Adoption of AMB and JJE

By Summons filed 21 February 2018 the Secretary of the Department of Family and Community Services by his delegate the Principal Officer of Adoptions of Barnados Australia (the Plaintiff) sought orders for the adoption of the children AMB born 4 January 2010 and JJE born 18 February 2012 in favour of the proposed adoptive parents NMB and GPLP.

The Plaintiff also seeks an order dispensing with the consent of the birth parents namely:

An order is further sought approving the proposed adoptive father’s surname as both children’s surname.

The birth mother has engaged in the contested proceedings and opposes adoption.

The birth father of AMB has not engaged in proceedings. The birth father of JJE has participated in mediation and an agreement has been reached with him and the Plaintiff (Exhibits P1 and P2) to the extent that he did not seek to be further heard with respect to the proposed adoption although he did not consent to the proposed adoption.

On 22 October 2018 the Plaintiff sought leave to file an Amended Summons which was not opposed seeking to give effect to adoption plans signed by the proposed adoptive parents and the birth father GJE.

The Plaintiff submits that the formal requirements of the Adoption Act 2000 (NSW) have been met or are uncontroversial with regard to the following matters (submissions [2.1]):

The Plaintiff further submits the requirements for dispensing with consent of the birth parents under s 67 of the Adoption Act 2000 (NSW) have been met (submissions [3]). The Plaintiff contends the children have an established and stable relationship with the proposed adoptive parents with whom they have lived since 2 July 2015, demonstrated by the expert report of Ms Dianne Starkey. The Plaintiff submits the adoption plan proposed and the course proposed by the Plaintiff would in all of the circumstances promote the best interests of the children (submissions [4]-[6]).

The Defendant it seems accepts all of the relevant procedural statutory requirements have been satisfied as set out in paragraph [7] above.

The Defendant submits there are three alternatives for the Court: (a) restoration of the children to the birth mother; (b) granting the order for adoption; and (c) decline the adoption application in favour of long term care (submissions, T21/17-20).

The Defendant submits an adoption order to the proposed adoptive parents will not provide the children with long-term stability, as the adoptive parents have had prior relationships, the adoptive father is the primary carer for the children, and there is no submission by the adoptive parents that they cannot have children themselves (submissions [1]). The Defendant contents that an adoption order should not be made without a finding that the adoptive parents have a long-term commitment to the children and to each other (submissions [1]).

The Defendant contends that restoration is appropriate, as the birth mother has addressed the issues of abusive relationships, sought support and demonstrated a commitment to care long-term for the children (submissions [2]). The Defendant concedes she would not offer an affluent lifestyle but would offer long-term stability and restoration would restore the two children’s sense of belonging and bonding with a birth parent (submissions [2]).

The Defendant accepts the placement of the children is currently successful, and submits in the alternative that the application for adoption should be refused (submissions [3]).

Sections 7 and 8 of the Adoption Act 2000 (NSW) provide:

With respect to adoption plans s 46 of the Adoption Act 2000 (NSW) provides:

With respect to disposing of consent of birth parents to the adoption of a child, s 67 of the Adoption Act 2000 (NSW) provides:

Section 90 of the Adoption Act 2000 (NSW) likewise provides:

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

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

In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J said (at [69]-[72]):

In Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 McColl JA said (at [42]-[44]):

See also Re Tanya [2016] NSWSC 794 per Rein J and In the matter of Campbell [2011] NSWSC 761 per Slattery J.

In Re H (Adoption: Parental Agreement) (1982) 3 FLR 386 Ormrod LJ, with Oliver LJ and Purchas J agreeing, said (at 388):

More recently in Re W (A Child) [2017] 1 WLR 889; [2016] EWCA Civ 793 McFarlane LJ (with Jackson and Lindblom LJJ agreeing) said (at [64])

Section 101 of the Adoption Act 2000 (NSW) provides:

In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J said (at [104]-[105]):

Ms Norderyd affirmed two affidavits on 20 February 2018 and 19 September 2018.

In her affidavit Ms Norderyd advised she was a senior case manager Adoptions, Barnados Australia and is an authorised person for the purpose of s 91(2A) of the Adoption Act 2000 (NSW). She provided a report in which she concluded that both children in this proceeding have thrived since their placement in July 2015 with the proposed adoptive parents. She said the proposed adoptive parents have embraced their roles as parents of the children, demonstrating an advanced level of competency and commitment to loving and nurturing the children.

The report concluded that there has been a relationship of positive respect between the proposed adoptive parents and the birth family. It was her view an adoption order would be the most appropriate order, and that the proposed adoptive parents had demonstrated a commitment to supporting the children, with both children expressing a desire to live with them.

She affirmed a further affidavit on 19 September 2018, which included a description of the decision to reduce the number of contact visits for the children with the birth parents.

In cross-examination she confirmed that there had been concern for the birth mother’s mental health at the time of birth of AMB (T5/16-19) and that there was domestic violence recorded on the relevant records (T5/36-37). She accepted that no further concerns for the birth mother’s mental health had been recorded since that point (T7/4-25).

She said contact between the birth mother and the children was typically for two hours (T8/14-15) and expressed her concern that if AMB and JJE were restored to the birth mother there would be a danger of emotional harm, in that they would be uprooted from the proposed adoptive parents to whom they are emotionally attached (T8/30-43). She disagreed that the danger of emotional harm could be overcome by a gradual restoration to the birth mother (T9/32-40).

She said there is no indication that the proposed adoptive parents were going to separate or that their relationship would fail (T10/1-9). She said it had not been her role to assess the birth mother’s parenting capacity (T11/24-26).

Ms Berry affirmed one affidavit on 21 February 2018.

Ms Berry described how she is a Principal Officer for Barnados Australia. She described how the children have been living with the proposed adoptive parents since 2 July 2015, and at the time of placement AMB was almost 5 years old and JJE was 3 years old.

She provided a comprehensive description of the various matters surrounding the placing of the two children into care, and noted that Barnados records indicate the children were removed from their mother’s care because of ongoing concerns regarding the birth mother’s failure to protect and disassociate from perpetrators of domestic violence in the household. Whilst in the birth mother’s care she said the children were exposed to family violence, and the birth mother has a history of drug use and post-natal depression.

She described how when asked about adoption AMB appeared confused as to the meaning of adoption however indicated she wanted to stay forever with the proposed adoptive parents.

Ms Berry was not required for cross-examination.

The proposed adoptive father swore an affidavit on 12 February 2018.

He provided an overview of their financial status similar to that of his wife and said their current mortgage amounts to $732,400, with his current assets totalling $300,000 not including personal effects or furniture. As with his wife he said neither children are being reared in a religious tradition, and would propose in the event that an adoption order is made 4 contact visits per year for birth family contact would be appropriate.

In cross-examination the proposed adoptive father said that he and his wife had given thought to having children of their own but that they have not made a decision either way (T12/50-T13/7). He confirmed he was the primary carer of the children (T13/45-46). He accepted he and his wife had both had relationships before they were married (T14/10-18) and said that in his view his relationship with his wife was very strong (T14/20-21).

The proposed adoptive mother swore an affidavit on 25 January 2018.

She said she married her husband on 20 October 2007 and lives at the current address with her husband and the two children. Her present income is $1,730 per week. They have a mortgage for their home estimated at $1,100,000 requiring repayments of $1,600 per month. She gave evidence corroborating the financial information of her husband. The house is two storeys with a living room, dining room, family room, rumpus room, 4 bedrooms and 2 and a half bathrooms. It is 5 minutes’ walk from the local school, 2 minutes’ walk from the park and river and 10 minutes’ walk from the shops.

She described her efforts with her husband to allow the two children to know their birth history and legal status. She said in the event an adoption order was made she would perhaps seek private school for the children, would intend to remain in the current home and would facilitate their attending sports and outdoor activities.

In cross-examination the proposed adoptive mother said there was no medical reason why she could not have children, but that she had not conceived naturally and did not at the present time seek to go through IVF (T16/9-17). She said her intention was to only marry once in life (T16/23-27).

She described that two years ago at Christmas JJE had been given a PlayStation by the birth mother but she subsequently took it away, and said “he’s a smart kid. He didn’t forget that” (T17/33-44).

She said it was assumed between herself and the two children that they would be living with them for the long term (T18/21-23).

Three referees provided affidavits in which they vouched for the proposed adoptive parents’ stable relationship and care for the two children. The referees were not required for cross-examination.

Ms Starkey affirmed an affidavit on 15 September 2018 providing a report to the Court having undertaken extensive observations and interviews with the birth mother, the proposed adoptive parents and the two children.

Her conclusion as a result of these observations was that the two children presented as two lovely children who have had a very bad start to life being exposed to violence, substance abuse and being physically abused to the point of physical injury. She concluded the attachment histories of the two children differed from each other. She said AMB had been with her mother enough to develop a psychological attachment to her, although this is unlikely to be a secure attachment. AMB, when asked how she felt about coming to live with the proposed adoptive parents described it as “the greatest feeling in my life”. Her opinion was that it would cause AMB great distress for the bond with the adoptive parents to be disrupted.

Ms Starkey described how JJE is in a different position to his sister, and does not appear to have retained a conscious memory of what happened to him in terms of domestic violence. She said he does not appear to have a strong relationship with his birth mother.

She further said her observations of the birth mother during the assessment suggest her care of her current child M is not ideal, in that she attempted to hold him all day.

Her conclusion was that the most stable and secure of the environments available for the children is in their current home with the proposed adoptive parents. If they were separated it was her opinion the children would suffer emotional damage in the short term which could include the development of grief and depression.

In examination-in-chief Ms Starkey said that the reports before her were reflective of the birth mother’s history of choosing inappropriate partners, especially in relation to whether they should be exposed to children (T47/26-31).

In cross-examination Ms Starkey said she did not think the birth mother’s relationship with her third child M was a good one, because as she observed for instance she had to hold him all the time (T49/31-36). She denied there was a good prospect if the children were restored that they would form a positive relationship with the birth mother (T52/14-26). She said her concerns that the birth mother has made poor choices in respect of her partners was only one of her concerns (T53/34-36). She confirmed her concerns for the birth mother’s parenting capacity (T54/44-47).

The birth mother affirmed one affidavit on 5 June 2018.

She said she has been in stable accommodation which she leases from the Department of Housing, and has been supported by the Benevolent Society for two years. She currently lives alone with her third child M born 24 February 2018.

She described her experience of domestic violence at the hands of the birth father of JJE who continued to harass her after she separated from him. She also said she was in a relationship with a further partner, who one day “lost his temper and assaulted both me and the children” wherein she determined never again to put herself in a situation of risk of domestic violence. She said she has the support of her father, and that her mother had passed away. She further says that she has a girlfriend who babysits her third child M on Friday nights to allow her to do some shopping and go out for the evening.

She said she desired all three of her children to live as a family unit and is confident she can maintain all three of them.

In examination-in-chief the birth mother said that at the time when the two children were taken away from her there were some Children’s Court proceedings. At this time her mother was very sick and eventually passed away (T19/37-T20/23). She said she has since done a beauty course at TAFE, did her RSA and has done some parenting courses and counselling (T20/19-23). She said she felt confident now about taking the children back (T20/25-30).

In cross-examination the birth mother said she saw one of the challenges of restoration as bonding as she did not have much of a close bond anymore between herself and the two children, although she felt she could be a good parent (T22/1-15). She said she had not made enquiries as to the availability of rental accommodation near the children’s school (T23/42-44).

She said that she had been in a relationship with K S who was the birth father of her third child M, she said he gave her the confidence to start getting her life back on track (T26/9-45). She said presently he was in long-term residential rehabilitation where he has been for some time (T27/11-33). She said however when she was with him she did not know about the extent of his gambling addiction, and denied he ever took money from her (T27/45-T28/1). She said at the present moment she had no plans to “get back together with him”, and if she did there would be conditions such as his complete rehabilitation (T28/3-16).

She said she currently works at S in Cronulla, only on Friday nights, when her best friend cares for M from Friday afternoon to Saturday morning (T29/29-39). She said she would propose to continue this arrangement if the other two children were returned to her care (T30/15-17). She said she currently has a savings account of $260, a goal saver of $2,000 and an account for her son with $600, with additional amounts held with a family solicitor (T31/1-16). She said she lives in a two bedroom unit, which was the unit where the two children were assaulted (T31/40-44).

The birth mother said she had been surprised to hear that Y A, with whom she had been in a relationship, was in a criminal group known as the “Brothers for Life”. She confirmed he went to rehabilitation after assaulting herself and the children (T33/32-T34/1). She said he lived with her for a year, but she was not aware of his criminal connections and did not know why he went to rehabilitation (T34/12-50). She said she did not take her children to the hospital after they had been assaulted for four hours because she was trying to get out of the house (T36/44-T37/1). She could not recall whether she did or did not tell the doctors at the hospital what had happened as it was “all a blur” (T37/4-8). She accepted she did not initially tell the police what had happened during the assault and initially lied to police about the children’s injuries because she was scared Y A would bash her (T38/40-T39/3).

I accept the evidence of Ms Norderyd as truthful and as the observations of an individual expert in her field and clearly knowledgeable of the current situation for the two children.

I likewise accept the expert evidence of Ms Starkey who was not seriously challenged on her evidence or report. Her views unsurprisingly have weighed heavily on my judgment.

I further accept the evidence of the other witnesses put forward by the Plaintiff as truthful, including and most importantly that of the proposed adoptive parents.

On the other hand, I have grave concerns about the birth mother’s evidence and her ability to care for the two children who are the subject of these proceedings in addition to her third child who currently lives with her. In particular, I am concerned at the birth mother’s apparent failure to appreciate the serious circumstances her previous partners have been in. In my view either she was not aware of their drug and gambling problems (which was her evidence in cross-examination), or she has been untruthful. Either way as a result I would have serious misgivings about restoring the two children to her care. She clearly through no fault of her own, perhaps, had no capacity to protect the children when domestic violence occurred.

It was not put to her that her evidence in relation to her knowledge of her previous partners’ habits was untruthful. However I am satisfied that it is entirely unrealistic she would not have had knowledge or at least suspicion of the drug and gambling problems of her former partners, or at the very least it goes to show her lack of observation and insight of those around her.

In addition, the birth mother in evidence sought to portray herself as having no debts and various savings for herself and her children, as well as $8,000 held on trust with her solicitor for each child. She made no reference to parking fines nor upkeep of her car. It was only when on perusal of Exhibit D2 from the Benevolent Society that these financial liabilities emerged. I am satisfied the birth mother was not entirely frank about her financial commitments.

Restoration is clearly to be assessed as at the current date according to the paramount consideration of what is in the best interests of the two children who are the subject of these proceedings.

In my view there is no realistic possibility of restoration to the birth mother on the facts. Her home environment would require a radical change as currently the environment is unsuitable for three children.

I accept the expert opinion and evidence of Ms Starkey that the birth mother’s care of her current child M is problematical in part because she attempts to nurse him all the time. As to how she could do this and still manage the various schooling, extra-curricular and emotional needs of AMB and JJE is beyond acceptance, suggesting that restoration of AMB and JJE to their birth mother is not open as a realistic possibility.

The birth mother clearly to me lacks judgment in choice of partners, lacks awareness as to their problems, and is a person who presently would not have the capacity to care for an extra two children in addition to her current child.

I understand her temptation to want someone else in her life, but in my view this would be a recipe for disaster if her previous experiences of domestic violence at the hands of her past partners are to be used as any guide.

In addition, the birth mother wants to continue to work on Friday nights. She says that on Friday nights presently her best friend cares for M. She has however provided no adequate description of the friend, such as her relationship to the birth mother, her financial status, where she lives, and importantly beyond the birth mother’s mere assertion whether the friend would be able to care for the three children.

The birth mother has let an application for restoration lapse for years, and this has allowed for the development of a strong psychological bond between AMB and JJE and the proposed adoptive parents who I am satisfied have done an excellent job in caring for the two children.

It is further troubling that it would appear unchallenged and uncontroversial that the birth mother witnessed an assault on both children at the hands of her then partner and subsequently delayed 4 hours before taking them to hospital. This is clear evidence that she is unable to proactively provide for their care.

Reliance was placed on a report of the Benevolent Society (Exhibit D2) which is a case closure summary in relation to the birth mother. I would give this report the weight it deserves in relation to the birth mother’s present child M in her care and that she is capable of caring for him. The Benevolent Society has however not made any assessment of the birth mother’s parenting capacity for three children.

This is not to diminish the birth mother’s undoubtedly extremely distressing experiences of domestic violence and her continued efforts to move on in her life from these experiences.

However on the evidence, in my view, restoration is not an option and the birth mother has not made out a case for such an order.

Given that restoration is not an option it does not automatically follow that there should be an adoption order in favour of the children. I need to be satisfied that this proposed course is truly in the best interests of the children and clearly preferable.

Ms Starkey and Ms Norderyd both provided their opinion that adoption would indeed be what is best for the two children. This evidence of people expert in this field prima facie suggests to me that adoption would be preferable for AMB and JJE, without the stigma and uncertainty attached with the maintenance of the status quo, in which the proposed adoptive parents would continue to care for the two children but be faced with a potential application for restoration sometime in the future.

Having seen and assessed the proposed adoptive parents on both their affidavit evidence and in the witness box, they appeared to be loving, caring and entirely capable of providing for the two children both emotionally and financially. This has not been seriously challenged by the birth mother. The children have been in the care of the proposed adoptive parents since 2 July 2015, and this too has weighed heavily in my assessment of the bond they have with the two children.

The birth mother’s case is however that an adoption order should not be made as somehow the proposed adoptive parents would not provide a stable basis for the two children, including due to the risk in a potential breakdown in their relationship. There is simply no evidence before me to suggest there are any problems in the marital relationship of the two proposed adoptive parents. On the contrary, both have cared successfully for the two children who have had experiences of trauma and there is no question that their relationship has not been strong during this undoubtedly difficult period.

On balance I am of the view that adoption is in the best interests of the children now and for the future, and is the clearly preferable course to take above all others. Accordingly, I would also propose to approve the registration of the Adoption Plan in favour of the proposed adoptive parents.

Consistently I am satisfied that there should be a name change in favour of the proposed adoptive parents to create uniformity and in turn aid the stability of the proposed adoption.

In all of the circumstances I would dispense with the consent of the birth parents.

I would propose therefore to make orders in accordance with the Amended Summons.