Adoption of R [2017] NSWSC 270

The formalities

1. It is common ground that the formalities required by the Act have been satisfied.
2. In particular, the following requirements of the Act have either been satisfied or do not apply: 1. s 23: the Court has jurisdiction to make an order as R is a "child" as defined by the Act, S is a "relative" as defined by the Act, and R and S were resident in NSW at the time of the filing of the application on 20 October 2014; 2. s 24: R was under the age of 18 at the date of filing the application and is thus capable of being adopted under the Act; 3. s 27: this being an application for adoption by one person, S is resident in NSW, is of good repute and is a fit and proper person to fill the responsibilities of a parent; 4. s 29: consent of the Parents has been sought and obtained to the adoption and the formalities of ss 59, 60, 61 and 62 have been complied with.

Uncontroversial matters

1. I have been troubled since commencing case management of this matter about whether it is appropriate to make an adoption order in favour of a sister concerning her (now) adult younger brother.
2. However, a number of matters are clear and should be stated at the outset.
3. The first is that no member of S's and R's family opposes the making of an adoption order. Indeed they all (including the Parents) support it.
4. The second is that there is no doubt about the warm and loving relationship between S and R, S's commitment to the promotion of R's best interests and welfare, S's preparedness to devote her life to those interests and the role that S has played in R's life since his infancy as a carer and nurturer.
5. Ms Wyles described R as a "gentle, thoughtful young man who is very balanced and intelligent". Having seen R give evidence, and having read his affidavits sworn in these proceedings, I see no reason to doubt this assessment. S struck me as a woman of great strength and of quiet determination. In the witness box, she impressed me greatly with her grace and composure notwithstanding the great emotional investment she has made in this application and her anxiety that it succeed.
6. The third is that there is no suggestion that there is an "immigration purpose" behind the proposed adoption. It was not suggested during the proceedings by the Intervener, or at all, that either S or R are motivated to seek an order for adoption by any apprehension that it will secure or enhance such entitlement as R has to reside in Australia. R came to Australia on a student visa. At my request, the Intervener made an enquiry of the Department of Immigration and Border Protection. The Department advised that an adoption order would not affect R's student visa status. I was informed that R is now eligible to apply for permanent residency. I do not know whether he has done so. There was no suggestion in the proceedings that the making of an adoption order would have any effect on such eligibility. A person who is a permanent resident in Australia becomes an Australian citizen if adopted under the law of a state or territory by a person who is an Australian citizen at the time of the adoption: Australian Citizenship Act 2007 (Cth). But that section is not engaged as S is not an Australian citizen.

The nature of adoption

1. Ms Wyles drew my attention to the statement in the "Mandatory Information on Adoption" prepared by the Department of Family and Community Standards that: "Adoption is a legal process whereby the legal rights and responsibilities of being a parent/s, usually biological parents, are transferred to another parent/s, that is adoptive parent/s."
2. Ms Wyles said, and I accept, that: "Adoption is usually ordered where the child to be adopted does not have parents available for him/her or to ensure that his/her needs are being met. Through adoption, a child is provided with a family who is prepared to meet his/her needs, provide stability and future security, as well as a sense of belonging to the family who has committed to the present and future needs of the child. The way this is demonstrated and legalised is through the changing of the child's birth certificate where the child's birth parents' names are changed to those of the adoptive parent/s and this provides the child with legal parents who love and care for the child, a family name, legal entitlement to the family and to the family's estate."
3. Thus, adoption is a process by which a child's legal relationship with his or her natural parents is extinguished and replaced by a similar relationship with another adult or adults. It has been described by the Royal Commission on Human Relationships as "a process by which society provides a substitute family for a child whose natural parents are unable or unwilling to care for the child".
4. This case is outside the ordinary. Although R does not feel emotionally close to his Parents, they are still available to him. They are neither unable nor unwilling to care for him. They still play a role, perhaps an overly intrusive role, in his life. R regularly speaks to and visits his parents.
5. R does not anticipate that the making of an adoption order would change this. Nonetheless, he wishes the order to be made so that there can be a legal recognition of the mother-child relationship that he sees as actually existing between him and S, so that he can use that legal relationship as a means by which to manage cultural imperatives which presently operate between him and the Parents.

The applicable legal principles

1. The paramount consideration is "the best interests of the child concerned" (ss 7(a) and 8(1)(a) of the Act). The Court must not make an adoption order unless "the best interests of the child will be promoted by the adoption" (s 90(1)).
2. The Act makes clear that adoption is to be regarded as a service for the child concerned and to ensure that adoption law and practice assists the child to know and have access to his or her birth family and cultural heritage (s 7(b) and (c)).
3. Section 8 of the Act sets out the principles to be applied when making an adoption order. They include, in addition to the above matters, the requirement that the child be given an opportunity to express his or her own views about the matter (s 8(1)(d)) and: 1. the child's age, maturity, level of understanding, background and family relationships (s 8(2)(b)); 2. the child's emotional needs including the child's sense of personal, family and cultural identity (s 8(2)(c)); and 3. the relationship the child has with his or her parents and siblings (s 8(2)(f)).
4. The Act provides for adoption by a relative.
5. However, the Court is generally reluctant to make adoption orders in favour of a relative where the natural parents of the child are alive. Exceptional circumstances must be established: see Application by the Director-General, NSW Department of Community Services: Adoption of DR by DCB and HMB [2000] NSWSC 22 (Hodgson CJ in Eq) at [30]; and Re A & B and the Adoption of Children Act (1965) [2003] NSWSC 595 (Palmer J) at [13] and [18].
6. As Mr McGorey submitted: "The making of an adoption order has significant and long standing consequences, chief of which being that the child ceases in law to be regarded as the child of the birth parents: s 95(2)(d). The making of an adoption order, in favour of a relative, creates legal relationships that differ from, and distort, natural relationships not only of the adoptive parents to the child but also the child to his or her own parents: New South Wales Law Reform Commission Report 81 (1997) - Review of the Adoption of Children Act 1965 at [4.97]. In Re A & B Palmer J endorsed the following approach at [19]: 'In Re the Application of M [1999] NSWSC 497, Bryson J observed that, having regard to all the potentially adverse consequences that arise from making an intra-familial adoption order, what the Court must ultimately do is balance those adverse consequences against the benefits that would flow to the child, having regard always to the child's best interests'."

Factual background

1. Each of S, H, T and R was born and raised in India.
2. Dr Sawrikar explained that: "India is a collectivist culture as opposed to an individualistic culture like Australia (Hofstede, 1980). Thus, the family is seen to be the basic unit of society rather than the individual. As a result, the needs of individual family members are superseded by the needs of the collective family group. In collectivist cultures, power is also overtly distributed in a hierarchical way, with older people having more power than younger people. This remains regardless of numerical age. Thus, being a legal adult does not challenge the cultural expectation to cede to the will of older people in the family, who have the power to determine what is best for individuals in the family and therefore the family overall. … Authoritarian parenting is common in collectivist cultures because it enhances conformity, and conformity helps preserve and protect family, as opposed to individual, needs and goals. Authoritative parenting, on the other hand, is more associated with promoting and espousing the principle of self-determination."
3. The Parents both have tertiary qualifications. The Father has, since 1979, been working in what was his father's business. The Mother has also worked in that business since 1997.
4. Both the Mother and Father are obliged to devote a large amount of time to their business. R said that, when he was living with the Parents in India, the Parents were rarely home before 9 pm.
5. Following R's birth in 1997, the Mother returned to full-time work. S was required to assist with R's care. S said in an affidavit: "I have been responsible for the care and maintenance of [R] since his birth and effectively became his parent, I would be responsible for taking him to school and collecting him from school each day, preparing his morning and evening meals, bathing him and helping him with his homework. Under my care, [R] did extremely well with studies and sport and I enjoyed teaching [R] and training him." and: "Following [R's] birth my Mother returned to full time work and I was required to assist my mother with [R's] care. My grandmother would care for [R] while I attended school; however when I returned home I would be responsible for bathing, dressing and feeding [R] until my parents arrived home. As [R] and I grew older, I became increasingly responsible for his care and I effectively became a surrogate parent for [R]. I would be responsible for taking him to school and collecting him from school each day, preparing his morning and evening meals, bathing him and helping him with his homework. [R] did extremely well in studies and sport. I enjoyed teaching [R] and training him for sport; at that time I decided that I wanted to work with children. Following my marriage, [R] would spend a large portion of time at my home and I continued my role as caregiver for him."
6. In 2002, S completed a Bachelor of Science in India. In 2005, S attained a Masters in Food Technology and, in 2006, obtained what she described as a "very good job in India as a Chemistry Trainer, which involved teaching and research".
7. In the meantime, in April 2004, S married. The marriage was arranged by the Parents and was short-lived. It commenced with difficulty due to dowry demands from her husband's parents.
8. S gave birth to a child on 1 July 2005. The next month she returned, with the child, to live with the Parents.
9. S raised her child for about nine months. Relatives of S then applied to adopt the baby. S explained: "It was decided collectively by me, my family [and the relatives] that it was in [the child's] best interests for [the relatives] to adopt him. After [the child's] legal adoption, [the relatives] asked me to limit my contact with [the child] for the sake of his emotional stability. I considered this decision heartbreaking but for [the child's] best interests thus followed it."
10. S and her husband divorced in April 2006, at about the time her child was placed for adoption. She has not seen him since. The Parents see the child, now aged 11, and evidently pass on some news about him to S.
11. Several years later, in February 2008, S migrated to Australia. She did so upon the strong suggestion of the Parents who, S said in evidence before me, considered that S's divorce brought discredit to the family. S said that the Parents promised her that "if you go [to Australia], if you are well set there" they would send R to Australia "straightaway".
12. Between 2008 and 2010, S studied teaching at a university in Sydney and, in 2010, graduated with a Masters of Teaching. S is now a full-time primary school teacher. Currently, she is teaching a year 3-4 class at a school in Sydney.
13. On 30 January 2010, S was granted a bridging visa and became eligible to apply for permanent residency. She gained temporary residency in September 2011.
14. In the meantime, and until 2012, R remained living in India with the Parents. He said that, during this period, the Parents continued to work long hours (rarely coming home before 9 pm) and that "therefore if I needed anything (particularly educationally or emotionally) I would contact Didi. She would answer the phone on most, if not all, occasions and would speak to me regarding any problems I had".
15. "Didi" is the affectionate term that R uses to describe S. He said the word means something like "wise and respected woman".
16. R was due to migrate to Australia, and live with S, in July 2010. He was then aged 13. S had by then concluded her studies.
17. At that time, his sister H, then aged 23 and living in Australia, married suddenly and without the approval of the Parents. After becoming aware of H's marriage, the Parents refused to permit R's migration to Australia. This was extremely stressful to R.
18. The Mother has stated in an affidavit: "In 2010, one of my biological daughters decided to marry very suddenly. This was a shock for my husband and me, and we decided to [R's] program [sic] to move to Sydney. Due to this [R] was devastated. He could not stop crying for days. He said words to the effect of 'I feel like dying'. I observed that the decision to cancel the move had a very bad effect on [R] emotionally, and his performance in his studies went down. The period following the cancellation of [R's] trip was very difficult for [R]. My relationship with [R] often felt strained, and he said words to the effect of 'I feel like I am being kept from Didi' and 'I won't be happy again until I am with Didi in Australia'."
19. R gave this account of that incident: "[H] called up and she told that [H] has left and has got married, and it was all hell broke loose and it was like - because just raging straightaway started, and, yeah, it was just like - I think it took them about one or two minutes and they decided that 'You're not going anywhere after this,' and it was just like - because I remember, I was very close. Like, my visa had come. Like, my bags were packed, and they're like, 'Open up your bags, you're not going anywhere,' and it was just a straight no. … For them it was just - for me, because I have never, like, been a rebellious child; like, I used to always obey, like, everything they used to tell me. For them it was, like, all right; if she's going to go and do that - because she was living overseas - and she is going to disobey us, then we have the right to tell you that you can't go anywhere because we don't want you to go and do this as well to us. I'm not going to let you go there at all now. I don't care if it's your fault or not, but you have to pay the consequences basically."
20. H has since moved to the United States with her husband. Despite the hostility of the Parents to the marriage, R said "now, it's all fine, they do talk".
21. Ultimately, the Parents agreed to R coming to Australia permanently after "a lot of convincing" from S. R migrated to Australia in April 2012 on a School Student Visa. In the meantime, R had visited S in Australia several times.
22. When R migrated, he was 15 years of age. He lived with S and attended a high school in their local area.
23. By this time, R's other sister, T, had also migrated to Australia. T was also living with S. T is now a nurse. She in a relationship with a man of whom the Parents do not approve. R said "my parents are pretty much against the relationship because she has mentioned about it to them already". R apprehends that if T married against the wishes of the Parents "they would just call me back straightaway. It's the same thing happening from 2010 [that is, as happened with H]".
24. In January 2013, S obtained permanent residency in Australia. She is yet to apply for Australian citizenship.
25. In early 2014, S purchased, in her own name, a property at Granville where she currently lives with R and with T.
26. In 2014, R commenced a Bachelor of Commerce degree at a university in Sydney majoring in marketing. He will finish that degree in the first semester of 2017. He has achieved a credit/distinction average. He will then be eligible to apply for a skilled migration visa. Following completion of his current study, R wishes to do a Masters of Sport Management.

The relationship between R and S

1. R has said of S, in one of his affidavits: "[S] has been more than an older sister to me, she has, amongst other things: a. Taken and collected me from school on a daily basis, prepared morning and evening meals for me, helped me with my homework, attended to washing and ironing my clothes; b. Taught me about and trained me at different sports, and has taken me to all of my sporting locations; c. Provided me with the opportunity to obtain an education. I am currently enrolled at…University on a full time basis and am studying Business Administration; d. Assisted me with all of my assessments and exam preparation to date; e. Helped me to meet new people and develop strong friendships; and f. Provided me with love, affection and advice. [S] and I have a close and loving relationship and I have always treated her like my own mother. I address [S] as 'Didi', which in the Indian language means wise and respectful woman. For me [S] is a motherly figure. [S] has treated me like her son and has provided me with support and affection and has always acted to ensure my well being, which is why I would love for her to adopt me. I have said to [S] on numerous occasions words to the effect of 'please complete the adoption process soon; I want to stay with you'."
2. R's desire to be adopted by S is, he informed me, born of a desire to "legitimise" what he sees as the de facto relationship between he and S; namely that of mother and son.
3. He also sees it as a means that he can use to resist ongoing demands that he apprehends that the Parents will make of him consistent with Indian tradition. Thus, he said in one of his affidavits: "In the Indian culture, there is a strong emphasis of abiding by and honouring the commands of one's parents. I am concerned that if my parents were to call from India and demand that I return back there, then I would have no choice than to submit to their demands and return and the thought of this causes me significant distress and anxiety. I feel that if [S] was to adopt me, then the prospects of me having to return to India if my biological parents were to request it would be substantially reduced."
4. Nonetheless, R says that he wishes to maintain a relationship with the Parents and is in regular contact with them (by telephone or Skype approximately fortnightly).
5. In an affidavit sworn in October 2015, the Mother said: "It has always been understood within our family that [S] is [R's] mother, and [the Father] and I are like his grandparents. [R] frequently says to me 'Didi is my mum'. I am pleased that he feels this way. Earlier this year [R] told me that for personal and cultural reasons, he has asked [S] to adopt him officially. [R] feels a close relationship with [S] that is very different to the relationship he shares with me, and it is my understanding that he feels that his loyalties and commitment towards his mother now and in the future are to [S]. I support him in this decision. The adoption of [R] by [S] would not change our living situation or family dynamic. It would however, shift his personal obligations from [the Father] and I, as his biological parents, to [S]. In Indian culture, it is accepted that a child must obey their parents into their adulthood. [The Father] and I have not expected [R] to obey us since he left our home in 2012, and understand that upon his adoption, these obligations will apply to [S] exclusively. I am in support of this, and it is my understanding that this is very important to [R]. He has previously said to me words to the effect 'it is important to me that Didi becomes my mother officially' and 'Didi has always been my mother, but I want to make it permanent. I think Didi adopting me would make me feel like I'm really at home'." I have had extended conversations with [R], [S] and [the Father] regarding the adoption. I feel that having [S] acknowledged as [R's] legal parent would benefit the relationship between [R] and [S]. I know and understand that adoption is a permanent process. I understand that this means that [R] will no longer be the responsibility of [the Father] and me, but instead of [S]. I am in support of this. I have observed that [R] is very excited about the prospect of being adopted by [S]. I am aware, through conversation with [R], that he regularly follows up with [S] on how the adoption process [is] going." [Underlined emphasis added]
6. The Father swore an affidavit to similar effect, although expressing himself more briefly.
7. However, subsequent events suggest that, although the Parents have said that they no longer expect R to obey them, they still do expect R to comply with their wishes.
8. For example, in early 2015, R commenced to make arrangements to travel to Europe to watch the UEFA Euro Football Tournament in France in July 2016 with friends with whom R had grown up with in India and who were then living in the United Kingdom and in Europe.
9. In July 2015, R asked the Parents whether he could go to Europe with his friends. They said something to the effect of "yes, sure, we'll see how it goes".
10. R has said in an affidavit: "However, in or about December 2015, when it came time for my friends and I to book our flights make firm plans, I had a further conversation with my parents in India over the phone, saying to them words to the effect of 'So, the trip to Europe is going ahead. I just wanted to make sure that you were [sic] guys still ok with me going'. They responded 'No, you can't go anymore. You're too young'. I was really upset when I heard because my friends and I had been planning this for some time. However, because of my culture, I did not argue with them. I also know from past experience that my parents in India have the last words and what they say is final."
11. Another example arises from R's selection to be a member of his university soccer team to participate in the University Games held in Wollongong over four days in July 2016.
12. In May 2016, R told his parents he had made the team. He said: "My parents responded 'No, you can't do that. You can't go'. I then asked them ''. I then asked them 'Why?', to which they said 'You're too young, you can't'. Again, I did not argue with this and was extremely disappointed because I was not able to be a part of the Team or compete."
13. R told me that during the week preceding the hearing before me, he accepted a Facebook invitation to a friend's 21st birthday party. He speculated that some of his cousins in India must have seen his Facebook acceptance of that invitation whereupon his father telephoned him and said something to the effect: "Someone told me that you're going out tomorrow night to your friend's place". and: "No, you can't go…we don't want you out at nights to your friends' houses".
14. R said that his father "just raged at me for…one or two hours straight".
15. Another example involves R attending the gym. In evidence before me, R said that the parents said words to him to the effect: "We don't want you to go to the gym anymore…we don't think its safe for you". and: "We want you to home every night before 8 o'clock and not to go out".
16. R said that this happened "just last week".
17. He said when he completes his Bachelor of Commerce studies next year he would like to complete a Masters of Sports Management. However, R said at the moment "I would have to ask my parents to see what they want me to do".
18. R said that he was confident that his parents would refuse to give him permission to do a Masters of Sports Management as they would consider there was "no future" in such a course and that they would want him to do a Masters of Business Administration "or something like that, related to business".
19. I asked R whether he had had any discussions with the Parents about that and he said: "When I was young - so in India - in year 10, you've got to choose what field you have to study in, so the options you get are commerce - that is, business, sort of; there's physical education - that is sport, sort of; and others, like engineering and medical, so when I was little, I used to, like - I used to always joke about that - 'Would it be all right if I do physical education?' and they used to always say, 'No, there's no future in that,' so you always have to do commerce."
20. Ms Neville asked R what he thought would happen if he decided to defy his Parents and enrol in a sports management course and he gave this response: "A. First, I don't think I can go ahead and do it, like, because I would be under so much pressure from them that I don't think I would be able to go up against their will and actually do something that I want to do. For me, like, it's - it's in mind that I do have to do what they have to - tell me - like, that's how I've been brought up. That's how they - like, our culture is. I would have to go for - do something that they have to tell me to do, basically. HIS HONOUR Q. But have you actually asked them what their attitude would be if you were doing a Master of Sports Administration? A. Right now I don't have the guts to ask them."
21. R gave this evidence: "Q. If you wanted to pursue a sports management course, would you feel that you had to ask [S] for permission? A. Yes. I would ask obviously before I would do something else because obviously she is the one that I ask for anything but I know, like, what the answer is going to be because she knows what I like and respects my decisions. I would be comfortable asking her. I would eventually go and ask her, like, I want to do this in my life. She would go 'Okay'. She would be supportive of it. She's know, like, it's not something - like, I'm throwing my life away. It is something that I can make something with. That's why. Q. From your perspective, how does she have that understanding about you? A. She's known me, like, since I was born basically. She's been, like, taking care of it since basically I've been born. She knows, like, how I am, what I react to and what I like and what I don't like."

Why not defy?

1. During his evidence, R gave this evidence, in answer to questions from me: "Q. Can't you decide that for yourself now you're here in Australia? No? A. It's easy for you to say that but, like, I… But the way I've been brought up, like, I can't imagine saying that to my parents without having, like, a leg to stand on and say 'no' to them because eventually they can just be like, 'If you're going to say that, just come back.' Q. But what about just not asking? … A. No, I've not been brought up like that, that's why. … A. … I think, like, I'm just so scared to even ask them. Like, what would happen if I do that? Like, for me it's just, like, if they - what they say it is, it's like I have to take it to the chin and not argue at all."
2. Later, R gave this evidence: "Q. In terms of having to ask your parents for permission about certain matters, how is it that you know what you need to ask them about and what you don't need to ask them about? A. It's something that I've been brought up like - cause I remember in India how I used to be like, 'I have to go to my friend's house', even just play, like, I have to ask them - give my friend's number to them, see - cause I can give you an example from India. Like, this was, like, when I'm in Year 7, Year 8, so I'm going to my friend's house to play football, so they drop me to his house. Once we start playing football I don't want to have a phone on me, so I leave the phone in the garden. Apparently they called me twice in 45 minutes. Cause I couldn't answer they just came to pick me up. 'Why don't you answer your phone?' So they just picked me and I have to go back home."
3. And, in answer to further questions from me: "Q. Let's assume that somehow you were able to be here alone studying. A. Yeah. Q. Would you, do you think, still feel as you're telling me you do now, that you needed to ask their permission? A. Yeah. Q. That will last for how long, forever? A. Pretty much, yeah. As long as they're happy. Q. What if you got married to someone? Would you still need to ask their permission about who you got married to, for example? A. I'm pretty sure they will pick a wife for me at this stage. I'll have to get married according to their choice. Q. But you don't have to do that, do you? A. I'll be obliged to. It's just so much in my head. Like, that's how I've been brought up."

Why not "simply not ask"?

1. Similarly: "Q. … Why didn't you simply not ask them, just not ask? A. It's just that's not - culturally, like, that's how I've been brought up. For me, like, I have to do that. Like, in my head, like, I can't imagine having an argument with my parents, like, at this point of time."

What difference if an adoption order made?

1. I asked R what difference it would make to him, so far as concerns his relationship with the Parents, were an adoption order to be made: "A. Because that - I would not feel obliged to ask my parents and do what they say. Like, then I can just ask [S] because she'd just be my mother. Like, I'd just feel like, 'I just want to know - your permission,' that's it. Right now I just feel obliged to do anything after I ask my parents, that's why. Q. But why would an order from a western court, a New South Wales court, mean that you would feel free to not comply with your cultural obligations? A. Just give me - not have that guilt trip in my head. Like, they're not my parents. Like, she's my parent. You know what I mean? … Q. Then if an adoption order were made, I think you're telling me you wouldn't have an argument. There'd be no argument because you simply wouldn't ask them. Is that how it would -- A. Yeah. Like, I'd have a leg to stand on and say that, 'You don't have the right to tell me that I can't go anymore because you're not my parent anymore.' Like, she is what I have to listen to, that's why. … A. Yeah, he can be angry and rage, but in that point, like, I wouldn't feel guilty in saying no to him or disobeying him, because I have the right to do it. Like, I can say no to him, because right now, I'm only answerable to [S], that's why. Q. So your feeling in your heart, you think that if an adoption order were made, that would give you the right -- A. Yeah. Q. -- to say no? A. Yeah. Q. Or to not even ask? A. Yeah."
2. R said that he wished to direct his filial obligations to S, rather than to the Parents because: "…it gives me a fair chance to express myself. It's not just a one-way street, where she's imposing herself on me every single time, and I don't get a chance to even, like, to say no to something."
3. R said he expected that he would have to account to S, to some extent, for his actions.
4. In answer to questions from me he gave this evidence: "Q. At the moment, you're telling me you feel as if you can't defy your parents. A. Yep. Q. If an adoption order was made, would it follow that you wouldn't feel able to defy [S]? A. No, because in that sense, I know she would understand me, so I can have a - like, I can have my say with her, so she would listen. Q. There could be a debate between you -- A. Yeah, it would be a debate -- Q. -- or a discussion? A. -- not a straight-up no. I'll put my point across, she'd understand my point, and then we'll make the decision together, not where she is like, 'No, I want you there' and then you just go. She'll give me a chance to express myself, to - to say what I feel - like, what's my say in the matter and not just the decision straightaway, pretty much, for me."
5. During R's evidence, as I have mentioned, the question arose as to what would happen if he wished to marry somebody. R said that he thought the Parents would expect to choose a wife for him and said he would "have to get married according to their choice".
6. He said that he "can't even imagine thinking" about marrying a woman who is not from the Indian culture or of asking his parents about that and said that such a matter would be "absolutely out of the question" so far as his parents were concerned.
7. On the other hand, so far as concerns S, R said: "I think she trusts me eventually to find a good girl for myself whenever I'm ready and she's going to respect my decision."
8. S expressed similar opinions. She said that she regarded R as a "wise child" who would consult her as necessary (for example, about marriage).

Consideration

1. As I have mentioned, in closing submissions, Mr McGorey very helpfully, and in my opinion, fairly, summarised the factors tending to favour and tend against, the making of the adoption order sought.
2. Those matters favouring the making of the order are: 1. the order would give legal recognition to the relationship that R considers already exists between him and S. That is, in circumstances where S has been a primary carer for R for the majority of his life and where both S and R intend to reside permanently in Australia whilst the Parents will continue to live in India; 2. notwithstanding the evidence that the Parents do not expect R to obey their wishes, the Parents continue to have expectations on R and exert control over his life. It does not appear they will alter their behaviour in this regard; 3. there is some risk that the Parents may request R to return to India, although it is difficult to judge the likelihood of that. R believes that, as matters currently stand, he will feel compelled to return to live in India if such a demand were made of him. Such a move would be contrary to his wish to live and study in Australia and to remain close to S. R believes that an adoption order would enable him to resist such a demand; 4. R clearly wishes for the order to be made. In considering those wishes, the Court can take into account R's age (now 20) and that he presents as intelligent and considerate. The Court can be satisfied that R has given careful consideration to this matter; 5. R is experiencing psychological distress owing to the conflict he feels between wanting to please the Parents and his desire to be psychologically independent of them and make his own life decisions. The making of an order may provide him a tool or short-term relief in managing that process. R believes that the making of the order will deliver him the psychological independence he desires; 6. the Parents have received the mandatory information, undergone independent counselling and have given their consent to the adoption; and 7. this is not a case of an adoption order being sought in circumstances where the identity of R's birth parents and his true biological history is being concealed. This has traditionally been a matter taken into account by the Courts in adoption applications by relatives.
3. On the other hand: 1. the making of the order will have significant and long standing consequences. It would establish legal relationships that differ from R's natural relationship with the parents, sisters and other relatives; the Parents will become his grandparents (but will remain involved in his life); his sisters H and T will become his aunts, and so on; 2. R is now legally an adult. He does not have the same dependency as a young child would have on his or her caregiver. This is not a situation where a young child's sense of security within a proposed adoptive family, to which he or she has no biological relationship, might be enhanced through the making of the order; 3. notwithstanding the close emotional relationship that exists between R and S, a strong child-parent bond remains between R and the Parents. The conflict R feels is a reflection of the strength of that bond; 4. although R wishes legally to recognise the child-parent relationship he considers exists between S and he, his primary motivation for wanting the order appears to be his desire to gain psychological independence from his parents; 5. achieving psychological independence is a normal process experienced by adolescents. It is not uncommon for a young adult to experience distress going through that process, albeit the level of control and distress will differ in each case; 6. R is still maturing and his expectations that the adoption order will resolve his struggle and deliver him psychological independence appears overly optimistic. The making of the order, of itself, is unlikely to completely free him from the obligation he feels to his Parents; 7. although an order may assist as a tool or provide him some form of short-term relief, this is by no means certain and indeed appears problematic. R will still need to undergo a psychological process to achieve that independence. Psychological support or counselling would likely assist him in that regard; and 8. R's close emotional relationship with S is unlikely to change if the order is not made.
4. In response, Ms Neville contended that the Intervener's submissions placed undue emphasis on R's desire to gain psychological independence from the Parents, but otherwise did not cavil with Mr McGorey's summary of the position.
5. As to the Intervener's submission that R's "primary motivation" was to gain psychological independence from the Parents, Ms Neville submitted: "It is true that [R] seeks independence from [the Parents], however, to say that this is his primary motivation for seeking adoption is to overly simplify a complex situation and does not reflect the totality of his motivations. [R] gave evidence that his primary parental relationship is - and always has been - with [S] rather than [the Parents]. An order for adoption creates a legal regime that reflects his lived experience. He gave evidence that he wishes to owe his cultural obligations and duties to the [S] rather than to [the Parents]. This arises, in part, because of his concern that [the Parents] will act in a capricious or punitive manner in making decisions about his life. There is, however, another significant component to this issue. [R] has a firm belief that the [S] better understands him; will respect his thoughts, feelings and wishes; and will provide him with better guidance throughout life than [the Parents] will. This belief is based on [R's] experience of his relationship with [S] throughout his life. [R's] desire to owe his cultural obligations to [S] is far more complex than simply transferring those obligations from [the Parents] to the [S], thereby achieving psychological independence. [S] contends that the Court would comfortably find and attach significant weight to the fact that [R] is a young man who has a deep awareness of and commitment to his culture. His evidence speaks of a considered approach to the manner in which he seeks to live out his culture for the rest of his life. He tells the Court that the person best placed to provide parental guidance to him in that regard is his sister, not his birth mother or father. This goes far beyond attaining psychological independence from [the Parents]. It goes to the manner in which [R] lives out his cultural values and the manner in which he obtains guidance and support for the very significant life decisions that lie ahead of him such as family, study and career." [Emphasis added]
6. But the manner in which R "lives out his cultural values" is a matter that R, now that he is an adult, must determine for himself. If he believes that S, not the Parents, is best placed to provide whatever "parental guidance" is now necessary then he must find it within himself to look to her for that guidance, and to resist ongoing interference from the Parents.
7. There is no suggestion here that an adoption order is necessary to assist R know and have access to his cultural heritage (s 7(c) of the Act: see [36] above). As Ms Neville submitted, R has a deep awareness and commitment to that culture. It is that cultural heritage that is the cause of the anxiety that R now experiences. R said, time and time again, that his need to comply with the demands of the Parents' was because of how he had been brought up within that cultural heritage (for example see [86], [88], [90] and [91]).
8. To the extent that the Parents wish to continue to direct how R lives his life, R must decide for himself whether he will continue to "live out his culture" as he has to date; or defy it.
9. Despite Ms Neville's submissions, I think it true to say that R's primary motivation for wanting there to be an order he be adopted by S is that he sees such an order as being a tool whereby he can achieve psychological independence from the Parents.
10. This emerged as being, to a very large extent, common ground between the expert witnesses in their final reports delivered at my request, following their assessment of the evidence given before me by S and by R, in addition to their concurrent evidence.
11. Thus, Dr Sawrikar said: "Legally, [R] is an adult, and psychologically, he is at a stage of development which requires him to find and establish his independence from parents/guardians. … [I]n collectivist cultures, legal and psychological factors can oppose cultural ones. Indeed, 'intergenerational conflict' is a key issue for families originating from collective societies and living in Western countries like Australia, because independence is seen to be both a right and a responsibility in individualistic societies, so opposing cultural forces between the East and West can become very apparent to migrant families. …[R's] desire for an adoption to his older sister [S]…, seems to be driven by an extreme case of what are otherwise common problems among Indian migrant families. … [I]t also seems that his desire for an adoption allows him to gain independence from [the Parents], without having to fully over-throw family harmony and (possibly gendered) cultural expectations. … [R's] current concern is that [the Parents] will ask him to return to India, (despite that they have said in the past that they would not do this, and which [R] seems to find impossible to rebel against), if and when this other sister [H] marries a person, again, not of [the Parents'] approval. … [R] will still need to establish his independence as an 'authentic' adult, living out the choices he has made - most especially in relation to his career and future marital partner… This adoption, while legally unnecessary - as [R] is older than 18 - appears to be necessary for psychological reasons; it seems to give [R] the psychological power, (and perhaps also, 'mental stamina'), he needs to be able to 'rebel' against [the Parents] in ways that are not actually threatening to the family in terms of cohesion and its name/reputation. The journey towards full independence could continue to unfold for several years yet (e.g. until, say, 24 years), in which case, the adoption would serve more than just an immediate/short-term goal. It would provide alleviation from mental health problems for some years, which in turn, could reap benefits for his mental health in more far-reaching ways."
12. And Ms Wyles said: "When this assessor first met [R] and his sister, [S], to prepare the s 91 report for the court, [R's] main argument for wanting the proposed adoption was to have his sister, [S], legally recognised as his mother. [D]uring the hearing, the main reasons that [R] gave for wanting the proposed adoption was the he saw the adoption as a way of separating from his parents and becoming more independent. …[R] is a compliant young man, wants to do the right thing by his parents, his personality is to please and not to enter into conflict. … Throughout the hearing, it seemed that [R] wants the adoption to help him work through the normal developmental task of separating from [the Parents] and sees the adoption as a way of becoming independent of his parents and of the control he perceives them to have over him. … Psychologically separating from one's parents takes time and is an important task in renegotiating one's relationship and role with one's parents. If an Adoption Order is made, it may provide [R] with an immediate tool to separate but his mindset is to be obedient to his parents and this will take time to shift. The other concern is that if an Adoption Order is made and [S] is legally recognised as his parent, then he will eventually have to go through the same process of separation from her. This will have its own challenges, as they have a very close emotional relationship and both are emotionally dependent on each other. This may be more difficult for [R], as he is so close to her and also he may feel more obligated to her for 'rescuing' him from the control of his parents and to meet her needs of wanting a role as a mother… … I do not believe that the purpose of an Adoption Order is to support the process of emotional separation of an almost-adult child from his parents. [R] would benefit much more from counselling to support him through his turmoil and the challenges he is experiencing. This is a psychological process, not a legal process, as is the making of an Adoption Order."
13. I accept that S and R wish to achieve an alignment between what they see as the actual relationship between them (in effect, as mother and son) with a corresponding legal relationship (adoptive parent and child).
14. However, as Dr Sawrikar acknowledged in her final report, this is "legally unnecessary" as R is now an adult.
15. In any event, as the passages I have quoted from the reports of Dr Sawrikar and Ms Wyles make clear, the primary reason S and R seek an adoption order that reflects what they see as being the real position between them, is not because they entertain any doubt about the matter, or even so that they can present themselves to society here in Australia as a "mother and son" but, rather, so that R can use it to endeavour to repel the ongoing efforts of the Parents to control him.
16. I agree with Ms Wyles that it is not the function of an adoption order to achieve this result.
17. In any event, I think it no more than a matter of speculation to suppose that the making of an adoption order will make any, or any significant, difference to the attitude of the Parents to R. Although they have both consented to the making of an order, and said that they support S formally assuming a role as a mother to R (see [71] and [72] above), their intrusion into R's life has continued (up to as recently as the week before the hearing on 31 August 2016: see [79] to [82] above). The Mother has stated (see [71] above), she does not see the adoption of R by S as changing "our…family dynamic".
18. As was submitted on behalf of the Intervener, achieving psychological independence from parents is a normal process experienced by adolescents. This is something that R must accomplish by his own means. It would not, in my opinion, be appropriate to make an order for adoption in order to give R a tool (of very doubtful utility) to use to try and achieve a result that must come from within himself.
19. As Ms Wyles says, R may well benefit from counselling to support him through the turmoil and challenges he is experiencing. There are, without doubt, skilled and experienced practitioners within the community that could assist R in dealing with the matters he is facing. R's solicitors have, however, stated that R "does not wish to participate in further counselling". That is something that R might wish to reconsider.
20. What is clear to me is that an adoption order is not an appropriate solution to the problems R is facing, or an appropriate exercise of this Court's jurisdiction under the Act.

Conclusion

1. I decline to make the adoption order sought.

Amendments 22 March 2017 - Amended [28] New [29] Legislation cited on coversheet updated to reflect new [29] 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: 22 March 2017