Supreme Court New South Wales Medium Neutral Citation: Adoption of Jones Children (anonymised) [2020] NSWSC 1382 Hearing dates: 24 February 2020 Date of orders: 25 February 2020 Decision date: 25 February 2020 Jurisdiction: Equity - Adoptions List Before: Sackar J Decision: Adoption Orders Made (four) Catchwords: FAMILY LAW – Children – Adoption – Whether adoption clearly preferable – whether adoption is in child's best interests – whether the consent of the birth parent/s ought to be dispensed with – contact – adoption plans – change of name Legislation Cited: Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: Adoption of NG (No 2) [2014] NSWSC 680 Adoption of RCC and RZA [2015] NSWSC 813 Adoption of Taylor-Clay [2019] NSWSC 27 OA v Secretary, Department of Communities and Justice [2019] NSWCA 322 Texts Cited: n/a Category: Principal judgment Parties: Secretary, New South Wales Department of Communities and Justice (plaintiff) Birth mother (defendant) Representation: Counsel: Ms D Ward (plaintiff) No representation Solicitors: Crown Solicitors Office (Ms S Roden) (plaintiff) No representation (defendant) File Number(s): 2019/122596, 2019/122588, 2019/32026, 2019/32026 Publication restriction: Anonymised to protect the identity of the children Judgment The proceedings 1. This judgment concerns three separate adoption proceedings which were heard together. The first concerns the adoption of A in favour of Mr and Mrs White ('A's proposed adoptive parents'). By way of Summons filed 18 April 2019, the Secretary, Department of Communities and Justice ('the Secretary') seeks: 1. That pursuant to Adoption Act 2000, s. 67(1)(d), the consent of the child's birth mother, Ms Green be dispensed with. 2. That pursuant to Adoption Act 2000, s. 67(1)(d) the consent of the child's birth father, Mr Jones be dispended with. 3. An order for the adoption of the child A in favour of the adopting parents Mr and Mrs White. 4. An order approving the name "White" as the surname and "AM" as the given names of the child. 1. The second adoption proceedings concern the adoption of B in favour of Mr and Mrs Smith ('B's proposed adoptive parents'). By way of Summons filed 18 April 2019, the Secretary seeks the following orders: 1. That pursuant to Adoption Act 2000, s. 67(1)(d), the consent of the child's birth mother, Ms Green be dispensed with. 2. That pursuant to Adoption Act 2000, s. 67(1)(d) the consent of the child's birth father, Mr Jones be dispended with. 3. An order for the adoption of the child B in favour of the adopting parents Mr and Mrs Smith. 4. An order approving the name "Smith" as the surname and "BS" as the given names of the child. 1. The third adoption proceedings concern the adoption of C and D in favour of Ms Kelly (C and D's 'proposed adoptive mother'). By way of Summons filed 18 April 2019, the Secretary seeks the following orders: 1. That pursuant to Adoption Act 2000, s. 67(1)(d), the consent of the children's birth mother, Ms Green be dispensed with. 2. [redacted] 3. An order for the adoption of the child C in favour of the adopting parent Ms Kelly. 4. An order approving the name "Kelly" as the surname and "CG" as the given names of the child. 5. An order for the adoption of the child D in favour of the adopting parent Ms Kelly. 6. An order approving the name "Kelly" as the surname and "DS" as the given names of the child. 1. The children's birth mother was joined as a party to each of the proceedings. She filed evidence and opposed the adoptions. However, she did not appear at the hearing. 2. A and B's birth father was joined as a party to the proceedings in relation to A and B. However, he did not actively participate in the proceedings and did not appear at the hearing. 3. [redacted] 4. [redacted] 5. The hearing was listed to commence on 24 February 2020 at 10.30am. When the birth mother and A and B's birth father did not appear, the hearing was adjourned so that enquiries could be made. Counsel for the Secretary advised the Court that several phone calls were made to the birth mother's telephone number, and that departmental caseworkers had visited the birth mother's last known address that morning but she was not found there. Two bundles of documents evidencing the attempts made by the Crown Solicitor's Office to contact the birth parents and inform them of the hearing date were tendered. 6. Having heard the submissions from the Secretary I made the orders sought in relation to each child on 26 February 2020. I indicated I would provide short reasons in due course and these are they. Background 1. A and B are full siblings. A was born in 2008. He was 11 years old at the time of hearing. B was born in 2010 and was nine years old at the time of hearing. 2. A and B have two paternal half-siblings with whom they do not have a relationship. In addition, A has five proposed adoptive siblings who are the children of his proposed adoptive parents. Only one of A's proposed adoptive siblings, who is school aged, remains living with A's proposed adoptive parents. The others are adults and live independently. B has two proposed adoptive siblings, the adult sons of his proposed adoptive parents. One of B's proposed adoptive siblings still lives in his proposed adoptive parents' family home. 3. D and C are maternal half-siblings with respect to each other and are also maternal half-siblings of A and B. C was born in 2012 and was seven years old at the time of hearing. D was born in 2013 and was six years old at the time of hearing. 4. A, B, C and D are all also part of a larger maternal sibling group which includes: E, born in 2001 and aged 18 at the time of hearing. E lives in Queensland. F, born in 2003 and aged 16 at the time of hearing. F lives with authorised carers in New South Wales. G, born in 2005 and aged 14 at the time of hearing. G lives with authorised carers in New South Wales. H, born in 2007 and aged 12 at the time of hearing. H lives with authorised carers in New South Wales. I, born in 2014 and aged 5 at the time of hearing. I lives with authorised carers in Victoria, where he was born. Care histories and development 1. The Secretary provided an extensive chronology and factual background setting out the Department's involvement with the birth mother and the litigation history of each matter. It is not necessary to rehearse the full history here. I accept the information provided by the Secretary as accurate and note only the following points in particular. 2. In April 2011, A, B, G, H, E and F were removed from the birth mother's care. At the time, A was two years and eight months old. B was 11 months old. They have not lived with either of their birth parents since that time. 3. A moved through four placements before he was placed with his proposed adoptive parents in February 2012, when he was approximately three and a half years old. A has been diagnosed with Disinhibited Social Engagement Disorder, a form of attachment disorder. A's psychologist has noted that: As the [proposed adoptive parents] have not only provided a stable life for A, but have also applied attachment-specific parenting strategies, they have enabled growth in his primary attachment behaviours which would not otherwise have been realised (Summary Psychological Report dated 26 November 2019, Annexure D to the affidavit of Tracy Stewart, sworn 17 December 2019). 1. A's psychologist has also reported that A will continue to face challenges that require ongoing treatment and committed parenting but sees the proposed adoptive parents as his parents and their children as his siblings. 2. B moved through three placements before being placed with his proposed adoptive parents in September 2011, when he was approximately one year and four months old. The author of the s 91 report has reported that B shares a close and loving relationship with his proposed adoptive parents who are "avidly attentive to B's needs and wishes." 3. C was assumed into care on the day he was born. He has lived with his proposed adoptive mother since March 2013, when he was 12 months old. In 2018, C was diagnosed with ADHD. His psychologist recommended positive behaviour support and speech pathology. It is reported that C identifies the proposed adoptive mother as his mother: all that he can remember is a world in which she has been his primary attachment figure. 4. D was also assumed into care on the day he was born. He was placed with his proposed adoptive mother in September 2013, when he was six months old. In 2016, D was assessed and diagnosed with a mild to moderate global developmental delay and autism spectrum disorder. The relevant assessment service commented that: We have also observed a lovely attachment between D and [the proposed adoptive mother] which is the result of [a] long and well-established relationship since an assumption of care. We expect that he will continue to make further gains with ongoing therapy and support from [the proposed adoptive mother]. D will continue to benefit from a stable, supportive environment, disruptions to the environment will be significant detrimental to D's wellbeing. 1. Final orders placing A, B and C, as well as G, H, E and F, under the parental responsibility of the Minister until they attain the age of 18 years were made by the District Court in July 2013 following an appeal from the Children's Court. Final orders placing D under the parental responsibility of the Minister until he turns 18 were made by the Children's Court in August 2013. The orders in respect of each child remain in effect. 2. Since 12 September 2017, the birth mother has been prohibited from approaching, contacting or sending anything to any of the children by virtue of orders made in the Children's Court pursuant to s 90A of the Children and Young Persons (Care and Protection) Act 1998 (NSW). 3. Through the dedication of each of the proposed adoptive parents, the children continue to see each other and their wider maternal sibling group regularly and enjoy a sibling bond even though they do not live together. Consideration 1. In considering an application for adoption the Court must take into account the provisions of s.8(1) of the Adoption Act and have as its paramount consideration the best interests of the child. Before making an adoption order the Court must be satisfied that adoption is the clearly preferable course in the child's best interests (ss. 90(1), 90(3)). That ultimate conclusion is underpinned by the Court being satisfied of a number of related matters and the Court must have regard to the factors set out in s.8(2). The ongoing certainty and stability that adoption provides can be a significant factor, particularly in cases involving past turbulence and vulnerability (see Adoption of NG (No 2) [2014] NSWSC 680 at [14]-[17]; Adoption of Taylor-Clay [2019] NSWSC 27 [58]; approved in OA v Secretary, Department of Communities and Justice [2019] NSWCA 322 at [57]). Every child growing up is entitled to be as anxiety free as he or she can be in a stable and secure environment. 2. I have read carefully the submissions and materials provided by the Secretary in relation to each child, including the s 91 reports. Notably, in each case the author of the s 91 reports recommended adoption as the preferable course. 3. The birth mother swore one affidavit on 22 January 2020 which I have also taken into account. The birth mother stated that she supports the children remaining in their current placements if they are happy in them but opposes the making of adoptions orders in each case. 4. I am of the view that adoption is clearly preferable and in the best interests of each child. A has demonstrated that he may not be fully aware of what it means to be in a foster placement. However, he identifies as a member of his proposed adoptive family and told his case worker that he couldn't wait for the adoption to be over because he "wants to be a [surname of the proposed adoptive parents]". Whilst A's wishes are not determinative of the application, they are of particular significance given his attachment disorder and indicate the quality of the relationship between A and his proposed adoptive parents which in my view should not be disturbed. While challenges continue, A's proposed adoptive parents have demonstrated their commitment to meeting A's complex needs and I have no doubt that they are appropriate to become his legal parents. A needs the reassurance that he is a secure part of their family just like their other children. 5. B told the s 91 report author that he would like to be adopted and change his name so he would "get to stay here with my Mum, Dad and brothers forever" and be called "[surname of proposed adoptive family] like the rest of my family", indicating his strong sense of belonging to the proposed adoptive parents and proposed adoptive siblings. An adoption order would give legal effect to B's reality and secure his place within this family. B's proposed adoptive parents have shown that they are dedicated to meeting B's physical, emotional and educational needs and all of the evidence points to a warm, nurturing and attentive relationship between them and B. 6. C and D are both still too young to understand the nature of adoption. However, they each understand that their family is with the proposed adoptive mother and each other because this is all that they have known. As noted above, both of the children have specialised needs. All of the evidence suggests that C and D's physical, emotional and educational needs are being well-managed by the proposed adoptive mother and both appear to have benefitted from her caring and committed approach to parenting. 7. In each case, restoration is not possible. None of the children presently have a relationship with their birth mother and restoration is not sought by any of the birth fathers. Each of the proposed adoptive parents (who are all authorised carers under the Children and Young Persons (Care and Protection) Act 1998 (NSW)) have demonstrated that they do not need the continued involvement of caseworkers and I am satisfied that they all comply with the relevant statutory requirements (ss. 90(1)(c), 45F, 27 and 28, relevantly). In my view adoption will give these children the security and stability they need within their respective family units as they grow older while their regular contact with each other and their other maternal siblings will provide each of them with an opportunity to develop their sense of personal identity within their wider maternal birth family context and maintain those important relationships. 8. I have reviewed the proposed adoption plans and regard them as appropriate and in the child's best interests in each case given the circumstances (s.90(2)). Each child also has an appropriate cultural plan in place (s 8(2)(c)). 9. Because I have formed the view that adoption is the clearly preferable course for each of these children it is virtually axiomatic that I would dispense with the consent of the birth parent, or parents, relevantly, under s 67(1)(d) of the Adoption Act. Given what I have said above it is in each of the children's best interests that I do so (s.67(2)). All of the birth parents received the relevant notices for the purposes of ss. 72 and 88. 10. The Secretary has also applied for a name change for each of the children. For B, C and D, the Secretary seeks that the children's original surnames are preserved as their middle names and that they are given the same surname as their proposed adoptive parent/s. The Secretary also seeks that A be given the surname of his proposed adoptive parents. However, the middle name "M-" is of A's own choosing. In my view all of the proposed changes are appropriate. The changes in surnames will hopefully dispel a number of anxieties some of the children have already expressed and go a long way towards promoting further stability and security for each child within their respective families: see s.101; Adoption of RCC and RZA [2015] NSWSC 813 at [105]. A has expressed that his change in middle name is very important to him and I see no reason to act contrary to his wishes: s.101(2). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2020