Adoption of G (anonymised)

1. [1]

   These proceedings concern the adoption of G H I (‘G’) in favour of N O P and Q R P (‘the proposed adoptive parents’).

2. [2]

   By way of the Further Amended Summons for Adoption filed 23 April 2020, the Secretary, Department of Communities and Justice (‘the Secretary’) seeks the following orders:

3. [3]

   The birth mother (first defendant), the maternal grandmother (second defendant), and G’s eldest maternal half-sister, L (third defendant), were joined to the proceedings pursuant to Adoption Act 2000 (NSW) (‘the Act’) s 118. At the time the matter was fixed for hearing, each of these parties opposed the adoption.

4. [4]

   Last year, a number of defendants raised concerns about G’s safety whilst in the care of the proposed adoptive parents. As a result, I made orders appointing two independent experts, Dr Chris Lennings and Ms Penny Haskins, to undertake an independent risk assessment. Dr Lennings was asked to assess whether G was at risk while in the care of the proposed adoptive parents. He interviewed the maternal grandmother, the proposed adoptive parents and their biological son, S, and provided a lengthy report to the Court. Dr Lennings “[did] not detect any appreciable risk of harm to G were the proposed adoptive parents to continue in their role as primary carer for her.”

5. [5]

   Ms Haskins was asked to consider the nature of G’s relationship with the parties and her siblings; the parties’ capacity to care for G; G’s wishes; the advantages and disadvantages of adoption and its alternatives; and the type of contact that would best meet G’s needs if an adoption order was made. She interviewed G, the proposed adoptive parents, the maternal grandmother, L and G’s other maternal siblings, and also organised and facilitated a sibling get-together on 23 February 2020.

6. [6]

   In her report dated 6 March 2020, Ms Haskins concluded that adoption was in G’s best interests. However, she recommended that G see her maternal siblings “more frequently than the current four times a year and that these extra visits be just themselves”. She also made recommendations about how the parties could foster the relationship between G and her siblings over time.

7. [7]

   Ms Haskins provided a second report dated 30 March 2020 which reflected a telephone conversation she had with the birth mother on 25 March 2020. She noted that she was impressed by the birth mother’s understanding of G’s best interests, that the birth mother was strongly committed to her children having regular contact with each other, and that the birth mother’s only request was that G retain the name “I” post adoption order.

8. [8]

   Following the release of these reports, the three defendants indicated that they no longer opposed the adoption. However, each sought further amendments to the maternal adoption plan. The parties had arranged to engage in mediation, and while the COVID-19 pandemic prevented that, I believe that some discussion took place prior to the commencement of the hearing.

9. [9]

   The matter was set down for hearing for five days commencing 20 April 2020. The first day of hearing was adjourned to allow the parties to further discuss the issue of contact. I received an amended maternal adoption plan on the morning of the second day which was agreed to by the Secretary, the proposed adoptive parents, the birth mother and L, but not the maternal grandmother.

10. [10]

    Ms Haskins was provided with a copy of the amended maternal adoption plan and gave evidence via a Microsoft Teams video call. However, there were significant technical difficulties. Upon my invitation, counsel for each of the parties jointly held a conference with Ms Haskins on 22 April 2020. This led to a further amended maternal adoption plan being signed by all of the parties, including the maternal grandmother. That plan provides for:

11. [11]

    I wish to express my gratitude to all of the legal representatives, counsel and parties in this case who have worked together constructively to come to terms with the difficult issues this case has thrown up and reach a point of consensus. I also wish to express my gratitude to Ms Haskins, whose calm, balanced and common-sense approach has assisted the parties to reach this position.

12. [12]

    Notwithstanding that, the Court has to be satisfied that the proposed orders are appropriate and meet the tests set out in the Act. I gave brief reasons and made the orders sought by the Secretary on 24 April 2020. I now publish my reasons in full.

Background

1. [13]

   G has lived with the proposed adoptive parents continuously since 19 May 2008, when she was approximately 5 months old.

2. [14]

   The proposed adoptive parents have three biological children, T (born February 1993), U (born October 1994) and S (born April 2000). U and S live independently and T remains living in the home of the proposed adoptive parents. The proposed adoptive parents are presently the authorised short-term carers for a 15 month old child, V. They were also the authorised carers of W X (born September 2013), who was placed in their care in March 2015. W died of natural causes in 2019.

3. [15]

   G has four maternal half-siblings, L (born September 1997), Y (born May 2001), Z (born October 2002) and A (born April 2005). L, Y, Z and A live with the maternal grandmother, K. In May 2007, orders were made by the Family Court of Australia granting the maternal grandmother sole parental responsibility for L, Y and Z. In March 2010, the District Court made orders allocating all aspects of parental responsibility for A except for contact to the maternal grandmother.

4. [16]

   G’s birth father is B C. G has not had contact with the birth father or members of her paternal family since September 2018. This is due to the birth father having not engaged with the Department or the proposed adoptive parents.

5. [17]

   G was born premature at 31 weeks, suffering from congenital spinal deformity, respiratory distress and hydronephrosis.

6. [18]

   A number of risk of harm reports were received by the Department during the birth mother’s pregnancy with G and following her birth, which raised concerns about G and A (who was then in the birth mother’s care). The risk of harm reports related to drug and alcohol abuse by the birth parents; domestic violence; inadequate supervision; the birth mother’s capacity to manage G’s serious health conditions; and the birth mother’s erratic and inconsistent attendance at hospital to care for G.

7. [19]

   In March 2008, G was assumed into the care of the Director-General (as the Secretary was then known) pursuant to s 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The Director-General filed an application for an Emergency Care and Protection Order (‘ECPO’) in the Children’s Court. The ECPO was granted for a period of 14 days. G was discharged from hospital and placed with her paternal uncle, D C, and his partner, E F, in an authorised kinship placement.

8. [20]

   In April 2008, the Director-General filed a Care Application in relation to G and A and the Children’s Court made interim orders placing both children in the parental responsibility of the Minister. A was removed from the birth mother’s care on 8 May 2008 and placed with the proposed adoptive parents (he was placed in the maternal grandmother’s care following further Children’s Court and District Court proceedings). As noted above, G was placed in the proposed adoptive parents’ care on 19 May 2008.

9. [21]

   Final orders placing G in the parental responsibility of the Minister until she reaches the age of 18 were first made by the Children’s Court in May 2009. It is not necessary to recount the further litigation history here.

10. [22]

    As noted above, G was born with a variety of medical conditions. In 2008, G underwent surgery at the Sydney Children’s Hospital for a hernia. In 2011, she underwent a posterior spinal fusion and excision of hemivertebrae surgery at Westmead Children’s Hospital. She was discharged from hospital after a two week stay and underwent three months of rehabilitation in a full body cast. She underwent two further spinal surgeries at Westmead Children’s Hospital in 2016. In 2017, the proposed adoptive parents informed a case worker that G’s paediatric orthopaedic specialist had advised them that G was now allowed to do all sports and activities without any restrictions. The proposed adoptive parents also sought treatment for G in relation to digestive issues associated with spinal deformity. FACs records indicate that those issues are well managed by the proposed adoptive parents.

11. [23]

    G has also suffered moderate episodes of respiratory distress from bronchitis and asthma, which have, at times, required treatment in hospital. G’s asthma is now managed by the taking of daily medication.

12. [24]

    In 2014, G was referred to the Child Protection Counselling Service in relation to challenging behaviours. She was diagnosed with Attention-Deficit/Hyperactivity disorder (ADHD) for which she is prescribed Ritalin and takes Melatonin at night. She ceased counselling in 2018.

13. [25]

    In September 2018, G was reviewed by a General Practitioner who noted that G was a “normal kid” with no major health concerns. However, during a home visit in June 2019, it was recorded that G continues to have problems with her back and that she takes Nurofen throughout the day in accordance with doctor’s advice. It was noted that G was booked in for another appointment with her paediatric orthopaedic specialist.

14. [26]

    G has developed a strong sense of family. She has a close and affectionate relationship with her proposed adoptive family, including her foster siblings. She goes to movies and shopping with T and S, and was a flower girl at U’s wedding. She was able to describe her family relationships to Ms Haskins and was recorded as laughing about what she does if she needs to complete a family tree at school. Ms Haskin noted that G’s “knowledge and ease of discussion about this issue was pleasing to see”. During a home visit by a Communities and Justice caseworker in October 2019, it was noted that there were a lot of photographs on display of both G’s birth family and proposed adoptive family, and that N had set up an email address for G and will send photographs, documents and life story work to her so that she always has a timeline of her life. N also shares her own Dutch background with G by exposing her to Dutch dancing and cooking.

15. [27]

    G’s school records show that she is progressing well academically. Her 2019 Semester 2 School Report noted that G had shown a consistent commitment to learning and effort throughout the semester and was improving her knowledge of curriculum areas and developing her understanding of important learning concepts. The report also outlined that G enjoyed collaborating with her peers and her friendships with other students were positive and helpful.

16. [28]

    G was attending weekly maths tutoring lessons to improve her confidence. She was doing Year 7 and 8 maths with her tutor and extension maths at school. Her other extracurricular activities include netball, piano and swimming lessons. She will commence high school in 2021.

17. [29]

    G continues to have ongoing contact with her birth mother. At present, the proposed adoptive parents and the birth mother arrange contact visits between themselves. Contact records indicate that contact is generally positive and G has told case workers that she likes seeing her birth mother.

18. [30]

    G also continues to have contact with her maternal grandmother and her maternal siblings. While G has expressed some concern about these visits in the past, recent visits have been positive with G having the opportunity to play and talk with her siblings.

19. [31]

    G has on numerous occasions expressed a desire to spend time with her siblings, especially A, independently of the adults in her life.

20. [32]

    G has expressed a strong desire to be adopted. She has expressed that wish consistently to Communities and Justice caseworker, Ms Melissa Riches, during home visits conducted in January, June, September and December 2019, and January and March 2020. She also expressed that wish to Ms Haskins and the author of the s 91 Court Report, Ms Elizabeth Shepherd.

Legal principles

1. [33]

   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. [34]

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

3. [35]

   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. [36]

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

5. [37]

   Later at [76]-[80]:

6. [38]

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

7. [39]

   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. [40]

   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. [41]

   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. However, s 54(1)(c) provides that consent is not required under s 52 if the child gives sole consent to their adoption in accordance with s 54(2). Relevantly, s 54(2) provides:

10. [42]

    The child’s consent must be given in accordance with s 55, which requires the child to be counselled in accordance with s 63:

11. [43]

    At least 14 days’ notice of the application for the adoption order must be given to the parent/s or person/s whose consent would otherwise be required (see ss 54(3)(a) and 88(1)(a)) unless the Court dispenses with the notice requirements (see ss 54(3)(b) and 88(4)). Also relevant are ss 58(1), 59(1) 61 and 62:

12. [44]

    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.

13. [45]

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

14. [46]

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

15. [47]

    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.

16. [48]

    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)).

17. [49]

    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:

18. [50]

    Section 50 relevantly provides:

Evidence

1. [51]

   The Secretary relied on several affidavits, including those of the independent experts, Dr Lennings (sworn 16 January 2020) and Ms Haskins (sworn 7 April 2020). In addition to what I have already said about these reports, I note in particular what Ms Haskins said about the likely benefits of an adoption order in this case:

2. [52]

   With respect to the proposed adoptive parents’ ability to care for G, Ms Haskins wrote:

3. [53]

   In relation to G’s wishes regarding the adoption and her relationship with her siblings, Ms Haskins said:

4. [54]

   I also note the affidavit annexing the Court Report of Elizabeth Shepherd (filed 24 October 2018). In her report, Ms Shepherd noted that G’s birth father had informed her that “he may support the adoption proceeding if this is something G herself wants, although he would like to ask G herself”. In relation to the proposed adoption and its alternatives, Ms Shepherd concluded that:

5. [55]

   I note the affidavit of the Delegate, Natarlia Murphy (filed 24 October 2018), as well as the affidavit of Caseworker, Melissa Riches (affirmed 8 April 2020). In her affidavit, Ms Riches recounted numerous home visits during which G expressed her strong desire to be adopted. For example, Ms Riches noted that during a home visit on 25 January 2019, G stated “I just want the adoption to go through so I can really be G P.”

6. [56]

   Annexed to Ms Riches’s affidavit were copies of Ms Sedgwick’s counselling report (dated 28 January 2020) and the Statement of Counsellor (made pursuant to ss 55(10(b), 61 and 63 of the Act). Ms Sedgwick concluded that G “is capable of and has the maturity to understand the effect of signing the instrument of consent.” In her report she stated that:

7. [57]

   I note the affidavits of the proposed adoptive parents. The proposed adoptive father affirmed one affidavit on 6 May 2019. The proposed adoptive mother affirmed two affidavits, one on 5 May 2019 and the other on 6 April 2020.

8. [58]

   Finally, I note the affidavits of the referees and the affidavits of service and attempted service. Several unsuccessful attempts were made to serve the birth father with notice of the proceedings. Notice of the proceedings was eventually left with the birth father’s mother, with whom the birth father is in regular contact. The father was also made aware of the proposal for G to be adopted through his communication with Ms Shepherd and other Departmental employees.

9. [59]

   The birth mother affirmed one affidavit on 26 July 2019. She deposed that she has been diagnosed with depression, anxiety, bi-polar disorder and borderline personality disorder and is receiving treatment for her mental health issues. She stated that she has tried to have as much contact with G as she could throughout G’s life, although there have been some breaks in contact due to her attendance at drug rehabilitation programs and G’s surgeries and at other times. She stated the reasons why she (previously) opposed adoption and expressed that she “[does] not want [G] to lose her connection to me and my family through adoption. I also want her to be safe.”

10. [60]

    The maternal grandmother affirmed two affidavits, one on 26 July 2019 and the other on 12 August 2019. The second affidavit was filed after the maternal grandmother obtained legal representation. In that affidavit, the maternal grandmother described the relevant family relationships, her relationship with G, recent contact arrangements, her wishes in relation to future contact, and the reasons why she (previously) opposed the adoption.

11. [61]

    L affirmed one affidavit on 26 July 2019. She described her relationship with G and her other siblings, past contact arrangements, her wishes as to future contact and the reasons why she (previously) opposed the adoption.

Submissions

1. [62]

   Each party provided written submissions to the Court prior to the commencement of the hearing and before the discussions between the parties about amending the maternal adoption plan had concluded. Further submissions were made on behalf of each of the parties on the final day of the hearing.

2. [63]

   The Secretary submits that an order for adoption is in G’s best interests and clearly preferable to any other options available to the Court. In particular, the Secretary submits that G’s consent and strong desire to be adopted by the proposed adoptive parents would be highly persuasive to the Court’s determination of this matter. The Secretary also submits that the evidence establishes that the proposed adoptive parents have completely attended to G’s medical and other needs, and that G has a very strong and secure attachment to, and identity as a member of, the proposed adoptive parents’ family.

3. [64]

   It is submitted on behalf of the first defendant that Ms Haskins’ second report “neatly encapsulates” her concerns about the proposed adoption. First, it is submitted that the birth mother’s hope that G can retain “I” somewhere within her name so as to reflect her history and “her whole family” is supported by Ms Haskins and the orders now sought by the Secretary. Secondly, her strong commitment to her five children having regular contact with each other is supported by Ms Haskins’ recommendations and the amended maternal adoption plan. Thirdly, Ms Haskins was able to alleviate the birth mother’s concern that the P family might move overseas with G following an adoption order. As a result, the birth mother does not stand in the way of the adoption and asks that G be specifically made aware, in an age appropriate way, that her birth mother has taken this approach.

4. [65]

   Counsel for the first defendant further submits that the birth mother has prioritised G’s best interests over her own issues and demands in this case. It is submitted that the proposed further amended adoption plan continues with a level of flexibility and a level of contact that will permit the birth mother and proposed adoptive parents to continue to work together so that G can see her birth mother. It is also submitted that the fact that the parties who are going to give effect to the proposed adoption plan have been able to agree on the specific terms of that plan would be a strong factor in favour of the Court accepting it.

5. [66]

   The second defendant submits that she is a devoted grandmother to G’s maternal siblings and that her involvement in proceedings relating to G has at all times been motivated by her desire to keep the siblings together and looked after by a close family member, which she believed to be in the best interests of all five children. Her consistent position has been that she loves G and would have liked to provide care and exercise parental responsibility for her. Having had the opportunity to give serious consideration to, and come to terms with, G’s desire to be adopted, she no longer wants to oppose the adoption. She understands that the proposed adoptive parents have provided a home to G, and that G shares a loving bond with them, and she is thankful to the proposed adoptive parents for that. She takes comfort in the proposal that G will retain “I” as part of her name, and she submits that her overwhelming concern is now that she and G’s siblings are able to cultivate and maintain an ongoing, consistent and meaningful bond with G moving forward. She also submits that she is keen to rebuild her relationship with the proposed adoptive parents so that contact arrangements can be facilitated efficiently and amicably.

6. [67]

   At the hearing, counsel for the second defendant noted that the maternal grandmother had revised her position significantly in light of the new adoption plan and submitted that the contact arrangements in relation to G and her maternal grandmother as provided in that plan are appropriate.

7. [68]

   The third defendant expresses sadness in relation to the adoption but accepts that it is G’s wish to be adopted, and that G is an important member of both the P and I families. The most important concern for the third defendant is that she, Y, Z and A are able to continue having a sibling relationship with G, and to develop that relationship into one which will endure throughout their lives. She welcomes the proposal of sibling-only contact and submits that she is willing to facilitate that contact on behalf of the siblings. She also welcomes Ms Haskins’ recommendation that G retain “I” as one of her given names.

8. [69]

   Counsel for the third defendant also submits that Ms Haskins’ support for the further amended adoption plan, and the parties’ agreement on that plan, give confidence that everyone wants the arrangements set out in that plan to work. The third defendant therefore seeks orders in accordance with the adoption plan.

Consideration

1. [70]

   Having regard to all the circumstances and the factors contained within ss 7 and 8 of the Act, I am of the view that an adoption order is in G’s best interests and clearly preferable to any other action that could be taken in this case.

2. [71]

   G has lived with the proposed adoptive parents continuously for almost 12 years, since she was five months old. While her sense of identity as a member of her two families appears to be strong, she considers the proposed adoptive parents her psychological parents and has consistently expressed a strong desire to be adopted by them. An adoption order would legalise that strong parent-child relationship, clarify the relationships between G and the significant people in her life, and hopefully assist them in building better relationships with each other, and give G a sense of certainty and stability as she moves into her teenage years. The proposed adoptive parents have shown commitment to meeting G’s complex medical and other needs over the course of her life and I am confident that they are best placed to meet her physical, emotional and educational needs into the future.

3. [72]

   The further amended maternal adoption plan has been formulated with the guidance and support of Ms Haskins and the agreement of all relevant parties. It also reflects with G’s wishes. I am satisfied that the arrangements it proposes accord with the adoption principles set out in s 8, are in G’s best interests, and are proper in the circumstances. I am therefore of the view that it ought to be registered.

4. [73]

   I note that a paternal adoption plan was also filed but that G’s birth father has not engaged in the proceedings and appears to have ceased attempting to have contact with G. I also note that several unsuccessful attempts were made to serve the birth father with notice of the proceedings, but that he did have communications with Ms Shepherd, the author of the s 91 Court Report. Notice was also provided to his mother, with whom he has regular contact. In these circumstances, I consider it appropriate to dispense with the giving of notice to the birth father.

5. [74]

   G gave her consent to the adoption on 21 February 2020. I am satisfied that G is capable of giving sole consent to her adoption in accordance with s 54(2) and that her consent was informed (s 58(1)). She is 12 years old and has been cared for by the proposed adoptive parents for more than two years. She was counselled by Ms Sedgwick, a registered counsellor employed by the NSW Department of Communities and Justice, in accordance with s 63 of the Act. Ms Sedgwick described G’s view about adoption as “simple” but concluded that she understands that adoption will make the proposed adoptive parents her legal parents who will make decisions for her in the future and is of sufficient maturity to understand the effect of giving consent. Ms Sedgwick went through the Mandatory Written Information with G and left it with G to read through further. She was also satisfied that the proposed adoptive parents had explained the information to G in a way she could understand (s 59(1)).

6. [75]

   I am also satisfied that all of the other statutory requirements have been complied with. In particular, I am satisfied that G was present in the State when the adoption application was filed (s 23(2)(a)) and was less than 18 years of age when the summons was filed (s 24(1)(a)). The appropriate notice was given to the birth mother (ss 54(3)(a) and 88(1)(a)) and she was joined as the first defendant to these proceedings. For the purposes of s 87, the application was made by the Secretary. The Minister for Family and Community Services, who has parental responsibility for G, has, by an authorised delegate, consented to the adoption application.

7. [76]

   I am satisfied that 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 commitment and care they have provided to G over the past 12 years and the reports of Dr Lennings and Ms Haskins.

8. [77]

   Finally, the Secretary seeks an order approving the name “P” as G’s surname and “G H I” as her given names. G has expressed a wish to become “G P”. Importantly in my view, a change in surname will reflect G’s position within her adoptive family and hopefully assist in perfecting G’s sense of identity and belonging to that family, while the retention of “I” will assist in maintaining a connection between G and her birth family. I am satisfied that this is in G’s best interests.