Adoption of B

1. [1]

   The Secretary of the Department of Family and Community Services seeks an order under s 23 of the Adoption Act 2000 (NSW) for the adoption of B in favour of MI.

2. [2]

   B was born in 2007. She is now 12.

3. [3]

   Her parents are AC and BD.

4. [4]

   On 24 September 2007, when B was just six months old, she was assumed into care pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the “Care Act”).

5. [5]

   On 17 October 2007 B was placed with MI and her husband NH.

6. [6]

   Exactly one year later, on 17 October 2008, the Children’s Court at Walgett made orders placing B under the parental responsibility of the Minister until she turned 18.

7. [7]

   B lived with MI and NH until MI and NH separated in 2013.

8. [8]

   B continues to live with MI.

9. [9]

   Despite MI and NH’s separation, B sees MI and NH as her day to day parents and calls them “Mum” and “Dad”.

10. [10]

    MI has two now adult children by her first husband, both of whom live independently.

11. [11]

    B has had no face to face contact with her mother, AC, since 7 September 2012 and her father, BD, since 8 March 2013.

12. [12]

    B has a sibling, S, who is now 8 years old, and who lives with AC’s mother, RB. B visits S and RB several times a year.

13. [13]

    B has four half siblings. They are T, M, L and C, all of whom are adults.

14. [14]

    B has some contact with T but has not had contact with her other half siblings since 2011.

15. [15]

    B’s mother, AC, has played no role in these proceedings.

16. [16]

    B’s father, BD, is the defendant and opposes the making of an adoption order.

17. [17]

    It is however important to emphasise that BD acknowledges that “MI has done a good job in raising B”.

18. [18]

    His counsel, Mr Moore, opened his cross-examination of MI by stating:

19. [19]

    In his written submissions Mr Moore said:

20. [20]

    Mr Moore opened his oral submissions by stating:

21. [21]

    As Dr Barnett, who appeared for the Secretary submitted, there is no doubt that MI is taking admirable care of B. Their relationship is, in every sense, that of a loving mother and daughter.

22. [22]

    These matters were not in contest in the hearing before me.

23. [23]

    There is no dispute that the formal requirements under the Adoption Act have been complied with. It is unnecessary to set out the detail of those matters.

24. [24]

    On 15 March 2019 B signed a form of consent to the adoption. The requirements of the Adoption Act concerning the giving of that consent have been complied with.

25. [25]

    As B is now 12, and has consented to the adoption, the consent of AC and BD is no longer necessary: s 54 of the Adoption Act.

Is the making of an adoption order clearly preferable?

1. [26]

   I must be satisfied that an adoption order is in B’s best interests and that the making of such an order is clearly preferable: s 90(3) of the Adoption Act.

2. [27]

   Mr Moore’s submission was that although it was in B’s best interests that she remain in the full time care of MI, the making of an adoption order was not “clearly preferable”, that is “obviously, plainly or manifestly” preferable, to any other action that could be taken by law in relation to B’s care for the purpose of s 90(3) of the Adoption Act: Director-General, Department of Community Services v D (2007) 37 Fam LR 595; [2007] NSWSC 762 at [25] (Brereton J); see also Re D; Application of A (2006) 36 Fam LR 142; [2006] NSWSC 1056 at [53] (Palmer J).

3. [28]

   Mr Moore submitted that the “legal alternative” to adoption that should be ordered is the making of an order giving MI parental responsibility for B under s 92 of the Adoption Act.

4. [29]

   Mr Moore submitted that:

5. [30]

   What appears to lie behind Mr Moore’s submission is BD’s apprehension that the making of an adoption order will have the result that his efforts to resume contact with B will be less likely to succeed than would be the case were an order made giving MI parental responsibility for B.

6. [31]

   However, I do not think that the making of an adoption order will make any difference to BD’s prospects of resuming contact with B. Currently, B expresses the strong view that she does not wish to see BD.

7. [32]

   That is not surprising. B has not seen BD since March 2013, over six years ago. B was then only six years old. Contact arrangements were then problematic. In that regard, MI gave this evidence which Mr Moore did not challenge:

8. [33]

   One reason BD has not seen B since 2013 is that he has spent some time in gaol.

9. [34]

   BD did not dispute that there had been some difficulties in the past. In his affidavit he said:

10. [35]

    In the course of her evidence, I asked MI whether she saw it as part of her role to encourage B to see BD. MI responded:

11. [36]

    However, a short time later we had this exchange:

12. [37]

    Arising out this exchange, MI agreed to a change in the Paternal Adoption Plan so that, relevantly, it read as follows:

13. [38]

    I accept that BD is sincerely trying to re-establish a relationship with B. He is having supervised contact with B’s younger sister, S. But B is adamant, at the moment, that she does not wish to see BD. With some encouragement from MI, that may change over time. Hopefully BD can find within himself the patience and perseverance to persist with his efforts to establish contact, even if there is no positive response from B to those efforts in the short term. Time will tell.

14. [39]

    What I think is clear is that the making of an adoption order now will not, itself, effect BD’s prospects of resuming contact with B at some point in the future.

15. [40]

    On the other hand, there are many factors pointing, quite decisively in my opinion, to the conclusion that it is clearly preferable that, rather than an order allocating parental responsibility to MI under s 92, an order be made for adoption.

16. [41]

    MI’s evidence emphasised the security that an adoption order would bring to B’s life.

17. [42]

    To adopt the words of Brereton J in Adoption of NG (No 2) [2014] NSWSC 680 at [77] to [78] (with adjustments to reflect the circumstances here), in addition to providing certainty and permanence for B, an adoption order will have the result that:

18. [43]

    The paramount consideration when determining whether an adoption order should be made is the best interests of the child: s 8(1)(a) of the Adoption Act.

19. [44]

    Importantly, the words “paramount consideration” should be understood to “connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood”: J v C [1970] AC 668 at 710-711 (Lord MacDermott); Re the Adoption of CCS and FLS [2019] NSWSC 71 at [169].

B’s best interests

1. [45]

   Section 8(2) of the Adoption Act sets out the matters that I must consider in determining B’s best interests.

2. [46]

   I shall deal with each of them. What follows is drawn in large part, with gratitude, from the written submissions of Dr Barnett.

3. [47]

   B wishes to be adopted by MI and has reaffirmed this recently.

4. [48]

   B is 12 and has expressed a strong wish to be adopted.

5. [49]

   Under s 91 of the Adoption Act a report in writing concerning the proposed adoption must be prepared. In this case the report was prepared by Ms Gaye Wilson. Her report is dated 21 June 2018.

6. [50]

   Ms Wilson reports that B has developed a “clearer understanding” of adoption. B understands that she will be provided with a new birth certificate that reflects the new legal relationships that will be created and understands that S and T would no longer be her legal sisters.

7. [51]

   On 12 March 2019 Ms Kim Gross, a Family and Community Services Regional Adoption Caseworker, conducted counselling with B to assess her capacity to give her informed consent to the adoption. Ms Gross concluded that B was capable of understanding the effect of consenting to her adoption.

8. [52]

   Although B has had some behavioural and emotional issues, there is no doubt that MI has taken good care of her. The evidence suggests that B internalises her feelings, but MI uses arts and crafts as an outlet for her. MI and NH readily engage with B’s former psychologist, and her current psychologist, Ms Kimberly Tufrey. B participates in a variety of extracurricular activities in MI’s care, including horse riding.

9. [53]

   The evidence shows that B’s education, health, psychological and social needs are all being met to a high standard. This is reflected in the affidavits given by MI’s referees who report that MI’s home provides a “nurturing and very stable environment for B” and that MI has “always been loving and supportive of her daughter” and has “created a safe and loving home”.

10. [54]

    MI is a qualified primary school teacher. She has decided to home school B this year and is currently undertaking Grade 6 work for her. MI and B are currently travelling around Australia, having commenced their travels in March this year. They are due to return in December 2019. Throughout this trip, MI is ensuring that B maintains contact with friends and other important people in B’s life.

11. [55]

    The plan is for B to attend High School next year at a school where NH is one of the teachers.

12. [56]

    A Behaviour Management Plan and an Intervention Plan have been created to assist improving B’s emotional wellbeing and supporting her peer relationships, emotional identification and coping strategies.

13. [57]

    B maintains good health, although she had some difficulty with her social behaviours at school.

14. [58]

    B has a biochemical imbalance which is being treated medically to enable B to sleep more soundly and feel more relaxed in her school attendance.

15. [59]

    B has some particular sensitivities and has had recurring aggressive outbursts and anxieties at times.

16. [60]

    As I have mentioned, BD is opposed to the adoption for the reasons I have set out.

17. [61]

    AC has played no role in the adoption process.

18. [62]

    As I have mentioned, B maintains contact with her maternal grandmother, RB, and her sister, S.

19. [63]

    MI has stated that she will continue to seek opportunities for B, S and T to meet and continue to build their relationship.

20. [64]

    MI impressed me as a calm and determined person. She has engaged the services of psychologists to better develop coping strategies for B.

21. [65]

    In her continued care of B since 2007, MI has demonstrated that she has the attitude and aptitude needed to fulfil the responsibilities that will be required of her in being B’s parent.

22. [66]

    MI has expressed a willingness to maintain B’s contact with her birth family and this is reflected in the adoption plan to which I have referred.

23. [67]

    It is clear that B has a warm, loving and affectionate relationship with MI. She describes MI as “the best mum”.

24. [68]

    MI is most certainly a suitable and capable parent. It is clear that she has a strong and loving relationship with B.

25. [69]

    MI has been supportive of B’s education, her extracurricular activities, her medical needs and contact with her birth family. There is no reason to doubt that she will continue to do this.

26. [70]

    MI is settled within her community. She works as a marriage celebrant and as a part time or casual primary school teacher. MI assists with B’s schooling and extracurricular activities.

27. [71]

    As I set out earlier, there have been difficulties with B’s contact with BD.

28. [72]

    MI has written to BD updating him on B’s progress and development.

29. [73]

    BD is, presently, endeavouring to re-establish contact with B and has, in recent months, sent a number of letters to her.

30. [74]

    It is clear that MI is the person best placed to ensure that B’s best interests are promoted in this regard.

31. [75]

    I have discussed these matters above. I am satisfied that adoption is the clearly preferable course to be taken to promote B’s best interests.

Is B an Aboriginal child?

1. [76]

   There remains for consideration the suggestion in the evidence that B may be of Aboriginal descent and thus may be an “Aboriginal child” for the purpose of s 4 of the Adoption Act.

2. [77]

   For B to be “Aboriginal child” she must be a child descendent from an “Aboriginal”, which is defined as having the same meaning as “Aboriginal person” in the Aboriginal Land Rights Act 1983 (NSW), namely a person who:

3. [78]

   Section 4(2) provides that “the Court may determine that a child is an Aboriginal for the purposes of this Act if the Court is satisfied that the child is of Aboriginal descent”. Sackar J recently observed in Helen Fischer v Ashley Thompson (Anonymised) [2019] NSWSC 773 at [210]:

4. [79]

   The evidence before me on this question is that:

5. [80]

   If B is an Aboriginal child, an adoption order must not be made unless I am satisfied that “the Aboriginal placement principles have been properly applied”: s 90(1)(e) of the Adoption Act. Thus, I must come to a conclusion as to whether B is an Aboriginal child.

6. [81]

   I may act on any statement, document, information or matter that may assist me reaching a conclusion about this, whether or not such material would be admissible in evidence: s 126 of the Adoption Act.

7. [82]

   However, Practice Note SC EQ 13, which applies to proceedings under the Adoption Act, states at [33]:

8. [83]

   In any event, this scant and conflicting evidence does not enable me to come to any conclusion as to whether B is of Aboriginal descent. Evidently AC believes that she is of Aboriginal descent, but her paternal grandfather has evidently made inquiries which suggest the ancestry is of Maori rather than Aboriginal, origins. There is no evidence before me as to who prepared the genogram or what documents were relied on to create it. Nor is there evidence as to what matters the Pius X Aboriginal Corporation had regard to when issuing its confirmation of B’s Aboriginality.

9. [84]

   That is not to say that I have reached a conclusion that B is not of Aboriginal descent.

10. [85]

    It may well be that one day B will read these reasons. I would like B to understand that nothing that I say here should discourage her from exploring her heritage for herself. If it turns out that B is a person of Aboriginal descent, that is a matter of which she can be proud. I am saying no more than that, on the material before me, I cannot reach any firm conclusion about B’s heritage.

11. [86]

    MI is however actively supporting B’s understanding of her possible Aboriginal heritage as is revealed by this evidence in MI’s affidavit:

12. [87]

    MI also gave this evidence in answer to my questions:

13. [88]

    As I am not satisfied that B is an Aboriginal child, I do not need to be satisfied that the Aboriginal placement principles have been properly applied.

Conclusion

1. [89]

   I am satisfied that it is in B’s best interests that the order for adoption be made. This course is clearly preferable to making an order under s 92 placing B under the parental responsibility of MI.

2. [90]

   There is no dispute about the form of orders that should be made. BD consents to orders confirming his paternity of B.

3. [91]

   I make the following declaration and orders:

   1. (1)

      Declare pursuant to s 21(2) of the Status of Children Act 1996 (NSW) that BD is the father of B.

   2. (2)

      Order pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) for the inclusion of BD as the father of the child B in the Register of Births, Deaths and Marriages.

   3. (3)

      Order pursuant to ss 50(1) and (3) of the Adoption Act that the amended Adoption Plan in relation to the birth mother and the child, signed by the proposed adoptive parent, the child, and a delegate of the Secretary, Department of Family and Community Services on 20 June 2019 be registered.

   4. (4)

      Order pursuant to ss 50(1) and (3) of the Adoption Act that the amended Adoption Plan in relation to the birth father and the child, signed by the proposed adoptive parent and a delegate of the Secretary, Department of Family and Community Services on 26 June 2019 be registered.

   5. (5)

      Order for the adoption of the child B in favour of the adopting parent MI.

   6. (6)

      Order approving the name “I” as the surname and “BJ” as the given names of the child.