Secretary, New South Wales Department of Family and Community Services v Sophia La and Anor; (this judgment has been anonymised)

These proceedings concern the adoption of two children, Barnaby Milo Tolliver (‘Barnaby’) and Jessica Mia Tolliver (‘Jessica’).

The Secretary, New South Wales Department of Family and Community Services (the Secretary) by Summons filed 27 June 2018, seeks the making of the following Orders:

Both birth parents have engaged in the proceedings, indicating that they oppose the adoption. Initially, both parents indicated that they would like more contact with the children with each parent wanting contact a minimum of 12 times a year. On the day of hearing, 29 May 2019, this issue was resolved by the signing of amended paternal and maternal Adoption Plans. The plans stipulated that the birth mother and her family had six contact visits a year, but could invite the paternal family to each visit if they wished. Likewise, the paternal Adoption Plan stipulated that the paternal family would have six contact visits a year but could also invite the maternal family to each visit. The end result being that there would be 12 contact visits for the children.

As a result of discussions it is now sought to register the amended proposed Adoption Plans signed 29 May 2019.

The birth mother and birth father, whilst agreeing to the Adoption Plans, pressed their opposition to an adoption order.

Barnaby was born 28 July 2008 and Jessica was born 25 March 2010 to Sophia La (the birth mother) and Antonio Tolliver (the birth father).

There is a third child of the birth mother and father who is not subject to these proceedings, that is Peter Tolliver (‘Peter’) born 15 May 2011. Peter was assumed into care shortly after his birth. The paternal grandparents currently have parental responsibility for Peter. The birth parents are not currently in a relationship.

Barnaby and Jessica also have a paternal half-sister, Imogen, who is not subject to these proceedings. Imogen resides with her mother.

Barnaby and Jessica have been subject to extensive court proceedings, the history of which it is worth briefly setting out.

By reason of the birth parents drug use, domestic violence and criminal associations, Barnaby was assumed into care on 18 June 2009. On 25 June 2009, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (‘the Care Act’), parental responsibility of Barnaby was allocated to the Minister.

On 25 March 2010, Jessica was assumed into care shortly after her birth, primarily due to concerns about the birth parents drug use as well as domestic violence and criminal behaviour. On 26 March 2010, pursuant to the Care Act, parental responsibility of Jessica was allocated to the Minister.

On 1 April 2010, Barnaby and Jessica’s matters were joined in the Children’s Court of NSW. On 30 June 2010, Final Orders were made allocating parental responsibility of the children to the Minister until they attained the age of 18.

On 13 July 2010, the birth parents filed a Summons commencing an Appeal in the District Court of NSW, for both children to be restored to their care.

On 30 July 2010, Barnaby was placed in the care of the proposed adoptive parents. On 18 August 2010, Jessica was also placed in the care of the proposed adoptive parents. Barnaby and Jessica have been living continuously with the proposed adoptive parents since these dates. At the time the children were placed, the proposed adoptive parents also cared for two adopted children, Jake and Sienna. The proposed adoptive parents later adopted Sharna.

On 12 November 2010, the paternal grandparents were assessed as potential carers. However the caseworkers recommended that the children remain in the care of the proposed adoptive parents.

On 3 February 2011, the birth parents withdrew from the appeal, each consenting to an agreement with the Secretary in relation to contact visits.

On 30 October 2012, the paternal grandparents filed an application pursuant to s 90 of the Care Act, seeking that the Final Orders of the Children’s Court be rescinded and parental responsibility of Barnaby and Jessica be allocated to them jointly. The Children’s Court Clinician recommended that the children remain with the proposed adoptive parents but that the contact with the paternal grandparents be increased. On March 2013, the birth parents were imprisoned. In May 2013, the paternal grandparents filed an amended application seeking for increased, unsupervised and overnight contact with the children.

On 5 November 2013, consent orders were made in the Children’s Court of NSW providing that parental responsibility remain with the Minister and ordering no contact between the children and the birth parents. Notations provide conditions in relation to increased contact between the children and the paternal grandparents. The paternal grandparents signed undertakings in relation to unsupervised contact with the children.

In January 2014, the proposed adoptive parents, with Barnaby and Jessica moved from Sydney to the outskirts of Goulburn.

On 31 July 2014, the paternal grandmother filed an application pursuant to s 90 of the Care Act seeking parental responsibility for the children, or alternatively seeking a variation of contact orders on the grounds that the notations from the proceedings of 4 November 2013 were not implemented by the carers. Orders were made on 13 February 2015 for unsupervised contact to occur at the paternal grandparents’ home.

On 15 April 2015, the Secretary filed an application pursuant to s 90 of the Care Act to vary the orders pertaining to contact. On 30 April 2015, the paternal grandparents filed further application pursuant to s 90 of the Care Act, again seeking parental responsibility for the children. On 10 June 2015, the Children’s Court of NSW made consent orders for the children to spend minimum monthly supervised contact visits at the paternal grandparents’ home with the view to progress to overnight visits.

On 9 August 2016, the paternal grandparents filed an application pursuant to s 90 of the Care Act seeking orders of 10 June 2015 to be rescinded. On 14 September 2016, the Secretary filed an application seeking to vary the orders to reduce the contact to a minimum of 8 times per year. In November 2016, the Secretary filed an application pursuant to s 90 of the Care Act to vary orders pertaining to contact. On 10 April 2017, the Children’s Court of NSW made orders to rescind all previous orders, and for parental responsibility for Barnaby and Jessica to be allocated to the Minister until they retain 18 years of age, and limited contact with the birth family to 12 times per year. The Court also made orders for funding for therapeutic intervention for the proposed adoptive parents and the paternal family, however ultimately no intervention occurred.

On 7 November 2017, the birth mother filed an application pursuant to s 90 of the Care Act seeking for the restoration of Barnaby and Jessica to her care. This matter was then withdrawn on 9 March 2018.

It goes without saying that due to the ongoing litigation there have been significant changes over the years in the contact arrangements.

As I have already stated, Summons for adoption were filed on 27 June 2018. The matter was listed for hearing with two day estimate on 29 and 30 May 2019.

On the morning of 29 May 2019, I was informed by the parties that discussions were underway concerning amended Adoption Plans. When the matter came before me that afternoon, the Secretary, proposed adoptive parents, and the birth family had all agreed on a proposed Amended Maternal Adoption Plan and a proposed Amended Paternal Adoption Plan. These plans effectively resolved the issue of contact between the children and the birth family.

Following oral submissions in the afternoon of 29 May, I gave my brief reasons ordering an adoption of both Barnaby and Jessica now publish in full my reasons.

By s 8(1) of the Adoption Act 2005 (NSW) (‘the Act’), the Court is to have regard to specified principles when making a decision about the adoption of a child, including the best interests of the child both in childhood and in later life, which must be the paramount consideration. Adoption is to be regarded as a service for the child and that no adult has a right to adopt a child. The focus in any proceedings must be in the best interests of the child and how making an adoption order would benefit the child rather than how the order would benefit others.

Section 90 of the Act reinforces those considerations but in addition the child’s age and understanding and wishes if they can be ascertained should be taken into account. The proposed adoptive parents must be regarded as appropriate and those persons who may give consent, in particular the birth parents have either done so or their consent has been dispensed with. The Court must not dispense with consent of the birth parents unless, among other things, it is satisfied that it is in the child’s best interests (s 67(2)).

Due consideration should be given to cultural issues, language, and religion in making any order for adoption. In particular s 7 provides that one of the objectives of the Act is to ensure that adoption law and practice assist a child to know and have access to his or her family and cultural heritage.

Further the Court should not make any order for an adoption if the parties to the adoption have agreed to an adoption plan unless the Court is satisfied that the arrangements proposed are again in the best interests of the child and are proper in the circumstances (s 50(3)).

Importantly the Court may not make an order for adoption unless it considers that the making of the order would be clearly preferable and in the best interests of the child over any other order that could be taken by law in relation to the care of the child.

Various affidavits were read on behalf of the Secretary, of particular note were the court reports of Ms Starkey dated 18 January 2017 and Ms Wyles dated 22 March 2018.

Ms Starkey formed the view that Barnaby and Jessica had formed a strong psychological bond with the proposed adoptive parents and see their foster siblings as their brothers and sisters. In her opinion the proposed adoptive parents have provided the children with good emotional, physical, intellectual and educational support. Ms Starkey was especially concerned about the impact that the ongoing litigation had on Barnaby and Jessica, and noted the difficulties that have emerged in circumstances where Dale and Darla have day to day care for the children but parental responsibility resides with the Minister. She notes that the children have been clear that they want to be adopted and that an adoption order would give the children a sense of stability and security over any other option including a guardianship order.

Ms Wyles formed the view that an adoption order would be in the best interests of Barnaby and Jessica, and for the children to become legally recognised children of Dale and Darla with the same legal status as the other children in the family. She states that the children have a clear attachment to the proposed adoptive parents; they rely on them for support and guidance and are happy and relaxed in their presence. Both children have expressed a clear desire to be adopted. Ms Wyles notes that the proposed adoptive parents have formed the view that contact with the birth family is important for the children’s cultural understanding and are open to developing a more constructive relationship with the birth family.

The birth mother filed one affidavit dated 20 December 2018 and the birth father filed one affidavit dated 31 December 2018. Both birth parents seek that parental responsibility remains with the Minister. The birth mother notes that she has made significant improvements since her children were removed. She has been released from prison and obtained full-time work. She is seeking more frequent contact with the children and wants to share with them her Vietnamese culture. She raises some concerns about the proposed adoptive parents’ ability to care for the children and foster a good relationship with the birth family. The birth father also notes issues with the proposed adoptive parents and contact visits and wishes the children to have a better understanding of their Italian Culture and Catholicism. The birth father also seeks increased contact with the children.

The Secretary submits that adoption is the clearly preferable course in these circumstances. The children have been living with the proposed adoptive parents continuously since mid-2010, and have formed a strong and stable bond with the proposed adoptive parents and the other children in their care. It is submitted that an adoption order will promote the children’s welfare as it will promote stability and certainty and bring their legal status in line with their lived experience.

Further, the proposed adoptive parents have shown that they are loving and caring parents to Barnaby and Jessica and have supported the children both emotionally and physically. Barnaby and Jessica have also expressed their desire to be adopted and become part of the Henry family.

The Secretary submits that there is no realistic possibility of restoration, and that adoption would give the children the security they need to flourish. The ongoing litigation and changing contact regimes have been a source of stress and anxiety for the children who have had a turbulent relationship with their paternal grandparents. It is submitted that an adoption order would provide a more stable base from which Barnaby and Jessica can safely develop the relationship into the future with their birth family.

The birth mother submits that the children’s culture, including language and religion, play a pivotal role in shaping a person’s identity, she states that there are doubts of the proposed adoptive parents ability to adequately provide for the children culturally. She further notes that she has and continues to address the reasons that both her children were removed from her care, she has taken steps to improve her parenting capacity and has demonstrated increasing insight into her children’s best interests. She has made arrangements regarding accommodation and financial stability to cater for the needs of the children and in the circumstances the possibility of restoration cannot be ruled out. The birth mother submits that adoption is not preferable where there is a possibility of restoration. The birth mother states given the historically tense relationship between the birth family and the proposed adoptive parents, particularly in implementing the contact regime, there is doubt about the proposed adoptive parents’ willingness to promote a positive relationship with the birth mother.

In my view, it is appropriate that I make orders for adoption for both children. There are a number of reasons for that. I have carefully considered the materials and, in particular, I have considered the opinions of Ms Starkey and Ms Wyles. The children, as a matter of practical reality, have been in care for many years. It goes without saying that the bonds which are created between each of them, and the proposed adoptive parents, and the rest of the family, are unmistakable. It is clear to me here that the children have a strong bond with their siblings; they clearly are a close and loving family. It seems to me that that should be made more stable and more certain.

I am satisfied that all the formal requirements of the Act have been complied with. I am satisfied from the materials filed that the proposed adoptive parents are of good repute and are fit and proper persons to fulfil their responsibilities as parents (s 28(1)(b)). They have been living together for a continuous period of not less than two years immediately prior to the application for adoption (s 28(4)). The children were present in NSW when the application was filed (s 23(2)(a)).

The paternal family are Catholic Italian and the maternal family are Vietnamese. The proposed adoptive parents are Anglo-Australian. I note that there was concern from the birth family that they would be raised away from their cultural heritage. Barnaby and Jessica have been baptised in both Catholic and Anglican churches and the proposed adoptive parents are supportive of encouraging the children’s engagement with the Catholic faith. They have indicated that both children are enrolled at the local Catholic high school and can attend there if they choose. The proposed adoptive parents have encouraged Barnaby and Jessica to learn both Italian and Vietnamese, while Barnaby has at this stage resisted language learning, Jessica is enjoying Vietnamese lessons. The family enjoy travelling to cultural events in nearby Canberra, and they have taken a family holiday to Vietnam.

I have carefully considered the evidence of the proposed adoptive parents and in my view I consider they have ably demonstrated their capacity to meet the children’s needs. This is also corroborated by the Referee affidavits. The proposed adoptive parents have lovingly attended to the physical and emotional needs of the children. They are supportive of the children’s education and extra-curricular activities and Barnaby and Jessica are flourishing in the Goulbourn community. They acknowledge the benefit of contact with the birth family, and the importance of raising Barnaby and Jessica with a knowledge and understanding of their cultural background.

It is clear to me that both children have expressed a desire to be adopted and to form part of the Henry family. In particular I take into account the views of Barnaby, who is now 11 years old and approaching the age where he can give consent to adoption. Both children have been living with the proposed adoptive parents during the time where their younger adoptive sibling Sharna was adopted, and I am of the opinion that this does give them a more nuanced understanding of the process and consequences of adoption than other children of a similar age.

On the evidence, the children have both suffered significant anxiety at the thought of being removed from their proposed adoptive family. This has impacted their emotional well-being and in particular, in Jessica’s case has impacted on her ability to go to school. It is clear then that both children are extremely distraught at the thought of not staying with the proposed adoptive parents.

In order to make an adoption order, I must be satisfied that an adoption would clearly be preferable to all other options available at law.

Recently in the Adoption of Taylor-Clay [2019] NSWSC 27 Brereton J considered the effects of adoption and the various alternatives. His Honour made a number of important points as follows:

Further in his judgment at paras [64]-[69] Brereton J considered the accepted social science on the comparison between adoption and long-term placements. It is clear from the discussion by the learned Judge that in most situations an adoption order by bringing the child’s legal relationship and status quo in conformity with the practical realities of the situation provides enhanced stability and certainty for all concerned, and that by and large such orders are to be regarded as being in the best interests of the child or children concerned. The facts of any particular case must however be carefully evaluated.

The birth parents both acknowledge that the current placement with the proposed adoptive parents was going well, and save for a few issues, they seemed to agree that the proposed adoptive parents were providing a loving and stable home for Barnaby and Jessica. The birth mother did suggest, however, that there was indeed the possibility of restoration in the future. Notwithstanding the fact that she has clearly made attempts to turn her life around since being released from prison and is now in full-time employment and in stable housing, I am not convinced that restoration is realistic. Both Barnaby and Jessica have been with the adoptive parents for the vast majority of their young lives and have clearly become attached and see the proposed adoptive parents as ‘mum’ and ‘dad’.

Further, I am not satisfied that maintaining the status quo where parental responsibility remains with the Minister, nor allocating parental responsibility to the proposed adoptive parents is in the best interests of the children.

It seems clear to me, given the ongoing litigation as well as the indications from the birth family that they will continue to fight in the courts, that an adoption order would be clearly preferable. The ongoing litigation has clearly been a source of extreme stress for the children and it is in my view that their best interests will be served by bringing them a sense of certainty and stability in that they will legally become part of their family. The adoptive parents have clearly provided a loving and caring home for Barnaby and Jessica and it will clearly serve their best interests to remain with them as part of a legal family.

I am also satisfied, given the evidence of the frequently changing contact arrangements, as well as the distress the children have sometimes exhibited in attending visits with their birth family, that an adoption order will provide a safe and stable environment from which the children can further develop, as they feel able, the connection with their birth family. In particular I note that the proposed adoptive parents have encouraged Barnaby and Jessica to develop their relationship with Peter and there is now provision in the proposed Adoption Plans where they will be able to visit with him once a month.

It is worth noting briefly, that there were some concerns on the part of the birth family, that the proposed adoptive parents would struggle to engage with the birth family in a way as to make contact visits constructive. It is my view, although these concerns may have been genuinely raised, there is no evidence that this has been or will be the case. It appears clear to me, and I am confident given the adoption plans that are now in place, that the proposed adoptive parents will continue to encourage Barnaby and Jessica to engage with their birth family and their cultural heritage in a way that is safe and comfortable for them.

And, in this case, I have no doubts that the adoption is in the best interest of both children, their stability, their psychological wellbeing, and their futures. The increased contact which Mr Gonzales perfectly appropriately points out his client and, presumably, Mr Luong's client wish to pursue is a matter, now, of consensus. That can only benefit the children, in my view, in the current regime of open adoption.

In these circumstances I am satisfied it is appropriate to dispense with the consent of the birth parents under s 67(1)(d). Although this is not a course to be taken lightly, I am of the opinion that both children have clearly formed a strong bond with the proposed adoptive parents, who have, and who I am satisfied, will continue to promote the children’s welfare. I am satisfied that dispensing with consent, in all the circumstances, is in the best interests of the child.

I am also of the view that a name change in both cases is appropriate. I think that will add to the stability and permanence of the relationship as it currently exists. In my view the change of name will have the effect of recognising Barnaby and Jessica as part of the wider Henry family and reinforcing their sense of permanency and belonging. I am also approving of the amended paternal and maternal plans, and it is of great comfort to the Court, at least, that it has been a matter of considerable dialogue between the parties and a measure of consensus which, in the end, in my view, as I have said, not only benefits the children concerned but it will I hope smooth the way for a more practical, and a much more understanding relationship between the birth parents and the proposed adoptive parents.