. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 5.

48. On 22 November 2016, X and Y were transitioned into the care of the proposed adoptive parents as part of the Barnados Find-A-Family Program. (This is an integrated service of permanent family care and adoption to children who have been permanently removed from their birth families by the courts.) [24] At that time, X had just turned three years old and Y was almost 2 years old.

    24. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 9.

49. The relationship of the birth parents was continuing at the time of the hearing in this Court of the plaintiff’s application for adoption orders.

The children’s little brother

50. A baby boy was born to the birth parents on 30 May 2018. [25] He is the brother of X and Y, known in this proceeding as “Z”. As will be referred to later in these reasons, Z was removed from the care of the birth parents on 30 August 2019 following an incident that resulted in the Local Court of New South Wales making an interim Apprehended Violence Order against the birth father for the protection of the birth mother on 9 September 2019 and a final Apprehended Violence Order on 16 December 2019. The Minister has parental responsibility for Z until he attains the age of 18 years, and Z is currently living together with X and Y in the care of proposed adoptive parents. [26]

    25. Affidavit of birth mother dated 5 November 2019, paragraph 5.

    26. Affidavit of Deborah Willick affirmed on 9 October 2019, paragraphs 9–13 and 22–25; affidavit of Deborah Willick affirmed on 11 June 2020, paragraphs 25–26.

The children’s maternal half-siblings

51. The birth mother has five other children, who are maternal half siblings to X and Y: [27]

    27. Affidavit of birth mother dated 5 November 2019, paragraph 5; affidavit of Deborah Willick affirmed on 11 June 2020, paragraph 16.

1. a daughter born in September 1999, currently aged 20 years;

2. a daughter born in November 2001, currently aged 18 years;

3. a daughter born in June 2006, currently aged 14 years;

4. a son born in June 2007, currently aged 13 years; and

5. a son born in December 2010, currently aged 9 years.

The children’s paternal half-siblings

52. The birth father has five other children, who are paternal half siblings to X and Y: [28]

    28. Affidavit of the birth father affirmed on 26 August 2019, paragraph 6; affidavit of Deborah Willick affirmed on 11 June 2020, paragraph 17.

1. a daughter currently aged 23 years;

2. a daughter currently aged 20 years;

3. a son currently aged 19 years;

4. a son currently aged 10 years; and

5. a daughter currently aged 7 years.

Other significant persons in the children’s lives

53. The other significant persons in the children’s lives in addition to their birth parents, their brother Z, their maternal half-siblings and their paternal half-siblings are:

1. their maternal grandmother and grandfather;

2. their maternal great grandfather;

3. their paternal grandfather;

4. their proposed adoptive parents, with whom the children have been living since 22 November 2016 (since X was three years old and Y was almost two years old);

5. the three biological children of the proposed adoptive parents: [29]

   29. Affidavit of Deborah Willick affirmed on 11 June 2020, paragraphs 11–12.

1. a son, aged 16 years;

2. a daughter, aged 15 years; and

3. a son, aged 9 years; and

6. their paternal foster grandmother, who also lives with the proposed adoptive parents.

The medical, developmental and other needs of X

54. X has needs which have required ongoing professional attention and support prior to and during his placement with the proposed adoptive parents. I have reviewed the affidavits of Ms Willick affirmed on 9 April 2019 and 11 June 2020 and the medical reports exhibited and annexed to those affidavits concerning these needs, the support that X has received, and his progress. I gratefully adopt the following submissions of the plaintiff as an accurate summary of the salient features of that evidence:

“15.   ...in early 2016 [X] was assessed to have severe receptive and expressive language delay. Recommendations were made for him to engage in speech therapy and be provided an Enhanced Primary Care Plan. [X] attended a supported playgroup. In late 2016 a National Disability Insurance Scheme (NDIS) plan was created for [X].

16.   In December 2016 [X's] Paediatrician, Dr Goodhew, also recommended [X] be referred for speech therapy. Dr Goodhew, during a June 2017 assessment, noted [X] to have a global delay marked in speech and behavioural inattention and referred him for psychological/psychometric assessment.

17.   In February 2017, [X] commenced a Prep program for children aged 3-5 at … School (2-3 days a week). He continued in that program in 2018 and 2019. He also attended a creche in 2018.

18.   In September 2017, a speech therapist (Alysia Revell), assessed [X] to have moderately delated auditory comprehension and expressive communication. His speech skills were considered to be significantly delayed with his speech intelligibility poor. He began engagement in speech therapy (with Brooke Fitzgerald) at this time.

19.   In December 2017 [X] underwent a cognitive assessment with a psychologist (Jodie Humphreys). His overall intellectual ability was assessed to fall in the extremely low range and indicated he may have met the criteria for a mild intellectual delay. Recommendations were made for treatment including an ongoing secure attachment with intensive multi-professional intervention.

20.   [X] commenced fortnightly occupational therapy on 1 June 2018 and his speech pathology sessions increased from fortnightly to weekly sessions in July 2018.

21.   During reviews in 2018 [X’s] Paediatrician (Dr Goodhew) indicated his satisfaction with [X’s] progress and considered [X] to be 'thriving' in his placement. His NDIS plan has continued. As at 5 December 2018 the recommendation of a speech-language pathologist (Kristna Vulkanovski) was for [X] to continue weekly interventions.

22.   In 2019 [X] attended weekly speech therapy and fortnightly occupational therapy sessions. As at early 2019 he experienced difficulty with self-care tasks such as fine-motor skills, toileting and required supervision during mealtime to ensure he did not over-eat.

23.   Regarding his behaviours, [X] was noted to be indiscriminate with his attachment in about November 2016 and relied on body language to express his needs and wants owing to his limited expressive language. The proposed adoptive parents instituted strategies to ensure his safety and to teach him boundaries in non-family interactions. As at February 2019 he was considered to be making progress in his social skills although he continued to require assistance in social situations. His strongest peer relationship was with his brother, [Y].

24.   Following speech pathologist assessments in October and November 2019, [X] was diagnosed to have severe developmental language disorder, mild social skill difficulties and severe speech and sound delay. Ongoing weekly speech pathology sessions were recommended along with a multidisciplinary approach involving occupational therapy. During an NDIS review on 20 November 2019 it was noted [X] was attending play therapy with a psychologist (Jodie Humphries) to assist with his emotional regulation.

25.   [X] attended kindergarten in 2020. His school prepared an Independent Education Plan in February 2020 addressing his delayed expressive and receptive language, delayed speech sounds and hyper-distractibility. The goals were settling into Kindergarten and learning routines within the school environment.”

55. I add that:

1. in October 2019, X’s occupational therapist reported that he had achieved the goals set for him in relation to his attention span and showed improvements in relation to his social skills, fine motor skills and ability to follow verbal instructions, having partially achieved the goals set for him in relation to those three areas. As referred to in the plaintiff’s submissions extracted above, it was recommended that X continue with his occupational therapy sessions as well as ongoing weekly speech therapy sessions; [30] and

2. at the hearing of the application on 15 July 2020, the Court was informed that this occupational therapy and speech therapy work is continuing, and that X was also continuing to work with the psychologist, Ms Humphries. However, it has been necessary to adapt to restrictions necessitated by the COVID-19 pandemic. For example, at the time of the hearing, the speech therapy work consisted of the proposed adoptive mother carrying out exercises with X at home that have been prescribed by the speech therapist.

   30. Affidavit of Deborah Willick affirmed on 11 June 2020, paragraph 33 and Exhibit DW-2, pages 20–27.

The medical, developmental and other needs of Y

56. Y also has needs which have required ongoing professional attention and support prior to and during his placement with the proposed adoptive parents. I have reviewed the affidavits of Ms Willick affirmed on 9 April 2019 and 11 June 2020 and the medical reports exhibited and annexed to those affidavits concerning these needs, the support that Y has received, and his progress. I gratefully adopt the following submissions of the plaintiff as an accurate summary of the salient features of that evidence:

“26.   …in late 2016 [Y] was assessed by his Paediatrician (Dr Goodhew) to have 'moderate speech delay with mild fine and gross motor delay with significant features of obstructive sleep apnoea'. Speech therapy was recommended if no improvement was demonstrated with his speech. A paediatric occupational therapist assessment in February 2017 assessed that he needed to develop his fine motor skills, visual discrimination, drawing and imitation/planning skills. Occupational therapy was recommended.

27.   [Y] underwent a sleep study at the … Sleep Medicine Centre in June 2017 and was assessed to have severe sleep apnoea. In August 2017 he underwent a adenotonsillectomy (procedure to remove both adenoids and tonsils) to treat his sleep apnoea. The latter condition was assessed in February 2018 to have improved and to fall in the mid-range.

28.   In January 2018 [Y] commenced the Prep Program at the … School (3 days a week).

29.   In June 2018 [Y] began fortnightly occupational therapy additional to the speech therapy he attended with his brother, [X]. In late 2018 he was assessed to have a moderately delayed expressive and low average receptive language skills and moderate to severe speech sounds. During 2019 he continued with weekly speech therapy and fortnightly occupational therapy.

30.   Regarding his behaviours, [Y] displayed anxious attachment behaviours as at late 2016. That condition has improved over time. As at February 2019 he was considered to be making progress in his social skills albeit required assistance and prompting in social situations.

31.   As at October 2019, [Y] was assessed to have made gains with his social skills and attention span but had only made partial gains regarding his fine and gross motor skills. A psychologist (Jodie Humphries) noted in November 2019 his cognitive function to be average or below all metrics of assessment and made recommendations as to strategies the proposed adoptive parents could implement to assist his cognitive and social skill development. The aim is for [Y] to commence Kindergarten in 2021 with him being assessed as requiring continued occupational and speech therapy interventions.”

57. I add that I was informed at the hearing on 15 July 2020 that Y’s speech therapy and occupational therapy is continuing, albeit with some changes necessitated by the COVID-19 pandemic.

The proposed adoptive parents and their home

58. Both proposed adoptive parents were born in 1976 in New South Wales and are Australian citizens. They are both currently 43 years old. They were married in 1999 in New South Wales. [31]

    31. Affidavit of the proposed adoptive mother affirmed on 21 March 2019, paragraph 5; affidavit of the proposed birth father affirmed on 21 March 2019, paragraph 4.

59. The proposed adoptive father has resided in New South Wales for the whole of his life. He received a Bachelor of Arts degree from The University of Sydney in 1998 and a Graduate Diploma in Bible and Ministry at the Sydney Missionary Bible College in 2005. He is employed as the school principal of a Christian school. [32]

    32. Affidavit of the proposed adoptive father affirmed on 21 March 2019, paragraphs 6, 9 and 12.

60. The proposed adoptive mother has resided in New South Wales for the past 36 years. She received a Bachelor of Arts degree from The University of Sydney in 1998, a Graduate Diploma in Bible and Ministry at the Sydney Missionary Bible College in 2005 and a Bachelor of Education from Morling College in 2010. She is employed as a pastoral co-ordinator at a Christian school, having previously been employed as a teacher at that same school. [33]

    33. Affidavit of the proposed adoptive mother affirmed on 21 March 2019, paragraphs 7, 9 and 12.

61. The proposed adoptive parents have lived together in their family home in New South Wales, since April 2002. [34]

    34. Affidavit of the proposed adoptive mother affirmed on 21 March 2019, paragraph 5; affidavit of the proposed birth father affirmed on 21 March 2019, paragraph 4.

62. The home is a two storey weatherboard construction, with a 2 bedroom granny flat. The main house has five bedrooms, a study, three living areas, two bathrooms, a large open plan living area downstairs, a large back deck, backyard and carport. The granny flat has two bedrooms, one bathroom and a living area. The home is close to shops, public and private hospitals, schools and the proposed adoptive parents’ place of employment. [35]

    35. Affidavit of the proposed adoptive mother affirmed on 21 March 2019, paragraphs 16–17; affidavit of the proposed birth father affirmed on 21 March 2019, paragraph 16.

63. In addition to X and Y, the proposed adoptive parents’ three biological children live in the home and and the proposed adoptive father’s mother lives independently in the granny flat. [36]

    36. Affidavit of the proposed adoptive mother affirmed on 21 March 2019, paragraphs 8 and 16; affidavit of the proposed birth father affirmed on 21 March 2019, paragraph 8.

64. The proposed adoptive parents’ joint net income is approximately $3,350 per week (excluding allowances). Their joint assets consist of the family home, which they estimate to be worth approximately $1,000,000, bank accounts with a balance of approximately $8,000 and motor vehicles with an value of approximately $30,000. These joint assets do not account for personal effects or furniture. Their joint liabilities comprise the mortgage over the family home in the amount of approximately $440,000 (with monthly repayments in the order of $1,045) and credit card debts in the amount of approximately $5,000. [37]

    37. Affidavit of the proposed adoptive mother affirmed on 21 March 2019, paragraphs 14–15, 18–19; affidavit of the proposed birth father affirmed on 21 March 2019, paragraphs 14–15, 17–18.

65. Both of the proposed adoptive parents have undertaken Working With Children Checks and have been cleared to work with children. Both have also undertaken a criminal record check, with the National Police Certificates attached to their respective affidavits affirmed on 21 March 2019 showing “no disclosable court outcomes”. [38]

    38. Affidavit of the proposed adoptive mother affirmed on 21 March 2019, paragraphs 20–21; affidavit of the proposed birth father affirmed on 21 March 2019, paragraph 19–20.

66. Each of the adoptive parents has been medically examined and, to the best of their knowledge and belief, is in good health. [39]

    39. Section 10(d) of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018; affidavit of the proposed adoptive mother affirmed on 21 March 2019, paragraph 10; affidavit of the proposed adoptive father affirmed on 21 March 2019, paragraph 10.

67. Both proposed adoptive parents are of the Christian faith and attend weekly church services. [40]

    40. Affidavit of the proposed adoptive mother affirmed on 21 March 2019, paragraph 11; affidavit of the proposed birth father affirmed on 21 March 2019, paragraph 11.

58. In her affidavit affirmed on 21 March 2019, the proposed adoptive mother stated:

“I wish to adopt [X] and [Y] as I have always wanted to grow our family through adoption and I also feel strongly about keeping biological siblings together. I believe in the value and importance of family and felt I could provide a family to children who needed one. I have had [X] and [Y] as part of our family for two years and I love them enormously and believe they are an essential part of our family. I could not imagine not being their mother and loving them always.”

69. Of course, the two years referred to in the proposed adoptive mother’s affidavit has now become three and a half years.

70. The proposed adoptive father gave evidence to similar effect in his affidavit affirmed on 21 March 2019. He said:

“I wish to adopt [X] and [Y] because I always planned to adopt children to expand my family. … [X] and [Y] joined our family in late 2016. I love [X] and [Y] as if they were mine biologically. [X] and [Y] are part of my family and I cannot imagine what life would be like without them now. I can providing a loving family/home for [X] and [Y] that meets their needs.”

71. The s 91 report prepared by the Barnardos Case Manager in October 2018 refers to the fact that both adoptive parents grew up with siblings who were adopted or fostered by their families, and both of them found that experience to be beneficial and positive for their families. [41]

    41. Section 10(b) of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

72. Two referees have provided affidavits attaching references for the proposed adoptive parents. One referee has known the proposed adoptive parents for 24 years and the other referee has known them for 18 years. Both referees speak of the proposed adoptive parents in glowing terms and attest to the stable and happy relationship between them, their patience, warmth, and loving natures, the way in which they work as a team in parenting X and Y and the love that they have for the two boys.

73. The s 91 report prepared by the Barnardos Case Manager also attests to the stability of the relationship between the proposed adoptive parents and their positive reputation amongst their friends, family members, church community, work colleagues and the local community. [42]

    42. Section 10(b) and 10(g) of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

74. The various medical reports included in the exhibits to Ms Willick’s affidavits affirmed on 9 April 2019 and 11 June 2020 record that the proposed adoptive parents have been facilitating the boys receiving the speech therapy, occupational therapy and other medical attention and intervention that they have needed since they have been in the care of the proposed adoptive parents as referred to in [54]–[57] above. The reports record the information about each child that the proposed adoptive parents have provided to the specialist for the purpose of the specialist’s assessment. [43] The s 91 report prepared by the Barnardos Case Manage in October 2018 states:[44]

“The proposed adoptive parents have demonstrated their ability to parent autonomously from early in the placement. They have made and attended an array of health appointments without Barnardos support or prompting, parent [X] and [Y] with the same love and care which they do for their own biological children and are supporting them to meet their developmental potential. The proposed adoptive parents have also demonstrated an openness and commitment to facilitating contact between [X], [Y] and their birth family. They come to each contact visit prepared with photographs, artwork, gifts or cards if it is a special occasion and freely provide updates to the birth family on [X’s] and [Y’s] progress.”

43. See also section 5(b) of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

44. Section 11 of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

How have the children settled into life with their proposed adoptive family?

75. The reports of the Barnardos Case Managers have observed the interactions between the proposed adoptive parents and X and Y in their family home and during contact visits with the birth family during 2017.

76. X and Y refer to their proposed adoptive parents as “mum” and “dad”. [45]

    45. See, for example, page 48 of Exhibit DW-1 to the affidavit of Deborah Willick affirmed on 9 April 2019.

77. In the s 91 report annexed to her affidavit affirmed on 26 October 2018, the Case Manager reports that X and Y have each bonded well with the proposed adoptive parents and their children. She has observed that X displays affection towards them and enjoys their company. When X first entered the care of the proposed adoptive parents, he would pout and walk away if he did not get his own way or if he was spoken to about his behaviour. However, X has been assisted by the proposed adoptive parents providing consistent responses, gentle encouragement and a structured environment in order to maintain boundaries for him. In relation to Y, the Case Manager observed that he will regularly seek out the proposed adoptive parents to have his needs met and receive affections. He does display what appears to be anxious attachment behaviour, but the proposed adoptive parents provide consistent, reassuring responses which is making him less anxious and more secure. [46]

    46. Section 5(c) of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

78. More recently, the Program Manager’s report of a home visit on 27 May 2020 records that both children appeared to be comfortable and settled in the home of the proposed adoptive parents, and were proud to show the Program Manager the room that they share. The Program Manager observed the boys happily playing together and separately in the home, and interacting with the proposed adoptive mother and other members of the family. She concluded that the boys appeared to be completely at home in their surroundings. [47]

    47. Page 66 of Exhibit SW-2 to the affidavit of Deborah Willick affirmed on 11 June 2020.

79. The three biological children of the proposed adoptive parents are very supportive of the adoption and want X and Y to be part of their family forever. The mother of the proposed adoptive father, who also lives with them, is equally supportive and reports that she has a lovely relationship with X and Y. [48]

    48. Section 11 of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

80. The medical, developmental and educational needs of the boys have been and continue to be addressed during their placement with the proposed adoptive parents, with appropriate professional help: see [54]–[57] above.

81. In addition, both of the referees attest to the love and affection that has grown between the proposed adoptive parents and X and Y. One of the referees attests to the boys’ excitement at seeing the proposed adoptive father at the end of the school day, and the love and affection that both proposed adoptive parents share with the boys through huge hugs, smiles and kisses. The other referee says that, to her observation, X and Y “adore” the proposed adoptive parents.

82. In her s 91 report dated 26 October 2018 and relied on by the plaintiff at the hearing, the Barnardos Case Manager concludes:[49]

“The proposed adoptive parents as well as their biological children have embraced [X] and [Y] into their family and parent them with unconditional love and acceptance. They are strong advocates for the children and put in place a number of supports to ensure [X] and [Y] have every opportunity in life to reach their full potential and heal from their early experiences. The proposed adoptive parents present as non-judgemental and caring people who have developed a respectful relationship not only with [X] and [Y] biological parents but also their extended family and the other children's carers.

It is in my opinion that adoption is the preferred order for [X] and [Y] over any other form of court order as it is the only order than can provide the boys with the legal stability of being an official part of the proposed adoptive parents family. For instance, a Guardianship Order would not legally solidify or represent the boys' position as the proposed adoptive parents' children and the siblings of the proposed adoptive parents' biological children. A Guardianship Order would also allow the birth family to continue to pursue a s90 in the future which could result in disruption across many aspects of [X] and [Y]’s lives including their development, attachment and sense of stability. For these reasons, I believe that an adoption order is in the best interests of [X] and [Y].”

49. Section 13 of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

83. The Barnardos Program manager states:[50]

“I, Deborah Willick have been the Program Manager, Adoption with the Barnardos Find-a-Family program since 2 March 2015 I have supervised Ms Hutchinson and then Ms Everson in their roles as Case Manager, Adoption since the commencement of [X] and [Y]’s placement with the proposed adoptive parents.

[X] and [Y] have been in the care of the proposed adoptive parents, since 22 November 2016 and they have provided them with stability, love and therapeutic parenting that has assisted them to grow and thrive in their home. [X] and [Y] are an integral part of the [proposed adoptive] family and their biological children … have embraced [X] and [Y] as their brothers. The extended families of the proposed adoptive parents see [X] and [Y] as a part of their wider family and they have embraced their extended birth family members.

It is evident the proposed adoptive parents have embraced [X] and [Y] into their family and have parented them with a high degree of autonomy, commitment and unconditional love. The proposed adoptive parents have also attended all visits that have occurred with [X] and [Y]’s birth family and have used opportunities in between visits to help [X] and [Y] develop a sense of his identity and understanding of their birth family. The couple have further provided birth family with photographs and verbal updates and have engaged with family members in a respectful manner.

The proposed adoptive parents have been very committed to ensuring that [X] and [Y] meet their age appropriate developmental milestones as they faced significant health and developmental challenges since coming into their care approximately two years ago. I have had the opportunity to observe [X] and [Y] in their placement with the proposed adoptive parents and [X] and [Y] appear to share a lovely relationship with the biological children and a secure and safe bond with the proposed adoptive parents.

In my opinion, adoption is the preferred order for [X] and [Y] over any other form of court order including guardianship as it is lifelong belonging and is the only one that is able to provide them with the legal stability of being an official part of the proposed adoptive parents' family. This is significant in providing [X] and [Y] with a sense of safety, security and identity in a family that they have developed a strong attachment to, as well as allowing them to maintain a connection to birth family. For these reasons, I believe adoption is preferable to any other legal order in respect of [X] and [Y].”

50. Section 15 of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

The children’s language, cultural and religious background

84. X and Y are of Australian heritage. They are not Aboriginal children: see [85]–[98] below. Their language is English. Their birth parents do not identify with any particular religion. [51] The proposed adoptive parents intend to raise X and Y in the Christian faith. [52] However, they have recorded in the adoption plan and amended adoption plan referred to in [109] and [114] below that they are open to providing X and Y with the opportunity to develop their understanding of religious principles and practices so that they can make informed decisions in the future about their own believe system. [53]

    51. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 198.

    52. Section 6(b) of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

    53. Section 9 of the Adoption Plan at page 373 of Exhibit DW-1 to the affidavit of Deborah Willick affirmed on 9 April 2019; Section 9 of the Amended Adoption Plan at Annexure “I” to the affidavit of Deborah Willick affirmed on 9 October 2019.

Are the children Aboriginal children?

85. On 28 February 2018, the Barnardos Case Manager for X and Y, the Barnardos Program Manager supervising the Case Manager, the birth parents and the proposed adoptive parents participated in a review meeting to discuss X and Y, their health, education and development during the placement with the proposed adoptive parents and Barnardos’ plan for permanent care of X and Y with a view to adoption.

86. The notes that review meeting made by the Barnardos Case Manager record the following: [54]

“…I asked [the birth father] a little more about our conversation we had on Monday about him mentioning there may be Aboriginality in his family. [The birth father] explained that his oldest son who is in his 20’s is Aboriginal and he knows that it is not from his mother’s side, hence it must be from his. [The birth father] stated he ‘was not sure if he was mine in the 1st place’ and [the Barnardos Program Manager] asked if there was a DNA test completed for his eldest child? [The birth father] said it was not done but ‘she had always said he was mine’, he further explained that once he met his son he looked the same as [the birth father]. When asked how he knew that he was Aboriginal, [the birth father] explained that he trode [sic] on a needle at St Mary’s train station when he was younger and then had to have ongoing blood testing, and this is how they found out. [The Barnardos Program Manager] explained to [the birth father] that you cannot find out if you are Aboriginal from a blood test.

I asked [the birth father] if I was correct that it was his dad’s grandmother who was Aboriginal, and [the birth father] said it was, he thought her name was Elizabeth B? but couldn’t be sure. I asked if there was anyone who would know this information and [the birth father] explained that all family members deny it except his Aunty. … [The birth father] said that his father traced [birth father’s family name] family and believes that the Aboriginality is his Grandfathers mother. When asked if [the birth father] thought that his Aunty would speak to us [the birth father] explained that it was complicated. He said it is really his dad’s cousin but raised as [the birth father’s] Aunty who is his grandmother’s sister’s daughter. When asked how long ago [the birth father] found out this information, [the birth father] said that he only found out about 3-4 months ago when he met his son …”

54. Exhibit DW-1 to the affidavit of Deborah Willick affirmed on 9 April 2019, page 135.

87. The birth father subsequently provided a family tree to Barnardos and that information was referred to Link-Up (NSW), an independent organisation that undertook research using publicly available websites and books, including online records of births, deaths and marriages, myheritage.com, ancestry.com and similar resources. Link-Up (NSW) concluded that “evidence of Aboriginality” within the birth father’s family “remains inconclusive”. Link-Up (NSW) did identify through their research that both the parents of the birth father’s paternal great grandmother - the “Elizabeth B” referred to above - were born in England and Scotland. [55]

    55. Exhibit DW-1 to the affidavit of Deborah Willick affirmed on 9 April 2019, pages 156, 346–349; see also Section 6(a) of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

88. In his affidavit affirmed on 26 August 2019, the birth father said: [56]

“Neither [the birth mother] nor I identify as aboriginal. There is speculation in my family that there is aboriginal heritage on my side of the family. I have been told my paternal great grandmother was aboriginal but this has not to my knowledge been proven or confirmed. I have told the department about this and asked them to investigate. I was told that the investigation was ‘inconclusive’. I understand [X] and [Y] are not identified by the department as Aboriginal.

I am continuing to consult with family members to see if there is any substance to the information above.”

56. Affidavit of the birth father affirmed on 26 August 2019, paragraphs 17–18.

89. Section 4(1) of the Act provides, relevantly:

“’Aboriginal’ has the same meaning as Aboriginal person 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).”

90. Section 4(2) of the Act provides:

“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.”

91. Section 4 of the Aboriginal Land Rights Act 1983 (NSW) defines “Aboriginal person” as meaning:

“… a person who –

(a)   is a member of the Aboriginal race of Australia, and

(b)   identifies as an Aboriginal person, and

(c)   is accepted by the Aboriginal community as an Aboriginal person.”

92. A child comes within the first limb of the definition of “Aboriginal child” in s 4(1) of the Adoption Act (that is, “a child descended from an Aboriginal”) if the child has any ancestor who is an “Aboriginal person” within the meaning of the Aboriginal Land Rights Act. That is so, even if, the child’s parents, grandparents or even older generations do not identify as Aboriginal or have not been accepted by any Aboriginal community: Hackett (supra) [2020] NSWCA 83 at [53]–[55] (Leeming JA, Basten and McCallum JA agreeing).

93. A child comes within the second limb of the definition of “Aboriginal child” in s 4(1) of the Adoption Act if the Court is satisfied that the child is of Aboriginal descent and has determined that the child is an Aboriginal child for the purpose of the Act. Section 4(2) permits the Court to determine that a child is of Aboriginal descent, even if no ancestor of the child satisfies the three limbs of the definition of “Aboriginal person” in the Aboriginal Land Rights Act: Hackett (supra) at [56]–[87] (Leeming JA, Basten and McCallum JA agreeing).

94. There is no requirement for a child to have any specified proportion of genetic inheritance in order for the child to be an “Aboriginal child” within the meaning of that term as defined in the Act: Hackett (supra) at [53] (Leeming JA, Basten and McCallum JA agreeing).

95. In considering the evidence referred to in [85]–[88] above, I have had regard to the observations of Basten JA in Hackett (supra) at [155]–[170] (McCallum JA agreeing) concerning the evidential problems created by the concept of descent and the need for the Court to approach the evidence with an appropriate degree of flexibility consistently with the provisions of s 126 of the Adoption Act.

96. The family member identified by the birth father as possibly being of Aboriginal descent is his paternal great grandmother (that is, his father’s grandmother). However, the research conducted by Link-Up (NSW) identified that his paternal great grandmother was descended from a father born in England and mother born in Scotland.

97. Whilst the Court cannot rule out the possibility that one of those two persons is of Aboriginal descent, there is no evidence to suggest that this is the case.

98. Accordingly, the evidence before the Court in this proceeding does not establish that X and Y have any ancestor who is an “Aboriginal person” within the meaning of the Aboriginal Land Rights Act. Nor does the evidence support a finding under s 4(2) of the Adoption Act that X and Y are of Aboriginal descent.

The children’s sense of personal and family identity and family relationships

99. The birth parents had contact visits with X and Y throughout the Children’s Court proceedings in 2015 and 2016. During the period from June 2015 to January 2016, the contact visits were scheduled twice weekly, but each of the birth parents missed or arrived late to several of these contact visits. From January 2016, the birth parents were able to attend the contact visits jointly. During the period from May to October 2016, the contact visits were reduced to once per week and the birth parents were more consistent with their attendance. [57]

    57. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 54.

100. During the period June 2015 to May 2016, X and Y also had weekly contact visits with the three maternal half-siblings who had been living together with them before all of the children had been removed from the birth parents’ care. Initially, X and Y also had contact with their other two maternal half-siblings approximately once every three weeks. However, X and Y have not had regular contact with those siblings since about December 2015. [58]

     58. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 76.

101. Contact visits between X and Y and the birth parents were reduced to six times per year following the making of the final care orders on 25 October 2016, in accordance with the care plan that had been filed with the Children’s Court pursuant to s 78 of the CYP Act. [59]

     59. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraphs 52 and 55.

102. Contact visits with the maternal half-siblings was reduced to twelve times a year in about October 2016, and then further reduced in January 2017 to six times per year to coincide with the contact visits between X and Y and the birth parents. The reduction to six visits was driven by the five hour travel time between X and Y’s home with the proposed adoptive parents and the new home one of the maternal half-siblings, and the difficulty for young children in travelling those distances on a regular basis. [60]

     60. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 77 and Exhibit DW-1, pages 58–59.

103. By late 2017, contact visits were progressing well and were supervised by the proposed adoptive parents without the presence of the Barnardos Case Manager. [61]

     61. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraphs 57–68; section 9(b) of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

104. After a contact visit in January 2018, Barnardos determined that it was in the best interests of X and Y that all birth family contact be reduced to four contact visits per year. According to the Case Manager’s notes of the review meeting dated 28 February 2018, Y became very distressed at contact visits at times, and X would run around a lot and have difficulty in regulating his behaviour afterwards. Neither of the boys coped well with the contact visits at times. However, the proposed adoptive parents were happy to make FaceTime calls with the birth parents on the boys’ birthdays, and to send letters and photographs. [62]

     62. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 69 and Exhibit DW-1, page 136.

105. I note that the birth father disputed that the reduction in contact visits was in the best interests of X and Y. [63]

     63. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 69 and Exhibit DW-1, page 136.

106. Three further formal contact visits occurred in 2018 with the birth parents and the three maternal half-siblings who had lived together with X and Y in 2015. The birth parents brought Z along to two of those visits. There was a fourth contact visit that the birth parents were unable to attend on short notice, but that visit proceed between X and Y and the three maternal half-siblings. One of the visits in 2018 was also attended by the maternal grandmother. Another of the visits was also attended by the two older maternal half-siblings. [64]

     64. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraphs 70–75, 85.

107. The Barnardos Case Manager who prepared the s 91 report in October 2018 stated:[65]

“The proposed adoptive parents have facilitated the contact visits on their own since January 2018 and they have done so successfully and are confident for this to continue. They understand the importance of these visits for the boys to maintain their identity and connection to the birth family and they speak to the boys in between the face to face visits, answering any questions they may have about birth family members. The boys have an age appropriate understanding of who their siblings are … The proposed adoptive parents encourage conversations with [X] and [Y] about their siblings and are open to answer any questions they may have now or in the future. They have shared contact details with the other biological children’s carers and are open to communicate directly in the future to organise appropriate dates if an adoption order is granted in the future. They have indicated that having the contact visits at a playcentre has been successful for both the children and appears to suit [the birth parents]. The proposed adoptive parents are committed to developing their relationship with [the birth parents] and understand the importance of this occurring for [X’s] and [Y’s] identity.”

The report also stated:

“The proposed adoptive parents have also demonstrated an openness and commitment to facilitating contact between [X], [Y] and their birth family. They come to each contact visit prepared with photographs, artwork, gifts or cards if it is a special occasion and freely provide updates to the birth family on [X’s] and [Y’s] progress.”

65. Sections 9(c) and 11 of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

108. In addition to contact visits in 2018, there were also FaceTime calls between the boys and the birth parents in November and December 2018, and it is proposed that this will continue on special occasions such as the boys’ birthdays. [66]

     66. Affidavit of Deborah Willick affidavit affirmed on 9 April 2019, paragraphs 96–99.

109. In February 2019, the Principal Officer of Barnardos Australia and the proposed adoptive parents signed an adoption plan. The main features of the adoption plan may be summarised as follows: [67]

     67. Pages 370–374 of Exhibit DW-1 to the affidavit of Deborah Willick affirmed on 9 April 2019.

1. the object of the plan is to support X and Y with their development and to assist them to be connected with and to build on their knowledge of their birth family and their sense of identity;

2. contact arrangements will take into account X and Y’s age, stage of development and any expressed wishes. From the age of 12, each child’s wishes in relation to attending contact will be a relevant consideration but not the final determiner of whether contact will take place. X and Y will be encouraged to attend contact;

3. the proposed adoptive parents will be present at all contact visits;

4. contact visits between X and Y, the birth parents, other children of the birth parents and the maternal grandmother will occur four times per year on dates and at a venue to be agreed between the proposed adoptive parents and the birth parents for a minimum of two hours;

5. additional contact visits may be arranged, subject to X and Y’s needs and wishes;

6. the FaceTime calls that had been made on the birthdays of X and Y in late 2018 would continue on special occasions;

7. as X and Y become older, they may wish to have other telephone or electronic communication with members of their birth family;

8. the proposed adoptive parents will provide the birth parents with news and information about X and Y and photographs and each contact visit, or to send the photographs by mail if visits are not attended;

9. the proposed adoptive parents will provide cards, letters, photographs or gifts by post to the birth parents on significant occasions or at other times according to the wishes of X and Y;

10. the birth parents, all siblings and half-siblings and the maternal grandmother may provide cards, letters, photographs or gifts for X and Y at contact visits or by post; and

11. it is envisaged that the arrangements under the plan would continue until X and Y reach the age of 18 years, unless the plan is reviewed before that time.

110. It was proposed that the four contact visits for 2019 would take place on the first Saturday of the school holidays in April, July, September/October and December. [68]

     68. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraph 75.

111. There is no evidence of the April and July 2019 contact visits, but I infer from the efforts made by the proposed adoptive parents to amend the adoption plan to facilitate ongoing contact visits (as referred to immediately below) and from the evidence of the birth mother (referred to in [117] below) that these visits in April and July 2019 did take place. There is no evidence to suggest that they did not.

112. On 9 September 2019, the Local Court of New South Wales made an Interim Apprehended Domestic Violence Order against the birth father for the protection of the birth mother. The order precluded the birth father from approaching the birth mother, except in specified circumstances. [69]

     69. Annexure “C” to the affidavit of Deborah Willick affirmed on 9 October 2019.

113. This created some uncertainty concerning whether both birth parents could attend the contact visit that was scheduled for the end of September 2019. [70] The uncertainty was resolved, and that contact visit took place. [71]

     70. Annexure “D” to the affidavit of Deborah Willick affirmed on 9 October 2019.

     71. Annexures “E” and “F” to the affidavit of Deborah Willick affirmed on 9 October 2019.

114. As a result of the birth parents having been separated for a time when Z was removed from their care and the Interim Apprehended Domestic Violence Order was made, the Principal Officer of Barnardos and the proposed adoptive parents signed an amended adoption plan to facilitate contact visits in the event that the birth parents were no longer together as a couple. The amended adoption plan has all the same features as the earlier adoption plan referred to in [109] above, and includes an additional provision that, if the birth parents separate and no longer wish to attend contact together, four contact visits each year will occur with each birth parent separately for a minimum of one hour. [72]

     72. Annexure “I” to the affidavit of Deborah Willick affirmed on 9 October 2019.

115. After the amendment of the adoption plan, there were FaceTime calls in November 2019 and a further contact visit in December 2019. [73]

     73. Affidavit of Deborah Willick affirmed on 11 June 2020, paragraphs 29–30.

116. The proposed adoptive parents have already demonstrated that they are open to arranging additional contact visits outside the four visits per year specified in the adoption plan. [74]

     74. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraphs 83–84 and Exhibit DW-1, page 63.

117. In her affidavit dated 5 November 2019, the birth mother said:

“32.   I think that [the proposed adoptive parents] take good care of [X] and [Y]. I do not have any concerns about their wellbeing in their care.

33.   I have a good relationship with [the proposed adoptive parents]. We talk at contact. I value that they care so much about [X] and [Y]. I appreciate the way they can be generous to my other children too, for example, buying everyone snacks.”

118. As I have referred to above, the contact visits have been supervised by the proposed adoptive parents since December 2017. [75] If the adoption orders are made, the proposed adoptive parents intend to facilitate ongoing contact in accordance with the adoption plan.

     75. Save to the extent that Barnardos representatives have attended contact visits to supervise them with respect to Z since Z was removed from the care of the birth parents in August 2019.

119. In 2020, contact arrangements have been affected by the COVID-19 pandemic and are under review on the monthly basis as the situation evolves. [76] However, at the hearing on 15 July 2020, I was informed that a contact visit had taken place on 4 July 2020.

     76. Affidavit of Deborah Willick affirmed on 11 June 2020, paragraph 32.

120. X and Y have not had contact with their paternal half-siblings. The paternal half-siblings are geographically distant from X and Y. Two of them do not have contact with their father due to a history of domestic violence. One has expressed an interest in contact in the future. Two have been contacted by Barnardos but have not communicated their views to Barnardos. It is proposed that, if the paternal siblings wish to establish contact with X and Y in the future, contact will occur once a year with an emphasis on establishing a relationship by telephone and email. [77]

     77. Affidavit of Deborah Willick affirmed on 9 April 2019, paragraphs 88–95.

121. The s 91 report prepared by one of the Case Managers for X and Y states:[78]

“[X] and [Y]’s identity needs will continue to be met through birth family contact … as well as through life story work recorded in their life story books. The birth parents have been encouraged to contribute to [X’s] and [Y’s] life story book by providing photographs and information which will assist the boys to develop an understanding of their birth family. … five face to face metings have been scheduled with the birth parents in order to complete the ‘Birth Parent Profiles’ and gain further information relating to [X’s] and [Y’s] identity. These meetings have not proceeded due to the refusal on the day of [the birth parents]. I engaged with [the birth father] via telephone on a number of occasions where we were able to develop a comprehensive genogram of the [birth father surname] family. This assisted the application that Barnardos forwarded to Link Up NSW and has been provided to the proposed adoptive parents for the children’s life story. [The proposed adoptive mother] has purchased an adoption baby book called ‘My family, my journey: A memory book’ which she has completed with information about how the boys came into care, the workers involved in the matching process, both paternal and maternal family trees and other important information. The proposed adoptive parents also have books about adoption ..”

78. Section 6(b) of the s 91 report annexed to the affidavit of Neran Everson affirmed on 26 October 2018.

122. In her affidavit affirmed on 21 March 2019, the proposed adoptive mother states that she is helping X and Y to know their birth history and have access to their birth family. She is maintaining their life book, and keeping special mementos, cards and gifts from the birth family in a special box. She also provides gifts and cards to the birth family from X and Y on special occasions. She is helping X and Y to maintain connections to their birth family by attending contact visits, initiating email communication with the birth parents and displaying photographs of the birth family in their family home. The proposed adoptive mother goes on to say that, if the proposed adoption orders are made, she plans to have four contact visits per year in accordance with the adoption plan and to have contact via email between visits and via FaceTime on or around birthdays. She says that X and Y enjoy contact, but find the intensity of the visits difficult.

123. The proposed adoptive father gave evidence to similar effect in his affidavit affirmed on 21 March 2019. He said that is supporting X and Y with their Life Story work by collecting photographs, keeping cards, taking photographs at contact visits and recording milestones in their Life Story book. He raises the Life Story with X and Y before each contact visit and shows them the photographs of their birth family. He has set up an email address to facilitate communication with their birth family between contact visits, and will continue to promote contact visits with the birth family in accordance with the adoption plan.

The views of the children concerning the proposed adoption

124. In her affidavit affirmed on 21 March 2019, the proposed adoptive mother states:

“31.   [X] and [Y] do not understand enough of the situation to initiate discussion. I look to introduce it into conversation wherever possible such as when reading books about families and talking about having two mummies and two daddies. Recently, I talked about having two mummies and two daddies when [X] and [Y] were asking about a present that was for their biological baby brother.

…

34.   [X] and [Y] are too little to ask about adoption but I try to incorporate it into family conversations so it is a normal part of their understanding of how they fit into our family.

35.   I am planning to continue to openly talk about adoption and celebrate it in an age appropriate manner. [X] and [Y] and I look at photos of their birth family on my phone and talk about family. [X] and [Y] and I look at their Life Story book. I also have a book about adoption that I read to them. I will continue with contact visits and communication between visits.”

125. The proposed adoptive father gave evidence to similar effect. In his affidavit affirmed on 21 March 2019, he said that X and Y are still young and have not asked questions about their adoption, but he has told them that he and his wife are planning to adopt them and how precious they are to the family.

The birth parents’ current circumstances and their views concerning the proposed adoption

126. As I have referred to earlier in these reasons, X and Y were removed from the care of the birth parents in June 2015 as a result of serious concerns relating to the unmanaged mental health issues of the birth mother and birth father, and the children’s exposure to domestic violence. In their affidavits prepared for the purpose of this proceeding, the birth parents have not denied that there was a reasonable basis for those concerns at that time and there is no evidence before the Court to suggest that the underlying causes giving rise to those concerns in June 2015 have been addressed.

127. At a review meeting on 28 February 2018, the birth father told the Barnardos Case Manager and Support Manager that he had “bipolar and split personality or personality disorder”. He said that this was not schizophrenia. He also said that he was not medicated, but that he needed to be reassessed by a psychiatrist. [79] There is no evidence before the Court about the current state of the birth father’s mental health or whether he is receiving any mental health treatment.

     79. Review meeting notes at page 136 of Exhibit DW-1 to the affidavit of Deborah Willick affirmed on 9 April 2019.

128. More recent evidence concerning the birth father’s circumstances is contained in the birth father’s affidavit affirmed on 26 August 2019 and his affidavit affirmed in October 2019 and filed on 23 October 2019.

129. In his affidavit affirmed on 26 August 2019, the birth father stated that he had a problem with alcohol until about early 2013 when “I decided to pretty much stop drinking”. He also said that he did not use drugs, although he had used methamphetamines for a time after X and Y had been removed from his care. He had not received any formal treatment for substance abuse, but had spoken to a counsellor about it. However, in his affidavit affirmed in October 2019, the birth father stated that he had recently relapsed and used illicit substances, and was taking steps to address that issue. He was awaiting a call from Mount Druitt Drug and Alcohol Services to arrange an assessment. There is no evidence before the Court about whether the assessment took place or what, if any, other steps the birth father has taken since October 2019 to address illicit substance use.

130. The birth father’s October 2019 affidavit was affirmed shortly after the Interim Apprehended Domestic Violence Order was made against him for the protection of the birth mother: see [112] above. The birth father denied that there had been any recent domestic violence between himself and the birth mother, and stated that they were both confident that the application for the Apprehended Domestic Violence Order would be dismissed.

161. The evidence demonstrates that the proposed adoptive parents have made a conscious decision together to grow their family by adoption. The decision has been informed in part by the experience that each of them had as children when their own families adopted and fostered children. They were parents to three biological children before they accepted X and Y into their family as carers, and in the three and half years since that time they have not only professed but demonstrated their ability to be parents to X and Y at the same time as ensuring that the boys maintain their connection to their birth family, to love them and support them, and to meet the heavy demands of ensuring that the boys receive all of the professional help and intervention necessary for their development and education. The affidavits of the referees and the s 91 report attest to the lovely nature of the relationship that each proposed adoptive parent has developed with each of the children: s 8(2)(g), (h) and (i) of the Act. I refer in particular to the evidence summarised in [58]–[83] and [99]–[123] above.

162. Given the history, including the recent history, to which I have referred in [167], there is some risk that the children would be exposed to physical and psychological harm if they were returned to the birth parents’ care: s 8(2)(j) of the Act. However, the birth parents do not presently advocate for the children to be returned to their care, as I have referred to in [168]–[169] above.

163. I accept the plaintiff’s submission that the proposed adoption will enhance the psychological wellbeing of the children by cementing their sense of security within the family in which they have spent the majority of their young lives.

164. There is no evidence that the children will cease being cared for by the proposed adoptive parents if the adoption orders are not made. However, in that scenario, the proposed adoptive parents will not be recognised by law as the parents of the children and the children will have a different surname to the other members of the family in which they live. There is a real risk that this will create a sense of uncertainty, insecurity and perhaps anxiety in the children, either now or in the future as they become older and a little more aware of these differences. That would be psychologically damaging to the children, in my view.

165. In Adoption of BL [2018] NSWSC 391, Sackar J said:

“17.   Judges have long since recognised that a clear sense of identity is an important life foundation for children and this is particularly so against an early background of ambiguity or instability. It is also well recognised that anxiety and uncertainty on the part of the child and the carers due to the impermanence of their position and the lack of certainty can or in some cases can be a very stressful situation. It is also stressful, where relevant for the birth parents.

18.   The practical effect of adoption does rule out for practical purposes restoration to birth parents. Equally however it does perfect the child’s membership of the family in which in every other sense he or she is or has become a member and which is essentially the only family he or she has ever known. It has the effect of bringing the legal relationship of parentage into conformity with the reality of the situation.

19.   It also means the child becomes a child of the adoptive parents, not just until he or she attains 18 years of age but for life. It also confirms his or her identification with the family with which he or she lives and which the child may see both emotionally and psychologically as his or her family.”

177. In OA v Secretary, Department of Communities and Justice [2019] NSWCA 322, White JA (with whom Macfarlan JA and Brereton JA agreed) said at [57]:

Whilst it is true that if an adoption order were not made the stability of the placement of the children and the support and care the adoptive parents would give them would in all probability continue unchanged. That does not mean that adoption would not be beneficial. The primary judge cited and applied the observations of Brereton J in Adoption of NG (No 2) and Adoption of Taylor-Clay quoted above in concluding that in most situations an adoption order that brings the child’s legal relationship and status quo into conformity with the practical realities of the situation provides enhances stability for all concerned, in particular the children.

178. The plaintiff’s submissions identified the following alternatives to the proposed adoption orders:

1. maintaining the status quo;

2. making another type of order in favour of the proposed adoptive parents (for example, an order for parental responsibility); or

3. making another type of order in favour of one or both of the birth parents (for example, an order for parental responsibility).

179. Having regard to all of the evidence referred to in [54]–[83] above, I accept the plaintiff’s submission that any change in the placement of the children now would amount to a significant change in their sense of permanence and security and put their emotional and psychological wellbeing at material risk.

180. Having regard to all of the evidence referred to in [33]–[50] and [126]–[140] above and the matters referred to in [167]–[169] above, I also accept the plaintiff’s submission that the prospect of the children being transitioned to the care of either parent at some future time, is remote and cannot be considered a real possibility for the purpose of considering whether the proposed adoption is in the best interests of the children compared to other alternative forms of care.

181. In relation to the option of maintaining the status quo, the plaintiff submits that this would leave the children in foster care under the parental responsibility of the Minister or his delegate. The proposed adoptive parents would not be able to make significant decisions for the children, and their family would be subject to oversight and ongoing involvement with case managers until both children reach 18 years of age. I accept the plaintiff’s submission that the ongoing engagement with caseworks over the next 13 years is not conducive to cementing a normal family environment.

182. By contrast, an adoption order will vest legal parenthood in the proposed adoptive parents who have cared for the children over the past three and a half years, contributing to an enhanced sense of stability and certainty for the children against the tumultuous time of their early life. In this respect, I refer again to the authorities cited in [176] and [177] above. I accept the plaintiff’s submission that it will also provide for the continuation of the children’s legal relationship with them after the age of 18 years.

183. The plaintiff acknowledged that an order allocating parental responsibility to the proposed adoptive parents would address some of the deficiencies in the status quo alternative, but facilitating the proposed adoptive parents making significant decisions for the children. However, it lacks the permanence of an adoption order and would result in the children losing their legal connection with the proposed adoptive parents when they reach the age of 18. In my view, this will not enhance the children’s sense of family stability in the same way that an adoption order will, for the reasons to which I have already referred.

184. The making of the proposed adoption orders will not alter the children’s circumstances in any day-to-day way. They will continue to live with the proposed adoptive parents and their family as they have done for the past three and a half years, and their relationships with them will continue to grow with the benefit of the added security and stability that an adoption order will provide. Their relationship with their birth family will not be adversely affected. I accept the plaintiff’s submission that the proposed adoption orders will not sever the relationship or emotional connection between the children and their birth family. On the contrary, the evidence demonstrates that the proposed adoptive parents have worked hard to encourage and maintain those relationships and connections and will continue to do so. I have referred to this evidence in [99]–[123] above and I will return to the subject of the adoption plan in more detail below.

185. Having considered the alternatives to the proposed adoption orders in the circumstances of this case, it is my view that adoption the best option amongst the alternative forms of care to meet the needs of these children: s 8(2)(k) of the Act.

The wishes and feelings of the children

186. Section 90(1)(b) of the Act provides that the Court must not make an adoption order in relation to a child unless the Court is satisfied that, as far as practicable having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them. As I have said in [163] above, X and Y have not reached an age and level of maturity at which it is practicable to ascertain their wishes and feelings.

Selection of the proposed adoptive parents

187. Section 90(1)(c) of the Act provides that the Court must not make an adoption order in relation to a child unless the Court is satisfied that (subject to certain exceptions that are not presently relevant) the proposed adoptive parents have been selected in accordance with the Act.

188. Part 3 of the Act and Part 3 of the Adoption Regulation 2015 (NSW) govern the selection of prospective adoptive parents other than authorised carers. The affidavit of Ms Willick affirmed on 9 April 2019 describes in paragraphs 220–223 the process by Barnardos Australia assessed the suitability of prospective adoptive parents to adopt in accordance during the period from September 2015 to February 2016, before they became authorised carers.

189. At the time of that assessment, Barnardos Australia was a designated agency under s 139 of the CYP Act (as then in force) and an accredited adoption service provider. [103]

     103. Affidavit of Deborah Willick affirmed on 22 July 2020, paragraphs 7–8 and Annexure “A”; as to the current status of Barnados Australia, see paragraph 9 of the affidavit of Deborah Willick affirmed on 22 July 2020 and Annexure “B” to that affidavit.

190. The process by which the proposed adoptive parents submitted an expression of interest and, subsequently, an application to adopt is described in paragraphs 219–225 of Ms Willick’s affidavit affirmed on 9 April 2019 and paragraphs 10–12 of Ms Willick’s affidavit affirmed on 22 July 2020. In assessing the suitability of the proposed adoptive parents to be approved to adopt a child, Barnardos Australia obtained the approved identity information from the applicants as required by reg 44 of the Adoption Regulation, assessed the applicants against the criteria specified in reg 45 and obtained National Police Checks and National Working with Children Checks. I note that updated National Police Certificates recording no “disclosable court outcomes” or outstanding matters are also annexed to the proposed adoptive parents’ affidavits affirmed on 21 March 2019.

191. On the basis of the evidence referred to immediately above, I am satisfied that the proposed adoptive parents have been selected in accordance with the Act.

Consent: s 90(1)(d) of the Act and application under s 67(1)(d) of the Act

192. Section 90(1)(d) of the Act provides that the Court must not make an adoption order in relation to a child unless the Court is satisfied that consent to the adoption of the child has been given by every person whose consent is required under the Act, or that consent has been, or should be, dispensed with.

193. Under s 52 of the Act, the consent of each of the birth parents and the Minister (who has parental responsibility for the children) is required for the adoption of X and Y. As referred to in [150]–[154], I am satisfied that the Minister (by his delegate) has provided consent which is effective under the Act.

194. Pursuant to s 67(1)(d) of the Act, the Court may make an order dispensing with the requirement for each birth parent’s consent to the adoption of X and Y if the application is made for their adoption by their authorised carers, the children have established stable relationships with those carers and the adoption of the children by those carers will promote welfare of the children.

195. As referred to in [6] above, the proposed adoptive parents are the authorised carers of X and Y.

196. I acknowledge that dispensing with the requirement for the consent of the birth parents is a grave step and that an order under s 67(1)(d) must not be made lightly. Nevertheless, for all of the reasons referred to in [161]–[185] above, the evidence in this case clearly establishes the stable relationship that both children have developed with the proposed adoptive parents and that their adoption by the proposed adoptive parents will promote the children’s welfare. An order dispensing with the consent of the birth parents will therefore be made.

Aboriginal child placement principles not applicable

197. For the reasons in [85]–[98] above, the Aboriginal child placement principles are not relevant to the determination of the application for adoption orders in respect of X and Y: s 90(1)(e) of the Act.

Adoption Plan: ss 90(1)(h) and 90(2) of the Act

198. Section 90(1)(h) of the Act provides that the Court must not make an adoption order in relation to a child unless the Court is satisfied that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.

199. Section 90(2) of the Act provides that 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.

200. I have given careful consideration to the adoption plan, the provisions of which are summarised in [109] and [114] above. I have also considered the birth parents keen desire to have more than four contact visits per year, for the visits to be longer than two hours, and for there to be some contact visits that are dedicate to contact between X and Y and the birth parents alone: see [137] above.

201. I am satisfied that the adoption plan takes into account the children’s given names, identity, language and cultural and religious ties and that the arrangements proposed in the plan are in the children’s best interests and are proper in the circumstances.

202. The adoption plan facilitates ongoing contact between X and Y and their birth parents, in addition to their siblings and half-siblings. This includes the maternal half-siblings with whom X and Y lived for the short time in their lives before they were removed from the care of their birth parents.

203. I am satisfied that minimum four contact visits per year provided for in the adoption plan is realistic and achievable, having regard to the ages X and Y, the distress that Y has experienced at some contact visits and the behavioural difficulties for X that have been associated with contact visits,[104] and the fact that X and Y need to fit the contact visits in around a schedule that already involves school attendance and attendance at ongoing speech therapy and occupational therapy appointments which are important for their development and well-being. Insofar as contact between X and Y and their maternal half-siblings is concerned, the long travel distances between them makes it unrealistic to specify a minimum number of contact visits of more than four per year, in my opinion.

     104. See [104] above.

204. Four contact visits is the minimum provided for in the adoption plan. The plan does state that additional contact visits may be arranged, subject to X and Y’s wishes. On the basis of all of the evidence concerning the proposed adoptive parents’ encouragement of and participating in contact visits to date, and their understanding of the importance for X and Y of having a connection to their birth family, I am satisfied that the proposed adoptive parents will give meaningful consideration to whether additional contact visits are in the best interests of X and Y in the future. The adoption plan provides for additional forms of contact outside visits, and this has already been occurring: see [99]–[123] above.

Adoption clearly preferable in the best interest of the children than any other action: s 90(3)

205. For all of the reasons set out in [161]–[204] above, I consider that the making of the adoption orders in respect of X and Y is clearly preferable in their best interests than any other action that could be taken by law in relation to their care.

Names of the children: s 101 of the Act

206. Section 101 of the Act relevantly provides:

“(1)   On the making of an adoption order –

…

(b)   an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.

(2)   Before changing the surname or given name or names of a child, 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.

(3)   If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname.

…

(5)   The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless the Court is satisfied that the name change is in the best interests of the child.”

207. The proposed adoptive parents wish for the children to maintain their given names so as to preserve their identity and family heritage derived from their birth family, but to be given a surname that is consistent with all members of the proposed adoptive family. The proposed adoptive parents consider that this will contribute to the children’s sense of security, connection and identity with the proposed adoptive family. I agree. As Brereton J (as his Honour then was) said in Adoption of RCC and RZA [2015] NSWSC 813 at [105]:

Upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child’s family name accords with that of his or her legal family. Indeed, children see that outcome as one of the most significant indicia of the sense of “belonging” that adoption is intended to nurture, and not to do so would detract from the benefits of adoption. 

208. I am therefore satisfied that the proposed change of surname is in the best interests of the children.

CONCLUSION AND ORDERS

209. For the reasons set out above, the Court will make the following orders on a date to be fixed by arrangement with the parties:

1. an order dispensing with the consent of each of the birth parents to the adoption of X and Y by the proposed adoptive parents, pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW);

2. an order for the adoption of X in favour of the proposed adoptive parents;

3. an order approving the surname of the proposed adoptive parents as the surname of X, and approving the existing given names of X as his given names;

4. an order for the adoption of Y in favour of the proposed adoptive parents;

5. an order approving the surname of the proposed adoptive parents as the surname of Y, and approving the existing given names of Y as his given names; and

6. an order dispensing with the requirement in s 88(1)(b) for notice of the application for the adoption orders to be given to the proposed adoptive parents and other persons with whom X and Y reside.

**********

Endnotes

Amendments

03 August 2020 - typographical error at para 62

Decision last updated: 03 August 2020