Director General Department of Human Services; Re M [2011] NSWSC 369 (3 May 2011)

Last Updated: 17 May 2011

Supreme Court New South Wales

Case Title:	Director General Department of Human Services; Re M
Medium Neutral Citation:	[2011] NSWSC 369
Hearing Date(s):	6, 7, 8 and 13 April 2011
Decision Date:	03 May 2011
Jurisdiction:
Before:	Hallen AsJ
Decision:	(a) It is in M's best interests that an adoption order should be made now, in preference to any other course of action. (b) It is in the best interests of M, to make a consent dispense order under s 67(i)(d) of the Act in respect of each of M's natural parents. (c) It is in M's interests that he be given the surname of his adoptive parents. (d) Orders as sought by the Plaintiff in the Summons.
Catchwords:	Application for the adoption of a child in favour of a married couple - Father of the child opposes orders - Mother of the child does not consent but did not appear at the hearing. Application for an order dispensing with the consent of the natural parents under s 67(1)(d) of the Adoption Act 2000 (NSW) and consequential orders regarding the name of the child.
Legislation Cited:	Adoption Act 2000 (NSW) Adoption Amendment Act, 2008 Children and Young Persons (Care and Protection) Act 1998 Civil Procedure Act 2005 Family Law Act 1975 (Cth) Mental Health Act (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	Application of A; Re D [2006] NSWSC 1056 Application of O and P [2005] NSWSC 1297; (2005) 34 Fam LR Application of PL, re TB and FB [2007] NSWSC 665 B (A Minor), Re [2001] UKHL 70 at [16]; [2001] UKHL 70; [2002] 1 All ER 641. C v XYZ County Council [2007] EWCA Civ 1206; [2008] Fam 54 Cairns v Cairns [2006] NSWSC 364 Caldar v Public Trustee of NSW (Master McLaughlin, 27 October 2004, unreported) Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 Evelyn; Re [1998] FamCA 55 H, in the Marriage of [1994] FamCA 132; (1995) FLC 92-599 K (a minor); Re (ward: care and control) [1990] 3 All ER 795 Kress, in the Marriage of [1976] FLC Mace v Murray [1955] HCA 2; [1955] HCA 2; (1955) 92 CLR 370 New South Wales Department of Community Services v Y [1999] NSWSC 644 Peter; Re [2009] NSWSC 697 Rice v Miller (1993) 16 Fam LR 970
Texts Cited:
Category:	Principal judgment
Parties:	Director-General, Department of Human Services, (now called the Department of Family and Community Services) (Plaintiff) NJ (first Defendant) JP (second Defendant)
Representation
- Counsel:	Counsel: Ms S Christie (Plaintiff) Father - Mr P (in person) Mother - Ms J (no appearance)
- Solicitors:	Solicitors: Crown Solicitor's Office (NSW) (Plaintiff) Father - Mr P (in person) Mother - Ms J (no appearance)
File number(s):	A61/2010
Publication Restriction:

Judgment

The Application

1. HIS HONOUR: This is an application by the Delegate of the Director-General, Department of Human Services, (now called the Department of Family and Community Services) seeking an order for the adoption of a child who was born on 25 March 2004, in favour of a married couple.
   
2. The father of the child, although not named, or formally joined, as a party to the proceedings, filed an Appearance, in which he stated his opposition to the orders sought. He appeared throughout the hearing and maintained his opposition to the relief being granted.
   
3. The mother of the child was not a named, or formally joined, as a party to the proceedings. She did not file an Appearance or otherwise appear at the hearing. I am satisfied that she was aware of the proceedings, but chose to play no part in them. However, she has not consented to the order for adoption, or to the other relief, that is sought.
   
4. The prospective adoptive parents were not a named, or formally joined, as parties to the proceedings. They did not file an Appearance, or appear at the hearing, other than as witnesses.
   
5. For the sake of preserving the anonymity of the parties as is required by s 180 of the Adoption Act 2000 ("the Act") , I shall refer to the child as "M", to the couple in whose favour the adoption order is sought, as "Mr L and Mrs L", to the mother of the child as "Ms J", and to the father of the child as "Mr P". I shall refer to the Director General as the Plaintiff.
   
6. There are three parts to the proceedings, namely the adoption order under s 23 and Pt 9 of the Act; second, dispensing with the consent of the natural parents under s 67(1) of the Act; and third, the change of M's name to add the surname "L". (The third part of the proceedings did not raise as significant an issue as the other two, although there were submissions made.)
   
7. It is clear from the Transcript when the matter was before Palmer J, on 6 December 2010, Mr P told his Honour that he opposed the adoption and that he wanted M placed in his care. This is consistent with his repeated statements to the Department of the Plaintiff. He had been informed of his rights to bring an application to the Children's Court for rescission of the Parental Responsibility Order that had been made, and although he informed the Department of his intention to make such an application, he does not appear to have done so at any time recently. He stated that he was unaware that he would be able to appear for himself in any proceedings that he brought.
   
8. During the hearing, Mr P, when asked what he hoped to achieve in these proceedings, stated that he opposed the adoption and wanted M to come into his care. Initially, and before the evidence was concluded, he stated that he did not want indicate the reasons why he was opposing the making of the adoption order. Since he was appearing without legal assistance, I did not require him to provide those reasons then, but stated that I would treat his opposition being to the order for adoption, rather than as an application, by him, at this time, for the care of M.
   
9. Furthermore, at the hearing, without having given any notice to the Plaintiff, Mr P asked me to consider, as well, whether, alternatively, the contact that he had with M could be increased. The Plaintiff opposed this application, firstly, for the reasons to which reference will be made later, and also because there was no statutory basis upon which the Court could deal with such an application, other than in the exercise of its parens patriae jurisdiction.
   
10. It was also submitted by the Plaintiff that if I were satisfied that the adoption order should be made, it would be upon the basis of the Adoption Plan, which set out the contact that M was to have with each of Ms J and Mr P respectively.
    
11. Although Ms J did not appear at the hearing, it was accepted by the Plaintiff that she, too, opposed the making of an adoption order and sought increased contact with M.
    

The Hearing

12. The Summons was filed on 7 May 2010.
    
13. The matter was listed for hearing commencing on 6 April 2011. Prior to that date, several preliminary hearings, before Palmer J, had been conducted, at only some of which Mr P and/or Ms J appeared. Directions were made for the filing, and service, of affidavits. The Plaintiff complied with those directions. The non-confidential evidence to be relied upon was provided to Mr P, either by service of the complete affidavit, or, as directed, in a redacted affidavit. Confidential evidence about the prospective adoptive parents was excised from the affidavits, or was not served (e.g. the s 91 report, the affidavit of Mr and Mrs L, and the affidavit of each of the referees): s 194 of the Act. In addition, a copy of various reports dealing with contact between M and Ms J, and M and Mr P, was also provided.
    
14. Despite being informed, orally and in writing, several times following different preliminary hearings, of the directions that had been made regarding service of her, and his, affidavits, neither Ms J, nor Mr P, served any affidavits. Mr P did not rely upon any documentary evidence at the hearing.
    
15. At the request of Mr P, I gave consideration to whether, pursuant to s 194(2), I should order a redacted form of the s 91 report, to be provided to him.
    
16. I came to the view that I should not for the reasons referred to in Application of PL, re TB and FB [2007] NSWSC 665 per Austin J at [20] - [21]:
    

"20 Section 194(1) says that except as provided by the Act or the regulations, certain records are not open to inspection by, or to be made available to, any person including any party to proceedings before the Court under the Act, including a report made under s 91. There are no relevant exceptions to s 194(1) in the Act or Regulations. However, s 194(2) allows the Court to make an order permitting access.

21 The wording of s 194 makes it clear that an applicant for access to a s 91 report bears the onus of showing good reasons for access to be granted. In the absence of good reasons, the Court is unlikely to grant access, even if the report in question is highly complimentary to the applicant. As a matter of principle, the social workers who prepare these reports for the Court should be in a position that enables them to speak freely and confidentially without fear of repercussions should their report contain some adverse statement about the applicant. Adverse statements will usually lead to a contested application, and then the issue of access can be ruled on at a hearing."

17. In this regard, adoption is, traditionally, regarded as unique, or nearly so, in the degree of confidentiality maintained, and the practical reasons for making sure that disclosure of a report does not create unnecessary risk. This principle has been given statutory reinforcement by s 194.
    
18. At the hearing, the Plaintiff appeared by Ms S Christie of counsel. Mr P appeared in person, and pursuant to leave granted, with a support person (initially Mr G Parker, then his own twin brother, Mr AP, and then Mr Parker once again, until the last day of the hearing. He had no support person during submissions): s 125 of the Act. As I have said, Ms J was not present, at any time, during the hearing.
    
19. Although, at the commencement of the hearing, Mr P took objection to Ms Waterman, an A/Team Leader, Out of Home Care Adoption Project Team, being present in Court, I permitted her, pursuant to s 119(2) of the Act, to remain in court, although, naturally, she played no direct part in their conduct. To alleviate a then expressed concern of Mr P that Ms Waterman might disclose matters occurring in court to a witness, or witnesses, outside, and although I had no such concern, I reminded Ms Waterman, that the contents of the proceedings ought not be communicated, or disclosed, to any person associated with the proceedings who was, or might be, a witness.
    
20. In accordance with what had been outlined by Palmer J as to the way in which the hearing should proceed, the affidavits and the other documents that had been served by the Plaintiff were read out aloud. (This was done to assist Mr P who asserted that he could not read or write properly.) In addition, to assist him, when it seemed as if Mr P was making statements from the Bar table upon which he may have wished to rely, I requested that he take an oath or affirmation, which he then did. This has enabled me to consider some of what he said, from the Bar table, as his evidence in the case. This was done upon the understanding that he would be giving evidence and that he would be available for cross-examination by counsel for the Plaintiff, if he were required, at the appropriate time. He had previously informed me that he intended to give evidence of the reasons why he opposed the adoption order.
    
21. Mr P asked questions of a number of witnesses whose affidavits were read. These witnesses included Ms Jennifer Roberts, who had a peripheral involvement in the case, and who had never met, or spoken with, Mr P prior to being cross-examined by him. Mr L and Mrs L, each was asked questions. Mr Jeremy Stacey, the Caseworker at the Chatswood Community Services Centre, who had not sworn an affidavit, but who had been very much involved with M and others, and with the events that had occurred, and whose file notes formed part of the documentary evidence in support of the application, was also asked questions.
    
22. I permitted Mr P to ask Mr Stacey questions because I considered that the file notes contained information which was, or could be, relevant, to the issues in the proceedings, and because I thought that Mr P should have an opportunity to test that information, particularly because, in a number of instances, he appeared to dispute the events that were said to have taken place, or because he offered an explanation in respect of those events (whilst the reports were being read out aloud).
    
23. Counsel for the Plaintiff consented to this course and indicated that Mr Stacey was available to be cross-examined.
    
24. Mr Barry Ward, the Manager, Client Services Centre, Chatswood Community Services Centre, whose affidavit had also been read, was called to give evidence, because he had been requested to attend by Mr P. However, just before he was to enter the witness box, Mr P indicated that he did not wish to ask Mr Ward any questions.
    
25. At the conclusion of the Plaintiff's case, I asked Mr P whether he wished to enter the witness box and give additional evidence. I explained to him that Ms Christie wished to cross-examine him. He then informed me, for the first time, that he did not wish to enter the witness box, or be cross-examined.
    
26. Because of the way in which the case had been conducted, I enquired of Ms Christie whether she wished me to require Mr P to enter the witness box (s 62 Civil Procedure Act 2005), or whether she made any other application. Ms Christie stated that she did not require me to require Mr P to enter the witness box if he did not wish to be cross-examined, but that she would submit that I should infer that nothing, additional, he could say, would assist the case he was advancing.
    
27. In Caldar v Public Trustee of NSW (27 October 2004, unreported). Master McLaughlin (as his Honour then was) dismissed an application for a family provision order after the plaintiff, Mr Caldar, refused, for no valid reason, to enter the witness box to be cross-examined on his affidavit by counsel for the defendant. The learned Master decided that Mr Caldar's affidavits had been read upon the assumption that he would be available to be cross-examined on them, and that once that assumption was incorrect, it was appropriate to review the correctness of having permitted the affidavits to be read. On the review, the learned Master decided that, in the circumstances of the case before him, the affidavits should be treated as not having been read. Hence, the case failed for lack of evidence. (A holding summons was filed in the Court of Appeal on 4 November 2004. The holding appeal lapsed.)
    
28. I also considered, by way of analogy, an affidavit being filed, reasonable notice of a requirement to have the deponent attend for cross-examination being given, but that requirement not being complied with. The court has power, under Uniform Civil Procedure Rules 2005, rule 35.2(3), to permit the affidavit to be read.
    
29. I also considered whether there was very much that cross-examination would achieve. The affidavits relied upon by the Plaintiff had been read and Mr P had made some clear concessions, particularly about his criminal history. Subsequently, documentary evidence about that criminal history was tendered without objection. A number of the deponents had not been cross-examined at all.
    
30. Finally, it seemed to me that the obligation of the court to exercise its discretion in a way that results in the just, quick and cheap resolution of the real issues between the parties was also relevant (see, Cairns v Cairns [2006] NSWSC 364).
    
31. In all these circumstances, I determined to permit so much of Mr P's statements as could be regarded as evidence, which he had made from the Bar table, until that point, would be allowed to stand as his evidence, but that I would give it less weight than I otherwise might have.
    
32. The matter proceeded then with the submissions of the parties. Again, to assist Mr P, Ms Christie read her submissions, which had been provided to the court, in writing, aloud, and supplemented them orally as required.
    
33. Mr P then made submissions. I shall return to these later in these reasons.
    

Formal Matters

34. Before turning to the background facts, I set out some of the formal factual matters that must be proved by the Plaintiff, which I am satisfied have been established, or about which there can be no dispute. These are:
    

(a) When the Summons seeking the adoption order was filed, M was present, and Mr L and Mrs L was each resident and domiciled, in New South Wales (s 23(2) and 28(1)(a) of the Act).

(b) M is under the age of 18 years (s 24 of the Act).

(c) In June 2007, Mr L and Mrs L formally expressed interest in being approved as suitable, and being selected, to adopt a child. Subsequently, Mr L and Mrs L were invited to submit an application to adopt M (s 42 and 43 of the Act).

(d) Thereafter, the Plaintiff assessed the suitability of Mr L and Mrs L to adopt a child.

(e) Mr L and Mrs L are of good repute, fit and proper (s 28(1)(b) of the Act)(as to which see later). They also meet the age requirement (s 28(3) of the Act).

(f) The Plaintiff consents to the order (s 87 of the Act). On 22 October 2009, the Minister, as M's guardian, consented to M's adoption by Mr L and Mrs L. A Consent signed by the Acting Regional Director of the Department's Metro Central Region and the Delegate of the Minister and Statement of Person Qualified to Witness a Consent has been read in the proceedings.

(g) When Ms J and Mr P was each informed of the application for the adoption, each stated that she, and he, did not consent.

(h) There is no signed "instrument of consent" for either Ms J or Mr P (s 61 of the Act).

(i) Ms J and Mr P have been provided with a copy of the mandatory written information: s 59 of the Act.

(j) A report in writing, concerning the proposed adoption, has been provided to the Court (s 91(1) of the Act). (This report is not open to inspection by, or made available to, any person, including any party to the proceedings (s 194 of the Act).) The author of the report is Jeremy Stacey, a senior caseworker Out of Home Care Team, Community Services, an Agency of the Department of Human Services, with the requisite delegation to prepare that report.

(Section 91 permits the trial Judge hearing the adoption application to have access to the report, notwithstanding the restriction imposed by s 194(1). It also permits the trial Judge to accept the report.)

Background Facts

35. I am satisfied that the following facts regarding Ms J are either not in dispute, or have been established by the evidence read in the proceedings:
    

(a) Ms J was born in November 1968.

(b) Ms J is of Australian/Greek ethnic background and her religion is Greek Orthodox.

(c) Her family and network consisted of her mother and two brothers. Her father is deceased.

(d) None of her family members, apparently, have expressed any interest in having contact with M, although they are aware of his birth.

(e) Prior to M's birth, the then NSW Department of Community Services received risk of harm reports relating to Ms J's lack of antenatal care, homelessness and mental health.

(f) In March 2004, Ms J was admitted as an involuntary patient to Manly Hospital, on a Temporary Order, under the Mental Health Act (NSW), having suffered her fourth bout of schizophrenia. She was, then, generally resistant to treatment and displayed no insight into her condition.

(g) Within one, or two, days after his birth, M was assumed into care under s 44 of the Children and Young Persons (Care and Protection) Act 1998.

(Care proceedings provide the method by which the Department intervenes to protect a child when the care he, or she, is receiving, or is likely to receive, from his, or her, parents is inadequate. Care proceedings can result in a number of different orders. The principal protective order is a care order (which imposes a duty on the Minister to receive the child into care and to keep him, or her, in care whilst the order remains in force).

(h) On 30 March 2004, the Children's Court made an order placing M in the Parental responsibility of the Plaintiff for a period of 14 days.

(i) On 1 April 2004, the Department of Community Services removed M from Ms J after the Children's Court granted an application, pursuant to an Emergency Care and Protection Order. M was placed with Mr L and Mrs L, who were authorised Departmental foster carers.

(j) On 14 April 2004, the Children's Court made an order placing M in the Parental responsibility of the Minister pending further order. He remained in the care of Mr L and Mrs L.

(k) On 13 May 2004, Ms J was discharged from hospital. She then returned to live with her own mother.

(l) Between March and May 2004, M had supervised contact with Ms J and Mr P, for between 1 and 2 hours, 1 to 3 times each week.

(m) In May 2004, a care plan was developed for M and filed with the Children's Court. The substance of the care plan was that M would remain under parental responsibility of the Plaintiff for 12 months; that Ms J would enter Charmaine Clift Cottage, a residential programme with an emphasis on assisting mothers to parent their children, for a minimum of 3 months, with day to day supervision of her care of M by that service; and that Mr P would have some supervised time with M, provided that the contact supervisors could be protected from any violence by him.

(n) On 16 June 2004, M and Ms J were re-united. They resided, together, at Charmaine Clift Cottage. During Ms J's stay, there were ongoing concerns about her insight into her mental illness and her compliance with medication and treatment. There were concerns expressed about M's emotional welfare and development.

(o) On 29 September 2004, M returned to the care of Mr and Mrs L and has remained in their care, continuously, since then. This followed a review of Ms J's parenting capacity whilst at Charmaine Clift Cottage. It was found that she was unable to care for M's then present care needs and that it was unlikely that she would develop sufficient parenting skills to adequately parent him in the future. In addition, she was not taking the medication necessary to treat her own medical condition.

(p) On 15 February 2005, the Children's Court made the following final orders, with respect to M:

(i) The Plaintiff to have parental responsibility for M until he reaches the age of 18 years;

(ii) Parental responsibility for religion to be exercised jointly between the Plaintiff and the parents;

(iii) Ms J to have contact with M for 1.5 hours, 4 times a year, with any supervision to be determined by the Department;

(iv) A s 82 report to be prepared within 6 months and distributed to the court and the Child's Representative;

(v) The court noted that Mr P may have supervised contact for 1.5 hours, 4 times a year, provided that Occupational Health and Safety requirements were met to ensure worker safety.

(q) Ms J, for the most part, has availed herself of such contact with M. She has had contact, since then, on about 20 different occasions. Since 1 July 2009, M has had contact with her in October 2009, December 2009, March 2010 and July 2010.

(r) The contact that has occurred between M and Ms J is supervised. However, it now occurs outside the confines of the Community Service Centre.

(s) The contact reports reveal that M has some difficulty engaging with Ms J. At several of the more recent contact visits, M's interaction with her has been minimal and what has occurred between them has been with the encouragement of Mrs L.

(t) On about 23 May 2008 the Department received a letter from Ms J in which she indicated she did not consent to an independent assessor preparing an adoption assessment on M, her and Mr P, and Mr L and Mrs L.

(u) On some occasions (e.g. 7 July 2010), Ms J has indicated that she is supportive of the adoption, commenting that she can see that M is benefiting from living with Mr L and Mrs L. Ms J has also stated that she believes it would be in M's best interest to remain with Mr and Mrs L. For example, in mid 2010, on one of M's contact visits with her, she commented that she could see how happy M was. On others (e.g. 16 July 2009), she stated, emphatically, that she opposes the adoption, stating that she wishes to be re-united with M.

Ms J appears to have strong maternal feelings towards M. She continues to say that she wants M back in her care and that her contact visits with him should be of greater frequency and longer duration, such that he is allowed to spend all day and overnight in her care. She desires that M be allowed to see his maternal grandmother.

(w) On 10 May 2010, written notice of the adoption application was sent to Ms J by pre-paid registered post. The Plaintiff received a Delivery Confirmation - Advice Receipt signed by Ms J from Australia Post on 13 May 2010.

(x) Documents, including a Notice of Intention to seek a "consent dispense order" (s 72(1) of the Act) and Notice of Application for Adoption Orders (s 88(1)(a) of the Act), were served upon Ms J and she is aware of the application being made.

(y) An Adoption Plan has been prepared for Ms J. She is not a party to that Adoption Plan. The Plan was signed by Mr L and Mrs L and by the delegate of the Plaintiff on 2 October 2010.

The Plan, broadly, provides for face-to-face contact between M and Ms J on at least 4 occasions per year at a mutually agreed location, initially at least, because of M's age, of 1.5 hours per contact visit. It is acknowledged that the duration of contact may vary over time according to M's age and stage of development. The contact will be supervised for the first two years and will then be reviewed and unsupervised contact may occur when all parties agree that this is appropriate. In addition, photographs and information regarding M's progress and development will be provided on at least two occasions per year. Furthermore, Mr L and Mrs L will share with M any information, photographs or gifts provided by Ms J. The Plan also provides for M to develop a healthy and positive identity and to maintain links with his cultural heritage.

36. It is also necessary to set out the facts that are either not in dispute, or which I am satisfied have been established in relation to Mr P. These are:
    

(a) Mr P was born in December 1965.

(b) Mr P is of Australian ethnic background. His religion was not disclosed. (He has advised that he "can take it or leave it" when it comes to religion, although he did attend a Catholic school.)

(c) He and Ms J have known each other since adolescence. Their relationship was, originally, platonic, but they had a sexual relationship for a brief period. They have lived apart since then, and, currently, they do not live together. However, before and after M's birth, they maintained contact with each other and remained involved in each other's life. However, for some time, Mr P has stopped all contact with Ms J.

(d) His family and network consist of his mother, with whom he has lived on occasions, his father, who resides in Queensland, and with whom he has no contact, his twin brother, Mr AP, with whom he has regular contact, and another brother, with whom he has no contact.

(e) Mr P has always acknowledged that he is the father of M and since M's birth has displayed an ongoing interest in him. He was, in fact, present at M's birth.

(f) Mr P has not supported M financially. He is presently on a disability pension, although on occasion, he does work, part-time, as a swimming coach, and on other occasions, assisting in Mr AP's business.

(g) M has never lived with Mr P. The Department has not promoted such an idea. Initially, interest was expressed in Mr P's twin brother, Mr AP, and his wife, being considered as potential carers for M, but they decided not to pursue this.

(h) In 2005, apparently, Mr P made an application to the Children's Court for a care order for M in his favour. That order was not made for a number of reasons that are not presently relevant. Since then, he has made no further application.

(i) Contact has occurred between M and Mr P on a supervised basis. Since February 2006, contact has occurred on about 13 occasions. It now occurs outside the confines of the Community Service Centre.

(j) The contact visits by M with Mr P are mutually enjoyable and Mr P is able to engage very well with M. Mr P chooses activities that he believes M will like and makes the time together enjoyable for M.

(k) Mr L confirmed that when M returns from a contact visit with Mr P, he is happy.

(l) There is evidence about difficulties regarding some contact visits, which may have been caused by the desire of Mr P for M to meet members of his family (e.g. Mr AP and his children). On other occasions, the explanation for the difficulties is not as easily explained.

(m) On 10 May 2010, written notice of the adoption application was sent to Mr P by pre-paid registered post. The Plaintiff received a Delivery Confirmation - Advice Receipt, from Australia Post, signed by him on 14 May 2010. At the hearing, Mr P acknowledged receipt of the documents, which included a Notice of Intention to seek a consent dispense order and Notice of Application for Adoption Orders.

(n) An Adoption Plan has been prepared for Mr P. He is not a party to that Adoption Plan. The Plan was signed by Mr L and Mrs L and by the delegate of the Plaintiff on 2 October 2010.

The Plan, broadly, provides for face-to-face contact between M and Mr P on at least 4 occasions per year at a mutually agreed location, initially at least, because of M's age, of 1.5 hours per contact visit. It is acknowledged that the duration of contact may vary over time according to M's age and stage of development. (On occasions, already, it has exceeded the time duration set out in the care plan which is in existence.) The contact will be supervised for the first two years and will then be reviewed and unsupervised contact may occur when all parties agree that this is appropriate. In addition, photographs and information regarding M's progress and development will be provided on at least two occasions per year. Furthermore, Mr L and Mrs L are to share with M any information, photographs or gifts provided by Mr P.

The Plan specifically provides that "it is hoped that the current arrangements will allow for the development of a positive relationship between M, Mr L, Mrs L and Mr P" and that "[T]here is scope within the Plan for further, informal, contact in addition to the arrangements outlined above."

(o) Mr P is known to be a person who has been subject to a number of different Apprehended Violence Orders.

(p) On 15 November 2004, Mr P was convicted of possession of stolen goods and possession of a knife in a public place and was sentenced to 18 months jail. He was incarcerated from November 2004 until January 2005 and again from September 2005 to July 2006.

(q) By November 2004, Mr P had a long history of drug use and violence and an extensive criminal record. By 2008, he had over 120 criminal convictions. He has been imprisoned on approximately 10 occasions. However, he has not been incarcerated since October 2008. He admitted that since then, he has been convicted of some offences.

(r) Mr P has had a history of drug abuse, including intravenous heroin use. He is currently not a heroin user.

(s) There have been a number of incidents, as he acknowledged, in which he is either alleged to be the victim, or the perpetrator, of acts involving some violence. In addition, there have been a number of occasions, when he has had on his possession, a weapon such as a knife, or an item, which could be used as a weapon, such as a baseball bat, letter opener, or scissors. (Where a COPS record did not indicate that he had been charged or convicted, I have not treated it as reflecting upon Mr P's character.)

37. It is also necessary to set out the facts that have been established in relation to Mr L and Mrs L. These are:
    

(a) Mr L was born in May 1960. Mrs L was born in March 1963.

(b) Mr L and Mrs L were married in November 1998. They have been living together continuously, in New South Wales, since that time.

(c) Mr L and Mrs L have no children together. Mr L has two children from a prior marriage, a daughter who was born in April 1994, and a son, who was born in June 1996. They live with Mr L and Mrs L. Each has a good relationship with M and regards him as a brother.

(d) As stated, M has been in the care of Mr L and Mrs L for almost all of his life. Neither is a step-parent or relative of M.

(e) There have been several interviews that Mr L and Mrs L have had to undergo. The records reveal that they have demonstrated a keen interest and commitment to the process of Life Story Work for M, and in the heritage and strengths of Ms J and Mr P, as M's birth parents. They are also keen to find out more about schizophrenia, particularly about heritability and other risk factors relevant to its onset. The have been keen to help M with any problems he may experience as a result of growing up in care.

(f) Both Mr L and Mrs L are employed, he full-time, she part-time.

(g) Mr L and Mrs L live in Mona Vale, in an attached dual occupancy home, with four bedrooms. M has his own bedroom. They have the physical means, and financial capacity, to provide for M as well as for their other children.

(h) Mr L is in good health with no major medical illnesses or concerns.

(i) Mrs L is in good health with no major medical illnesses or concerns.

(j) Mr L and Mrs L are aware that as part of the adoption, it will be their role to facilitate contact with Ms J and Mr P, as M's natural parents. They plan to facilitate such contact at neutral venues. Each appreciates that as time passes, it may be necessary and appropriate to increase the contact between M and Ms J, and between M and Mr P.

(k) Mrs L has an older adoptive sister and knows, first hand, the importance of a child knowing of his, or her, heritage.

(l) Mr L and Mrs L do not have any current religious affiliation. Mr L's children attend a local Uniting Church youth group. They are happy to respect any requests that Ms J and Mr P may make about M's religious upbringing. If no specific requests are made, it is likely that M will attend the same local youth group when he is old enough to do so.

(m) A check in the National Names Index has been conducted, which revealed that neither Mr L nor Mrs L has any disclosable court outcomes, or outstanding matters, recorded against his, or her, name.

(n) Mr L and Mrs L are experienced parents. They appear to be open, flexible and communicative as parents. They impress as being affectionate, loving, insightful and nurturing parents.

(o) Mr L and Mrs L successfully manage all of M's needs and have been, and are, willing to supervise and facilitate contact with Ms J and Mr P if the adoption proceeds (as evidenced by their agreement to the Adoption Plan). They love, and view, M as their son and want to make him a permanent, and legal, part of their family.

38. It is not necessary to do more than note that two referees, neither of whom is related to Mr L or Mrs L, have given affidavit evidence as to the character of Mr L and Mrs L, their relationship with each other, their skills and abilities in parenting children, including M, and the relationship which has developed between M and them. There is no reason to disbelieve what has been stated by each of the referees as to their opinions, and the reasons for those opinions.
    
39. It is also necessary to set out the facts that are either not in dispute or have been established in relation to M. These are:
    

(a) M was born in Australia and is an Australian citizen. He has lived in New South Wales, since his birth. He has been known as M, although for a short time after his birth, Ms J referred to him as "J".

(b) M is in good health, has no ailments, and is not on any form of medication. He has no disabilities. He has reached his developmental milestones within normal time span.

(c) Between March and May 2004, M had supervised contact with Ms J and Mr P for about 1 to 2 hours, 1 to 3 times each week.

(d) In 2007, an assessment of the suitability for M to be adopted was undertaken by an independent psychologist. On 19 September 2008, the independent psychologist recommended that it would be in M's best interests to be adopted.

(e) M started school in February 2010. The school he attends is local to Mr L's and Mrs L's home. He appears to be doing well scholastically.

(f) I have referred to M's extended family members.

(g) M views Mr L and Mrs L, and the children of Mr L as his family. He refers to Mr L and Mrs L as "dad" and "mum" respectively. M refers to Mr L's daughter and his son, as his "sister" and "brother". He appears to have a particularly close bond with Mr L's son. Each for her, or his, part has been observed to accept M as part of their family constellation.

(h) M is securely attached to Mr L and Mrs L and he responds well to their parenting strategies.

(i) The adoption has not been discussed with M as it is thought that this would be needlessly confusing for him at this time.

(j) M is aware that Mr L and Mrs L are not his natural parents. He has been told that he grew in Ms J's tummy and that Mr P helped to make him. Mr P, being sympathetic and sensitive to reducing confusion for M, has expressly requested that M refer to him by his given name as opposed to "your dad" or "father".

(k) There is no culture, disability, language, or religious ties, in respect of M that is required to be preserved.

The Adoption Plan

40. 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:
    

(a) the making of arrangements for the exchange of information between the parties in relation to any one or more of the following:

(i) the child's medical background or condition,

(ii) the child's development and important events in the child's life,

(iii) the means and nature of contact between the parties and the child, and

(b) any other matter relating to the adoption of the child.

41. An Adoption Plan that outlines a proposal for post adoption family contact with Ms J and Mr P has been referred to. The Adoption Plan, in each case, has been signed by Mr L and Mrs L and by the Plaintiff's delegate. It is, therefore, an "adoption plan" within the meaning of the Act.
    

Credibility of Witnesses

42. I had an opportunity to observe Mr P throughout the proceedings. Initially, I formed the view that he could, on occasion, adopt a somewhat belligerent, or aggressive, approach. I observed this, for example, when he commenced asking Mrs L questions. To his credit, however, after suggesting to him that, perhaps, his manner of questioning might be less aggressive, his approach changed and he was more polite to her. To his even greater credit, at the conclusion of his questions, he apologized to Mrs L, indicating that it was "just my manner" and that he had no intention of trying to intimidate, or be rude to, her. I formed the view that he was genuine in that apology.
    
43. As the hearing proceeded, and, no doubt, because he came to feel slightly more at ease with the surroundings, his approach seemed to alter and he became less aggressive.
    
44. From all that was said by him, particularly in his questioning of Mr Stacey, and during his submissions, there is no doubt, that Mr P has a real sense of frustration and that this has coloured his thinking. There is also no doubt that he believes the Department of the Plaintiff has been putting hurdles in the path of him having a close and meaningful relationship with M.
    
45. Mr P felt, for example, that in opposing his desire for greater contact with M, the Department was not considering M's best interests, but, unjustifiably, was preventing their relationship from developing and becoming stronger. He maintained, for example, that he had not been informed that Mrs L had set aside one week during the school holidays, so that M could have contact with Mr P and/or Ms J, despite she having told Mr Stacey.
    
46. For the avoidance of doubt, I do not accept that his belief about the Department is justified. I place on record that I do not find the Department, or Mr Stacey, has acted improperly in relation to Mr P. I accept the evidence of Mr Stacey to the effect that the Department's paramount consideration is, and so far as it is involved, always will be, M, and that the Department, and as the caseworker, Mr Stacey, has had to consider not only Mr P's position, as M's father, but also the position of Ms J, as M's mother, and Mr and Mrs L, as M's carers. However, such considerations are always in the context of the best interests of M.
    
47. Mr Stacey said, for example, that although Mr P had contact 4 times per year, so did Ms J. He also explained that more contact, at the present time, was not considered to be in M's best interests, because of the confusion that he might face.
    
48. Mr Stacey also read from his telephone, a text message he had sent to Mr P's mobile telephone informing him of the months in which the school holidays occurred, and the dates, during the school holidays, that Mrs L had set aside so that M could have contact. Mr P was requested to "let me know your preferences". Other than a missed telephone call from Mr P's telephone number, there was no reply to the text message from Mr P. Accordingly, I do not accept that Mr P's evidence that he was not informed of when M would be available during school holidays.
    
49. Yet, Mr P's sense of frustration, on one occasion, was unintentionally fuelled by events involving Mr Stacey. The occasion occurred in August 2009, when a meeting between Mr P, Mr L and Mrs L, and Mr Stacey was arranged, at a coffee shop in Manly, to discuss the way for those present "to move forward". The duration of the meeting, to the knowledge of all, could not exceed 1 hour. However, Mr Stacey arrived 45 minutes late, with the result that only 15 or 20 minutes was available for discussion. By the time he arrived, the mood of those present was not as it should have been. Mr P appeared to be tense, hostile and angry. Subsequently, even Mr and Mrs L expressed "frustration" at the events that occurred.
    
50. Mr Stacey apologised, profusely, to all concerned at the time, and, even at the hearing, stated that he was extremely sorry about what had occurred. When Mr P suggested to him that his late arrival was intended to put stress on the parties involved, he denied this. I accept that he had no such intention.
    
51. Another matter upon which I do not accept what Mr P said, related to what occurred following the meeting at the coffee shop at Manly. At the meeting, Mr P asked Mr and Mrs L for their telephone number. He gave them his mobile telephone number. What was discussed then was that there might be direct contact between Mr L and Mrs L on the one hand, and Mr P, on the other, without involving Mr Stacey.
    
52. Mr P put to Mrs L that she and Mr L had made no real attempt to contact him. She denied this and said that she believed that, shortly after the meeting, a telephone call had been made, or text message had been sent, to his mobile telephone number, to which he had not responded. She also said that having sent the text message, and having received no response, subsequently, she and Mr L had not felt it necessary to send another text message again, or to telephone Mr P.
    
53. When Mr L was called to give evidence, in the light of what had been put to Mrs L, and her response, I permitted counsel for the Plaintiff to lead additional evidence in chief about the events that had occurred in relation to the telephone call or text message.
    
54. The evidence of Mr L, which I accept, was that a pre-paid mobile telephone was purchased a day, or so, after their meeting at Manly with Mr P and Mr Stacey, and that on 19 August 2009, Mr L had sent a text message in the following terms to the telephone number which had been provided by Mr P:
    

"Hi [Mr P]. [Mr L] and [Mrs L] here. We r really frustrated and upset that [Mr Stacey] was so late making our time with u so bad. We want u 2 b in M's life. It's good 4 u, M and us. Maybe we can build a relationship say next visit u have with M, we come 2 and focus on M and us NOT [Mr Stacey]. We don't cope with stress very well - so hope we can keep moving on along side u. Our heart is in the right place, u are an important part of M's life. Kind regards [Mr L] and [Mrs L]."

(I have amended the text message to read consistently with these reasons. I have not altered the meaning of the message.)

55. On the day following the sending of the text message, Mr L answered a telephone call on the pre-paid mobile telephone, which displayed Mr P's number. When he answered, no one spoke.
    
56. Mr P admitted that the telephone number to which the text message had been sent was his telephone number at that time. He did not deny receiving the text message, or that it was he who had telephoned the pre-paid mobile telephone number the next night. However, he failed to provide any reasonable basis for not speaking when Mr L answered the telephone.
    
57. Mr P was critical of Mr Stacey not stating, expressly, to him that he could contact Mr and Mrs L directly. Mr Stacey responded to the criticism by noting, in my view, correctly, that he was aware that Mr L and Mrs L had sent a text message to Mr P inviting contact, and that it was for them to indicate if they did not wish to speak directly to Mr P. They had not done so, yet no telephone contact, either orally, or by text message, had been made by Mr P directly with them.
    
58. Furthermore, Mr P put a number of questions, the final one of which suggested that Mr Stacey had, in fact, told Mr P that he could telephone Mr L and Mrs L on the mobile telephone number from which the text message had been sent (see 3T18 - 20; 3T22).
    
59. I also do not accept Mr P's submission that he believed that he was being "set up" by Mr L and Mrs L, or by Mr Stacey, or by both. If he held that belief it was an unreasonable one, and one which was inconsistent with the conduct of Mr L and Mrs L and of Mr Stacey.
    
60. Also, I am unable to accept that Mr Stacey had any bias towards Mr P or that he would try to "set up" Mr P. Importantly, not only is there no need for him to have such a bias, but the suggestion is inconsistent, for example, with telling Mr P that he could telephone Mr L and Mrs L on the pre-paid mobile telephone number from which the text message had been sent. The suggestion is also inconsistent with some of the contact reports that I have read, written by Mr Stacey, which speak positively of M's contact with Mr P. It is also inconsistent with what is in the Adoption Plan, in which the Plaintiff is a party.
    
61. Another example of Mr Stacey's consideration of P (albeit in the context of M) is that he has been prepared to allow some of the contact periods between M and Mr P to extend beyond the time prescribed by the care plan in existence.
    
62. I do not really understand, and am unable to find any rational explanation, why Mr P did not contact Mr and Mrs L following the receipt of the text from the pre-paid mobile telephone number. I am satisfied that he had the telephone number and could have responded to them within a reasonable time of receiving the text message from Mr L. It appears that Mr Stacey told him that he could telephone Mr L and Mrs L on the telephone number from which the text had been sent, but even if he did not, no suggestion was made that Mr Stacey told him that he could not reply to the text message or telephone the telephone number from which that text message had been sent.
    
63. I accept that Mr Stacey, like Mrs L, has felt, with some justification, that, on occasions Mr P was not acting reasonably, or responsibly, in making, and keeping, contact arrangements. Arrangements for the school holidays provide an example, as Mr P appears to have expected M to be available when he (Mr P) was available, rather than the other way around. In this regard, I accept that setting aside one week of a two-week holiday, so that one, or both, of Ms J, or Mr P, could have contact at some time during that one week was more than reasonable. As Mrs L said, that length of time being set aside, without knowing when, precisely, contact would be sought, meant that M could not engage in other social, family, or other activities. To prevent him doing so would not be in his best interests.
    
64. At one point of the proceedings, Mr P tried to raise an issue about the suitability of Mr and Mrs L as long-term carers (2T 4.40 - 5.39). I was not satisfied that this was a matter that I should treat as his evidence because it involved hearsay statements and there was no evidence, otherwise, to corroborate what was said.
    
65. In any event, Mr P did not ask Mr L, or Mrs L, any questions about the topic raised by him. In those circumstances, I ignore the unsubstantiated statements made by Mr P about Mr L and/or Mrs L.
    
66. Finally, I am satisfied that if there were any truth in what was being suggested by Mr P, the Plaintiff would have disclosed any relevant facts to the court. In this regard, parties should remember that each has a duty to the court to make known fully, and frankly, all matters relevant to the making of an adoption order, whether those matters tend to support, or tend not to support making the order: Uniform Civil Procedure Rules 2005, r 56.3.
    
67. I was very impressed with both Mr L and Mrs L. Each struck me as a person who considered, to the best of his, and her, ability, the needs of M. He, and she, appears to be a caring, compassionate, decent and good person. This was evidenced, in my view, most clearly by the tone, and content, of the text message that was sent to Mr P.
    
68. Furthermore, neither, apparently, feels the need to maintain, inflexibly, the period of time that M has spent with Mr P. On one occasion when Mr P took M to the Easter Show, M had been gone all day (although some period of the day was spent travelling). On another occasion, near M's birthday, they unsuccessfully suggested a contact time for Mr P to spend with M. Any complaint by Mr L or Mrs L about the conduct of Mr P is, in my view, justified.
    
69. Even in the witness box, when asked questions by Mr P, I was struck by the genuine statements of Mr L and Mrs L that he and she wished to find a path that would allow M to develop and strengthen his relationship, not only with Mr P, but also, with Ms J. This was evidenced by Mrs L when she said that until now, contact visits had been very difficult, but that after a transition period, her goal was for the relationship to develop, so that contact arrangements would be able to be made directly between them. Their desire to do so is corroborated by the terms of the Adoption Plan that has been signed by them.
    
70. They also expressed the hope that a relationship would develop between themselves and Mr P. I have no doubt that each was sincere in what he and she said.
    
71. I do not accept any criticism made of Mr L and Mrs L in making only one attempt to contact Mr P following the Manly meeting. It is clear that they made one more attempt than did Mr P, and the attempt that was made, demonstrated clearly that they were receptive to, and were encouraging, contact being made by him. One might hypothesize that if Mr P truly believed that he was being "set up", then it was likely that he would not have responded to any other overtures by Mr L or Mrs L, even if such overtures had been made.
    
72. I am satisfied that, otherwise, Mr L and Mrs L have endeavoured to ensure continuing contact between M and each of his natural parents, and that neither has done anything to hinder that contact. This is despite the actions of Mr P in changing the date, or the time, for some of those contact visits.
    
73. Mrs L has considered the present contact regime. She regards four visits, at the present time, as in M's best interests in developing a sense of identity and knowledge of Mr P. She left open the possibility that if M, when he was older, requested more time with Mr P, then, she and Mr L would be very much guided by what he would like. She would also, no doubt, like to see a more reasonable approach to contact demonstrated by Mr P.
    
74. I have no doubt that, with their status as parents of M being assured, they will do their best in M's interests, to encourage such contact between M, Mr P and Ms J as they feel benefits M. I am also satisfied that, in the future, they will facilitate communication and maintaining a relationship between M and each of his natural mother and father.
    
75. Of course, much will also depend upon the attitude of M as he matures. It may be that he, too, will wish to develop further a meaningful relationship with Ms J and Mr P.
    
76. Finally, my impression of Mr L and Mrs L is confirmed by the s 91 report, which I have found to be comprehensive, thoughtful and helpful.
    

The legal framework - Parens Patriae Jurisdiction

77. The use of the court's parens patriae jurisdiction in these types of cases has been circumscribed by the coming into force of the Act. It has not been necessary to rely upon it in the present case, so I shall only mention it briefly.
    
78. The parens patriae jurisdiction was originally exercised by the Courts of Chancery in England. The jurisdiction is derived from the prerogative right of the Crown as "parens patriae" ("parent of the country") to look after three classes of subjects who, by reason of their incapacity, were unable to look after themselves, namely idiots, lunatics and infants. This prerogative right was delegated to the Lord Chancellor, who exercised it in his court, the Court of Chancery.
    
79. The nature of the jurisdiction was discussed Austin J in Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644. His Honour said at 88-89:
    

"The Court's historical jurisdiction has survived the enactment of New South Wales legislation dealing with the welfare of children. In K v Minister for Youth and Community Services ( [1982] 1 NSWLR 311]) Helsham CJ in Eq held that the court's inherent power to protect the interests of infants, deriving from the parens patriae jurisdiction had not been displaced by the Child Welfare Act 1939 (NSW). His Honour said (at 323):

`In its role as parens patriae [the Court] has always had power to interfere with the actions of guardians where necessary to protect the welfare of wards. This is, of course a power not restricted to wards nor arising because of wardship. It is a power of the Sovereign to protect persons who from their legal disability stand in need of protection...[I]t would seem to me that good reason would have to be shown why the Court's jurisdiction over these children is excluded.'

[The 1987 Act], the Act under which the Children's Court proceedings in the present case were brought, clearly recognises the inherent jurisdiction of the Supreme Court ... S 88(4) states that nothing in Pt 5 (which deals with children in need of care) limits the jurisdiction of the Supreme Court `with respect to the custody and guardianship of children.' S 96 contains an equivalent provision with respect to Pt 6 of the Act (which deals with wards and protected persons). In my opinion these statutory references to the Supreme Court's jurisdiction with respect to the custody and guardianship of children identify or include the Court's inherent parens patriae jurisdiction."

The legal framework - Statutory Framework and Principles

80. 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: s 95 of the Act.
    
81. Some of the cases have spoken of the "rights" of the natural parent. Certainly, in this case, Mr P made submissions emphasising his "right" as the father of M.
    
82. I have treated the use of that word in the cases, and in the case before me, not as a "right" in the proprietary sense, but rather as describing the right of every child, as part of his, or her, general welfare, to have the ties of nature maintained, wherever possible, with the parents who gave him, or her, life: Re K (a minor) (ward: care and control) [1990] 3 All ER 795 at 800, [1990] 1 WLR 431 at 437.
    
83. Therefore, I have not forgotten, in considering M's best interests, that the blood link is always a factor to be taken into account, but any conclusions that are drawn, having taken it into account, vary enormously depending on the circumstances of the particular case.
    
84. As was said in Rice v Miller (1993) 16 Fam LR 970 and Re Evelyn [1998] FamCA 55 (albeit in another context):
    

'I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the court commences its decision making process . . . Each case should be determined upon an examination of its own merits and of the individuals there involved.' (My emphasis.)

85. Section 6 of the Act provides that the provisions of Chapter 2 are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right, or entitlement, enforceable at law.
    
86. One of the objects of the Act, stated in s 7 is "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". Because it is the paramount consideration, the interests of the child should prevail over all other interests that call for consideration in the case.
    
87. In making a decision about adoption, the Court must have regard to the principles set out in s 8(1), and to the circumstances set out in s 8(2), of the Act, so far as they are relevant. The section provides:

"(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."

88. It is to be noted that s 8(1) refers to "principles" pursuant to which a decision will be made about the adoption of a child. Section 8(2) refers to factual matters for consideration in determining what is in the best interests of the child.
    
89. 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 [1994] FamCA 132; [1995] FLC 92-599 (at 81,974). The word does not indicate exclusivity.
    
90. 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]; [2001] UKHL 70; [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.
    
91. Not all of the factors are referred to in the context of the child whose adoption is sought. For example, in s 8(2), there is a reference to "any wishes expressed by either or both of the parents of the child" and "to the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood".
    
92. I also have regard to the requirements of s 90 which, so far as is relevant, provides:
    

"(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

...

(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."

93. It can be seen that many requirements of s 8 and s 90 overlap, or are the same or similar, without any material difference in meaning.
94. What may be of particular significance, in this case, in the light of submissions made by Mr P, is whether there is any better alternative to making an adoption order. That question needs to be considered, not only under s 8(2)(k) but, also under s 90(3). The latter section requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. However, it does not require satisfaction "beyond reasonable doubt" ( Re D; Application of A [2006] NSWSC 1056, [53]], but does require the Court to consider that an adoption order be "clearly preferable" to any other action that could be taken by law: Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 at [25]; [2007] NSWSC 762; (2007) 37 Fam LR 595.
    
95. In other words, the court must be satisfied that the advantages to the child of becoming part of a new family and having a new legal status are clearly preferable to the advantages, to the child, of any alternative.
    
96. The note to s 90(3) records other action that could be taken includes a parenting order under the Family Law Act 1975 (Cth), or a care order under Children and Young Persons (Care and Protection) Act :
    
97. It is often referred to in the literature that a child placed with foster carers has an abiding need for a sense of security and identity and that he, or she, will feel most secure when he, or she, is assured that no one can take him or her away from the family of which he or she is a legal member. It is recognised that the sooner a child can feel this sense of security, the better for her, or his, development in the future: see e.g. per Arden LJ in C v XYZ County Council [2007] EWCA Civ 1206; [2008] Fam 54, at 58G; Re Peter [2009] NSWSC 697 per Palmer J at [35].
    
98. Also, if carers who have developed a strong bond of family relationship with the child feel that they are under threat of an application to the Children's Court at any time for vacation of a care order and the consequent removal of the child from them, they are subjected to a level of stress and anxiety that must affect their parental relationship with the child who is in their care: Re Peter at [36].
    
99. In stating the above, I make clear that it is not being suggested that there is any general rule that adoption is more likely to be in the best interests of a child than long-term fostering or, indeed, any other form of care. The court must have regard to the particular circumstances of the individual case in order to assess whether that an adoption order or some other form of care best serves child's interests.
    
100. As has been stated, "[T]here is no objectively certain answer on which of two or more possible courses is in the best interests of the child ... There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this course or that course will, or may, have for the child": Re B (A Minor) .
     

Dispensing with consent and notice - the birth parents

101. Section 53 of the Act provides:

"The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given:

(a) in the case of a child who has not been previously adopted by:

(i) each parent of the child, and

(ii) any person who has parental responsibility for the child, or

(b) in the case of a child who has previously been adopted-by each adoptive parent of, or person who has parental responsibility for, the child."

102. Relevantly, in this case, consent for the purposes of this Act, a parent of, a child may consent to the adoption of the child only by:

"(a) giving "general consent" to the adoption of the child by an adoptive parent or parents selected by the Director-General or principal officer of an accredited adoption service provider, or

(b) giving "specific consent" to the adoption of the child by:

(i) ...

(ii) ...

(iii) ..., or

(iv) a specified adoptive parent who is an authorised carer who has had care responsibility for the child for 2 years or more."

103. Thus, the Act requires that the consent of each natural parent and the Director General be obtained before an adoption order is made, unless the requirement for the consent has been dispensed with by the Court. As the natural parents have not consented, an application has been brought by the Director-General for, what is called, in s 66 of the Act, a "consent dispense order". In this case, that order is sought in conjunction with the adoption order in relation to M.
     
104. Section 67 of the Act provides that:
     

"(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that:

(a) the person cannot, after reasonable inquiry, be found or identified, or

(b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or

(c) if the person is a parent of, or person who has parental responsibility for, the child-there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or

(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.

(2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child."

105. I am satisfied that the relevant notice has been given to Ms J.
     
106. As Mr P has appeared and put forward his reasons for not consenting, I am satisfied that notice of the application has been given as required by s 72 of the Act and that I am able to proceed with determining this part of the application.
     
107. In the present case, the basis for seeking the consent dispense order is sub-section is s 67(1)(d)(i) and (ii).
     

Name Change of Child

108. The provision of the Act which governs the naming of adopted children, is s 101, which provides:
     

"101 Names of adopted children

(1) On the making of an adoption order:

(a) an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made, and

(b) 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 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.

(3) If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname.

(4) An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change.

(5) The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless the Court is satisfied that the name change is in the best interests of the child.

(6) Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, under the law of New South Wales."

109. (Since the amendments made to the Act, by the Adoption Amendment Act , 2008, which was assented to on 4 December 2008, and which, relevantly, came into operation on 1 January 2009, "special reasons" are not required under s 101(5) of the Adoption Act , 2000.)
     
110. The meaning and effect of this section, prior to its amendment, was discussed by Campbell J (as his Honour then was) in the Application of O and P [2005] NSWSC 1297; (2005) 34 Fam LR 385:
     

"Construction of Section 101 - Structure

[51] Section 101(1) is a substantive provision, which states what in the eyes of the law a child's name shall be "on the making of an adoption order". Section 101(1)(a) is a mandatory provision, to the effect that the making of an adoption order concerning a child who is 18 or more effects no change in either the surname or given names of the adopted child, unless the child decides otherwise. Section 101(1)(b) enables both the surname and given name or names of a child who is less than 18 years of age to become whatever name the Court approves in the adoption order itself. The drafting of s 101(1)(b) necessarily presupposes that the Court has power, in an adoption order, to approve a change of surname, and also to approve a change of given name or names.

[52] Section 101(1) is concerned with the name which an adopted child is to have at a single moment in time, namely the moment when the adoption order is made. However, if in accordance with s 101(1) the child has a particular name at that moment, it will continue to have that name unless and until some other event happens which is effective to change the name. Section 101(6) expressly leaves open the possibility of there being such a change in name after the making of an adoption order.

[53] Section 101(2)-(5) inclusive is directed in its totality to the Court. If s 101(1) had stood in the Act alone, the Court would have had an extremely wide discretionary power to approve changes in any part of the name of an adopted child who is less than 18 years of age. Being a power conferred on a court, it would be implicit that the power would be exercised in a judicial fashion. As well, even though no express limitations were imposed on the power, it would not be completely unconfined - however it would be confined as a matter of construction only to the extent that the scope and purpose of the statutory enactment may enable the Court to see that some exercises of the power would be definitely extraneous to any objects the legislature could have had in view: Water Conservation and Irrigation Commission (New South Wales) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505; R v The Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49; The State of New South Wales and Others v The Commonwealth of Australia and Carlton and Another [1983] HCA 8; (1983) 151 CLR 302 at 321-322; FAI Insurances Ltd v The Honourable Sir Henry Winneke and Others [1982] HCA 26; (1982) 151 CLR 342 at 368; Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others [1986] HCA 40; (1986) 162 CLR 24 at 40; Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273 at 285.

[54] Section 101(2)-(5) imposes limits on the Court's exercise of discretion to change a child's name by stating certain factors which the Court must consider, one factor which the Court may consider in approving a surname, and certain circumstances when the Court must not approve a change in the given name or names of a child. Subject to those limitations, the discretion of the Court remains a wide one.

[55] Section 101(3) presupposes that a child might have become "generally known by a particular surname" before the adoption order is made. Given that the circumstances in which adoption orders are made are almost invariably ones where the child has been in the custody of the proposed adoptive parents prior to the adoption order being made, frequently for a period of more than a year, the most common situation in which s 101(3) will come to be applied is where the child "has become generally known by" the surname of the proposed adoptive parents before the adoption order is made. While there is no analogous recognition in s 101 of the possibility of a given name having undergone a de facto change before the adoption order is made, neither is there anything in either the express terms of s 101, nor is there any necessary implication contained in s 101, that no de facto change in the given name of the child can occur prior to the adoption order being made. It is simply wrong to say that the applicants, by referring to the child by another name prior to the application being brought, have contravened the Act."

111. 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. Once again, the decision maker is obliged to consider the best interests of the particular child in the particular circumstances of the case.
     
112. How the court determines what is in the best interests of that child in regard to a name change 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.
     
113. However, the ultimate, and only, principle that guides the test under s 101(5) is what is in the best interest of the child.
     
114. 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.
     

Determination

The Adoption Order

115. As stated previously, the Court must not make an adoption order unless prior to making an adoption order, it has had regard to the objects and principles (s 8), read in conjunction the matters set out in s 90 of the Act.
     
116. In determining what order is in the best interests of M, I consider, so far as is relevant, the following matters that are set out in s 8, by reference to the facts that I have found.
     

(a) any wishes expressed by the child

117. M is too young to express any wishes. Because of his age, the proposed adoption has not been discussed with him. Thus, in this case, this is a presently irrelevant consideration.
     

(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

118. M is aged 7 years. He has an "age appropriate" understanding of his family circumstances. I have set out his background, noting, importantly, that he has been living with Mr L and Mrs L, on a full-time basis, virtually since he was born.
     
119. M may have a vulnerability in respect of his mental health arising from Ms J's diagnosis. The prospective adoptive parents have been "interested to know more about schizophrenia, particularly heritability and other risk factors to its onset".
     
120. I have also dealt, previously, with M's relationship with Mr P and Ms J. It is universally recognised by all that his family relationships should be encouraged.
     

(c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity

121. M's physical, emotional and educational needs are, no doubt, the same as those of any other child of his age. There is nothing to suggest that in regard to any of these categories, he has special needs.
     
122. However, in circumstances such as the present, I am of the view that emotionally, he needs continuing security and stability. Any ambiguity that M may feel, as he gets older, by being in long term care should, if possible, be avoided.
     
123. The prospective adoptive parents have shown themselves as attentive to M's physical, emotional, and educational needs and have "committed to the process of Life Story Work and have already started collecting memorabilia and recording information". They have facilitated, encouraged and participated in, contact between M and Ms J and between M and Mr P. (A Life Story Work is created to help an adopted child develop his, or her, sense of identity and self as he, or she, grows up.)
     
124. (I have not made any specific reference to the asserted inability of Mr P to read, or write, properly, as a matter to which I have given any weight. This is because I accept that a person with a learning disability may, in many cases, with assistance, be able to bring up a child successfully.)
     
125. It seems that M's sense of family identity is with Mr L and Mrs L and with Mr L's children. This does not mean that his family identity, with persons such as Mr AP and his children (M's cousins), should not be encouraged.
     

(d) any disability that the child has

126. M does not suffer any identified disability.
     

(e) any wishes expressed by either or both of the parents of the child

127. Both Ms J and Mr P have expressed opposition to the adoption. Each, in his, or her, way, has expressed an explicit wish for the return of M, and pending that return, more contact with M.
     
128. The very fact that each has expressed such a wish for M to return to her, or him, vividly demonstrates, in my view, the potential for instability if an adoption order is not made. Arguably, there could be more than one application to rescind, or vary, the care order that has been made. This potential for disruption should be avoided.
     
129. I shall set out later, what Mr P has said are his reasons for opposing the adoption order. I have carefully considered those reasons. In this case, I am not at all satisfied that either Ms J, or Mr P, will, in the short, or medium term, future, be in a position to responsibly, and properly, resume the care of M. Even if I had a different view, that would not be enough.
     
130. In this case, as earlier noted, the Children's Court has made a care order in respect of M under the Children and Young Persons (Care and Protection) Act . The care order gave the parental responsibility for M to the Minister until M is eighteen years of age. This Court could simply leave that order in place, declining to make an adoption order and leaving Ms J and Mr P in a position to apply to the Children's Court, under s 90(1) of that Act for rescission, or variation, of the care order. That is the course of action that Mr P urges on the court.
     
131. What I have to consider also is whether either Ms J, or Mr P, has any reasonable prospect of success in her, or his, application under s 90, to resume care of M. Section 90(2) provides that the Children's Court may grant leave to apply for the rescission or variation of a care order "if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied".
     
132. Section 90(2A) identifies the matters that the Children's Court must take account, cumulatively, in considering whether to grant leave and in considering whether there has been a significant change of circumstances since the care order was made. The matters include:
     

(a) the nature of the application; and

(b) the age of the child or young person; and

(c) the length of time for which the child or young person has been in the care of the present carer; and

(d) the plans for the child; and

(e) whether the applicant has an arguable case.

133. There is simply no evidence about some of these matters (the matters in (d) and (e)). To the extent that there is evidence, it does not favour either Ms J or Mr P (e.g. the matters in (b) and (c)).
     
134. To leave open the opportunity for there to be a challenge, or challenges, to the care order, requires me to speculate, and to focus upon the individual needs of Ms J and Mr P, rather than on the best interests of M now and in the future.
     
135. I have also considered another aspect. No doubt, because of the legal effect of adoption, a loss by Ms J, and by Mr P, as well as by M, will be suffered. How serious this loss is likely to be depends on the circumstances of the case. Yet, in this case, the loss spoken of by Mr P in submissions is a loss that he (and Ms J) is likely to feel the most. It is doubtful that M will feel the same, or perhaps, any, degree of loss, since he has only ever known Mr L and Mrs L as his parents, and it is with them that he has lived for virtually the whole of his young life. If any balancing of interest is necessary on this aspect, the interests of M must prevail.
     
136. In stating this, I do not doubt the sincerity of Mr P's wish to continue his relationship with M. I also point out that consenting to an adoption, if it is thought to be in the best interests of the child, could not amount to a failure in parental duty. Regrettably, any recognition by Ms J, or by Mr P, that M is doing well in the care of Mr L and Mrs L did not translate into her, or his, consent to the adoption order.
     
137. Hopefully, Mr P (and Ms J), in time, and with continued contact, will be able to put his (and her) own feelings of grief and, if there is any anger, that anger, aside. If each can do this, it will be a great help to M.
     

(f) the relationship that the child has with his 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

138. Generally, M appears to enjoy contact with Mr P. Ms J has more difficulty engaging M during contact and as a consequence M appears to find time spent with her more difficult. There are no siblings, or other relatives, with whom he has a relationship currently.
     

(g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood

139. Mr L and Mrs L seem to be, as they have been described. They are "affectionate, loving and nurturing parents" who have organised their lives around their responsibilities as parents to M. They want to care for M "forever" and have stated that M "is a part of our family, we love him, he loves us and the kids".
     

(h) the nature of the relationship of the child with each proposed adoptive parent

140. M is comfortable and relaxed with Mr L and Mrs L and has a secure attachment to them.
     
141. M sees the prospective adoptive parents as his mother and father.
     
142. I must also consider another aspect involving Mr L and Mrs L. I have referred to the difficulties relating to contact that they have identified. I must endeavour to avoid, not only anxiety and uncertainty on the part of the child, but also on the part of his carers that arises from the impermanence of their situation. In my view, there would be a significant cost and emotional turmoil in their having to address future applications of the type to which I have referred, in respect of M by either or both of Ms J and Mr P.
     

(i) the suitability and capability 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

143. There is no issue raised in any of the material before the Court that would suggest anything other than that Mr L and Mrs L are suitable, and that they are capable of providing for the needs of M, including his emotional and intellectual needs. Ultimately, Mr P did not submit to the contrary.
     
144. I have much less confidence in the suitability and capability of Ms J and Mr P to provide for the need of M, including his emotional and intellectual needs.
     

(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

145. Mr P has a "documented history violence and an extensive criminal history". These facts, in the circumstances of this case, cannot, by themselves, prove that the possibility of a greater role in M's life must be rejected.
     
146. Also, whilst it appears there has been a change in the pattern of some of Mr P's criminal behaviour, there continue to be a number of incidents in which he has been involved, either as the victim or as the perpetrator. On these occasions, there has been violence, or the possibility of violence.
     
147. To risk M being involved, directly, or indirectly, with such incidents, should be avoided. Incidents may occur even if Mr P endeavours to avoid them, presumably, as he has, in the past, and even though in submissions he states he will do in the future.
     
148. Ms J has been diagnosed with schizophrenia. Her illness impacts on her insight into M's needs, her capacity to care for him on a day to day basis, and her capacity to engage with him and to meet his emotional needs. These circumstances, in my view, would pose a threat to M if he were in her care.
     

(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

149. I shall deal with this matter later.
     
150. I turn now to the matters under s 90, which sets out matters about which I must be relevantly satisfied.
     

Section 90(1)(a) - that the best interests of the child will be promoted by the adoption

151. I am satisfied of this matter. The making of an adoption order will secure M's place within Mr L's and Mrs L's family. It will also safeguard him from any application by either Mr P, or Ms J, to rescind, or vary, the care order. Such an application, in my view, would not be in his best interests, and the possibility of competing applications would be extremely distressing and disruptive.
     
152. Because I am satisfied that Mr L and Mrs L have a genuine commitment to ensure that M's relationship with both Ms J and Mr P continue to develop, on this aspect, also, I am satisfied, that M's best interests will be promoted by the adoption. I have little doubt that Mr L and Mrs L will continue to raise M to have a good knowledge and understanding of his background and history. The evidence, overall, clearly points to M's best interests being served by ensuring that the warm, stable and loving home in which he has been raised, virtually since his birth, continues to be available to him through adoption.
     

Section 90(1)(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

153. Given M's age, this sub-section has limited, if any, application. It is his apparent acceptance of Mr L and Mrs L, as his parents, which is relevant.
     

Section 90(1)(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

154. I am satisfied that Mr L and Mrs L have been selected in accordance with the Act. In this regard, I have considered Part 3 of the Act.
     

Section 90(1)(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

155. I have dealt with this previously. Whether the consent should be dispensed with, I shall deal with later in these reasons.
     

Section 90(1)(h) - 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

156. Mr L and Mrs L state they are happy to comply with any request regarding heritage and religion, and are open in their attitude towards religion. The Adoption Plan to which I have referred confirms that these matters have been taken into account.
     

Section 90(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

157. There are individual Adoption Plans which, in each case, I am satisfied is in M's best interests. What has been proposed, in all the circumstances, seems to have been carefully considered with the interests of all relevant persons being considered. The continued contact with Ms J and Mr P that has been proposed, will preserve the attachment of M to each and will avoid any sense of loss or rejection which M may feel if he is completely cut off from his past. Therefore, having reviewed them, I confirm the Individual Adoption Plans: s 51(3)(c) of the Act.
     

Section 90(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

158. Mr P expressly opposes the application for adoption, whilst not expressly denying that M has been living happily with Mr L and Mrs L for 7 years; that M loves Mr L and Mrs L; that M has formed a strong attachment to Mr L and Mrs L; and that M is doing well in their care.
     
159. Initially, Mr P was somewhat hesitant in stating the reasons why he opposed the application for adoption. His explanation for this hesitancy was that he wished to ask questions of a number of witnesses. Ultimately, in submissions, when he did explain his reasons these were, firstly, that he would not want to think that he had not fought hard to ensure that M came into his care; second, that if the adoption order were made, it would "close the door" to any application for his care of M; and thirdly, that by maintaining the status quo, Mr P would have a chance to be M's father, something he has not had an opportunity to be, at least to date. His wish is to leave open the possibility that M will come into his care.
     
160. Mr P also stated, in submissions, that because of his lack of contact, he had never been given a real chance to develop and strengthen the bond of fatherhood. He states that the contact that is agreed needs to be close in proximity, to foster the notion of relationship.
     
161. He opposes an adoption order because he says that the M's best interests can just as well be served by leaving him in the care of Mr L and Mrs L as foster parents, rather than as adoptive parents. He says that by doing so, it "leaves the door open" for him to make an application to rescind the care order that was made in February 2005.
     
162. There appear to be three main alternatives for M's parenting arrangements that I must consider. In no particular order of priority, they are:
     

(i) Making an order for the adoption of M by Mr L and Mrs L, with contact for Mr P and Ms J to be as is set out in the Adoption Plan for each;

(ii) Making an order in relation to the parental responsibility for M, in favour of Mr and Mrs L; and

(iii) Dismissing the Plaintiff's application, with the result that M remains under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998.

163. It is only necessary to consider increasing the contact that M has with Mr P and/or Ms J in the event that I find it would be in the best interests of M for that to occur.
     

For reasons expressed, I am of the view that an adoption order is the alternative that would be in the best interests of M. In relation to the second alternative, I have earlier stated that I am not at all satisfied that either Ms J, or Mr P, will, in the short, or medium term, future, be in a position to responsibly, and properly, resume the care of M. If I "leave the door open" as sought by Mr P, thereby deferring an adoption order, for a year or, perhaps, two, Mr P could renew his opposition to M remaining in the care of Mr L and Mrs L, either in this Court, or in the Children's Court, with no apparently real prospect of success, but to the great anguish and insecurity of M and to Mr L and Mrs L. Even if he did not make such an application, this could cause the same anguish and insecurity. I can see very few real advantages to the third alternative. The continued involvement of the Minister comes at a price of potential instability and also insecurity.

164. I am also satisfied that each Adoption Plan prepared in respect of Ms J and Mr P, setting out the contact that is to occur is in M's best interests. The course that was suggested by Mrs L as to future contact is a realistic, reasonable and sensible one. It leaves open the prospect that contact will be extended. However, that will depend, at least in part, upon the conduct of Ms J and Mr P respectively and the way in which her, and his, relationship with M develops.
     
165. In summary, the matters to which I have given particular weight in considering whether the adoption order should be made are:
     

(a) The length and strength of M's relationship with Mr and Mrs L.

(b) The vulnerability of M and his emotional and physical needs for a secure, stable and permanent relationship with Mr L and Mrs L and Mr L's children; the security that M feels with Mr L and Mrs L should be made legally impregnable.

(c) The lack of any information by Ms J, or by Mr P, about her, and his, plan for M, other than each would like to have him back in her, or his, care.

(d) The mental condition of Ms J.

(e) The history of violence that Mr P has had, and even now, that he appears to experience (either as the victim or as the perpetrator).

166. Accordingly, I have come to the conclusion that it is in M's best interests that an adoption order should be made now, in preference to any other course of action. In my view, there would be a positive contribution to the welfare of M by him being adopted by Mr L and Mrs L.
     

Consent Dispense Order

167. There can be no doubt that a Court must approach an application to dispense with the consent of a parent to an adoption with great care. In a joint judgment in Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 the Full Court (Dixon CJ, Webb, Fullager, Kitto and Taylor JJ) said at 385:
     

"It must be conceded at once that in the ordinary case the mother's moral right to insist that her child shall remain her child is too deeply grounded in human feelings to be set aside by reason only of an opinion formed by other people that a change of relationship is likely to turn out for the greater benefit of the child. It is apparent, too, that a court which is invited to make an order of adoption must appreciate that the child is another's, and that only the most weighty and convincing reasons can justify the involuntary breaking of a tie at once so delicate and so strong as the tie between parent and child."

168. For the reasons already given, I am satisfied, since the adoption by Mr L and Mrs L, will proceed, that it is in the best interests of M, to make a consent dispense order under s 67(1)(d) of the Act.
     

Application concerning M's surname

169. M is not old enough to understand that he has a different surname to the prospective adoptive parents.
     
170. Since the adoption order is to be made, it is in M's interests that he be given the surname of his adoptive parents. Otherwise, his name will not be changed.
     
171. Because M is younger, he is yet to be publicly widely known by his current surname and a change is therefore easier and may be thought to be able to be achieved without undue confusion for him. He would have the same surname as his siblings and his parents.
     
172. Therefore, I make the orders as sought by the Plaintiff in the Summons.
     

Postscript

173. I should not conclude this Judgment without commenting on the fact that the court has been greatly assisted by the high standard of representation provided by the legal representatives of the Plaintiff. Both counsel and solicitors have acted, as one would expect in a case such as this, not only at the hearing, but throughout the case, fairly, patiently, courteously and with empathy.
     
174. Mr P, who appeared unrepresented, has, for the most part, acted with courtesy and dignity, in what must have been a most difficult, complex and stressful situation.
     

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