FAMILY LAW AND CHILD WELFARE - Child welfare under State legislation - Adoption - Whether adoption order clearly preferable to any other order that could be made with respect to care of child
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FAMILY LAW AND CHILD WELFARE - Child welfare under State legislation - Adoption - Whether adoption order clearly preferable to any other order that could be made with respect to care of child
The principal question in these proceedings is whether the Court should make an order for the adoption of a six-year old child, who I will call RML, in favour of proposed adoptive parents, JMVC and PWC. The application was commenced by the Secretary of the New South Wales Department of Communities and Justice (the Secretary) on 25 June 2018.
The application is opposed by RML's birth mother, LDC, who has been joined as a party to the proceedings and filed an appearance on 15 August 2018. RML's birth father, LRL, does not consent to the adoption but has not filed an appearance (see the first affidavit of the Delegate, dated 19 June 2018 (First Affidavit) at [173]-[178]). For completeness, I note further that the evidence suggests that the birth father accepts the likelihood that an adoption order will be made, and is happy for RML to remain living with the proposed adoptive parents.
Consequently, the Court will not be able to make the adoption order sought by the Secretary unless it makes additional orders sought, being orders pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) (the Act) that the consent of LDC and LRL be dispensed with.
The Secretary also seeks an order approving the surname of the proposed adoptive parents as the surname of RML, and RML as the given names of the child. Thus, RML will retain her present surname as a given name, if the order sought is made.
The maternal adoption plan has been signed by the proposed adoptive parents, a Delegate of the Secretary and LDC, against the possibility that the Court will make an order for the adoption of RML.
There is also a paternal adoption plan, which has been signed by the proposed adoptive parents and a Delegate of the Secretary but which has not been signed by LRL.
The Court has not been asked to register either the maternal adoption plan or the paternal adoption plan.
[3]
The legal framework
The Act contains a number of essential requirements which must be satisfied before the Court may consider whether the criteria contained in s 90 of the Act for the making of an adoption order have been satisfied. For the reasons set out briefly below, I am satisfied that these prerequisites have been established in the present case.
The Court has jurisdiction to make an order for the adoption if the child and the adoptive parents are present and reside in New South Wales, as required by ss 23(2) and 28(1)(a) of the Adoption Act. As the evidence is clear that they live in New South Wales this requirement is satisfied (see affidavits of the proposed adoptive parents, and the First Affidavit at [145]).
Section 24 of the Act describes who can be adopted in New South Wales. Section 24(1)(a) states that an adoption order may be made in relation to a child who is less than 18 years of age on the date on which the application for the order was made. As the child is less than 18 years of age, she is a child who can be adopted.
Section 26 of the Act provides that an application for an adoption order may be made in accordance with the Act solely by or on behalf of one person or jointly by or on behalf of a couple. In this adoption application, the Secretary made the application on behalf of a married couple, being JMVC and PWC.
Section 28(1) provides for the basic requirements that must be satisfied in relation to adoption by a couple. Section 28(1)(a) requires that both of the adoptive parents are resident or domiciled in New South Wales, which is satisfied as stated above. Section 28(1)(b) requires both of the adoptive parents to be of good repute and fit and proper persons to fulfil the responsibilities of parents. It is clear that the proposed adoptive parents meet these requirements based on the evidence that has been submitted to the Court. The First Affidavit, in pars [147]-[151], explains that the proposed adoptive parents were assessed to determine their suitability to be approved to adopt pursuant to the Act (among other requirements), and following the assessment process they were both deemed to be fit and proper persons to adopt the child pursuant to the Act. In addition to that, affidavits of referees provided very positive support for the character and capabilities of both of the proposed adoptive parents, and for the adoption itself to occur. The section 28(3)(a) requirement that each of the adoptive parents must be 21 or more years of age, and 18 or more years older than the child, is clearly satisfied in this case. Further, section 28(4) requires that the couple must have been living together for a continuous period of not less than two years immediately before the application for the adoption order. This requirement is satisfied because the proposed adoptive parents have lived together at their current address since 2010.
I note, for completeness, that the Minister, by her Delegate, gave consent to the adoption on 11 December 2017 (as required by s 87 of the Act), and that both the birth mother and birth father were provided with the mandatory written information in mid-2016 (as required by s 59 of the Act).
[4]
Legislative framework
Section 90 of the Act relevantly provides as follows:
90 Court to be satisfied as to certain matters
(1) The Court must not make an adoption order in relation to a child unless the Court is satisfied:
(a) that the best interests of the child will be promoted by the adoption, and
(b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and
(c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child - that the prospective adoptive parent or parents have been selected in accordance with this Act, and
(d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and
…
(h) in the case of a child (other than an Aboriginal or Torres Strait Islander child) - that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.
(2) 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.
(3) 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 than any other action that could be taken by law in relation to the care of the child.
As s 90(1)(d) has the effect that the Court must not make an adoption order unless it is satisfied that consent to the adoption of the child has been given by every person whose consent is required under the Act, or that consent has been, or should be, dispensed with, the fact that both birth parents have declined to consent to the adoption order means that the Court will be prevented from making that order unless it is satisfied that their consent should be dispensed with.
That is so because s 52 of the Act provides, relevantly, that the Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by each parent of the child. As RML is less than 12 years' old, the issue of the child giving consent to her adoption under s 55 of the Act also does not arise.
Section 67 of the Act sets out a number of circumstances in which the Court may make an order dispensing with the consent to the adoption of a person whose consent is otherwise required by the Act. Relevantly, s 67(1)(d) provides:
67 When can Court dispense with consent of person other than the child?
(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that:
…
(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers or the guardians for the child:
(i) the child has established a stable relationship with those carers or guardians, and
(ii) the adoption of the child by those carers or guardians will promote the child's welfare, and
…
(2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.
…
It is accepted by all parties that JMVC and PWC are authorised carers of RML, so s 67(1)(d) may apply. I am satisfied that the evidence discloses that notice of the adoption and the consent dispense orders sought was provided to the birth parents and that they have had more than 14 days to respond to it (in satisfaction of ss 72(1) and 88(4) of the Act).
It is also clear on the evidence, and accepted by the birth parents, that RML has established a stable relationship with JMVC and PWC.
After hearing the matter and reading all of the evidence before the Court, I find that there is also no basis for disputing that the adoption of RML by JMVC and PWC would promote RML's welfare. That is a different question to whether 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, as is required by s 90(3) of the Act.
However, s 67(2) of the Act also provides that the Court must not make a consent dispense order unless satisfied that to do so is in the best interests of the child.
Thus, the best interests of the child is the paramount criterion for deciding whether an order should be made dispensing with the consent of the birth parents, and also it is a condition under s 90 of the Act for the making of an adoption order in relation to the child. In a practical sense, the question of whether consent should be dispensed with, and whether an adoption order should be made, tend to be subsumed into each other, because, if the Court is satisfied that the best interests of the child will be promoted by the adoption, it is likely to follow that it is in the best interests of the child for parental consent to be dispensed with. As Brereton J said in Adoption of JLK and CRK [2017] NSWSC 7 (Adoption of JLK and CRK) at [16] (footnotes omitted):
…In 2006, however, 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, as enabling consent to be dispensed with where adoption would enhance a 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). As has been observed, the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child's present situation. Essentially, this reflects a policy that once a child has, by judicial decision, been removed from his or [her] 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, if the court is satisfied that the interests of the child will be best served by adoption. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child. Where, as here, the proposed adoptive parents are authorised carers pursuant to a care order of the Children's Court, and the children are in a well-established and stable relationship with them, the court's reluctance to make a consent dispense order is much diminished, and the question is essentially subsumed into the issue [of] whether adoption will serve the best interests of the children.
The Act contains a statement of its objects and the adoption principles that are to be applied by the Court, and these must be acknowledged. As stated in s 6, the provisions of Chapter 2 of the Act "…are intended to give guidance and direction in the administration of this Act…"
Section 7 of the Act provides, so far as is relevant to these proceedings:
7 What are the objects of this Act?
The objects of this Act are as follows:
(a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,
(b) to make it clear that adoption is to be regarded as a service for the child concerned,
(c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,
(d) to recognise the changing nature of practices of adoption,
…
(g) to encourage openness in adoption,
…
Further, s 8 relevantly includes:
8 What principles are to be applied by persons making decisions about the adoption of a child?
(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles:
(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,
…
(2) In determining the best interests of the child, the decision maker is to have regard to the following:
(a) any wishes expressed by the child,
(b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,
(c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity,
(d) any disability that the child has,
(e) any wishes expressed by either or both of the parents of the child,
(f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,
(g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,
(h) the nature of the relationship of the child with each proposed adoptive parent,
(i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,
(j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,
(k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child's circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.
Section 9 of the Act also makes provision to ensure that the child is able to participate in any decision made under the Act, but, as provided in sub-s (2), "…due regard must be had to the age and developmental capacity of the child." As RML is only six years' old, and has disabilities and health issues which impair her cognitive functioning and which will be considered below in more detail, it is not feasible for her to participate meaningfully in any of the decisions that are required to be made in relation to the application for her adoption, and related matters. The author of the report required by s 91 of the Act reported that RML is too young to comprehend the concept of adoption (a position which was echoed at [144] of the First Affidavit). I accept this evidence. However, the author of the s 91 report also said, and I accept, that RML does not recall a time when she was in the birth mother's care and has no memory of parents other than the proposed adoptive parents (despite RML understanding that she has "another Mummy and Daddy").
It may be appropriate now to make brief note of the fact that the author of the s 91 report gave oral evidence at the hearing on 26 August 2019. This was important, because the s 91 report was authored in 2017 and significant events have occurred in the life of the child and the other parties in the intervening period. The author's oral evidence given at the hearing included that she held the same conclusions as were expressed in the s 91 report, even given the changed circumstances that she was aware of. The author also made mention of the fact that certain views expressed in the report were now held by her even more strongly, precisely because of the changed circumstances. I extract the following oral evidence from the examination in-chief of the author of the s 91 report, at T40.13:
Q. Section 12 of your report, under the conclusion, you consider a number of the alternatives for adoption and you provide therein your opinions as to whether or not each of them would be a desirable outcome in [RML's] case. Just considering them perhaps individually, is there anything in terms of [RML's] current presentation that would make an adoption order more or less preferable from your position? Or is there no change in relation to your opinions there?
A. No, I think there is change, and that is that for children who have particular difficulties and medical issues, I think it's more important they have the stability of adoption. It's very difficult when they have - they have to invite the constant intervention of the department in consent for surgery, consent for medical procedures, transport, all those issues, take away..(not transcribable)..and it makes it very difficult for - for families to accommodate these - these medical issues when you have the department involved. So I actually think it's far more important for her to have the stability of adoption and that life-long commitment from her carers than it was before.
I note that I found the author of the s 91 report to be a credible witness, and I accept that the views expressed in that report can be considered current.
[5]
Case features
RML was born on 27 May 2013, and has lived in the care of the proposed adoptive parents continuously since 4 December 2015. The child was taken from the birth mother's care due to substantial and well-founded concerns regarding the health, safety and wellbeing needs of the child not being met. The child and the proposed adoptive parents have clearly formed a strong, loving and admirable bond, described as follows at page 10 of the s 91 report:
[RML] is clearly adored by [the proposed adoptive parents] and their interactions are relaxed and full of affection…[RML] was observed on several occasions with [the proposed adoptive parents], and appeared quite comfortable to climb upon their knees or to seek and give affection in the way of cuddles and kisses. [RML] sought them out when looking for affirmation…[The proposed adoptive parents] treat [RML] as part of their family and it is evident that they could not treat her differently if she were their biological child.
On 11 December 2015, the Children's Court made an interim order allocating parental responsibility for the child to the Minister. The birth mother was legally represented in these proceedings. On 5 April 2016, the Children's Court made final orders allocating parental responsibility to the Minister until RML attains the age of 18 years.
It is a tragic circumstance of this case that RML has suffered, and continues to suffer, from very serious health issues. This year, a four-centimetre tumour was found in RML's brain. The tumour was operated on and the child was discharged from hospital on 2 August 2019. However, the operation removed only roughly 85-90% of the tumour, such that RML still has a tumour in her brain which will require continued monitoring and possible further surgery in the future. The surgery has also resulted in RML suffering significant disabilities, including total incontinence, and speech and movement impediments, and the medical evidence is unclear as to whether RML will ever fully recover from these disabilities. The third affidavit of the Delegate, affirmed on 7 August 2019 (Third Affidavit), states that RML is continuing with physiotherapy, occupational therapy and speech therapy, as she slowly recovers from brain surgery. At page 13 of the exhibit to the Third Affidavit, there is some significant evidence found in a letter dated 5 July 2019 from the paediatric haematologist/oncologist and a neuro-oncology clinical nurse which gives a further indication of the potentially very serious medical procedures that RML may require going forward, which I extract as follows:
…There is approximately 10-15% of tumour remaining, which was not removed as it was in a sensitive area of the brain…we currently recommend a watch and wait approach with a focus on [RML's] rehabilitation. [RML] will therefore require regular MRI scans, initially every three months, to monitor the residual tumour. There is a possibility that the residual tumour will start to grow again. If it were to grow and start to cause a problem, we would consider further surgery. However due to the critical location of the residual tumour this may not be possible. In this case the treatment would be chemotherapy. Chemotherapy would involve [RML] being treated for a full day almost every week for a period of approximately 15 months. Some treatment may be able to be done locally in Port Macquarie, but she will also require regular trips to Sydney for treatment. There will be occasions outside of the planned treatments where [RML] will need to be admitted to hospital for the management of side effects caused by chemotherapy…
At page 14 of the exhibit to the Third Affidavit, there is another letter dated 30 July 2019 from an occupational therapist, physiotherapist, speech pathologist, social worker and paediatric rehabilitation fellow which outlines RML's special needs resulting from her brain surgery, as follows:
…[RML] is a 6 years old [sic] girl who suffered significant neurological symptoms from her neurosurgery to resect a brain tumour in June 2019. She presents with marked difficulties to control her movements for arms, legs as well as core, making it hard to walk or be independent in her every day activities. Following her surgery [RML] has a speech impairment making it quite difficult for her to communicate at the normal speed and volume that would be expected for a child her age. This impacts on her ability to keep up with conversations with her peers. She also has been incontinent for both urine and bowels since her surgery. The above mentioned symptoms are permanent impairments resulting in life-long disability and the improvements expected in the next few months should not have a significant change on her current functioning requiring the need for NDIS funding…
Prior to RML's brain surgery, she was incontinent for urine but not in respect of her bowels. This urinary incontinence was found to be linked to her trauma as an infant, while in the care of the birth mother. I note here, for completeness, that RML has also suffered from attachment disorder. As per the second affidavit of the Delegate, sworn on 17 April 2019 (Second Affidavit), the proposed adoptive parents are working collaboratively with a paediatrician and child psychologist to address the incontinence issues. A separate paediatrician has also determined that RML has maladjusted bowel muscles and needs additional prescribed formulas in order to assist her.
The Second Affidavit also provided evidence that RML has a hernia in her groin and that the medical recommendation is for it to be repaired through surgery. As far as the Court is aware, RML has been placed on a waiting list for this surgery.
RML also has severe mitral valve incompetence, a congenital and significant heart condition that the evidence shows is stable but ongoing. After undergoing cardiac surgery at eighteen months of age, RML's condition is now monitored by a paediatrician every three months and by a cardiologist annually. The s 91 report notes that the proposed adoptive parents have been diligent in maintaining these appointments.
In short, the evidence is clear that RML has health risks and needs at the highest possible level of significance. As a matter of practicality, RML's health issues will require ongoing review and assessment, by many different medical specialists, possibly over a lengthy period of time and perhaps for her whole life.
At the hearing, the proposed adoptive parents gave oral evidence (which was not challenged and which I accept) about RML's then current state of health. RML was said to have been improving slowly since the brain surgery and was spending short periods of time at school (accompanied at all times by JMVC). However, there were clearly ongoing difficulties with mobility, endurance, fine motor skills, speech, and continence. RML continues to require the regular assistance of physiotherapy, speech therapy and occupational therapy, and regular medical reviews (including requiring travel to Sydney). It is not likely that RML will be able to return to school on a full-time basis until at least next term, and her school has applied for funding for a teacher's aide for her.
At T10.32, JMVC gave oral evidence regarding the fact that RML's health issues are currently preventing her from working. Importantly, JMVC said that:
"…I'm not working and am there for [RML] 24/7 now, but yeah, we adore her and yes, want to continue with the adoption as ever."
To her credit, at T26.46, JMVC confirmed her evidence to the effect that RML's health issues have not impacted on her decision to seek the adoption of RML:
"Q. Does anything about [RML's] condition and her brain surgery and the impact that it's had on her functioning, does it affect in any way your decision to proceed with an adoption for [RML]?
A. No, it doesn't - doesn't change our plan to proceed with adoption in any way."
Despite this, there can be no doubt whatsoever that RML is suffering from very serious health issues and that her needs will continue to require a very substantial commitment from those in charge of her care, both financially and in terms of time, energy and devotion. It may be appropriate at this stage to briefly note also that JMVC is a "student support worker" at a primary school, while PWC is a "disability advocate" employed by Advocacy Law Alliance. At the hearing, PWC gave oral evidence (which went unchallenged and which I accept) to the effect that his professional role as a disability advocate gave him a valuable insight into looking after RML and her needs both now and in the future.
Putting to one side RML's health for the moment, I note that the proposed adoptive parents, in their affidavits sworn 20 June 2018, said that they are Anglo-Australian and Christian, and intend to rear the child in the same faith. The evidence before the Court is that the birth parents are of Anglo-Australian birth as well, and have no specific requests regarding religion.
The evidence also clearly establishes that the proposed adoptive parents support RML's needs insofar as birth family contact and life story and cultural knowledge work is concerned, including through creating photo albums for her, engaging in sensitive conversations with her, and planning activities (including those that connect RML with the Aboriginal heritage of her half-siblings) and birth family visits for her. The First Affidavit, at [142], states as follows:
Family and Community Services' files and Wesley Dalmar files indicate that [RML] understands she has another family. [RML] has photos of her birth family displayed in her bedroom. [RML] calls her mother "mummy [L]". The mother gives the proposed adoptive parents family photos for [RML] to keep. The proposed adoptive parents take photos of [RML] and her mother and siblings at their contact visits.
Further, page 9 of the s 91 report discloses that:
[The proposed adoptive parents] are highly supportive of birth family contact and recognise the importance of maintaining the relationships between [RML], her parents, her siblings and extended family. They recognise the importance of this for identity, but also for establishing a basis for relationship which will endure into adulthood for [RML].
I note that the maternal adoption plan provides for birth family visits at least every two months, but that the birth mother and proposed adoptive parents made it clear in their evidence (including in oral evidence at the hearing) that they hope and expect that monthly contact will continue to be arranged as is currently the case.
As an aside, the evidence discloses that one of RML's half-siblings, whom I will call "RR", has also stayed with the proposed adoptive parents from time to time. The maternal adoption plan states that the proposed adoptive parents are happy to continue to provide respite weekend assistance to RR. This arrangement is indicative of the proposed adoptive parents' openness to RML knowing and having strong connections with her birth family.
Finally, and for completeness only, I should note that JMVC, in her affidavit sworn 20 June 2018, has told the Court that she suffers from episodic non-melancholic depression, which is managed through medication, healthy lifestyle and counselling. At the hearing, the proposed adoptive parents were cross-examined about JMVC having this diagnosis. I do not propose to say much about this, other than that the evidence satisfies me that the proposed adoptive mother has insight into her mental health needs, and that they are appropriately managed by medication, lifestyle choices and counselling. There is no evidence that suggests that her condition has any material impact on her capacity to parent RML. It is also open to the Court to think that someone such as JMVC, who clearly has a very good degree of insight into her condition and takes active steps to manage it, might even be better suited to parenting than someone with no disclosed mental health issues. This is so because common sense and experience might suggest that all parents will go through certain difficult periods, and that those with awareness and insight into themselves and their needs may be better able to manage difficulties than those without such insight. However, as this is not a matter that needs to be decided in this case, I propose to say nothing more about it here.
[6]
Position advanced by LDC
As is her right, LDC was not legally represented and chose not to advance a position at the preliminary hearing before me on 29 April 2019. On that date, I gave LDC additional time to secure Legal Aid representation, which I understand she did procure. LDC was represented by a solicitor and by counsel at the hearing on 26 August 2019.
The position that LDC has taken in these proceedings is that she accepts that she is not currently in a position to have RML restored to her care, and she also accepts that the proposed adoptive parents have created a supportive environment for RML that is in RML's best interests to remain in (at least for now).
However, LDC opposes the making of an adoption order in respect of RML on the ground set out in s 90(3) of the Act, being that the making of an adoption order would not be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to her care. Importantly, LDC does not seek that any other order be made and only impressed upon the Court that the adoption order should not be made.
In relation to what is meant by "clearly preferable" in s 90(3) of the Act, counsel for the Secretary made the following submission at [59] of his written submissions, which I accept:
The reference to "clearly preferable" does not require satisfaction "beyond reasonable doubt" but requires that adoption be "obviously, plainly or manifestly" preferable to any other action that could be taken by law: Re D, Application of A [2006] NSWSC 1056 at [53]; Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762 at [25] per Brereton J. This is "something more than a slight preponderance of considerations in favour of adoption over the alternatives": Adoption of RCC and RZA (supra) at [14] per Brereton J. It will require "a degree of conviction in favour of adoption which is commensurate with the gravity of the decision": Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926, Bergin CJ in Eq at [99].
I will return to a consideration of the application of s 90(3) of the Act in accordance with these principles in the "decision" section below. I note, however, that a consideration of the application of s 90(3) requires the Court and the parties to identify the other actions that could be taken by law, in relation to the care of the child, whose preferability must be compared to the making of an adoption order. As LDC has not asked the Court to make any alternative orders in relation to the parental responsibility for the child, and has only opposed the making of an adoption order, the kinds of issues that I discussed at length in Adoption of IEK [2019] NSWSC 171 at [113]-[156], and in Adoption of PRC [2019] NSWSC 855 at [28]-[52] do not arise.
In her affidavit filed in Court on 26 August 2019, LDC reiterated that she opposes the adoption being made and intends to seek restoration of the child to her care at an indeterminate time in the future. At [24] of her affidavit, LDC also said as follows:
I believe that this adoption will permanently separate [RML] from her biological family and when she grows up, her connection to her community and sense of family will forever be damaged…
In oral evidence, LDC outlined further concerns that her child does not interact with her in the way and with the affection that LDC expects. LDC, at least in part, blamed this on the proposed adoptive parents, as well as the fact that contact visits did not enable her to spend one-on-one time with RML.
Finally, it was put by counsel for LDC throughout the hearing that, while the care and commitment of the proposed adoptive parents could not be impeached, an adoption order was not clearly preferable in the circumstances for a variety of reasons (including consideration of any damage that might be done by the making of an adoption order, and that a parental responsibility or guardianship order would achieve all that the Secretary was proposing to achieve with an adoption order).
[7]
Decision
The power of the Court to make an adoption order is derived from s 23 of the Act, but an adoption order cannot be made unless the conditions specified in ss 87 to 91 of the Act are satisfied. It is clear that the conditions in ss 87 to 89 and 91 are satisfied, and there was no issue between the parties about the satisfaction of those conditions. The dispute between the parties was as to whether the requirements of s 90 of the Act have been satisfied.
Preliminarily, I should make it clear that I found all witnesses to be generally truthful and credible, in that they all appeared to me to give their evidence to the best of their recollection and ability.
The first matter in issue was whether the best interests of RML will be promoted by the making of an adoption order (s 90(1)(a)), which is related to the requirement in s 90(3) that the making of an adoption order must 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.
It appeared to me that LDC opposed the making of an order by the Court dispensing with her consent, as is required in the present case by s 90(1)(d) of the Act.
However, LDC did not suggest that s 90(1)(b) of the Act was not satisfied because the wishes and feelings of RML had not been ascertained and due consideration given to them. I have explained above that RML does not really understand the meaning of adoption, which the parties appeared to accept.
It is clear that JMVC and PWC have been selected in accordance with the Act, as required by s 90(1)(c). To this I would add that the attitude of the proposed adoptive parents towards RML and the unusually serious and difficult responsibilities of being her permanent carers is admirable. Their commitment to ongoing contact with the birth family, their advocacy for RML in obtaining support for her medical needs, and their continued wish to adopt RML in the context of RML's significant and distressing health issues is worthy of mention.
It may also be appropriate here to mention that, in cross-examination during the hearing, the proposed adoptive parents confirmed that they intend to continue looking after RML, including facilitating birth family contact and culture and identity work, regardless of the outcome of these proceedings. While this evidence may ostensibly suggest that an adoption order is not needed, there may be many benefits of adoption even if the adoptive parents show a deep commitment to the child. Further, that commitment may be precisely one of the reasons why the child being a permanent legal member of the adoptive family might be thought to be most preferable.
LDC has not specifically suggested that any of the matters set out in s 90(1)(h) of the Act, such as the culture, religion and identity of RML, have not been taken into account. LDC did express some concerns about adoption leaving RML without a sufficiently strong connection with her birth family, including the Aboriginal heritage of her maternal half-siblings, but I am satisfied that those matters have been properly addressed in the decision to make the application for the adoption order and in the preparation of the adoption plans.
I note here that the maternal adoption plan provides for appropriate arrangements for contact between RML and the birth mother, five maternal half-siblings, the maternal grandmother, and the maternal aunt and her children. Such contact visits will take place no less than once every two months, for a minimum of two hours, noting again that the parties hope and expect to facilitate contact on a monthly basis. The maternal adoption plan also contains provision for supervisory support for six months (and up to twelve months), and financial support for the birth mother to help her meet any transport and activity costs. The child's identity and cultural needs are also addressed through provisions dealing with the exchange of information, photographs, gifts and news.
The relevant parties have agreed to the terms of the maternal adoption plan, and, other than the birth father, have agreed to the terms of the paternal adoption plan. I am satisfied for the purposes of s 90(2) of the Act that the arrangements contained in the adoption plans are in RML's best interests and are proper in the circumstances. In reaching this conclusion, I have accepted the evidence that the birth father did not continue a relationship with the birth mother after the child's birth, and that the birth father has only had contact with RML approximately three times since her birth. There is evidence from the Third Affidavit regarding certain aggressive and irrational text messages sent by the birth mother to the proposed adoptive parents, but I am satisfied that the birth mother has shown genuine remorse and that the relationship between the parties is sufficiently amicable to facilitate the contact arrangements as set out in the maternal adoption plan.
As noted above, LDC feels that her relationship with RML has suffered without one-on-one contact, and in circumstances where she has also alleged that the proposed adoptive parents treat RML as their child rather than LDC's. All that need be said in response to this is that, while the Court sympathises with a birth mother who feels that the present contact arrangements are less than ideal in facilitating her relationship with her biological child, the Court is under an obligation under the Act to treat the child's needs as the paramount consideration at all times. In my view, it is entirely appropriate in the circumstances of this case for the child, who has the serious and ongoing health issues that I have outlined above, to have the presence and support of the proposed adoptive parents at contact visits. It is equally appropriate for a child in such a position to require the strength, comfort and stability that may come with believing and feeling that her carers are "her parents", notwithstanding the important connection that will continue to be fostered between RML and her birth family. These findings have nothing to do with the birth mother's attitude or affection towards the child, and have everything to do with the fact that the child is incredibly vulnerable and clearly relies heavily for the satisfaction of her physical and emotional needs on the two people whom she lives with and who are her primary caregivers. I hope very much that there will come a time at which RML is sufficiently physically and mentally strong that one-on-one contact with her birth mother is something that RML seeks and which is also in her best interests. Certainly, RML's relationship with LDC is an important one. However, seen through the lens of the child's needs, and not the birth mother's, it is clear that this time has not yet come and may not come for many years. It was clear to me, from their cross-examination at the hearing, that the proposed adoptive parents will support RML if she seeks one-on-one time with LDC at an appropriate point in the future.
Further, I am satisfied that LDC's fears concerning the permanent separation of RML from her birth family are not well-founded. The principle of open adoption in this State and under the Act clearly intends that children will have all the benefits that a permanent adoptive family can bring, along with all the benefits that maintaining a strong and positive connection to the child's birth family can bring. The arrangements contained in the adoption plans are in RML's best interests and are proper in the circumstances, precisely because they facilitate such strong and positive connections to be maintained and to flourish between the child and the birth family.
It is appropriate now to turn to the paramount question, which is whether the making of the adoption order will be in the best interests of RML and whether such an order will be clearly preferable in the best interests of RML than any other action that could be taken by law. For the reasons that I have explained above, the answer to that question is linked to that which arises under s 67(2) of the Act, which precludes the Court from dispensing with the birth parents' consent unless satisfied that to do so is in the best interests of RML.
In addressing these questions, I have had regard to the objects of the Act listed in s 7, and all of the relevant matters specified in s 8 of the Act. I have already explained above why s 9 does not require RML's participation in the decision in this case.
At the preliminary hearing before me on 29 April 2019, the proposed adoptive mother gave the following evidence in Court about why the adoption is in RML's best interests (at T8.42):
Q. Why do you say adoption would be different to the situation you're in at the moment?
A. I think it's just the permanency of adoption that it's a forever home for [RML] and, yes, it's something that she wants to stay with us and to live with us for ever [sic] and that reflects that. I think it makes it more natural as well as she becomes just more like a natural daughter for us and in our family.
In their affidavits sworn 20 June 2018, the proposed adoptive parents argued again that the adoption is in RML's best interests because:
1. JMVC, at [42]: "…[adoption] will provide security through a permanent home for her…[RML] is settled with us…[and] already calls us "Mummy" and "Daddy", so adoption would legally recognise these pre-existing relationships"; and
2. PWC, at [42]: "…[adoption] will secure a permanent and stable family home for [RML] for life. Even when [RML] has grown up and left home, she will always have a home to return to…and an inheritance to get her established."
During the hearing on 26 August 2019, it was put by counsel for LDC to the proposed adoptive parents that a parental responsibility or guardianship order would achieve all that they were proposing to achieve with an adoption order. In summary, the proposed adoptive parents responded by accepting that such orders would remove the requirement for sign-off from the Department on crucial matters relating to the child, but reiterating that adoption would give the child a greater sense of permanence, and enhanced rights and status as their daughter.
The First Affidavit, at [190], contains a similar conclusion which I extract as follows:
I am of the view that there are distinct advantages in adoption for [RML]. The permanence of an adoption order will create stability for [RML] and provide her with a sense of belonging which cannot be achieved in long term foster care or under an order for parental responsibility to be allocated to the proposed adoptive applicants.
The s 91 report, at pages 11 and 12, outlines the various alternatives to adoption and explains why the author believes adoption to be the most preferable outcome. It is worth extracting several key passages, as follows:
[Regarding maintaining the status quo] Children in long term out of home care experience significant stigma and are required to accept the ongoing supervision and intervention of FaCS [now the Department of Communities and Justice] or an agency. This can often be an imposition on "normal" family life, particularly in families where permission to travel interstate is a regular requirement. [The proposed adoptive parents] have demonstrated their capacity to manage without the ongoing support of outside parties, and for the sake of normality in [RML's] life, should be given the opportunity to do so. Remaining under the Parental Responsibility of the Minister is not considered the best option for [RML].
[Regarding a parental responsibility or guardianship order] While a guardianship order would give [the proposed adoptive parents] the independence and autonomy they seek in caring for [RML], it still leaves open the possibility of Sn 90 applications for variation of the order by either parent which undermines the sense of permanence for [RML] and the family. Further, such an order expires when [RML] reaches 18 years, and does not recognise the life long commitment which [the proposed adoptive parents] are seeking to make to [RML].
[Regarding an adoption order] The adoption of [RML] by [the proposed adoptive parents] would provide [RML] with a permanent family who have already demonstrated their commitment to her, as well as their capacity to respect and accommodate her family of origin. [The proposed adoptive parents] have the capacity to provide [RML] with a permanent family where she will have the stability and security [sic]. An adoption order is irrevocable, providing [RML] and the family with the absolute certainty of permanence without any threat of future Sn 90 applications. It will allow [the proposed adoptive parents] to make important decisions for [RML] without the ongoing intervention of FaCS or other agencies, and will provide [RML] with a life long connection to this family. I believe that an adoption order is in [RML's] best interests and will best meet her needs now and throughout her life. It is my opinion that adoption is clearly preferable to other orders which might be considered.
In short, I have considered the arguments put forward by LDC carefully, but I am satisfied by the evidence that the conclusions expressed by the Delegate of the Secretary and the author of the s 91 report are correct, and that the making of an adoption order as sought is clearly preferable to any other action that can realistically be taken at law.
The following statements regarding the benefits of adoption, which were made by Brereton J in Adoption of NG [2014] NSWSC 680 (Adoption of NG) at [76]-[81], contain much of relevance to the present case and I respectfully extract them here:
[76] First, an adoption order will provide certainty and permanence for the child, both directly, and indirectly through the additional certainty it will afford the adoptive parents. The possibility of further changes, disruptions and separations will be minimised. The aspirations to restoration expressed by both birth parents, and re-affirmed by the mother in her oral evidence, however improbable as an outcome, will be practically foreclosed…In these ways, and others, adoption will contribute to providing for the child the stability, security and certainty that he plainly needs, and will be an important aspect of mitigating his current insecurity…
[77] Secondly, the child would be raised in a legally recognised family, rather than remaining a State ward for the duration of his childhood. He would no longer be in "out-of-home" care, but in "in-home" care. The need for departmental intervention in his care, and departmental approval for significant decisions of the applicants, would be removed, as would be the stigma potentially associated with being a State ward.
[78] Thirdly, 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. His membership of the family that he regards as his own would be perfected, providing him a sense of security and permanent belonging in that family. And the child would be a member of the family not only during childhood, but for life.
[79] Fourthly, 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.
[80] While an adoption order would, of course, legally sever the parental relationship between the child and the birth parents, they are relationships which, in reality, have been practically devoid of parental responsibility. An adoption order would in fact serve the child's identity needs by perfecting his membership of the family with which he identifies, while providing a more secure foundation for an ongoing relationship with the birth parents through contact, which the applicants will be better able to support and facilitate when relieved of the insecurity or doubt that might attend it if some prospect of restoration remained open.
[81] Adoption carries a risk that the child may feel unwanted or abandoned. 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 is 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, has an understanding of their situations, and will continue to have a relationship with them. While the legal relationship with the birth parents would be severed, they would not cease to be his birth parents; the relationship with them will be maintained through contact, and legal parenthood would appropriately reside with those who are discharging the responsibilities of parenthood.
As noted above, in the circumstances of the case now before me, LDC did not ask the Court to make any order other than an adoption order and simply said that the Court should not make the adoption order sought. This position requires the Court to assess the likelihood of alternative options in a hypothetical manner, and it is appropriate to do so very briefly now.
First, I will deal relatively quickly with the option of delaying the decision, stated alternatively as 'maintaining the status quo'. Having considered the issue carefully, I respectfully agree with the submissions of the plaintiff to the effect that the current arrangement lacks permanency, involves the Department in decision-making to an unnecessary and burdensome degree, is likely to cause anxiety and instability for the child, and conveys no rights or responsibilities for the child in later life.
Secondly, restoration of the child to the birth parents will require either or both of them to apply for restoration, and then will require a judge of the Children's Court to decide to make that order. There is no evidence to suggest that the birth father will seek restoration, nor that such an application would have a reasonable likelihood of being successful. Further, while there is clear evidence before the Court that LDC wants to improve her living circumstances and her capacity to parent RML, there is no evidence before the Court that would allow it to conclude that this has a realistic possibility of occurring within a reasonable amount of time. Putting aside the inherent difficulties in predicting how any other judge might decide a given case, on facts which are presently unknown and at an indeterminate point in the future, I think that the benefits of an adoption order make it clearly preferable to maintaining the status quo in circumstances where it may take a long time, if ever, for either birth parent to make a successful application for restoration.
I note, for completeness only, that the Third Affidavit highlighted that the Department has received five 'risk of significant harm' reports in relation to RML's half-sibling, who is currently in LDC's care, between 13 September 2018 and 18 July 2019. The Court was invited to find that this shows a degree of inadequate supervision by LDC of the half-sibling, as well as highlighting concerns about LDC's drug use, the half-sibling possibly manifesting symptoms of trauma, and concerns about potential harms in the environment created by LDC for the child. In her affidavit, LDC denied that she uses drugs and generally objected to the way in which the Department had portrayed her parenting capacity. However, as the parties did not argue for restoration to LDC as an outcome which they sought in these proceedings, I have not found it necessary to rely upon the evidence to which LDC objects to any substantial degree.
Finally, LDC's case rested heavily on the argument that a parental responsibility or guardianship order would, for all intents and purposes, provide the same rights and stability for the child and the proposed adoptive parents, while reducing the perceived detrimental effects of adoption. This proposition was well-argued by counsel for the birth mother. However, as I mentioned above in the context of considering the likelihood of restoration, it is difficult to know whether it is a realistic possibility that such orders would be applied for by a party and granted by another judge on unknown facts and at an indeterminate time in the future. I also must face the inescapable fact that such orders do not offer the same degree of permanency, security and stability for RML that an adoption order will. This is so because either order could be rescinded, and neither order confers rights on or responsibilities for the child in later life.
Therefore, in my view, and for all the reasons outlined above (including those helpfully stated by Brereton J in Adoption of NG), an adoption order is clearly preferable in all the circumstances of this case. I am bolstered in this conclusion by the fact of RML's significant and ongoing health issues. It is worth restating that it was established in cross-examination that it has been necessary for JMVC to put her employment on hold in order to take care of RML. As stated at par [40] of the Secretary's written submissions:
[RML] will now require a much higher level of care going forward. [The proposed adoptive parents] are particularly well-equipped to meet [RML's] ongoing needs. [The adoptive father] works as a Disability Rights Advocate, and therefore has had professional experience in advocating for the health needs of others. [The adoptive mother] is a student support-worker at a primary school, and therefore has experience in providing educational support to others.
While I would hope that RML will overcome her disadvantages, there must be a real possibility that she will need ongoing special care and support past attaining the age of 18. The making of an adoption order, whereby RML will for all legal and practical purposes become a permanent member of the proposed adoptive parents' family, will facilitate the continuing availability to RML of all of the support that she may need.
An example of the connection between RML's serious health needs and the benefits of an adoption order can be found in the examination in-chief of the author of the s 91 report, from T41.8, which I extract as follows:
Q. Is there something which is less stable about any of the other options you've identified within section 12 there?
A. I think certainly restoration was out of the question at the time, and I understand that that still is the case. The alternative would be a guardianship order, and the instability of a guardianship order is that it's always open to appeals. And so - and it also concludes at the age of 18, whereas an adoption order gives children that absolute certainly [sic] that they're part of this family forever, and that it's not going to be constantly appealed.
Q. You refer there to the ending of the guardianship order at 18. Is there anything in particular about [RML's] current situation, as you understand it, from the material, that might mean that an order which lasts beyond the age of 18 has some benefit.
A. I think that as a - as a parent, as a legal parent of a child, if a child at the age of 19, 20, is - is in need of medical assistance or in need of care, that the status of the parent is higher than the status of a former guardian. You don't have that life-long connection to the child. And if [RML's] condition continues into adulthood, to actually have that security of a parent beside her, who knows her condition, who has cared for her all her life, I think carries far more weight than somebody who is a former guardian.
It is clear that some salient advantages of adoption include the legal recognition of RML's status in her adoptive family, legal permanence, improving RML's feelings of stability (in the context of her significant health problems), and providing RML with the same rights both now and in adult life as any other child that the proposed adoptive parents would have. To this I would respectfully add the comments of Brereton J in Adoption of BS (No 3) [2013] NSWSC 2033, at [55], as follows:
In 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.
Adoption has the benefit of being a profound symbol for the child and the proposed adoptive parents of their rights and responsibilities to one another, of acceptance and of belonging, and of love. The precise meaning of adoption as a symbol will likely differ from family to family, but no-one who has sat in on an adoption ceremony in this Court could suggest that such meaning is immaterial. When the adoption order is made, the child, whose interests are my paramount consideration under the law, will gain a subtle but profound deepening of her position in relation to her adoptive parents. She is gaining a family, in every sense of the word. In the circumstances of this case, I am satisfied that RML will receive what was intended by the Act - a new permanent family within which she can thrive, to the extent that her disabilities permit, as well as a continued and strengthening understanding of and connection with the family of her birth.
I will make an order for the adoption of RML by the proposed adoptive parents. All of the requirements of the Act are satisfied, although I have not necessarily seen the need to specifically refer to all of those requirements. That is in part because LDC has been legally represented, and only the issues in contention have been the subject of argument.
I will specifically note, as required by s 67(2) of the Act, that I am satisfied that it will be in the best interests of RML to make an order dispensing with the consent of LDC and LRL to the adoption of the child. That follows from the same bases that found my satisfaction that the making of the adoption order is clearly preferable to any other action that is available.
The only outstanding issue is the question of whether RML's name should be changed. As mentioned above, the change would give the child the same surname as the adoptive family, and she would retain her present surname as part of her given names.
Section 101(2) of the Act requires the Court, before changing the surname or given name or names of a child, to consider any wishes expressed by the child concerning the child's names. In the present case, RML is arguably old enough for any wishes that she had expressed on this subject to be given some weight. However, the evidence does not disclose any detailed or specific expression of RML's wishes.
The evidence from the Delegate (see First Affidavit at [179]) and the author of the s 91 report is to the effect that the proposed name change will strengthen RML's connection and sense of belonging in the adoptive family. At page 6, the s 91 report states as follows:
…[The proposed adoptive parents] clearly recognise the value of [the child] retaining her own name, but also want to ensure that [she] still recognises that she is a permanent member of their family and will remain so for life.
In her affidavit sworn 20 June 2018, JMVC has requested the addition of "C" to RML's existing names in order to consolidate RML's sense of belonging, and to increase the recognition of her status in the community (e.g. at school). Somewhat more directly, PWC's affidavit sworn on the same day requests the name change so as to reduce teasing by RML's peers and stigmatising of RML by adults.
At the preliminary hearing, the proposed adoptive mother also gave the following oral evidence (at T9.21):
Q. What's the advantage of that as you see it?
A. I think it just reflects her status in our family, that she's more part of a permanent part of our family.
Finally, I extract a passage from [75] of the plaintiff's written submissions as follows:
…[The addition of the surname] will reflect [RML's] place in the family and avoid undue attention. This is particularly where she has already entered school. It is also likely to enhance her sense of "belonging" in her new family.
In my view, for the above reasons, it is in RML's best interests that she be given the surname of the proposed adoptive parents, and I will make an order to that effect.
As the proposed adoptive parents have requested that the orders be made in Court, an arrangement will be made in due course for the proceedings to be listed for the making of orders.
[8]
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Decision last updated: 27 September 2019