Adoption of C and E R

1. [1]

   These proceedings concern the adoption of E R (‘E’) and C R (‘C’) in favour of H and J (‘the proposed adoptive parents’).

2. [2]

   By Further Amended Summons filed 21 April 2020, the Secretary, Department of Communities and Justice (‘the Secretary’) seeks the following orders:

3. [3]

   Orders were made on 12 September 2019 dispensing with the consent of E’s birth father and C’s birth father and dispensing with the requirement to give notice to them.

4. [4]

   The children’s birth mother was joined to the proceedings and she opposed the adoption.

5. [5]

   The proceedings were conducted before me on 29 April 2020 via Microsoft Teams. The Secretary was represented by Ms Stevens of counsel and the birth mother appeared in person.

6. [6]

   I gave brief reasons and made the final orders sought by the Secretary on 30 April 2020. I now publish my reasons in full.

Background

1. [7]

   E and C have lived with the proposed adoptive parents continuously since December 2016. At the time the children were placed in the proposed adoptive parents’ care, E was three and a half years of age and C was one and a half years of age. At the time of hearing, E was almost seven years of age and C was almost five years of age.

2. [8]

   The proposed adoptive parents are authorised carers who have had the care and responsibility for E and C under out-of-care home arrangements pursuant to the Children and Young Persons (Care and Protection) Act 1998 (‘the Care Act’).

3. [9]

   The children were removed from their birth mother’s care in August 2015 after a series of risk of harm and risk of significant harm (‘ROSH’) reports were received in relation to E and C concerning exposure to drug use, drug dealing and criminal activity in the home, as well as neglect and inadequate supervision. Family and Community Services case managers and police officers and detectives attended the birth mother’s home on 31 August 2015. Fifteen unknown adults were escorted from the property. Some of those adults were drug affected and there was evidence of drug use.

4. [10]

   Between August 2015 and December 2016, E and C had two short term placements with Barnardos Temporary Family Care foster carers.

5. [11]

   In October 2016, the Children’s Court of New South Wales made final orders providing for E and C to be placed under the parental responsibility of the Minister until they attained the age of 18 years. These orders remain in effect.

6. [12]

   The children have four maternal half siblings, O (adult), P (adult), Q (adult) and D (aged 16). D is under the parental responsibility of the Minister and resides with the children’s birth mother.

7. [13]

   E and C are both reported to enjoy overall good health and their behavioural development is reported to be as expected for their ages. In May 2017, E was referred to a speech therapist due to a mild to moderate speech sound impairment. E attended seven sessions of speech therapy at the conclusion of which it was reported that he had made significant progress and could correct his sound production in response to cues. In February 2018, E attended a speech pathology review and it was reported that his speech skills were appropriate for his age and stage of development and that no further speech therapy was recommended.

8. [14]

   In April 2017, C was reported to have delayed language, attention, listening and play skills. As a result, C attended speech therapy until March 2018, when he was assessed to have age appropriate language skills. He was recommended to remain on the wait list for individual speech therapy sessions. Barnardos records indicate that C is no longer on the waitlist and that the proposed adoptive parents have advised that they will take him for a further speech assessment should his speech be raised as an issue at preschool.

9. [15]

   The children are enrolled in and enjoy school. In 2020, E commenced Year One at his local primary school and C commenced preschool for three days per week. The children also enjoy swimming, rugby and playing mixed sports.

10. [16]

    The proposed adoptive parents have taken steps to assist E and C to develop a positive sense of identity. They display photographs of the children’s birth mother in their home, engage the children in regular discussions about their birth family, assist the children to create artwork, photographs and letters which are sent to their birth mother, and undertake Life Story work.

11. [17]

    E and C’s birth families are Anglo-Australian. The proposed adoptive parents are Greek Australian and of the Greek Orthodox faith (proposed adoptive father) and Anglo-Australian and of the Anglican faith (the proposed adoptive mother). The birth mother identifies with the Uniting Church faith. The proposed adoptive parents have advised that the children are currently being exposed to themes and values of the Christian faith relevant to each of the Anglican, Uniting and Greek Orthodox Churches. The birth mother has advised that in the long term she wants the children to identify with whatever faith they choose and confirmed she was happy for the children to be exposed to as many different faiths as possible.

12. [18]

    The children refer to the birth mother as “Mummy M” and E is aware that he has “two mummies and a daddy who love him very much.”

13. [19]

    The proposed adoptive parents supervise contact with the mother, which is generally positive. In 2018, only two contact visits took place between the mother and the children as the mother was incarcerated, and the visits occurred at Emu Plains Correctional Centre. Since the birth mother was released from prison in March 2019, she has had four contact visits with the children: in April 2019; June 2019; November 2019 and February 2020.

14. [20]

    There has been limited, though positive, contact between the children and three of their maternal half siblings, O (adult), P (adult) and D (16 years). No contact has occurred with their other sibling, Q (adult).

15. [21]

    The proposed amended maternal adoption plan provides for contact between E and C and the birth mother on six occasions per year. It provides for further consultation between the birth mother and the proposed adoptive parents and an ongoing exchange of information throughout the year. It also makes provision for continued engagement between E and C and their maternal half siblings if and when their siblings are in a position to attend contact with the birth mother.

16. [22]

    Due to difficulties in locating E and C’s birth fathers and their lack of any response to requests for contact with the children, there has been no contact with them. The paternal adoption plan for E makes provision for contact with the birth father in the event that his paternity is confirmed. There is no paternal adoption plan for C because his putative father has not acknowledged paternity.

Legal principles

1. [23]

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

2. [24]

   The Court must not make an adoption order unless the requirements in s 90 of the Act have been complied with:

3. [25]

   In accordance with s 90(3), the Court cannot make an adoption order unless it is clearly preferable to any other action that could be taken (for example, a long-term parenting order, restoration, etc.). Brereton J said of the section, in Adoption of KH [2015] NSWSC 274 (at [46]):

4. [26]

   In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J described the principles applicable with respect to s 8 (at [14]-[17]):

5. [27]

   Later at [76]-[80]:

6. [28]

   See also Adoption of Taylor-Clay [2019] NSWSC 27 at [58], in particular where Brereton J observed that:

7. [29]

   This approach to the application of s 90(3) was most recently approved by the Court of Appeal in OA v Secretary, Department of Communities and Justice [2019] NSWCA 322 at [57] (White JA, Macfarlan and Brereton JJA agreeing):

8. [30]

   As noted above, s 90(1)(d) prevents the Court from making an adoption order if consent to the adoption has not been given by every person whose consent is required under the Act.

9. [31]

   Relevantly, section 52 prevents the Court from making an adoption order in relation to a child who is less than 18 years of age unless the consent of each birth parent is obtained.

10. [32]

    However, s 54 provides for certain circumstances where consent is not required:

11. [33]

    If consent to an adoption is not obtained, the court may make a consent dispense order under s 67:

12. [34]

    As I have noted previously (see e.g. [2020] NSWSC 124), several cases have considered the issue of when consent ought to be dispensed with, noting the gravity of taking such action. In Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, Brereton J said (at [193]):

13. [35]

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

14. [36]

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

15. [37]

    In addition, notice of the application to make a consent dispense order must be given to the person whose consent is sought to be dispensed with at least 14 days before the order is made (s 72), unless one of the exceptions in s 72(2) applies.

16. [38]

    Importantly, section 88 of the Act also provides:

17. [39]

    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).

18. [40]

    Part 1 of Chapter 4 of the Act places certain restrictions on who can adopt a child in New South Wales which differ according to whether the persons seeking to adopt be an individual, couple, relative or step parent.

19. [41]

    Relevantly, section 28 sets out the following requirements in relation to adoption by a couple:

20. [42]

    ‘Couple’ is defined in the Dictionary to the Act:

21. [43]

    Section 101(1) provides that on the making of an adoption order, an adopted child who is less than 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.

22. [44]

    Before changing a child’s name, 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 (s 101(2)). However, the Court must not order a name change unless satisfied that the name change is in the best interests of the child (s 101(5)) and, where the child is over the age of 12, the child has provided their consent to the change (s 101(4)).

23. [45]

    As Brereton J acknowledged in Adoption of RCC and RZA [2015] NSWSC 813 at [104], re-iterating his own comments in Adoption of NG (No 2) [2014] NSWSC 680 at [109] and Adoption of BS (No 3) [2013] NSWSC 2033 at [86], ‘[t]he adoption principles set out in s 8 include, in (e), the principle that a child's given name or names, and identity, should, as far as possible, be preserved.’ However, at [105], his Honour also explained:

24. [46]

    Section 50 relevantly provides:

Evidence

1. [47]

   The Secretary relied on several affidavits. In particular, I note the affidavit annexing the s 91 Court Report of Ms Eliza Edwards, affirmed on 23 August 2018. Ms Edwards is a Senior Case Manager at Adoptions at Barnardos Find-A-Family. She described E as ‘a curious, happy, affectionate and energetic young boy who loves to explore’ and C as ‘a bubbly, happy and adventurous little boy.’ She stated that:

2. [48]

   Ms Edwards concluded that:

3. [49]

   I note the two affidavits of the Delegate, Denise Kay Berry, affirmed 13 February 2019 and 11 March 2020, and the exhibits annexed thereto,

4. [50]

   I note the affidavits of the proposed adoptive parents, both affirmed on 13 February 2019. In his affidavit, the proposed adoptive father stated that:

5. [51]

   The proposed adoptive mother similarly stated that:

6. [52]

   I also note the affidavits of the referees and the affidavits of service and attempted service.

7. [53]

   The birth mother affirmed one affidavit on 14 January 2020. The birth mother stated that she was released from custody in March 2019 and currently lives with her son, D. She has a partner, S U, with whom she has been in a relationship since mid-2019. She said that she is clean from all drugs and does not drink, and that she is focussed on getting her life “back on track” and providing a stable home for D and being the “best mum I can be” for all of her children, including E and C.

8. [54]

   The birth mother stated that she opposed the making of an adoption order because she is concerned about the impact that adoption may have on the children’s sense of identity and family relationships and does not wish to sever the legal relationship between her and the children. She also opposed the original adoption plan (which provided for four contact visits per year between her and the children), stating that it will reduce contact and cause the children to lose important connections with their birth family.

9. [55]

   The birth mother also stated that while she loves E and C very much and wishes that they could be returned to her care, she acknowledges that they are safe and happy where they now live, and it would be hard for them to return to her care. She said that she thinks the proposed adoptive parents take good care of the children and no longer intends to make an application for restoration.

Submissions

1. [56]

   The Secretary provided written submissions to the Court and further oral submissions were made during the hearing.

2. [57]

   The Secretary submits that an adoption order is in the best interests of E and C and clearly preferable to any other action that could be taken at law. The Secretary submits that E and C’s needs are very well met by the proposed adoptive parents. In relation to the alternatives to adoption, the Secretary further submits that restoration is not a realistic possibility as the birth mother has not effectively dealt with the circumstances that led to the removal of E and C from her care. The Secretary submits that maintenance of the status quo would leave E and C wards of the state until they are 18 and mean that the proposed adoptive parents are unable to make significant decisions regarding E and C without the approval of the Minister’s delegate. The Secretary further submits that an order allocating parental responsibility to the proposed adoptive parents would alleviate some of the disadvantages to maintaining the status quo but remains a temporary order that would expire when E and C attain 18 years of age. The Secretary therefore submits that an adoption order would bring E and C stability and security that other orders would be unable to provide, and is suitably child and future focused in that it will reflect the day to day reality of the current family circumstances and provide the children with a sense of belonging.

3. [58]

   In relation to the consent dispense order, the Secretary submits that the requirements in s 67(1)(d) are met.

4. [59]

   In relation to contact, the Secretary submits that there has been extensive negotiation with the birth mother and the amended maternal adoption plan now reflects the need for the children to maintain contact with their birth mother as they grow older. The Secretary further submits that the plan should be registered to ensure that contact will occur as agreed.

5. [60]

   In relation to the proposed change of surname, the Secretary submits that the change will enhance the children’s sense of security and stability and is in accordance with the wishes of the older child, E.

6. [61]

   The birth mother did not provide written submissions to the Court but made oral submissions during the hearing, which I have taken into account.

7. [62]

   The birth mother submits that she does not agree with the proposed change of surname. She does not agree that E would have asked for his name to be changed and submits that he has liked having the same name as his older half- brother, D.

8. [63]

   In relation to contact, the birth mother submits that while she is not entirely happy with the amended adoption plan, six visits per year are better than four. At the hearing, the birth mother also raised concerns about a shift in her relationship with the proposed adoptive parents that she has felt since the application for adoption was made and she read the evidence. She raised concerns about two occasions where the proposed adoptive parents had been upset because she had brought someone to contact with her. She said that these people were her good family friend, T, who knows E and C quite well, and her partner, S, who had both driven her to contact because she does not currently have a licence. In response, the Secretary noted that the amended maternal adoption plan provides for such situations in that the birth mother need only inform the proposed adoptive parents in advance if she wishes to bring somebody to contact with her.

Consideration

1. [64]

   It goes without saying that the Court’s paramount concern in any adoption case is the welfare of the child, or in this case, the children, not only now but into the future. Having carefully considered all of the materials and what was said in the course of the hearing, I am of the view that an adoption order is clearly preferable to any other action that could be taken in this case and is in the best interests of both E and C now and into the future.

2. [65]

   E and C have been living with the proposed adoptive parents since December 2016. The children and the proposed adoptive parents have formed a loving, stable and secure bond in that family unit. It is a family unit which, in my view, should not be disturbed, although that is not on the agenda at the present time. The birth mother has acknowledged that the children are safe and happy with the proposed adoptive parents and stated in her affidavit that she no longer intends to make an application for restoration. I recognise that it would have taken a lot of courage for the birth mother to acknowledge that and I believe it shows that she is looking out for the children’s best interests, as each of the adults involved in this case are obliged to do.

3. [66]

   I agree with the Secretary’s submission that an adoption order will provide E and C with a sense of belonging, permanency and stability that other orders cannot. It appears that E has already expressed some desire for his placement with the proposed adoptive parents to become his ‘forever home’, although he and C are both still too young to understand the meaning of adoption.

4. [67]

   The proposed adoptive parents have demonstrated their commitment to meeting E and C’s physical, emotional and intellectual needs, and I am satisfied that they are also committed to assisting the children to maintain a connection to their birth family. I note that the birth mother has sensed some change in attitude recently. However, having looked over all of the evidence, I am not convinced that it is material and I am certainly not convinced that it will have any impact on what otherwise appears to be a very harmonious and cooperative arrangement between the birth mother and the proposed adoptive parents into the future, now that the adoption orders are being made.

5. [68]

   I am satisfied that the consent of the birth mother ought to be dispensed with. The proposed adoptive parents are authorised carers who have the care and responsibility for E and C under out-of-home arrangements made under the Care Act. As I have already stated, the children have clearly established a stable and loving relationship with them, and the adoption will promote their welfare and best interests, being clearly preferable to any other action that could be taken. I am therefore also of the view that a consent dispense order is in their best interests.

6. [69]

   In relation to the proposed amended maternal adoption plan, I am satisfied that the arrangements, which have been agreed following extensive negotiations between the parties, are in the children’s best interests and appropriate in the circumstances. They accord with the adoption principles, reflecting E and C’s need to maintain their connection to their birth mother and maternal half-siblings, and now better reflect the birth mother’s wishes. I am of the view that the plan ought to be registered and that this will provide some certainty to the parties with respect to contact. I sincerely hope that the parties can communicate and cooperate with each other in relation to who brings the birth mother to contact visits and note that the adoption plan provides a road map for dealing with this so that any future anxiety or concern can be avoided. I note that there is a paternal adoption plan for E, although I also note that E and C are not presently in contact with either of their birth fathers.

7. [70]

   I am also satisfied that all of the formal requirements under the Act are satisfied. E and C were both present in the State when the adoption application was filed (s 23(2)(a)) and less than 18 years of age when the summons was filed (s 24(1)(a)). The appropriate notice was given to the birth mother (s 88(1)(a) and s 72) and the requirement to provide notice to the children’s birth fathers has already been dispensed with. The birth mother was provided with copies of the Mandatory Written Information on 17 May 2017 and 19 December 2017 (s 59).

8. [71]

   The proposed adoptive parents are domiciled in the State (ss 23(2)(b) and 28(1)(a)), meet the relevant age requirement (s 28(3)) and have been living together for the requisite period (s 28(4)). I am also entirely satisfied that the proposed adoptive parents are of good repute and are fit and proper persons to fulfil the responsibilities of parents, particularly having regard to the quality of care they have provided to E and C to date. This is also supported by the evidence of the referees. The Secretary’s delegate has consented to the adoption order.

9. [72]

   Finally, the Secretary seeks orders approving a change in the children’s surname to that of the proposed adoptive parents. The birth mother expressed concern about this and I understand that. However, the boys will maintain at all times, unless they choose otherwise going forward, the Christian names their birth mother chose for them. In my view, a change of surname is important, particularly because the children are so young. It will consolidate their sense of being, their sense of confidence going forward, and the sense of security and stability, and I am therefore of the view that it is in their best interests.