Secretary, Department of Communities& Justice Re: The Adoption of D

1. [1]

   This matter concerns the adoption by UD (the proposed adoptive parent) of B C D, born December 2007.

2. [2]

   By Amended Summons filed 3 July 2019, the Secretary seeks the following orders:

   1. (1)

      That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child’s birth mother, WC be dispensed with;

   2. (2)

      That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child’s birth father, X F be dispensed with;

   3. (3)

      That pursuant to Adoption Act 2000, s 88(4), the court dispense with the giving of the notice on the child’s birth father, X F;

   4. (4)

      That pursuant to Uniform Civil Procedure Rules 2005, r 10.14(3), the court directs that the Amended summons is taken to have been served on the child’s birth father, X F, on 8 July 2019;

   5. (5)

      That pursuant to Status of Children Act 1996, s 21(2), a declaration that X F is the father of B C D;

   6. (6)

      That pursuant to Births, Deaths and Marriages Registration Act 1995, s 19(2), for the inclusion of X F as the father of B C D in the Register of Births, Deaths and Marriages;

   7. (7)

      An order for the adoption of the child B C D in favour of the adopting parent UD;

   8. (8)

      An order maintaining the name “D” as the surname and “B C” as the given names of the child.

3. [3]

   The matter first came before me in the adoption list in July 2019 at that time I was informed that the birth mother wished to be joined to the proceedings and contest the adoption.

4. [4]

   On 16 October 2019, the proposed adoptive parent was also joined as a party to the proceedings.

5. [5]

   The purported birth father, has not participated in the proceedings and he has not filed an appearance. There have been some ongoing difficulties serving him with the materials. It appears that he does not consent to the adoption.

6. [6]

   In the days shortly preceding the hearing, the parties engaged in family mediation and successfully narrowed the issues in dispute. As a result of the cooperation of the parties, the issue of contact has been primarily resolved.

7. [7]

   The matter was ultimately heard over half a day on 4 December 2019. Counsel appeared for the Secretary, the birth mother and the proposed adoptive parent.

8. [8]

   On the hearing day, I gave short reasons and made orders for the adoption of B. I now publish my reasons in full.

Background facts

1. [9]

   B was born in December 2007 to WC (birth mother) (born November 1975).

2. [10]

   There is no birth father on B’s birth certificate. It is unclear what steps the Department took to identify B’s birth father when she first came into care. In November, December 2010, X F identified himself as B’s father to the Department. In February 2011, DNA testing indicated that there was a 99.99% chance that X F is the birth father of B. This DNA test did not comply with the Status of Children Regulations but did comply with the Family Law Regulations. Following X F’s identification in late 2010, he engaged with Children’s Court proceedings in 2011 and 2013 as B’s birth father.

3. [11]

   B has four maternal half siblings; Q (born August 1994), R (born April 1998), S (born August 2000) and T (born February 2013). Q, R and S’s father is Mr M and T’s father is Mr N. All children are or have been subject to care orders.

4. [12]

   There is a long history of reports relating to the children dating back to 1994 relating to the birth mother’s alcohol abuse, inadequate supervision, risk of psychological harm, domestic violence and inadequate shelter. The mother also has a long criminal history involving charges and convictions including for assault, driving under the influence, malicious damage and breach of bail.

5. [13]

   Between April 2009 and July 2010, there were five reports made to the Department with respect to B concerning primarily the mother’s alcohol use, her inability to meet her children’s needs and her mental health issues. In May 2009, a report was received that the birth mother had been arrested by the police due to being heavily intoxicated whilst driving with B in the car.

6. [14]

   On 11 May 2009, the birth mother was served with an Emergency Care and Protection Order (ECPO) Application, and care proceedings for all the children commenced sometime between 8-12 May 2009. During this time the children were placed with temporary carers. The birth mother worked successfully with Family and Community Services and consequently, B, R and S were returned to the care of the birth mother on 24 June 2009. Final orders were made for B allocating parental responsibility to the mother and for the children allocating parental responsibility to the mother and Mr M.

7. [15]

   Following the making of the final orders there was significant conflict between the birth mother and Mr M regarding the shared care arrangements for the other children. This included Mr M seeking an AVO against the mother. There were also concerns regarding the children’s attendance at school and inadequate supervision while in the mother’s care. In July 2010, a risk of significant harm report was received when the mother had overdosed on unknown drugs whilst B and S were in the home. An later investigation of the home found unhygienic conditions. In August 2010, an AVO was made protecting B and the birth mother from the birth mother’s then partner, Mr Y.

8. [16]

   On 2 August, the Department filed a s 90 application to vary the care orders with relation to the children. In August 2010, an order was made allocating interim parental responsibility for B to the Minister and parental responsibility for the other siblings to be allocated to Mr M. While the Children’s Court proceedings were ongoing, the birth mother commenced a 9 week rehabilitation program at Jarrah House however left in week 4.

9. [17]

   In November 2010, final orders were made allocating parental responsibility for Q, R and S to Mr M. B’s interim care orders were extended in order for the mother to have time to demonstrate a commitment to the parenting plan.

10. [18]

    T was assumed into care in August 2014 due to ongoing concerns related to the birth mother’s parenting capacity. The birth mother entered a rehabilitation facility in the ACT and T was restored to her care. He was assumed into care again in May 2015, due to ongoing concerns about the birth mother’s inability to contain her emotions and anger around him. Final orders were made in September 2015 allocating parental responsibility for T to the Minister until he attains 18 years of age. The birth mother filed a s 90 application seeking to vary the orders, however this was later withdrawn. Amended final orders were issued in April 2017 again allocating parental responsibility for T to the Minister. T currently resides in the Kiama area with his carers and is currently in the finalisation stage for adoption.

11. [19]

    When B was removed again in 2010 she was placed with a Barnardos temporary carer whilst the birth mother worked towards demonstrating a commitment to the parenting plan.

12. [20]

    In April 2011, the mother was involved in various incidents with the police including being charged with assaulting her neighbour as well as breaching bail conditions. Because of this, the Department indicated that they would not be supporting restoration of B. During this time, B’s birth father had come forward to be assessed as a carer for B. The Children’s Court Clinic Report found that at that time, the birth father’s parenting capacity was inadequate for him to assume parental responsibility for B.

13. [21]

    In October 2011, final orders were made allocating parental responsibility for B to the Minister until she attains 18 years of age, she was placed with her maternal aunt Mrs K and her husband Mr K.

14. [22]

    In January 2012, Mrs K advised the Department they could no longer care for B as she was too demanding. She advised that she and her husband could continue to care for B but they would like her to transition to a placement prior to starting school in 2013. At this time, the mother entered Jarrah House again for six weeks before being discharged following an altercation with another client. The mother then completed another program at Kedesh Rehabilitation Services.

15. [23]

    Following a staged transition, B was placed with the proposed adoptive parent in July 2012, at the time she was four and a half years old. At that time the proposed adoptive parent was in a relationship with Z (Z).

16. [24]

    The proposed adoptive parent and Z commenced a relationship in April 2008 and began living together in November 2008. The relationship continued until January 2014, and they ceased living together in October 2015. The breakdown in this relationship was acrimonious. Following the breakup B expressed that she did not want to see Z. Z kept in contact with the Department expressing a desire to see B, in December 2016 she informed the Department that she would not pursue contact due to the fractured relationship between her and the proposed adoptive parent. In December 2017, the proposed adoptive parent asked for Z to be removed as a significant person on B’s care plan due to her concerns that Z had unresolved issues relating to the breakup and would seek to be disruptive. It appears that Z has not contacted the Department since this time.

17. [25]

    In October 2012, the birth mother filed a s 90 application seeking to vary B’s October 2011 Care orders. The birth mother provided evidence of a number of courses she had completed in support of her application. The birth father supported the mother’s application. In December 2012, leave was granted to the birth mother to pursue her application.

18. [26]

    In Early 2013, the proposed adoptive parent and Z became parties to the proceedings. In June 2013, a Children’s Court Clinic Report confirmed the close relationship between B and her carers and the risks associated with transferring attachment from the carers to the birth mother would far outweigh the potential benefits.

19. [27]

    In September 2013, final orders were made allocating parental responsibility to the Minister until B reached 18 years of age, it appears that at some point the birth mother had withdrawn her application however it is unclear why.

20. [28]

    In an email dated 5 September 2013, the proposed adoptive parent and Z first expressed an interest in adopting B. Given that at that time the care of B was arranged by the Benevolent Society who were not authorised to provide adoption there was a delay in progressing the application. In November 2014, the Department was informed that the proposed adoptive parent but not Z was interested in adopting B.

21. [29]

    In November 2015 the Department received a report in relation to an allegation of physical harm of B by the proposed adoptive parent, in particular physical discipline including smacking as well as risk of psychological harm due to being exposed to verbal arguments between the proposed adoptive parent and Z. The report was found not to reach the threshold of significant harm as there was insufficient evidence regarding the allegations. Also in November a further report was received in relation to the proposed adoptive parent disciplining B by putting her in a cold shower.

22. [30]

    On 19 November 2015, a decision was made by caseworkers to move B to a respite placement for four weeks whilst further investigations took place. B was placed with temporary short-term carers during this time.

23. [31]

    On 8 December 2015, the proposed adoptive parent filed a s 90 application seeking orders placing B under the sole parental responsibility of herself. On 14 December, B was restored to the proposed adoptive parent’s care and the Children’s Court made interim orders allocating aspects of parental responsibility (aspects of day-to-day care) for B to the proposed adoptive parent. On 18 December, a senior caseworker undertook a risk assessment with a finding that B had suffered cumulative harm whilst in the care of the proposed adoptive parent and Z.

24. [32]

    On 22 January 2016, the Children’s Court granted leave to the proposed adoptive parent’s s 90 application to proceed. At this stage the adoption process was put on hold.

25. [33]

    On April 2016, an independent assessor finalised a carer review assessment and recommended that the proposed adoptive parent be authorised for a period of one year with a number of conditions.

26. [34]

    During a mention in August 2016, the birth mother and the birth father formally conceded there was no realistic possibility of restoration although sought that the parental responsibility remain with the Minister.

27. [35]

    In November 2016, final orders were made allocating all aspects of parental responsibility for B to the proposed adoptive parent excluding contact which was allocated to the Minister until B reached 12 years of age. Once B reached 12 years, all aspects of parental responsibility including contact would be allocated to the proposed adoptive parent.

28. [36]

    In March 2017, the proposed adoptive parent formally requested that the adoption of B be opened for discussion. In April 2017, the proposed adoptive parent was invited to submit an application to adopt B pursuant to s 45D of the Adoption Act.

29. [37]

    In June 2018, Adoption Assessor Ms Haskins assessed the proposed adoptive parent’s suitability to adopt B. Following the release of Ms Haskins report, the proposed adoptive parent emailed Ms Haskins with some concerns. In August 2018 Ms Haskins then informed the Department she felt unable to complete the s 91 report as she felt that the proposed adoptive parent distrusted her and that this may have affected her ability to have open discussions with B about the adoption. Ms Bonds was then engaged to complete the s 91 report.

30. [38]

    In July 2018, B’s name was formally changed to “B C D”.

31. [39]

    Initially, when B was assumed into care she displayed some challenging behaviours including, pulling her own hair, being aggressive towards others and hiding things and difficulty controlling her temper. When placed with Mrs K, it was reported that these behaviours improved but that she had nightmares and would scream in her sleep. When placed with the proposed adoptive parent and Z, B again experienced sleep disturbance and pulling of her hair. These behaviours steadily declined although still occurred around birth family contact.

32. [40]

    B continued to have some ongoing issues with anxiety particular around birth family contact.

33. [41]

    Following B’s removal from the proposed adoptive parent, B was anxious that the placement would change again and was reluctant to engage.

34. [42]

    In 2013, B commenced at Public School. B is currently performing well at school, she is part of the school’s leadership team and is achieving at a high standard across her subject areas. She is part of the choir and orchestra. B is also a competitive hockey player and a member of her local club.

35. [43]

    Following, B’s placement with the proposed adoptive parent and Z, she was to have 6 contact visits with the birth mother, 6 contact visits with the birth father and 6 contact visits with her siblings.

36. [44]

    Additionally, there has been frequent informal contact between Mrs K and her children, and B, since B was placed with the proposed adoptive parent. This occurs about four times a year and is arranged by the proposed adoptive parent and Mrs KZ.

37. [45]

    In 2014, the birth father contact the Department multiple times regarding his concerns about his lack of contact with B, and the lack of response from caseworkers.

38. [46]

    In March 2015, the proposed adoptive parent and Z expressed views that the level of contact was not in B’s best interests. The birth mother and birth father were against any reduction.

39. [47]

    On 6 April 2016, the birth mother raised concerns that contact was not happening every two months and further that she felt as though everything was done to accommodate the proposed adoptive parent. On 10 April 2016, the proposed adoptive parent emailed the caseworker and reported that B did not wish to have contact with her birth mother the next day and expressed her frustration at being accused of not supporting birth family contact. On 11 April, at a contact visit, B told her caseworker she did not want to have contact with her birth mother. B stated she would prefer contact if the proposed adoptive parent was present. The birth mother resisted this.

40. [48]

    Also in April, the proposed adoptive parent sent emails to the Department outlining the ways in which she had actively supported and encouraged birth family contact however that she was conscious of not having to force B to have contact if she did not want to.

41. [49]

    In May 2016, the birth father advised that contact had been difficult to organise and that he wanted monthly, unsupervised contact.

42. [50]

    In July 2016, B’s psychologist expressed that B felt obligated to visit her biological family.

43. [51]

    In August 2016, B expressed that she did not want to see her birth mother but was happy to see her siblings and birth father.

44. [52]

    During the s 90 proceedings in 2016, the birth father was seeking unsupervised visits 12 times a year.

45. [53]

    During home visits in September and November 2016, B again expressed that she did not want to see her birth mother.

46. [54]

    In the later part of 2016 there was some friction between the parties as the proposed adoptive parent wanted to change contact to take B on an overseas trip.

47. [55]

    At the conclusion of the Children’s Court proceedings in November 2016, the court ordered that contact should take place with the siblings and the birth mother six times per year and a further six visits were to take place with the birth father. Contact with the birth father was to be supervised at first with supervision gradually reducing as time went on.

48. [56]

    Throughout 2017 and early 2018, contact was on the whole positive. However there was some ongoing conflict and friction between the parties surrounding the organising and attending of contact visits. In particular it appears that even if the contact visit itself was mostly positive, there has been ongoing tension and sometimes hostile text messages and phone calls between the parties leading up to and surrounding contact, particularly between the proposed adoptive parent and the birth mother.

49. [57]

    It appears at some point, contact was reduced to four times a year with the birth mother and sibling group, and four times a year with the birth father.

50. [58]

    In April 2017, the proposed adoptive parent expressed some concerns about B being unsupervised with the birth father, B also expressed some anxiety about being left unsupervised with the birth father. However, the birth father was not agreeable to a supervisor being present. In May 2017, the birth mother and birth father were informed that B’s contact would be supervised by the proposed adoptive parent. In response, there was some conflict between the proposed adoptive parent and the birth mother.

51. [59]

    In August 2017, the proposed adoptive parent proposed under an adoption plan, that there would be six formal contact visits in total as well as ongoing informal visits. B expressed that she was excited to be adopted so she could not be told when she had to visit her birth family.

52. [60]

    On 22 February, caseworkers confirmed that supervision was no longer required for contact visits.

53. [61]

    In February and March 2018, the proposed adoptive parent raised that it was difficult with B’s school and extra-curricular activities, as well as travel time, to attend all the contact visits.

54. [62]

    In the latter part of 2018, the relationship, between the proposed adoptive parent and the birth mother in particular began to deteriorate which had a negative effect on the contact visits with birth family as a whole. It appears the catalyst was a missed contact visit by the proposed adoptive parent in April 2018, who mistakenly believed contact was arranged for the following weekend.

55. [63]

    In May and July 2018, the birth mother made changes to the agreed contact time and location at short notice.

56. [64]

    In September 2018, contact between B and the birth mother was not positive, the birth mother raised some issues in relation to the care by the proposed adoptive parent. There was further some confusion caused by a caseworker emailing different schedules to the proposed adoptive parent and the birth mother.

57. [65]

    The proposed adoptive parent then reported that the birth mother threatened to take her to court for breach of court orders around contact.

58. [66]

    In October 2018, B again expressed that she did not enjoy contact with the birth mother.

59. [67]

    During a contact visits in November 2018, there was a verbal altercation between S and the proposed adoptive parent.

60. [68]

    It is unclear how many contact visits have been occurring since the commencement of the court proceedings. It appears that there has been only a couple of visits with the birth mother and some siblings. It appears that the birth father has missed one or two of his contact visits.

61. [69]

    It is clear, when considering the potential adoption of a child or children, the best interests of that child/children is to be the paramount consideration at all times. Relevantly ss 7 and 8 of the Act provide:

62. [70]

    Moreover, in cases such as this where the children are older and able to express views about the adoption, regard should be had to s 9:

63. [71]

    The Act places certain restrictions on who can adopt a child or children in NSW. Part 1 of Chapter 4 of the Act, specifies particular requirements on persons applying to adopt, whether they be a couple, step parent, individual etc.

64. [72]

    Importantly, ss 54 and 55 provide for certain circumstances where consent is not required.

65. [73]

    There have been several cases which consider the issue of dispensing with consent. In Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 Brereton J said (at [193]):

66. [74]

    Similarly in Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142, Palmer J noted (at [52]):

67. [75]

    In Adoption of RCC and RZA [2015] NSWSC 813 Brereton J also said (at [17]):

68. [76]

    The Adoption Act contains multiple requirements to serve notice on potential parties, in particular, on the birth parents of any child who is being considered for adoption (see for example, ss 56, 82, 93).

69. [77]

    As noted above, s 72 requires that notice of consent dispense order must be served prior to making such an order, unless one of the exceptions in s 72(2) applies.

70. [78]

    In particular, s 88 provides:

71. [79]

    Importantly, the Uniform Civil Procedure Rules, apply to adoption proceedings and provide detail of when service is taken to be effected, informal service, etc. (see in particular r 10.14).

Evidence

1. [80]

   There was several affidavits and significant documentary material relied upon in this case. In particular I note the affidavit and s 91 report of Ms Bonds dated 3 April 2019. In her report Ms Bonds notes that the proposed adoptive parent has been a fierce advocate for B and is very in tune to her needs. B has a strong psychological bond with the proposed adoptive parent and identifies her as her mother. B has expressed a clear desire to be adopted. Ms Bonds notes that much of the issue around B’s adoption has centred around contact. She notes that the birth mother and birth father all clearly love B and expressed a concern that contact would be reduced and they would not get to see B if adoption was ordered. Ms Bonds further notes that B’s birth family, although recognising the quality of the care that the proposed adoptive parent has provided for B, treat her with a level of distrust. Ms Bonds was of the opinion that a robust adoption plan could resolve some of these concerns.

2. [81]

   Ms Bonds is of the view that an adoption order would be in B’s best interests and clearly preferable, particular taking into account B’s clear wishes and the strength of the bond she has with the proposed adoptive parent. However an adoption order should be ordered alongside a robust adoption plan. She is further of the view that post adoption support is necessary to support the parties in organising contact.

3. [82]

   I also note the affidavit of the delegate, Ms Middleton-Gatt (13 May 2019) and the affidavit of Ms Azzi (17 September 2019).

4. [83]

   The proposed adoptive parent swore three affidavits in the proceedings (dated 24 May 2019, 18 September 2019and 12 November 2019). She states that she is assisting B to have an understanding of her life story and heritage through open and honest conversations and helping explain how B came into care in an age appropriate way. The proposed adoptive parent states that B herself asked specifically about adoption and sought out her own information about the adoption process.

5. [84]

   The proposed adoptive parent states that she is committed to maintaining birth family contact and supporting B’s relationships with her birth family as she gets older. She states that there have been some ongoing problems with birth family contact but she believes she has continued to support B and encourage contact that is appropriate. The proposed adoptive parent states she has a deep love and a strong connection with B and desires to make her feel safe and for them to become a full legal family. She is of the belief that given B’s disrupted placement an adoption order is in B’s best interests and necessary for her to feel safe and secure.

6. [85]

   I also note the affidavits of the referees.

7. [86]

   B also wrote a letter to her birth mother and birth father expressing why she wished to be adopted. She states that she wants to be adopted because she “will feel more secure about who I am” and that she is “finally getting the choice to be normal”.

8. [87]

   The birth mother filed two affidavits in the proceedings (10 September 2019 and 23 September 2019). The birth mother expresses concern about the breakdown in the relationship between herself and B, and is concerned that B should know about her birth family and history as she gets older. The birth mother in particular wants B to have a good and ongoing relationship with her siblings. The birth mother states that contact visits are difficult to organise and she feels that the proposed adoptive parent is not doing enough to facilitate a positive relationship between B and her birth family.

Submissions

1. [88]

   Counsel for the Secretary provided detailed written submissions to the Court.

2. [89]

   The Secretary submitted that an adoption order was clearly preferable and in B’s best interests taking into account the strength of the bond between B and the proposed adoptive parent and B’s clear desire to be adopted.

3. [90]

   Counsel for the proposed adoptive parent adopted the submissions of the Secretary.

4. [91]

   Counsel for the birth mother indicated that following discussions and the development of the new adoption plan, she would no longer consent or oppose to any orders sought be the Secretary.

Consideration

1. [92]

   Considering all the circumstances of this case I am of the view that an adoption order is in B’s best interests and clearly preferable.

2. [93]

   In particular I have considered the factors contained within s 8 as well as s 7.

3. [94]

   B is described as a serious and articulate eleven year old. She loves reading, and playing hockey and music. She and the proposed adoptive parent enjoy going on holidays to the beach as well as skiing and are excitedly discussing where they think B should commence high school.

4. [95]

   There can be no doubt about the strong bond between B and the proposed adoptive parent. B has lived with her mostly since she was four years old and clearly identifies the proposed adoptive parent as her mum. Although B was removed from the proposed adoptive parent’s care for four weeks, I am satisfied that the concerns raised were not substantiated. It is clear that the period of separation was clearly traumatic for the proposed adoptive parent and B. I am of the view that an adoption order would provide much needed sense of stability and permanency for B and be clearly in her best interests.

5. [96]

   B is nearly twelve years old and has been expressing her desire to be adopted for some time now. Although she cannot consent to her own adoption at this stage I consider that her views are very important. It is clear to me that a child’s wishes, especially when expressed so clearly and deliberately, should be a strong factor to be taken into account. B is able to articulate clearly what an adoption order would mean and is adamant that it is what she wants. In her written letters to her birth mother and birth father she expressed her wish to be adopted, and was able to clearly state the legal ramifications of adoption and why she wanted it. I am satisfied that her wish to be adopted is her own and that wish should be taken into account.

6. [97]

   It is clear that the proposed adoptive parent has provided B with a warm and loving home for the past seven and a half years. B participates in a range of extra-curricular activities and has been encouraged by the proposed adoptive parent to reach her academic potential. Although initially B experienced some challenging behaviours and in particular anxiety when she was first placed, the proposed adoptive parent has been able to support B and these behaviours have steadily declined. The proposed adoptive parent is dedicated to B and it is clear that B is her first priority.

7. [98]

   I am of the view that the formal requirements have been met. B was present in the State when the application for adoption was filed (s 23(2)(a)), and was less than 18 when the summons was filed (s 24(1)(a)). I am satisfied that appropriate notice has been given to the birth parents (s 88(1)(a) and s 72(1)) and they have been provided with the mandatory written information (s 59).

8. [99]

   I would also note that there were difficulties effecting personal service on the birth father. Repeated attempts have also been made to serve the birth father via post and email. Under r 10.14(3) of the Uniform Civil Procedure rules 2005, I am satisfied that the father was served with the materials.

9. [100]

   I am satisfied that the proposed adoptive parent is domiciled in the State (s 23(2)(b) and s 27(1)(a)) and meets the age requirements (s 27(2)(a)). I am further satisfied that the proposed adoptive parent is of good repute and fit and proper to adopt for the purposes of s 27(1)(b), in particular taking into account the quality of care she has been providing for B as well as the fact that she has already been exercising parental responsibility for B for some time now.

10. [101]

    I am further of the view that an adoption order is clearly preferable to any other option taken at law.

11. [102]

    It is clear to me that it is not desirable to maintain the status quo, the proposed adoptive parent has clearly demonstrated an ability to successfully parent B without the intervention of the Department. It is clear that the uncertainty of the current arrangement, not only for B but for the birth family and proposed adoptive parent is not beneficial.

12. [103]

    It is also clear that there is no possibility of restoration in this case, B has not lived with either the birth mother or the birth father for a significant time. She has no strong emotional connection to either of them, and clearly regards the proposed adoptive parent as her mother. Although I acknowledge that the birth mother in particular, appears to have successfully addressed many of the concerns that lead to B being removed from her care initially, it is, in my view, clear that restoration is not an option in this case.

13. [104]

    It is also apparent to me, that allocating full parental responsibility for B to the proposed adoptive parent or a guardianship order would be of no advantage to B. The proposed adoptive parent will already be granted full parental responsibility when B reaches 12 years of age. There will be little benefit of this. It is clear to me, that B longs for the proposed adoptive parent to be her full legal parent. Only an adoption order can provide B with the sense of stability and permanency she craves and fully cement her place legally in the proposed adoptive parent’s family.

14. [105]

    In circumstances where B has had a difficult and disrupted placement history, it is clear to me that an adoption order holds significant value for B. It will help her feel safe, and emotionally and legally connected to the person she identifies as her mother. It will, I believe, achieve a sense of security and permanency for all family members.

15. [106]

    I would further make orders dispensing with the birth parents’ consent under s 67. Although a serious step, it is in my view, in B’s best interests. B clearly has a strong and stable relationship with the proposed adoptive parent and I am satisfied that an adoption will promote her welfare. B has been in the care of the proposed adoptive parent since she was four and a half years old and refers to the proposed adoptive parent as ‘mummy’. B considers herself to be part of the proposed adoptive parent’s family. Although the birth parents current oppose adoption, they have in the past recognised the quality of care B has received from the proposed adoptive parent and both have acknowledged that B has a strong bond with the proposed adoptive parent.

16. [107]

    It appears that the main reason the birth parents oppose the adoption is centred around issues of contact.

17. [108]

    This is a case, like many others, where issues surrounding contact arrangements can lead to parties into entrenched and adversarial positions. Although understandable, this ultimately can obscure the focus from the best interests of B. Arranging frequent and positive, contact with birth parents and multiple siblings as well as extended family is challenging particularly when there are several working adults who all live in different areas. However ultimately, birth family contact is extremely important for B and is essential for her continued learning and understanding surrounding her identity and place in the world. It is clear to me that all persons involve have a deep love for B and want what is best for her, and I encourage the parties to work towards positive relationships for B’s benefit. I congratulate the parties in working prior to the hearing to attempt to resolve some of these difficulties. I am of the view, that going forward and once a degree of legal stability has been achieved, that birth family contact can go on to be a positive experience for all involved but most importantly B.

18. [109]

    The new proposed maternal adoption plan provides for a minimum of four visits a year and a further two visits planned with the maternal siblings. The paternal adoption plan provides for a minimum of four visits with the birth father. There is further a detailed plan for arranging the contact visits, and a commitment on the part of the parties to consider additional visits.

19. [110]

    The plans further provide for ongoing contact between B and her birth siblings. B has expressed that she enjoys contact with her siblings and it is clear that this ongoing relationship will be important for B as she matures.

20. [111]

    In particular, I am of the view that it is entirely appropriate in all the circumstances to register both the paternal and maternal adoption plan.

21. [112]

    I would also made an order declaring X F as the birth father under the Status of Children Act 1996 (NSW), and an order for his inclusion as the father of B on the Register of Births, Deaths and Marriages.