Re the Adoption of AJH

HIS HONOUR: In these proceedings, the Court is concerned with the future of a female child, who was born in April 2013, and who is, currently, in the parental responsibility of the NSW Department of Family and Community Services (“the Plaintiff”) pursuant to orders, made on 15 January 2015, by the Children’s Court at Woy Woy.

By Summons filed on 5 December 2016, the Secretary of the Plaintiff, by his delegate, the Principal Officer, Adoptions, Barnardos Australia (“Barnardos”) seeks an order for the adoption of the child in favour of a married couple, an order dispensing with the consent of each of the mother, and the father, of the child, and an order approving a change of the surname of the child to incorporate the surname of the proposed adoptive parents and to remove the surname of the mother.

In accordance with the requirements of s 180 of the Act, I shall refer to the persons affected by the adoption application by initials, somewhat impersonally, and without intending undue informality, or indicating any lack of respect, in a manner which will not identify them, or make it reasonably likely that they may be identified.

Relevantly, the Dictionary to the Act defines the “parties to an adoption”, to include: (a) the child (to whom I shall refer as “AJH”); (b) … ; (c) person or persons selected to be the prospective adoptive parent of the child ("EGK”) (the proposed adoptive mother) and "JRK” (the proposed adoptive father)), and (d) the Secretary [of the Department].

I shall also refer to the mother of the child as "MLH ", and to the father of the child as "APF". (Each of MLH and APF is not referred to as “a party to the adoption” because she and he, respectively, has not consented to AJH’s adoption.) The term “child”, for purposes of the Act, is relevantly defined to mean “a person who is less than 18 years of age”.

APF is a party to the proceedings. An Appearance, on his behalf, was filed on 21 December 2016. With the consent of the Plaintiff and of the father, by counsel, the Court ordered that he be joined as a party in the proceedings pursuant to s 118(1) of the Adoption Act 2000 (NSW) (“the Act”). He has appeared, subsequently, at various directions, and at other interlocutory, hearings, by a solicitor or counsel, and has steadfastly maintained his opposition to the relief sought being granted.

In broad terms, and throughout the proceedings, APF submitted that, in accordance with s 90(3) of the Act, the Court should not make an adoption order because it could not be satisfied that the order would be clearly preferable, in the best interests of the child. Initially, he contended that whilst, in the past, he may have been a parent who was unable to discharge parental responsibilities, he was now able to do so. He sought an order that the Court refuse the Plaintiff’s application for the adoption order, and that it make an order, pursuant to s 92 of the Act, that parental responsibility for the child, until she attains 18 years of age, be allocated to him.

Alternatively, and in the event the Court determined that an order for adoption was to be made, APF sought:

I should mention that although the only alternatives raised by the Plaintiff and APF until the second day of the hearing were an adoption order or the return of the child to APF’s care, two other alternatives were available for the Court’s consideration, namely making no order, with the effect that the status quo remained in place, or giving parental responsibility to the proposed adoptive parents, both of which alternatives were referred to by the single expert, Dr Catherine Boland, who was appointed by the parties.

By the conclusion of the second day of the hearing, counsel for APF stated that APF, having heard the evidence of Dr Boland, no longer sought an order for parental responsibility of the child to be granted to him, but would still contend that the Court should not make an adoption order, because it could not be satisfied that an adoption order would be clearly preferable, in the best interests of the child. It was submitted that the Court should simply grant parental responsibility of the child to the proposed adoptive parents until she attained the age of 18 years.

In response, later on the second day of the hearing, the Plaintiff continued to press for an adoption order, but submitted if that order were not made, an order granting parental responsibility of the child to the proposed adoptive parents until she attained the age of 18 years should be made: T117.00 – T117.31.

On the third day of the hearing, however, the Plaintiff, having sought further instructions, and having considered that alternative, by counsel, stated that such an order was not sought, and was not an available alternative for the Court to consider, because the proposed adoptive parents did not consent to that order being made: T159.04 – T159.21. Thus, the only alternative that could be considered in the event that an adoption order was not made was retaining the status quo in relation to parental responsibility: T157.1 – T157.22.

I should also mention that following the conclusion of the hearing, the Plaintiff forwarded to the Court an amended Paternal Adoption Plan, which, without objection, was marked as Ex. P5, and which was sought to be registered. Reference will be made to this document, in more detail, later in these reasons.

APF did not consent to the terms of the amended Paternal Adoption Plan, but agreed, in the event that an adoption order was made, and if the Court approved it, that the amended Adoption Plan should be registered: T166.2 – T166.13; T187.44 – T187.46, T188.5 – T188.27.

MLH was not named, or formally joined, as a party to the proceedings. She did not file an Appearance, or otherwise appear, at various directions, or at other interlocutory, hearings, or at the hearing which commenced on 13 November 2017. She had been made aware of the proceedings, but has chosen to play no part in them. She has not consented to the order for adoption, or to the other relief, that is sought.

At the hearing, it was accepted that she did not consent to the adoption order in favour of the proposed adoptive parents. The Court has considered the matter on this basis also.

EGK and JRK were not named, or formally joined, as parties to the proceedings. They did not seek to be joined as parties, or file an Appearance, or appear at the hearing, other than as witnesses. Each was cross-examined by counsel for the Defendant.

In explaining the detailed nature of these reasons, I am reminded of the comments recently made by Sir James Munby, President of the Family Division of the High Court in England, in In the matter of W (A Child) [2017] EWHC 829 at [5]:

Prior to the hearing, the parties’ legal representatives provided a document to the Court identifying the issues in the proceedings (Ex. P3 as amended). From that document, and some of the discussions between the legal representatives during the hearing, at the conclusion of the evidence, the following distinct aspects of the proceedings, remained for determination:

Although not directly the subject of submissions by either of the parties, another option for the Court to consider, to which I shall come, is to defer final determination of whether to make an adoption order until AJH is older, when she is able to give meaningful views as to her consent or otherwise to the adoption. I shall address this option later in these reasons.

These issues are relatively easy to state; the answers are far from straightforward.

As in all contested adoption applications, one certain, and obvious, result is that, whatever decision is made, either APF, the father, and/or MLH, the mother, or EGK and JRK, the proposed adoptive parents, will have to bear deep sadness and emotional loss. Regrettably, but realistically, the Court is unable to resolve the dispute by providing a result that is satisfactory to all, and it cannot permit a comparative balancing of the degree of sadness and sense of loss felt by the adults involved to dictate the result of the case. As repeated during the hearing, ultimately, what must guide the enquiries, as the paramount consideration, is ascertaining the best interests and welfare of AJH, now and in the future. At her age, she is unable to express verbally any meaningful views of her own.

The Principal Officer, Barnardos, is a delegate of the Plaintiff by virtue of an order, given under the hand of the Plaintiff, pursuant to s 206 of the Act. Under s 206(2)(a), the Principal Officer may be conferred with any of the functions delegated to the Secretary by the Minister, or, under section 206(2)(b), any of the Secretary’s other functions under the Act or the regulations. In addition, the Principal Officer may be given all of the powers of the Secretary. Relevantly, included in the powers listed in s 10 of the Act, the Principal Officer is given the ability to make an application for orders to be made for the adoption of a child, in this case, AJH.

Barnardos is also a designated agency under s 139 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). Barnardos has delegated parental responsibility for AJH, including case management and supervisory responsibility for her out-of-home care placement.

Barnardos offers a range of services to children in need of care, including temporary and long term foster care placement. It also offers, under the Find-a-Family program, an integrated service of permanent family care and adoption, to children who have been permanently removed from their birth families by the Courts. Children are referred to Barnardos Find-a-Family by the Department of Family and Community Services.

Children who are placed in Barnardos’ foster care placements are allocated a Case Manager. The role of the Case Manager includes visiting the child’s placement on a regular basis, spending time with the carers and the child to ensure that the placement is adequately meeting the child’s needs, obtaining updates from the carers on the child’s progress, and exploring with the carers how they are managing and if any extra support (emotional or practical) is required. Depending on a child’s age and maturity, the Case Managers also spend time alone with the child to explore the child’s feelings and sense of happiness within the placement. They also have ongoing contact with the child’s parents in order to provide them with information as to the child’s wellbeing, to discuss any concerns that have been identified and to schedule contact visits and Case Review meetings.

On 21 January 2015, AJH was referred to the Barnados Find-a-Family program. On 27 March 2015, AJH was matched to EGK and JRK, approval being granted because of their ability to support and facilitate AJH’s contact with her birth family, their ability to meet her developmental and cultural needs, and their ability to care for AJH should she be identified as having Foetal Alcohol Syndrome.

On 23 April 2015, Barnardos formally accepted AJH into the Find-a-Family program and the Department of Family and Community Services transferred Case Management for AJH’s day-to-day casework and delegated parental responsibility to Barnardos.

Currently, the Case Manager for AJH is Ms J A Watkins, who gave evidence, by affidavit, in the proceedings. Earlier Case Managers were Ms S O’Brien (between April 2015 and September 2015) (who did not give evidence); Ms K T Shannon, who had been AJH’s Case Manager between September 2015 and July 2017 (who is no longer an employee of Barnardos but who had sworn two affidavits read in the proceedings); and then Ms C McClure, who was the Case Manager until late September 2017 (who did not give evidence).

Barnardos conducts regular Review of Arrangements for children in the Temporary Family Care program and Find-a-Family Program. A child’s parents and the carers are invited to attend. In this case, there have been a number of meetings in 2015 and 2016, at none of which has MLH attended, but at all of which APF has.

On 18 April 2016, an Adoption Approval Panel Meeting was held at Barnardos, the outcome of which was a recommendation for approval for the commencement of adoption proceedings for AJH.

On 30 May 2016, the CEO of Barnardos Australia, Ms D Cheers, a delegate of the Secretary, gave approval for the commencement of adoption proceedings in respect of AJH. She also sub-delegated her parental responsibility for AJH to Ms L Moggach, Executive Specialist, Adoption at Barnardos.

On 21 June 2016, Ms L Vihtonen, the former Principal Officer of Barnardos, wrote to MLH and APF advising each, by letter sent by registered post, that approval had been given for the commencement of adoption proceedings in respect of AJH.

On 27 June 2016, Ms L P Moggach, Executive Specialist Adoption for Barnardos Find-a-Family, gave consent to AJH’s adoption in favour of the proposed adoptive parents.

There have been detailed notes of events kept by the Case Managers, a copy of which notes forms part of the evidence relied upon. It will be necessary to refer to some of the information contained therein. (There was no suggestion that the information contained in the notes was untrue, although APF disputed some of the assertions made about his conduct.)

Various interlocutory orders were made, usually by the agreement of the legal representatives, after the commencement of the proceedings, including that:

On 1 May 2017, the application was listed for hearing, as a contested hearing.

The parties attended mediation on 13 September 2017. No agreement was reached on any issue.

The hearing commenced on Monday, 13 November 2017 and concluded on Wednesday, 15 November 2017. The Plaintiff’s application was supported by an affidavit of a delegate of the Secretary of Family and Community Services, Ms Watkins, who, as well as being the current Case Manager, is also a Program Manager, Adoptions, employed by Barnardos. There was a very large exhibit annexed to this affidavit (comprising some 420 pages) (which was marked as Ex. P1 at the hearing). Her second affidavit identified supporting evidence, including further developments that had occurred, or casework that had been undertaken, in relation to AJH since the Summons was filed. In addition, there were two affidavits of Ms Shannon, to the first of which affidavit was annexed a report concerning AJH pursuant to s 91 of the Act. Neither Ms Watkins, nor Ms Shannon, ultimately, was cross-examined. There is no reason to doubt the evidence given by them.

The Plaintiff also read an affidavit from each of EGK and JRK. Each of them was cross-examined.

Finally, there were three referee affidavits in support of the character of EGK and JRK. None of these deponents was cross-examined. There is no reason to doubt the evidence given by them.

(There were two formal affidavits, to which I shall refer, dealing with service of documents. Neither deponent was cross-examined.)

Apart from the affidavits referred to, counsel for the Plaintiff tendered, without objection, an undated letter from the Newcastle Maori Club (Ex. P2), which detailed the involvement of EGK, JRK and AJH, in that Club, and also, without objection, a document headed “NSW Review Barnardos” dated 4 October 2017 (Ex. P4). (I have earlier referred to Ex. P3 which related to the issues, as amended, in the case.)

For his part, APF relied upon three affidavits, two of which were made by him. The first was one affirmed on 23 March 2017 and the other was affirmed on 18 October 2017. In the second affidavit, he stated that his purpose was to “address allegations and assertions raised in the plaintiffs (sic) material that was not addressed” in the earlier affidavit “and to provide an update on my contact with [AJH] and future proposal’s (sic)”. APF was cross-examined.

The third affidavit was filed in Court, without opposition, on the morning of the first day of the hearing. It was by APF’s father, KN, who was not cross-examined.

APF tendered no documents.

Pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), rule 31.37, Dr Boland was appointed as a single expert and she provided a signed report dated 11 August 2017 (a copy of which came to be annexed to her affidavit affirmed 7 September 2017). I shall refer to the report, in more detail, later in these reasons.

By agreement of the parties, Dr Boland was called as the first witness and as each of the parties was “affected”, she was cross-examined by both counsel: UCPR, rule 31.43.

I should not proceed further without mentioning that the Court has been greatly assisted by the high standard of representation provided by the legal representatives of the Plaintiff and of APF. Both counsel, and her instructing solicitors, has acted, as one would expect in a case such as this, not only at the hearing, but throughout the case, fairly, patiently, courteously and with empathy. I wish to thank them, most sincerely, for the sensitivity and the care with which they have presented this case to the Court.

The evidence reveals that discussions regarding AJH’s proposed adoption occurred with MLH by telephone, or face to face, on about eight separate occasions during 2015 and 2016. However, it is fair to say that there was some difficulty encountered contacting MLH since the commencement of the proceedings.

I have read an affidavit, affirmed on 2 December 2016, of Ms Watkins, together with the exhibit to that affidavit (Ex. P1). There is evidence that MLH was provided with the Mandatory Written Information on Adoption, by registered post, on 2 August 2016. The documents provided contained Information for a Parent with a Child in Out-of-Home Care; the Post Adoption Information Brochure; and a copy of the Instrument of Consent.

On 12 August 2016, MLH stated to Ms Shannon that she had received the “paperwork”. MLH also stated that she intended to contest the application and had retained a solicitor.

On 24 October 2016, Ms Shannon sent a letter to MLH, by registered post, enclosing a copy of the proposed Maternal Adoption Plan and some photographs. The letter was delivered to MLH on 26 October 2016.

I have also read an affidavit affirmed 14 December 2016, of Ms Shannon, who deposed that on 8 December 2016, she attended the home of MLH (who was known to her) with another Case Manager (Ms S Rossouw) and handed to her a Notice of Application for Adoption Order and Notice of Application for Consent Dispense Order dated December 2016, together with a copy of an Adoption Plan, signed by EGK and JRK, and also by Ms D K Berry, a Principal Officer of Barnardos.

MLH, who was described as being “resistant in speaking to me”, said to Ms Shannon “I’m not reading them (the documents). They are going straight in the bin”.

It was accepted by counsel for the Plaintiff that MLH had not been served with a copy of the Summons: T155.50.

I have also read an affidavit, affirmed on 10 April 2017, of Ms N D Hailstone- Bradley, a solicitor employed in the office of the Crown Solicitor, with the carriage of the matter.

Ms Hailstone (as she is professionally known), deposed that on 8 February 2017, in accordance with the Court’s directions, she sent, by registered post, and also by express post, a letter to MLH informing her of the date of the preliminary hearing, pursuant to s 82 of the Act. In that letter, Ms Hailstone enclosed “two brochures published by Legal Aid, which outline how she could obtain legal assistance if she wished to contest the application”.

Her evidence also revealed that on 13 February 2017, the letter was delivered to MLH, who, apparently, signed a receipt.

There is no suggestion that MLH contacted Ms Hailstone following receipt of these documents. Nor did she contact any representative of Barnardos, or EGK and JRK, to indicate any intention to oppose the application for the adoption order. There, apparently, was some contact, through social media, between MLH and APF, when he informed her that the Court proceedings were on and that he was going to come to court to fight for her daughter. (This was said, without objection, by APF’s counsel from the Bar Table: T2.00 – 2.05.)

No notice of any intention to respond has been filed by, or on behalf of MLH and she has not filed, or served, any evidence. No legal representative has appeared on her behalf at any time.

Despite being called outside the Court, at the commencement of the hearing, MLH did not appear. Looking outside the immediate precincts of the Court room, none of the parties saw MLH.

Section 59(1) of the Act provides that "The Secretary or appropriate principal officer must ensure that a person whose consent to an adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption". I have referred to the evidence of service above. I am satisfied that there has been compliance with s 59(1) of the Act.

Section 72(1) of the Act provides:

Section 88(1) of the Act provides:

Clause 90 of the Adoption Regulation 2015 (NSW), provides that notice of an application for an adoption order must contain the following particulars:

I am satisfied that the correspondence provided to MLH contains the relevant particulars.

There is no evidence of service of any document providing notice of the hearing date upon MLH. However, as stated earlier, the document entitled “Notice to Dispense with Consent” and “Notice of Application for Adoptions Order”, which was personally served on MLH, stipulated that she had 14 days in which to file a notice of appearance, failing which orders could be made in her absence.

In addition, MLH was given notice of the date, the time, and the place, of the preliminary hearing. However, MLH did not appear personally, or by a legal representative.

The Supreme Court Practice Note Eq 13 - Adoptions, which commenced operation on Friday, 1 July 2016, provides, at Paragraph 10(g), that the Plaintiff must file, with the Summons, or as soon as practicable thereafter, affidavits of service made by the person/s who personally served notice on a birth parent/s (or person with parental responsibility for a child), annexing a copy of the notice served (under the Act s 54(3)(a), s 72(1) or s 88(1)), or if personal service is not effected, an affidavit of postal service which also explains why that course of service has been adopted.

There is no evidence, otherwise, that MLH has engaged, in any way, with the legal representatives of the Plaintiff.

The Court is not required to indefinitely delay the completion of the hearing in the hope that a party (or in this case, a person who will be affected by the determination of the case) might change her, or his, mind and appear: Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; [2000] HCA 40; Taylor v Taylor (1979) 143 CLR 1 at 4; [1979] HCA 38.

Overall, I am satisfied that reasonable attempts have been made, fruitlessly, to have MLH participate in the proceedings, and that she has made an active choice not to do so. In my view, it would not be consistent with the interests of justice, or, as importantly, with the best interests of AJH, to have delayed the hearing or the determination of the proceedings. In any event, APF, by very experienced counsel, has made all the submissions in opposition to the granting of an adoption order that could be made.

In all the circumstances, I was satisfied that it was appropriate for the Plaintiff’s application to be determined in the absence of MLH. Of course, I have taken into account the fact that, as the mother of AJH, she does not consent to the orders that are sought being made.

The evidence reveals that discussions concerning AJH’s proposed adoption with APF occurred by telephone or face to face on thirteen separate occasions during 2015 and 2016.

There was no suggestion that APF had not been served with all of the necessary documents required to be served upon him: T150.20 – T150.24. As stated, he has appeared, throughout the proceedings and at the substantive hearing, by solicitor and counsel.

Before an adoption order can be made in New South Wales, the Court must be satisfied that a number of procedural factual safeguards required by the Act have been met.

I shall refer to the formal matters that are required by the Act, by reference to the facts of this case, as there is no dispute about them:

In a claim for an adoption order, factual context is necessary. It is convenient to begin with a statement of background facts, since these provide that context. A comprehensive account of the history is identified in the affidavits read by counsel for the Plaintiff. It is not necessary to repeat all of that history.

The following facts are clearly established. In relation to any matters that were in dispute, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

APF was born in August 1973 and is aged 44 years. MLH was born in November 1973 and is also aged 44 years. They are no longer in a relationship, having separated in December 2013. They were not married, at any time, to each other.

AJH was born in April 2013 and is now aged 4 years and 8 months. She is the only child of the relationship of APF and MLH.

AJH is said to derive Maori heritage through APF who is a Maori man. He identifies as Maori through his father, KN, who, in turn, derives it from his mother, RO, who is regarded as a full blood Maori.

Barnardos’ records show that ALH has five maternal, and two paternal, half-siblings. Her maternal half-siblings are a half-brother, DH, who was born March 1995, and who is aged 22 years; a half-sister, B-AH, who was born in January 1998, and who is aged 19 years; a half-brother, BH, who was born in July 1999 and who is aged 18 years; a half-sister, SH-G, who was born in June 2004, and who is aged 13 years; and CH-G, who was born in November 2005, and who is aged almost 12 years.

Each of SH-G and CH-G is under an order granting parental responsibility to the Minister. Both reside in a placement with authorised carers at Inverell, New South Wales.

The paternal half-brothers are JoN, born in December 1996, and who is almost 21 years of age and JaN, born in September 2000, and who is 17 years of age. Each of these half-brothers of AJH live with their father, APF.

Other significant people in AJH’s life are her paternal grandfather, KN, her maternal grandmother, JH, her maternal grandfather, RH, and her maternal aunt, KO. (AJH’s paternal grandmother died in 2003.) KN gave evidence by affidavit, read in APF’s case. He was not cross-examined.

Between August 2013, and January 2014, the Department of Family and Community Services received a number of risk of harm reports in relation to AJH and her maternal half siblings. The substance of the reports concerned AJH’s exposure to domestic violence (between APF and MLH) associated with alcohol misuse.

AJH was placed in the care of a Community Services Emergency carer, following her assumption into care, on 10 January 2014.

On 15 January 2014, a Care Application was filed in the Children’s Court at Woy Woy, NSW, in relation to AJH and two of her half-siblings (SH-G and CH-G).

On 3 February 2014, by consent of MLH and APF, and without admissions, the three children were found to be in need of care and protection. (It will be necessary to return to some aspects of the history of their relationship and APF’s past.)

AJH remained in emergency care until 16 May 2014, when she was moved to a Barnardos’ carer, with whom she remained until 4 July 2014. Between 4 July 2014 and 11 July 2014, AJH was placed with another temporary Barnardos’ carer. Then, until 22 April 2015, was placed with another temporary Barnardos’ carer.

AJH was placed with EGK and JRK on 23 April 2015 and she has lived with them at all times since then. She refers to them as “Daddy” and “Mummy” respectively.

EGK’s father is deceased. She continues to have contact with her mother, her step-father, and with her half-brother and half-sister (who are twins).

JRK’s parents are deceased. His step-mother, who is still alive is Maori. He did not grow up in her care, but still sees her about once a year. She lives in Queensland. AJH has met her once, in September 2016: T98.07 – T98.28; T112.41 – T113.21. He also has a sister who lives in Griffith, New South Wales.

On 17 November 2015, APF lodged an application under s 90 of the Care Act, for the rescission or variation of the care order and seeking restoration of AVH’s care to him.

On 2 March 2016, APF’s application was dismissed, the Children’s Court having declined to give him leave to proceed with his s 90 application. Whilst in the proceedings, it was acknowledged that APF has “made some steps” and that “he accepted the impact that his violent behaviour has had on his children”, it was also found that he “has not sufficiently addressed alcohol use and anger management issues”. The Children’s Court also accepted the submission that APF’s affidavit “did not display insight into his daughter’s (AJH’s) needs and care placement”.

For some time, there were no formal contact orders in place in relation to AJH’s contact with members of her birth family. However, contact between them was provided for in an Addendum to the Care Plan, which was filed with, and approved by, the Children’s Court on 15 January 2015. That Addendum provided for AJH to have a minimum of six visits per year with APF, with her paternal half-siblings to attend APF’s contact visits; and a minimum of six visits with MLH, with AJH’s maternal half-siblings to attend MLH’s contact visits. It also provided for AJH to have separate contact with SH-G and CH-G six times per year.

Following final orders, the Department provided Barnardos with a Transitional Contact Plan that was in place from January 2015 until July 2015. This plan provided for AJH’s contact visits with her birth parents to be reduced, in line with her Care Plan. From July 2015 contact visits became every second month, for each parent, for a period of two hours.

Since AJH’s entry into the Find-a-Family Program, APF has attended every scheduled contact visit.

Contact visits, which are now usually arranged directly between EGK and APF, without the involvement of Barnardos, generally, are positive, with APF behaving appropriately during the visits and interacting well with AJH. Whilst there were some problems in late 2016, there is now, for the most part, an amicable relationship between EGK and JRK, on the one hand, and APF, on the other.

EGK gave evidence that any concerns that she had concerning APF’s previous history of violence have now started to abate. She has found him, generally, to be respectful and there has never been any threatening behaviour by him towards EGK or JRK: T80.43 – T81.42. Indeed, there is evidence that, now, a more flexible approach to contact visits is occurring between EGK and JRK on the one hand and APF on the other.

AJH has had contact with her external paternal family as follows:

Contact visits between AJH and MLH have not been occurring as regularly as those between AJH and APF. It appears that MLH’s attendances have been less than reliable, despite arrangements having been made for them to occur. AJH has had contact visits with MLH four times in 2015; twice in 2016; and once in 2017 (until the date of hearing).

It is clear from all of the evidence that MLH’s attendance at contact with AJH has been erratic since 2015. (It is not necessary to detail the numerous attempts made by Barnardos to arrange contact visits between AJH and MLH. In particular, Ms Shannon has made many attempts to be in touch with MLH by telephone, by post, through social media, and by email, without success.)

Because, on some occasions, MLH has been somewhat unreliable, EGK does not inform AJH of contact visits with MLH “until we have had confirmation … that [MLH] will be attending”. Usually EGK tells AJH on the morning of that contact visit.

However, when contact has occurred, MLH has engaged in an age appropriate way with AJH, and AJH has appeared comfortable in her presence. MLH was also considered appropriate in her interactions with AJH and AJH was often observed laughing and smiling throughout the visits with no signs of distress. The evidence reveals that AJH appeared to enjoy her visits with MLH.

EGK did notice a change on the last contact visit with MLH, being 10 June 2017. MLH and EGK and JRK “were able to talk, and [MLH] actually gave us her email address and her contact details and postal address which, prior to that, I didn't have… [MLH] was happy to talk to us and engage with us, and we haven't had that previously, so it was a really positive experience, being that we could talk to [MLH] freely about things and about AJH and what she has been up to and so forth, it made it easier on us which, in turn, makes it easier on AJH”: T72.19 – T72.33.

Although arrangements were made, on this occasion, for AJH to telephone MLH on MLH’s birthday, in November 2017, and although EGK organised for that to occur, with AJH leaving a birthday message for MLH, at the date of hearing, there was no response: T89.38 – T90.09.

There have been eight contact visits, over the period between 2015 and 2017, with other maternal family members. In part, this is not caused, in the case of AJH’s maternal half siblings, by a lack of interest, but rather by the tyranny of the distance between the places where the family members live. They are also in touch via FaceTime, usually on a monthly basis.

Because it is relevant to the issue of the Adoption Plans, it should be noted that both MLH, and APF, have expressed the view that she and he, respectively, do not want EGK and JRK to be present at the contact visits with AJH. Indeed, APF stated, at T135.18 – T135.23:

APF repeated that he did not “understand why I haven't been given a chance one on one with my daughter”: T135.47 – T136.00; that “Now she's going to preschool and she can go off with someone she don't even know, I'm sure she can go off with her own father”: T136.02 – T136.05, and that “I don't think there's a problem with my parenting capacity, so I don't see why. There isn't an issue about my parenting capacity”: T136.18 – T136.21.

Although the contact visits between AJH and APF, and with MLH, respectively, is “supervised”, by EGK and JRK being present, it is important to note that in Dr Boland’s view, the primary reason for the “supervision” is actually AJH's need to have closer proximity to EGK and JRK, particularly when she is in a situation where she feels unsure, rather than their attendance being for a specific need to supervise the parenting capacity of APF: T20.20 – T21.29.

AJH has been observed to seek EGK and JRK out during contact visits, before returning to interact with APF, or with MLH, during the contact visits with him, and with her, respectively. EGK and JRK confirmed that prior to contact visits AJH always asks “Are you coming too?”: T102.29 – T102.42.

Dr Boland’s oral evidence on the topic of “supervision” should be referred to because it is important. She stated at T21.08 – T22.34:

(I should state that I am unable to accept APF’s previous complaints that EGK and JRK “undermine” his contact time with AJH, or that they try and “control and dictate the visits too much”. Nor do I accept his complaint that they are not being honest about his relationship with AJH or that they are not promoting that relationship. I shall refer to some of the evidence that suggests quite the contrary.)

I am satisfied that the following facts have been established.

During the first two years of her life, AJH had significant disruptions to her attachment relationships. The precise causes thereof are unclear, although it may be that she was exposed to some neglect and/or family violence. Then, there was a period of multiple placements before she came into the care of EGK and JRK.

At the time AJH came into the care of EGK and JRK, she was withdrawn and displayed signs of anxiety and some detachment. She was reported to have significant sleep disturbance, behavioural disturbances and interpersonal withdrawal.

Dr Boland described AJH as a child with a very fragile sense of trust in adults, and a very poorly developed capacity to know and understand who are the people upon whom she could rely and to whom she should turn: T17.7 – T17.11.

Dr Boland also described AJH as an “inquisitive, active and engaging pre-school aged child” who was “somewhat wary and shy initially”. She answered some questions directly, particularly when encouraged by EGK and JRK, but she was “verbally somewhat reserved … She impressed as a child who was quite determined in the way in which she approached toys and other activities”.

AJH currently attends a local pre-school on two days per week, starting at about 8:00a.m. and 8.30 a.m, “depending on how the morning has gone, and I pick her up about 3.30 in the afternoon”. She has made some “beautiful friends” there. It is hoped that she will attend the local pre-school four days per week, next year: T70.45 – T71.20.

AJH has settled well into her placement with EGK and JRK. She appears to be very comfortable in their presence and they appear to be very attuned and responsive to her emotions and needs.

Dr Boland observed there to be “a great deal of physical affection between” AJH and EGK and JRK.

Having read the evidence of each, and observed both of EGK and JRK in the witness box, I am satisfied that the following facts have been established.

JRK was educated in Tasmania and studied a Bachelor of Engineering. He has worked in various technical positions and is currently employed as a Technical Services Officer.

EGK was born and raised in Canberra. She completed her HSC and also is currently employed as a Customer Service Advisor.

They have a great deal of social support in close proximity to where they live, including a number of close friends upon whom they could rely in case of emergency. Many of their friends have young children.

Each of EGK and JRK has disclosed to the Court, the ways in which she and he assists AJH to know her birth history and legal status, as well as to have contact with her birth family and her cultural heritage. Each also gives evidence, about the intention to be “open” with AJH about her adoption and adoption issues throughout her childhood and later life.

They have been able to meet all of AJH’s physical, emotional, social, financial, and identity needs whilst she has been living in their care. They do not have concerns relating to their capacity to deal with any possible future challenges that AJH may present in relation to possible Foetal Alcohol Spectrum Disorder.

Each has stated that he, and she, respectively, has a positive attitude towards AJH having contact with members of her birth family.

In addition, Dr Boland describes them as “exemplary” in relation to “having a huge amount of empathy for AJH and for her birth family … [speaking] about AJH's birth parents with compassion … [and] also [being] very, very mindful of not wanting AJH … to feel she'd been abandoned or that the things that happened to her in her early life had been her fault or that she wasn't good enough ... And, specifically, their application to talking, in an everyday way, about her family, who she is, her Maori culture, where she comes from, where she belongs, how she is like her siblings … in a very active way … will ameliorate some of the potential risks that all adopted children face” (T55.14 – T55.26).

In my view, the description is an apt one and accords with the Court’s impression of each of them during cross-examination. Their efforts at encouraging AJH to know and understand her Maori culture and background referred to above, indeed, are commendable. They have given her a number of children’s books and other resources about her Maori heritage. EGK researched, and found, a reasonably local Maori Club. They have attended two monthly meetings (out of four) since August 2017, with AJH: Ex. P2; T98.43 – T100.18. They have attended cultural festivals, including Waitangi Day celebrations. It is difficult to think of other steps that could be taken by them to have AJH to know and understand her Maori culture and background.

In addition, they, too, are endeavouring to have a greater understanding of Maori heritage and culture by, for example, trying to learn some of the Maori language: T106.20 – T106.47.

Having read his evidence, and observed him in the witness box, I am satisfied that the following facts have been established.

APF left school at the end of year 9. He said that he did not like school and found it challenging. He then completed an apprenticeship in automotive spray painting and he has worked in that industry since completing that apprenticeship. He currently works between 7:30 a.m. and 3:30 p.m. 5 days per week. He drives to work which takes him about 40 minutes each way.

He has had a history of violence, including domestic violence with MLH. She described him as unpredictable and verbally abusive towards the children and herself. That history of violence extended between December 2004 and 2012, and included, in 2010, a risk of serious harm report in relation to a serious incident of physical domestic violence that he had perpetrated against his then partner, in the presence of their children. Other incidents of his violent behaviour have occurred at his work. (I shall not further detail the other evidence of his violent behaviour.)

There is no suggestion of any violent behaviour towards AJH, or with EGK or JRK. (It will, however, be necessary to refer to some of APF’s conduct when referring to Dr Boland’s findings.)

He has had some experience with cannabis, although Dr Boland noted that when she questioned him about his drug use, “he was extremely vague about the frequency and amount of cannabis consumption”. He told her that he had not consumed cannabis for some time.

APF has had some history of alcohol consumption. He was noted as abusing alcohol. When asked by Dr Boland, he “denied having any problematic drinking”, saying that he currently only drinks on social occasions”. She stated that “[I]t was very difficult to get him to give me precise answers to my questions”.

In December 2013, on two occasions, following arguments, APF removed AJH from MLH and took her to his sister’s home.

APF did not engage with the Department of Family and Community Services when AJH first entered into care. However, whilst the Department was seeking final orders in relation to AJH, and until the second day of the hearing, he had sought to have her returned to his care.

To his credit, APF has completed courses including Pathways to Parenting; Facing Up Program; Building Connections Program; Making Choices Program; and Being a Dad: helpful tips for mindful parents. In addition, he has provided confirmation letters of counselling and psychology sessions that he has attended (between late 2015 and December 2016). (He did not provide any reports regarding the counselling or psychology sessions.)

As stated, APF has attended every scheduled contact visit with AJH as well as every single contact review since she was placed into care.

APF denied to Dr Boland that he had any history of mental health problems. However, he did report that he had experienced depression and anxiety after the separation from a former partner, for which he had received treatment.

Dr Boland observed that AJH and APF had a comfortable relationship. AJH appeared to be relaxed, and did not display any anxiety, in his presence.

During the first 9 months of her life, the Department received six reports of Risk of Significant Harm in relation to AJH. There was complaint about MLH’s alcohol dependence and abuse, unstable mental health, lack of protective ability and compromised parenting capacity.

MLH has had a long standing history of alcohol dependence and that the Department of Family and Community Services had received numerous notifications concerning her level of alcohol intoxication leading to MLH becoming unconscious whilst providing care for her children.

In 2012, SH-G (who was then aged 8 years old) had been disclosing her concerns over MLH’s alcohol consumption for the previous 2 years, and in 2013, SH-G was taking AJH to MLH when she needed breast feeding. S H-G was also reported to be concerned that MLH was co-sleeping with AJH and that she may roll on her and suffocate her.

There was also concern that MLH repeatedly partnered with men who were violent and who exposed MLH’s children, including AJH, to risk of physical abuse and psychological harm.

Dr Boland did not meet with MLH.

As stated earlier, JoN and JaN live with APF. Neither gave evidence in the proceedings, although each met, and spoke with, Dr Boland. I have taken what follows from her report as it does not appear to be in issue.

JoN is completing a TAFE qualification in childcare. JaN is in year 11 in High School.

Each told Dr Boland that there had been some great difficulties in APF’s relationship with MLH. JoN referred to “lots of fighting and conflict”. JaN spoke of an incident involving MLH’s consumption of alcohol and her appearing to be intoxicated. Neither suggested that there was any physically violent conduct by APF towards him.

Both JoN and JaN stated that EGK and JRK are kind, inclusive of them, and encourage AJH to interact with each of them. Both have noticed that AJH had developed, and changed, a lot, over the last two years. She is now talking very well and has become more extroverted and sociable.

When Dr Boland observed them together, AJH was relaxed and appeared comfortable with both of JoN and JaN.

The Court may not make an order for the adoption of a child unless a report in writing concerning the proposed adoption has been provided to the Court (s 91(1) of the Act.)

As stated, the s 91(1) report is annexed to the affidavit of Ms Shannon affirmed 28 November 2016. It was not suggested by counsel for APF that the report should not be accepted by the Court: s 91(2) of the Act. I have found the report to be of great assistance.

In her affidavit, Ms Shannon sets out the Child Protection History in relation to AJH. There is no reason to doubt the facts set out which have been taken from that report or to repeat that history in greater detail than has been done.

Nor is it necessary to repeat the details regarding APF’s history of violence and involvement in AJH’s child protection history, as some of these factual matters have already been referred to earlier in these reasons.

As previously stated, AJH was born in April 2013, and Ms Shannon noted that there is little information known to Barnardos regarding her medical history prior to her assumption into care, other than her immunisations were up to date.

In April 2014, AJH attended a paediatric assessment with Associate Professor Buckmaster who although noting some issues with her balance and recurrent upper respiratory tract infections, remarked that AJH was a happy, alert and attentive baby, with “no physical features that would suggest foetal alcohol syndrome”. In his opinion, AJH was developmentally progressing within normal limits, with the exception of her language, with the recommendation made to refer her for speech therapy if her language development remained a concern by the time she was 2 years of age.

When AJH attended a follow-up review with Associate Professor Buckmaster in October 2015, he noted that developmentally she was “coming along nicely”. When he reviewed her again in November 2016, his report stated “from a developmental point of view she’s really very appropriate for 3 ½” and that “from the physical growth point of view and developmental point of view there’s little to support a diagnosis of Foetal Alcohol Syndrome”.

AJH experienced disrupted sleep since coming in to care, with frequent waking requiring comfort and reassurance from EGK. Over time, this was noted to have improved, but it was reported that AJH could become disrupted for up to a week following contact visits with her birth family.

In July 2016, a consultation took place with Ms Gaborov, a social worker with First Steps Parenting, who, noted that EGK and JRK were using appropriate sleep strategies and that AJH’s sleep disruptions were minimal at that that time. Ms Gaborov also acknowledged that “the effect of trauma on attachment and the anxiety caused by sleep separation” had been discussed with EGK.

Ms Shannon also included the views of various members of AJH’s birth family regarding the proposed adoption. Both JoN and JaN stated that they did not wish for AJH to be adopted and that they would like AJH to be restored to APF’s care.

JaN expressed the view that AJH “won’t be his sister should an Adoption Order be granted in respect of her and was concerned that he would not see her in the future”.

AJH’s paternal grandfather, KN, also does not support the adoption, stating to her “You won’t find a better father than [APF]”. He also expressed concerns that JRK’s step-mother may not be from the same Maori tribal/language group as him, and that, therefore, she may not be the best person to support AJH’s access to her cultural heritage. (In this regard, Ms Shannon reassured KN that it was not intended that JRK’s step-mother would replace the role that the paternal birth family would play in supporting the nurturing of AJH’s cultural identity.)

As stated, AJH also has five maternal half-siblings. AJH has never lived with B-AH or BH, although Ms Shannon refers to them having met AJH whilst she was in MLH’s care. They have attended one contact visit since AJH has come into care. Ms Shannon states that although B-AH was upset and found it difficult to hear that the adoption of AJH was being proposed, B-AH, nonetheless, was supportive if it meant that AJH did not have to move placements again.

Although Ms Shannon also informed BH of the proposed adoption, BH refused to discuss his views with her, stating “he believed it would not make a difference”.

AJH has never met her eldest half-sibling, DH, and despite numerous attempts by Ms Shannon to make contact with him (including passing messages through B-AH who lives with him) to explain the adoption process and to seek his views, he did not respond to any of her attempts to do so.

AJH has a pre-existing relationship with SH-G and CH-G, having resided with them for the first 9 months of her life. Ms Shannon describes SH-G having “engaged in a maternal role for [AJH], taking her to [MLH] when she needed breast-feeding and on occasions changing her nappy”. According to the case worker for SH-G and CH-G, both “have an age-appropriate understanding” of the proposed adoption. In addition, the case worker advised that SH-G and CH-G are “very happy with [AJH’s] proposed adoptive parents and said they can see [AJH] looks happy in her current placement….they [are] happy for [AJH] to be adopted as long as they can still see her and have FaceTime contact between visits so that [AJH] does not forget them”. It is anticipated that AJH’s relationship with SH-G and CH-G will continue through ongoing contact and the proposed Adoption Plans contemplate two contact visits per year between them.

AJH’s maternal grandmother, JH, expressed to Ms Shannon her view that the proposed adoption is “good for [AJH]”. JH further stated that “[AJH] is better off with [EGK and JRK]…I think that this is the best thing for [AJH], to be adopted and stay with her family…we have to think about what the best thing is for [AJH] and she needs to be safe and protected, and she will have that with the family she has been with”.

Subsequently, at a contact visit with AJH, JH was reported to have thanked EGK and JRK for caring for AJH and informed them of her support for AJH’s proposed adoption.

Ms Shannon also contacted AJH’s maternal grandfather, RH, to advise him of the proposed adoption. RH is reported to have said that although it is “sad” and “disappointing” that an adoption order was being sought, that nonetheless, he felt “it was good that she was receiving the care she needs, as she ‘can’t get it off [MLH]”. RH has not requested contact with AJH and did not respond to letter that was sent by EGK and JRK that included photos and information about AJH.

Ms Shannon concluded that:

As stated earlier, Ms Shannon was not cross-examined, and it was not submitted that the conclusions that expressed in her report should not be accepted as accurately recording her considered view.

Prior to the hearing, it was agreed by the parties that Dr Boland was an “authorised person” within the meaning of that term in s 91(2A) of the Act and she was chosen by them to prepare an expert report.

Her affidavit, affirmed on 7 September 2017, annexing a copy of a report dated 11 August 2017, disclosed that she is “a child, family and adult specialist Clinical Psychologist in full time practice”. She gave evidence that she has a Bachelor of Education; a Bachelor of Psychology (Hons); a Master of Clinical Psychology; and a Ph.D in Clinical Psychology. For about 8 years, she has been a Consultant to the Family Court of Australia: T13.25 – T13.28.

Prior to preparing the report, she was provided with the documents that had been served. In addition, she conducted face to face, separate, interviews with EGK and JRK, with APF and with JaN and JoN. In addition, she separately observed AJH with EGK and JRK, and with APF, JaN and JoN. She also observed AJH alone. Finally, she spoke, by telephone, with Ms Shannon, who was AJH’s caseworker at Barnardos.

Subsequently, and after the service of her report, an order was made, in Chambers, with the agreement of the parties, that Dr Boland be provided with the affidavits that had been served after her report, as well as Case Review Meeting Minutes dated 4 October 2017 (Ex. P4).

There was no suggestion that she had not been provided with all of the relevant documents.

Dr Boland was cross-examined by both counsel. No credit issues arose. Respectfully, I found her to be an informed, highly experienced, and an extremely impressive, witness, whose evidence I accept without hesitation. Both her report, and her oral evidence, demonstrated careful consideration of the issues involved. In answering questions, her responses were thoughtful, and, as importantly, measured. It was clear that she had read, understood, and followed, the expert witness code of conduct.

I shall now refer to Dr Boland’s consideration of the matters that she had been requested by the parties to consider and her conclusions on the questions posed. The evidentiary importance of her evidence cannot be underestimated.

Before dealing with the precise questions, Dr Boland recorded her findings that the behaviours exhibited by AJH when she first was placed with EGK and JRK were “indicative of an infant experiencing psychological distress and attachment difficulties”. She described “attachment” as “the nature and quality of a child’s bond with a significant person or carer” and noted that “[I]n circumstances where a child has had a disrupted history of care, involving a lack of consistent, predictable care, the literature indicates that there is the best chance of repair or recovery when priority is given to stability of attachment relationships and consistency of care”.

Dr Boland concluded that the history of uncertain early care “is likely to have had a deleterious impact on [AJH’s] emotional security and psychological wellbeing. Consequently, she could best be understood as a very young child with a vulnerable history, which paces her at elevated risk of ongoing disorganised attachment and concomitant risks to her psychological health. In my view, this means that the top priority should be given to [AJH’s] stability and quality of care-givers”.

Dr Boland noted that, since coming into the care of EGK and JRK, AJH had undergone a significant improvement in all aspects of her functioning, including her capacity to engage with others, sleeping and self-settling, her capacity for exploration and play, and has undergone a rapid development in her language and cognitive skills.

In her observations of AJH with EGK and JRK, Dr Boland noted that AJH turned to the proposed adoptive parents for reassurance, comfort and support. AJH was observed to frequently and spontaneously return to their care, updating them on the experiences she had with others.

Assessing the relationship between AJH and EGK and JRK, Dr Boland concluded:

Dr Boland also noted, from the history provided to her, that during the first 9 months of AJH’s life with APF, he had been working 6 days per week, and that, therefore, it was likely that AJH, primarily, would have been in the care of MLH. As such, the degree to which AJH spent time with APF was unknown.

However, as APF had attended all of his scheduled contact visits with AJH subsequently, Dr Boland was able to conclude that:

However, Dr Boland acknowledged that AJH’s cognitive maturity and capacity for recall would prevent her from explicitly understanding the history of APF’s role in her life as her birth father. In her view, AJH would experience APF as “…a familiar, fun and caring adult with whom she has a bond”. Yet, from her observations, Dr Boland also stated that “[AJH] did not appear to be connecting with [APF] as a person with whom she had a secure or significant attachment…..she did not turn to him for comfort and was not using him as a ‘safe base’ to interact with others”.

Dr Boland commented that although AJH has never lived full-time with her paternal half-siblings, JoN and JaN, she had seen JaN at every contact visit since she had come into care, and had also seen JoN on a number of occasions. AJH actively played and engaged with JoN and with JaN, but, conscious of the limitations of AJH’s cognitive maturity in fully appreciating the biological link between them, stated:

Dr Boland prefaced her conclusions by defining “parenting capacity” as the capacity to “respond to the needs of the child, to use flexible strategies to optimise the child’s care and development and to have insight into the needs of the child”.

She expressed a number of concerns about the parenting capacity of APF in her report. Although she acknowledged his efforts to improve his psychological and interpersonal functioning, she maintained, nonetheless, that he had limited insight into AJH’s psychological, physical and intellectual needs.

For example, APF had asserted that AJH would adapt quickly and with minimal disruption if she were to be removed from the care of the proposed adoptive parents and be restored to his care. He also cast doubt on AJH’s reported sleeping difficulties, and did not expect that she would encounter any sleep disruption should she be returned to his care. When interviewed, APF had stated that he did not anticipate facing any particular challenges, or parenting difficulties, if he were to assume the care of AJH.

Dr Boland viewed APF’s assessment as demonstrating his “lack of capacity for realistic appraisal of the demands of parenting and the particular needs and likely behaviours of AJH”. By virtue of the significant disruption to AJH’s attachment relationships during her multiple care placements, AJH was a child with “special needs” who required a “high degree of care, nurturing, patience and consistency”.

Dr Boland also formed the view that APF had underestimated AJH’s physical and intellectual needs and how these would best be met. By way of example, she noted that when he was initially interviewed, APF had been adamant that AJH would be ready to commence school in 2018, despite her “history of difficulties, including difficulty separating, some speech delay, who would be transitioning from care of the stability of a long-term placement and who was coping with a change in residence”. However, it was acknowledged, that APF had, subsequently, revised his view on sending AJH to school until 2019, having now taken account of the reports of her progress in attending pre-school and her school readiness.

Although Dr Boland acknowledged, at the hearing, that she was “pleased” that APF had reconsidered this matter, she maintained, nonetheless, that her views and recommendations about his parenting capacity remained the same: T15.1 – T15.5.

Dr Boland also expressed concern that as APF currently worked long hours, and that he would be reliant upon before, and after, school care, for AJH, and upon the practical support of JoN and JaN. She recognised that APF “does not have a large social or adult family network that could provide practical assistance with [AJH’s] care”.

She also cast doubt on the appropriateness of the proposal that APF could rely upon JoN, for practical support, in taking AJH to, and from child care. She noted the potential for this to “confuse [AJH] in terms of who is the primary adult/who is my parent”: T16.41 – 16.49. To underscore the relevance of this point, Dr Boland went on to state at T17.7 – T17.12:

Another matter of some concern raised by Dr Boland was APF’s history of violence. Dr Boland described how the history provided to her detailed “a serious and lengthy history of violence in the context of interpersonal relationships….he has been involved in multiple and serious incidents of perpetrating physical violence on others”.

These matters were relevant, not only with respect to APF’s parenting capacity, but also to the direct risk to AJH and the risk of her exposure to family violence.

Dr Boland opined that APF demonstrated a lack of insight into his role in the instances of violence to which reference was made, tending towards characterising his reactions as in “self-defence” and blaming others for his own behaviour. In her view, APF’s failure to take responsibility for his role in these incidents boded poorly for genuine recovery and predicted an increased likelihood of future episodes of such behaviour. In addition, his inability to identify any specific coping strategies that he would use to manage his anger in the future, despite having undergone individual psychological therapy and a range of group programs, “demonstrates a lack of insight, an inability to be reflective and a minimisation of risk”.

Dr Boland also referred to APF’s history of cannabis and problematic alcohol use. She acknowledged that as she had experienced difficulty during her interview with APF in gaining a precise account of his current level of alcohol consumption, in the absence of any corroborating evidence, she was unable to properly assess the degree of his current use. She noted, however, that APF has acknowledged a history of problematic drinking in the context of previous relationships. She commented that his tendency to “minimise and obfuscate matters with respect to his history” led to a concern about the degree to which these behaviours may recur, particularly during times of stress, which might then affect his parenting capacity: T22.44 – T22.49.

Finally, Dr Boland’s concerns about APF’s parenting capacity were elevated when APF expressed to her that he was uncertain whether he would be able to commit to contact with AJH in the event that an adoption order was granted, remarking to her “I don’t see the point”. Dr Boland struggled to reconcile such statements with his otherwise expressed “high degree of love and commitment to [AJH] and a strong desire to have contact and a meaningful relationship with her so that she knows and identifies with her family”.

Dr Boland concluded that this discrepancy suggested that APF “has an immature attitude to the responsibilities of parenthood” and concluded that he “has very limited insight into his own behaviour and the needs of [AJH]”.

When asked by counsel for APF, Dr Boland confirmed that she was certain that APF had, in fact, spoken the words quoted, and in response to the suggestion by counsel for the Defendant that his statement should be understood as an expression of frustration in the context of his sustained opposition to an adoption order, she stated at T41.5 – T41.12:

When counsel for the Defendant drew attention, then, to the subsequent statement by APF that “I don’t know if she is better off without me in her life”, Dr Boland responded at T41.15 – T41.23:

Ultimately, taking account of APF’s commitment in attending contact visits with AJH and his sustained efforts in seeking to have her returned to his care, Dr Boland concluded that more likely than not, she would expect that APF would continue to have contact with AJH, in the event that an adoption order was made: T41.40 – T41.50.

Although these comments were not put to APF during cross-examination, in the context of being asked whether he intended, in the future, to bring a s 90 application to have AJH restored to his care, APF stated “I wouldn't close the door on her because I have always been there for her and I will always support her”: T142.48 – T142.49.

Overall, Dr Boland expressed a very favourable view of EGK and JRK. She concluded that they had “an exceptionally well-developed capacity to provide for AJH’s needs”. She recognised that they had significantly modified their life to meet AJH’s needs, such as EGK taking an extended period of leave from work in order to provide full-time care to AJH. They had also established routines, and behaviours, that emphasized stability and predictability. She noted that they had educated themselves about the attachment needs of toddlers and young children and had adopted recommended parenting strategies. She noted that “This has allowed [AJH] to develop a trusting relationship with [EGK and JRK], which in turn has assisted her develop trusting relationships with others and develop a sense of stability and security”.

Dr Boland described how EGK and JRK had enrolled AJH in a number of age appropriate activities, such as swimming, music and gym, as well as attending pre-school, all of which would enhance her social, physical and emotional development. In particular, Dr Boland noted the insight demonstrated by EGK into AJH’s challenges with separation by taking her to the pre-school in the year before her enrolment in order to familiarise her with the environment and the staff, and thereby assist with her transition.

Dr Boland formed the view that EGK and JRK demonstrated realistic appraisals of their own parenting, and noted that they were able to give examples of specific strategies they used to meet the demands of parenting a young child with a history of disrupted care.

She was also impressed by their commitment to maintaining AJH’s link to her birth family, and in particular to the independent efforts they had made to establish contact with JoN and JaN, describing their interactions towards APF, JoN and JaN as “caring, compassionate and warm”.

Overall, Dr Boland concluded that EGK and JRK are “exemplary with respect to their capacity to provide for [AJH’s] needs; to respond to her with warmth and sensitivity and to provide her with structure and support that will likely optimise her development”.

Counsel for APF did not cross-examine Dr Boland on any of these conclusions. Nor was it suggested to her that the factual matters upon which she had relied for those conclusions had not been established or that the Court should not accept them.

Dr Boland noted that the history provided to her indicated that EGK and JRK had taken numerous steps to provide AJH with access to her Maori culture. She referred to them having sourced age-appropriate books; sought to develop their own language skills in order to teach AJH Maori greetings and phrases; had taken AJH to Waitangi Day celebrations, and joined a local Maori club.

She noted that JRK’s step-mother, whom AJH had met once, was also of Maori heritage.

Dr Boland concluded that EGK and JRK “have taken all possible steps to ensure that [AJH] feels a strong sense of Maori cultural identity and has access to and inclusion within that culture”.

Although not cross-examined on this topic, in giving her oral evidence in chief, Dr Boland stated at T55.17 – T55.26:

In her report, Dr Boland opined on the range of options and their respective advantages and disadvantages, with regards to the future placement and care of AJH.

She discussed the possibility that AJH would be removed from the care of EGK and JRK, concluding that the short–term effects would be “significant and severe”. She acknowledged that AJH had developed a trusting attachment relationship to EGK and JRK, and that in the context of her previous multiple placements, and as she lacked the capacity to regulate her emotions given her young age, AJH would undergo “severe behavioural and psychological regression” and “psychological abandonment”. She predicted such effects would manifest in the form of sleep disturbance, social aggression or withdrawal and increased anxiety and agitation.

She also concluded that in the long term, the effects on AJH would be likely to include significant psychological instability, including difficulties in developing trusting relationships with adults and carers.

Dr Boland suggested that to remove AJH from JRK’s and EGK’s care would “diminish her fragile sense of stability and security in relationships with others”, thereby placing her at risk of developing a range of psychological and behavioural disorders in the future.

In effect, this alternative would represent the status quo, and in Dr Boland’s opinion, as AJH did not have the cognitive maturity to truly appreciate and understand the situation, it was unlikely that AJH would suffer any negative effects from this alternative in the short-term.

The longer term effect, for example, when AJH came to understand that she had several half-siblings who lived separately to her, was difficult to predict. Dr Boland speculated that although AJH may wonder why JoN and JaN were able to live with APF whilst she was not, in large part, her response would be mediated by the way in which the adults in her life responded. It would also depend on the nature and quality of the relationships that AJH developed with the various members of her birth family.

Dr Boland stated that an adoption order in favour of JRK and EGK would have the advantage of “solidifying [AJH’s] sense of belonging and acceptance into [EGK and JRK’s] family”. An adoption order would provide a strong sense of security and stability that would benefit AJH’s psychological state and well-being, both now and into the future.

Dr Boland referred to the growing consensus, in the relevant research, that “adoption offers young children and greatest sense of security and psychological well-being compared with long-term placements”.

The primary disadvantage of an adoption order in favour of EGK and JRK, Dr Boland considered would be that the legal tie with AJH’s birth family would be permanently severed. However, she stated that the effect of this, at least partially, could be ameliorated by AJH having continued positive and supported contact with her birth family. If this were not to occur, AJH could lose her sense of connection with the relevant members of her birth family, and could ultimately experience a sense of abandonment and challenges with respect to her sense of identity and belonging.

In Dr Boland’s opinion there was no advantage to a long-term parental responsibility order in favour of the Minister, compared to a long-term order in favour of the proposed adoptive parents. Although no longer sought by them, the advantage of a long-term responsibility order in favour of EGK and JRK would allow them to make independent parenting decisions, whilst preserving the current pattern of care for AJH, and providing some degree of permanence and stability.

The disadvantages were that such an order would not provide the same degree of security and stability as an adoption order, and AJH may in the future personalise the failure of an adoption order to be granted, and may view herself as having been inadequate or responsible for this outcome.

Although no longer sought, it is important to note that by comparison, a long-term parental responsibility order in favour of APF would have the advantage of AJH having the experience of living with her paternal half-brothers (at least until they leave home) and with APF, allowing for the further development and consolidation of her relationship with him, but Dr Boland considered that any such advantages would be “eclipsed by the serious and significant” effect of AJH being removed from the care of EGK and JRK.

In addition to the possible effects that have previously been referred to, Dr Boland also stated that she believed that AJH may be “at risk in terms of her overall development and wellbeing due to the relative deficits of [APF’s] parenting capacity”, as well as the potential for exposure to family violence and/or drug and alcohol abuse.

In the event that an adoption order were to be made, Dr Boland expressed the view that AJH should continue to have contact with APF, JaN and JoN, as the continuation of positive experiences with her birth family would assist with the development of a sense of identity and connection with them. However, she cautioned against the extent of any contact being so frequent as to become onerous to AJH, or risk disrupting her attachment with EGK and RJK, or intrude upon AJH’s ability to participate in extra-curricular and social activities.

As contact would need to be facilitated with other members of her birth family, Dr Boland supported the proposed contact schedule as outlined in the Paternal Adoption Plan of four visits per year.

When cross-examined about her statement regarding 10 visits per year being more desirable than 12, Dr Boland conceded that there was “no particular magic to any of this”, other than that 10 visits accords with 10 months of the year, taking into account time away during holiday periods: T50.39 – T50.47.

Dr Boland supported the continuation, at the present time, of contact visits between AJH and her birth family being “supervised”. She explained that this should remain the case whilst AJH continued to rely on EGK and JRK to manage her emotions in different situations.

Furthermore, given the previously expressed concerns about APF’s parenting capacity, Dr Boland was of the view that the continuation of supervised visits would provide AJH with “a stable, secure and safe contact visit”.

When asked questions by counsel for the Plaintiff, Dr Boland stated that any change in the requirement for supervision could not be predicted with any certainty at the present time, but would be “fluid and dependent on the circumstances”: T22.16. In her opinion, any change would require a “two pronged approached” whereby firstly, EGK and JRK would make an initial assessment of AJH’s capacity to have contact visits in the absence of their presence, based on AJH’s needs and capacity to separate from them, that could then be confirmed by an independent clinician who would undertake an assessment of APF’s parenting capacity, such as a psychologist or a GP who had recent and ongoing contact with APF: T22.21 – T23.38.

It is unnecessary to repeat Dr Boland’s conclusions, in detail since APF does not seek that order. However, in summary, she stated that AJH would require frequent, and predictable, contact with EGK and JRK maintaining that she did not believe that removing AJH from the care of EGK and JRK would be in AJH’s best interests.

I have taken what follows, principally, from my decision in Re WS (No 3) [2017] NSWSC 1160. Even though APF is legally represented, and even though, in other circumstances, I might refer to what I had written in that decision, in a summary way, for his benefit, and for the benefit of MLH, should she wish to read the reasons for making the orders that I shall make, I repeat, where necessary with additions, what I have previously written.

Adoption, in its legal sense, has always been regulated by, and is purely a creature of, statute. There is no adoption at common law. Relevantly, the starting point in this case, is the Act, which commenced (ss 12 to 15, 18 and 19(1), and cl 3 of Sch 3, excepted) on 1 February 2003. It has been amended since then.

Whilst the Act contains objects, to which reference will be made, it does not contain any stated purpose for adoption. The Long Title, relevantly, refers to an Act “with respect to the adoption of children … and for other purposes”.

An adoption order is status changing. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. The child becomes part of her, or his, adoptive parents' family, solely through operation of law, and there is no necessity for any actual blood relationship to exist between them. She, or he, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child: s 95(2)(c) of the Act. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act. The effect is to extinguish any parental responsibility of the birth parents. They no longer qualify as parents for the purpose of taking part in any future proceedings about the child. Thus, the adoption order directly affects three parties, namely the child, the birth parents and the adoptive parents.

For the purposes of the application of the Succession Act 2006 (NSW) to the devolution of any property in relation to which a person dies intestate, and the construction of any disposition of any property, an adopted child is taken to be related to another person, being the child or adopted child of his, or her, adoptive parent, or parents, if he, or she, was adopted by 2 persons who are the spouses of each other jointly, and that other person is the child, or adopted, child of both of them, as brother or sister of the whole blood, and in any other case, as brother or sister of the half-blood: s 99.

The adoption creates a legal fiction: that a child is the child of parents with whom there is no biological relationship. For this, and other, reasons, adoption will be an extremely important step in a child’s life, which will determine her, or his, identity and family relationships throughout her, or his, remaining life. Thus, the making of an order must be considered, not as a means of determining with whom a child is to live, but as a way of making a child legally part of a new family and severing any legal relationship with her, or his, birth family. In addition, adoption is something with lifelong implications.

As has been pointed out in regard to the effect of an adoption order, in Oxfordshire County Council v X [2010] Fam Law 790; [2010] EWCA Civ 581; at [4]:

In In the matter of D (A Child) [2014] EWFC 39, at [2], Sir James Munby wrote, in relation to an adoption order:

After referring to what had been said by Sir James Munby, Lord Wilson of the UK Supreme Court, in ‘Adoption: Complexities Beyond the Law’ (Speech delivered at the Denning Society Lecture at Lincoln’s Inn, 13 November 2014):

(Perhaps, the reference to four people should, in the present case, be a reference to five people, when one includes, the child, the birth parents and the proposed adoptive parents.)

No doubt, for these reasons, Sackar J has reminded all that “arguably the most important work at least in [the Equity] Division of the court by a very large margin … is determining applications for adoption”: Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9].

Section 6 of the Act provides that the provisions of Chapter 2 are “intended to give guidance and direction in the administration of [the] Act. They do not create, or confer on any person, any right or entitlement enforceable at law”.

Section 7 of the Act states the objects of the Act as:

In Re Adoption of KH [2015] NSWSC 274, Brereton J noted, at [20], that:

In determining this case and in considering AJH's best interests, I have not forgotten that the blood link is always a factor to be taken into account. As stated, s 7 specifically provides that one of the objects of the Act is to ensure that adoption law and practice assist a child to know, and to have access to, her, or his, birth family and cultural heritage.

As was said in Rice v Miller (1993) 16 Fam LR 970 and Re Evelyn [1998] FamCA 55 (albeit in another context):

Section 8(1) of the Act requires the Court, in making an adoption decision, to have regard (as far as practicable or appropriate) to principles which include the following:

In Director General Department of Human Services; Re M [2011] NSWSC 369 at [88] – [91], (cited with approval by Bergin CJ in Eq in Secretary, New South Wales Dept of Family and Community Services (by his delegate Principal Officer, Adoptions, Barnardos Australia); Re JLR [2015] NSWSC 926 at [93]), I wrote:

As I have also written, “the term ‘best interests of the child’ is a long-standing, important and salutary, principle of substantive law (Northern Territory v GPAO (1999) 196 CLR 553 at 584; [1999] HCA 8) and does not require elaborate elucidation: Department of Family & Community Services and LH; Re R [2011] NSWSC 551 at [40].

McHugh, Gummow and Callinan JJ said in CDJ v VAJ (No 2) (1998) 197 CLR 172, at 218-19; [1998] HCA 76, at [151] – [152], albeit in the context of applications for parenting orders, described what is in the best interests of children as:

Lord McDermott in J v C [1970] AC 668 at 710, said that the words "paramount consideration":

In discussing the obligation to consider the best interests of the child, as required by s 6 of the Adoption Act 1993 (ACT), Refshauge J in the matter of Re Adoption of D [2008] ACTSC 44 stated, at [37], in relation to paramount consideration:

In Adoption of JLK and CRK [2017] NSWSC 7, Brereton J, at [12], referred to the “paramountcy principle”:

In Application of H and H, child JW (2011) 45 Fam LR 681 at 688; [2011] NSWSC 93 at [40], I considered that, in approaching the question of what is in the best interests of the child, the Court should "weigh, and balance, the factors that are relevant, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have." I went on to state, at [41], 688:

Section 8(2) of the Act requires the Court to have regard to the principles at s 8(2)(a) — (k) when determining the best interest of the child, namely:

It can be seen then, that not all of the factors are referred to in the context of the child whose adoption is sought. For example, in s 8(2)(e), there is a reference to "any wishes expressed by either or both of the parents of the child" and in s 8(2)(g), "to the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood".

I have earlier referred to sections 23 and 28 which deal with the factual preconditions to the Court having jurisdiction to make an adoption order, in respect of whom an application can be made, as well as by whom an application may be made. If an application is made by a couple, s 28 sets out the basic requirements to be established.

I have also referred to s 24(1)(a) of the Act (relating to the age of AJH as less than 18 years of age on the date on which the application for the order was made.)

Section 32(1) of the Act requires the Court, in making an adoption decision, to also take into account, amongst other things, the culture, language and religion of the child and the principle that the child's given name, identity, language and cultural and religious ties should, as far as possible, be preserved.

Section 52 of the Act provides:

Relevantly, s 54 provides:

Clearly, the age of the child, inevitably, will give rise to different considerations in different circumstances.

Under s 66 of the Act, a requirement for the consent of a child or any other person to the child's adoption under the Act can be dispensed with if the court makes an order under Division 3 of Part 5 of the Act dispensing with the requirement, which is defined as a "consent dispense order".

In certain circumstances, the Court can make a consent dispense order, dispensing with the requirement for consent to an adoption. Relevantly, s 67 of the Act confers a power on the Court to make a consent dispense order in relation to the requirement for consent by a parent if the Court is satisfied of certain matters.

White J (as his Honour then was), in Re K & The Adoption Act 2000 [2005] NSWSC 858 at [21], explained:

The relevant circumstance in this case, in which the consent of MLH and APF can be dispensed with, if that is what is required, are limited by s 67(1)(d) as follows:

For the purposes of s 67(1)(d), an "authorised carer" is relevantly defined as any person who has responsibility for the day-to-day care, welfare and development of the child under the Family Law Act 1975 (Cth).

The inclusion of s 67(1)(d) in the Act reflects a policy decision that once a child has, by judicial decision, been removed from her, or his, birth parents, and placed with a person who has, or persons who have, responsibility for the day-to-day care, welfare and development of the child under the Family Law Act , the rule that legal parental relationships are not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption: Adoption of KH, Brereton J, at [62].

In Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, Slattery J wrote, at [72]:

In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J made the following remarks, at [11] and [17], with respect to the history and rationale for s 67(1)(d):

Earlier, in Re S-B (Children) (Care Proceedings: Standard of Proof) [2010] 1 AC 678; [2009] UKSC 17, at [6] – [7], the Supreme Court of the United Kingdom had written:

Section 67(2) further provides that the Court must not make a consent dispense order unless satisfied that to do so is in the best interests of the child. Thus, the Court must regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.

Section 70(1)(b) of the Act permits the Court to make a consent dispense order in conjunction with an adoption order.

Notice of the intention to apply for an order dispensing with consent is required: s 72(1). As stated, the Plaintiff provided MLH with a Notice of Application for Consent Dispense Order on 8 December 2016. I consider therefore, in the particular circumstances of this case, that it is desirable to make a consent dispense order, notice of the application having been given to MLH at least 14 days prior to the order being made: s 72(1).

It will be appreciated from the above that non-consensual adoption is part of the Act.

Section 90 of the Act relevantly provides:

In Adoption of RCC and RZA Brereton J, at [14], stated that s 90(3) requires:

Brereton J, at [15], reiterated the principles that his Honour had previously expressed in Adoption of NG (No 2) [2014] NSWSC 680 at [16]- [17]:

His Honour went on to explain, at [74], and then in [83] – [84] (Adoption of NG (No 2)):

In In the matter of Campbell [2011] NSWSC 761, Slattery J, at [55], explained that a “possibility” of restoration involved something less than a probability – that is, something that is not impossible; and that to be realistic, it had to be real or practical - not fanciful, sentimental or idealistic or based upon “unlikely hopes for the future”. If the Court were to be satisfied that restoration, now or in the future, was in the best interests of the child, it could not be satisfied that adoption was “clearly preferable”.

In Re JLR, Bergin CJ in Eq, explained, at [99], that:

In Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD [2016] NSWSC 1926, Sackar J, after referring to the decisions quoted above, wrote, at [38]:

His Honour added, at [41]:

Thus, it is not enough to show that a child could be placed in a more beneficial environment for her, or his, upbringing. There is often required an acute, and difficult, decision to be made and, often, all practicable answers, to some extent, may be unsatisfactory. Sometimes, the alternatives are finely balanced and will call for critical and often anxious scrutiny.

In reaching the conclusion, “a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare” should be undertaken: Re G (A Child) [2013] EWCA Civ 965 at [50].

It is often referred to in the literature that a child placed with foster carers has an abiding need for a sense of security and identity and that she, or he, will feel most secure when she, or he, is assured that no one can take her, or him, away from the family of which she, or he, is a legal member. It is recognised that the sooner a child can feel this sense of security, the better for her, or his, development in the future: see Re Peter [2009] NSWSC 697, per Palmer J, at [35].

As was written in Re W (A Child) (Adoption: Grandparents' Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793, by McFarlane LJ, with agreement of the other two members of the Court of Appeal (Jackson and Lindblom LJJ), at [64]:

Also, if the carers who have developed a strong bond of family relationship with the child feels that they are under threat of an application to the Children's Court, at any time, for vacation of a care order and the consequent removal of the child from them, then they could be subjected to a level of stress and anxiety that must affect the parental relationship with the child who is in their care: Re Peter at [36].

In stating the above, I make clear that it is not being suggested that there is any general rule that adoption is more likely to be in the best interests of a child than long-term fostering or, indeed, any other form of care. The Act emphasises that the Court must have regard to the particular circumstances of the individual case in order to assess whether an adoption order, or some other form of care, best serves the child's best interests.

As was stated in Re B (A Minor) [2002] 1 WLR 258; [2001] UKHL 70 at [16]:

Section 92 of the Act provides that if the Court refuses an application for an adoption order, the Court may make such orders in relation to the parental responsibility for the child concerned as it thinks fit. In this case, if that occurs, it will be necessary to consider only the claim that the parental responsibility for AJH remain with the Minister for Family and Community Services, thus preserving the status quo.

As noted by Brereton J in Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 at [237]:

More recently, in Adoption of JLK and CRK, Brereton J also considered the comparative benefits of a parental responsibility order compared with an adoption order, stating at [79] – [81]:

On the making of an adoption order, the existing parental responsibility for the adopted child (including the Minister's parental responsibility under the Care Act) ceases to have effect: s 96(1)(a) of the Act.

The Court has had careful regard to all the evidence and the relevant sections of the Act to which reference has been made. Ultimately, it must be satisfied that the making of an adoption order would be clearly preferable, and in the best interests of AJH, than any other action that could be taken by law in relation to her care. The only other realistic alternative is maintaining the status quo, which would see AJH continue as a child in out-of-home care fostered by EGK and JRK.

Reflecting on the evidence and the impression I formed of APF, I consider that whilst he has taken some steps towards rehabilitating himself, there are some matters of behaviour, as identified by Dr Boland, that appear not to have satisfactorily resolved. In addition, like her, I have real doubts about APF’s ability, effectively, to parent a young child.

APF no longer asserted that AJH’s care arrangements should be altered. Clearly, he considered that Dr Boland’s views on this aspect were persuasive. Bearing in mind her evidence, which I found compelling, and other evidence that I have read, and heard, I am also led to conclude that restoration to APF would not have been a realistic option. His acceptance of the conclusion was sensible and realistic, albeit later than it might have been.

EGK and JRK are clearly caring, intelligent and in a stable married relationship. They clearly both share a love for, and understanding of, AJH. This is obviously reciprocated by AJH, whose psychological attachment to them has been detailed. A level of secure, stable and robust attachment has been achieved, which attachment must be preserved. As stated, their conduct towards AJH, and towards the birth family of AJH, has been described as “exemplary”, a description with which I respectfully agree. They are also financially secure.

Although EGK and JRK do not consent to an order being made that parental responsibility be allocated to them, as I raised with counsel at the hearing, it is still necessary for me to consider this option as a matter of law, pursuant to s 90(3) of the Act: T159.4 – T159.21.

However, in the present circumstances, the Plaintiff accepted that as far as alternatives go, maintaining the status quo, rather than allocating parental responsibility to EGK and JRK (without their consent), is preferable, so that if further proceedings were commenced by APF, EGK and JRK would not be left without the support of the Plaintiff: T153.20 – T153. Given APF’s statements to which I next refer in this regard, this concern on behalf of the proposed adoptive parents is probably well justified.

In written submissions, counsel for the Defendant contended that as refusing to grant an adoption order would avoiding formally severing AJH’s legal connection to her birth family, this would leave the door open for APF to provide care for AJH into the future should the circumstances of the proposed adoptive parents change significantly.

Despite this, APF stated that it was not his intention to make a s 90 application, now, or in the future, for AJH's care: T139.27 – T139.42. He also stated his belief that giving parental responsibility to EGK and JRK would bring them all closer together to meet the best interests of AJH: T139.23 – T139.25.

APF denied he was holding out hope that AJH may decide in the future that she wished to return to his care, stating “I can't see that happening, but the choice is hers when she grows up. I'm not pushing for it”:T140.14 – T140.15.

Subsequently, however, in the course of re-examination by his counsel, APF reaffirmed that his current intention is not to make another s 90 application, but that if AJH made the choice in the future to return to his care, or in the event that EGK’s and JRK’s marriage were to break down, APF conceded that under those circumstances, he may commence further proceedings to have AJH restored to his care: T143.1 – T143.14, T143.27.

As I raised with counsel during oral submissions, the difficulty with APF’s stance is that it creates a situation where, as I stated at T179.15 – T179.26:

Counsel for the Defendant submitted that in terms of AJH's understanding of the world and what she sees on a day to day basis, an order for parental responsibility will, at this point in time, adequately meet her needs.

The difficulty about accepting that proposition, which I raised with counsel at the hearing, is that I cannot only look at the circumstances as they exist at the present time, as under the Act, the Court must consider the best interest of AJH, both now and in the future: s 8(a) of the Act.

It seems clear to me, therefore, that a parental responsibility order in favour of the proposed adoptive parents, even if it were consented to by EGK and JRK, would not provide the same degree of certainty and stability to AJH, and to EGK and JRK, that would be afforded by an adoption order.

The Plaintiff submits that an order that allows for parental responsibility to remain with the Minister would not be preferable to an adoption order, as it would not provide AJH with the legal relationship to the proposed adoptive parents as parents and child.

APF accepted that EGK and JRK loved AJH and wanted to provide care to her. He also accepted that they have cared for her well and have provided a loving and caring environment for her whilst she has been in their care. He was grateful to them for caring for her the way that they have and he had no concerns in relation to the way in which they had cared for her.

However, he contended that AJH’s best interests would not be promoted by the making of an adoption order but rather by maintaining the status quo. It was submitted that the advantages of doing so would include that the existing parental link between AJH and APF (and with MLH) would be maintained and that AJH’s sense of identity would be better maintained if the parental link was not severed.

Furthermore, it seemed to be suggested that satisfactory outcomes for permanence are achievable through long-term foster care. AJH seems to have thrived and there is no evidence to suggest this will not continue.

In considering the option of maintaining the status quo, by leaving parental responsibility with the Minister, I respectfully agree with Brereton J’s statement in Adoption of JLK and CRK at [82], that leaving AJH in “out-of-home” care, under the parental responsibility of the Minister and residing with the … foster parents, would maintain a situation in which [she was] less than [a] complete member of the family of which [she is a] de facto [member]. It would also leave [AJH as a ward] of the Minister, with the consequence that departmental approval would be required for significant decisions concerning [her] care and welfare. As with a parental responsibility order, such an arrangement would not give the [child] a family for life. And the order would be amenable to variation or rescission under Care and Protection Act, s 90.”

In all the circumstances of this case, to which reference has been made, maintaining the status quo would not be preferable to the benefits that would be derived from making an adoption order in favour of EGK and JRK. Such an order would not provide the same degree of certainty and stability to AJH, and to EGK and JRK, that would be afforded by an adoption order.

In Adoption of JLK and CRK at [83], Brereton J also noted that an option to be considered as an alternative to making an adoption order, is to defer final determination until the child is older, for example aged 12, when the child could decide whether or not to consent to adoption. However, his Honour went on to state at [97] that:

Because AJH is now aged 4 years and 8 months, and, at this stage, too young to have developed a clear understanding of adoption and to express a view that would be considered determinative, the Court would not be able to deal with the matter for over seven years. This would not be conducive to certainty and stability which, on any view, is extremely important to AJH’s future well-being.

Both of the parties, no doubt for these reasons, submitted that the Court should consider, as the real alternatives, making an order either to grant the adoption, or require parental responsibility to remain with the Minister: T157.19 –T157.22.

In broad terms, the Plaintiff submitted that AJH has established a stable relationship with EGK and JRK already. She has been in their care since April 2015. Dr Boland makes the assessment that she appears to be relaxed and comfortable with EGK and JRK; that she has a particularly strong attachment with EGK, and that she refers to them as “mummy” and “daddy”. Dr Boland suggested that AJH is starting to use EGK and JRK as a safe base and "is working towards a secure and healthy attachment" to them.

It is clear from the evidence that the proposed adoptive parents are committed to AJH, now and into the future. In her affidavit, EGK deposed that “[JRK] and I love and treasure [AJH]. I first decided that I wished to adopt [AJH] from the moment I met her, because I felt that she belonged in our family. [AJH] is a very important part of our family. I have seen her grow and develop into a beautiful and confident little girl. [JRK] and I will continue to provide [AJH] with a stable and secure environment full of love, laughter, smiles and fun…. [AJH] is already an integral part of our family and by adopting her I believe it will provide her with an official recognition of this”.

Similarly, in his affidavit, JRK deposed that “From the moment [AJH] and I took a walk together and she held my hand I knew I wanted her to be a part of our family. Her brilliant smile drew me in and it felt like [EGK], [AJH] and I were meant to be….I believe she realised that we were there for her as her forever home and her forever family”.

Echoing these sentiments, Ms Shannon stated in the s 91 report, “It is obvious to me that the proposed adoptive parents love [AJH] dearly. Their faces light up when they talk about her and they provide her with much love and affection. They are highly committed to her”.

I am satisfied that AJH has a very good relationship with each of the proposed adoptive parents. That is not to say that that relationship is not without its challenges.

It was submitted on behalf of the Plaintiff that an adoption order will promote AJH’s welfare as it will provide certainty for her. It will bring her legal status in line with her lived experience and make her, legally, a part of the family of EGK and JRK. Reliance was placed on the opinion of Dr Boland, to which opinion reference has already been made.

APF was concerned by what he regards as JRK’s and EGK’s attitude to birth family contact in the event that an adoption order is made and also to their capacity and appropriateness to facilitate AJH’s access to her culture. I do not share his concerns. To the contrary, I am satisfied that they have, and will continue, to encourage birth family contact.

There is more than enough evidence to lead to the conclusion that EGK and JRK, as the proposed adoptive parents, have demonstrated a proper and appropriate attitude to the responsibilities of parenthood. Earlier, I referred to Dr Boland’s description as “exemplary”. The empathy and compassion demonstrated by EGK and JRK, in my view, are very important matters for the Court’s consideration.

Furthermore, under cross-examination, APF conceded that he no longer held concerns with regard to the manner in which AJH would have exposure to Maori culture: T124.27 – T124.29.

APF did not accept that an adoption order would give AJH the security of a “forever home”, stating “she's getting looked after well where she's at. I just don't think it needs to be an adoption for her to think that she has a forever home”: T140.18 – T140.21. He refused to accept that there would be any benefit to AJH to be adopted. When pressed on this, he stated “I just think [AJH] is too young to even understand what adoption is, so that's the reason why I don't want to go through with the adoption”: T139.50 – T140.10, T140.23 – T140. 43.

In his submissions opposing making of an adoption order, APF asked the Court to take into account that he has demonstrated his commitment to AJH through both his attendance at all of his contact visits with her, and by paying for the activities that he engages in with her at the visits: T186.16 – T186.22.

There does not appear to be any doubt that APF loves AJH, and that he has been seriously affected by these proceedings. It can only be hoped that he will continue to play a significant role in her life when an adoption order is made.

I note that the paternal grandfather, KN, along with APF, has provided input into the development of AJH’s Cultural Care Plan and that they are both able to assist in supporting AJH’s cultural development through ongoing birth family contact, as provided by the amended Paternal Adoption Plan.

In her oral submissions, counsel for the Plaintiff contended that there is no real prospect that AJH will be returned to the care of either of her birth parents. An order for parental responsibility to the Minister has been made till AJH is 18 years of age. APF has already made an application under s 90 of the Care Act and the leave was refused to proceed with that application. I respectfully agree. In any event, restoration would not be in the best interests of AJH, and permitting even the possibility of restoration would be inimical to those interests.

There is clear evidence that the physical, emotional and educational needs, including her sense of personal, family and cultural identity, of AJH, are being met by EGK and JRK. There is also clear evidence that they are well capable of carrying out the responsibilities of parenthood and are otherwise suitable, and will provide for her needs.

Though AJH is currently residing with them, and whilst an adoption order may not effect any immediate, or overt, improvement in respect of the arrangements for her residence, education, and care, I have little doubt, bearing in mind her history, that an adoption order would provide what it is that she most requires, namely, a sense of certainty, predictability, security and sense of belonging, stability and permanence in an extremely nurturing environment. These things would benefit her psychological state and her well-being, not only now, but into the future. It will also provide her with the opportunity to reach her full potential. In these ways, AJH’s best interests will be promoted by the making of an adoption order.

Then, AJH would be raised in a legally recognised family, rather than remaining under the parental responsibility of the Minister for the duration of her childhood. She would no longer be in “out-of-home” care. Her legal status would conform with the practical realities of her life and give legal recognition to the relationship that has been building since AJH was placed in the care of EGK and JRK.

I have had regard to the wishes expressed by both APF and MLH and to AJH’s relationship with them and with her siblings. However, in light of the way in which EGK and JRK have approached ongoing contact with AJH’s birth family, and their understanding and acknowledgement of her need to have ongoing, and regular, contact with that family, an adoption order will enable them to further support, facilitate, and assist in the building up of, that contact, relieved of the insecurity and doubt that might exist if the prospect of a further application for restoration remained possible. They will be able to continue to foster and develop a positive and respectful relationship with APF, JaN and JoN, as well as further establish a flexible approach in organising contact arrangements between them.

In relation to MLH, EGK and JRK appear to be quite able to develop such a relationship with her, if given the opportunity to do so, and if she wishes to be more involved with AJH.

It is the approach of EGK and JRK that, in my view, would ameliorate the disadvantage of an adoption order, namely the permanent severance of the legal tie that AJH has with her birth family. EGK and JRK have clearly expressed, and demonstrated, that they wish to foster contact visits with AJH’s birth family. It will be for APF and MLH to join in and ensure that contact visits continue, thereby avoiding AJH experiencing any real sense of abandonment by her birth family.

Counsel for the Defendant submitted that APF’s opposition to the adoption was based “more from a heart perspective, as opposed to a legally reasoned perspective”, and given the significance of severing legal relations between them, this was one of the reasons why, in APF’s opinion, adoption was not preferable to any other action that could be taken by the Court: T178.23 – T178.27.

Bearing in mind all that I have read and heard, I am satisfied that the making of the adoption order is clearly preferable in the best interests of AJH to any other action that could be taken by law in relation to her care, for the purposes of s 90(3) of the Act. I am also satisfied of the relevant matters specified in s 90 of the Act in respect of AJH and will make the adoption order sought in respect of her adoption.

As described in s 46 of the Act, an "adoption plan" is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to the making of arrangements for the exchange of information between the parties in relation to any one, or more, of the following: the child's medical background or condition, the child's development and important events in the child's life, the means and nature of contact between the parties and the child, and any other matter relating to the adoption of the child.

In Re JLR, Bergin CJ in Eq described the history of the legislation governing adoption plans at [116]–[118]:

It has been said that “a significant element in meeting the identity needs of a child who does not reside with his, or her, birth family is birth parent contact”: Adoption of NG (No 2) at [59] (Brereton J). Furthermore, there continues to be recognition of the benefits that post adoption contact can bring by giving a child a sense of her, or his, own history, without undermining the permanency and security as the child of her, or his, adoptive parents: Down Lisburn Health & Social Services Trust & Anor v H & Anor [2006] UKHL 36.

As Lady Hale put it, at [7] – [8]:

Yet, post adoption contact would only be in the best interests of the child if the parents behaved well and did not use that contact to undermine the placement of the adopted child. Thus, in considering any adoption plan, the Court must exercise care in assessing the effect which contact is likely to have on the particular child in the particular circumstances of the case, bearing in mind that the welfare of the child is the paramount consideration. Increasing the possibility of a potentially frictional situation would be unlikely to safeguard or promote the welfare of the child.

Furthermore, the terms regarding contact should be “realistic and achievable. Unduly generous promises of, or indications as to, future contact should not be made in order to achieve a resolution of a case, however tempting that may be. Agreements as to contact should not include provision for excessive contact which is not in the interests of the children”: Kate and William, Re– Reduction of Post Adoption Contact [2017] NIFam 13 at [16].

There are two adoption plans, each of which is consented to by EGK and JRK. One, the Maternal Adoption Plan, provides for contact with MLH to be planned to occur twice a year. The other, the amended Paternal Adoption Plan, provides for contact between AJH and APF at a minimum of five times a year. (Each of EGK and JRK had acknowledged that he, and she, regarded the relevant term of the Adoption Plans to mean a minimum of two, or five, times, respectively, per year, rather than setting forth the maximum number of contact occasions: T87.10 – T87.18; T106.04 – T106.12; T112.03 – T112.06. Indeed, both stated that there would be no objection to the words “a minimum of” being added to each Adoption Plan: T107.15 – T107.17; T115.08 – T115.10.)

Each proposed Adoption Plan also provides for AJH’s views to become a relevant consideration once she has attained 12 years of age.

Section 90(1)(h) of the Act requires, in the case of a child (other than an Aboriginal or Torres Strait Islander child) that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption. I am satisfied that the sub-section has been satisfied in this case.

Of course, in this case, APF does not consent to the Paternal Adoption Plan in its present, or amended, form. He seeks greater post-adoption contact, or at least the amount of contact he had under the orders made by the Children’s Court, that is, on a minimum of six occasions per year for two hours supervised. However, he acknowledged that if the Court makes an adoption order and approves the amended Paternal Adoption Plan, then that Plan should be registered: T166.11 - T166.14.

EGK conceded, in cross-examination, that she and JRK have not made any complaints about the current frequency of visits with AJH’s birth family over the last 2 years and acknowledged that the visits had been “manageable”: T86.1 – T86.12. Of course, during this period, AJH has been a very young child whose activities are limited by her age.

APF contended that the evidence did not demonstrate the rationale for reducing contact, in circumstances where contact apparently has progressed well, is of benefit to AJH, and is not the subject of any complaint by EGK and JRK.

Counsel submitted that APF feared that without the benefit of a registered adoption plan, EGK and JRK may, at their discretion, reduce contact even further having regard to the reduction they already proposed in the Adoption Plan. Without the protection of registration, he would have great difficulty ensuring that AJH retains contact with her birth family should the proposed adoptive parents have a change of heart in the future.

I do not accept this submission as I have not read anything to suggest that any such fear is justified. That EGK and JRK have, during the course of the hearing suggested, and agreed to, an amended Paternal Adoption Plan, which increases the number of contact visits from 4 (in the previous suggested Paternal Adoption Plan) to a minimum of 5 per year (in the amended Paternal Adoption Plan), suggests the contrary.

It was also submitted that contact between AJH and her paternal birth family took on additional significance given MLH has been unreliable in her attendance.

Dr Boland opined that the proposed contact arrangements with respect to APF are suitable, noting:

Where a birth parent does not consent to the adoption of the child, under s 46(2A), the birth parent must “as far as possible” be “given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child”. Neither APF, nor MLH, has chosen to sign the relevant Adoption Plan and become a party to it. I am satisfied that each has been given that opportunity.

It is important to recognise that a child’s relationship with her, or his, birth parents does not cease upon the making of an adoption order. What ceases is the legal parental relationship, which is effectively transferred to those who are exercising and discharging the legal responsibilities of parenthood. Nothing can take away the biological link that exists, and the emotional and psychological ties, such as they are, and will be sustained by birth parent contact.

The requirement for supervision is appropriate, given the evidence of Dr Boland to which I have earlier referred. No doubt, EGK, JRK and APF, will over time, continue to adopt a flexible approach.

The amended Paternal Adoption Plan can be registered without APF signing it, where the Plaintiff seeks that registration for the purposes of s 50(1) of the Act and where the Court is satisfied that it meets the requirements of s 50(3) of the Act. On its registration, the provisions contained in that amended Paternal Adoption Plan will have effect as if they were part of the order made by the Court: s 50(4) of the Act.

I am satisfied that the arrangements proposed in the amended Paternal Adoption Plan are in AJH’s best interests, meet the requirements of s50(3) of the Act, and are proper in the circumstances for the purposes of s 90(2) of the Act. The Plaintiff and APF have agreed that if an adoption order is made and the Court is satisfied that the amended Paternal Adoption Plan is appropriate in all the circumstances, then it should be registered. I shall order that it be registered.

However, neither the Plaintiff, nor APF, nor MLH, has sought the registration of the Maternal Adoption Plan. In those circumstances, I am not prepared to make an order that the Maternal Adoption Plan also be registered.

Section 101(1)(b) of the Act provides that on the making of an adoption order, a child under 18 years of age is to have “as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents”.

The Plaintiff seeks a change of the name of “AJH” to “AJK”. APF seeks a change of the name from “AJH” to “AJFK”. He seeks the removal of the surname “H” and the inclusion of his surname “F”. Neither party submitted that AJH's current surname "H" should be retained, in the event that an adoption order is made: T159.32 - T159.33; T185.16 - T185.18.

Under s 101(2) of the Act, before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.

It was submitted by the Plaintiff, and I accept, that in the present case, AJH is too young for the Court to give weight to her wishes. However, as noted by Brereton J in Adoption of RCC and RZA at [104], the principles set out in s 8 should also be considered by the Court, including relevantly s 8(1)(e) which states that “the child’s given name or names … should, as far as possible, be identified and preserved”.

His Honour continued, at [105]:

The Court is prohibited from approving a change in the child’s name unless it is satisfied that to do so is in the child’s best interests: s 101(5).

Albeit in the context of s 92, and not s 101 of the Act, Brereton J also wrote in Director-General, Dept of Community Services v D & Ors at [258]:

In Application of H and H, child JW, I wrote, at [38] – [42]:

What I wrote was followed by Ward J (as her Honour then was) in Application of AW and IW Re Children J and J [2011] NSWSC 1529; again, by her Honour in Secretary, New South Wales Department of Family and Community Services (by his delegate Principal Officer, Adoptions, Barnardos Australia); Re JLR [2015] NSWSC 926; and by Robb J in Application D and D; Re Y [2013] NSWSC 1477.

Finally, as was written in B and C (Change of Names: Parental Responsibility: Evidence) [2017] EWHC 3250 (Fam), it should be remembered that:

Presently, AJH's name incorporates MLH’s surname. The Plaintiff submitted that by changing the name of AJH to include the surname “K”, her legal name would correspond with that of the family with whom she lives and identifies.

Ms Shannon, in the s 91 report, referred to having consulted, between March 2016 and September 2016, with various members of AJH’s birth family with regards to the proposal to change AJH’s surname to that of the proposed adoptive parents. At that time, APF expressed no opposition to this, as he had never wished for her surname to be “H”, but that if she was restored to his care, he intended to change her name to “F”. SH-G and CH-G did not raise any concerns about the proposed name change. BH advised Ms Shannon she “was not the biggest fan” of AJH’s surname being changed. Ms Shannon was not able to discuss with MLH her views on AJH’s name being changed to no longer include her surname. Finally JaN registered his opposition to a name change for AJH, as “[AJH] is part of [my] family”.

At the hearing, APF made the submission, that AJH’s surname should be changed to include his surname, together with the surname “K”: T159.30 – T159.35; 185.13 – T185.19. It was submitted that, in this way, even if an adoption order were made, the connection between AJH and APF would be maintained by the inclusion of his surname in AJH’s name.

Counsel for the Plaintiff, in her oral submissions, questioned the utility of including APF’s surname as a means by which the connection with AJH’s paternal birth family would be symbolically maintained. She referred to the fact that AJH’s half-siblings are known by a mix of three different surnames; APF’s sons, for instance, do not bear APF’s surname, as they share the surname of APF’s father, KN; she has half-siblings with the surname “H”, and half-siblings with the surname of “H-G”.

In reply, counsel for the Defendant reminded the Court that APF had given evidence that although he changed his surname from “N” (his father’s name) to “F”, that “F”, in fact, represented his mother’s name: T185.47. However, he changed his surname, firstly following his mother’s marriage to the name of her husband (“S”) and then back to “F” shortly before AJH’s birth: T186.06 – T186.11.

As I raised with counsel at the hearing, the effect of APF’s submission would be that one birth parent’s name would take priority, to the complete exclusion of the other: T160.11 – T160.13. To leave AJH with “H” in her name will result in the same thing, but “H” has been AJH’s surname since birth.

In October 2016, when informed that AJH’s surname would be changed to “K” if an adoption order was made, APF did not express any opposition to this and again stated that he never wished her surname to be “H”.

Ultimately, I accept counsel’s submission that “This is not a case where the identity of the [paternal birth] family is by reference to the paramount importance of a name”: T160.15 – T160.24. The name change proposed by APF will not result in the recognition of her family ties to her birth parents and half-siblings. There is no suggestion that AJH’s current surname has caused her to feel different, or alienated, from any of her half-siblings, or any of them from her. I do not propose to make the order sought by APF.

Rather, I am satisfied that AJH’s best interest in retaining her identity to her birth family, including each of MLH and APF, is through the contact that she has with them. It has been by that contact, rather than by her surname, that AJH has maintained her relationship with APF and JoN and JaN. As counsel for APF submitted:

In addition, to the extent that MLH wishes to maintain contact, it will be by that contact that AJH will maintain the relationship with her mother. The maintenance of that contact will give AJH the important sense of “belonging” which will be invaluable throughout her life. The relationship will not be lost by omitting “H” from AJH’s name.

However, the surname “K” will incorporate EGK and JRK’s surname so that AJH will understand that she is an important part of their family and have a sense of belonging. In addition, it will provide a sense of identity and make life a little easier when she goes to school as she would then not have to explain why her name is different to that of her parents.

Counsel for the Plaintiff submitted that if adoption is considered to promote AJH's best interests and it is clearly preferable to any other action available, then it ought follow that consent ought to be dispensed with in the circumstances: T159.25 – T159.28.

There is no dispute that each of MLH and APF has been provided with a copy of the Mandatory Written Information in respect of adoption. Both have consistently opposed the adoption and now APF has contested the adoption. I have referred to the evidence of service of the application to seek a consent dispense order and the application for the adoption orders on each.

I have also referred to the fact that EGK and JRK are authorised carers of AJH and there is evidence that AJH has established a stable relationship with both of them, for the purposes of s 67(1)(d)(i) of the Act. I am satisfied that making a consent dispense order, in respect of each of APF and MLH would promote AJH’s welfare for the purposes of s 67(1)(d)(ii) of the Act.

I am also satisfied that an order dispensing with the consent of each of APF and MLH to the adoption made under s 67(1)(d) of the Act would be in AJH’s best interests for the purposes of s 67(2) of the Act.

I shall dispense with the consent of AJH’s birth mother, MLH, and her birth father, APF, to the adoption under s 67 of the Act. I shall make an order for the adoption of AJH in favour of EGK and JRK and, on the making of the adoption order, I shall approve the surname proposed for AJH to “K”. I shall order the registration of the amended Paternal Adoption Plan.

The orders of the Court are: