Re M [2011] NSWSC 369
In the matter of D (A Child) [2014] EWFC 39
MacPherson v R (1981) 147 CLR 512
[1981] HCA 46
Oxfordshire County Council v X [2010] Fam Law 790
Re JLR [2015] NSWSC 926
Tomasevic v Travaglini [2007] VSC 337
Source
Original judgment source is linked above.
Catchwords
Re M [2011] NSWSC 369
In the matter of D (A Child) [2014] EWFC 39
MacPherson v R (1981) 147 CLR 512[1981] HCA 46
Oxfordshire County Council v X [2010] Fam Law 790Re JLR [2015] NSWSC 926
Tomasevic v Travaglini [2007] VSC 337
Judgment (7 paragraphs)
[1]
Background Facts
Ms L was born in December 1970. She is of Australian cultural heritage. She was married to her husband, OA, in April 2021. There are no children of their marriage. OA has written a statement setting out his observations of Ms L. No objection was taken to the statement.
Ms L is the second eldest of five children. She is the only daughter of her parents, both of whom are deceased. Her brothers are DL, ML, BJL, and JEL. Each of BJL and JEL has written a statement setting out his observations of Ms L. No objection was taken to these statements.
Mr K was born in December 1946. As stated, he died in March 2008. He had a Hungarian Jewish cultural background. He and Ms L were not married to each other but had lived in a long-term de facto relationship.
Andrew and Alistair have three siblings, being GS-P, who was born on 29 May 1999; GCJ, who was born on 21 October 2003; and JL, who was born 22 September 2010.
GS-P was adopted by her authorised Out of Home Carers pursuant to an order of the Supreme Court made on 2 March 2012. GCJ was adopted by her authorised Out of Home Carers pursuant to an order of the Supreme Court made on 9 February 2018. JL continues to live with his authorised carers since his entry into care on 2 August 2011. He is subject of a final order placing him in the parental responsibility of the Minister until he attains the age of 18 years.
On 3 March 2009, Andrew and Alistair were removed from the care of Ms L. The background for their removal does not require repetition. Andrew and Alistair were placed with Mr S and Mrs S on 4 March 2009. They have remained living with the proposed adoptive parents since that time.
On 15 November 2010, at the Parramatta Children's Court, the Final Order was made in relation to each, placing him under the parental responsibility of the Minister until each, respectively, attained the age of 18 years, and they were both placed under the shared parental responsibility of Mr S and Mrs S, initially for a period of 2 years.
There has been earlier litigation brought by Ms L in relation to her children. Again, it is unnecessary to detail the nature, and extent, of that litigation. It is only necessary to note that the final orders of the Children's Court remain undisturbed.
Andrew and Alistair have had regular and consistent contact with Ms L and with his maternal siblings, other than GS-P, who has chosen to have no contact with them for many years. Mr S and Ms S have continued to invite GS-P to family celebrations.
Andrew and Alistair have four paternal siblings, being AdK, AnK, IK and AbK. They have only met IK (in Israel where she lived at the time) and have expressed the view that they do not wish to meet the others at this time. Mr S and Mrs S have indicated a willingness to support Andrew and Alistair to meet the paternal siblings should they request to do so in the future.
Each of Andrew and Alistair has an established relationship with Mr S and Mrs S. There is substantial evidence to suggest that Mr and Mrs S treat each of Andrew and Alistair as their own children: Affidavit of Referee Bryce Vissel, 2 January 2023, Annexure A. There is no dispute that each is settled and thriving and that there is a close familial bond with Mr and Mrs S and their children SS and MS.
Andrew has a Hungarian Jewish background, while Alistair has an Australian Jewish background. Mr S has Austrian, Bosnian, Slovenian and South African Jewish heritage, whereas Mrs S has an Australian Jewish heritage: Affidavit of Delegate Courtney Anita Hendry, 9 February 2023 at pars 30-31.
[2]
Issues in dispute
As the Court has jurisdiction, as each of Andrew and Alistair is a person who may be adopted, and the proposed adoptive parents are persons who may adopt a child, the Court may make the adoption order if it is appropriate to do so. Whether it is appropriate to do so in the case of each is the principal matter for determination.
Pursuant to a direction of the Court, the Secretary and Ms L, on 24 April 2023, provided the Court with a List of Issues in dispute which I have amended slightly:
"1. Whether the best interests of each of the children will be promoted by the making of an adoption order, in particular in light of the alternatives to the making of an adoption order and the likely effect on each of the children, in both the short and long term, of changes in his circumstances caused by an adoption order, so that adoption is determined to best meet the needs of each, specifically as opposed to maintaining the status quo.
2. Whether the making of an adoption order is clearly preferable in the best interests of each of the children, respectively, than any other action which could be taken.
3. What are the wishes and feelings of each of the children, respectively, with respect to the proposed adoption, and what weight ought to be given to his wishes in the determination of the application, given his age, maturity, level of understanding and other relevant considerations?
4. Whether an adoption order will cause possible long term psychological damage to either, or both, of the children, including emotional and mental trauma, feelings of grief, loss and guilt, and issues with his identity and sense of belonging.
5. Whether the making of an adoption order will have negative impacts on the relationship each child has with his birth parent, siblings and other extended family members."
In this case, after the evidence was read, and Ms L was cross-examined and asked some questions by the Court, the sole question was distilled to be whether an adoption order should be made in respect of each of Andrew and Alistair. Whilst Ms L remained opposed to such an order being made, she seemed to accept that such an order should be made in respect of each of them. In so doing, I have no doubt that she was motivated by the overriding requirement pertaining to each child's best interests and she acknowledged that both Andrew and Alistair required the certainty that such an order would provide: Tcpt, 23 May 2023, p 38(45)-39(16).
[3]
The Legal Framework Regarding Adoption - Statutory Framework and Principles
It is unnecessary for me to rehearse, at any length, the legal principles which are well-known. However, it seems to me that the following principles should be mentioned for the benefit of the parties to the adoption.
I have taken what follows, principally, from my decision in Re WS (No 3) [2017] NSWSC 1160. This is principally for the benefit of Andrew and Alistair, should, in the future, each wish to read the reasons for making the orders that I shall make. Although I shall refer to the "child", on occasions in this part of these reasons, what is written applies equally to both Andrew and Alistair.
I shall not deal in this part with the parts of the Act to which reference has already been made.
Adoption, in its legal sense, has always been regulated by, and is purely a creature of, statute. There is no adoption at common law. Relevantly, the starting point in this case, is the Act, which commenced (ss 12 to 15, 18 and 19(1), and cl 3 of Sch 3, excepted) on 1 February 2003. It has been amended since then.
Whilst the Act contains objects, to which reference will be made, it does not contain any stated purpose for adoption. The Long Title, relevantly, refers to an Act "with respect to the adoption of children … and for other purposes".
Adoption exists to serve many social needs. An adoption order is status changing. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. The child becomes part of his, or her, adoptive parents' family, solely through operation of law, and there is no necessity for any actual blood relationship to exist between them. He, or she, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child: s 95(2)(c) of the Act. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act. The effect of an adoption order is to extinguish any parental responsibility of the birth parents. They no longer qualify as parents for the purpose of taking part in any future proceedings about the child. Thus, the adoption order directly affects three parties, namely the child, the birth parents, and the adoptive parents.
For the purposes of the application of the Succession Act 2006 (NSW) to the devolution of any property in relation to which a person dies intestate, and the construction of any disposition of any property, an adopted child is taken to be related to another person, being the child or adopted child of his, or her, adoptive parent, or parents, if he, or she, was adopted by 2 persons who are the spouses of each other jointly, and that other person is the child, or adopted, child of both of them, as brother or sister of the whole blood, and in any other case, as brother or sister of the half-blood: s 109 of the Succession Act.
The adoption creates a legal fiction: that a child is the child of parents with whom there is no biological relationship. For this, and other, reasons, adoption will be an extremely important step in the child's life, which will determine her, or his, identity and family relationships throughout her, or his, remaining life. Thus, the making of an order must be considered, not as a means of determining with whom a child is to live, but as a way of making a child legally part of a new family and severing any legal relationship with her, or his, birth family. In addition, adoption is something with lifelong implications.
As has been pointed out regarding the effect of an adoption order, in Oxfordshire County Council v X [2010] Fam Law 790; [2010] EWCA Civ 581; at [4]:
"It is important to remember that this is not just some legal fiction. As Thorpe LJ said in Re J (Adoption: Non-patrial) [1998] INLR 424 at page 429, the result of adoption is 'the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences.'"
In In the matter of D (A Child) [2014] EWFC 39, at [2], Sir James Munby wrote, in relation to an adoption order:
"For the child, an adoption order, as I recently had occasion to remark (Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam), para 54) "has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences." For the parents it means the permanent loss of their child. Whatever the ultimate decision, [the child] and his parents will have to live with the consequences for the remainder of their lives, in [the child's] case, given his age, potentially into the 22nd century."
After referring to what had been said by Sir James Munby, Lord Wilson of the UK Supreme Court, in "Adoption: Complexities Beyond the Law" (Speech delivered at the Denning Society Lecture at Lincoln's Inn, 13 November 2014):
"I totally agree. The [adoption] order is an act of surgery which cuts deep into the hearts and minds of at least four people and which will affect them, to a greater or lesser extent, every day of their lives."
(Perhaps, the reference to four people should, in the present case, be a reference to five people, when one includes the children, the birth mother, and the proposed adoptive parents.)
No doubt, for these reasons, Sackar J, as the then Adoptions List Judge, reminded all that "arguably the most important work at least in [the Equity] Division of the court by a very large margin … is determining applications for adoption": Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9].
I respectfully agree and consider an adoption order as one of the most, if not the most, significant, and, in human terms, far-reaching, of all orders available to a judge. As Sir Thomas Bingham wrote in Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, at 251G-H, an adoption order possesses "a peculiar finality".
Section 6 of the Act provides that the provisions of Chapter 2 are "intended to give guidance and direction in the administration of [the] Act. They do not create, or confer on any person, any right or entitlement enforceable at law".
Section 7 of the Act includes amongst the Act's objects, one to ensure that adoption law and practice "assist a child to know and have access to his or her birth family and cultural heritage" and "complies with Australia's obligations under treaties and other international agreements".
Under s 8(1)(a) of the Act, the "paramount consideration" in making a decision about the adoption of a child is the best interests of the child, both in childhood and in later life.
As I noted in Director General Department of Human Services; Re M [2011] NSWSC 369 at [89]-[90] (cited with approval by Bergin CJ in Eq in Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926 at [93]):
"Of course, and unsurprisingly, there is no definition of either of the terms "the best interests" or "the paramount consideration" in the Act. However, judicial statements as to the meaning of the latter term abound. The thrust of Australian authority is that "paramount" means "overriding": In the Marriage of Kress [1976] FLC 90-126; In the Marriage of H [1995] FLC 92-599 (at 81,974). The word does not indicate exclusivity.
The test to determine the best interests of the child cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. There must be a judicial evaluation and balancing of many factors from which an overall conclusion is reached on a concept that is inherently imprecise: Re B (A Minor) [2001] UKHL 70 at [16]; [2002] 1 All ER 641. The approach to be adopted is for the Court to weigh, and balance, those factors, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have."
When making a decision about the adoption of a child, the decision maker is also to have regard to other principles specified in s (8)(1) of the Act, including, relevantly:
"(b) adoption is to be regarded as a service for the child,
(c) no adult has a right to adopt the child,
(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."
The Court when determining the best interest of the child must have regard, as required by s 8(2) of the Act, to the principles at s 8(2)(a) - (k), namely:
"(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."
In cases such as this where the children are older and able to express views about the adoption, regard should be had to s 9 which, relevantly, provides:
9 Participation of child in decisions
(1) To ensure that a child is able to participate in any decision made under this Act that has a significant impact on his or her life, the decision maker is responsible for providing the child with the following:
(a) adequate information, in a manner and language that the child can understand, concerning the decision,
(b) the opportunity to express his or her views freely, according to his or her abilities,
(c) information about the outcome of the decision and an explanation of the reasons for the decision,
(d) any assistance that is necessary for the child to understand the information and to express his or her views,
(e) appropriate counselling when the child's consent is required to his or her adoption.
(2) In the application of this principle, due regard must be had to the age and developmental capacity of the child.
(3) Decisions about the adoption of a child that have a significant impact on the life of the child include, but are not limited to, decisions relating to the following:
(a) the placement for adoption of the child,
(b) the development of any adoption plan concerning the child and the views of the child's parents about the plan,
(c) an application for an order for the adoption of the child,
(d) contact with birth parents or others connected with the child.
Under s 90(1)(a) of the Act, an adoption order cannot be made unless the Court is satisfied that the child's best interests will be promoted by the adoption. Section 90(3) provides that adoption 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".
In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J at [14], stated that s 90(3) requires:
"… something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]]."
Brereton J, at [15], reiterated the principles that his Honour had previously expressed in Adoption of NG (No 2) [2014] NSWSC 680 at [16]-[17]:
"The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows:
- Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships;
- Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and
- Concerning the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them.
In addition, all these are informed by 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, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption."
In Re JLR, Bergin CJ in Eq similarly explained, at [99], that:
"The words 'clearly preferable' in s 90(3) do not require the court to be satisfied 'beyond reasonable doubt'. Rather "the word 'clearly' serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision": Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 at [53] (Palmer J) and that the order for adoption be "obviously, plainly or manifestly preferable" to any other alternative: Director-General, Department of Community Services NSW v D at [25] (Brereton J)."
There is one other principle I should mention. I wrote in Re the Adoption of AJH [2017] NSWSC 1751 at [297]:
"It is often referred to in the literature that a child placed with foster carers has an abiding need for a sense of security and identity and that she, or he, will feel most secure when she, or he, is assured that no one can take her, or him, away from the family of which she, or he, is a legal member. It is recognised that the sooner a child can feel this sense of security, the better for her, or his, development in the future …"
In reaching the conclusion, "a global, holistic evaluation of the options available for the children's future before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare" should be undertaken: Re G [2013] EWCA Civ 965. Each case is fact specific.
[4]
The Adoption Plan
Section 46 of the Act, relevantly, provides:
"46 What is an adoption plan?
(1) An 'adoption plan' is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to:
(a) the making of arrangements for the exchange of information between the parties in relation to any one or more of the following:
(i) the child's medical background or condition,
(ii) the child's development and important events in the child's life,
(iii) the means and nature of contact between the parties and the child, and
(b) any other matter relating to the adoption of the child.
…
(2) Without limiting the matters for which an adoption plan may make provision:
(a) it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and
(b) it may provide for the giving of certain financial and other assistance as referred to in section 201.
(2A) A birth parent who has not consented to the adoption of a child (a 'non-consenting birth parent') is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child.
(2B) A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child.
..."
It has been said that "a significant element in meeting the identity needs of a child who does not reside with his or her birth family is birth parent contact": Adoption of NG (No 2) per Brereton J (as his Honour then was), at [59].
Section 50 of the Act provides that a Court may register an adoption plan if it is satisfied that the plan does not contravene the adoption principles, the parties to the adoption understand the provisions of the plan and have freely entered into it, and the provisions of the plan are in the child's best interests. (See also s 90(2) of the Act).
[5]
Change of Name
Section 101(1)(b) of the Act provides that on the making of an adoption order, a child under 18 years of age is to have "as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents".
Under s 101(2) of the Act, before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's wishes.
The Court is prohibited from approving a change in the child's given name(s) unless it is satisfied that to do so is in the child's best interests: s 101(5) of the Act.
As stated, the wish of each of Andrew and Alistair is to have his surname changed to "S".
In deciding whether it would be satisfied, the Court should consider all the circumstances of the particular case before it, and decide whether those circumstances, taken together, justify a name change in the best interests of each of Andrew and Alistair.
How the court determines what is in the best interests of that child is not prescribed. The ultimate, and only, principle that guides the test under s 101(5) of the Act is what is in the best interests of the child. The test cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. The approach to be adopted is for the Court to weigh, and balance, the factors that are relevant, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have.
In deciding whether the Court is satisfied, all the circumstances of the particular case before it, must be considered, but the focus, ultimately, is on the best interests of the children.
[6]
Conclusion
I carefully considered the plethora of evidence in the case, individually and collectively, and the submissions that were made. Whilst there is always delicacy in the evaluation exercise, and the consideration of both the positives and the negatives, it was clear, at the conclusion of the submissions, it seemed to all present, that there was only one realistic result, namely making the orders sought by the Secretary.
As earlier stated, Ms L, to her credit, appeared to accept that this was so. I was entirely satisfied that it is both necessary, and proportionate, for the court to make an adoption order in respect of each of Andrew and Alistair. Such an order is the only one that will meet the lifelong welfare needs of each of them. They need to remain where they are, and the adoption order will achieve that. Nothing else will provide certainty and security. In fact, in my judgment, not making the orders sought would be other than in the best interests of each, as it would more likely than not, cause emotional harm to each of them. It may also negatively impact upon the relationship that each currently has with Ms L.
The evidence confirms that Andrew and Alistair are in reasonably good physical and mental health, and that their health, emotional, and educational needs are being met by Mr S and Mrs S. The evidence also satisfies me that Andrew's and Alistair's religious, and cultural, needs are being appropriately met. They share a Jewish religious and cultural heritage with Mr S and Mrs S, who are said to be very involved in the Jewish community. (According to Ms Haskins, Ms L "has spoken to [her] many times about her pleasure that [Andrew] and [Alistair] are being raised in a Jewish family.")
That the children were placed with Mr S and Mrs S, and the passage of time that has passed since then, alone, cannot be determinative. However, the older the children are, and the longer they have been with the proposed adoptive parents, the greater the adverse impacts of disturbing the arrangements are likely to be.
I placed some importance on the consent of each of Andrew and Alistair to the adoption and the change of surname. In this regard, I agree wholeheartedly with what Sackar J wrote in Secretary, Department of Communities and Justice v OA [2019] NSWSC 1457 at [91]:
"In cases such as this, when the children have been living in the same home for nearly their whole lives, where their primary psychological bonds are clearly with the proposed adoptive parents, and when they have expressed their views about the adoption, it would be misconceived to ignore the clear and informed wishes of the children. As is clear from the objects of the Act, adoption is to be a service for the child and not anyone else (s 8(1)(b)) and these children have a right to express their views and be consulted and considered when making decisions that significantly affect them. In my view, I am satisfied that I should take the children's clear wishes into account."
I was also satisfied that by the change of surname, Andrew and Alistair will each share the same surname as Mr S and Mrs S and their two children. This will provide each of them with a sense of security and stability and foster the family relationship and identity now and in the future. It will also demonstrate and reinforce the commitment of Mr S and Mrs S to each of Andrew and Alistair, which is likely to be of benefit to him.
The proposed surname change, in each case, seems to me to be clearly desirable in the best interests of Andrew and Alistair and accordingly, the orders sought in regard to the change of J's name were made.
The parties to the adoption all agreed that the Maternal Adoption Plan satisfies the requirements imposed by the Act. I respectfully, agree. In any event, as has been pointed out many times, "adoption plans are not set in stone, and a birth parent retains the ability to apply to the court for contact or for a variation of the adoption plan, if that becomes necessary in the future": Adoption of KH [2015] NSWSC 274 at [43]. Furthermore, upon attaining the age of 18 years, arrangements convenient to Andrew, and then Alistair, and others, can be made.
I have no doubt that Mr S and Mrs S will continue to demonstrate the strong commitment to help Andrew and Alistair maintain a relationship with Ms L, and with their maternal siblings, to the extent the maternal siblings wish to have such a relationship. Ms L, for her part, is also likely to strive to maintain the relationship. In this way, the family dynamics ought not be unduly distorted.
It is unnecessary to repeat the orders made in these reasons as those orders have already been made and entered.
[7]
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: 06 June 2023
HIS HONOUR: In these proceedings, the Court is concerned with the future of two children, one, to whom I shall refer as Andrew, who was born on 26 July 2005, and the other, to whom I shall refer as Alistair, who was born on 15 February 2007. For the sake of preserving the anonymity of the parties, as is required by s 180 of the Adoption Act 2000 (NSW) (the Act), I have referred to each of the children by pseudonym.
I shall refer to others who are involved in these proceedings, other than the professionals, somewhat impersonally, by initials. I do so without any disrespect intended. As has been pointed out by Robb J in Adoption of IEK [2019] NSWSC 171 at [6], "[t]his is the customary approach of the courts in order to permit the judgment to be published for the benefit of any member of the public who may take an interest in it, without identifying the interested parties". Adoption cases have long been an exception to the principle of open justice.
The children are siblings who have resided, together, for about 14 years with the same foster carers, who are a married couple, to whom I shall refer as Mr S and Mrs S. Long term parenting orders were made in respect of each child in favour of the Secretary, Department of Communities and Justice (the Secretary), which operate until each child turns 18.
The application is one by the Secretary, Department of Communities and Justice, to whom I shall refer as the Secretary. It is an application for an order for the adoption of each of the children, in favour of Mr S and Mrs S. Other orders sought include orders approving the change of the surname of each child, and the registration of a Maternal Adoption Plan in respect of each of the children, the Plan having been signed by Andrew and Alistair, by Mr S and Mrs S, respectively, and by the representative of the Secretary.
The maternal mother, to whom I shall refer as Ms L, who is named as the Defendant, opposes the adoption. She states that she feels "an Adoption Order may not be in the best interests of each of [Andrew] and [Alistair] in later life" for a number of reasons. She also states that her "wish is that I do not want my birth sons to be adopted. I feel uncomfortable and it does not feel right for me…".
Sadly, the father of the children, to whom I shall refer as Mr K, died in March 2008.
The Dictionary to the Act defines the expression "parties to an adoption" to mean: (a) the child or children; (b) the birth parent or birth parents who have consented to the child's adoption; (c) person or persons selected to be the prospective adoptive parents of the child; (d) the Secretary of the Department; (e) the appropriate principal officer.
Even though the matter was to proceed as a contested adoption, it was unnecessary, due to the age of Andrew and Alistair, respectively, for the appointment of an Independent Children's Lawyer to represent the interests of one, or both, of them in the proceedings.
At the conclusion of the hearing, to which I shall next refer, I informed the parties that I proposed to make the orders that had been sought by the Secretary. Later in the afternoon, in the presence of Andrew and Alistair (who had not been present at the hearing, but who, apparently, had requested that they be present when orders were made), the parties, and a number of family members, I made the orders, in Court, that had been sought.
This judgment sets out the Court's reasons for determining that the orders proposed by the Secretary should be made.
The Hearing
The Court, on 5 April 2023, during a directions hearing at which Ms L appeared unrepresented, offered, pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 7.36, to refer her to the Registrar for referral to a barrister or solicitor on the Court's Pro Bono Panel, for legal assistance. Ms L, respectfully, declined the offer, stating that she had represented herself in the past in adoption appeals in the Supreme Court: Tcpt, 5 April 2013, p 6(22-36).
In view of the fundamental right of a litigant to appear in person, enshrined in UPCR r 7.1(1), the Court accepted that Ms L wished to continue the proceedings representing herself and the matter has proceeded with her having her own legal assistance.
At the commencement of the hearing, despite Ms L's asserted experience in conducting similar litigation, the Court spent a little time explaining the process. The Court confirmed its duty to ensure that the trial was fair and determined in accordance with the law. Of course, this duty applies whether Ms L has been unable to obtain legal representation, if she appears self-represented by her own choosing, or where a party is represented: MacPherson v R (1981) 147 CLR 512, 546-547; [1981] HCA 46. This does not mean, however, that to not retain lawyers, should be an advantageous procedural step.
Ms L was also told that the Court's duty was not to advise her of how to conduct her case; nor to advise her of how her rights should be exercised; nor to become her advocate or stand in the shoes of a legal representative for her. Nor would the court unduly interfere with the conduct of the trial on her behalf. Any assistance would be proportionate in the circumstances and would be given, not for the purpose of affording an advantage to her as a self-represented litigant: Tomasevic v Travaglini [2007] VSC 337 at [142]; (2007) 17 VR 100, per Bell J, at 130; Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep), per Samuels JA; Cicek v Estate of late Solomon [2014] NSWCA 278, per Ward JA, at [126]-[130]. The duty to ensure a fair trial applies to both parties. She was also informed that the Court would not permit her to give evidence from the bar table without oath or affirmation.
The Court then went on to explain how the case would proceed, commencing with the reading of the affidavits onto the court record; informing her of her right to object to any part of the affidavit evidence relied upon by the Secretary that she might regard as inadmissible; an explanation of the order of calling witnesses, if she had changed her mind about cross-examining; her right to cross-examine the deponent of any affidavit read by the Secretary; providing an explanation of the consequences of not cross-examining a witness; and informing her of the need to enter the witness box to be cross-examined (as she had been asked to attend for cross-examination). The guidance would not extend to advising her of how her rights should be exercised.
I am satisfied that Ms L understood what she was told. She is obviously an intelligent person who had no difficulty expressing herself prior to, and during the hearing. She advanced her case to the best of her ability. That the Court decided to make the orders sought by the Secretary was not the result of any lack of commitment, on her part, to advance that case.
I should mention that the case is somewhat unusual because of the level of respect, co-operation, and even, it may be said, admiration, that exists between Mr S and Mrs S, on the one side and Ms L, on the other. No submissions were made by either casting aspersions on the other, and Ms L did not cross-examine any of the deponents, including Mr S and Mrs S, whose affidavits were read. Whilst counsel for the Secretary cross-examined Ms L, he did so not to suggest any criticism of her, but rather, to clarify, and elucidate, matters for the benefit of the Court. Indeed, he conducted the cross-examination with empathy and with due consideration for all the persons involved.
I found Ms L to be extremely brave in her oral evidence. She made admissions and concessions that may have been, understandably, painful. Unreservedly, she acknowledged, and accepted, that Andrew and Alistair are extremely well settled and are thriving in the care of Mr S and Mrs S; that they have established bonds and relationships that are significant; and that the relationship with Mr S and Mrs S is an important one to each of them. She also expressed her immense gratitude to Mr S and Mrs S for the care they have provided to the children. (This is confirmed by all the other evidence that I have read.)
Ms L's evidence, in this regard deserves repetition (Tcpt, 23 May 2023, p 17(20-33); 18(27-33); 20(32-34)):
"Q. Do you accept that for both [Andrew] and [Alistair], their primary attachment figures are [Mr and Mrs S]?"
A. WITNESS: Yes.
…
Q. Would you also accept then, that what [Andrew] and [Alistair] have with [Mr and Mrs S] is a deep emotional connection?"
A. WITNESS: Yes.
Q. Would you agree with me that deep emotional connection is an enduring emotional connection?"
A. WITNESS: Yes.
…
Q. If you had any concern about the way [Mr and Mrs S] have parented [Andrew] and [Alistair], it's something you would raise here; is that right?"
A. WITNESS: Yes.
Q. But as I understand it, you don't raise any concerns about the manner in which the boys have been parented over the past 14 years; do you?"
A. WITNESS: No.
…
Q. Do you accept [Andrew] and [Alistair] are happy in the care of [Mr and Mrs S]?"
A. WITNESS: Yes.
I am satisfied that the outcome of the proceedings will not alter, in fact (rather than in law) that Ms L is Andrew's and Alistair's birth mother, and that his best interests, respectively, are, and will be, promoted by an ongoing connection with her. To date, Mr S and Mrs S have both endeavoured to maintain and encourage that ongoing connection.
All of the parties to the adoption, and in the case of the Secretary, her legal representatives, are to be commended because of the way the proceedings were conducted. In this regard, I should note that the legal representatives of the Secretary appear, throughout, to have endeavoured to explain to Ms L the practice and procedure of contested adoption applications and provide her, to the extent needed, with an understanding of the proceedings. To her credit, Ms L acknowledged their assistance.