Adoption of Jane

[2019] NSWSC 880

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of Jane [2019] NSWSC 880
Hearing dates:	11 July 2019
Decision date:	11 July 2019
Before:	Ball J
Decision:	Order for adoption of child, approval of change to child's name and registration of maternal adoption plan
Catchwords:	FAMILY LAW – Children – Adoption – contested by natural mother – whether adoption is in best interests of the child – dispensing with consent of natural father under s 67(1) of the Adoption Act 2000 (NSW) – registration of maternal adoption plan under s 50(3) of the Adoption Act 2000 (NSW) – change of child’s name under s 101(1) of the Adoption Act 2000 (NSW) CIVIL PROCEDURE – Hearings – Adjournment – whether to grant adjournment to extend time in which to file evidence – numerous previous extensions
Legislation Cited:	Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	Re the Adoption of AJH [2017] NSWSC 1751
Category:	Principal judgment
Parties:	The Secretary, New South Wales Department of Family and Community Services by his delegate Agency responsible for Jane’s Care (Plaintiff) Cathy (First Defendant) Jenny (Second Defendant)
Representation:	Counsel: J Harris (Plaintiff) In Person (First Defendant) S Wimalaratne (Solicitor) (Second Defendant)   Solicitors: Crown Solicitors Office (Plaintiff) SVW Legal (Second Defendant)
File Number(s):	A114/2018
Publication restriction:	This version is for publication and uses pseudonyms for the child, the proposed adoptive parents and the birth family

EX TEMPORE Judgment

1. Before the Court is an application for the adoption of Jane by Ms Jones and Mr Patrick, who I will refer to as the “proposed adoptive parents”.

2. Jane has lived continuously with the proposed adoptive parents since 1 July 2014. She is approximately six and a half years old.

3. Janes natural mother is Cathy. Her natural father is John. Jane has two maternal half-sisters, Sarah who was born in 1994 and Jenny who was born in 1996. Jenny has a partner and she and her partner have two young children. Jane also has a maternal half-brother, Robert, who is one year old and who lives with Cathy.

4. It is not necessary to go into the circumstances in which Jane came to be removed from the care of her natural parents. It is sufficient to observe that she was removed from Cathy’s care on 20 May 2013 following the receipt of eight risk of harm reports relating to Cathy’s drug use and criminal history. In 2014, the Children’s Court made final orders allocating parental responsibility for Jane with the Minister until she attains the age of 18 years.

5. Jane’s early history in care was not satisfactory. She was initially placed with an authorised carer. Those arrangements broke down after two days and Jane was then placed with foster carers for approximately two months, after which she was returned to her original carer. That broke down after four days when the carer’s brother became ill. Jane was then returned to the previous carers for approximately one year, after which she was placed with Ms Jones and Mr Patrick. She was 16 months old at the time.

6. There is no suggestion that custody of Jane might be restored to Cathy. Cathy did make an application for restoration under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) in 2015, which she subsequently withdrew. There is also no suggestion that custody might be restored to John. At one stage, there was a suggestion that Jenny might make an application to adopt Jane. However, Jenny has since indicated that she accepts that Jane should remain with Ms Jones and Mr Patrick.

7. There is also no suggestion that Ms Jones and Mr Patrick are unsuitable to adopt Jane. Jane has lived with them continuously since she was 16 months old. The evidence is that she has established a close, loving and stable relationship with them and her adult foster brother, Harry, and that her physical and emotional needs are well catered for in her current environment. She refers to Ms Jones and Mr Patrick as “mummy and daddy” and to Harry as her brother and she is very much a part of the proposed adoptive parents’ immediate and extended family. Despite some remaining psychological problems stemming from her early childhood, it is plain from the evidence that Jane has thrived in their care. Ms Jones and Mr Patrick otherwise satisfy the requirements of the Adoption Act 2000 (NSW) (the Adoption Act).

8. John has not provided his written consent to the adoption in accordance with the requirements of s 52 of the Adoption Act, but has not taken any steps to oppose it. The evidence is that he was served with the application and the mandatory written information on adoption required by s 59 of the Adoption Act. He is currently serving a prison sentence, with an earliest release date in 2022.

9. Jane’s adoption was originally opposed by both Cathy and Jenny. Both have filed an appearance and both appeared at the hearing of the application.

10. Cathy was self-represented. Despite having been given a number of opportunities to do so, Cathy did not file any evidence in opposition to the application. At the hearing, Cathy did make an application for an adjournment in order to file some evidence. I refused that application on the basis that Cathy had been given a number of opportunities to file evidence in the past and had not done so.

11. Prior to the hearing, Cathy’s primary position was that she supported the position of Jenny. At the hearing, it was apparent that Cathy had two concerns. One was the way the circumstances in which Jane came to be removed from her care had been described in Jane’s life story book and the reports that have been given of a number of contact visits between her and Jane which suggest that there was limited engagement with Jane. The other was the level of contact she has had and would have if an adoption order were made.

12. Jenny was represented and filed an affidavit in opposition to the application. It is apparent from the affidavit that Jenny opposed the adoption because she was concerned that the result will be that she will have limited contact with Jane following the adoption. In paragraph 11 of her primary affidavit, she says this:

I don’t oppose [Ms Jones and Mr Patrick] caring for [Jane] but I don’t want them to adopt her because I am worried that I will not get to see her very much, even less that [sic] what I see her now. Currently I have been extremely limited in the amount of contact that I have had with [Jane].

13. There is some evidence that Jenny has not always given Jane her undivided attention during the contact visits that have occurred. However, I accept that Jenny is genuine in her desire to develop a sisterly relationship with Jane and that she has been diligent in attending contact visits.

14. At the time the Children’s Court made final orders allocating parental responsibility for Jane to the Minister, it approved an amended care plan filed on 24 January 2014 which provided for a minimum of six supervised contact visits per year with Cathy and Jenny and/or Sarah of two hours each plus an additional four contact visits per year with Cathy and Jenny and/or Sarah to be supervised by a friend of Cathy’s who had previously provided respite care to Jane on a regular basis. Those additional visits were optional depending on the friend’s availability. The amended care plan also provided that the contact visits would be reduced to two times per year if Cathy was incarcerated.

15. In 2014, Cathy was incarcerated until August 2014 and in the remainder of 2014, following her release, there were two contact visits between Jane and Cathy. Jenny attended both those visits.

16. In 2015, there were seven scheduled contact visits between Jane and Cathy. Cathy and Jenny attended six of those. Sarah attended three visits during the period 2014 to 2015 and has not attended any further contact visits since May 2015.

17. In 2016, there were five scheduled contact visits between Jane and Cathy. Jenny attended all of those visits.

18. In each of 2017 and 2018, there were four scheduled contact visits between Jane and Cathy. Jenny attended all of the visits in 2017 and three in 2018. The number of visits was reduced to four following a report prepared by the agency responsible for Jane’s care pursuant to s 82 of the Care Act. The report noted that Jane suffered from behavioural problems following contact visits with Cathy, although those behavioural problems have reduced over time.

19. On 11 January 2018, the agency responsible for Jane’s care proposed a maternal adoption plan which provided for contact between Jane, Cathy and Jane’s material siblings of four combined contact visits per year of two hours each.

20. Jenny gives evidence that she believes that it is difficult for her to develop a relationship with Jane when “I am only allowed to see her four times a year for two hours at a time”, particularly since those visits are normally shared with Cathy. Jenny said that she would like to spend time with Jane alone and unsupervised and that in the future she would like Jane to come over to her place and even spend the night.

21. The evidence is that the proposed adoptive parents are supportive of Jane developing a close sibling relationship with Jenny. Ms Jones gives evidence that she would support Jane having additional contact visits with Jenny, although she would want her and Mr Patrick to be present at least for the first 12 months to enable them to get to know Jenny better and to ensure that Jane feels comfortable. That is reflected in an amended maternal adoption plan which has been signed by Ms Jones and Mr Patrick. That plan provides for six contact visits between Cathy and Jane’s half-siblings, including Jenny. It also states:

Ms Jones and Mr Patrick are supportive of Jane having additional contact visits with Jenny separately from her mother four times per year. Ms Jones and Mr Patrick would attend the contact visits between Jenny and Jane for, at least the next 12 months, and thereafter depending on Jane’s wishes and her level of comfort. After a suitable period of time and when all parties mutually agree, Ms Jones and Mr Patrick would be supportive of contact visits between Jane and Jenny being unsupervised.

The amended adoption plan also addresses the possibility of overnight stays in the future.

22. Cathy and Jenny did not sign the amended maternal adoption plan at the time it was signed by the proposed adoptive parents and by the representative of the agency responsible for Jane’s care. However, they did so at the hearing.

23. By an amended summons filed on 9 July 2019, the Secretary seeks an order pursuant to s 50(3) of the Adoption Act that the amended maternal adoption plan which has now been signed by all the parties be registered, with the effect that it forms part of the order for adoption.

24. Jenny indicated at the hearing of this matter that she now no longer consented to nor opposed the adoption and that she is content with the level of contact proposed in the amended maternal adoption plan. Cathy remained opposed to the adoption.

25. In my opinion, adoption would clearly be in the best interests of Jane and is clearly preferable to any other action that could be taken in relation to her care. The only other realistic alternative is for Jane to remain in the care of Ms Jones and Mr Patrick without being adopted.

26. This Court has repeatedly stressed the importance for a child of the security that adoption brings. As Hallen J said Re the Adoption of AJH [2017] NSWSC 1751 at [297]:

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 she, or he, will feel most secure when she, or he, is assured that no one can take her, or him, away from the family of which she, or he, 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 …

27. These considerations apply equally to Jane. It is plain that Jane has had a difficult early childhood that continues to be a source of anxiety for her, particularly following contact with Cathy. It was for that reason that contact visits with Cathy were restricted to four times per year. Adoption will improve Jane’s sense of security and in doing so provide a better foundation for her to interact with members of her birth family in the future.

28. I do not accept that Cathy’s first concern provides a ground for refusing to make an adoption order. The principal officer of the agency responsible for Jane’s care accepted when giving evidence that it is important that Jane’s life story book accurately describe the circumstances in which she came to be removed into care. If there are inaccuracies, there is no evidence to suggest that they are the result of a deliberate decision by anyone connected with the adoption and there is no reason to think that if Cathy can establish an inaccuracy that steps will not be taken to correct it. Consequently, that is not a reason for refusing the adoption.

29. There is a dispute about events that occurred at some of the contact visits. However, I have no doubt that Cathy cares for Jane very deeply and it seems plain that she has done a lot to put her past mistakes behind her. Nevertheless, there is ample evidence extending over a substantial period of time that Jane has found contact visits stressful and that is a matter that must be taken into account.

30. Section 90(2) of the Adoption Act provides that the Court must 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.

31. In my opinion, the amended maternal adoption plan satisfies that requirement.

32. The amended maternal adoption plan provides for 6 supervised contact visits per year between Cathy and Jane, two of which are to be scheduled around important events in Jane’s life. It contemplates 10 contact visits per year between Jenny and Jane, four of those without Cathy. The plan also contemplates that the visits with Jenny alone may be unsupervised in the future. It is understandable that the proposed adoptive parents would want to get to know Jenny better and would want to satisfy themselves that Jane feels comfortable being left alone with her before agreeing to unsupervised visits.

33. Cathy would like more contact visits than those proposed in the amended maternal adoption plan. However, I think six is an appropriate number in the present circumstances. As I have indicated, for whatever reason contact visits have been a source of stress for Jane in the past; and that must be borne in mind in considering the appropriate number of visits.

34. Moreover, although Jenny and Cathy may at times find it difficult to accept, Jane is now part of the proposed adoptive parents’ family and priority must be given to providing her with a happy and stable environment in which to grow up. She needs to be made to feel in every respect an essential part of the proposed adoptive parents’ family, to participate in all aspects of family life, to develop friendships, to go to school and to engage in a range of other activities that are appropriate for her age and consistent with her interests. That will be more difficult to achieve if Jane is exposed too frequently to the stresses from which she currently suffers following contact visits or too much of her time is devoted to developing her relationship with Jenny. In my opinion, the revised adoption plan achieves a reasonable balance between the competing demands on Jane’s time and will provide an adequate foundation for her to maintain and develop a relationship with her birth family in the future.

35. For those reasons, in my opinion an adoption order should be made.

36. Neither birth parents have consented to the adoption as required by s 52 of the Adoption Act. However, the Court has power to dispense with consent under s 67(1)(d) of the Adoption Act if (a) an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers or the guardians for the child; (b) the child has established a stable relationship with those carers or guardians; and (c) the adoption of the child by those carers or guardians will promote the child’s welfare. Under s 72(1) of the Adoption Act, the Court may not make such an order unless notice of the application has been given to the person whose consent is sought to be dispensed with at least 14 days before the order is made.

37. I am satisfied that the requirements for the making of a consent dispense order are satisfied in this case. Ms Jones and Mr Patrick are “authorised carers” of Jane because they have the care and responsibility for Jane under out-of-home care arrangements made under the Care Act. Jane has formed a stable relationship with them and for the reasons I have given Jane’s adoption will promote her welfare. The evidence is that the birth parents were given notice of the application to dispense with consent more than 14 days ago.

38. An order is sought under s 101(1) of the Adoption Act that the Court approve “Patrick” as the surname and “Jane Olivia” as the given names of Jane. That order was opposed by Cathy, who submitted that Jane should keep her existing surname to preserve the connection with her birth family. I do not accept that submission. The proposed given names are the names by which Jane is recognised and were the names given to her at birth, which will help to preserve her connection to her birth family. However, it is appropriate that Jane have the surname “Patrick” in order to strengthen her connection with her adoptive parents and to avoid putting Jane in a position where her surname invites enquiry about her background.

39. Finally, an order is sought for registration of the amended maternal adoption plan. Under s 50(3) of the Adoption Act, the Court may register an adoption plan if it is satisfied that:

(a)   the plan does not contravene the adoption principles, and

(b)   the parties to the adoption understand the provisions of the plan and have freely entered into it, and

(c)   the provisions of the plan are in the child’s best interests and is proper in the circumstances.

40. I am satisfied that those requirements are met in this case; and that registration of the plan is appropriate having regard to the history of the matter. The level of contact Jane has with her birth family has been a major issue in this case. Registration of the plan is a clear indication to all the parties that the contact arrangements contemplated by the plan forms part of the adoption. In addition, it provides a mechanism by which the plan can be amended if any party to it thinks in the future that it is no longer appropriate and agreement cannot be reached on its amendment in accordance with its terms.

41. The orders of the Court are:

1. An order pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), that consent of the child’s birth father be dispensed with.

2. An order pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), that consent of the child’s birth mother be dispensed with.

3. An order pursuant to s 23 of the Adoption Act 2000 (NSW) for the adoption of the child Jane in favour of the adopting parents Ms Jones and Mr Patrick.

4. The Court approves pursuant to s 101(1) of the Adoption Act 2000 (NSW) the name “Patrick” as the surname and “Jane Olivia” as the given names of the child.

5. An order pursuant to s 50(3) of the Adoption Act 2000 (NSW) that the Amended Maternal Adoption Plan, signed by the parties be registered.

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Decision last updated: 18 July 2019