The Adoption of X and Y (anonymised)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I add that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Barnardos Program manager states: [50]

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

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

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

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

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

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

Section 4(2) of the Act provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A final Apprehended Domestic Violence Order was made against the birth father on 16 December 2019, and the order was varied on 13 January 2020. The order (as varied) prohibits the birth father from assaulting or threatening, stalking harassing or intimidating the birth mother or intentionally or recklessly destroying or damaging any property of the birth mother. The order (as varied) does not prohibit the birth father from contacting, approaching or residing with the birth mother. The order applies until December 2021. [80]

The birth father says in his October 2019 affidavit that he commenced the “Keeping the Children Safe” program on 16 October 2019 and that he was booked in to commence the “Circle of Security Program” on 24 October 2019. There is no evidence concerning the nature of these programs, and whether the birth father completed them in 2019. However, I note that his affidavit affirmed on 26 August 2019 states that he had already completed those programs in 2018.

In her affidavit dated 5 November 2019, the birth mother said that she was staying with her two oldest children (X and Y’s maternal half-siblings) and friends, she was intending to start weekly drug and alcohol counselling and she was planning to arrange further counselling through her GP to help with her mental health. [81] There is no evidence before the Court about the nature of the mental health issues for which the birth mother intended to seek counselling, or whether the birth mother has in fact undertaken drug and alcohol counselling and mental health counselling since November 2019 or what the outcome or impact of any such counselling has been to date.

The birth mother did state in her affidavit that she had recently finished a “keeping children safe” program and was starting a “circle of security course” soon. [82] However, there is no evidence about the nature of those programs and courses.

The birth mother also stated in her affidavit that she was working hard to address anything that might stop Z from being returned to her care and to show that she could provide Z with a safe and loving home. [83] Z was removed from the care of the birth mother and the birth father after an incident at their home on 26 August 2019 in which the birth father is alleged to have injured the birth mother, breaking her nose and giving her two black eyes. [84] The birth father disputes these allegations. [85] In her affidavit dated 5 November 2019, the birth mother said: [86]

Parental responsibility for Z was allocated to the Minister until Z attains the age of 18 years by an order made on 8 May 2020 by the Children’s Court of New South Wales under s 79(1)(b) of the CYP Act. On 2 June 2020, Z was placed in the care of the proposed adoptive parents for X and Y. Barnardos’ plan for Z is that he remain in the care of the proposed adoptive parents on a long term basis, with a view to adoption. [87]

As I have referred to in [7]–[28] above, the birth parents opposed the proposed adoption orders until the first day of the hearing, but changed their position somewhat on the morning of the first day of the hearing and did not participate in the hearing thereafter. However, the birth parents requested 12 contact visits with X and Y per year (rather than the four annual visits provided for in the Adoption Plan) and that each visit should be longer than two hours. One of the reasons for this request was that the birth parents hope to have Z restored to their care, and if that happens they would like to be able ensure that Z can have regular contact with X and Y. [88] In her affidavit dated 5 October 2019, the birth mother also expressed the view that, whilst it was good to bring the whole of the birth family together with X and Y on occasions, there should also be occasions on which X and Y are able to have time with their siblings and occasions on which X and Y are able to see the birth parents separately from other members of the birth family. The birth parents also oppose the proposed change of the surname of X and Y and requested that they continue to be named on the boys’ birth certificates as their birth parents.

The birth parents acknowledge the care that the proposed adoptive parents have provided for X and Y. In his affidavit affirmed on 26 August 2019, the birth father said:

At the hearing on 14 July 2020 when the birth parents were present by telephone, the birth father said:

In her affidavit dated 5 November 2019, the birth mother stated that she could see how much the proposed adoptive parents love the boys and how well they look after them.

The Barnardos Case Manager has contacted the paternal and material half-siblings of X and Y to ascertain their views about the proposed adoption. Some have not responded, but those who have responded are happy or “okay” about the proposed adoption. [89]

Other significant persons in the lives of X and Y have also been consulted. The maternal grandmother believes that X and Y would be better off if not in the care of the birth parents. The maternal grandfather considers that the proposed adoption is the best thing for X and Y and that it “should have happened years ago”. The maternal great grandfather considers that the proposed adoption is “the best thing in the world” for X and Y and that the proposed adoptive parents were “wonderful parents”. The maternal great grandmother was not consulted as she is suffering from dementia. The paternal grandmother preferred that her views about the proposed adoption not be documented. [90]

As I have referred to in [79] above, the three biological children of the proposed adoptive parents are very supportive of the adoption and want X and Y to be part of their family forever.

The proposed adoptive parents are a couple: [91] ss 23(1) and 26 of the Act.

Each of the proposed adoptive parents is over the age of 21 years: [92] s 28(3)(a) of the Act.

The proposed adoptive parents have been living together for a continuous period of more than two years prior to the application for the adoption order: [93] s 28(4) of the Act.

The children and the proposed adoptive parents were present in the State when the application for the adoption order was filed on 11 April 2019. The children have been residing with the proposed adoptive parents at their home in New South Wales since 22 November 2016: [94] ss 22(2), 22(3) and 28(1)(a) of the Act.

The children were less than 18 years of age when the application for the adoption order was filed: [95] s 24(1) of the Act.

Both proposed adoptive parents are of good repute and are fit and proper persons to fulfil the responsibilities of parents: [96] s 28(1)(b).

As both X and Y are less than 18 years old, the consent of the birth parents and the Minister (who has parental responsibility for the children) is required unless the Court dispenses with that requirement: s 52(a) of the Act. Such consent is not effective unless it is informed consent and given in accordance with the Act: s 58(1) of the Act.

The Mandatory Written Information was provided to the birth parents in November 2017 and again in September 2018: [97] s 59(1) of the Act. As both X and Y are under the parental responsibility of the Minister, a copy of the Mandatory Written Information does not need to be provided to the Minister or delegate of the Minister who is able to consent to the adoption: [98] s 59(3) of the Act.

On 6 March 2018, Lynne Moggach, Executive Specialist Adoption for Barnardos and a delegate of the Minister, signed an instrument of consent in the approved form in relation to each of X and Y: [99] ss 58(1)(b), (2)(a) and 61(1) of the Act and Adoption Regulation 2015 (NSW), r 80. Both instruments of consent were witnessed by Carole Ann Lane who, as the principal officer of adoptions at CatholicCare, is a person who can witness the signing of an instrument of consent: s 62(1) and (3) of the Act and Adoption Regulation 2015 (NSW), r 81(1)(a)(iii). Ms Lane also signed a statement before witnessing the signing of the instruments to the effect that she was not aware of any mental, emotional or physical unfitness of Ms Moggach to give consent to X and Y’s adoptions: s 62(2) of the Act.

I note that Ms Moggach’s consent to X and Y’s adoption has not been revoked within the time period provided under the Act: s 73(2) of the Act.

I am satisfied on the evidence that Ms Moggach’s consent is effective, being consent that is both informed and given in accordance with the terms of the Act.

The birth parents have not consented to the proposed adoption. The plaintiff applies for an order dispensing with the consent of the birth parents: ss 52, 54(1)(a), 67(1)(d), 67(2), 68(a), (b) and 70(1)(b) of the Act.

Notice of the application for the orders dispensing with the consent of the birth parents has been given to each birth parent more than 14 days before the hearing of the application: s 72(1) of the Act. [100]

Notice of the application for the adoption orders has also been given to each birth parent more than 14 days before the hearing of the application: s 88(1)(a) of the Act. [101]

Strictly speaking, notice of the application for the adoption orders is also required to be given to the proposed adoptive parents, their three biological children and the mother of the proposed adoptive father, being persons with whom the children reside: s 88(1)(b) of the Act. There is no evidence of formal notice having been given, but I am satisfied on the basis of the many review meeting notes in Exhibit DW-1 to Ms Willick’s affidavit affirmed on 9 April 2019, the affidavits of the proposed adoptive parents read on the hearing of the application and the attendance of the proposed adoptive parents at the hearing of the application that they, their children and the proposed adoptive father’s mother are not only on notice of the application but that they wholeheartedly support the application and wish for the adoption orders to be made. If the adoption orders are made, it will be appropriate to dispense with the requirement for formal notice of the application for adoption orders to be given to the proposed adoptive parents: s 88(4).

The plaintiff has provided a report concerning the proposed adoption, being the report of the Barnardos Case Manager, Ms Everson, supported by the Program Manager, Ms Willick, dated 26 October 2018: s 91 of the Act. Ms Everson is an authorised person within the meaning of s 91(2A) of the Act. [102] I note that the information in that report is supplemented by the affidavits of Ms Willick’s affirmed on 19 October 2019 and 11 June 2020.

The formal requirements of the Act have been satisfied and the plaintiff has provided to the Court a written report by an authorised person concerning the proposed adoption: see [144]–[159] above.

As I have already referred to in [30] above, the best interests of X and Y, both in childhood and in later life, are the paramount consideration in making a decision about their proposed adoption: s 8(1)(a) of the Act. The Court must not make an adoption order unless it is satisfied that the best interests of each child will be promoted by the adoption: s 90(1)(a) of the Act.

Having regard to all of the evidence before the Court, and bearing in mind that adoption is to be regarded as a service for the children (s 8(1)(b)) and that no adult has a right to adopt a child (s 8(1)(c)), and having regard to all of the matters in s 8(2) of the Act, I have decided that the adoption of X and Y by the proposed adoptive parents is in the best interests of each of X and Y, both in childhood and in later life. My reasons for this decision are as follows.

Whilst the children have not reached an age and level of maturity at which they can fairly be expected to express their wishes or to have a detailed understanding of all of background and circumstances in which the adoption application is made or what adoption means in terms of their legal relationships with their birth parents, siblings, half-siblings and proposed adoptive parents, it is clear from the evidence that they have developed a strong sense of emotional attachment to and belonging with the proposed adoptive parents. The proposed adoptive parents are dedicated to promoting the children’s ongoing connections with their birth parents and birth family. They have actively worked to do this in the three and half years that the boys have been in their care, and will continue to do so. However, the boys spent only a very short part of their young lives in the care of the birth parents, they are now very much a part of, and identify as part of, the family unit of the proposed adoptive parents: ss 8(1)(d) and 8(2)(a), (b) and (c) of the Act. I refer in particular to the evidence summarised in [38]–[39], [68]–[83] and [99]–[125] above.

The children’s language, cultural heritage and background and religious ties is compatible with that of the proposed adoptive parents and their family. I note that the proposed adoptive parents actively practise the Christian faith, whereas the birth parents do not identify with any particular religion. The proposed adoptive parents plan to raise the boys in the Christian faith, but are committed to facilitating them forming their own views about religion as they grow older. The proposed adoption will not change the children’s given names: ss 8(1)(e) and 8(2)(c) of the Act. I refer in particular to the evidence summarised in [84]–[98] above.

The children have emotional needs that are being met by the sense of security provided by their belonging to the family unit of the proposed adoptive parents. They also have developmental and educational needs that require ongoing professional intervention and support. They are receiving that support in the care of the proposed adoptive parents. This is very important to give them the best chance of thriving as children and also in later life: s 8(1)(c) and (d) of the Act. I refer in particular to the evidence summarised in [54]–[57] and [74]–[83] above.

I have referred to the wishes expressed by the birth parents concerning the proposed adoption in [13]–[14], [17], [21], [24] and [137]–[140] above: s 8(2)(e) of the Act.

The birth parents have a history of mental health problems, alcohol and substance abuse and domestic violence. The evidence before the Court does not establish that all of those problems have been resolved in the five years since X and Y were removed from their care. Indeed, the evidence establishes that mental health problems were continuing for the birth mother and substance abuse problems were continuing for the birth father as at late 2019. On the NSW Police’s view of matters, which I infer was accepted by the Local Court in making the Apprehended Violence Order in December 2019, domestic violence problems were also continuing. I acknowledge that this is disputed by the birth parents: see [33]–[49] and [126]–[140] above.

The birth parents have not made any application to have X and Y returned to their care, despite their love for their sons, and did not appear at the hearing to actively oppose the adoption orders sought by the plaintiff.

Taking into account all of the views that have been expressed by the birth parents at different times, in the context of the whole of the evidence that I have summarised above, it is my understanding that the birth parents love X and Y, and wish that they could be returned to their care, but recognise that such a change at this stage would be difficult for the boys who have spent the last three and half of years of their young lives in the care of the proposed adoptive parents and are now settled into the family unit of the proposed adoptive parents. The birth parents have been kept up to date with information about the developmental and other needs of X and Y throughout their placement with the proposed adoptive parents and recognise the very high quality of the care that they have provided, and are able to continue to provide, for X and Y.

Although they did not appear at the hearing to oppose the adoption orders, the birth parents have not consented to the adoption orders. For the reasons set out in [192]–[196] below, the Court will make an order under s 67(1)(d) of the Act dispensing with the birth parents’ consent.

As I have already referred to above, the proposed adoptive parents have actively worked to create and continue the children’s connections with their birth parents, their little brother Z and their half-siblings. I refer in particular to discussions with the boys about their birth family and displaying photographs of the birth family in their home, their facilitation of contact visits in accordance with the adoption plan, their willingness to change the adoption plan to suit changing circumstances of the birth family, their willingness to facilitate additional contact outside the formal contact visits where appropriate, their openness in providing information and photos to the birth parents and, recently, their conduct in taking Z into their care to allow the three brothers to be together: see [99]–[123] above. Those of the children’s half-siblings who presently wish to have contact with them are either supportive or, or not opposed to, the proposed adoption. Their grandparents and great grandparents are also supportive or not opposed to the adoption. Other significant persons in their lives – the three biological children of the proposed adoptive parents and the mother of the proposed adoptive father who also lives with them – wholeheartedly support the adoption: see [79] and [141]–[143] above. In these circumstances, the proposed adoption is consistent with the best interests of both children in maintaining their relationships with the significant people in their lives in all the circumstances. Maintaining those relationships as children will give them an opportunity to continue those relationships in later life: s 8(2)(f) of the Act.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 90(2) of the Act provides that the Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.

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

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

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

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

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

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

Section 101 of the Act relevantly provides:

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

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

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