Two Children Proposed for Adoption

[2020] NSWSC 1486

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Two Children Proposed for Adoption [2020] NSWSC 1486

Hearing dates:

13 March, 13 August 2020

Date of orders:

13 August 2020

Decision date:

26 October 2020

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Orders made dispensing with consent of the birth parents. Orders for the adoption of both children made. Adoption plans approved.

Catchwords:

ADOPTION – contested adoption – Adoption Act 2000, ss 52, 67, 90 and 91 – application to dispense with the consent of the birth mother and birth father and for adoption orders to be made in respect of two children – birth mother and birth father do not consent to the making of adoption order – children have been with adoptive parents from a very young age – children are now 6 and 4 years old – whether an adoption order is in the best interests of the children – consideration of the alternatives to an adoption order.

Legislation Cited:

Adoption Act 2000, ss 8(1),8(2), 45F, 50, 52 67(1)(d), 90, 91

Child and Young Persons (Care and Protection) Act 1998

Category:

Principal judgment

Parties:

Plaintiff: The Secretary, NSW Department of Communities and Justice by his delegate Principal Officer Adoptions, Barnardos Australia

Representation:

Counsel:
Plaintiff: C. Spain

Solicitors:
Plaintiff: Karen Smith, Crown Solicitor for NSW

File Number(s):

2019/317814

Publication restriction:

Yes

Judgment

1. The plaintiff, the Secretary (“the Secretary”) of the Department of Communities and Justice (“the Department”) seeks an order under Adoption Act 2000 (“the Adoption Act”) for the adoption of two children in favour of the proposed adoptive parents.

2. The children are full siblings. At the time of the hearing, the first born child was six years old and the second born child was four years old. During the directions hearing of 13 March 2020, both birth parents told the Court that they did not oppose the making of the adoption orders but neither birth parent had signed a formal consent to the adoptions. Neither of the birth parents has been joined as a defendant to the proceedings.

3. The Secretary seeks orders under Adoption Act, s 67(1)(d), dispensing with the consent of the children’s birth parents. The Secretary seeks orders for the adoption of the children by the proposed adoptive parents with the children retaining their birth surname. This judgment sets out the Court’s reasons for determining that the orders proposed by the Secretary should be made.

4. The Secretary was represented by Ms C. Spain of counsel, instructed by the Crown Solicitor’s Office. The birth father was present in Court at the directions hearing on 13 March 2020. The birth mother appeared by audio-link on that date. Although they were given notice of the final hearing date of 13 August 2020, neither birth parent appeared at the final hearing.

5. These reasons set out a narrative of the relevant facts about the children, their birth parents and their proposed adoptive parents. The history provided in these reasons is necessarily less detailed than the material set out in the evidence filed in these proceedings. These reasons provide a narrative of the facts essential to the Court’s decision.

6. The Court has considered all the evidence, including the affidavits of the delegates to the Secretary, Benn Kevin Anderson, Denise Kay Berry and Stephanie Ursino, and the affidavit of the adoption assessor, Pria Vernon, annexing a report as required by the Adoption Act, s 91(1). Other affidavits filed include those of the proposed adoptive parents, their referees, and affidavits from both the Crown Solicitors Office and Barnardos Australia (“Barnardos”) case workers. Neither of the birth parents has filed an affidavit, though they were each heard in person at was a lengthy directions hearing and indirectly through reports of their communications to officers of the Department.

The Children, Their Birth Parents and Extended Biological Family

The Children’s Early Years

7. Both children were born in Australia and are Australian citizens. In her infancy, the first born child lived with her maternal grandparents and her birth mother. Her grandparents reported the birth mother struggled to attend to the child’s needs, and expressed concern that she was not meeting her developmental milestones on account of her being left in a baby bouncer for long periods of time. In his report of 23 December 2016, Dr Roger Leung reported that her legs were not sufficiently developed for her age.

8. In March 2014, the first born child came to the attention of the Department (then known as “the Department of Family and Community Services” or “FACS”) through Risk of Significant Harm (“ROSH”) reports the Department had received. These ROSH reports recorded the first born child’s exposure to domestic violence, drug abuse and homelessness. After seven investigations were undertaken by FACS, on 8 July 2016, the first born child was removed from the birth parents’ care and was placed into foster care with Lifestyle Solutions.

9. The second child was born with Neonatal Abstinence Syndrome (“NAS”) and underwent methadone treatment. He was discharged from hospital on 15 July 2016 and joined his elder sister at her foster placement.

10. On 22 September 2016, both children were transferred to the Barnardos Temporary Foster Carer (“TFC”) program. FACS developed a proposed plan for the restoration of the children to the birth parents. The plan required their drug rehabilitation and for each of them to participate in general counselling, domestic violence counselling, parenting courses, mental health assessments and for them to continue cooperation with FACS. But neither birth parent engaged with this proposed plan. They both ultimately failed to demonstrate that they were able to provide a safe and secure environment for the children.

11. Then FACS enquired with both sides of the children’s family to determine whether a kinship placement was viable. Contact was made with a number of relatives. But neither side of the family could satisfy the requirements of this arrangement.

12. On 16 November 2016, final orders were made by the Children’s Court of New South Wales for both children to be placed under the parental responsibility of the Minister for Families, Communities and Disability Services until they each attained the age of 18 years. These orders were made pursuant to Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”).

13. On 20 July 2017, the proposed adoptive parents were approved and the children were moved into their care on 24 August 2017. The first born child was then aged three years and ten months and the second born child was approximately fourteen months old. They have lived with the proposed adoptive parents continuously since then.

The Birth Parents

14. The birth father is of Vietnamese background. He left home at 16 years of age and has a poor relationship with his family. He has a long history of serious drug abuse, and has been incarcerated on several occasions for serious criminal conduct. This has included aggravated robbery, and most recently, assault causing serious bodily harm against the birth mother.

15. The birth mother is of Anglo-Australian background. She has struggled with mental health issues including depression, anxiety and obsessive compulsive disorder. After the birth of the first child, the birth mother suffered postnatal depression and did not engage with family support services or counselling for her support. She started taking ice and heroin in 2014. She took steps in 2015 to attend a detox clinic at Nepean Hospital with the support of her parents.

16. The birth parents have known each other since 2011 and lived together in a domestic relationship. They are no longer in a domestic relationship. Their past relationship involved both physical and verbal abuse. Since 2012, a series of Apprehended Violence Orders (“AVOs”) were taken out against the birth father to protect the birth mother. Recently the birth father was sentenced to a term of imprisonment for assaulting the birth mother. An AVO was still current against him at the time of the final hearing. When the directions hearing took place the continuing personal tensions between the birth parents was quite evident to the Court. For example, the birth mother requested the birth father to leave the courtroom when she was addressing the Court and she did not want to listen to him speaking. The birth father cooperated with this request and left the courtroom for a short period at one point.

17. But the appearance of the birth mother and the birth father was very helpful to the Court in determining whether the children’s adoption by the proposed adoptive parents is in the best interests of the children and whether the proposed adoption plans are likely to be a satisfactory working structure for future contact with the birth parents. At one point in the directions hearing the birth mother stated to the Court about the adoptive parents and the present situation:

“[The proposed adoptive parents], they take really good care of [the children] and I am happy with that and the way that the kids are progressing and everything like that but I am not looking for restoration anytime soon. I am not looking for any quick outcome like that but yeah, at the moment I do not think I have been in the right frame of mind either, just getting out of hospital last year in December and just getting myself back up on my feet this year to even be making a decision.”

The Children’s Extended Biological Family

18. The children have another full sibling, a sister, who was born after her siblings were placed into the care of the adoptive parents. The children’s relationship with their sister must be considered in any adoption plan. The sister was also born testing positive to methamphetamine and withdrawing from methadone. She is currently in a Barnardos TFC placement in Sydney.

19. On 13 May 2019, final orders were made for the sister to be placed under the parental responsibility of the Minister until she attains the age of 18 years. Her carers and the children’s proposed adoptive parents are open to facilitating “ample informal contact between the siblings to support the development of their relationship”. The children have met their sister both in person and via FaceTime.

20. The children’s maternal extended family wish to maintain contact with them both. This extended family includes the children’s maternal grandparents and their maternal aunt. The children’s maternal aunt has children. The children’s maternal grandmother has expressed (including in a letter to the Court dated 16 March 2020) her desire to visit them six times each year. The maternal adoption plan allows for two visits each year. The maternal grandmother has expressed the view that she and the maternal grandfather feel “on the outer” and have been disappointed by the lack of contact with the children. Although there is acceptance on their part of the adoption process that is now underway.

21. The adoptive parents have initiated a few contact visits with the children’s maternal grandparents, and one with the maternal aunt and her children. There are some challenges to developing a good relationship between the adoptive parents and the maternal grandmother. The adoptive parents are open to facilitating similar meetings with the children’s paternal extended family.

22. The children have a photo family tree on their bedroom wall. It includes the birth parents’ family as well as the proposed adoptive parents’ family. The children also have a “Life Story” book which is continually updated to help the children understand their past, their present and to look into their likely future. The children enjoy reading this and actively ask for the book to be read to them.

23. The children understand that the Court is to decide whether the proposed adoptive parents are their “forever family” and that they will continue to see their birth parents, if the Court makes those orders. The children also draw pictures and write letters to their birth parents each month. The birth mother is given monthly updates on the children’s lives through text messages, emails and photographs. And the birth father is sent similar monthly updates through the Barnardos case worker.

24. The adoptive parents are committed to maintaining openness with the children about their adoption and will answer any questions the children have. The children have demonstrated to various Departmental caseworkers and to the author of the Adoption Act, s 91 report that they have a close attachment to the adoptive parents and they all connect well as a family unit. The adoptive parents view the making of adoption orders as legal acknowledgment of their existing commitment in taking full parental responsibility for the children, by allowing them to make legal decisions in the children’s best interests as they grow up.

The Proposed Adoptive Parents

25. The proposed adoptive parents are the children’s authorised carers, who have cared for and had responsibility for them since 24 August 2017. They have been assessed as suitable to adopt under Adoption Act, s 45F. The proposed adoptive parents have been in a personal relationship since 1998 and they married in 2001. Neither adoptive parent has any other children from previous relationships, nor are there any other children in their care. Both adoptive parents are Anglo-Australian and do not adhere to any particular religious belief. Neither proposed adoptive parent is related to the children.

26. The adoptive parents are resident and domiciled in New South Wales, are both of good repute and are proper persons to fulfil the responsibilities of parents: ss 29(1)(a) and 29(1)(b). They have been married for 19 years: s 28(4).

27. The proposed adoptive father is 49 years old and works in the IT industry. He is being treated for a medical condition. The proposed adoptive father has also undertaken a National Police Check. In 2008 and 2010, the proposed adoptive father was convicted on a charge of offensive behaviour and resisting arrest, which he reports were alcohol-related incidents. He has taken full responsibility for these actions and has sought counselling to assist in reducing his alcohol consumption. He has not been involved in any similar incident since 2010. The most recent of these incidents is now 10 years ago, quite long enough for the Court to put these incidents to one side for present purposes. The proposed adoptive father has also been cleared by a working with children check.

28. The proposed adoptive mother works as a medical professional. She is in good health and has been screened by both a nationwide criminal record checks and cleared by a working with children check.

29. The adoptive parents are financially stable to provide for the children’s needs. Recently the adoptive parents moved to a three bedroom house so that the children can have a room each and enjoy a bigger garden. The children enjoy playing with the adoptive parents’ dog.

The s 91 Report

30. Ms Pria Vernon provided a s 91 report dated 19 June 2019 which was tendered in evidence without objection. Its observations and conclusions are accepted and its contents are already reflected throughout this judgment and have been used in the Court’s reasoning. The Court notes that Ms Vernon refers to the proposed adoptive parents as having “provided [the children] with a loving, nurturing, stimulating and secure environment”. Both the children are attached to the proposed adoptive parents who are “very committed to ensuring that the children have an authentic and deep cultural understanding and have gone above and beyond to ensure that [the children] are exposed to Vietnamese culture”.

31. And the children’s confidence in the proposed adoptive parents’ dedication to them has also matured. As Ms Vernon observed in her s 91 report, “The [children’s] attachment [has] grow from positive to secure attachment whereby they are also confident and trust that the proposed adoptive parents will return or be there to meet their needs if or when required”. They are also each now reaching their development goals, and Ms Vernon notes that they are thriving in a more balanced and healthy living lifestyle.

32. The Court is satisfied that the proposed adoptive parents have also seriously committed to ensuring the children have knowledge and appreciation of their birth family. Ms Vernon raises that contact between the proposed adoptive parents and the birth family has only occurred a few times. But she views the proposed adoptive parents as having navigated these occasions with “great skill and commitment to birth family contact”.

33. The children refer to the proposed adoptive parents as “mummy” and “dada” and appear settled. Ms Vernon concludes that the proposed adoptive parents are committed to obtaining full parental responsibility to allow them to make legal decisions for the children.

Relevant Legal Principles and Their Application

34. When making an order for adoption, the Adoption Act, s 8(1) requires decision makers to consider several principles. For present purposes these principles relevantly include:

1. “(a)   the best interests of the child, both in childhood and in later life, must be the paramount consideration.

2. adoption is to be regarded as a service for the child; and

3. no adult has a right to adopt the child.

4. if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

5. the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,

6. (e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare,”

35. The decision-maker must also consider the Adoption Act, s 90, which relevantly provides:

“(1)   The Court must not make an adoption order in relation to a child unless the Court is satisfied:

(a)   that the best interests of the child will be promoted by the adoption, and

(b)   that, as far as practicable and 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, and

(c)   if the prospective adoptive parent or parents are persons other than a step parent or relative of the child--that the prospective adoptive parent or parents have been selected in accordance with this Act, and

(d)   that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and

…

(h)   in the case of a child (other than an Aboriginal or Torres Strait Islander child)--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.

(2)    The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances.

(3)    The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.”

36. Adoption Act, s 91 prevents the Court from making an adoption order unless a written report is provided to the Court by the plaintiff. As earlier indicated a s 91 principal report was provided by Ms Pria Vernon.

37. These reasons set out the Court’s consideration of the best interests of the children consistent with the requirements prescribed under s 8(2): ss 90(1)(a), 90(3).

The Children’s Wishes: s 90(1)(b)

38. Both children are too young to provide consent to their respective adoptions. They do not have a complete understanding of the adoption process. And the second born child is too young to develop an understanding. The proposed adoptive parents are the only family that he has known. For The first born child, she has expressed a positive attitude towards the proposed adoptive parents’ home being her “forever home”. To the extent of the children’s wishes have been expressed, they clearly support the making of an adoption order.

39. Consent to the Adoptions: ss 90(1)(d) and 67(1)(d)

40. The Secretary’s delegate has provided the requisite consent to the adoption of the children under s 52. As neither birth parent consents to the adoptions, the Secretary has sought orders dispensing with their consent, which the Court considers appropriate in the circumstances.

41. The Court is satisfied that the birth parents’ consent can be dispensed with pursuant to Adoption Act, s 67(1)(d), on account of the children having established a stable relationship with the proposed adoptive parents, who are their “authorised carers”. And that the children’s adoption by the proposed adoptive parents will promote the children’s welfare.

42. The adoptive parents have provided a safe, stable and nurturing environment for the children to thrive. And they have done so, which is demonstrable from the children’s physical, emotional and psychological development in the care of the adoptive parents. On the totality of the evidence, the Court is satisfied that the proposed adoptive parents are committed to ensuring that the full range of the children’s needs is met. Their proactive approach to seeking professional guidance on how to parent the children in a trauma-aware way is a prime example of their promotion of the children’s welfare.

Adoption Plans: s 91(1)(h) - 90(2)

43. The maternal adoption plan has been agreed to by the proposed adoptive parents, the Secretary and the birth mother. The birth mother signed the plan on 7 April 2020. Under this plan, the children will continue to have monthly contact with their sister, and will see their maternal grandparents twice each year.

44. The paternal adoption plan has been agreed to by the proposed adoptive parents, the Secretary and the birth father. The birth father signed the plan on 25 November 2019.

45. The Court is satisfied that each of these adoption plans have taken into account the children’s Anglo-Vietnamese culture, religion, as well as their names, each retaining their birth surname. The Court is satisfied that the adoption plans are in the best interest of each of the children.

46. Each of the plans allows each birth parent three separate contact visits with the children each year, with the option of further visits subject to the children’s needs and wishes. The adoption plans have been discussed in detail and represent an appropriate balance between contact with the birth parents and stability for the children.

Alternatives to an Adoption Order: s 90(3); s 8(2)(k)

47. The possible alternative courses to adoption orders are: (a) to maintain the status quo with no new order; (b) to make an order other than an adoption order in favour of the proposed adoptive parents such as an order for parental responsibility; or (c) to make an adoption order in favour of one or both of the birth parents.

48. The Secretary’s submissions supporting course (c) are persuasive. The making of an adoption order is in the best interests of both children. The children were removed from the birth parents’ care and responsibility because of the unsafe environment they provided the children on account of their drug-use, violence and inadequate and unreliable parenting. The children have been in the full-time care of the proposed adoptive parents since both were infants and they have formed strong ties to them over the more than three years since August 2017.

49. Moreover, to separate the children from the adoptive parents and restore them to their birth parents would be likely to cause them immediate distress and anxiety. And it would be likely to pose a danger to their welfare because of the continuing lack of permanency in their situation: it being an extremely remote prospect that the Children’s Court would make an order in favour of the birth parents regaining parental responsibility of the children.

50. And although the birth parents have not formally signed consents to the making of adoption orders, they have both given indications that they are generally content with the quality of care that the adoptive parents are giving to both children. What the birth mother said at the directions hearing has been quoted earlier in these reasons. When asked, the birth father made similar observations about the adoptive parents’ care for the children:

“If you asked me two years ago I probably would oppose but they are doing fine, they are getting well taken care of them they are hitting all their milestones so I do not oppose it your Honour.”

51. Further, the birth parents did not attempt to make a case that there was a prospect that they could reconcile their existing differences and together provide a stable environment for both children and possibly for the children’s sister as well. They did not attempt to trace out any evidentiary pathway in this direction.

52. Course (a) is not in either of the children’s best interests. The children would be left in foster care under the parental responsibility of the Minister and the the proposed adoptive parents would not be able to make significant decisions to promote their welfare. The Court believes this would have a destabilising effect on the children’s development. And maintaining the status quo is not readily consistent with the Adoption Act, s 8(1)(e1) admonition that undue delay in making a decision regarding adoption “is likely to prejudice the child’s welfare”.

53. Course (b) is also not in the children’s best interests. It is true that an order for parental responsibility in favour of the adoptive parents would enable them to make significant decisions for the children. But under course (c) the adoptive parents’ legal relationship with the children would cease once each child reached 18 years of age. Such an order would also lack the permanency, which is in the children’s long-term best interests.

54. In the view of the Court, making an adoption order would vest legal parenthood in those that have cared for the children continuously since infancy. The legal status of parenthood is a fundamental foundation for both of their lives. To leave this ambiguous is to foster instability. Making a decision about their legal parenthood will also provide for the continuation of a clear legal relationship with the proposed adoptive parents when the children are developing beyond 18 years of age.

55. As the first born child has experienced anxiety, the need to make an adoption order is also an important stabilising factor. It can be expected that the making of an adoption order will be consistent with the comfort she finds in the proposed adoptive parents’ home being her “forever home”, as she calls it.

56. The Children’s Emotional and Educational Needs and Disability: ss 8(2)(c) & (d)

57. In determining the best interests of the children for the purposes of making a decision about an adoption, the decision-maker must have regard to each child’s “physical, emotional and educational needs” including their “sense of personal family and cultural identity” and including “any disability the child has”: Adoption Act, ss 8(2)(c) and (d). These considerations weigh in favour of making an adoption order in respect of both children.

58. In the first born child’s case, she is within normal physical and intellectual development limits. She is generally a happy child with secure attachment to the proposed adoptive parents. She is developing friendships with other children at school, swimming and ballet.

59. While she has some “restless nights, periods of non-verbal behaviour, limpness or reactions to some spaces, and sucking her thumb”, the proposed adoptive parents are supporting her “to build upon her self-esteem and trust” and are helping her learn how to regulate her emotions when she becomes stressed or shy. The proposed adoptive parents are seeing a psychologist, Dr Joshua Broderick, to know how best to support the first born child’s anxiety in light of her trauma as a young child. She is also on the waitlist to receive counselling herself.

60. The first born child’s weight was in the 95^th percentile in 2017, but the proposed adoptive parents have addressed this with a balanced diet and an active lifestyle. She is also working on her language skills with a speech pathologist.

61. The first born child attends kindergarten five days each week. She is reported to enjoy learning and playing with her friends. Her teachers are happy with her developmental progress. She enjoys extra-curricular lessons such as jazz dancing and swimming. The adoptive parents also intend to foster her enjoyment of music and her love of singing.

62. In the second born child’s case, despite a difficult start to life, he is progressing well. He has reached his developmental milestones and presents as a typical infant. He is emotionally connected to the proposed adoptive parents and seeks their presence, and is building young friendships at day care and at swimming classes. The second born child attends a day-care three days per week while the adoptive parents are at work.

63. Need to Protect the Children from Physical or Psychological Harm: s 8(2)(j)

64. Both children identify the proposed adoptive parents as “mummy” and “dada”. The Court accepts the affidavit evidence and s 91 report that the children are strongly attached to the proposed adoptive parents who have created a physically and psychologically safe environment for the children.

65. The birth parents have a volatile relationship including domestic violence leading to the birth father’s imprisonment. The children have been removed from their care and need a safe environment to develop.

66. As already stated, the first born child suffers anxiety related to her exposure to trauma in the first few years of her life. The proposed adoptive parents are seeing a psychologist to know how to navigate this as parents, with the view to the first born child having appropriate counselling of her own. They wish to support her by providing her stability, encouragement and the ability to self-regulate her emotions. The second born child was removed from the birth parents’ care at a younger age and is not presenting this psychological distress at this time.

67. The impact of the children’s separation from their birth parents and family was significant, but the Court agrees that it was appropriate. The psychological harm resulting from it has been mitigated by the protective, drug-free, and violence-free home environment the proposed adoptive parents have provided for them.

68. The consideration of protecting the children from physical or psychological harm weighs in favour of making an adoption order in respect of both children. Making an order for adoption will support both children’s sense of security with the the proposed adoptive parents, whom they psychologically identify as their parents. Bringing their legal relationships into conformity with their actual relationships will promote and protect the children’s psychological and emotional wellbeing.

Wishes of the Birth Parents: s 8(2)(e)

69. As indicated earlier in these reasons, the birth parents do not consent to the making of adoption orders but nor do they resist the orders. Their views were heard at the directions hearing and are also outlined in the s 91 report. Both have expressed their desire for the children to be happy, healthy and safe.

70. On 26 March 2020, a Barnardos case worker spoke to the birth mother concerning the maternal adoption plan. The birth mother wishes that she would like her extended family to be involved in the children’s lives but would prefer for these visits to be conducted separately to her own visits, so that she gets “quality time” with the children.

71. On 27 and 31 March, and 3 April 2020, attempts were made by Barnardos to contact the birth mother regarding the maternal adoption plan. No contact was made. On 7 April 2020, the Barnardos casework officer visited the birth mother to discuss the maternal adoption plan. The mother remarked that it was, “pretty straight forward”. She signed the plan despite objections from her partner. This plan was signed by the adoptive parents on 15 April 2020 and the Barnardos casework officer on 17 April 2020. A copy of this plan was sent to the maternal grandparents on 28 April 2020 by email and post.

Attempts to Contact the Birth Parents before Final Hearing

72. The birth parents did not attend the final hearing. Multiple attempts were made to contact the birth parents and remind them of the final hearing on 13 August 2020. On 15, 17, 20 and 21 July 2020, Barnardos attempted to contact the birth mother by means of text message, email and telephone. No response was received. The Court is satisfied that methods of communication chosen to get in touch with the birth mother were quite sufficient to bring to her attention the fact that the final hearing was taking place. Indeed she had been told at the directions hearing that there would be a final hearing which she could attend, which she acknowledged. .

73. On 15 July 2020, Barnardos spoke to the birth father concerning the final hearing. The birth father was made aware of the final hearing. On 17, 20 and 21 July 2020, further efforts to contact the birth father by telephone, text and email were made. No response was received.

Relationships with Birth Parents, Siblings and Significant Others: s 8(2)(f)

74. Under the adoption plan, it is proposed that the birth mother and birth father will have three separate contact visits for two hours each year, facilitated by the adoptive parents. The birth parents will also receive email, text or letter updates once a month. There will also be regular contact with their sister. The Court is satisfied that the children’s relationships with their birth parents and siblings have been given adequate priority and consideration in the adoption plan. The Court expects that the contact which the maternal grandmother is seeking will be able to be accommodated in the medium-term.

75. The Children’s Cultural, Language and Religious Ties: s 90(1)(h)

76. Adoption Act, s 90(1)(h) requires the Court to ascertain 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. The Court is satisfied that these matters have been taken into account. They were well covered by Ms Vernon and in the affidavits of the proposed adoptive parents.

77. As earlier indicated, the birth father has a Vietnamese cultural background. The birth mother has an Anglo-Australian cultural background. The proposed adoptive parents are Anglo-Australian. The children will daily experience Anglo-Australian culture through community, school and extra-curricular activities. It is important that the children’s connection to their Vietnamese cultural background is not lost. A Cultural Care Plan dated 4 June 2018 was made for this reason.

78. The birth father has not cooperated with Ms Vernon’s attempts to engage him with sharing aspects of his Vietnamese culture with the children. But in February 2019, the proposed adoptive parents facilitated a Vietnamese dinner with the birth father’s mother, the children’s paternal grandmother, to celebrate the Tet Vietnamese Lunar New Year festivities. This was reported upon to be a positive experience for all. It is hoped that more such occasions can occur.

79. The proposed adoptive parents have made further efforts to assist both children to understand their Vietnamese cultural heritage. They understand that it is important for the children to know their background in order to foster a sense of identity and reassurance for the children. Both adoptive parents have expressed their desire to provide security and permanence for the children in this way and in the Court's judgment this is to be accepted.

80. The adoptive parents spent two years living in Vietnam and have a clear appreciation for Vietnamese culture. The children listen to Vietnamese vocabulary DVDs, have had day-care workers read to the children in Vietnamese, and the first born child’s school has weekly Vietnamese lessons with a special teacher catering to children of Vietnamese descent. The adoptive parents have celebrated Vietnamese cultural celebrations with the children such as the Tet, Lunar New Year and the Moon Festival, and they regularly eat Vietnamese food both at home and at restaurants.

81. The Court is satisfied that the adoptive parents are making, and will continue to make, satisfactory efforts to ensure that the children do not lose their cultural ties to Vietnamese culture. This is supported by the proposed adoptive parents’ willingness to stay in touch with the birth family.

The Adoption Plans: s 90(2)

82. The Court is not permitted to 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: Adoption Act, s 90(2). The adoption plans have already been described in the course of these reasons and the Court is satisfied that the plans are in the children’s best interests and is proper in the circumstances.

Conclusions and Orders

83. Accordingly, for these reasons the Court is satisfied that an adoption order should be made and makes the following orders in the adoption of [the first born child]:

1. That pursuant to Adoption Act 2000, s 67(1)(d), the court dispense with the consent of the child’s birth mother [name omitted].

2. That pursuant to Adoption Act 2000, s 67(1)(d), the court dispense with the consent of the child’s birth father, [name omitted].

3. THE COURT MAKES AN ORDER for the adoption of the child [name omitted] in favour of the adopting parents [names omitted] and approves the name [birth surname] as the surname and [name omitted] as the given names of the child.

NOTATION

1. It is noted that the maternal adoption plan, annexed hereto and marked “A”, has been approved by the Court.

2. It is noted that the paternal adoption plan, annexed hereto and marked “B”, has been approved by the Court

84. Accordingly, for these reasons the Court is satisfied that an adoption order should be made and makes the following orders in the adoption of [the second born child]:

1. That pursuant to Adoption Act 2000, s 67(1)(d), the court dispense with the consent of the child’s birth mother, [name omitted].

2. That pursuant to Adoption Act 2000, s 67(1)(d), the court dispense with the consent of the child’s birth father, [name omitted].

3. THE COURT MAKES AN ORDER for the adoption of the child [name omitted] in favour of the adopting parents [names omitted] and approves the name [birth surname] as the surname and [name omitted] as the given names of the child.

NOTATION

1. It is noted that the maternal adoption plan, annexed hereto and marked “C”, has been approved by the Court.

2. It is noted that the paternal adoption plan, annexed hereto and marked “D”, has been approved by the Court

**********

Amendments

25 November 2020 - Further anonymisation

Decision last updated: 25 November 2020