Department of Community Services v D & Ors - [2020] NSWSC 410 - NSWSC 2020 case summary — Zoe

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Department of Community Services v D & Ors

[2020] NSWSC 410

Supreme Court of NSW|2020-03-09|Before: Sackar J

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Source facts

Court

Supreme Court of NSW

Decision date

2020-03-09

Before

Sackar J

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

Solicitors: NSW Crown Solicitors (plaintiff) Self represented (first defendant) Colquhoun & Colquhoun (second and third defendants) Kathryn Renshall Lawyers Pty Ltd (direct legal representative for the child) File Number(s): 2004/80080

[2]

Judgment - anonymised

These proceedings concern the adoption of E F ('E') in favour of I and J F ('the proposed adoptive parents').
The Notice of Motion filed on 8 August 2019 by the Secretary, Department of Communities and Justice ('the Secretary') sought the following orders: That pursuant to Adoption Act 2000, s 54(3)(b), the court dispense with the giving of notice of the proceedings to the child's birth father (name unknown). That pursuant to Adoption Act 2000, s 122(2)(b) the court appoints a direct legal representative for the child, noting that the direct legal representative for the child was previously Kathryn Renshall. That pursuant to Adoption Act 2000, ss. 50(1) and (3), the Adoption Plan signed by I F and J F on 27 July 2019, E F on 28 July 2019 and a delegate for the Secretary on 31 July 2019, be registered. That the court makes an order for the adoption of the child E C B A G F in favour of the adopting parents I L F and J M F. That the court approves the name "F" as the surname and "E C B A G" as the given names of the child.
At the hearing, the Secretary sought the relief proposed in orders 1, 4 and 5. The Secretary did not seek the relief proposed in order 3. A direct legal representative had previously been appointed for E and the direct legal representative was represented at the hearing. The Secretary and the proposed adoptive parents were also represented. The birth mother appeared in person.

[4]

Earlier Adoption Proceedings

This matter has had a long and difficult history. In 1992, the birth mother and her family fled Sudan. The birth mother was separated from her family. Eventually, she arrived at a refugee camp in Kenya. It was here that she was sexually assaulted, resulting in her pregnancy with E. The birth mother discovered that she was pregnant after arriving in Australia in March 2003. She was living near her half-brother in the western suburbs of Sydney and attempted to conceal her pregnancy from him because she was concerned about cultural attitudes in her community towards women who became pregnant out of wedlock.
The birth mother was assaulted by her half-brother and was admitted to Westmead Hospital. She later moved to a refuge and had several meetings with refuge workers and Community Services officers between May and July 2003 to discuss options in relation to care for E once E was born.
E was placed in temporary foster care in July 2003, four days after she was born. As noted above, she was moved to the proposed adoptive parents' care when she was three months old.
In 2004, the Director-General (as then known) commenced proceedings seeking an order that E be adopted by the proposed adoptive parents. The birth mother had provided consent to the adoption, but the Court found that her consent was ineffective under s 58(2)(d) of the Adoption Act 2000 (NSW) ('the Act'). However, an adoption order was made on 20 December 2004, the Court having dispensed with the need for the birth mother's consent under s 67(1)(b) and s 67(1)(c) (see Department of Community Services v D & Ors [2004] NSWSC 124 [37]-[44]).
In 2005, the Court of Appeal upheld the birth mother's appeal from the 2004 adoption order on the basis that new evidence that was not before the primary judge had rendered unsafe assumptions made at the trial and remitted the matter for further hearing (see D v Director-General Department of Community Services & Ors [2005] NSWCA 474).
Following remittal, the matter came before Justice Brereton. His Honour made orders in 2007 revoking the previous consent dispense order, dismissing the application for a consent dispense order, and dismissing the application for an adoption order. However, his Honour ordered, pursuant to s 92 of the Act, that the proposed adoptive parents have parental responsibility for, and custody and care of, E.
Amongst other things, Brereton J (as his Honour then was) was particularly concerned about the possible consequences of the transracial nature of the adoption and the need to empower E as she matures. At paragraphs [243]-[244] his Honour stated: 243 Fourthly - particularly because of the trans-racial aspect - it is quite likely that, knowing D is her natural mother, and if they develop a good relationship through contact, E may find the biological and genealogical ties and the desire to be with her own people very strong in her adolescence. … 244 That is not to say that it is a probability, or that it should happen, but it is a sufficient possibility that it needs to be accommodated. I am unpersuaded that this is a case in which the possibility that at some future time, perhaps in adolescence, E may move into the care of D should be forever foreclosed. Fifthly, I think for E in her teens that the concept that she is being parented by Mr and Mrs F who love her, in circumstances where her natural mother was initially unable to care for her, is a less confronting challenge, carrying less of a suggestion of abandonment, than one that involves legal adoption. It better empowers E to deal with the issues that will arise, and to feel more that she has some influence upon the situation. The less irrevocable nature of a parental responsibility order, not involving formal severance of the parental bond with D, provides a more promising environment for E to deal with and resolve these issues in her teenage years, leaving her with some sense of control, or at least influence, in the situation. Not permanently severing the legal parental bond, as an adoption order would, leaves more scope for flexibility in the future, and for effect to be given to E's own wishes as she matures. In my view, it better positions E for the future, in that it leaves her with more ability to make choices for herself, rather than being confronted with a situation in which all decisions have been made for her. This empowers E, in a context in which traditionally, adopted children are 'the most disempowered' of all those involved in adoption…

[5]

E's development in the care of the proposed adoptive parents

E is generally of good health and has no ongoing health issues. As a young child, her developmental milestones were consistently achieved with or ahead of her peers. E sees a psychologist, Ms King, who assists her to develop skills in relation to friendships and her relationship with her birth mother and to explore, understand and manage her emotions and behaviour on a broader level.
E is in year 11 at high school and is reported to be a good student. She was accepted into her school's Duke of Edinburgh program due to meeting selection criteria based on behaviour and academic marks and was given the opportunity to travel to Japan in 2019. She is also a talented sportswoman who plays basketball at a representative level.
E has a supportive group of friends but has experienced some racist bullying at school. E is also reported to respond with strong feelings to situations where she fears rejection, most often in relation to issues involving her peers or surrounding adoption.
E is close to the proposed adoptive parents and they spend time with her, both individually and as a family. She has developed a caring and affectionate relationship with K. She is generally cooperative at home and school, although the proposed adoptive parents have experienced some challenges in relation to E's mobile phone and social media use.
As a child, E was not keen to engage in activities promoting her connection to Africa but is reported to have developed a clearer and more positive identity over time. The proposed adoptive parents have sought to develop relationships with families who have members of African heritage. They joined the Central Coast Australian African Network and participate in social activities formally and informally with group members, although the proposed adoptive mother has noted that E has often engaged with other adults rather than children in these settings.
The proposed adoptive mother sought out Sudanese stories to read to E when she was a young child and has looked for opportunities to promote E's contact with the local African community. For example, she has engaged with local African women to provide hair care for E, initially a Sudanese woman, and then when she had moved away, an Ethiopian woman and currently a woman from Zimbabwe. The proposed adoptive parents took E to Malawi where they had friends (rather than Sudan where ongoing conflict makes travel difficult) and to the United States where E and K had the opportunity to mix with African American cultures in a range of settings. E has recently developed a friendship with a team member from basketball whose mother is African American.
On the other hand, while E is reported to have developed a pan-African sensibility and seeks out connections with African American culture, she has not developed a strong connection to her particular Sudanese heritage. Whilst the proposed adoptive parents have attempted to engage E with events that are attended by many Sudanese people, E has been increasingly reluctant to attend.

[6]

E's contact with her birth mother

In 2007, Brereton J ordered that E have contact with her birth mother as agreed between the birth mother and the proposed adoptive parents, but failing agreement: 5.1 Until she attains five years of age, for a period of not less than two hours every second month, the first such contact to take place on 4 August 2007 and on the first Saturday of each second month thereafter, and such contact to be supervised by an officer of the Department of Community Services, and/or a health professional or other person agreed between D and Mr and Mrs F or failing agreement nominated by the Department; 5.2 From her fifth birthday until she attains six years of age, for a period of not less than three hours every six weeks, the first such contact to take place on the first Saturday of August 2008 and on each sixth Saturday thereafter, and such contact to include at least one hour of unsupervised contact between E and D; 5.3 Thereafter until further order, for a period of not less than four hours every month, the first such contact to take place on the first Saturday of August 2009 and on the first Saturday of each month thereafter, and such contact to include at least three hours of unsupervised contact between E and D.
On 25 October 2011, orders were made by consent reducing contact from monthly (as required by order 5.3 above) to eight times per year and requiring contact to be supervised. This change followed an incident that occurred on 2 January 2011 when the proposed adoptive father went to collect E from the birth mother's home. An argument between the proposed adoptive father and the birth mother developed into a physical altercation. The birth mother was charged with assault occasioning actual bodily harm and was ultimately given a good behaviour bond without proceeding conviction under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). E apparently witnessed the assault and it continues to impact her relationship with her birth mother; she has raised it during consultations with her psychologist (Ms King) and Community Services, and it triggered some distress in E during a meeting held between the s 91 court report author (Ms Elliott), E and her birth mother on 27 November 2017. Following the incident, Community Services made an application to the Supreme Court to stay the previous contact orders, pending an expert report into the nature and form of contact between E and the birth mother. A report was completed by Dr Christopher Lenning and dated 3 March 2011. Dr Lenning noted that the birth mother 'has a strong possessive relationship towards her daughter, but an attenuated attachment.'
Contact visits were supervised by Community Services between 2004 and July 2008, unsupervised between July 2008 and 2012, supervised by the Good Samaritans Sisters between 2012-2015, supervised by Barnardos between January 2016 and June 2018, and supervised again by Community Services from June 2018 to date.
It appears that contact was conducted in accordance with the court orders up to 2018 when only five contact visits occurred. There were some difficulties in organising supervisors for contact visits at the beginning of 2018. Concerns had also been raised about E's safety after two risk of harm reports were made in relation to the birth mother in 2017 and 2018 respectively. The first related to a domestic violence incident involving the birth mother and her partner which led to her partner being charged with assault. The second related to a conversation which was had between the birth mother and Ms Elliott (the author of the s 91 report) during which the birth mother said words to the effect of 'not only me but others will die if E is adopted.'
Contact between E and her birth mother occurred at least three times during 2019. Two of these contacts were supervised contact visits and one was by telephone.
Overall, E's relationship with her birth mother has been somewhat strained. Contact records from as early as 2007 indicate that tension has arisen in relation to the birth mother viewing herself as E's mother and not acknowledging the proposed adoptive parents as anything other than E's carers, which is inconsistent with E's sense of the belonging to the proposed adoptive parents' family. There have been several instances in which E has expressed frustration in relation to her birth mother's attempts to parent her. For example, during the meeting conducted on 23 November 2017 between E, her birth mother and Ms Elliott, E and her birth mother discussed E shaving her hair to participate in a "Shave for a Cure" charity event in honour of her basketball coach who had recently died due to cancer. The birth mother told E that she must not shave her head as her birth parents are still alive and head shaving is a sign of mourning. The birth mother also asked E if she had begun to menstruate. E advised her that she had. The birth mother cried and tried to explain that there were important things that E needed to know, such as when she could start mixing with boys, and that there were Sudanese practices about what women should do when they had their period, including in relation to prayer. After the meeting, E told Ms Elliott that she felt that her birth mother was emphasising culture 'because it's the only way she thinks she can still control me.'
An adoption plan was filed in these proceedings although the Secretary no longer seeks registration. It contemplates a further reduction in contact between E and her birth mother. It appears that E has been seeking a reduction in contact since at least mid-2016. The adoption plan also contemplates a continuation of contact supervision. It has been signed by the proposed adoptive parents, E, and a delegate of the Secretary, but not the birth mother.

[8]

The best interests of the child

When considering the potential adoption of a child, the best interests of that child is to be the paramount consideration at all times. Relevantly, ss 7 and 8 of the Act provide: 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, (e) to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas, (f) to ensure that adoption law and practice complies with Australia's obligations under treaties and other international agreements, (g) to encourage openness in adoption, (h) to allow access to certain information relating to adoptions, (i) to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents. 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, (f) if the child is Aboriginal - the Aboriginal child placement principles are to be applied, (g) if the child is a Torres Strait Islander - the Torres Strait Islander child placement principles are to be applied. (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.

[9]

Clearly preferable

The Court must not make an adoption order unless the requirements in s 90 of the Act have been complied with: 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 (e) if the child is an Aboriginal child - that the Aboriginal child placement principles have been properly applied, and (f) if the child is a Torres Strait Islander child - that the Torres Strait Islander child placement principles have been properly applied, and (g) if the child is a non-citizen child from a Convention country or other country outside Australia - that the applicable requirements of this Act and any other relevant law have been satisfied, 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.
In accordance with s 90(3), the Court cannot make an adoption order unless it is clearly preferable to any other action that could be taken (for example, a long-term parenting order, restoration, etc.). Brereton J said of the section, in Adoption of KH [2015] NSWSC 274 (at [46]): This requires identification of the likely effects of adoption, and of the various available alternatives, and their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is or is not clearly preferable to all others.
In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J described the principles applicable with respect to s 8 (at [14]-[17]): In speaking of adoption being a "service to the child", the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met. Adoption Act, s 90(3), provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. This 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]]. 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 to 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.
Later at [76]-[80]: 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. An adoption order is also likely to minimise any remaining temptation for the birth mother to make comments or suggestions that the child will be returning to her care. 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. In a case such as the present, where there has been extensive past turbulence and associated vulnerability, and where the child harbours fears of insecurity, this is a telling factor. 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. 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. 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. 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.
See also Adoption of Taylor-Clay [2019] NSWSC 27 at [58], in particular where Brereton J observed that: [A]doption serves the identity needs of such children - in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family - by bringing their legal status in conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own (and - because it is not limited to age 18 - not only during childhood, but for life). Adoption also places the children on an equivalent basis, with equivalent rights, as any biological children of the adoptive parents.
This approach to the application of s 90(3) was most recently approved by the Court of Appeal in OA v Secretary, Department of Communities and Justice [2019] NSWCA 322 at [57] (White JA, Macfarlan and Brereton JJA agreeing): Whilst it is true that if an adoption order were not made the stability of the placement of the children and the support and care the adoptive parents would give them would in all probability continue unchanged. That does not mean that adoption would not be beneficial. The primary judge cited and applied the observations of Brereton J in Adoption of NG (No 2) and Adoption of Taylor-Clay quoted above in concluding that in most situations an adoption order that brings the child's legal relationship and status quo into conformity with the practical realities of the situation enhances stability for all concerned, in particular the children. The primary judge considered the financial consequences of the adoption order and concluded that adoption would be in the best interests of the children. There was no error in that finding. Indeed, it was clearly correct.

[10]

Consent

As noted above, s 90(1)(d) prevents the Court from making an adoption order if consent to the adoption has not been given by every person whose consent is required under the Act.
Relevantly, section 52 prevents the Court from making an adoption order in relation to a child who is less than 18 years of age unless the consent of each birth parent is obtained. However, s 54(1)(c) provides that consent is not required under s 52 if the child gives sole consent to their adoption in accordance with s 54(2). Relevantly, s 54(2) provides: A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years.
The child's consent must be given in accordance with s 55, which requires the child to be counselled in accordance with s 63: 55 Consent of child (1) The Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless - (a) the child has been counselled as required by section 63, and (b) the counsellor has certified that the child understands the effect of signing the instrument of consent (as required by section 61), and (c) the child consents to his or her adoption by the prospective adoptive parent or parents or the Court dispenses with the requirement for consent. (2) The Court may make an adoption order in relation to such a child who is incapable of giving consent if the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order. 63 Child or other person consenting must be counselled (1) A child or other person giving consent must be counselled in accordance with this section within the period prescribed by the regulations before he or she signs the instrument of consent to an adoption. (2) A person is counselled in accordance with this section if a counsellor - (a) accurately explains to the person, in a way that the counsellor thinks will be understood by the person - (i) the legal effect of signing the instrument of consent and the procedure for revoking consent, and (ii) the effect of the mandatory written information, and (b) counsels the person on the emotional effects of the adoption and alternatives to adoption (including, in the case of birth parents, the feasibility of keeping the child). (3) This section does not require the Minister administering the Children and Young Persons (Care and Protection) Act 1998 or any delegate of the Minister to be counselled before giving consent to the adoption of a child who is under the parental responsibility of the Minister.
At least 14 days' notice of the application for the adoption order must be given to the parent/s or person/s whose consent would otherwise be required (see ss 54(3)(a) and 88(1)(a)) unless the Court dispenses with the notice requirements (see ss 54(3)(b) and 88(4)). Also relevant are ss 61 and 62: 61 Form of consent (1) Consent is to be given by an instrument (an instrument of consent) that is in a form that contains the information prescribed by the regulations. (2) A separate instrument of consent must be signed by the child and by each other person whose consent is required by this Act. (3) Before the instrument is signed, a counsellor must sign a statement on it certifying that - (a) the child or other person giving the consent has been counselled by the counsellor, and (b) that the counsellor is of the opinion that the child or other person understands the effect of signing the instrument. 62 Consent must be witnessed by person independent of counsellor (1) The signing of the instrument of consent must be witnessed, in accordance with the regulations, by a person other than the counsellor and who is independent of the counsellor. (2) Before witnessing the signing of the instrument of consent by a child or other person, the witness is to sign a statement on it certifying that he or she is not aware of any mental, emotional or physical unfitness of that person to give consent. (3) The witness must be a person of a class or description prescribed by the regulations.

[13]

The Secretary's evidence

The Secretary relied on several affidavits. In particular, I note the affidavit annexing the s 45 and s 91 court reports of Ms Elliott (affirmed 17 April 2019). Ms Elliott has had a long term involvement with this matter and, being aware of the complexity of the issues raised and the concerns of the birth mother in relation to the proposed adoption, conducted interviews with E, the proposed adoptive parents, K, and the birth mother across a period of 11 months (September 2017 to August 2018).
In her s 45 report, Ms Elliott noted that: E can respond strongly to situations where she fears rejection, particularly in relation to friendships, and she can be irritable and moody when she is distressed. For example she was noticeably unsettled during the period around K's adoption finalisation, although she attended the court with the family and was positive on K's behalf. E described to me how she recognises that she is especially sensitive where she feels others may be rejecting her, and her distress can escalate and generalise quickly. She explained that her discomfort may start with an incident with her friendship group but then can escalate so that she starts to fear that she could be removed from [the proposed adoptive parents], and then needs her parents' comfort to cope with her anxieties.
In her s 91 report, Ms Elliott stated: While the concern in 2007 was that adoption might impinge on the development of her identity, E's view is that she needs to be adopted so that she can have a coherent identity.
In relation to maintaining the status quo (parental responsibility order), Ms Elliott stated: In my professional opinion maintaining the current parental responsibility order is not preferable to an adoption order, because E wants the legal clarity that an adoption order would give. She wants her legal status to reflect the way she experiences her relationship, as a member of the F family, and she wants to have the same legal relationship with [the proposed adoptive parents] that her brother K has. She also wants a legal order that has continuing relevance after the age of 18 years, which will enable her to explain her place with the Fs in a way that she believes other people can understand. She already uses the language of adoption to describe this relationship, but feels uncomfortable that this is not accurate, and wants her actual status to be congruent with the narrative she uses day to day. Although [the birth mother] has indicated that she believes shared parental responsibility between herself and [the proposed adoptive parents] would be preferable to current arrangements, I do not see any prospect that such an order would promote an improved relationship with the parties. In particular in my view E would see this as a further attempt by [the birth mother] to seek to control her, which would further impair their already strained relationship.
Ms Elliott also found that there was no prospect of E returning to the birth mother's care, noting that 'all parties agree that there is a significant distance between E and [her birth mother], and currently E has no desire to bridge this.' Rather, Ms Elliott concluded that an adoption is clearly preferable and in E's best interests, noting that an adoption order: would enable [E] to feel more secure in her identity, and enable her to describe her relationship with [the proposed adoptive parents] openly, without feeling she is being inaccurate or misleading. It would give her confidence about [the proposed adoptive parents'] role in her life, and I anticipate it would reduce some of the heightened emotion she experiences in peer relationships, and assist her to cope better with the usual stress of adolescence. This is likely to impact positively on her school performance and her social networks.
In relation to E's maturity and understanding, Ms Elliott found that: E has a clear understanding of adoption, both in relation to her consideration of her own circumstances and in relation to K's adoption in 2017. She understands that adoption means becoming legally part of the F family, that it will change her birth certificate and create a legal tie with K and that she is very unusual because although adoption is usually permanent, in her case the order was set aside because of her mother's application to the court … E's primary focus is on the benefits she sees adoption will give her, and she has given no indication of feeling pressured, or motivated by the desire to please [the proposed adoptive parents], although she does anticipate that they will share her sense of relief if through adoption she can become permanently and legally part of their family.
In relation to contact, Ms Elliott stated that: E is very clear that she wants to see [the birth mother] less often. This is independent of [the birth mother's opposition] to E's desire to be adopted, and reflects her desire to have more control in her day to day life, and the competing pressures for her time. In my view, regardless of whether E is adopted it will be necessary to adjust the current expectations regarding the frequency of contact. Given E's age it will not be in her best interests to force her to participate in visits.
I note the affidavit of the delegate, Ms Whitbread, affirmed 7 August 2019, and the affidavit of Mr Fogarty, caseworker for Adoption and Permanency Services, affirmed 27 November 2019, which outline the matter's history, the relationships between the relevant parties and E's development in the care of the proposed adoptive parents. Ms Whitbread stated that during a conversation between her and E on 13 June 2019, E said words to the effect of 'I hope that things between me and [the birth mother] improve after an adoption order is made' but '[e]ven if the relationship with [the birth mother] doesn't improve, I really want to be adopted by my Mum and Dad.'
Annexed to Ms Whitbread's affidavit is the s 63 report completed by Ms Golden on 23 October 2018. Ms Golden wrote that: E presented as a confident young woman who was able to articulate her thoughts well. E said she was "happy it is finally happening" when talking about her adoption. E said she knows that adoption means "mum and dad will become my legal parents now." E said she understands what given [sic] consent means and explained "it will be me saying yes" and "nothing much will change anyway as this is where I have only known". … Conclusion I believe [E] has the capacity to understand the effect of signing the instrument of consent. I concur with Mr Fogarty's supplied information that E is of sound physical health and is able to express her thoughts, feelings and wishes in a confident way. E has demonstrated to me that she has a good understanding of adoption and what adoption means legally and emotionally. E is pleased she will legally be the daughter of the people whom she refers to as mum and dad.
I note the two affidavits of E's long-standing clinical psychologist, Ms King, sworn on 28 June 2019 and 26 November 2019, respectively, and the associated annexures. Ms King has found: Throughout my work with E her desire for her adoption to be finalised has been unwavering. Whilst she has always felt well connected with [the proposed adoptive parents] and been secure within the family, her unique legal status has left her feeling 'different' in a way she has not been comfortable with.
She also recorded that: [S]hould [E's] wishes and feelings not be considered adequately at this stage, she would feel extremely let down by the court system and by the team of people who have been tasked with securing her wellbeing within her family. She has no choice but to be patient and keep meeting all the requirements being asked of her over time to adhere to the adoption process. To ignore her wishes at this stage would cause her to feel totally irrelevant within her own life and to make her efforts to date seem worthless.
I also note the affidavits of service and the affidavits of the referees.

[14]

The birth mother's evidence

The birth mother relied on three affidavits: one affirmed by her on 13 November 2019; one sworn by Sister O P on 11 November 2019; and one sworn by Sister Q R on 11 November 2019.
In her affidavit, the birth mother outlined the members of her family and noted that all of her children attend school, are doing well academically and play sports. She also stated that '[o]ther than in relation to E's adoption, I have had no involvement with the Department of Community Services in relation to any of my children.' She expressed her opposition to the adoption application, noting that she never gave consent for E to be taken away from her permanently and wants E to know that she opposes the adoption. She also expressed a belief that the proposed adoptive parents have not attempted to promote the relationship between her and E, including by interfering or frustrating contact visits. In relation to birth family contact, the birth mother stated: I do hold fear that she will not be able to connect with her family and culture and her language which is part of her make up. Especially when appraising the amount of contact E has had with her siblings. This is not promoted by the applicants who do not live far away. This application if granted will be a further erosion of her bond with myself (her mother) and her brothers and sisters who all love her very much. I do not agree with an Adoption Plan for 2 contact visits a year. It must be up to E to decide and if she wants contact with me, she can let me know directly. I will not attend any further supervised contact visits with my daughter. Supervision was never necessary.
Sister P supported the birth mother during some contact visits, and she said that she continued to support the birth mother before and after contact visits after the proposed adoptive parents objected to her presence at visits in 2011. She included excerpts from her notes in her affidavit. In particular, she noted that the proposed adoptive parents had interrupted what was supposed to be unsupervised time between E and the birth mother during at least one contact visit. She also recorded an altercation that occurred during a contact visit in September 2008 where she said the proposed adoptive parents became aggressive towards the birth mother.
Sister R has been a support person for the birth mother for 15 years and also attended contact visits prior to 2011. She described the distress and sadness that the birth mother has displayed over the years since 2004 and what she perceived as the 'fear and anxiety [that] dominated many of the contact visits between [the birth mother] and E, with the [proposed adoptive parents] constantly questioning of [sic] [the birth mother].'

[21]

Consideration

The last time this matter was before the Court, Brereton J refused to make an adoption order and instead made orders for parental responsibility, custody and care. At that time, E was only four years of age. E is now more than 16 and a half years of age and has been in the care of the proposed adoptive parents for approximately 16 years. I am now of the view that an adoption order is in her best interests and clearly preferable to any other action that could be taken, considering all the circumstances and the factors contained within ss 7 and 8 of the Act. In particular, I have focused my attention on what is in the best interests of E not only now but also later in life. The interests of other relevant parties, including the birth mother in this case, whose views I hear and respect, and those of the proposed adoptive parents, are not the determinative factors before this Court. They are important. They are relevant. But they are factors to be taken into account as part of an overall consideration of the ultimate issues.
E needs to feel confident and secure going forward. In my view, an adoption order, by aligning her legal position with her factual reality and securing her place in the family with which she identifies, not only during childhood but for life, will assist in achieving this. It is true that the adoption order will legally sever E's tie with her birth mother and maternal siblings. However, it will perfect her sense of identity and allow her to tell the entire truth about her status without feeling uncomfortable or dishonest. The alternatives to adoption, including a continuation of the current parental responsibility order or an order for shared parental responsibility between the proposed adoptive parents and the birth mother, will not achieve this. They are likely to leave E feeling let down and ignored by the court system.
Further, in my view, one important factor (though also not the predominant one) is E's own wishes. In 2007 Brereton J was also very much concerned with empowering E and ensuring that she would have the ability to make choices for herself as she matures. E is now a confident, intelligent and articulate young woman who has expressed her views many times over the years that what she wants is to be legally part of the proposed adoptive parents' family and not only to have the proposed adoptive parents has her mother and father but to have K as her brother.
In 2007 Brereton J was also concerned with issues of cultural heritage. They too are important because the Act makes them so. One of the birth mother's principal concerns, a concern which I respect fully, is that her cultural heritage is entirely inconsistent with the notion of adoption. That said, I am a Judge in New South Wales administering the law of New South Wales, which obliges me to look at cultural issues and give them important weight, but as one factor in a number of factors to be looked at. I am satisfied that the proposed adoptive parents have taken steps to assist E to develop her cultural identity and will continue to do so to the extent that E so wishes. I am also satisfied that the proposed adoptive parents have provided a loving, stable and secure environment for E and K over the years and that they are capable of meeting E's physical, emotional and intellectual needs now and into the future.
In relation to the adoption plan, I am satisfied that the arrangements proposed in the plan are in E's best interests and proper in the circumstances, particularly having regard to E's wishes concerning contact. However, I note that aspects of the adoption plan are impracticable given that the birth mother has not signed it, and therefore, that the Secretary does not ask for it to be registered.
I note that the identity of the birth father is unknown and therefore consider it appropriate to dispense with the giving of notice of the proceedings to the birth father.
I am satisfied that E is capable of giving sole consent to her adoption in accordance with s 54(2). She is 16 years old, has been cared for by the proposed adoptive parents for more than two years, and has shown that she is of sufficient maturity to understand the effect of giving consent. E gave her consent to the adoption on 30 October 2018, having been provided with the Mandatory Information on 31 January 2017 (and again on 23 October 2018) and counselled by Ms Golden in accordance with s 63 on 23 October 2018.
I am of the view that the other formal requirements of the Act have been met. E was present in the State when the adoption application was filed (s 23(2)(a)) and less than 18 years of age when the summons was filed (s 24(1)(a)). The appropriate notice was given to the birth mother (ss 54(3)(a) and 88(1)(a)). For the purposes of s 87, the application was made by the Secretary.
I am satisfied that the proposed adoptive parents are domiciled in the State (ss 23(2)(b) and 28(1)(a)), meet the relevant age requirement (s 28(3)) and have been living together for the requisite period (s 28(4)). I am also entirely satisfied that the proposed adoptive parents are of good repute and are fit and proper persons to fulfil the responsibilities of parents, particularly having regard to the quality of the care they have provided E with over the past 16 years.
Finally, the Secretary seeks an order that the Court approves the surname "F" and given names "E C B A G". Order 7 of the orders of 13 July 2007 permitted the proposed adoptive parents to change E's surname to "F" provided they retain "B" as a middle name. E's original name was "E H B". However, in 2007, the birth mother advised that she wished E's name to be changed to "C", the Dinka form of "E." Because E was familiar with the name "E" it was agreed that the names "C", "B" and "A" would be added to her birth certificate ("A" is a name from the birth mother's family). The birth mother also agreed that "G", a name from the proposed adoptive mother's family, could be added. Therefore, E already uses the proposed names.
Although she has expressed frustration about the length of her name, E requested that on the making of an adoption order her name be "E C B A G F". The given names "C", "B" and "A" maintain an important link between E and her birth family, while the given name "G" and the surname "F" reflect her place in the proposed adoptive parents' family. Given these circumstances, I approve the name proposed in order 5 sought by the Secretary. 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: 21 April 2020

Department of Community Services v D & Ors

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (2)

Cases Cited (11)

Cited By (1)