Director-General and Dept of Family & Community Services v GKD [2012] NSWSC 14

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JUDGMENT (EX TEMPORE)

1   HIS HONOUR: By a summons filed on 11 November 2011, the Director-General claims an order for the adoption of the child N in favour of proposed adopting parents with whom the child has resided for the last 12 years, since she was 5 and a half years of age.

2   N, who is now more than 17 and a half years of age, was removed from the care of her natural parents and placed in the care of the Minister by an order of the Children’s Court made on or about 14 October 1999. The circumstances surrounding that removal have, so far at least as N’s father GKD is concerned (and I gather also so far as other members of GKD’s family are concerned), been highly controversial and the subject of extensive litigation in many courts and tribunals. Some of that litigation is still on foot. However, as I have endeavoured to explain in the course of submissions today, the fundamental issue for this Court is whether, having regard to N’s interests as the paramount consideration, making an adoption order today will advance N’s interests and be in N’s best interests for now and the future. The Court, on this type of application, is not concerned with the rights and wrongs of the past, particularly something that happened 12 years ago, as I think GKD, in the course of his submissions responsibly acknowledged when he said words to the effect, “We cannot fix the past”.

3   N, who as I have said is now approaching 18 years of age, has given a child’s sole consent to adoption under (NSW) Adoption Act 2000, s 55(1), by instrument dated 20 July 2010. She was counselled by a registered counsellor in that respect [see Adoption Act s 55(1)(a) and s 63], and provided with the mandatory written information on 16 July 2010. As a result of N having given such consent, the consent under s 52 of N’s parents, and of any person such as the Minister who has parental responsibility for her, is not required – N having been cared for by the proposed adoptive parents for more than 2 years [see Adoption Act s 54(1)(c) and s 54(2)].

4   As I recorded in the judgment that I gave on 20 December 2011 [ Director-General Department of Family and Community Services v GKD [2011] NSWSC 1637], notice under s 54(3) of the Act was given to the child’s natural mother, who has filed no notice of appearance nor otherwise herself indicated any intention to oppose the application. Notice was also given to the child’s natural father GKD, who, on 23 November 2011, filed a notice of appearance, and appeared before the court on 20 December 2011, when I ordered on his application that he be joined as a defendant, and directed that a copy of the affidavit evidence and reports proposed to be relied on by the Director-General be served on him, with certain aspects of those affidavits and reports redacted to preserve the confidentiality of the proposed adoptive parents, and adjourned the proceedings to today with a view to finalising them if possible. That has taken place, and GKD has now had the opportunity to review the evidence relied on by the Director-General. GKD has also himself served and provided to the Court a substantial body of written material, and appeared before the Court and made submissions today.

5   I should record that, in the course of his submissions, GKD asked initially whether “Georgina Robinson” was available for cross-examination. Both he and I were confused: Georgina Campbell is the Acting Manager Client Services of Community Services in the Department, and swore the two principal affidavits in support of the application, while Nicole Robinson is a clinical psychologist who prepared a report tendered in the Department’s case, dated 5 May 2010. As it turned, out they were not available (unsurprisingly, since no notice to attend for cross-examination had been given), but I did seek to ascertain what it was that GKD would wish to explore with them were they available and, as I understand his position, it was primarily to do with the circumstance that Ms Robinson’s report was prepared in May 2010, at a time when GKD was not in Australia. On evidence that he put before me it is clear that GKD entered the Peoples Republic of China on 5 May 2010 and exited on 25 May, apparently for the purposes of being married there on 7 May 2010. However, I see no indication of anything sinister in the preparation of Ms Robinson’s report at that time. N was seen by Ms Robinson twice in April 2010. The report was signed and dated 5 May 2010. It was 9 years then since N had last had contact with GKD, and the focus of the report is N’s capacity to consent and N’s views on contact, so it was directed only to N’s views, and did not require consideration of the views of others, or consultation with them.

6   In essence, the case in favour of making an adoption order may be summarised as being that N has lived with the proposed adoptive parents for 12 years now, that she identifies with the proposed adoptive family as her family, that she has not had contact with GKD for 10 years, that she has expressed a strong wish herself that an adoption order be made, and that such an order will afford to her a sense of security and permanency of belonging in the family that she sees as being her real parents, while not preventing contact with her birth family in the future should she wish that to take place – although she does not presently desire it. To that it might be added that restoration of N to her birth family, in the few months before she turns 18, is simply not a realistic possibility, and it is not something that N presently desires or seeks.

7   GKD’s position, as previously, is – I think understandably, from a father’s perspective – somewhat ambivalent. On the one hand, he does not wish to stand in the way of something that N desires, if it is in her interests. On the other, he recognises that there is an additional element of permanence involved in an adoption order, and is unconvinced of the necessity for such an order in circumstances that appear stable, at least until an effort has been made to see whether there can be some reconciliation between N and her birth family.

8   The evidence that GKD has served and provided to the Court – for the most part, at least – goes to the historical dispute over N’s removal and subsequent events, including considerable detail about the litigation that has ensued. It does not – for the most part at least – address the critical question of N’s present and future interests. When I asked him to focus on those matters as the critical issue, GKD expressed his position, very fairly, that as a concerned father he was not convinced of the necessity for such an order.

9   The considerations that inform the Court’s determination as to whether to make an adoption order are essentially those listed in Adoption Act, s 90.

10   Pursuant to s90(1)(b), the Court must be satisfied, as far as practicable and having regard to the age and understanding of the child, that the wishes and feelings of the child have been ascertained and due consideration given to them. As I have recorded, N has given a child’s sole consent to the adoption. She was interviewed in April 2010, when she was almost 16 years of age, by Ms Nicole Robinson, clinical psychologist. Ms Robinson summarised that N has a mild global disability alongside hearing impairments, sight difficulties and spastic diplegia. She reported:

Overall, N appears to have the capacity to consent to her own adoption and understand the effects of it, however, not as her chronological age would suggest but more reflective of her mental age as an early adolescent. N was initially more focused on the change of name and new birth certificate which represents her primary motivation for being adopted. However having explained the ordinary, legal and personal effects of adoption to N in concrete and developmentally appropriate ways N was able to process and articulate this and therefore can provide an informed consent to her own adoption.

11   In a subsequent report given on 22 September 2011 for the purposes of s 91 of the Act, Ms Kelly Denzel, a case worker, reported that it was N’s wish to be adopted and that she had given consent to her own adoption.

12   I am satisfied that the wishes and feelings of N have been ascertained and have been given due consideration. To my mind, in the light of her age, they carry considerable weight. I do not overlook the fact that she has not had contact with her birth family – except for one sibling – for many years, but it is clear on the evidence as a whole that she has a strong wish to be adopted by the proposed adopting parents, founded in her experience of having been in their care for more than a decade.

13   For the purposes of s 90(1)(c), I am satisfied that the proposed adoptive parents have been selected in accordance with the Act. For the purposes of s 90(1)(d), sole consent having been given by N, I am satisfied that consent to her adoption has been given by every person whose consent is required under the Act.

14   The fundamental issues then are those presented by s 90(1)(a), namely, whether the best interests of the child will be promoted by the adoption; and s 90(3), whether the making of an adoption order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. In one of the authorities to which his material referred , Director-General, Dept of Community Services (NSW) v D and Others (2007) 37 Fam LR 595; [2007] NSWSC 762, I observed that this required a comparison of the situation if an adoption order were made, with the situation that would prevail if no such order were made.

15   As I have foreshadowed, at least for the short time while N remains a child, and on the probabilities for some considerable time thereafter, the reality is that N’s life arrangement are likely to remain as it has been for the last 12 years, that N will live as if a member of the family of the proposed adoptive parents. Restoration to her birth family is not a realistic alternative in that timeframe, if at all.

16   The real alternatives then are adoption or remaining in care – that is, in the parental responsibility of the Minister but in the care of the proposed adoptive parents pursuant to the extant order of the Children’s Court. Where a permanent option is available, and restoration to the birth family not realistic, there is a great deal to be said for providing a permanent solution in the interests of the child, rather than ongoing State care. In this case, the proposed adoptive parents have cared for N with diligence, dedication and success for 12 years; they are plainly committed to N’s welfare. That is not to say for a moment that GKD is not genuinely concerned about N’s welfare, but to reflect the reality of the situation, whatever the rights and wrongs of the past.

17   As has been pointed out, should N wish to resume contact with her birth family, making an adoption order will impose no obstacle to that course. Again, the rights and wrongs of the past as to why contact has broken down are, in the circumstances of this case and the time that has passed, of marginal if any relevance as to how best to secure and advance N’s interests presently and in the future.

18   I should refer to one particular and current aspect of the extensive litigation which has taken place and remains on foot between the parties, at least so that it is clear that I have not overlooked it. On 22 July 2011, GKD filed an application under (NSW) Guardianship Act 1987 with the Guardianship Tribunal for guardianship and financial management orders in relation to N. I should further record that the application was the subject of a directions hearing on 10 November 2011, following which an order joining the Department as a respondent was made. The proceedings before the tribunal now apparently await further directions there.

19   In that application, while stating that he seeks appointment as “a guardian and a financial manager”, GKD explains the reason he thinks a guardian is needed as being:

I am worried about N’s situation. I am her next of kin. She is on my Medicare card and I am her natural father.

20   That concern, resulting from a situation in which he has not had contact with N for 10 years is, as I have said, quite understandable, and the application may well be a manifestation of his genuine concern for N. However, there is nothing in the application to dissuade me from a view that N’s best interests will be served by making an adoption order.

21   I can well understand, from a father’s perspective, GKD not being convinced of the necessity for an order, but I am satisfied on the evidence as a whole that the best interests of N will be promoted by adoption – essentially because it will give legal recognition to the practical reality of her situation, because it is preferable to remaining in State care, and because it will provide N the security and permanency of an adoptive family in which her legal parents will be those who she sees as her real parents, without precluding the possibility of resuming contact with her birth family should she so wish in the future.

22   For the same reasons, I am satisfied that an adoption order is clearly preferable to any alternative that could be taken by law in the circumstances.

23   The summons also seeks an order that the court approve the names ‘NL’, as the forenames, and ‘W’ – being the family name of the adoptive parents – as the surname, of the child. Adoption Act, s 101(1)(b) provides that an adopted child who is less than 18 years of age is to have as her surname and given names such name or names as the Court in the adoption order approves on the application of the adoptive parent or parents. Section 101(2) provides that before changing the surname or given 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. Section 101(4) provides that approval of a change in the given name or names of a child who is over 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change.

24   In this case, N’s sole consent includes a request that she be known by the names ‘NLW’. As that is N’s request, that seems to me a compelling reason to make the order she seeks. That is all the more so since in a few months time she would be able to change her name herself at law.

25   For the foregoing reasons, I will make an order for the adoption of the child in favour of the proposed adoptive parents and approve the name ‘W’ as the surname, and ‘NL’ as the given names of the child. The plaintiff should bring in an amended draft of the order omitting the paragraphs that unnecessarily provide for consent dispense orders, and I will thereupon make the order in chambers.

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