Adoption of R

1. [1]

   The applicant, who I will call S, seeks an order under s 23 of the Adoption Act 2000 (NSW) (“the Act”) that she adopt her brother, who I will call R.

2. [2]

   S was born in India on 21 October 1981 and is now 35 years of age.

3. [3]

   She has three younger siblings, each of whom was also born in India. They are her sisters, H and T, and her brother R.

4. [4]

   R is the youngest sibling He was born on 26 January 1997 and is now 20 years of age.

5. [5]

   The biological parents of S and R (and H and T) are alive and live in India. They are in regular contact with S and R, albeit in the circumstances that I describe below. I will refer to them as “the Parents” or “the Mother” or “the Father”, as appropriate.

6. [6]

   S made her application to adopt R by summons filed on 20 October 2014. R was then just under 18 years of age.

7. [7]

   I have been case managing the adoption application since then.

8. [8]

   At my invitation, the Attorney General of New South Wales applied for and was granted leave to intervene in the proceedings on 17 June 2015. I will refer to the Attorney General as “the Intervener”. Since then, the Intervener has appeared by counsel.

9. [9]

   The Intervener has stated through counsel that he does not consider it appropriate for him to “submit how this particular application should be decided in terms of its merits”.

10. [10]

    Counsel for the Intervener has, however, made submissions as to the matters which favour, and tend against, the making of the adoption order sought. I refer to these below. To that extent, the Intervener has played the role of contradictor.

11. [11]

    The Intervener has also addressed submissions as to the satisfaction of the formal requirements of the Act.

12. [12]

    I was greatly assisted by the participation of, and submissions from, Ms Neville of counsel for S and Mr McGorey of counsel for the Intervener. Both counsel approached the task with a high degree of skill and tact.

13. [13]

    I was also greatly assisted by expert reports from Dr Pooja Sawrikar and Ms Joanne Wyles.

14. [14]

    Dr Sawrikar was retained by S’s solicitors. Dr Sawrikar is from the School of Human Services and Social Work at Griffith University. She is a psychologist with particular expertise in matters associated with Indian culture, spirituality, religion and, more generally, in matters associated with cultural differences in response to stress and its impact on mental health among adolescents.

15. [15]

    Ms Wyles was retained by the Intervener and is a social worker in private practice. Ms Wyles has been contracted by the Department of Family and Community Services as an adoption assessor since 1988. She is also an approved registered adoption counsellor pursuant to s 63 of the Act.

16. [16]

    At the hearing on 31 August 2016, I heard evidence from S and R as well as concurrent evidence from Ms Wyles and Dr Sawrikar.

17. [17]

    Since the hearing, both Dr Sawrikar and Ms Wyles provided further reports summarising their opinions in light of the evidence given at the hearing by S and by R.

18. [18]

    I have also, over the last few weeks, received detailed and most helpful final submissions from both Ms Neville and Mr McGorey.

19. [19]

    I am mindful of how passionately both S and R wish me to make the order that S seeks.

20. [20]

    However, the conclusion to which I have come is that I should not make the order.

21. [21]

    What follows are my reasons for coming to that conclusion.

The formalities

1. [22]

   It is common ground that the formalities required by the Act have been satisfied.

2. [23]

   In particular, the following requirements of the Act have either been satisfied or do not apply:

Uncontroversial matters

1. [24]

   I have been troubled since commencing case management of this matter about whether it is appropriate to make an adoption order in favour of a sister concerning her (now) adult younger brother.

2. [25]

   However, a number of matters are clear and should be stated at the outset.

3. [26]

   The first is that no member of S’s and R’s family opposes the making of an adoption order. Indeed they all (including the Parents) support it.

4. [27]

   The second is that there is no doubt about the warm and loving relationship between S and R, S’s commitment to the promotion of R’s best interests and welfare, S’s preparedness to devote her life to those interests and the role that S has played in R’s life since his infancy as a carer and nurturer.

5. [28]

   Ms Wyles described R as a “gentle, thoughtful young man who is very balanced and intelligent”. Having seen R give evidence, and having read his affidavits sworn in these proceedings, I see no reason to doubt this assessment. S struck me as a woman of great strength and of quiet determination. In the witness box, she impressed me greatly with her grace and composure notwithstanding the great emotional investment she has made in this application and her anxiety that it succeed.

6. [29]

   The third is that there is no suggestion that there is an “immigration purpose” behind the proposed adoption. It was not suggested during the proceedings by the Intervener, or at all, that either S or R are motivated to seek an order for adoption by any apprehension that it will secure or enhance such entitlement as R has to reside in Australia. R came to Australia on a student visa. At my request, the Intervener made an enquiry of the Department of Immigration and Border Protection. The Department advised that an adoption order would not affect R’s student visa status. I was informed that R is now eligible to apply for permanent residency. I do not know whether he has done so. There was no suggestion in the proceedings that the making of an adoption order would have any effect on such eligibility. A person who is a permanent resident in Australia becomes an Australian citizen if adopted under the law of a state or territory by a person who is an Australian citizen at the time of the adoption: Australian Citizenship Act 2007 (Cth). But that section is not engaged as S is not an Australian citizen.

The nature of adoption

1. [30]

   Ms Wyles drew my attention to the statement in the “Mandatory Information on Adoption” prepared by the Department of Family and Community Standards that:

2. [31]

   Ms Wyles said, and I accept, that:

3. [32]

   Thus, adoption is a process by which a child’s legal relationship with his or her natural parents is extinguished and replaced by a similar relationship with another adult or adults. It has been described by the Royal Commission on Human Relationships as “a process by which society provides a substitute family for a child whose natural parents are unable or unwilling to care for the child”.

4. [33]

   This case is outside the ordinary. Although R does not feel emotionally close to his Parents, they are still available to him. They are neither unable nor unwilling to care for him. They still play a role, perhaps an overly intrusive role, in his life. R regularly speaks to and visits his parents.

5. [34]

   R does not anticipate that the making of an adoption order would change this. Nonetheless, he wishes the order to be made so that there can be a legal recognition of the mother-child relationship that he sees as actually existing between him and S, so that he can use that legal relationship as a means by which to manage cultural imperatives which presently operate between him and the Parents.

The applicable legal principles

1. [35]

   The paramount consideration is “the best interests of the child concerned” (ss 7(a) and 8(1)(a) of the Act). The Court must not make an adoption order unless “the best interests of the child will be promoted by the adoption” (s 90(1)).

2. [36]

   The Act makes clear that adoption is to be regarded as a service for the child concerned and to ensure that adoption law and practice assists the child to know and have access to his or her birth family and cultural heritage (s 7(b) and (c)).

3. [37]

   Section 8 of the Act sets out the principles to be applied when making an adoption order. They include, in addition to the above matters, the requirement that the child be given an opportunity to express his or her own views about the matter (s 8(1)(d)) and:

4. [38]

   The Act provides for adoption by a relative.

5. [39]

   However, the Court is generally reluctant to make adoption orders in favour of a relative where the natural parents of the child are alive. Exceptional circumstances must be established: see Application by the Director-General, NSW Department of Community Services: Adoption of DR by DCB and HMB [2000] NSWSC 22 (Hodgson CJ in Eq) at [30]; and Re A & B and the Adoption of Children Act (1965) [2003] NSWSC 595 (Palmer J) at [13] and [18].

6. [40]

   As Mr McGorey submitted:

Factual background

1. [41]

   Each of S, H, T and R was born and raised in India.

2. [42]

   Dr Sawrikar explained that:

3. [43]

   The Parents both have tertiary qualifications. The Father has, since 1979, been working in what was his father’s business. The Mother has also worked in that business since 1997.

4. [44]

   Both the Mother and Father are obliged to devote a large amount of time to their business. R said that, when he was living with the Parents in India, the Parents were rarely home before 9 pm.

5. [45]

   Following R’s birth in 1997, the Mother returned to full-time work. S was required to assist with R’s care. S said in an affidavit:

6. [46]

   In 2002, S completed a Bachelor of Science in India. In 2005, S attained a Masters in Food Technology and, in 2006, obtained what she described as a “very good job in India as a Chemistry Trainer, which involved teaching and research”.

7. [47]

   In the meantime, in April 2004, S married. The marriage was arranged by the Parents and was short-lived. It commenced with difficulty due to dowry demands from her husband’s parents.

8. [48]

   S gave birth to a child on 1 July 2005. The next month she returned, with the child, to live with the Parents.

9. [49]

   S raised her child for about nine months. Relatives of S then applied to adopt the baby. S explained:

10. [50]

    S and her husband divorced in April 2006, at about the time her child was placed for adoption. She has not seen him since. The Parents see the child, now aged 11, and evidently pass on some news about him to S.

11. [51]

    Several years later, in February 2008, S migrated to Australia. She did so upon the strong suggestion of the Parents who, S said in evidence before me, considered that S’s divorce brought discredit to the family. S said that the Parents promised her that “if you go [to Australia], if you are well set there” they would send R to Australia “straightaway”.

12. [52]

    Between 2008 and 2010, S studied teaching at a university in Sydney and, in 2010, graduated with a Masters of Teaching. S is now a full-time primary school teacher. Currently, she is teaching a year 3-4 class at a school in Sydney.

13. [53]

    On 30 January 2010, S was granted a bridging visa and became eligible to apply for permanent residency. She gained temporary residency in September 2011.

14. [54]

    In the meantime, and until 2012, R remained living in India with the Parents. He said that, during this period, the Parents continued to work long hours (rarely coming home before 9 pm) and that “therefore if I needed anything (particularly educationally or emotionally) I would contact Didi. She would answer the phone on most, if not all, occasions and would speak to me regarding any problems I had”.

15. [55]

    “Didi” is the affectionate term that R uses to describe S. He said the word means something like “wise and respected woman”.

16. [56]

    R was due to migrate to Australia, and live with S, in July 2010. He was then aged 13. S had by then concluded her studies.

17. [57]

    At that time, his sister H, then aged 23 and living in Australia, married suddenly and without the approval of the Parents. After becoming aware of H’s marriage, the Parents refused to permit R’s migration to Australia. This was extremely stressful to R.

18. [58]

    The Mother has stated in an affidavit:

19. [59]

    R gave this account of that incident:

20. [60]

    H has since moved to the United States with her husband. Despite the hostility of the Parents to the marriage, R said “now, it’s all fine, they do talk”.

21. [61]

    Ultimately, the Parents agreed to R coming to Australia permanently after “a lot of convincing” from S. R migrated to Australia in April 2012 on a School Student Visa. In the meantime, R had visited S in Australia several times.

22. [62]

    When R migrated, he was 15 years of age. He lived with S and attended a high school in their local area.

23. [63]

    By this time, R’s other sister, T, had also migrated to Australia. T was also living with S. T is now a nurse. She in a relationship with a man of whom the Parents do not approve. R said “my parents are pretty much against the relationship because she has mentioned about it to them already”. R apprehends that if T married against the wishes of the Parents “they would just call me back straightaway. It’s the same thing happening from 2010 [that is, as happened with H]”.

24. [64]

    In January 2013, S obtained permanent residency in Australia. She is yet to apply for Australian citizenship.

25. [65]

    In early 2014, S purchased, in her own name, a property at Granville where she currently lives with R and with T.

26. [66]

    In 2014, R commenced a Bachelor of Commerce degree at a university in Sydney majoring in marketing. He will finish that degree in the first semester of 2017. He has achieved a credit/distinction average. He will then be eligible to apply for a skilled migration visa. Following completion of his current study, R wishes to do a Masters of Sport Management.

The relationship between R and S

1. [67]

   R has said of S, in one of his affidavits:

2. [68]

   R’s desire to be adopted by S is, he informed me, born of a desire to “legitimise” what he sees as the de facto relationship between he and S; namely that of mother and son.

3. [69]

   He also sees it as a means that he can use to resist ongoing demands that he apprehends that the Parents will make of him consistent with Indian tradition. Thus, he said in one of his affidavits:

4. [70]

   Nonetheless, R says that he wishes to maintain a relationship with the Parents and is in regular contact with them (by telephone or Skype approximately fortnightly).

5. [71]

   In an affidavit sworn in October 2015, the Mother said:

6. [72]

   The Father swore an affidavit to similar effect, although expressing himself more briefly.

7. [73]

   However, subsequent events suggest that, although the Parents have said that they no longer expect R to obey them, they still do expect R to comply with their wishes.

8. [74]

   For example, in early 2015, R commenced to make arrangements to travel to Europe to watch the UEFA Euro Football Tournament in France in July 2016 with friends with whom R had grown up with in India and who were then living in the United Kingdom and in Europe.

9. [75]

   In July 2015, R asked the Parents whether he could go to Europe with his friends. They said something to the effect of “yes, sure, we’ll see how it goes”.

10. [76]

    R has said in an affidavit:

11. [77]

    Another example arises from R’s selection to be a member of his university soccer team to participate in the University Games held in Wollongong over four days in July 2016.

12. [78]

    In May 2016, R told his parents he had made the team. He said:

13. [79]

    R told me that during the week preceding the hearing before me, he accepted a Facebook invitation to a friend’s 21st birthday party. He speculated that some of his cousins in India must have seen his Facebook acceptance of that invitation whereupon his father telephoned him and said something to the effect:

14. [80]

    R said that his father “just raged at me for…one or two hours straight”.

15. [81]

    Another example involves R attending the gym. In evidence before me, R said that the parents said words to him to the effect:

16. [82]

    R said that this happened “just last week”.

17. [83]

    He said when he completes his Bachelor of Commerce studies next year he would like to complete a Masters of Sports Management. However, R said at the moment “I would have to ask my parents to see what they want me to do”.

18. [84]

    R said that he was confident that his parents would refuse to give him permission to do a Masters of Sports Management as they would consider there was “no future” in such a course and that they would want him to do a Masters of Business Administration “or something like that, related to business”.

19. [85]

    I asked R whether he had had any discussions with the Parents about that and he said:

20. [86]

    Ms Neville asked R what he thought would happen if he decided to defy his Parents and enrol in a sports management course and he gave this response:

21. [87]

    R gave this evidence:

Why not defy?

1. [88]

   During his evidence, R gave this evidence, in answer to questions from me:

2. [89]

   Later, R gave this evidence:

3. [90]

   And, in answer to further questions from me:

Why not “simply not ask”?

1. [91]

   Similarly:

What difference if an adoption order made?

1. [92]

   I asked R what difference it would make to him, so far as concerns his relationship with the Parents, were an adoption order to be made:

2. [93]

   R said that he wished to direct his filial obligations to S, rather than to the Parents because:

3. [94]

   R said he expected that he would have to account to S, to some extent, for his actions.

4. [95]

   In answer to questions from me he gave this evidence:

5. [96]

   During R’s evidence, as I have mentioned, the question arose as to what would happen if he wished to marry somebody. R said that he thought the Parents would expect to choose a wife for him and said he would “have to get married according to their choice”.

6. [97]

   He said that he “can’t even imagine thinking” about marrying a woman who is not from the Indian culture or of asking his parents about that and said that such a matter would be “absolutely out of the question” so far as his parents were concerned.

7. [98]

   On the other hand, so far as concerns S, R said:

8. [99]

   S expressed similar opinions. She said that she regarded R as a “wise child” who would consult her as necessary (for example, about marriage).

Consideration

1. [100]

   As I have mentioned, in closing submissions, Mr McGorey very helpfully, and in my opinion, fairly, summarised the factors tending to favour and tend against, the making of the adoption order sought.

2. [101]

   Those matters favouring the making of the order are:

3. [102]

   On the other hand:

4. [103]

   In response, Ms Neville contended that the Intervener’s submissions placed undue emphasis on R’s desire to gain psychological independence from the Parents, but otherwise did not cavil with Mr McGorey’s summary of the position.

5. [104]

   As to the Intervener’s submission that R’s “primary motivation” was to gain psychological independence from the Parents, Ms Neville submitted:

6. [105]

   But the manner in which R “lives out his cultural values” is a matter that R, now that he is an adult, must determine for himself. If he believes that S, not the Parents, is best placed to provide whatever “parental guidance” is now necessary then he must find it within himself to look to her for that guidance, and to resist ongoing interference from the Parents.

7. [106]

   There is no suggestion here that an adoption order is necessary to assist R know and have access to his cultural heritage (s 7(c) of the Act: see [36] above). As Ms Neville submitted, R has a deep awareness and commitment to that culture. It is that cultural heritage that is the cause of the anxiety that R now experiences. R said, time and time again, that his need to comply with the demands of the Parents’ was because of how he had been brought up within that cultural heritage (for example see [86], [88], [90] and [91]).

8. [107]

   To the extent that the Parents wish to continue to direct how R lives his life, R must decide for himself whether he will continue to “live out his culture” as he has to date; or defy it.

9. [108]

   Despite Ms Neville’s submissions, I think it true to say that R’s primary motivation for wanting there to be an order he be adopted by S is that he sees such an order as being a tool whereby he can achieve psychological independence from the Parents.

10. [109]

    This emerged as being, to a very large extent, common ground between the expert witnesses in their final reports delivered at my request, following their assessment of the evidence given before me by S and by R, in addition to their concurrent evidence.

11. [110]

    Thus, Dr Sawrikar said:

12. [111]

    And Ms Wyles said:

13. [112]

    I accept that S and R wish to achieve an alignment between what they see as the actual relationship between them (in effect, as mother and son) with a corresponding legal relationship (adoptive parent and child).

14. [113]

    However, as Dr Sawrikar acknowledged in her final report, this is “legally unnecessary” as R is now an adult.

15. [114]

    In any event, as the passages I have quoted from the reports of Dr Sawrikar and Ms Wyles make clear, the primary reason S and R seek an adoption order that reflects what they see as being the real position between them, is not because they entertain any doubt about the matter, or even so that they can present themselves to society here in Australia as a “mother and son” but, rather, so that R can use it to endeavour to repel the ongoing efforts of the Parents to control him.

16. [115]

    I agree with Ms Wyles that it is not the function of an adoption order to achieve this result.

17. [116]

    In any event, I think it no more than a matter of speculation to suppose that the making of an adoption order will make any, or any significant, difference to the attitude of the Parents to R. Although they have both consented to the making of an order, and said that they support S formally assuming a role as a mother to R (see [71] and [72] above), their intrusion into R’s life has continued (up to as recently as the week before the hearing on 31 August 2016: see [79] to [82] above). The Mother has stated (see [71] above), she does not see the adoption of R by S as changing “our…family dynamic”.

18. [117]

    As was submitted on behalf of the Intervener, achieving psychological independence from parents is a normal process experienced by adolescents. This is something that R must accomplish by his own means. It would not, in my opinion, be appropriate to make an order for adoption in order to give R a tool (of very doubtful utility) to use to try and achieve a result that must come from within himself.

19. [118]

    As Ms Wyles says, R may well benefit from counselling to support him through the turmoil and challenges he is experiencing. There are, without doubt, skilled and experienced practitioners within the community that could assist R in dealing with the matters he is facing. R’s solicitors have, however, stated that R “does not wish to participate in further counselling”. That is something that R might wish to reconsider.

20. [119]

    What is clear to me is that an adoption order is not an appropriate solution to the problems R is facing, or an appropriate exercise of this Court’s jurisdiction under the Act.

Conclusion

1. [120]

   I decline to make the adoption order sought.