Supreme Court New South Wales Medium Neutral Citation: Adoption of BS (No 3) [2013] NSWSC 2033 Hearing dates: 21, 22 August, 4, 17 September (Sydney), 5 December (Bega) 2013 Decision date: 05 December 2013 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Declaration of parentage; consent dispense orders made; adoption order made; adoption plans registered. Catchwords: FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child - where no realistic prospect of restoration of child to care of birth parents - where preserving the possibility of restoration would thus contravene the spirit of adoption principle (e1) - where proposed adoptive parents in a better position to facilitate contact with birth parents than the Department - where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them - held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether consent of birth parents ought to be dispensed with - as the making of an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made Legislation Cited: (NSW) Adoption Act 2000, s 8(1), s 8(2), s 50, s 51, s 67(1)(d), s 72, s 88, s 90(1), s 94, s 101 (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90 (NSW) Status of Children Act 1996, s 21(2) (NSW) Births Deaths and Marriages Registration Act 1995, s 19(2) Category: Principal judgment Parties: Director-General, Family and Community Services (applicant) KAS (first defendant) TRF (second defendant) Representation: Counsel: Mr J Harris (solicitor) (plaintiff) Ms S Leis (first defendant) TRF (in person) (second defendant) Solicitors: Crown Solicitor's Office (plaintiff) Tony Cullinan Lawyers (first defendant) File Number(s): A162/2012 Judgment 1At the conclusion of the hearing in Bega on 5 December 2013, I indicated that, while time did not then permit the delivery of reasons for judgment, I had reached a clear conclusion as to the outcome of the proceedings and, for reasons to be published at a later date, would make the following orders: (1)Declare pursuant to Status of Children Act 1996, s 21(2), that TRF is the father of BS. (2)Order pursuant to Births Deaths and Marriages Registration Act 1995, s 19(2), that TRF be included as the father of BS in the Register of Births Deaths and Marriages. (3)Order that the above two orders are not to take effect until 20 December 2013 or, if by 19 December TRF has filed a notice of motion seeking to have this order set aside, until the hearing of such motion. (4)Order pursuant to Adoption Act 2000, s 67(1(d), that the consent of the child's natural mother KAS be dispensed with. (5)Order pursuant to Adoption Act 2000, s 67(1)(d) that the consent of the child's natural father TRF be dispensed with. (6)Order for the adoption of the child BS in favour of the adopting parents PAJ and TKJ and approve the name J as the surname and BS as the given names of the child (7)Order pursuant to Adoption Act 2000, s 50(3), that the amended adoption plan in relation to KAS being exhibit PX06 herein, be registered. (8)Order pursuant to Adoption Act 2000, s 50(3), that the amended adoption plan in relation to TRF being exhibit PX07 herein, be registered. 2These are the reasons for which those orders were made. Background 3B, the child the subject of the proceedings, was born on 10 January 2005, the child of the first defendant KAS and her then partner the second defendant TRF. In these proceedings, the Director-General as plaintiff seeks an order for B's adoption by proposed adoptive parents PAJ and TKJ. For the sake of clarity, while preserving anonymity, albeit at the risk of impersonality, I shall generally refer to the protagonists as the child, the birth parents, and the proposed adoptive parents, although on occasion the context requires that I refer to them by their initials. 4Community Services had been involved with the child since before his birth, following the receipt on 26 July 2004 of a risk of harm report in respect of the unborn child of the birth mother. Following birth, he was in the birth mother's care only from 10 January until 25 January 2005, when he placed in short-term foster care under a temporary care agreement until there was a vacancy for him and the birth mother at the Queen Elizabeth II Family Centre in Canberra. The birth father, who was no longer cohabiting with the mother, visited the mother and child while they were in the maternity ward. While the child was in temporary foster care, between 27 January and 21 February, the mother had daily supervised contact. 5On 21 February, the mother and child were admitted to the Queen Elizabeth II Centre, for a four-day programme. However, the goals of the programme were not met, and the child did not return to his birth mother's care. An application for a care order allocating parental responsibility to the Minister was filed in the Children's Court at Bega on 7 March 2005, and interim orders were made on 2 May 2005. After discharge from QE2 on 25 February, the mother had weekly supervised contact. This, however, appears to have lapsed, because a report of contact that took place on 27 July 2005 records that it was "the first time in months Ms S has shown interest in seeing B and first time at all for Mr F". 6Following assessment of the child's maternal grandparents, who indicated that they were not in a position to care for the child, it was recommended that he be placed in long term foster care. On 4 October 2005, an assessment was ordered in respect of the birth father, who had fortnightly supervised contact between August and October 2005, as he had expressed interest in assuming responsibility for the child's care. However, this assessment was not completed, as the father did not attend the appointment on 3 November 2005. 7On 14 December 2005, the Children's Court made an order allocating parental responsibility to the Minister until the child attained 18 years of age. At that time, the care plan did not provide for any contact with the birth parents. I do not accept the submission made on behalf of the birth mother that it was implicit in the permanency plan at the time of the permanent care order that there would be birth parent contact; indeed, the Community Service Centre in Bega appears to have been opposed to birth parent contact. 8The plan did, however, contemplate adoption in due course. A referral was made to the Department's Local and Permanent Care Service, with a view to finding suitable long-term carers. It is not clear whether any long term placements were available in or around the Bega area, but four possible placements for the child were identified, in the Western Sydney and Central Coast regions. By the end of January 2006, placement with the proposed adoptive parents had been identified as the most suitable, and the child was moved from Bega to Sydney and placed with them on 6 February 2006. 9Both the mother and the father participated by telephone in annual case meetings on 10 October 2007 and 8 April 2008. However, they did not provide photographs when requested to do so by Community Services on 12 November 2008 and 18 April 2011 in order to assist in informing the child of his life story. There was no further contact with the mother until 2009, although since 2008 she has sent the child birthday presents and cards. 10On 27 January 2009, there was supervised contact with the birth mother, which was reported as generally positive. On 5 June 2009, the birth father requested contact, but only in Bega, where he and the mother continue to reside, separately. There was no subsequent contact until 12 October 2010, when the birth mother had contact with the child, following a request by her. 11Meanwhile, the proposed adoptive parents established contact with the child's maternal grandmother, with whom a successful relationship developed. As a result, on 18 January 2012, the birth mother was informed by the Community Services caseworkers that she was able to have contact with the child whenever she wanted, so long as it was organised with the proposed adoptive parents and her mother was present. However, the birth mother said that it was difficult for her to travel from Bega to Sydney, and to pay for accommodation. There was no further face-to-face contact with her until early 2013; and the birth father had no contact after October 2005 until 2013. 12The child has progressed well in his placement with the proposed adoptive parents, and his social and personal development has been good. In their family he now has three foster siblings, whom the proposed adoptive parents also aspire to adopt in due course. While he has had some medical issues, they are not attributable to any want of care, but rather to what appears to have been a very mild developmental delay. At school, he is achieving sound results in most areas. It is clear that the proposed adoptive parents love him, have looked after him very well, and are entirely committed to his care. Not the slightest criticism has been, or could be, directed at the quality of their care, or the depth of their affection for and commitment to, the child. The parties' proposals 13The Director-General proposes that the child continue to reside with the proposed adoptive parents, that an adoption order be made in their favour, that the child have the name BSJ (where B is his current first name, S his current family name, and J the family name of the proposed adoptive parents), that he have contact with the birth parents in accordance with adoption plans that provide for face-to-face contact four times per year, and that TRF be declared to be his father and be recorded as such on the pre-adoption birth certificate. 14The birth mother aspired to have the child restored to her, and though she came to realise that this was at present an unrealistic aspiration, nonetheless wanted to keep the option of restoration open, and therefore opposed adoption. The case presented on her behalf was that it was preferable that the Minister remain involved in the child's care, so that the child would remain in "out-of-home" care, fostered by the proposed adoptive parents but with the Minister retaining parental responsibility, or at least remaining responsible for birth parent contact. If there were to be an adoption order, she preferred that the child retain her surname, or alternatively have it as part of a hyphenated surname. 15The birth father's position was initially ambiguous; he appeared to want to keep his options open. Although joined as a party, as he had indicated a wish to be heard on the application, despite directions to file evidence he advanced no concrete proposals in respect of the child's future. Eventually, on the last day of hearing in the course of cross examination, he said that he wanted the child restored to his care, but he advanced no clear proposal for how this would be implemented. While he wanted contact with the child, he rejected the adoption plan as "unbalanced". While acknowledging paternity, he was not prepared to consent to a declaration of paternity. Issues 16The main issues are: * whether adoption would promote the child's best interests and is clearly preferable to any other order that could be made with respect to the care of the child; * whether the consents of the birth parents should be dispensed with; * if so, what name should be approved for the child upon adoption; * whether the adoption plans should be registered; and * whether a declaration of parentage should be made in respect of the birth father. 17In making decisions about adoption, the court must apply the principles listed in Adoption Act, s 8(1), of which the following are relevant in this case: (a) the best interests of the child, both in childhood and in later life, must be the paramount consideration, (b) adoption is to be regarded as a service for the child, (c) no adult has a right to adopt the child, (d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, (e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare. 18For the birth mother, Ms Leis emphasised that adoption was to be a "service to the child", and argued that unless adoption satisfied needs of the child that were otherwise unmet, it could not be a service to the child. In my view, in speaking of adoption being a "service to the child", the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child as distinct from providing a service to people who wish to adopt a child. I approach this case clearly with that principle in mind. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met. 19(NSW) Adoption Act 2000, s 90(3), which provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child, requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While I agree that this does not require satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762]. 20The answer to that question is informed by various other considerations referred to in s 8(2), and in particular: * the wishes of the child, and the child's age, maturity, level of understanding, gender, background, family relationships and other relevant characteristics; * the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity; * the child's disabilities; * the birth parents' wishes; * the nature of the child's relationship with the birth parents, and their parenting capacity and attitude to the child and to the responsibilities of parenthood; * the attitude of the proposed adoptive parents to the child and to the responsibilities of parenthood, and the nature of the child's relationship with them, and their suitability and capacity to provide for the child's needs. The wishes and relevant characteristics of the child 21At the time of the hearing, the child was approaching nine years of age. He was described as a somewhat shy, quiet, anxious and reserved boy; a "rather emotionally volatile child who is somewhat anxious"; not overly engaging; reserved and sensitive around adults, although he can be boisterous and noisy with other children, and confident around adults with whom he is familiar. He has a basic and increasing comprehension of his family history and status: he knows that he was not born to the proposed adoptive mother, and that the birth mother was his "tummy mummy"; he knows of the existence and identity of his birth mother and father, and over the last year he has had contact with them; and he knows his maternal grandmother well. He has photographs of the birth mother, and one of the birth father. Discussion of his birth family is encouraged by the proposed adoptive parents, though the child has not shown a great deal of interest in it. 22When asked (in May 2009) about adoption, he has said, "I want everything to stay the same", which was (particularly in the light of the fact that he had had no birth parent contact since 2005) probably a reference to his living arrangements, rather than his legal status. Perhaps more significantly, he has expressed interest in when he would have a new birth certificate, which is some indication that he desires his status as a member of the proposed adoptive family to be confirmed. 23Although they are not a major factor in my decision, the express and implied wishes of the child are that he does not want his extant residential arrangements to be disrupted, and he wishes his status as a member of the proposed adoptive family to be confirmed. The child's needs, including sense of identity 24A clear sense of identity is an important life foundation for children, and this is particularly so against an early background of ambiguity or instability. Ms Hogan gave opinion evidence, which was not contradicted, supported by reference to research, including of Professor Julie Selwyn, to this effect. 25One important aspect of this child's identity needs is the need to know his origins. Like many children who do not live with their birth parents, this child may well embark on some search or enquiry in respect of his birth family, and lack of satisfactory answers may result in a sense of being "abandoned" or "unwanted". There is therefore a need for knowledge of his origins, of his birth parents, and the reasons why he is not in their care. A significant element in this, if he is not to be restored to the care of his birth parents, is birth parent contact. Thus arrangements that will facilitate and support birth parent contact will better serve the child's needs than arrangements that do not. 26On the other hand, the child primarily identifies with his proposed adoptive family. He sees the proposed adoptive parents as his psychological parents, and himself as the oldest child in their family - the eldest of four siblings. Indeed, the birth mother acknowledged and appreciated that he is likely to consider the proposed adoptive parents to be his family. 27Accordingly, this child's "identity needs" are not at all unilateral. There are at least two relevant components to his identity: his psychological family, and his birth family, and the significance of his psychological family in this respect must not be understated. Given their respective roles in his life to date, the proposed adoptive family provides a far greater component of his identity than his birth family. 28Security and stability are also important life foundations for children, all the more so against an early background of instability. Ms Hogan also gave evidence, which was not contradicted, to this effect. 29It was submitted on behalf of the birth mother that the permanency plan approved by the Children's Court provided the requisite degree of stability and security, and that there was no need for anything more. However, the child remains a less than complete member of the proposed adoptive family: he is a ward of the Minister, in "out-of-home" care, so that significant decisions concerning his welfare require the involvement of the Minister, who retains parental responsibility. As the birth parents harbour aspirations of restoration, there remains a doubt as to the permanence of his placement. In my judgment, the need for stability and security is an important consideration, especially given the history of early instability. The child's disabilities 30The child has been diagnosed with a mild articulation delay, but has not required treatment for this since he ceased speech therapy in 2009. He has also had "in-turned feet", but this too appears to be resolved. He initially struggled academically and appeared to be in the lower range of literacy, but more recent school reports are that he is achieving sound results in most areas, although he loses focus when tasks become too challenging, and describe him as a kind and happy student who interacts well with his peers. 31These disabilities, such as they are, do not appear to create any special needs. However, in combination with the child's personality, they suggest that the child requires sensitive and attentive parenting. The birth parents' wishes, attitude and parenting capacity 32While the best interests of the child are paramount, the wishes of the birth parents are not irrelevant, although they are subordinate to the interests of the child, and the weight to be afforded them will be influenced by the reasons that inform them. 33The mother's proposals have been summarised above. While she thought that the proposed adoptive parents were lovely people, and she had no issues with them or the quality of care they provided for the child, she believed that the legal parental bond should be preserved, and that the child had been "basically stolen". However, she demonstrated increasing insight into the child's best interests, and some ability to give priority to them. She loves the child very much, and wishes that she could care for him; but came to realise that she may have difficulty in doing so. She wants the child to understand, in due course, why she is not able to care for him. In this respect she presented as quite mature, sensitive, and insightful. While she remained opposed to the making of an adoption order, it was clear - as she acknowledged - that she was torn in two directions: the child's security meant the world to her; she would not wish to expose the child to the risk of being in her care if she was not well; and she did not want to disrupt the child if he was happy where he was. 34The birth father's opposition to adoption was focussed on the denial of what he perceived to be his "rights", and the "wrongful removal" of the child. He contended that there had been an error of judgment in the removal of the child, and that its continuation was unjust. Although in his evidence at the preliminary hearing the birth father seemed to acknowledge the irrelevance of the historic events by which the child had come into long-term out-of-home care, his subsequently opposition to adoption was nonetheless founded in his perception of righting past wrongs, rather than the present and future interests and welfare of the child. 35The decision to be made now must focus on the child's interests and welfare, in priority to any wishes of the birth parents for reparation of lack of contact in the past. Birth parents: relationship, attitude and capacity 36The birth mother has a history of mental health issues (depression), substance abuse (cannabis) and domestic violence. She has five other children, of whom three survive but do not live with her, having been removed in 1999. 37The child was removed from her care during the admission to QE2 because the Centre did not believe that he was safe in her care. She had little contact thereafter during 2005, and did not appear interested in the child. Subsequently she had contact once in 2009 and again in 2010, and thereafter not until these proceedings were instituted - notwithstanding that, on 18 January 2012, she had been offered contact whenever she wanted it, in the presence of her mother. 38Although the birth mother has made considerable progress since then, no longer uses cannabis, and has achieved a measure of stability, she still has considerable limitations. The New South Wales Trustee and Guardian manages her affairs under a financial management order. She still suffers on occasion from depression, and is sometimes non-compliant with her medication, which can lead to a deterioration in her mental health. The potential for this was starkly illustrated in the course of the hearing when she was unable to attend on 17 September 2013, to which date the matter had been adjourned part-heard while she was under cross-examination. On her behalf, it was accepted that this recent illness demonstrated that her hopes of recovery and restoration might be over optimistic. 39While the birth mother said that she would like to have the child back in her full-time care at some time in the not too distant future, no case was developed as to the arrangements that might obtain in such an event. She expressed the hope that restoration could possibly happen at some point in the future, "if I could get a bigger place". She lives in a bedsitter, in which there is no room for a child; to have a child reside with her she would need to upgrade her accommodation, and she is not currently in a financial position to do so. In any event, she acknowledged that contact might at times be difficult for her; in those circumstances, one must query how full time care could be a realistic option. She also acknowledged that she has some difficulties in dealing with day-to-day affairs - not every day but often enough - and doubt must attend whether she would be able to make the arrangements to get a child to school and other activities, collect him after school, and manage medical appointments and the like. At one stage, she said in this context "it is not hard to look after a child", demonstrating dubious insight into that issue. She accepts that, even now, it would be difficult for her to cope with the full responsibilities of parenting the child. 40The birth father's history is unclear; he provided no evidence of it, although it appears that he has fathered three other children. Although the child has never been in his care, he had contact fairly consistently during the period August to October 2005, and appeared to demonstrate a genuine interest in and affection for the child during that period. However, he cancelled contact in late October 2005 and failed to attend the Children's Court assessment on 3 November 2005. In his evidence in these proceedings the father denied recollection of this, but in an affidavit sworn in proceedings in the Children's Court on 12 December 2005, he had deposed: 12. I made an application for an Assessment Order by the Children's Clinic. However, I was unaware that the person who was to interview me was coming all the way from Sydney. I understood that I had to confirm the appointment. I actually thought local representatives would be there and I could reschedule. 13. Also, my mobile phone was not functioning at the time, and I have since bought a new one. 41Thereafter, he had no contact with the child until March 2013, after he was served with notice of these proceedings. While he eventually proposed that the child be "returned" to his care, he advanced no case as to how this would work, and provided no details of his own life or circumstances. He had made no attempt in the past towards restoration, or even establishing contact. He did not respond to requests to provide photographs, or have other forms of contact with the child - he said that he found those proposals "unacceptable", and that he wished to initiate contact on his own, and not the Department's, terms. At the preliminary hearing on 5 March 2013 he gave the following reasons for not pursuing contact: ... B was taken some years ago, and I don't want to be historical about this because it is of, obviously, no relevance. But what I have been experiencing of this is, is a feeling of total helplessness and disempowerment, and I don't know whether that is through my own inadequacies, but that has just occurred. It could be systemic, it could be a problem. I am trying to divorce myself from that. But whatever it was, I have not had that on-going contact. I had contact for a year. We did actually build up, quite, to me, a significant bond. I don't know. My son is still conscious of that. He was quite young at the time. I acknowledge that. One of the main reasons I did not continue a relationship was because we had established the bond, and I thought if I am not going to be random, because at that stage there was no support from the Department of Community Service to encourage or facilitate visits, and he was flown from Bega to Sydney, which, to me, at the time, it was a huge task to even get here, let alone return. So, that actually was not something that was continuous and I did not want to jeopardise his development by interfering with the relationship that he had because I knew [the birth mother] was actually providing some sort of stability informing a platform of his growth, I guess. So, moving on ... 42Subsequently, in his evidence in the proceedings, he attributed his failure to pursue contact to exhaustion and disempowerment by the Children's Court proceedings, and to the need to care for his mother, which made contact difficult. Since these proceedings have been on foot he has had contact on a couple of occasions, largely at the initiative of the proposed adoptive parents. He would neither confirm nor deny that he had been offered contact in June 2013, but declined it; nonetheless, it is clear that that was the case. As has been mentioned, his defence was focussed more on parental rights than the best interests of the child. His reluctance to consent to a formal declaration of paternity and inclusion on the child's birth certificate was mystifying, but not consistent with a proper attitude to the responsibilities of parenthood. 43For whatever reason, the birth parents have had very little involvement in the child's life. Indeed, they have had more contact with him in the last nine months while these proceedings have been on foot than ever before, and that has been essentially at the initiative of the proposed adoptive parents. They are not without responsibility for the lack of contact: while more could have been done by the Community Services to promote contact, the attempt to visit responsibility solely on the Department was unfair. The primary obligation of Community Services was to the child, and not to the birth parents, who must bear more than a little responsibility for being less than pro-active in seeking to make arrangements for contact. The proposed adoptive parents accepted that they could have done more at an earlier stage, and spoke of the evolution of their understanding about the importance of birth parent contact; nonetheless, they have in more recent times been very supportive of contact, and have done more than any other party to promote it. One might have expected the birth parents to pursue contact, if they were seriously interested in the child's welfare. But attribution of responsibility for past failures in this respect is of little relevance now. The important fact is that there has been no contact for most of the child's life, so that in psychological terms the child's identification with his birth parents is but a very minor feature of his psychological makeup. Thus while the child knows his birth mother and father, it is not conceivable that he could have developed bonds of psychological attachment to either of them, given the very limited contact that has so far taken place. In reality, they are only now beginning to establish a relationship. 44In my judgment, the relationship between the child and his birth parents involves more than mere paternity and maternity, to the extent that he knows them, but little more than that. Both of the birth parents have limited capacity to satisfy the parenting needs of the child: the circumstance that none of their children remain in their care, the inadequacy of the mother's accommodation, her mental health difficulties, and the absence of evidence of the birth father's circumstances, all contribute to this conclusion. While both of them love the child, I am unable to find that they have demonstrated, on a consistent basis, a proper attitude to the responsibilities of parenthood: for most of the child's life to date they have demonstrated little interest in him, though, particularly in the case of the mother, this has largely been because her circumstances and condition have precluded her from doing so. Proposed adoptive parents: relationship, attitude and suitability 45The proposed adoptive parents presented with great dignity and sensitivity, particularly in their attitude towards the birth parents, especially the mother. They have a stable history in their education, careers and marriage; in circumstances where their fitness is undisputed and indisputable, it is not necessary to rehearse their background any further. They are astute and perceptive. The warmth of the relationship that the proposed adoptive mother had developed with the birth mother was quite tangible across the court room, and this was reciprocated in the birth mother's manifestly genuine evidence of her views as to whether they would continue to be supportive of her ongoing relationship with the child: "I do believe and trust them to do that". 46In the context of this child's life to date, his relationship and identification with his birth parents is overwhelmed by his relationship and identification with the proposed adoptive parents. The child has been a part of their family since he was just over one year of age, a period of almost eight years by the time of the hearing. During that period, they have provided excellent care and parenting, and amply met his needs. Their role in his life to date has been very much greater than that of his birth parents and - except in the event of restoration - will continue to be so. The child demonstrates behaviours in his interactions with them that manifest a secure attachment. They are alert to his needs, and proactive in seeking appropriate support and advice. They are willing and capable to take full responsibility for making decisions about his welfare. The proposed adoptive father has already made provision for him in his will. 47The proposed adoptive parents display a very good appreciation of the importance of a relationship between BS and his birth parents, and they have been proactive in establishing and sustaining contact, not only with the birth parents, but also with the maternal grandmother, and the child's half-siblings. It is mainly attributable to them that contact has been re-established. I am entirely convinced that they will continue to support and facilitate contact in the future, and do their best to ensure that it is sustained. 48BS is securely attached to the proposed adoptive parents and sees them, psychologically, as his parents. They have in every way demonstrated a proper attitude to the responsibilities of parenthood, and excellent parenting capacity. The Adoption Plans 49The proposed arrangements for contact are detailed in two adoption plans - one making provision for contact with the birth mother and the other with the birth father - prepared by the Director-General and agreed by the proposed adoptive parents (who, in the event of an adoption order being made, will constitute all the parties to the adoption, as non-consenting birth parents are not parties to the adoption). The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances [Adoption Act, s 90(2)]. In any event, the arrangements for birth parent contact are relevant to the satisfaction of the child's identity needs. 50The plan relating to the birth mother provided for contact four times per annum in person, of which one occasion every second year was to be in Bega. While it left the birth mother with some level of responsibility, it was minimal, and there were detailed processes to assist her in its implementation. It provided a high level of support for the birth mother, including that the department would fund two trips per annum to Sydney; Centrelink already funds another two trips. The plan relating to the birth father also provided for face-to-face contact four times per annum, including once every second year in Bega. 51Originally, three issues were raised concerning the adoption plans: a provision which at least arguably permitted its amendment by the parties to the adoption, without the consent of the birth parent; the funding of contact, including the mode of travel from Bega to Sydney; and the frequency of contact in Bega. So far as amendment was concerned, this was ultimately resolved, so that amendment would require the birth parent's consent or the approval of the court. So far as financial support was concerned, in my view what the plan offered was reasonable if not generous; this too was in due course resolved, and a suggestion, advanced at one stage, that the Department should fund travel to Sydney by air, was ultimately not pressed. Thus the only remaining issue was whether there should be contact in Bega every year, rather than every two years as the plan proposed. The Director-General did not support contact in Bega more than once every two years, whereas the birth mother sought it annually. Ultimately, I had difficulty in accepting that it was not feasible or reasonable for the child to travel to or through Bega once per annum, potentially on occasion as part of a trip to another destination, for the purpose of contact with his birth parents and familiarity with his place of origin. When this was explored in the course of submissions, the proposed adoptive parents ultimately agreed, and so this issue too was resolved, and the plan was amended to provide that one of the occasions of contact each year would be in Bega. 52The birth father said that the adoption plan was biased and unbalanced, and that he wanted the child to come to Bega perhaps twice a year. He said that he could not be confident that the proposed adoptive parents would support contact in the future. However, although expressing opposition to the adoption plan, he did not identify any other particular issues with it. 53I am satisfied that, if an adoption order is to be made, the arrangements proposed in the adoption plans are in the child's best interests and proper in the circumstances. It will be necessary to return to the question of registration of the adoption plans. Would adoption promote the child's best interests, in the light of the alternatives? 54Consideration of whether adoption would promote the child's best interests, and whether it is clearly preferable to any other order that could be made, involves identifying the likely effects of adoption, and the various available alternatives, and examining the respective benefits and detriments of each from the perspective of the best interests of the child, so as to conclude whether adoption is, or is not, clearly preferable to all the others. In the light of the proposals of the parties, the alternatives to adoption that require consideration in this case are: restoring the child to the care of one or both of the birth parents; maintaining the status quo, with the Minister having parental responsibility and the child in foster care; allocating parental responsibility in respect of birth parent contact to the Minister, and otherwise to the proposed adoptive parents; and allocating parental responsibility in favour of the proposed adoptive parents. The effects of adoption 55In many ways, an adoption order would have little practical impact on the child's circumstances: he would continue to live with the adoptive parents with whom he has been since he was one year old, and the arrangements for his residence, education, and care would not overtly change. Indeed, it was an element of the birth parents' case that adoption was unnecessary, as the child was perfectly well cared for by the proposed adoptive parents under the current arrangements, and therefore that making such an order would serve no need of the child, as the status quo was adequate for the child's welfare, and adoption would not effect any real change. However, that there would be no radical change, and that the child is currently well cared for, does not mean that adoption would have no beneficial impact. 56First, the child would no longer be a State ward. He would no longer be in "out-of-home" care, but in "in-home" care. The need for departmental intervention in his care, and approval for significant decisions of the proposed adoptive parents, would be removed. 57Secondly, the child's legal status would be brought into conformity with reality. Psychologically and residentially, he is a member of the proposed adoptive family. An adoption order would bring the legal position into line with this. 58Thirdly, his legal name would correspond with that of the family with which he lives and identifies. He would be enabled to choose for himself whom he tells of his status, without it being self-evident from his name. 59Fourthly, his membership of the family that he regards as his own would be perfected, thereby affording him a sense of security and permanent belonging in that family. While it was submitted that the child was already secure in that relationship, an adoption order would afford a greater sense of belonging and identification than the current incomplete arrangements can. Particularly in the context that each birth parent has expressed aspirations to restoration, an adoption order would foreclose that possibility, and gives certainty and security for the future. 60One of the main grounds of opposition to an adoption order was that such an order would not meet the child's identity needs, particularly in respect of his birth parents. An adoption order would, of course, legally sever the parental relationship between the child and the birth parents. However, they are relationships which, in reality, have involved not much more than mere paternity and maternity: they have been devoid of parental responsibility, and contact has been slight. An adoption order would in fact serve the child's identity needs by perfecting his membership of the family with which he identifies, while setting a secure foundation for an ongoing relationship with the birth parents through contact, at a higher level than it has ever been in the past, and which the proposed adoptive parents will support and facilitate - without the insecurity or doubt that might attend it if some prospect of restoration were left open. 61The birth father submitted that adoption would remove the child's right to decide where and with whom he lived. However, that "right" is, for most children at least - including those living with their natural parents - illusory. If adopted, this child would be in no different a position to a child living with his or her birth parents in that respect. 62Adoption carries a risk that the child may feel unwanted or abandoned; indeed, he has already asked why he does not live with his birth mother. However, this risk is incidental more to the circumstance that he does not reside with his birth parents, than to an adoption order per se: whether he is in foster care, or under a parental responsibility order, or adopted, there would be the same potential for the question, "why do I not live with my birth parents?". Thus, declining to make an adoption order in favour of some other solution, short of restoration, does not remove the risk of a sense of loss or abandonment. However, the risk is mitigated by the circumstances that the child knows his birth parents (and maternal grandmother), will continue to have a relationship with them, and is already well on the way to understanding why he is not in their care. Given the position and circumstances of the birth mother, which he is already beginning to understand, there is a significant antidote to adoption being associated with any sense of abandonment. 63The submission that adoption would serve no need of this child, as the status quo was adequate for the child's welfare, and adoption would not effect any real change, overlooks that while the status quo might be adequate, adoption would nonetheless promote the child's welfare in the ways I have described. What would change, in particular, is the promotion of "felt security" through the legal and psychological sense of belonging and the resolution of any residual doubt as to his future; and the circumstance that the child's adoptive parents, not the Minister, would be responsible for important life decisions. While the legal relationship with the birth parents would be severed, they would not cease to be his birth parents; the relationship with them would be sustained and probably enhanced; and legal parenthood would appropriately reside with those who are discharging the responsibilities of parenthood. Is there a realistic prospect of restoration? 64Once an adoption order is made, the possibility of restoration is practically foreclosed, and future decision-making in respect of the child is vested in the adoptive parents. Because of the permanency of an adoption order, and the general preference based in human nature and experience that, where practicable, children are best raised by their birth parents, the Court would not likely make an adoption order if there were a realistic prospect of the child being restored to the care of one or both of his birth parents. However, if there is no real prospect of restoration, then the disadvantages of the permanent nature of an adoption order are minimal, and no greater than those of natural legal parenthood; and the advantages of permanency are considerable. As explained below in connection with the discussion of registration of the adoption plans, future contingencies in relation to contact can still be addressed and accommodated after an adoption order is made. 65The starting point for consideration of whether there is a realistic prospect of restoration is that there is in place an order of the Children's Court allocating parental responsibility to the Minister until the child attains 18 years of age. Implicit in that order is a conclusion that restoration is improbable. That conclusion does not bind this court, and between the time when a care order is made in the Children's Court, and an adoption application is considered in this court, much can change. The (NSW) Children and Young Persons (Care and Protection) Act 1998 itself admits, by s 90, of an application for restoration (by way of rescission of the care order) in the event of a change of circumstances, notwithstanding that a final order allocating parental responsibility to the Minister until 18 is in place. Nonetheless, in this type of case, there has already been a judicial decision, by a specialist court, that the child cannot be satisfactorily cared for by the birth parents, such as to require long-term removal. 66As has been recorded, although the birth mother said that she would like to have the child back in her full-time care at some time in the not too distant future, no case was developed as to the arrangements that might obtain in such an event. She would need to upgrade her accommodation, and she is not currently in a financial position to do so. Her mental health remains precarious. It is doubtful that she could cope with the responsibilities of full time care of a child. 67The birth father's eventual proposal that the child be returned to his care, under a "progressive regime", was undeveloped in terms of how it would work. Indeed, it is somewhat of a misdescription, as there could hardly be a "return" to someone in whose care the child had never been (although the birth father justified this terminology on the basis that "he was with me for nine months during the pregnancy"). He advanced no case as to how this progressive return would work, and provided no evidence of his own life or circumstances. 68In my judgment, restoration is entirely unrealistic in this case. It would involve a move from the residence, the family, the neighbourhood, the school and the friends that the child has come to know well, and the context in which he has lived for nigh on eight years. It would disrupt current well-established, stable, secure and supportive arrangements. It would move the child to an uncertain alternative, without the safety nets available in the present context. Restoration would involve many unknowns and risks, which are absent in the status quo. Even if it were demonstrated that the birth mother and/or father could provide care for him of a quality equivalent to that provided by the proposed adoptive parents - which has far from been demonstrated - that would be insufficient to make a change desirable now. Minister to retain parental responsibility? 69Short of restoration, the outcome favoured by the birth parents was maintenance of the status quo, with the child in "out-of-home" care under the responsibility of the Minister and residing with the proposed adoptive parents as foster parents. The chief perceived advantage of this arrangement is its greater flexibility, in that the possibility of restoration in the future is concerned. But as I have concluded that restoration is not a realistic prospect, this is of little moment, and is outweighed by the disadvantages of not extinguishing the remaining doubt about the permanency of the child's placement. To preserve this possibility, when it is not a realistic one, would contravene the spirit of adoption principle (e1), that undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare - principle that reflects, in the context of adoption, that there should be as much certainty as possible about a care plan for a child as early as possible, and that maintaining uncertainty is adverse to children's interests. 70In addition, this proposal has the significant further disadvantage of leaving the child a ward of the Minister, with the consequence that departmental approval of significant decisions concerning his care and welfare is required. In the care and responsibility of the proposed adoptive parents, his interests do not require the on-going intervention and supervision of the Minister. 71The modest advantage of preserving the possibility of restoration is outweighed by the advantages of a more permanent solution, and one under which decision-making about the child's welfare is entrusted to parents who love him, who have demonstrated clearly the ability and intention to care for him very well, and who know him far better than responsible departmental officers ever could. Minister responsible for birth parent contact? 72An alternative position advanced on behalf of the birth mother was that the child continue to reside with the proposed adoptive parents under a parental responsibility order, save in respect of birth parent contact, for which the Minister should retain responsibility. It was said that this would allow the Department to discharge its responsibility to assist in reinstating the child's relationship with the birth parents, which obligation was said to arise from the Department's alleged past failures adequately to support that relationship. It was also argued that the department was better equipped and resourced to facilitate contact. 73To the contrary, it seems to me that the proposed adoptive parents are much better positioned to facilitate future contact. They have greater influence with and understanding of the child than the department has; they have greater knowledge of the detail of the circumstances; and they have greater sensitivity. They have a proven commitment to contact. It cannot be overlooked that the birth parents are now having more contact with the child, and of better quality, than ever before, and that this is due mainly to the initiative and commitment of the proposed adoptive parents. On any view, they have done much more than the birth mother, the birth father or the Department to support birth parent contact in the past. Indeed, they have also sought out the child's half-siblings, maternal grandmother and family. It is notable that they volunteered contact even on the eve of a contested hearing (when the birth parents were in Sydney for the hearing), and again while the hearing stood adjourned part-heard, and plainly facilitated this. 74The Department's resources are limited, and it has many claims on its attention. Caseworkers change. Given the tremendous demands on its attention, facilitating birth parent contact in an individual case cannot be expected to be at the top of its priority list. In my view, adoptive parents who know and love the child are unquestionably superior to an amorphous Department in this respect, especially when they have a proven track record of facilitating contact. In my assessment, the proposed adoptive parents have done, and will in the future do, a far better job in this respect than the Department. Parental responsibility order in favour of proposed adoptive parents? 75A long-term parental responsibility order in favour of the proposed adoptive parents would alleviate the requirement for the intervention of the department in most decisions about the child, while avoiding the permanence of an adoption order. However, given the conclusion that restoration is unrealistic, the "benefit" of impermanence is also a detriment. Otherwise, such an outcome does not offer the other benefits of adoption, referred to above. As the proposed adoptive father described it, such arrangements would be "like living together but not being married". Is adoption clearly preferable? 76There is no realistic prospect of restoration. 77There is no advantage in leaving parental responsibility vested in the Minister, generally or for birth parent contact. Where restoration is not a realistic prospect, the preservation of the possibility is as much a disadvantage as an advantage. The Department did little to facilitate contact in the past. The proposed adopting parents have done much more. They are in a much better position to facilitate contact than the Department, and their past track record provides ample grounds for confidence that they will continue to do so. 78A parental responsibility order would still leave the child an incomplete member of the household, and not exclude doubt as to the permanence of his placement. 79The child is unquestionably doing well in the care of the proposed adoptive parents. They are plainly taking all proper steps for his welfare. No criticism of their care for him has been suggested. The only real issue with adoption is whether it would be adverse to the child's identity needs. In my view, adoption would serve this child's identity needs better than any potential alternative, because it would confirm the child's identification with his psychological family, which is overwhelmingly the greatest feature of his identity, while preserving the opportunity for him to know his birth parents and to understand why he does not live with them. Adoption is also superior to all alternatives in respect of the provision of a sense of security and stability to the child, because it would provide what Ms Hogan described as "felt security", and resolve any outstanding concerns that the child might not be a permanent member of the family. In doing that, it would also provide a sound and secure basis for the child to explore and develop his relationship with his birth parents. 80In my judgment, the making of an adoption order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. Subject to (1) dispending with the consents of the birth parents, and (2) satisfaction of the formal requirements, I will make an adoption order in favour of the proposed adoptive parents. Consent dispense order 81The birth parents do not consent to an adoption order. Accordingly, the order can be made only if their consent is dispensed with. Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child's welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006) as enabling consent to be dispensed with where adoption would enhance the child's sense of belonging and permanence in the carers' family notwithstanding that there is no concern about the child's current welfare (as distinct from the child's welfare at the beginning of the placement). Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced. 82For the purposes of s 72, at least 14 days' notice of the application for a consent dispense order has been given to both birth parents, who have been joined as defendants and who appear to oppose the orders. For the purposes of s 67(1)(d), the proposed adoptive parents are authorised carers and the child plainly has established a stable relationship with them. As I have concluded that making an adoption order would promote the child's welfare and be in his best interest, it is necessarily also in the best interests of the child to make a consent dispense order, so as to allow the adoption order to be made, notwithstanding that the birth parents do not consent to it. The conditions for making a consent dispense order in respect of each birth parent are therefore satisfied. 83Accordingly, I will make an order pursuant to s 67(1)(d) that the consent of the birth father and mother be dispensed with. Formal requirements: 84For the purposes of s 88, the only persons whose consent to the adoption of the child is required and has not been given are the birth parents. I am satisfied that at least 14 days' notice of the application for the order, containing the prescribed particulars, has been given to them, and also to the persons with whom the child resides (namely, the proposed adoptive parents) and the person having parental responsibility (namely the Minister). 85For the purposes of s 90(1), I am satisfied that, for the reasons stated above, the best interests of the child will be promoted by adoption by the proposed adopting parents. So far as is practicable having regard to the age and understanding of the child, I have, as recorded above, ascertained and given due consideration to his wishes and feelings. I am satisfied that the prospective adoptive parents have been selected in accordance with the Act, and that consent to the adoption of the child has been given by every person whose consent is required under the Act other than the birth parents, who consent should be dispensed with. Name 86Adoption Act, s 101, relevantly 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. Before changing the surname or given name or names of a child, 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. The Court must not approve a change in the given name or names of a child who is more than one year old unless the Court is satisfied that the name change is in the best interests of the child. The 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. 87The adoptive parents proposed that the child have their surname (J), and the given names BS, B being his current given name and S being his current surname. 88The birth mother preferred that the child retain, as his surname, her family name (S). It was submitted that this would avoid a sense of abandonment or that he was no longer a member of her family. Alternatively, if there was to be a name change, she preferred a hyphenated name "S-J", to preserve some nominal identity with the birth family. However, she ultimately appeared to accept that retaining "S" as a second name would adequately achieve this. The adoptive parents were opposed to a hyphenated name, although the adoptive mother's position was more ambivalent than the father's in this respect. 89In my view, the prima facie position, reflected in the reference in s 101(1)(b) to "on the application of the adoptive parent or parents", is once it is determined to make an adoption order, priority is given to the wishes of the adoptive parents, so long as they are not inconsistent with the interests of the child and the adoption principles, although regard must also had to the wishes of the child. Thus upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child's family name accords with that of his or her legal family. Indeed, children see that outcome as one of the most significant indicia of the sense of "belonging" that adoption is intended to nurture, and not to do so would detract from the benefits of adoption. 90There is no reason to depart from that approach in this case. Insofar as any wishes of the child in this respect can be ascertained, the interest in a new birth certificate is some evidence of a wish on the part of the child to have the surname of the proposed adoptive parents. The child is to have the surname J. 91Addition of S as a second given name involves changing the child's given names. The inclusion of "S" as a second name is recognition and preservation of the birth family connection. I am satisfied that to change the given names of the child by adding "S" as a second given name, while preserving B as the first given name, is in the best interests of the child, as it will preserve the child's first name, while adding a nominal link to his birth family. This is entirely consistent with adoption principle (e), as the child's extant given name will be preserved, but the link to his birth family also sustained. Registration of adoption plans 92As has been mentioned, the Director-General prepared adoption plans with both the birth mother and the birth father, providing for contact between the child and them. The Director-General sought registration of the plan in relation to the birth mother; and while registration was not sought of the plan in relation to the birth father - because he did not agree to abide by it - it was indicated that the Director-General would not oppose registration of that plan. 93Adoption Act, s 50, provides as follows: 50 Registration of adoption plans (1) The parties to an adoption who have agreed to an adoption plan may apply to the Court for registration of the plan. (2) The regulations may make provision for or with respect to such an application. (3) The Court may register an adoption plan if it is satisfied that: (a) the plan does not contravene the adoption principles, and (b) the parties to the adoption understand the provisions of the plan and have freely entered into it, and (c) the provisions of the plan are in the child's best interests and is proper in the circumstances. (4) An adoption plan that is registered has effect, on the making of the relevant adoption order, as if it were part of the order. 94In Director-General; Re JS [2013] NSWSC 306, I explained that only those parties to an adoption who have agreed to an adoption plan may apply to the court for registration of the plan, and that the parties to an adoption include the Director-General, the adopting parents and any consenting birth parent, but not a non-consenting birth parent. Nonetheless, a registered adoption plan has effect on the making of the relevant adoption order as if it were part of the order. This confers on the contents of the plan the effect of a court order. 95Although a non-consenting birth parent is not a party to the adoption as defined and would not have standing to apply for a review of the plan under s 51, nonetheless as a person having the benefit of the deemed order that the plan becomes upon registration, even though not party to it, non-consenting birth parents have standing to apply for enforcement of the deemed order arising from registration of the adoption plan [Director-General; Re JS, [12]]. In any event, they have standing to apply under the provisions of the Family Law Act, either to this Court or to a court exercising jurisdiction under that Act, for contact, and in that way effectively to procure a review of the adoption plan [Director-General, Department of Family & Community Services; Re TVK [2012] NSWSC 1629]. 96Before registering a plan the Court must be satisfied that it does not contravene the adoption principles, that the parties to the adoption understand its provisions and freely enter into it, and that the provisions are in the child's best interests and proper in the circumstances. Each plan was the subject of a measure of negotiation with the respective birth parents, notwithstanding that, as non-consenting birth parents, they could not be party to them. I have already found that the arrangements proposed in the adoption plans are in the child's best interests and proper in the circumstances. 97The benefits of registration are, in substance, that it provides additional assurance to the birth parents that their ongoing contact with the child is not solely dependent on the support of the adoptive parents, but is underpinned by a plan that has effect as an order of the Court. In my view, despite the birth father's ambivalence, his interests in respect of contact would be promoted by registration of the plan in relation to him. Declaration of paternity 98The child's original birth certificate does not identify any father. TRF acknowledges that he is the father of the child. 99(NSW) Status of Children Act 1996 provides, by s 21(2), that on application, the Supreme Court may make a declaration that a named or identified person is a child's parent. (NSW) Births Deaths and Marriages Registration Act 1995, s 19(2), provides that if any court makes a finding about a child's parents, the court may order inclusion of registrable information about the parents in the Register. By an amendment to the summons made in the course of the hearing, the Director-General sought a declaration that TRF is the father of the child, and an order that he be included as such on the original birth certificate. 100Inclusion of his birth father's name on the original birth certificate would enable the child to access that information under the adoption information provisions in due course. If that information is not included, the birth father would be an "unacknowledged birth father" within those provisions, and the child would not be able to access information concerning him. All parties seemed to concur that it is important for the child to know his true identity and origins. The birth mother supported the making of such a declaration, having regard to its identity benefits for the child. 101While the birth father accepts that he is the child's natural father, and acknowledged that it would be advantageous for the child to have an original (pre-adoption) birth certificate which named him as the father, he said that he needed to take advice before consenting to that course. He appeared concerned that there might be consequences for him in the making of such a declaration. When the summons was amended to include these claims for relief, I indicated that I would not necessarily determine them at the adjourned hearing on 5 December, if he was not prepared to deal with them by then. However, ultimately I could see no prejudice to him in making the orders sought, given that the adoption order, which I proposed to make contemporaneously, would relieve him of any obligations of parental responsibility (including liability for child support). Accordingly, I made the orders on a provisional basis, deferring their operation for 14 days to enable him, if so advised, to apply to set it aside. No such application was made. Conclusion 102It was for the foregoing reasons that I made the orders of 5 December 2013 set out at the beginning of this judgment. ********** 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: 16 April 2014