The Adoption of Cameron (a pseudonym)

1. [1]

   The Secretary, New South Wales Department of Communities and Justice (“the Secretary”) seeks an order that a child who I will call “Cameron” (not his real name), now four years of age, be adopted by a married couple, to whom I will refer as “Jennifer” and “Lindsay” (not their real names) or the “Proposed Adoptive Parents” as appropriate.

2. [2]

   Cameron was taken into care in April 2019, when he was three days old. Cameron has lived with the Proposed Adoptive Parents since he was a little over one week old.

3. [3]

   The Proposed Adoptive Parents have been married since 2008. They have no children. Jennifer, who is now 36, is a primary school teacher. Lindsay, who is now 39, is a pastor at a local Christian church.

4. [4]

   Cameron’s mother is a person who I will call “Julianne” (not her real name). Cameron’s father is not known. Julianne has two other children; “Alice” (not her real name), aged 10, who lives with her father, and “James” (not his real name), who is 16 months old, who lives with Julianne.

5. [5]

   Julianne opposes the adoption.

6. [6]

   On 16 September 2019 the Children’s Court of New South Wales made final orders providing for Cameron to be placed under the parental responsibility of the relevant Minister until he attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). These orders remain in effect.

The circumstances of this case

1. [7]

   Cameron has lived with the Proposed Adoptive Parents for all but eight days of his life.

2. [8]

   There is no dispute about the nature of the care given to Cameron by the Proposed Adoptive Parents.

3. [9]

   That care is summarised in this passage from the report of Ms Diane Edwards prepared pursuant to s 91 of the Adoption Act 2000 (NSW) (“the Act”):

4. [10]

   Julianne accepts that Cameron’s best interests require that he remain with the Proposed Adoptive Parents “at this point and time, as they are all he has known since birth”.

5. [11]

   However, Julianne has said:

6. [12]

   I will return to this.

The formal requirements for adoption

1. [13]

   The formal requirements of the Act have been satisfied.

Aboriginal child

1. [14]

   In her affidavit, Julianne said:

2. [15]

   Jennifer and Lindsay informed me that they learned of Julianne’s belief that her family is of Aboriginal descent within months of Cameron being placed into their care.

3. [16]

   In the Act “Aboriginal” has the same meaning as “Aboriginal person” in the Aboriginal Land Rights Act 1983 (NSW). [1] In that legislation there is a tripartite test for Aboriginality, namely that the person is:

4. [17]

   Under the Act, and despite that definition, the Court may determine that a child is Aboriginal for the purpose of the Act if the Court is satisfied that the child is of Aboriginal descent. [3] This permits a child’s descent to be traced from an Aboriginal person who does not meet the tripartite test. [4] There is no requirement that an Aboriginal child have “a specified proportion of genetic inheritance”. [5]

5. [18]

   As Mr Turnbull, who appeared for the Secretary, pointed out, the genesis of the proposition that Cameron is of Aboriginal descent was evidence received in the proceedings before the Children’s Court. Julianne’s father initially stated that Cameron’s family identified as Aboriginal although, ultimately, he did not maintain that position.

6. [19]

   Julianne’s father expressed the view that Cameron’s Aboriginal descent was from his mother; that is, Cameron’s paternal great grandmother.

7. [20]

   The paternal great grandmother is reported as stating, in August 2019, shortly after Cameron was placed into the care of the Proposed Adoptive Parents, that so far as she knew there was no Aboriginality in her family. A caseworker with the Department of Communities and Justice reported that:

8. [21]

   Julianne said that I should place no weight on this material as her grandmother was then aged and suffering from Alzheimer’s disease. However, the grandmother’s recollection appears from the extract at [20] to be very specific, and her son, Julianne’s father, is reported to have said of his mother that she “forgets certain things but also remembers different events in life” including the date the family migrated from New Zealand.

9. [22]

   In those circumstances the Department has embarked on an extensive search to establish whether Cameron is of Aboriginal descent. It engaged Mr Timothy Dauth, senior family history researcher employed at the Crown Solicitor’s Office, to research Cameron’s ancestry. Mr Dauth has had over 25 years’ experience in this field and was highly qualified to carry out this exercise.

10. [23]

    Mr Dauth has produced a detailed report and prepared an “Ancestor Chart” for Cameron which shows that, ultimately, each of his ancestors on Julianne’s side of the family can be traced back to someone who was born outside Australia; in England, Scotland, Germany or India. Those ancestors were born between 1820 and 1844.

11. [24]

    Mr Dauth’s ultimate conclusion was:

12. [25]

    However, Mr Dauth acknowledged that:

13. [26]

    I think Mr Turnbull was in these circumstances correct to submit that:

14. [27]

    That evidence points to the conclusion that Cameron is unlikely to be of Aboriginal descent.

15. [28]

    The steps that have been taken satisfy me that reasonable inquiries have been made, for the purpose of s 34 of the Act, as to whether Cameron is an Aboriginal child.

16. [29]

    What I have set out here should not be read as an affirmative finding that Cameron is not an Aboriginal child. Rather, my finding is that I am not persuaded, on the evidence that has been adduced before me, that Cameron is an Aboriginal child for the purposes of the Act, and these proceedings. As Mr Dauth’s cautionary comments make clear, the possibility exists that the records he has consulted are not all accurate or complete. It is also possible that Cameron’s ancestors beyond those identified by Mr Dauth, notwithstanding their birth outside of Australia, were themselves of Aboriginal descent.

17. [30]

    In any event, the wider point is that both Jennifer and Lindsay are willing to cooperate with Julianne in exposing Cameron to such Aboriginal heritage as Julianne and her family believe may be relevant to Cameron’s position.

18. [31]

    Thus, Lindsay gave this evidence:

19. [32]

    And:

20. [33]

    Jennifer gave evidence to the same effect.

21. [34]

    Julianne can thus be assured that whatever may be the genealogical facts concerning Cameron’s heritage, he will be exposed to and will learn to understand the traditions of the Aboriginal nation with whom Julianne identifies.

Adoptions generally and the “best interests” principles under the Act

1. [35]

   Applications for adoption constitute a vitally important component of the Court’s work. [6] An order for adoption is one of the most significant, and in human terms, far-reaching of all orders the Court has the power to make. [7]

2. [36]

   Adoption orders possess a “peculiar finality”. [8]

3. [37]

   The far-reaching nature of an adoption order has been described this way:

4. [38]

   I must not make an adoption order in this case unless satisfied that the best interests of Cameron will be promoted by the adoption and that, as far as practicable and having regard to Cameron’s age and understanding, his wishes and feelings have been ascertained and due consideration has been given to them. [10]

5. [39]

   When considering making a decision about the adoption of a child, I must have regard to the best interests of the child, both in childhood and later life (this being the paramount consideration). [11] I must also have regard to the principles stated in the Act that adoption is to be regarded as a service for the child [12] and that no adult has a right to adopt a child. [13]

6. [40]

   In determining the best interests of a child, I must have regard to the matters set forth in s 8(2) of the Act including, relevantly:

7. [41]

   The question of what is in a child’s best interests involves the making of a judicial evaluation and the balancing of many factors from which an overall conclusion must be reached which will be inherently imprecise. [14]

8. [42]

   Cameron is four years of age and cannot fully understand the adoption process, or what it involves. However, he has lived with Jennifer and Lindsay since almost the beginning of his life and they are the only consistent parental figures he has known.

9. [43]

   In this regard, Jennifer has given this evidence:

10. [44]

    Lindsay has deposed:

11. [45]

    Cameron has had some health issues but, as Mr Turnbull submitted, he is developing along the lines expected of a boy his age and appears to be flourishing in the care of the Proposed Adoptive Parents, who are attending to his social, psychological, physical, spiritual and medical needs in an appropriate manner.

12. [46]

    Further, as Mr Turnbull has submitted:

13. [47]

    As I have said, Julianne opposes the adoption of Cameron by Jennifer and Lindsay and, as I have set out, harbours the hope that Cameron could at some point be cared for by her and her family.

14. [48]

    However, as hard as it will be for Julianne to read this, I do not see that as a realistic possibility. Cameron was removed from Julianne’s care almost at birth in circumstances that are not necessary for me to set out here. For a period of three years between shortly after his birth until last year, Julianne had no contact with Cameron. Julianne has not foreshadowed any intention to make an application for restoration of Cameron to her care under the Care Act.

Is adoption the clearly preferable course to take?

1. [49]

   I may not make an order for adoption unless satisfied that the making of such an order is “clearly preferable” in the best interests of Cameron than any other action that could be taken by law in relation to his care. [15]

2. [50]

   I must therefore be satisfied that there is more than a slight preponderance of considerations in favour of adoption over other alternatives. The making of an adoption order must be obviously, plainly or manifestly preferable to any other action that could be taken by law. [16] I must achieve the degree of conviction in favour of adoption commensurate with the gravity of the decision. [17]

3. [51]

   The benefit of making an adoption order is that it will achieve a secure, stable, reliable permanent and lifetime placement for the child in the adoptive family. [18] Adoption serves the identity needs of the child in question, in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family, bringing their legal status into conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own, not only during childhood but for life. [19]

4. [52]

   If I were to make no order, Cameron would remain as a ward of the State until attaining 18 years of age. This would mean that Jennifer and Lindsay would be unable to make significant decisions concerning Cameron, which decisions would require the approval of the Minister by his delegate.

5. [53]

   An order allocating parental responsibility for Cameron to Jennifer and Lindsay would alleviate some of the disadvantages of taking no step, but would remain a temporary order that would expire when Cameron attains 18 years of age. In the meantime, the Minister and relevant caseworkers would continue to be involved in decision making in relation to Cameron.

6. [54]

   Thus, making no order, or making an order for parental responsibility, would lack the certainty and permanency of an adoption order and would also give rise to a risk that Cameron may experience stigma arising from the fact that he would continue to be a “foster child”, rather than living in a family that is recognised at law as his own.

7. [55]

   Ms Edwards has expressed this opinion:

8. [56]

   I am persuaded by that opinion, and the evidence in the case generally, that the making of an adoption order is the clearly preferable course for the Court to take.

Dispensing with the consent of the birth parents

1. [57]

   Julianne’s consent to the proposed adoption is required pursuant to s 52 of the Act unless I dispense with her consent. [20]

2. [58]

   Dispensing with the consent of a parent to the adoption of their child by proposed adoptive parents is a grave step, not lightly to be taken. [21]

3. [59]

   I may not make a consent dispense order under s 67(1) unless, here, I am satisfied that Cameron relevantly has established a stable relationship with Jennifer and Lindsay and that the adoption by them will promote Cameron’s welfare. [22]

4. [60]

   Before making a consent dispense order, I must also be satisfied that to do so will be in Cameron’s best interests. [23]

5. [61]

   For the reasons I have set out above, I am comfortably satisfied about these matters.

6. [62]

   I propose to dispense with Julianne’s consent, and also that of Cameron’s unidentified father.

The Adoption Plan

1. [63]

   I may not make an adoption order if the parties to the adoption have agreed to an adoption plan, unless I am satisfied that the arrangements proposed in the plan are in Cameron’s best interests and are proper in the circumstances. [24]

2. [64]

   If the adoption plan is registered, it has the effect, on the making of an adoption order, as if the adoption plan were part of the order. [25]

3. [65]

   Thus, a party to an adoption plan, once registered, can seek to enforce it as an order of the Court.

4. [66]

   Further, the Court can review an adoption plan on the application of one or more parties to the plan and make such changes, if any, to the provisions of the adoption plan as it considers appropriate. [26]

5. [67]

   The Adoption Plan for Cameron originally contemplated in person contact as follows:

6. [68]

   I was concerned whether this proposal represented sufficient contact between Cameron and Julianne and suggested that, following the hearing on 17 October 2023, the parties engage in a facilitated meeting or mediation to endeavour to agree on a regime involving more frequent contact between Julianne and Cameron.

7. [69]

   The parties engaged in a facilitated meeting on 7 November 2023. The facilitator was an independent consultant and assessor.

8. [70]

   The outcome of the meeting is reflected in a revised adoption plan which provides for Julianne to have contact with Cameron at least seven times a year, with a possibility of an eighth visit if it can be shared with Julianne’s mother. Julianne and her mother have what her mother has described as a “complicated relationship” and have had little contact for the last seven years.

9. [71]

   Julianne wishes to have at least monthly contact with Cameron and told me that she did not think it was fair that her mother would have more contact with Cameron than her as the proposed adoption plan contemplates. However, as Mr Turnbull submitted, Julianne’s mother, and her partner, had regular contact with Cameron for the last three years whereas Julianne has seen Cameron only three times since shortly after his birth.

10. [72]

    I must also take into account the frequency of birth family contact that the adoption plan proposes, being monthly with Julianne’s mother and her partner and, as now proposed, at least seven times a year with Julianne. Contact with Julianne will involve Jennifer and Lindsay, and more particularly Cameron, in a three hour round trip. Contact with Julianne’s mother and her partner involves a one hour round trip. This is a lot of travel for a person of Cameron’s age.

11. [73]

    Overall, and acknowledging Julianne’s strongly expressed desire for more frequent contact, I am satisfied that the contact contemplated by the amended adoption plan is appropriate and in Cameron’s best interests.

Proposed name change

1. [74]

   No middle names are recorded on Cameron’s birth certificate. However, Julianne refers to Cameron using middle names corresponding with those of her father and her grandfather.

2. [75]

   It is proposed that, on the making of an adoption order, Cameron continue to have those middle names but that his surname be that of Jennifer and Lindsay.

3. [76]

   Julianne accepted that it was desirable and in Cameron’s best interests for his surname to include that of Jennifer and Lindsay, but contended that it was important that he retain his existing surname and suggested that he have a hyphenated surname incorporating both names.

4. [77]

   I am persuaded that the name that the Secretary proposes is that which is appropriate and most likely to promote Cameron’s best interests. It reflects his maternal ancestry and maternal family connections, while recognising that Jennifer and Lindsay are to become his adoptive parents who have parental responsibility for him. The change is supported by Ms Edwards, which she views to be in Cameron’s best interests.

5. [78]

   It is important that Julianne understands that, once the adoption order is made, an Integrated Birth Certificate will be created which will include details of Julianne’s place as his birth mother. It will form an important part of Cameron’s life story.

Conclusion

1. [79]

   I propose to make the orders sought by the Secretary, including an order that Cameron be adopted by Jennifer and Lindsay, an order dispensing with Julianne’s and Cameron’s father’s consent, an order approving the adoption plan, and an order approving Cameron’s name change.

2. [80]

   The Secretary should bring in short minutes to give effect to these reasons.