Adoption of Iek (No 2)

[2019] NSWSC 842

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of IEK (No 2) [2019] NSWSC 842
Hearing dates:	On the papers
Decision date:	05 July 2019
Jurisdiction:	Equity - Adoptions List
Before:	Robb J
Decision:	See pars [28]-[32]
Catchwords:	FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Adoption plan — Whether the arrangements in the maternal adoption plan are in the child’s best interests and are proper in the circumstances
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	Adoption of IEK [2019] NSWSC 171
Category:	Consequential orders (other than Costs)
Parties:	The Secretary, New South Wales, Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia (Plaintiff) DSC (First Defendant) EK (Second Defendant) IEK (Child)
Representation:	Counsel: D Ward (Plaintiff) G Hill (Second Defendant)   Solicitors: Crown Solicitors’ Office (Plaintiff) Fay Rose Legal (Second Defendant)
File Number(s):	A190/2017

Judgment

1. The primary judgment in this adoption application was published on 1 March 2019: Adoption of IEK [2019] NSWSC 171.

2. For the sake of their anonymity, I will use the same initials to refer to the persons interested in this matter that I used in the primary judgment.

3. The child IEK's birth mother, EK, opposed the Court making the adoption order as sought by the Secretary.

4. I held, at [292], that I would, in due course, make all of the orders sought by the Secretary in these proceedings, subject to first being satisfied that the maternal adoption plan is in IEK's best interests and is proper in the circumstances.

5. I discussed certain difficulties that I saw in the then proposed maternal adoption plan at [258] to [275] of the principal judgment.

6. I gave the Secretary, through the principal officer of Barnardos, the proposed adoptive parent, PAP, and EK, a further opportunity to agree upon an amended maternal adoption plan, having regard to the observations made in the primary judgment.

7. The Court was provided with a revised maternal adoption plan that dealt with the principal problems contained in the original proposal, and also went some way towards increasing the amount of contact between IEK and EK, as the latter requested. In particular, the revised maternal adoption plan reflects the fact that it is proposed that IEK's half-sibling, RK, will be restored to EK's care. It also increases the number of visits per year from 4 to 6, and increases the duration of the visits.

8. By email dated 19 May 2019 to my associate and the Crown Solicitor's Office, EK's counsel advised of the additional provisions requested by EK.

9. Barnardos and PAP have considered the requested alterations to the proposed maternal adoption plan, and their response is to be found in pars 18 to 43 of the further written submissions on the subject, dated 12 June 2019, provided to the Court by counsel for the Secretary.

10. Those submissions refer to a further affidavit of a Program Manager Adoptions employed by Barnardos, affirmed on 12 June 2019, which explained a significant change in the medium-term living arrangements of EK and RK.

11. In short, because of a number of significant risk of harm reports involving EK's care of RK, it is proposed that EK will only be permitted to continue on the conditional path towards restoration of RK, if she enters and completes a residential rehabilitation program into which she has been accepted in the Australian Capital Territory. That program will be for a period of up to 2 years.

12. The Court has been informed that PAP has advised that she will be willing to travel to the ACT twice a year to take IEK to see EK and RK. PAP has suggested that she and IEK could stay overnight in Canberra so that contact could take place on two consecutive days on each visit.

13. I will return to the significance of this change in EK's and RK's living circumstances below.

14. The determination of the appropriate terms of the maternal adoption plan in this case is made difficult because of the present uncertainty about whether the attempt to restore RK to the care of EK will be successful, when combined with the significant distance between what was expected to be the residential addresses of IEK and PAP on the one hand, and EK and RK on the other.

15. I have considered carefully the reasons given on behalf of the Secretary for the acceptance of some variations to the proposed maternal adoption plan requested by EK, and the whole or partial rejection of other suggestions. It is not necessary for the Court to consider each individual issue in detail, and it will be sufficient for me to record that I accept the submissions made on behalf of the Secretary.

16. In particular, an essential attribute of the making of an adoption order in favour of PAP is that the Court will be entrusting parental care for IEK to PAP, which will be done on the basis that the Court is satisfied that PAP is now the person most appropriate to decide what is in the best interests of IEK. I have no doubt on the evidence that PAP will amply fulfil the trust reposed in her by the Court.

17. It follows that the maternal adoption plan should be formulated in a way that is reasonably conservative as a basis for ensuring a satisfactory level of contact and connection between IEK and EK and RK into the future, but on terms that are realistic and not burdensome in a manner that may be self-defeating. It will always be open for PAP to agree to additional connections between IEK on the one hand and EK and RK on the other, if a positive relationship develops, and PAP is satisfied that that is in the best interests of IEK. Inevitably, as IEK grows older, she will wish to have a say in this matter.

18. Incidentally, I agree with the submission made on behalf of the Secretary that it is a good idea for the maternal adoption plan to make provision for mediation by Barnardos, for the sake of simplicity, informality and the avoidance of the costs that may be possible, rather than necessarily requiring a review by the Court.

19. I am satisfied that the arrangements proposed in the revised maternal adoption plan would have been in IEK’s best interests and would have been proper in the circumstances for the purposes of s 90(2) of the Adoption Act 2000 (NSW) (Adoption Act), if the residential arrangements for EK and RK had continued as contemplated when the revised terms were agreed by the parties to the plan.

20. The question that must be addressed is whether the unexpected residential change of EK and RK has the result that the arrangements proposed in the revised maternal adoption plan no longer satisfy s 90(2) of the Adoption Act.

21. The primary change results from the fact that EK and RK are likely to live in the ACT for up to 2 years. That means that it will not be practicable for contact visits to take place in the Blacktown area as required by clause 3(a). Consequently, it will not be feasible for PAP to arrange for the number of visits per year and the length of those visits contemplated by that clause. The change may have consequential effects on the operation of the maternal adoption plan. For example, if EK can no longer live in the Sutherland Shire for the next two years, it is possible that she will lose her accommodation there, and will ultimately find accommodation at some address that makes holding contact visits in Blacktown inconvenient. There may be many other subtle ways that the change will mean that the maternal adoption plan in its present form cannot work in accordance with its terms.

22. The result is that the revised maternal adoption plan will not be able to operate in accordance with a number of its principal terms for up to 2 years, and there is now a real possibility that it will not be able to operate in various consequential ways thereafter. Does this mean that the arrangements proposed in the plan are no longer in IEK’s best interests and proper in the circumstances?

23. The proposed maternal adoption plan provides in clause 3(a): "…Unless otherwise agreed, the schedule will provide for the following visits to take place in the Blacktown area…" That is, I understand, what EK requested before the change in circumstances that led to her residing in the ACT for the medium-term. I take it that the Secretary expects that there will be an agreement between PAP and EK for changes to the location and the frequency of contact visits from that specifically provided for in the maternal adoption plan so long as EK and RK reside in the ACT. However, the Court has not yet been given confirmation that EK has agreed to the proposed changes in contact arrangements that have been necessitated by her relocation to the ACT.

24. The revised maternal adoption plan containing the changes that have been accepted by Barnardos and PAP has been signed on behalf of Barnardos and by PAP, but not EK. The plan is nonetheless an adoption plan for the purposes of s 46(1) of the Adoption Act, as it is a plan agreed to by two or more of the parties to the adoption of IEK. EK is not a party to the adoption, because the definition of parties to an adoption in the Dictionary in the Adoption Act only includes in that term a birth parent who has consented to the child’s adoption. EK has not consented. Moreover, as she has also not agreed to the maternal adoption plan, s 46(2B) of the Adoption Act will not have the effect of treating her as if she were a party to the adoption of IEK for certain purposes. Consequently, EK will not have a right under s 51 of the Adoption Act to apply to the Court for a review of the maternal adoption plan, or to make submissions concerning any such application. EK could cure the latter problem by signing the final form of the maternal adoption plan, which she will be entitled to do without abandoning her refusal to consent to the adoption. It is a matter for EK, however, as to whether she chooses to take that step.

25. I note that the proposed maternal adoption plan attempts to deal with this difficulty, in clause 12, by giving EK a right to mutually agree to changes in the maternal adoption plan with PAP, regardless of whether she has signed the plan. Further, Barnardos will offer a mediation service for PAP and EK, regardless of whether the latter has signed the plan.

26. As matters stand, the revised maternal adoption plan does not contain a provision for contact visits to take place twice per year in the ACT on consecutive days for the time periods that PAP has volunteered, so long as EK and RK reside there. Nor does the Court even have evidence that EK has agreed to those changes, as permitted by clause 3(a) of the plan.

27. So long as that situation continues, in my view the necessary practical deviation from the requirements of the revised maternal adoption plan will have the effect that the arrangements proposed in the plan could not be accepted as being in IEK’s best interests and proper in the circumstances for the purposes of s 90(2) of the Adoption Act.

28. What further variations to the proposed maternal adoption plan should be required to cure this problem? In my view, it will be sufficient if the existing plan is varied further to include an additional term, agreed to by the parties to the adoption, which does not presently include EK, covering the contact visit arrangements while EK and RK reside in the ACT in the manner offered by PAP. Alternatively, I would consider it to be sufficient if an agreement, as permitted by the existing clause 3(a), between PAP and EK was made in the terms offered by PAP and documented for the sake of evidence, even if only informally by exchange of emails between Barnardos, PAP and EK.

29. I appreciate that this single change to the revised maternal adoption plan, or alternatively the suggested agreed change in how that plan will operate, does not specifically deal with all of the potential consequences of EK and RK residing in the ACT that have been referred to above. However, I consider that the Court should resist the temptation to require that adoption plans be amended to cover all foreseeable changes in circumstances, as that would tend to the creation of overly complex agreements of an excessively legal character; which in my view would be incompatible with the objective that adoption plans will facilitate a cooperative and non-technical relationship between adoptive and birth parents.

30. It is preferable for the Court to leave it to the adoptive and birth parent or parents to try to reach agreements within the framework contemplated by the adoption plan, to deal with changes that require variations to the specific arrangements contained in the plan; if necessary, as in the present case through the mediation of Barnardos. In need, an application can be made to this Court for a review of the terms of the adoption plan. It appears to be unfortunate that a birth parent in EK’s position, who has not agreed to the adoption plan, may have limited rights in relation to any such review.

31. Consequently, I am satisfied that, if either arrangement that I have suggested above can be implemented to deal with the medium-term consequences of EK and RK residing in the ACT, I can then be satisfied that the arrangements that are proposed in the maternal adoption plan are in IEK’s best interests and proper in the circumstances.

32. I will invite the Secretary to inform my associate whether either of the suggested arrangements has been made, and it will then be appropriate for the Court to make the remaining orders sought in prayers 3 to 6 of the summons. At the same time, the Secretary should inform my associate whether it is preferred that the orders are made in chambers or in court.

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Decision last updated: 05 July 2019