OA v Secretary, Department of Communities and Justice

Background

1. G has lived with the proposed adoptive parents continuously since 19 May 2008, when she was approximately 5 months old.
2. The proposed adoptive parents have three biological children, T (born February 1993), U (born October 1994) and S (born April 2000). U and S live independently and T remains living in the home of the proposed adoptive parents. The proposed adoptive parents are presently the authorised short-term carers for a 15 month old child, V. They were also the authorised carers of W X (born September 2013), who was placed in their care in March 2015. W died of natural causes in 2019.
3. G has four maternal half-siblings, L (born September 1997), Y (born May 2001), Z (born October 2002) and A (born April 2005). L, Y, Z and A live with the maternal grandmother, K. In May 2007, orders were made by the Family Court of Australia granting the maternal grandmother sole parental responsibility for L, Y and Z. In March 2010, the District Court made orders allocating all aspects of parental responsibility for A except for contact to the maternal grandmother.
4. G's birth father is B C. G has not had contact with the birth father or members of her paternal family since September 2018. This is due to the birth father having not engaged with the Department or the proposed adoptive parents.

G's care history

1. G was born premature at 31 weeks, suffering from congenital spinal deformity, respiratory distress and hydronephrosis.
2. A number of risk of harm reports were received by the Department during the birth mother's pregnancy with G and following her birth, which raised concerns about G and A (who was then in the birth mother's care). The risk of harm reports related to drug and alcohol abuse by the birth parents; domestic violence; inadequate supervision; the birth mother's capacity to manage G's serious health conditions; and the birth mother's erratic and inconsistent attendance at hospital to care for G.
3. In March 2008, G was assumed into the care of the Director-General (as the Secretary was then known) pursuant to s 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The Director-General filed an application for an Emergency Care and Protection Order ('ECPO') in the Children's Court. The ECPO was granted for a period of 14 days. G was discharged from hospital and placed with her paternal uncle, D C, and his partner, E F, in an authorised kinship placement.
4. In April 2008, the Director-General filed a Care Application in relation to G and A and the Children's Court made interim orders placing both children in the parental responsibility of the Minister. A was removed from the birth mother's care on 8 May 2008 and placed with the proposed adoptive parents (he was placed in the maternal grandmother's care following further Children's Court and District Court proceedings). As noted above, G was placed in the proposed adoptive parents' care on 19 May 2008.
5. Final orders placing G in the parental responsibility of the Minister until she reaches the age of 18 were first made by the Children's Court in May 2009. It is not necessary to recount the further litigation history here.

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

1. As noted above, G was born with a variety of medical conditions. In 2008, G underwent surgery at the Sydney Children's Hospital for a hernia. In 2011, she underwent a posterior spinal fusion and excision of hemivertebrae surgery at Westmead Children's Hospital. She was discharged from hospital after a two week stay and underwent three months of rehabilitation in a full body cast. She underwent two further spinal surgeries at Westmead Children's Hospital in 2016. In 2017, the proposed adoptive parents informed a case worker that G's paediatric orthopaedic specialist had advised them that G was now allowed to do all sports and activities without any restrictions. The proposed adoptive parents also sought treatment for G in relation to digestive issues associated with spinal deformity. FACs records indicate that those issues are well managed by the proposed adoptive parents.
2. G has also suffered moderate episodes of respiratory distress from bronchitis and asthma, which have, at times, required treatment in hospital. G's asthma is now managed by the taking of daily medication.
3. In 2014, G was referred to the Child Protection Counselling Service in relation to challenging behaviours. She was diagnosed with Attention-Deficit/Hyperactivity disorder (ADHD) for which she is prescribed Ritalin and takes Melatonin at night. She ceased counselling in 2018.
4. In September 2018, G was reviewed by a General Practitioner who noted that G was a "normal kid" with no major health concerns. However, during a home visit in June 2019, it was recorded that G continues to have problems with her back and that she takes Nurofen throughout the day in accordance with doctor's advice. It was noted that G was booked in for another appointment with her paediatric orthopaedic specialist.
5. G has developed a strong sense of family. She has a close and affectionate relationship with her proposed adoptive family, including her foster siblings. She goes to movies and shopping with T and S, and was a flower girl at U's wedding. She was able to describe her family relationships to Ms Haskins and was recorded as laughing about what she does if she needs to complete a family tree at school. Ms Haskin noted that G's "knowledge and ease of discussion about this issue was pleasing to see". During a home visit by a Communities and Justice caseworker in October 2019, it was noted that there were a lot of photographs on display of both G's birth family and proposed adoptive family, and that N had set up an email address for G and will send photographs, documents and life story work to her so that she always has a timeline of her life. N also shares her own Dutch background with G by exposing her to Dutch dancing and cooking.
6. G's school records show that she is progressing well academically. Her 2019 Semester 2 School Report noted that G had shown a consistent commitment to learning and effort throughout the semester and was improving her knowledge of curriculum areas and developing her understanding of important learning concepts. The report also outlined that G enjoyed collaborating with her peers and her friendships with other students were positive and helpful.
7. G was attending weekly maths tutoring lessons to improve her confidence. She was doing Year 7 and 8 maths with her tutor and extension maths at school. Her other extracurricular activities include netball, piano and swimming lessons. She will commence high school in 2021.

G's contact with her maternal birth family

1. G continues to have ongoing contact with her birth mother. At present, the proposed adoptive parents and the birth mother arrange contact visits between themselves. Contact records indicate that contact is generally positive and G has told case workers that she likes seeing her birth mother.
2. G also continues to have contact with her maternal grandmother and her maternal siblings. While G has expressed some concern about these visits in the past, recent visits have been positive with G having the opportunity to play and talk with her siblings.
3. G has on numerous occasions expressed a desire to spend time with her siblings, especially A, independently of the adults in her life.

G's wishes regarding adoption

1. G has expressed a strong desire to be adopted. She has expressed that wish consistently to Communities and Justice caseworker, Ms Melissa Riches, during home visits conducted in January, June, September and December 2019, and January and March 2020. She also expressed that wish to Ms Haskins and the author of the s 91 Court Report, Ms Elizabeth Shepherd.

The best interests of the child

1. 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.

Clearly preferable

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Consent

1. 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.
2. 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.
3. 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.
4. 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 58(1), 59(1) 61 and 62: 58 When is consent ineffective? (1) Consent to a child's adoption is not effective unless it is - (a) informed consent, and (b) given in accordance with this Act. 59 Mandatory written information (1) The Secretary or appropriate principal officer must ensure that a person whose consent to an adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption. 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.

Who can adopt

1. Part 1 of Chapter 4 of the Act places certain restrictions on who can adopt a child in New South Wales which differ according to whether the persons seeking to adopt be an individual, couple, relative or step parent.
2. Relevantly, section 28 sets out the following requirements in relation to adoption by a couple: 28 Adoption by couple (1) Basic requirements Two persons who are a couple may, subject to this Act, adopt a child only if - (a) both of them are resident or domiciled in the State, and (b) both of them are of good repute and are fit and proper persons to fulfil the responsibilities of parents. (2) Requirements for step parent The Court must not make an order in favour of a couple if one of them is a step parent unless section 30 is complied with. (3) Age requirements The Court must not make an adoption order in favour of a couple if neither of them is a birth parent or relative of the child unless - (a) each of them is 21 or more years of age and 18 or more years older than the child, or (b) the Court considers that in the particular circumstances of the case it is desirable to make the order even though one or both of them do not fulfil the age requirements. (4) Length of relationship requirement The Court must not make an adoption order in favour of a couple unless the couple have been living together for a continuous period of not less than 2 years immediately before the application for the adoption order. (5) The Court may make an adoption order in favour of a couple jointly even if one of them is a birth parent, or they are the birth parents, of the child.
3. 'Couple' is defined in the Dictionary to the Act: couple means 2 persons who - (a) are married to each other, or (b) are de facto partners of each other.

Change of Name

1. Section 101(1) provides that on the making of an adoption order, an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.
2. Before changing a child's name, 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 (s 101(2)). However, the Court must not order a name change unless satisfied that the name change is in the best interests of the child (s 101(5)) and, where the child is over the age of 12, the child has provided their consent to the change (s 101(4)).
3. As Brereton J acknowledged in Adoption of RCC and RZA [2015] NSWSC 813 at [104], re-iterating his own comments in Adoption of NG (No 2) [2014] NSWSC 680 at [109] and Adoption of BS (No 3) [2013] NSWSC 2033 at [86], '[t]he adoption principles set out in s 8 include, in (e), the principle that a child's given name or names, and identity, should, as far as possible, be preserved.' However, at [105], his Honour also explained: Upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child's family name accords with that of his or her legal family. Indeed, children see that outcome as one of the most significant indicia of the sense of "belonging" that adoption is intended to nurture, and not to do so would detract from the benefits of adoption. The proposed surname P accords with this approach, and will recognise the children's place in the adoptive family and reinforce their sense of permanency and belonging, in that they will be in name as well as in law a member of the adoptive family. Moreover, the children have expressed a wish to have the surname P.1

Registration of adoption plan

1. Section 50 relevantly provides: 50 Registration of adoption plans (1) The parties to an adoption who have agreed to an adoption plan may apply to the Court for registration of the plan. (2) The regulations may make provision for or with respect to such an application. (3) The Court may register an adoption plan if it is satisfied that - (a) the plan does not contravene the adoption principles, and (b) the parties to the adoption understand the provisions of the plan and have freely entered into it, and (c) the provisions of the plan are in the child's best interests and is proper in the circumstances. (4) An adoption plan that is registered has effect, on the making of the relevant adoption order, as if it were part of the order.

The Secretary's evidence

1. The Secretary relied on several affidavits, including those of the independent experts, Dr Lennings (sworn 16 January 2020) and Ms Haskins (sworn 7 April 2020). In addition to what I have already said about these reports, I note in particular what Ms Haskins said about the likely benefits of an adoption order in this case: In important ways, the making of an adoption order may provide these two families with closure and a chance to consider what their shared future may look like… It is clear to me that adoption is in G's best interests. She has clearly and intelligently stated that it is what she wants; she has a good understanding of her birth family circumstances and a relationship with her siblings, her birthparents and her birth grandparents; and she also identifies as being a member of two families and as being one of the five "I" siblings. Further, an adoption order is the only order that offers G the absolute security that she needs to grow up and make sense herself and her very difficult family dynamics, without being made to feel guilty about, or responsible for, past events or adults' feelings. It is the only order that gives Q and N the complete security to support G to do this, as it protects them from future legal challenges to their right to parent G…
2. With respect to the proposed adoptive parents' ability to care for G, Ms Haskins wrote: Q and N have demonstrated capacity to meet G's needs within their family. I am impressed that N was able to support my suggestions for sibling only contact when she realised how much G had enjoyed it…
3. In relation to G's wishes regarding the adoption and her relationship with her siblings, Ms Haskins said: G has clearly stated for some time that she wants to be adopted by the "P" family. She told me "I want to be adopted" and "this is my family" … With regard to contact, G told me that she is happy to see K and her siblings together as long as N is present. G also told me that she would love to see L, Y, Z and A by herself. On the way home from our meeting at Wollongong Wharf, G was excitedly making plans about where her next "sibling only" contact would be and discussing what other sorts of things they could do together. G presents as an intelligent and open young person and she certainly is able to clearly articulate what she wants, but to also be guided by family rules. For example, she was telling me about when she will get her first phone, what type it will be and what she will use it for. She was happy with the agreed plan she had made with Q and N and presented as accepting of and sensible about family expectations to do with social media. I therefore consider that her views should be given significant weight.
4. I also note the affidavit annexing the Court Report of Elizabeth Shepherd (filed 24 October 2018). In her report, Ms Shepherd noted that G's birth father had informed her that "he may support the adoption proceeding if this is something G herself wants, although he would like to ask G herself". In relation to the proposed adoption and its alternatives, Ms Shepherd concluded that: Maintaining the status quo would not be considered in G's best interests as it undermines her sense of stability and belonging with her foster family and is therefore not considered to be the most preferable option for G. … A Parental Responsibility Order will not recognise the depth and significance of the relationships that exist between G, N and Q. G has additionally expressed her desire to be adopted by N and Q… Given the length of time G [has] been in care, the strength of [the] relationships between G, N and Q and J and B's presenting issues, restoration to either birth parent does not present as being a viable option now or in the future… Adoption is considered the most appropriate permanent case plan goal for G… G considers Q and N her psychological parents… … The assessor considers that an Order of Adoption will secure G's permanency within her foster family and legalise the strong parent-child relationship that already exists between G, N and Q.
5. I note the affidavit of the Delegate, Natarlia Murphy (filed 24 October 2018), as well as the affidavit of Caseworker, Melissa Riches (affirmed 8 April 2020). In her affidavit, Ms Riches recounted numerous home visits during which G expressed her strong desire to be adopted. For example, Ms Riches noted that during a home visit on 25 January 2019, G stated "I just want the adoption to go through so I can really be G P."
6. Annexed to Ms Riches's affidavit were copies of Ms Sedgwick's counselling report (dated 28 January 2020) and the Statement of Counsellor (made pursuant to ss 55(10(b), 61 and 63 of the Act). Ms Sedgwick concluded that G "is capable of and has the maturity to understand the effect of signing the instrument of consent." In her report she stated that: When asked to tell me what adoption was and what it would mean for her to be adopted, G replied that she would be adopted into the family and therefore would now be a "P". She understood that Adoption for her would mean that she would have a new birth certificate with the name "P" and the siblings on the birth certificate would be the carers biological children. G articulated that for her it would mean she can stay with the P family and that adoption would make her "happy" and she won't have to worry about anything else. G and I spoke about the changes to her birth certificate and she understood these and was happy to have N and Q on her birth certificate I went through the possible alternate orders that could be made. Which that she understood the difference with Adoption was it was permanent and does not expire. G understood that her caseworkers would no longer be visiting her and if she had a medical injury, she would not need their consent or to inform them. G stated she knows the process now is that another person will come after 72 hours to get her to sign and it will then go to Court. G wanted me to know she has wanted to be adopted since she was little, she said this with a big smile on her face. G shared she has friends who are adopted and who were a lot younger than her and she never understood why it would take so long for her. She told me about the camps she had gone to and met other foster children who had been now adopted. She presented as excited when discussing the fact, she will be adopted. G stated that she would like her name to be "G H P". She was very confident in the name change and is already known as this at school. G and I went through the consent forms and the form for revocation. I explained what each meant. G presents as a young 12-year-old girl with a simple view about the adoption but clearly understands that N and Q will be her legal parents and the ones to make the decision for her in the future. G was clear that her birth certificate will change, and that DCJ will no longer be involved in her life. G and I spoke about the fact that the relationships with her birth parents and siblings will end legally, which she stated she already understood.
7. I note the affidavits of the proposed adoptive parents. The proposed adoptive father affirmed one affidavit on 6 May 2019. The proposed adoptive mother affirmed two affidavits, one on 5 May 2019 and the other on 6 April 2020.
8. Finally, I note the affidavits of the referees and the affidavits of service and attempted service. Several unsuccessful attempts were made to serve the birth father with notice of the proceedings. Notice of the proceedings was eventually left with the birth father's mother, with whom the birth father is in regular contact. The father was also made aware of the proposal for G to be adopted through his communication with Ms Shepherd and other Departmental employees.

The first defendant's evidence

1. The birth mother affirmed one affidavit on 26 July 2019. She deposed that she has been diagnosed with depression, anxiety, bi-polar disorder and borderline personality disorder and is receiving treatment for her mental health issues. She stated that she has tried to have as much contact with G as she could throughout G's life, although there have been some breaks in contact due to her attendance at drug rehabilitation programs and G's surgeries and at other times. She stated the reasons why she (previously) opposed adoption and expressed that she "[does] not want [G] to lose her connection to me and my family through adoption. I also want her to be safe."

The second defendant's evidence

1. The maternal grandmother affirmed two affidavits, one on 26 July 2019 and the other on 12 August 2019. The second affidavit was filed after the maternal grandmother obtained legal representation. In that affidavit, the maternal grandmother described the relevant family relationships, her relationship with G, recent contact arrangements, her wishes in relation to future contact, and the reasons why she (previously) opposed the adoption.

The third defendant's evidence

1. L affirmed one affidavit on 26 July 2019. She described her relationship with G and her other siblings, past contact arrangements, her wishes as to future contact and the reasons why she (previously) opposed the adoption.

Submissions

1. Each party provided written submissions to the Court prior to the commencement of the hearing and before the discussions between the parties about amending the maternal adoption plan had concluded. Further submissions were made on behalf of each of the parties on the final day of the hearing.

The Secretary's submissions

1. The Secretary submits that an order for adoption is in G's best interests and clearly preferable to any other options available to the Court. In particular, the Secretary submits that G's consent and strong desire to be adopted by the proposed adoptive parents would be highly persuasive to the Court's determination of this matter. The Secretary also submits that the evidence establishes that the proposed adoptive parents have completely attended to G's medical and other needs, and that G has a very strong and secure attachment to, and identity as a member of, the proposed adoptive parents' family.

The first defendant's submissions

1. It is submitted on behalf of the first defendant that Ms Haskins' second report "neatly encapsulates" her concerns about the proposed adoption. First, it is submitted that the birth mother's hope that G can retain "I" somewhere within her name so as to reflect her history and "her whole family" is supported by Ms Haskins and the orders now sought by the Secretary. Secondly, her strong commitment to her five children having regular contact with each other is supported by Ms Haskins' recommendations and the amended maternal adoption plan. Thirdly, Ms Haskins was able to alleviate the birth mother's concern that the P family might move overseas with G following an adoption order. As a result, the birth mother does not stand in the way of the adoption and asks that G be specifically made aware, in an age appropriate way, that her birth mother has taken this approach.
2. Counsel for the first defendant further submits that the birth mother has prioritised G's best interests over her own issues and demands in this case. It is submitted that the proposed further amended adoption plan continues with a level of flexibility and a level of contact that will permit the birth mother and proposed adoptive parents to continue to work together so that G can see her birth mother. It is also submitted that the fact that the parties who are going to give effect to the proposed adoption plan have been able to agree on the specific terms of that plan would be a strong factor in favour of the Court accepting it.

The second defendant's submissions

1. The second defendant submits that she is a devoted grandmother to G's maternal siblings and that her involvement in proceedings relating to G has at all times been motivated by her desire to keep the siblings together and looked after by a close family member, which she believed to be in the best interests of all five children. Her consistent position has been that she loves G and would have liked to provide care and exercise parental responsibility for her. Having had the opportunity to give serious consideration to, and come to terms with, G's desire to be adopted, she no longer wants to oppose the adoption. She understands that the proposed adoptive parents have provided a home to G, and that G shares a loving bond with them, and she is thankful to the proposed adoptive parents for that. She takes comfort in the proposal that G will retain "I" as part of her name, and she submits that her overwhelming concern is now that she and G's siblings are able to cultivate and maintain an ongoing, consistent and meaningful bond with G moving forward. She also submits that she is keen to rebuild her relationship with the proposed adoptive parents so that contact arrangements can be facilitated efficiently and amicably.
2. At the hearing, counsel for the second defendant noted that the maternal grandmother had revised her position significantly in light of the new adoption plan and submitted that the contact arrangements in relation to G and her maternal grandmother as provided in that plan are appropriate.

The third defendant's submissions

1. The third defendant expresses sadness in relation to the adoption but accepts that it is G's wish to be adopted, and that G is an important member of both the P and I families. The most important concern for the third defendant is that she, Y, Z and A are able to continue having a sibling relationship with G, and to develop that relationship into one which will endure throughout their lives. She welcomes the proposal of sibling-only contact and submits that she is willing to facilitate that contact on behalf of the siblings. She also welcomes Ms Haskins' recommendation that G retain "I" as one of her given names.
2. Counsel for the third defendant also submits that Ms Haskins' support for the further amended adoption plan, and the parties' agreement on that plan, give confidence that everyone wants the arrangements set out in that plan to work. The third defendant therefore seeks orders in accordance with the adoption plan.

Consideration

1. Having regard to all the circumstances and the factors contained within ss 7 and 8 of the Act, I am of the view that an adoption order is in G's best interests and clearly preferable to any other action that could be taken in this case.
2. G has lived with the proposed adoptive parents continuously for almost 12 years, since she was five months old. While her sense of identity as a member of her two families appears to be strong, she considers the proposed adoptive parents her psychological parents and has consistently expressed a strong desire to be adopted by them. An adoption order would legalise that strong parent-child relationship, clarify the relationships between G and the significant people in her life, and hopefully assist them in building better relationships with each other, and give G a sense of certainty and stability as she moves into her teenage years. The proposed adoptive parents have shown commitment to meeting G's complex medical and other needs over the course of her life and I am confident that they are best placed to meet her physical, emotional and educational needs into the future.
3. The further amended maternal adoption plan has been formulated with the guidance and support of Ms Haskins and the agreement of all relevant parties. It also reflects with G's wishes. I am satisfied that the arrangements it proposes accord with the adoption principles set out in s 8, are in G's best interests, and are proper in the circumstances. I am therefore of the view that it ought to be registered.
4. I note that a paternal adoption plan was also filed but that G's birth father has not engaged in the proceedings and appears to have ceased attempting to have contact with G. I also note that several unsuccessful attempts were made to serve the birth father with notice of the proceedings, but that he did have communications with Ms Shepherd, the author of the s 91 Court Report. Notice was also provided to his mother, with whom he has regular contact. In these circumstances, I consider it appropriate to dispense with the giving of notice to the birth father.
5. G gave her consent to the adoption on 21 February 2020. I am satisfied that G is capable of giving sole consent to her adoption in accordance with s 54(2) and that her consent was informed (s 58(1)). She is 12 years old and has been cared for by the proposed adoptive parents for more than two years. She was counselled by Ms Sedgwick, a registered counsellor employed by the NSW Department of Communities and Justice, in accordance with s 63 of the Act. Ms Sedgwick described G's view about adoption as "simple" but concluded that she understands that adoption will make the proposed adoptive parents her legal parents who will make decisions for her in the future and is of sufficient maturity to understand the effect of giving consent. Ms Sedgwick went through the Mandatory Written Information with G and left it with G to read through further. She was also satisfied that the proposed adoptive parents had explained the information to G in a way she could understand (s 59(1)).
6. I am also satisfied that all of the other statutory requirements have been complied with. In particular, I am satisfied that G was present in the State when the adoption application was filed (s 23(2)(a)) and was 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)) and she was joined as the first defendant to these proceedings. For the purposes of s 87, the application was made by the Secretary. The Minister for Family and Community Services, who has parental responsibility for G, has, by an authorised delegate, consented to the adoption application.
7. 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 commitment and care they have provided to G over the past 12 years and the reports of Dr Lennings and Ms Haskins.
8. Finally, the Secretary seeks an order approving the name "P" as G's surname and "G H I" as her given names. G has expressed a wish to become "G P". Importantly in my view, a change in surname will reflect G's position within her adoptive family and hopefully assist in perfecting G's sense of identity and belonging to that family, while the retention of "I" will assist in maintaining a connection between G and her birth family. I am satisfied that this is in G's best interests.

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: 14 May 2020