Re ASK and the Adoption Act 2000 [2017] NSWSC 521

Supreme Court of NSW|2017-05-09|Before: Hallen J, Re Children J

South Wales Department of Family and Community Services (Plaintiff) D-NW (Defendant) Representation: Solicitors: Crown Solicitor (Plaintiff) File Number(s): A153/2016

Judgment

HIS HONOUR: In these proceedings, the Court is concerned with the future of a female child, ASK, who was born in March 2011, and who is now 6 years old. The Applicant on the Summons is the New South Wales Department of Family and Community Services ("The Applicant").
For the sake of preserving the anonymity of the parties, as is required by s 180 of the Adoption Act 2000 (NSW) ("the Act") and because it is an offence to publish the name, or the particulars relating to the identity, of any person by, or in relation to whom, an application for a declaration of parentage has been sought (Status of Children Act 1996 (NSW) ("the SC Act"), s 25), I shall refer, somewhat impersonally, to the child as "ASK", to the couple in whose favour the adoption order is sought, as "BCB" and "KM", to the mother of the child, as "NHM", and to the person who is said to be the father of the child, as "D-NW". The medium neutral citation has been anonymised accordingly.

The Proceedings

As stated, D-NW was named as the Defendant but he did not file an Appearance. As will be demonstrated, he signified his consent to some of the relief being granted.
NHM was not named as a Defendant, or formally joined, as a party to the proceedings. She has played no part at all in these proceedings for reasons to which I shall later refer.
Each of BCB and KM, are not parties to the proceedings. However, each has given evidence, by affidavit, relied upon by the Applicant in support of the relief sought in the Summons.
Even though it is often unnecessary to deliver written reasons for judgment in a case where there is no contested hearing, no person appears to defend the proceedings, and the Applicant does not seek written reasons, I considered that the Court should do so in view of the issues in this case.

Service of Documents Relating to the Hearing

The Applicant has encountered difficulty contacting NHM since 2012.
On 2 July 2013, contact was attempted with NHM but there was no response.
On 8 May 2014, NHM was able to be contacted by telephone. Discussion took place about the procedures and legal and emotional effects of adoption. She stated that she was open to giving consent to ASK's adoption but other issues prevented her from dealing with that issue at the time. NHM accepted that ASK was receiving "excellent care" and that adoption was in ASK's best interests.
On 8 May 2014, a copy of the Mandatory Written Information on Adoption was sent, by email, to NHM and an appointment was made for her to meet with a representative of the Applicant, on 16 June 2014, to discuss the Mandatory Written Information. (A copy of the Mandatory Information had been sent to her, by registered post, on 7 December 2012, but it was returned, unopened, on 29 January 2013.)
On 14 June 2014, a telephone message was left for NHM confirming the meeting, but NHM responded, by text message, stating that she could not attend and would call back. Further contact occurred on 25 June 2014, but it was not possible to arrange counselling, or to obtain a written consent for ASK's adoption, from her.
Since that time, representatives of the Applicant have experienced much difficulty meeting with NHM in person. For example, as outlined in the affidavit of the Delegate of the Applicant, Ms C L Davis: 1. On 12 February 2015, a home visit was conducted. No person answered the door and a note was left for NHM. It does not appear that NHM responded to the note; 2. On 6 April 2016, a further home visit was conducted. Again, no person answered the door and another note was left for NHM. It does not appear that NHM responded to this note either. 3. On 23 July 2016, telephone contact was again attempted, without success.
On 6 October 2016, the Caseworker Consultant, Ms T Bonnici, spoke with NHM, who stated words to the effect that she did not want anything to do with the adoption of ASK. Ms Bonnici telephoned NHM again on 7 October 2016 and on 11 October 2016, but each call went unanswered and she was unable to leave a voicemail message for NHM.
On 4 November 2016, a process server, instructed by the Crown Solicitor, on behalf of the Applicant, attended NHM's home address. He was informed that NHM no longer resided there.
On 11 November 2016, Ms Bonnici received a response from Centrelink in relation to a request for information about NHM's residential address recorded by Centrelink, pursuant to Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act"). This request confirmed NHM's address to be the address at which the process server had attended.
When contacted by telephone on 22 November 2016, the maternal grandfather of ASK provided a different residential address for NHM to the Applicant.
On 23, 24, 27 and 30 (on 2 occasions) November 2016, and then again on 5, 8 and 11 December 2016, another process server attended the new address and attempted service, again, unsuccessfully.
On 5 December 2016, Ms Bonnici contacted the maternal grandfather of ASK, who indicated that NHM was not likely to open her door to anyone. On 12 December 2016, Ms Bonnici spoke to the maternal grandfather again. During this conversation, the maternal grandfather stated some concerns about NHM's physical, and mental, health, and advised that she was refusing to meet with anyone to enable service of the required Notice. He repeated his concerns regarding the impact that receipt of the Notice documents might have on NHM. He agreed to speak to NHM regarding the attempts to provide her with the notice of ASK's adoption.
Ms Bonnici has not been contacted by NHM at any time since her conversations with the maternal grandfather of ASK.
I am satisfied that NHM has chosen to play no part in the determination of these proceedings. However, she has not formally consented to the order for adoption, or to the other relief, that is sought. In the circumstances, I shall deal with the matter on the evidence available.
There has been no recent difficulty experienced regarding service of documents upon D-NW.
On 31 July 2013, a copy of the Mandatory Written Information was sent by post to the two known addresses for D-NW. One was returned on 26 August 2013 and the other was accepted by him, but there was no response from him to requests to make contact.
On 12 February 2015, D-NW was handed a copy of the Mandatory Written Information in person.
On 6 April 2016, D-NW attended a meeting at the Child and Family District Unit, in Strawberry Hills, Sydney, to discuss ASK's proposed adoption, during which he was told what an Adoption Plan was and how it would affect his relationship with ASK. He stated that he intended to sign the Adoption Plan and to consent to the adoption of ASK.
On 4 May 2016, in accordance with the provisions set out in s 63 of the Act, D-NW was counselled by Mr A McMahn, a Registered Counsellor.
On 13 May 2016, in accordance with the provisions set out in s 53 of the Act and Clause 80 of the Adoption Regulation 2015, D-NW signed an Instrument of Consent to ASK's adoption.
On 25 May 2016, a notice of expiry of the revocation period was sent to D-NW by post, pursuant to s 74 of the Act.
On 23 June 2016, D-NW was telephoned and he was reminded that the revocation period for his consent was about to expire. He confirmed that he had not changed his decision to consent to the adoption of ASK.
I am satisfied that D-NW has consented to the adoption of ASK.

Background Facts

A comprehensive account of the history is contained in the affidavits filed for the Applicant. It is not necessary to repeat all of that history. The following facts are clearly established.
KM was born in Perth, Scotland, in October 1969, whilst BCB was born in Campsie, New South Wales, in March 1964.
KM and BCB were married in July 2001. They have one biological child, namely ERM, who was born in November 2002.
On 21 July 2011, some 5 months after the birth of ASK, the Children's Court of NSW, at Bidura, made final orders providing for ASK to be placed under the parental responsibility of the Minister for Family and Community Services until she attained the age of 18 years, pursuant to the Care Act. The orders include a notation that contact with the birth family would occur on no less than 4 separate occasions per year to be supervised by the Applicant. These orders remain in effect.
KM and BCB are "authorised carers". The Dictionary to the Act defines "authorised carer" as including any person who has care and responsibility for a child under out-of-home care arrangements made under the Care Act. Section 135A(1) of the Care Act, relevantly, provides that "statutory out-of-home care is out-of-home care that is provided in respect of a child or young person for a period of more than 14 days, pursuant to a care order of the Children's Court". The reference to "those carers" is, relevantly, a reference to the persons who have been caring for ASK and who seek to adopt her, namely KM and BCB: Director-General, NSW Department of Family and Community Services; re D [2012] NSWSC 223, per Ball J, at [17].
ASK was placed into the care of KM and BCB, when she was 5 months old, in August 2011. She has remained living with them and with ERM, continuously, since that time.
NHM was born in May 1984. D-NW was born in January 1979.
Whilst NHM was identified on ASK's Birth Certificate as ASK's mother, D-NW was not identified thereon as ASK's father. No father was recorded on ASK's Birth Certificate. However, there is evidence that D-NW and NHM were in a relationship at the time of ASK's conception. He is recorded as being the father of EB, another child born to NHM in November 2004 (or 2006), on EB's Birth Certificate.
D-NW has stated that ASK is his child. He has completed documents required to have his name included on ASK's Birth Certificate.
On 13 March 2015, D-NW signed a Statutory Declaration in support of his application to the NSW Registry of Births, Deaths and Marriages to have his details added to ASK's Birth Certificate.
On 21 May 2015, D-NW sent a letter to ASK introducing himself and acknowledging his paternity. Since June 2015, he has engaged in regular contact with ASK. It is usually on a monthly basis.
Since November 2011, ASK has been in regular contact with EB, her brother. It continues on a fortnightly basis, and coincides with EB's visits to their maternal grandparents.
On 22 November 2016, D-NW was served with a Notice of Application for Declaration of Parentage (under s 21 of the SC Act), a copy of the Summons filed in these proceedings, and a copy of the Adoption Plan for ASK. On 15 December, 2016, D-NW signed the Consent to Declaration of Parentage.
I am satisfied that D-NW has consented to the adoption of ASK by KM and BCB.
Since coming into care, ASK's contact with NHM has been virtually non-existent. There was a period of contact between 8 April 2011 and 15 June 2011 but not since then. It has proven impossible to obtain confirmation from her of any contact arrangements in the future.
At the date of these reasons, NHM, still, has not consented to the adoption of ASK by KM and BCB.
Generally, other maternal family members (the parents and sister of NHM) support the adoption of ASK.

Formal Matters

Next, I set out some of the formal factual matters that must be proved by the Applicant, which I am also satisfied have been established: 1. ASK was present in New South Wales at the date the application for adoption was filed: s 23(2)(a) of the Act . 2. BCB is an Australian citizen. When the application was filed, BCB was present in New South Wales: s 23(2)(b) of the Act. 3. KM is not an Australian citizen, but has resided in Australia for about 19 years. He is a permanent resident and intends to apply for citizenship within 2 years. 4. KM and BCB live in New South Wales: s 23(2)(b) and s 28(1)(a) of the Act. They have lived together for a continuous period of not less than 2 years. 5. KM and BCB each meet the age requirement, as KM is 47 years old and BCB is 53 years old: s 28(3) of the Act. They are, and have been, in a long-term married relationship. 6. ASK was less than eighteen years of age at the time the Summons was filed: s 24(1)(a) of the Act. She has lived with KM and BCB, continuously, for almost 6 years. She has never been in the care of either of her birth parents, having been assumed into the care of the Applicant, at birth, due to pre-natal concerns about the parenting capacity of NHM and D-NW. She has not had any contact with NHM for a number of years. 7. KM and BCB then, and now, are authorised carers, who have had care and responsibility for ASK under out-of-home care arrangements pursuant to the Care Act. 8. KM and BCB formally expressed interest in being approved as suitable, and being selected, to adopt a child when ASK came into their care. 9. Thereafter, on 15 July 2013, the suitability of KM and BCB to adopt a child was assessed, pursuant to s 45 of the Act. They were assessed in regard to health (including emotional, physical and mental health), age and maturity; skills and life experience; ability to undertake parenting tasks; abilities to attend to the specific needs of an adopted child; capacity to provide a stable, secure and beneficial emotional and physical environment for ASK; financial circumstances; capacity to support the maintenance of an adopted child's cultural identity and religious faith; appreciation of the importance of, and capacity to facilitate, contact with birth family and exchange of information about an adopted child with the birth family; general stability of character; criminal history (if any); and their relationship with each other (including stability and quality of the relationship) and other members of their family. 10. On 16 August 2013, KM and BCB attended a "preparation to adoption seminar" organised by the Applicant. 11. On 29 August 2014, KM and BCB signed an application form to adopt ASK pursuant to s 43 of the Act. 12. Following the assessment process, KM and BCB were deemed as fit and proper persons to adopt a child pursuant to the Act. 13. KM and BCB is each of good repute, and fit and proper: s 28(1)(b) of the Act. There are affidavits attesting to the good fame and character of each. 14. A National Police Certificate which was issued in respect of each of KM and BCB records "no disclosable court outcomes". According to advice provided by the Commission for Children and Young Peoples Working with Children Check and Screening Unit, each has no charges or convictions recorded against him and her respectively. 15. On 22 July 2016, a delegate of the Applicant, gave approval for the commencement of the adoption action in respect of ASK by KM and BCB. 16. KM and BCB have been selected in accordance with the Act. 17. The Applicant, by its delegate, has consented to the adoption order being made in regard to KM and BCB: s 87 of the Act. 18. D-NW has been provided with a copy of the Mandatory Written lnformation in regard to the adoption: s 59 of the Act. 19. KM and BCB and D-NW have agreed to an Adoption Plan which makes provision for ASK to have contact with members of her paternal birth family, including monthly contact with D-NW. 20. The paternal Adoption Plan is proper in the circumstances because it preserves current contact arrangements; it is flexible, because it takes into account ASK's age and development; because it will support ASK to understand family identity and will continue the development of her familial relationships. It will also enable her to continue to learn about her Maori heritage from D-NW. 21. KM and BCB have agreed to an Adoption Plan which makes provision for ASK to have contact with members of her maternal birth family. NHM has not participated in the development of the maternal Adoption Plan. Whilst there are no present arrangements for contact between ASK and NHM, KM and BCB have provided contact details, so that, in the future, if NHM changes her mind about seeing ASK, there is the ability to make arrangements to do so. 22. In addition, KM and BCB have agreed to provide news and information, including photographs, copy of school reports, and gifts to NHM, and have agreed to receive news and information from NHM. 23. I am satisfied that, if an adoption order is to be made, the arrangements proposed in each of the Adoption Plans are in ASK's best interests and proper in the circumstances. 24. Neither the Applicant nor D-NW has sought registration of the paternal Adoption Plan under s 50 of the Act. 25. The Applicant cannot seek the registration of the maternal Adoption Plan since NHM has not agreed to it. (In Director-General; Re JS [2013] NSWSC 306, Brereton J explained that only those parties to an adoption who have agreed to an adoption plan may apply to the court for registration of the plan, and that the parties to an adoption include the Director-General, the adopting parents and any consenting birth parent, but not a non-consenting birth parent.) 26. ASK has photograph albums documenting her life and contact with her birth family. In addition, BCB has compiled a brief story life book with photographs and a short narrative explaining how ASK came to live with BCB and KM, which is regularly updated. 27. ASK understands that she is going to be adopted by KM and BCB. 28. KM and BCB understand the legal ramifications of adoption. 29. There is no plan for the restoration of ASK to NHM, and so far as can be determined, no inclination by NHM to seek such restoration. 30. ASK has been admirably cared for by KM and BCB and, no doubt, will continue to do well in their care. It is clear that there are significant benefits for her in making an adoption order. She has established a stable relationship with them and her adoption by them will promote ASK's welfare.

Issue of Paternity

Under section 21(1)(d) of the SC Act, the Applicant is authorised to bring an application for a declaration of parentage.
Section 19(2) of the Births Deaths and Marriages Registration Act 1995 (NSW) provides that if any court makes a finding about a child's parents, the court may order inclusion of registrable information about the parents in the Register. Section 20 of that Act makes provision for alterations of details after the birth of a child has been registered.
In Farnell v Penhalluriack (No 2) [2008] VSC 214, Bell J, at [4], wrote (omitting citations): "Serious though the issue of paternity is, an application for a declaration of paternity is a civil application, and the standard of proof applicable in such proceedings is the ordinary civil standard, namely the balance of probabilities. As the High Court held in G v H in reference to the essentially beneficial nature of the paternity provisions of the Family Law Act 1975 (Cth), it was not necessary, in applications under those provisions, to prove paternity according to the higher civil standard that applies when the question involves a grave allegation. I think the paternity provisions of the Status of Children Act are analogous in this respect. Therefore, in an application for a declaration of paternity, it is sufficient to prove the facts according to the ordinary civil standard. The applicant does not have to achieve the higher civil standard discussed in Briginshaw v Briginshaw. The decision in G v H has overtaken the authority of earlier decisions that the higher standard was applicable."
Section 13 of the SC Act gives rise to a rebuttable presumption of paternity arising from a formal acknowledgment signed by the putative father, which states that he is the child's father. Section 13(1) provides the following: 1. A man is presumed to be the child's father if: 1. under this Act or other law of the State or a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction, the man executes a formal paternity acknowledgement or any other instrument acknowledging that he is the child's father, and 2. the instrument has not been annulled or otherwise set aside.
In this case, D-NW has signed the instrument acknowledging that he is ASK's father and the instrument has not been annulled or otherwise set aside. Furthermore, he has stated that he is ASK's father and has acknowledged this to her.
All of the available evidence to which I have referred, as well as other evidence that I have read, clearly establishes the paternity of ASK. I am satisfied that D-NW is the father of ASK. I shall so declare accordingly.
The importance of having a birth father's name added to a child's birth certificate for that purpose was acknowledged by Brereton J in Adoption of BS (No 3) [2013] NSWSC 2033, where his Honour noted, at [100], that: "Inclusion of his birth father's name on the original birth certificate would enable the child to access that information under the adoption information provisions in due course. If that information is not included, the birth father would be an "unacknowledged birth father" within those provisions, and the child would not be able to access information concerning him…"
Section 7 of the Act specifically provides that one of the objects of the Act is to ensure that adoption law and practice assist a child to know and have access to his, or her, birth family and cultural heritage. It cannot be doubted that it is important for ASK to know her true identity and origins. The concept of identity must include the recognition of relationships between a child and her, or his, parents.
As was pointed out by Nicholson J in H, AM v L, L [2013] SASC 7, at [83]: "... the effect of modern statutory approaches is such that very often a declaration of parentage, even though it may have the effect of establishing that a person had been born illegitimately, can be of great advantage to that person. It can be of great advantage financially such as would be the case in the present proceedings or following an application for maintenance under the Family Law Act. It also can be of significant benefit in other respects including providing the opportunity for a biological father and child to develop a close and rewarding relationship not necessarily in lieu of but often in addition to that which exists between that child and the person they believed, at first, to be their father…."
I do not have any doubt that it is in ASK's best interests for the Registrar of Births, Deaths and Marriages to be informed of the identity of ASK's birth father, and for this to be reflected on ASK's original Birth Certificate, and I shall so order.

The Legal Framework Regarding Adoption - Statutory Framework and Principles

I have dealt with the statutory framework and the principles in another case in some detail: Director General Department of Human Services; Re M [2011] NSWSC 369. I shall not repeat all that I said there. However, in view of the importance of this case to the parties, and to KM and BCB, I shall repeat some of the matters that are particularly relevant to this case.
Adoption is purely a creature of statute. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues unchanged. New family ties are created which approximate blood ties.
Following adoption, the child ceases, in law, to be a child of her, or his, birth mother and birth father and the brother or sister of his or her siblings. Thereafter, the child is regarded, in law, as the child of the adoptive parent or adoptive parents, and the adoptive parent, or adoptive parents, are regarded, in law, as the parents of the adopted child. An adoption order made by the Court gives sole parental responsibility for a child to the adoptive parents: s 95(1) of the Act.
Adoption will be an extremely important step in a child's life, which will determine her, or his, identity and family relationships throughout her, or his, remaining life. Thus, the making of an order must be considered, not as a means of determining with whom a child is to live, but as a way of making a child legally part of a new family, and severing any legal relationship with her or his birth family.
As has been pointed out in regard to the effect of an adoption order, in Oxfordshire County Council v X [2010] EWCA Civ 581; [2010] Fam Law 790 at [4]: "It is important to remember that this is not just some legal fiction. As Thorpe LJ said in Re J (Adoption: Non-patrial) [1998] INLR 424 at page 429, the result of adoption 'is the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences.'"
Section 7 sets out the objects of the Act and relevantly include: "(a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice, (b) to make it clear that adoption is to be regarded as a service for the child concerned, (c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage, (d) to recognise the changing nature of practices of adoption, … (g) to encourage openness in adoption, (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."
Under s 8(1)(a) of the Act, the "paramount consideration" in making a decision about the adoption of a child is the best interests of the child, both in childhood and in later life.
As I noted in Director General Department of Human Services; Re M at [89]-[90] (cited with approval by Bergin CJ in Eq in Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926 at [93]): "Of course, and unsurprisingly, there is no definition of either of the terms "the best interests" or "the paramount consideration" in the Act. However, judicial statements as to the meaning of the latter term abound. The thrust of Australian authority is that "paramount" means "overriding": In the Marriage of Kress [1976] FLC 90-126; In the Marriage of H [1995] FLC 92-599 (at 81,974). The word does not indicate exclusivity. The test to determine the best interests of the child cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. There must be a judicial evaluation and balancing of many factors from which an overall conclusion is reached on a concept that is inherently imprecise: Re B (A Minor) [2001] UKHL 70 at [16]; [2002] 1 All ER 641. The approach to be adopted is for the Court to weigh, and balance, those factors, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have."
When making a decision about the adoption of a child, the decision maker is also to have regard to other principles specified in s (8)(1), including, relevantly: "(b) adoption is to be regarded as a service for the child, (c) no adult has a right to adopt the child, (d) the child's given name or names, identity, language and cultural and religious ties should as far as possible, be identified and preserved (e) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare."
In Adoption of KH [2015] NSWSC 274, Brereton J noted at [20], that: "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 adequately being met."
Section 8(2) of the Act requires the Court to have regard to the principles at s 8(2)(a) - (k) when determining the best interest of the child, namely: "(a) any wishes expressed by the child, (b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant, (c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity, (d) any disability that the child has, (e) any wishes expressed by either or both of the parents of the child, (f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant, (g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, (h) the nature of the relationship of the child with each proposed adoptive parent, (i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child, (j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour, (k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child's circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child."
Section 52 of the Act provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age and who has not been previously adopted unless consent has been given by each parent of the child. Consent is not required in a number of circumstances, including, but not limited to, where the Court has made a consent dispense order: s 54.
Section 56 of the Act also provides for the birth mother to be given an opportunity to consent.
There is no signed "instrument of consent" from NHM (s 61 of the Act).
Section 66 of the Act provides: "A requirement for the consent of a child or any other person to the child's adoption under this Act can be dispensed with if the Court makes an order under this Division dispensing with the requirement (a consent dispense order)."
In certain circumstances, the Court can make a consent dispense order, dispensing with the requirement for consent to an adoption. Relevantly, s 67 of the Act confers a power on the Court to make a consent dispense order in relation to the requirement for consent by a parent if the Court is satisfied of certain matters.
White J (as his Honour then was) explained in Re K & The Adoption Act 2000 [2005] NSWSC 858 at [21]: "Before consent can be dispensed with under s 67, it is necessary, but it is not sufficient, that the Court is satisfied that dispensation of consent is in the best interests of the child. In order to dispense with the consent, one of the paragraphs in subs 67(1) must be satisfied."
The Applicant has referred to s 67(1)(a) of the Act as a ground for making a consent dispense order, submitting that the Court should be satisfied that NHM cannot, after reasonable inquiry, be found or identified.
On the evidence that I have read, I am unable to be so satisfied. As the submissions state: "Whilst the Secretary has located [ASK's] birth mother and has communicated with her regarding [ASK's] proposed adoption, it is submitted that the birth mother is unwilling to engage with attempts to personally serve her."
"Engagement" is not what the sub-section requires. It seems to me that other enquiries could be conducted to locate NHM, including making further enquiries of each of her mother and father, and, perhaps, Centrelink (again).
However, the Applicant also relies upon s 67(1)(d), which relevantly provides that: "(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child: (i) the child has established a stable relationship with those carers, and (ii) the adoption of the child by those carers will promote the child's welfare, and (iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36"
The inclusion of s 67(1)(d) in the Act reflects a policy decision that once a child has, by judicial decision, been removed from her, or his, birth parents, and placed in permanent out-of-home care, the rule that legal parental relationships are not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption: Adoption of KH, at [62].
In Re Adoption of RCC [2015] NSWSC 813, Brereton J made the following remarks, at [11] and [17], with respect to the history and rationale for s 67(1)(d): "… It is not the role of this Court in these proceedings to review the decisions that have been made by the Children's Court in respect of parental responsibility; nor even to determine whether in the different circumstances that prevail today such an order would still have been made; but rather to judge which of the competing proposals (and any viable alternatives) will best serve the interests of these children now and in the future, given what has already happened. … Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child's welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006), as enabling consent to be dispensed with where adoption would enhance a child's sense of belonging and permanence in the carers' family notwithstanding that there is no concern about the child's current welfare (as distinct from the child's welfare at the beginning of the placement). As the Court of Appeal observed in Re Sarah [2013] NSWCA 379, [68] - endorsing what Slattery J had said in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, [59] - the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child's present situation. Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child."
In Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, Slattery J wrote, at [72]: "Consent dispense orders have also been made: where a birth parent does not seek to appear at a hearing, although the parent is clearly aware of the proceedings and chooses to play no part; where the views of the birth parent have changed throughout the adoption process; and where the parents are ambivalent about giving consent: cf Director General Department of Human Services; Re M [2011] NSWSC 369."
ln this case, KM and BCB are the authorised carers of ASK, and she has been in their care for almost 6 years, since she was five months old. It is clearly a stable relationship. The evidence establishes that ASK is developing into a healthy and happy child under their care. A reasonable amount of time has passed, so that there is a level of secure and robust attachment between KM and BCB and ASK.
Section 67(2) further provides that the Court must not make a consent dispense order unless satisfied that to do so is in the best interests of the child.
ASK, on the evidence, seems to have a sense of strong family identity. KM and BCB are committed and loving parents, and ASK has her primary attachment to them. There is no prospect of restoration to NMH. An adoption order will confirm and formalise ASK's status as a part of the only family she has ever known.
Thus, I am satisfied, on the evidence, that the adoption of ASK by KM and BCB will promote ASK's welfare. I am prepared to, and shall, make a consent dispense order, dispensing with the consent of NHM.
Section 70(1)(b) of the Act permits the Court to make a consent dispense order in conjunction with an adoption order.
Notice of the intention to apply for an order dispensing with consent is required: s 72(1)). The Applicant has endeavoured to provide such notice to NHM within the relevant time period but she does not wish to engage. I consider, in the particular circumstances of this case, that it is desirable to make a consent dispense order without notice of the application having been given to NHM: s 72(2)(c) of the Act.
For the purposes of s 88, the only person who is required to consent to the adoption and who has not given consent is NHM. Even if I did not consider, in the particular circumstances of this case, that it is desirable to make a consent dispense order without notice of the application having been given to NHM, I would be prepared to make an order, under s 88(4) of the Act, dispensing with the giving of such notice to her.
For the purposes of s 87 of the Act, the application is made by the Secretary. The Minister, who has parental responsibility, has, by an authorised delegate, consented.
The Court may not make an order for the adoption of a child unless a report, in writing, concerning the proposed adoption has been provided to the Court: s 91(1) of the Act. A Confidential Affidavit has been provided. The author of the report has the requisite delegation to prepare that report.
Under s 90(1)(a) of the Act, an adoption order cannot be made unless the Court is satisfied that the child's best interests will be promoted by the adoption. Section 90(3) provides that adoption must be "clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child".
In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J, at [14], stated that s 90(3) requires: "… something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]]."
Brereton J, at [15], reiterated the principles that his Honour had previously expressed in Adoption of NG (No 2) [2014] NSWSC 680 at [16]-[17]: "The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows: ● Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships; ● Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and ● Concerning the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them. In addition, all these are informed by the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption."
In Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926, Bergin CJ in Eq, similarly explained, at [99], that: "The words 'clearly preferable' in s 90(3) do not require the court to be satisfied 'beyond reasonable doubt'. Rather "the word 'clearly' serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision": Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 at [53] (Palmer J) and that the order for adoption be "obviously, plainly or manifestly preferable" to any other alternative: Director-General, Department of Community Services NSW v D at [25] (Brereton J)."
In reaching the conclusion, "a global, holistic evaluation of the options available for the child's future before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare" should be undertaken: Re G [2013] EWCA Civ 965.
In Adoption of SVS [2015] NSWSC 2043, Brereton J wrote, at [25]-[28]: "Consideration of this question, as usual, commences with the generalities. The best resort the Court can have to understand the respective benefits of long term foster care and adoption is to what the social science, soft as it may be, tells us, and it was deployed in this case through the evidence of the parties' single expert Jenny Howell, forensic psychologist. She referred to the works of Triseliotis and of Bohman & Sigvardsson, which are commonly referred to in this area, and said: Research examining outcomes connected to adoption and long term fostering found as the key differences between the two forms of substitute parenting high levels of emotional security and the sense of belonging and general wellbeing in children who were adopted (Triseliotis 2002). Attention has been drawn to the sometimes ambiguous position of children in long term foster care, suggesting that, unlike adoption, many children in long term care feel unusually insecure and lack a strong sense of belonging (Bohman and Sigvardsson 1990). Studies have identified that the insecurities were concentrated in two areas: anxiety and uncertainty on the part of the child and carers due to the impermanence of their position, and the lack of certainty in their position. The practical effect of adoption in a case such as the present is to perfect the child's membership of the family of which in every other sense she is a member, and which is essentially the only family she has ever known. It brings the legal relationship of parentage into conformity with the reality of the situation. It also means that the child becomes a child of the adoptive parents, not just until she attains 18 years of age, but for life. It confirms her identification with the family with which she lives and which she sees emotionally and psychologically, as well as physically, as her family. It ends her status as a ward of the Minister and means that she is no longer in "out-of-home care" but in "in home care". It removes any residual doubts, remote as they may be, as to the future security of her placement. On the negative side, adoption severs the legal relationship with her birth family. But it has to be said that that has been a very limited relationship. She has had no relationship, so to speak, with her birth father, whose surname she bears. Her relationship with her birth mother has been limited to occasions of contact. Severing the legal relationship will not sever the biological relationship, nor will it detract from the potential for developing a meaningful relationship through ongoing contact. In terms of developing and sustaining a relationship between SVS and KF, I do not see that adoption has significant detriment as distinct from the status quo."
I am satisfied that, taking into account all relevant matters referred to in s 8 of the Act, and in particular the attitude of each of KM and BCB to ASK, and to the responsibilities of parenthood, the nature of the relationship of ASK with each of them, and the suitability and capacity of each of them to provide for the needs of ASK, including her emotional and intellectual needs, the best interests of ASK would be promoted by her adoption by KM and BCB.
In this case, I am also satisfied that adoption will provide ASK with the security of belonging, permanently, in the family who is committed to her and which is able to meet her needs. That is far preferable to the only realistic alternative, which is that she simply remain in the care of KM and BCB, without the security and sense of belonging that adoption will bring. ASK's legal status will be brought into conformity with what has been her reality almost since her birth. ASK identifies exclusively with KM and BCB as her family, given the role of each in her life to date. Their family provides a far greater component of her identity than her maternal origins.
No doubt, ASK has the same general physical and emotional needs of children of her age, requiring a loving, stable and supportive home, where she is kept safe, and where these needs will be met. ASK will be a member of BCB and KM's family, not only during childhood but for life, a situation which would not otherwise necessarily pertain.
As has been noted in the s 91 report: "The priority of stability, security, permanence and belonging are critical considerations for any child in out of home care. The goal of securing these outcomes for [ASK] is unlikely to be achieved to the same degree with any order other than adoption. A Sole Parental Responsibility Order expires upon the child attaining 18 years of age and therefore does not provide the permanence and social recognition that an Adoption Order does. A Sole Parental Responsibility Order would not provide [ASK] with automatic inheritance rights either."
For these, and the other reasons set out above, an adoption order will be made.

The Adoption Plan

As described in s 46 of the Act, an "adoption plan" is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to: 1. the making of arrangements for the exchange of information between the parties in relation to any one or more of the following: 1. the child's medical background or condition, 2. the child's development and important events in the child's life, 3. the means and nature of contact between the parties and the child, and 1. any other matter relating to the adoption of the child.
It has been said that "a significant element in meeting the identity needs of a child who does not reside with his or her birth family is birth parent contact": Adoption of NG (No 2), per Brereton J, at [59].
An Adoption Plan that outlines a proposal for post adoption family contact with D-NW has been referred to. The Adoption Plan, in each case, has been signed by D-NW and by the Applicant's delegate. It is, therefore, an "adoption plan" within the meaning of the Act.
Where a birth parent does not consent to the adoption of the child, under s 46(2A), the birth parent must "as far as possible" be "given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child".
Section 50 of the Act provides that a Court may register an adoption plan if it is satisfied that the plan does not contravene the adoption principles, the parties to the adoption understand the provisions of the plan and have freely entered into it, and the provisions of the plan are in the child's best interests. (See also s 90(2) of the Act).
In Re JLR, Bergin CJ in Eq described the history of the legislation governing adoption plans as follows (at [116]-[118]): "… In Director-General, NSW Department of Family and Community Services; Re JS [2013] NSWSC 306 Brereton J identified what his Honour regarded as a lacuna in the legislation in respect of adoption plans. His Honour said at [8]: It will be apparent that it is only those parties to an adoption who have agreed to an Adoption Plan who may apply to the Court for registration of the plan. The parties to an adoption include the Director General, the adopting parents and any consenting birth parent, but do not include a non-consenting birth parent. This is a matter which, to my mind, is a lacuna in the current legislative structure and requires the attention of the Law Reform Commission or the Minister with a view to addressing the situation. There are many birth parents who, like the father in this case, feel unable to consent to an adoption while not formally opposing it. They would feel much less reticent if their rights of contact could be secured by an Adoption Plan. The Act was amended on 29 October 2014 by the Child Protection Legislation Amendment Act 2014 No 8 to insert ss 46(2A) and (2B) into the Act (the 2014 amendment). Also in that case, Brereton J said at [12]: However, as a person having the benefit of a deemed order, as the plan becomes upon registration, even though not a party to the plan, as a result of s 50(4) would have standing to apply for enforcement of the deemed order arising from registration of the Adoption Plan, even if not for its review."
It is important to recognise that a child's relationship with her, or his, birth parents does not cease upon the making of an adoption order. All that ceases is the legal parental relationship, which is effectively transferred to those who are exercising and discharging the legal responsibilities of parenthood. Nothing can take away the biological link that exists, and the emotional and psychological ties, such as they are, and will be sustained by birth parent contact.
Furthermore, arrangements for birth parent contact are relevant to whether an adoption order should be made, because they bear on whether the child's identity needs will be adequately met, and thus whether adoption is in the child's best interests: Adoption of KH, at [41].
I am satisfied that the arrangements proposed in the Adoption Plan are in ASK's best interests and proper in the circumstances.
In any event, as Brereton J has pointed out many times, "adoption plans are not set in stone, and a birth parent retains the ability to apply to the court for contact or for a variation of the adoption plan, if that becomes necessary in the future": Adoption of KH, at [43].

Change of Name

Section 101(1)(b) of the Act provides that on the making of an adoption order, a child under 18 years of age is to have "as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents".
Under s 101(2) of the Act, before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's wishes.
In the present case, ASK is too young for the Court to give weight to her wishes. However, as noted by Brereton J in Adoption of RCC and RZA at [104], the principles set out in s 8 should also be considered by the Court, including relevantly s 8(1)(e) which states that "the child's given name or names … should, as far as possible, be identified and preserved".
His Honour continued at [105]: "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. …"
The Court is prohibited from approving a change in the child's given name(s) unless it is satisfied that to do so is in the child's best interests: s 101(5) of the Act. For these purposes, the addition of a further given name amounts to a change of name: Director-General, Department of Community Services v Adoptive Parents [2005] NSWCA 385, at [39]-[41]; Re KSE & Adoption Act 2000 [2006] NSWSC 92, at [17]; Adoption of GWL [2013] NSWSC 1527, at [34].
In Application of H & H, child JW [2011] NSWSC 93; (2011) 45 Fam LR 681, I wrote, at [38] - [42]: "The court may only order a change of given name under s 101(5) if it "is satisfied that the name change is in the best interests of the child". Thus, the section, like others in the Act, contemplates individual justice. The decision maker is obliged to consider the best interests of the particular child in the particular circumstances of the case. How the court determines what is in the best interests of that child is not prescribed. Of course, there is, in sub-s. (2), the requirement to 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. However, the ultimate, and only, principle that guides the test under s 101(5) is what is in the best interest of the child. The test cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. The approach to be adopted is for the Court to weigh, and balance, the factors that are relevant, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have. Importantly, the focus is on the best interests of the child, not the interests of the applicants as the adoptive parents. This does not mean that their legitimate interests and desires, or their views on what is in the best interest of the child, should be ignored. However, the touchstone for the Court's ultimate decision on whether to permit the change of a given name, remains the best interests of the child. Thus, in deciding whether it would be satisfied, the Court should consider all of the circumstances of the particular case before it, and decide whether those circumstances, taken together, justify a name change in the best interests of the child."
What I wrote was followed by Ward J (as her Honour then was) in Application of AW and IW Re Children J and J [2011] NSWSC 1529 and in Application D and D; Re Y [2013] NSWSC 1477.
In this case, ASK is too young to express any wishes, or considered views, as to the change of her name, although she has stated that she will have the surname "M" (KM's surname). She is also too young to have identified with her current surname. She will retain the names given to her by NHM, thereby retaining a sense of personal identity as well as assisting in retaining the link to NHM.
As stated, s 8(1)(e) of the Act requires a decision maker to have regard to the principle that the child's given name, or names, should, as far as possible, be identified and preserved. That objective is made subject, by the language of s 8(1) itself, to the "paramount consideration" of "the best interests of the child, both in childhood and in later life" as set out in s 101: Application of O and P [2005] NSWSC 1297 at [105].)
By the change of surname, she will share the same surname as KM and BCB and ERM. This will provide her with a sense of security and stability and foster the family relationship and identity now and in the future. It will also demonstrate and reinforce the commitment of KM and BCB to ASK, which is likely to be of benefit to ASK.
ASK does currently have a middle name. The addition of additional name will also provide her with a sense of belonging. The proposed name changes seem to me to be clearly desirable in ASK's best interests and accordingly, the orders sought in regard to the change of ASK's name will be made.

Conclusion

Although the declaration and orders, when entered, will refer to the names of the relevant persons with precision, and completely, the Court for the purposes of these reasons: 1. Declares pursuant to Status of Children Act 1996 (NSW), s 21(2), that D-NW is the father of ASK. 2. Orders pursuant to Births Deaths and Marriages Registration Act 1995 (NSW), s 19(2), that D-NW be included as the father of ASK in the Register of Births Deaths and Marriages. 3. Orders pursuant to Adoption Act 2000 (NSW), s 67(1)(d), that the consent of the child's natural mother, NHM, be dispensed with. 4. Orders, pursuant to Adoption Act 2000 (NSW), s 88(4), that the Court dispense with the giving of notice on NHM. 5. Orders for the adoption of the child, ASK, in favour of the adopting parents, KM and BCB. 6. Orders that the name "M" as the surname and "ASKM" as the given names of the child be approved.
I am satisfied that publication of my reasons for Judgment in this case will not result in contravention of s 25 of the SC Act. I authorise the publication of the reasons for Judgment, but of no other document relating to the proceedings.

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: 09 May 2017

Births Deaths and Marriages Registration Act 1995(NSW)

Children and Young Persons (Care and Protection Act 1998(NSW)

(Status of Children Act 1996(NSW)

(2007) 37 Fam LR 595

(2006) 36 Fam LR 142

(2011) 45 Fam LR 681

At a glance

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