Pilot & Edwards and Ors

[2007] FamCA 1714

FAMILY COURT OF AUSTRALIA

PILOT & EDWARDS AND ORS [2007] FamCA 1714

FAMILY LAW – CHILDREN – With whom a child lives – Where child conceived through rape – Whereabouts of putative father are unknown – Where mother travels to Australia and enters into an informal parenting agreement which provided for unrelated couple to permanently care for the child – Where applicant couple sought to formalise the agreement through parenting orders – Department of Community Services intervened in the proceedings – Mother’s capacity to make an independent and informed decision about the child’s placement considered – Whether arrangement inconsistent with AdoptionAct 2000 (NSW) – Notwithstanding unsatisfactory aspects of circumstances where applicants assumed child’s care it was not tantamount to an illegal adoption – Parenting orders made in favour of applicant couple

FAMILY LAW – CHILDREN – Parental responsibility

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61C, 62B, 64A, 65DA(2), 68L,
Adoption Act 2000 (NSW) s 7
Children and Young Persons (Care and Protection) Act 1998

APPLICANTS: Mrs Pilot and Mr Pilot

FIRST RESPONDENT: Ms Edwards

SECOND RESPONDENT: Ms Boland

THIRD RESPONDENT: Director-General, Department of Community Services

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: NCC 2697 of 2007

DATE DELIVERED: 6 December 2007

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 6 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANTS Mr Hamilton

SOLICITOR FOR THE APPLICANTS Brennan Tipple Partners

SOLICITOR FOR THE FIRST AND SECOND RESPONDENTS Ferry’s Law Firm

COUNSEL FOR THE INTERVENOR Ms Ward

SOLICITOR FOR THE INTERVENOR Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Commission of New South Wales

Orders

1. That all prior parenting orders are discharged.

2. That the child … born … July 2007 live with Mrs Pilot and Mr Pilot (“the Applicants”).

3. That the Applicants have equal shared parent responsibility for the child.

4. That the long term care, welfare and development of the child includes:

   (a)       education including primary, secondary and tertiary;

   (b)       health care, medical and dental issues;

   (c)       religious observance;

   (d)       sporting, cultural and social activities;  and

   (e)       travel including the obtaining of a passport.

5. That in respect of each issue concerning the long term care, welfare and development of the child the Applicants will make the decisions concerning these issues but can also;

   (a)       consult with either or both Respondents in relation to the decision to be         made;  and

   (b)       notify either or both Respondents in assisting and addressing these      issues.

6. That either or both Respondents spend time with the child at all such times as agreed between the parties from time to time.

7. That either or both Respondents shall collect the child from the Applicants’ residence at …, W in NSW or such other place as agreed between the parties at the commencement of periods of time to  be spent with the child and the Applicants shall collect the child from the respective Respondents’ residence as agreed between the parties at the conclusion of each visit.

8. That the Applicants have sole responsibility for making decisions about the child’s day to day welfare, care and development when the child is in the care of the Applicants.

9. That the Respondents have sole responsibility have sole responsibility for making decisions about the child’s day to day welfare, care and development when the child is in their care.

10. That any party be allowed to communicate with the child by telephone on any day of the week at any time agreed by all parties for up to 30 minutes and the party in whose care the child is in shall provide all reasonable assistance to enable such communication to take place.

11. That whichever party receives a copy of the child’s school report/s shall provide a copy/copies to the other parties if requested, or if the school is agreeable, direct the school to provide copies of such reports directly to the other party or parties.

12. That each party shall upon receiving notification of any school or extra curricular special event (including but not limited to concerts, parent teacher interviews, excursions and camps) provide the other party if requested by any of the other parties details or a copy of the notification of such event.

13. That if any party receives notice of a party or other special event for the child which will take place while the child is with the other party or parties, he/she shall give the other party or parties notice of such event.

14. That within 12 months the Director General of the Department of Community Services shall convene a meeting between one of its adoption case workers and Mr and Mrs Pilot during which advice shall be provided to Mr and Mrs Pilot concerning disclosure (if appropriate) to the child about the circumstances surrounding her conception and adoption and the existence of her half-brother D.

15. The Court notes that the Director General of the Department of Community Services invites Ms Edwards to participate in further adoption case worker meetings.

16. That Mr and Mrs Pilot shall keep Ms Edwards promptly advised of the following:

    (a)       their residential address;

    (b)       landline telephone number;

    (c)       email address;

    (d)       any changes to the composition of their household.

17. That Ms Edwards shall keep Mr and Mrs Pilot promptly advised of the following:

    (a)       her residential address;

    (b)       landline telephone number;

    (c)       email address;

    (d)       any changes to the composition of her household.

18. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

19. I give the Independent Children’s Lawyer leave to make oral application for costs.

20. That the Independent Children’s Lawyer’s application for costs is refused.

21. That all outstanding applications are otherwise dismissed.

IT IS NOTED

that publication of this judgment under the pseudonym Pilot & Edwards and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2697/2007

MRS PILOT & MR PILOT

Applicants

And

MS EDWARDS  

First Respondent

And

MS BOLAND  

Second Respondent

And

DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES

Intervenor

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the future living arrangements for the child … (“the child”) born in July 2007. The child has been in the applicants care since she was two days old.

2. The child came into the care of following a private arrangement reached with the child’s mother.  The applicants and child are unrelated.

3. On 6 December 2007, with the agreement of all parties and the Independent Children’s Lawyer, I made orders in favour of the applicants for which these are my reasons.

Background facts

1. The first and second applicants (“the applicants”) are Mrs Pilot and Mr Pilot. Mr and Mrs Pilot were married in November 1994.  For 12 years they have been unsuccessfully trying to have a child. They do not have any children of their own. They reside in a home they own at W, NSW.

2. Mrs Pilot was born in July 1970. By occupation she is a counsellor but in recent times she has worked as a consultant. She also works for an independent voluntary adoption service that assists children and adults who have been adopted. She has no criminal convictions.

3. Mr Pilot was born in May 1968. At the time of the hearing, he had been employed for about a year as an office professional. Prior to this, he worked for many years in finance, and other professional industries. His work requires him to travel to Sydney almost every day, but he has the capacity to work from home and does so between one to two days per fortnight. He has no criminal convictions.

4. The applicants met the child’s mother Ms Edwards (“the mother”), who is the first respondent in these proceedings, approximately six months prior to her daughter’s birth. They met through the second respondent Ms Boland (“the maternal grandmother”), who is her mother. The applicants met the maternal grandmother at a local Baptist Church and they became friends. For some time the maternal grandmother knew of the applicants disappointment at not conceiving their own child and their desire to adopt.

5. According to Mrs Pilot, the maternal grandmother telephoned her around December 2006, saying that her daughter, who lived in South Africa, was a victim of rape in South Africa as a result of which she was pregnant. The maternal grandmother then approached the applicants to discuss the possibility of them caring for the child, saying that the mother did not want to have an abortion and was unlikely to keep the child.  The mother and her mother are both opposed to abortion.  The maternal grandmother was hopeful that she would be able to ensure the child’s future while maintaining a relationship with her grandchild. It is unclear, but appears unlikely, whether the maternal grandmother approached the applicants with the mother’s consent.

6. The mother came to Australia in January 2007 for a holiday to visit her mother and stepfather. This holiday was booked in early 2006. When she arrived to Australia her mother asked her if she wanted to stay and said she and her step father would support her throughout the pregnancy. The mother decided to stay in Australia.  The mother was born in South Africa in October 1978. She has another child, D, from a previous relationship. D was born in 1997 and lives in South Africa with his father.

7. For some time before the child was born the mother was having difficulties in coping with the imminent birth of a child conceived through rape. She developed depression and commenced seeing a psychologist. During this period she decided to place the child in the applicant’s permanent care. They agreed that the applicant’s would assume the child’s care as soon as she was born.

8. In July 2007 the child was born.

9. Around early August 2007 the child went into the applicant’s primary care.

10. The applicant’s, the mother and the maternal grandmother entered into an informal temporary parenting agreement on 10 August 2007. The agreement provided that the child live with the applicants and spend time with the mother and maternal grandmother at all such times as agreed between the parties, with the agreement to be reviewed at any time before the child attained three months of age. 

11. The applicants filed an Application for Final Orders in the Family Court of Australia on 3 September 2007, seeking that the child live with them and that the mother and maternal grandmother spend time with the child at all such times as agreed between the parties. The applicants sought that they, the mother and maternal grandmother retain as far as is practicable equal shared parental responsibility for the long term care, welfare and development of the child unless otherwise agreed between all the parties. This proposed order is inconsistent with order 4, where the applicants sought:

    4. That in respect of each issue concerning the long term care, welfare and development of the child the Applicants will make the decisions         concerning these issues but can also:

    a)        consult with either or both Respondents in relation to the decision to be made; and

    b)        notify either or both Respondents in assisting and addressing these issues.

12. This inconsistency was explored at the hearing on 6 December 2007 and both Mr and Mrs Pilot were asked whether they would prefer to have shared parental responsibility with the mother and grandmother, or sole parental responsibility. They both indicated that that they would consult with the mother and maternal grandmother but would like to be able to make those decisions themselves. Mr Ferry on behalf of the mother and maternal grandmother conceded that they would be happy for an order to be made for parental responsibility to be placed with the applicants, with the expectation of consultation on major decisions.  This arrangement was acceptable to all parties.

13. The Department of Community Services (“DoCS”) sought leave to intervene in the proceedings, which was granted on 17 September 2007. A Response was filed on 15 October 2007 on its behalf which sought that:

    1.         The Minister for Community Services (“the Minister”) have sole   parental responsibility for the child, including responsibility for her day   to day care and long term care, welfare and development

    2.         That the child live as directed by the Minister or the Director General.

14. On 17 September 2008 interim orders were made for DoCS to have parental responsibility for the child upon the Director General, by his delegate, giving an undertaking that the Director General would not remove the child from the care of the applicants during the adjourned period. This order was subsequently continued to the final hearing.

15. Since the child has been in the applicant’s care the maternal grandmother has regularly spent time her. The mother has decided not to.

16. As soon as this hearing finished the mother returned to South Africa to live.  In the future she plans to occasionally visit her mother in Australia.

The Applicants’ Involvement with the Department of Community Services

1. Ms G, from the Adoption and Permanent Care Services (“APCS”), Department of Community Services affirmed an affidavit on 2 October 2007. In that affidavit she describes the procedure that needs to be followed by a person or couple wishing to adopt a child in New South Wales. When a person or couple in New South Wales wish to adopt a child, whether it be a local or intercountry adoption, they forward an Expression of Interest to APCS. Once the person or couple attend a Preparation for Adoption Seminar, they may lodge a formal adoption application. They may only lodge an application with one program, that is, the intercountry adoption program or the local adoption program. Ms G explains that the preparation, assessment and approval for NSW adoptions and intercountry adoptions are different, and for intercountry adoptions each country has their own criteria which must also be satisfied.

2. DoCS first received an expression of interest for adoption by the applicants on 23 April 1997 which was withdrawn on 23 June 1997.

3. On 29 April 2002 the APCS received a further expression of interest form for intercountry adoption from the applicants. On 1 and 2 August 2002 the applicants attended a Preparation for Adoption seminar conducted by APCS, and on 26 August 2002 APCS received an application to adopt a child from overseas from them. Ms G explained that applicants for intercountry adoption are required to notify APCS of any change in circumstances, such as change of employment, residential address, health (including pregnancy and serious illness) and household composition. Mr and Mrs Pilot signed an Intercountry Adoption Agreement and Undertaking in August 2002.

4. DoCS was concerned about Mrs Pilot’s capacity to comply with the gazetted adoption criteria given that as an adopted person herself, Mrs Pilot did not want information about her birth family. DoCS were concerned that she may be unable to assist any adopted child placed in her care in dealing with information about their birth family. As a result of these and other comparatively minor concerns, on or about 7 July 2003, the applicants met with the Acting Manager Client Services and Acting Manager Casework for Intercountry Adoptions. Following this meeting, in August 2003 the applicants were granted conditional approval to adopt a child from an adoption service in Taiwan.

5. Their application was forwarded to Taiwan on 10 September 2003. Soon thereafter, the adoption service in Taiwan advised APCS that they would not place a child with the applicants.

6. From October 2003 until April 2004 a reassessment was carried out by APCS as the applicants decided they want to apply to adopt a child from the Philippines. Their application was declined as they did not meet all the criteria. It was recommended that Mrs Pilot work with a Clinical Psychologist in order to meet the criteria.

7. In October 2005 the applicants were approved as eligible and suitable to adopt a child from South Korea. Their application appears to have been placed in a queue of other hopeful adoptees.

8. On 30 May 2007, DoCS received information that Ms Edwards had come to Australia on a temporary visa to give birth in Australia and that a couple known to her was interested in adopting the child. The Departmental officer advised the notifier that private adoptions were illegal and explained the adoption process in New South Wales.

9. On 12 July 2007, two notifications were received at the DoCS Helpline regarding the mother’s unborn child. It appears these reports were made by medical personnel involved in the mother’s antenatal care and were aware of her plan to place the child in the applicant’s permanent care.

10. On 7 August 2007 Mr C, of Intercountry Adoption, spoke to Mrs Pilot by telephone about the report alleging that she and her husband had assumed the care of an unrelated child. Mrs Pilot advised that they were looking after a child whose mother was unable to care for her. She said that no formal adoption was made and no adoption agency was involved. She disclosed that they intended to look after child permanently and that their lawyers were preparing the paperwork and looking into all the options. Mr C advised that any adoption needed the involvement of an accredited adoption agency. He also advised Mrs Pilot that her and her husband’s adoption application would be suspended until the situation with the child was resolved. Mrs Pilot was reminded about the agreement and undertaking that she and her husband signed with DoCS that required them to notify it of any changes in their circumstances. The applicant’s were aware of their obligations to notify DoCS and consciously failed to notify the Department of their changed circumstances.  They are adamant that their solicitor wrongly advised them they need not do so.  

11. On 8 August 2007 a further notification was received at DoCS Helpline in relation to the child.

12. On 9 August 2007 two DoCS caseworkers visited the mother at her mother’s home. The mother spoke to them briefly then advised that they should speak to her solicitor.

13. On 28 August 2007 the DoCS received a copy of the parenting agreement between the applicants and the mother and the maternal grandmother.

14. On 4 September 2007 two DoCS officers again visited the mother at home and talked to her about adoption and alternatives to adoption. There was also some discussion about the child’s immigration status.

15. On 6 September 2007 the applicants served DoCS with their Application for Final Orders and Application in a Case together with the affidavits of Mr and Mrs Pilot.

The child’s father

1. It is the mother’s evidence that she fell pregnant with the child as a result of a rape in South Africa in late October 2006. On that day, the mother arranged to meet with a man from overseas who identified himself as R and was a student at University. They had met the night before at a club and arranged to meet the next day at 11.45 am for a drink. R said he needed to go back to his apartment to get money for lunch. The mother went with him to his flat and he raped her. She has not seen him since.

2. The mother immediately reported the rape to the local Police. She gave her statement and was examined by a doctor. A copy of her police file in relation to the rape is annexed to her affidavit sworn 23 October 2007. The mother was informed by police prior to her departure from South Africa that the case was closed.  Despite real attempts to the police were unable to locate R. The mother believes he returned overseas.

1. I accept the mother’s evidence.

2. The mother says that she does not know R’s surname and that she had no contact with him since the rape. On the basis that all reasonable attempts to locate R had been exhausted, I dispensed with the service of process on him.

Operative Orders

1. On 17 September 2007 the matter came before Cohen J and the following interim orders were made by consent:

   1.         The Application in a Case filed 3 September 2007 be adjourned to 15   October 2007.

   2.         That the Director General, Department of Community Services, file and         serve a Response and affidavit in reply by 1 October 2007.

   3.         That the child […] (born […] July 2007) be in the parental         responsibility of the Director General of the Department of Community           Services upon the Director General, by his delegate, giving the following undertaking:

   That the Director General will not remove the child from the care of the              applicants during the adjourned period.

   4.         That the parties have liberty to re-store the matter to the list on 24 hours        notice.

   5. That the service of this Application and the Application for Final Orders on the father of the child be dispensed with, without condition pursuant to Chapter 7, Rule 7.18 of the Family Law Rules.

   6.         That the Director General has leave to intervene in these proceedings.

   NOTATION

   A.The undertaking at Order 3 does not effect the exercise of the Director General’s statutory obligations under the Children and Young Persons (Care and Protection) Act 1998, should the need arise. 

2. On 15 October 2007 insofar as they are relevant I made the following orders by consent and pending further order:

   1.That the Minister for Community Services (“the Minister”) have sole parental responsibility for the child […] born […] July 2007, including responsibility for her day to day care and long term care, welfare and development.

   2.That the child live as directed by the Minister or the Director-General of the New South Wales Department of Community Services (“the Director-General”) or delegate of such a person upon the Director-General, by his delegate, giving the following undertaking:

   (a)     That the Director-General will not remove the child from the care of the Applicants during the period of the adjournment

   3.That the parties have liberty to re-list the matter on 24 hours notice.

   4.Pursuant to Pt 15.45 of the Family Law Rules 2004, that Dr [N] be appointed as a Single Expert witness to determine whether the mother, [Ms Edwards], is capable of giving informed consent in these proceedings, given:

   (a)    The circumstances surrounding the conception of [the child] born […] July 2007.

   (b)    The circumstances surrounding the birth of [the child].

   (c)    The mother’s uncertain immigration status in Australia.

   (d)    The nature of the mother’s relationship with the maternal grandmother and other members of the maternal family.

   (e)    The nature of the mother’s relationship with Mr and Mrs [Pilot].

   (f)     The placement of [the child] with Mr and Mrs [Pilot] almost immediately after [the child]’s birth.

   (g)    That the mother has apparently not exercised her right to see [the child] since [the child]’s birth.

   (h)    Any cultural or religious factors relevant to the issue of the mother’s consent.

   (i)     Any issues relation to the mother’s physical or mental wellbeing as identified by the mother or as assessed by the expert.

   (j)     Any other factors that the expert considers relevant.

   AND the Single Expert shall further report upon:

   (k)    The benefit to [the child] in having a meaningful relationship with her mother, her maternal grandmother, the applicants and/or other significant family members.

   (l)     The nature of the relationship of the child with:

   (i)the mother;

   (ii)the maternal grandmother;  and

   (iii)the applicants.

   (m)   The willingness and ability of each of the applicant’s and the maternal grandmother to facilitate and encourage a close and continuing relationship between the child and the mother and/or maternal grandmother to provide for the needs of the child, including emotional and intellectual needs.

   (n)    The maturity, lifestyle and background (including lifestyle, culture and traditions) of the child and of the applicants, mother and maternal grandmother.

   (o)    The attitude to the child and to the responsibilities of parenthood demonstrated by the applicants and the mother.

3. That pursuant to s 68L of the Family Law Act 1975 an independent children’s lawyer be appointed to represent the interests of the child […] born […] July 2007 and that the Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for such representation.

4. An appointment was made for Dr N to assess the mother on 24 October 2007. The solicitor for the Department of Community Services contacted Dr N who advised that she will be unable to comment on the further issues identified in Order 4(k)-(o) above until February 2008.

5. The parties consented to the appointment of Ms S (Clinical Psychologist) as single expert to determine the additional matters set out in Order (4)(k)-(o).  On 22 November 2007 I made orders in chambers appointing Ms S as single expert to determine the additional matters.

6. Dr N’s report dated 12 November 2007 was released on 20 November 2007.

7. Ms S’ report dated 3 December 2007 was released on 5 December 2007.

8. The final hearing took place on 6 December 2007.  The applicants, the mother and maternal grandmother all gave evidence.   

Expert Evidence

1. Dr N was asked to comment on the mother’s capacity to give informed consent in these proceedings. Dr N opines, at page 7 of her report, that:

   Summary and discussion:

   [Ms Edwards] does not currently have the marked clinical depression with biological features in which judgment becomes impaired. The range of emotions [Ms Edwards] has experienced in the past year has not been in excess of a normal and expected reaction to the very significant life events which have occurred in this period…

   Unfortunately [Ms Edwards] has been deprived of the opportunities provided by a formal pre-adoption counselling and planning process to work through the issues of relinquishing a child: the structure of the process and the experienced clinicians available would have given her the support necessary to make her decision and to grieve the losses which result from the decision to either keep or relinquish the baby. However since seeing Ms [H] [Ms Edwards] has made good use of this skilled help and appears to have arrived at an independent decision with minimal influence from external sources or impairment from her depression. Her ongoing difficulties about seeing [the child], because of the pain of separations, are to be expected and is not helped what is sounds like excessive information about her and inappropriate encouragement to see her from her mother: achieving the necessary emotional detachment will be that much harder in this situation for [Ms Edwards]…

   Opinion:

   Ms [Edwards] is capable of giving informed consent in these proceedings.

   [The child] would benefit from an open adoption with an appropriate couple. While I have strong disapproval of the [Pilot]’s failure to assist Ms [Edwards] by facilitating her use of the resources available to women in her situation, they are Ms [Edwards]’ choice as carers for [the child]. Orders leaving [the child] in their care will assist Ms [Edwards] to feel she has done her best for her daughter when she returns to South Africa.

2. Ms S comments in her report at page 21:

   Conclusions:

   Conducting the current assessment was a positive experience in the sense that it was clear that [the child] is a much-treasured and much-loved baby. All of the adults expressed a strong desire to do what is best for [the child], rather than what each of them wants or desires (though happily these things coincide to a large degree). I am of the opinion that they all firmly believe that what they are doing is what is best for [the child].

   Discussions at interview about the relationships between the birth family and the [Pilot’s] revealed a level of consideration and respect that was evident in the way they spoke about each other. Consideration of each other featured in their approach to all issues related to [the child], although the over-riding theme of their discussion was what was in [the child]’s best interests.

3. At page 24 of her report Ms S continues:

   Summary:

   [The child] has been in the care of the [Pilot’s] since shortly after her birth. Observation revealed a baby who is contented and basking in the love of her carers and of her maternal grandmother, and who has the less direct input of her birth mother as well. All of the adults interviewed stated that the relationships amongst them are very positive and they look forward to an ongoing shared relationship with [the child] in the future, if [the child] is allowed to stay with the [Pilot’s]. Clearly [the child] is thriving on the love and stimulation they all provide.

   In my opinion, it will be in [the child]’s best interests for this positive relationship to continue and for her to have a meaningful relationship with her birth mother, her birth grandmother and their extended family, while remaining in the care of the [Pilot’s], if this is at all possible. This will allow for the very positive interactions to continue and will limit the impact on [the child] of being placed in alternate care.

   [The child] appeared to be starting to form a primary secure attachment to [Mrs and Mr Pilot]. Although the critical period for the development of attachment is usually between 6 months and three years of age, the foundation for this process commences very early, and it is my opinion that in [the child]’s case she is already staring to differentiate between the people who are significant in her life and those who are just passing through. While her attachment is developing appropriately with her primary carers, it is evident when she was observed with [Ms Boland, the maternal grandmother] that [the child] recognises her Oma as a significant and positive person in her life. [The child] oriented to [Ms Boland] much more than she did to the psychologist, a stranger. [Ms Boland]’s bond with [the child] was also seen to be very strong and she is adamant that she would like to remain an important part of [the child]’s life as her grandmother.

   [Ms Edwards] has a more ambivalent relationship with [the child] at this point in time. While [Ms Edwards] is clear that she loves [the child] (and the other adults confirmed their belief that this is so) she does not feel able to take care of [the child] herself. She wants what is best for [the child] and she feels that this is for [the child] to live with the [Pilot’s] while maintaining contact with her birth family. She has tried to do what is best for [the child] over the past year. [Ms Edwards] now feels that she has settled [the child] in a loving home and that it is time for her to move on with her own life back in South Africa, though she intends to keep contact with her own family and with [Mrs Pilot], and ultimately [the child] through them.

   All adults interviewed expressed a commitment to continuing to care for [the child] in various capacities. The [Pilot’s] wish to play the part of her day-to-day carers and psychological parents, and this is supported by [Ms Boland] and [Ms Edwards]. [Ms Boland] wishes to play her rightful role as the birth grandmother, and this is supported by all involved. [Ms Edwards] wishes to remain in the background at this time but to be recognised as [the child]’s birth mother. All participants in the current assessment were supportive of [Ms Edwards]’s position in [the child]’s life. All were hopeful that [Ms Edwards] may feel ready to have a more active involvement in [Ms Edwards]’s life at some time in the future. [Ms Edwards] states that she feels this will happen in the future.

4. The expert evidence was not challenged and I am satisfied it warrants significant weight.

General Law in Parenting Cases

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A).  They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome.  Where there are no countervailing factors, the s 60B principles may be decisive.  Section 60B is set out below.

   1.     The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;  and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential;  and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;  and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   3.     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture;  and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent                    with the child’s age and developmental level and the   child’s views; and

   (ii)to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).  Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance. 

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4).  In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG.  Ultimately the weight attached to each factor is a matter for the Court’s discretion.

Adoption Act 2000 (NSW)

1. The Adoption Act 2000 (NSW) repealed and replaced the Adoption of Children Act 1965 and the Adoption Information Act 1990.  The Act gave effect in general to the principal recommendations of the New South Wales Law Reform Commission in its Report No 81 entitled Review of the Adoption of Children Act 1965 (NSW). The main objects of this Act, as stated in s 7 of the Adoption Act, are:

   a)  to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,

   (b)  to make it clear that adoption is to be regarded as a service for the child concerned,

   (c)  to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,

   (d)  to recognise the changing nature of practices of adoption,

   (e)  to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas,

   (f)  to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements,

   (g)  to encourage openness in adoption,

   (h)  to allow access to certain information relating to adoptions,

   (i)  to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents.

2. Chapter 3 of the Adoption Act makes it clear that individuals must not make their own arrangements for adoption, whether personally or through private institutions. Indeed, section 11 of the Act provides that an adoption service in relation to the adoption in New South Wales of a child may only be provided by the Director-General or an organisation accredited under Part 2 as an adoption service provider.

3. At the trial, both applicants were questioned about their failure to comply with their undertaking to notify DoCS that their family circumstances had changed so significantly.  Mr and Mrs Pilot gave evidence that their solicitor recommended that they not discuss anything with DoCS until their circumstances had changed via a parenting order. If this is correct it was inappropriate advice.  When the welfare of children is concerned lawyers have an obligation, as practitioners, to the child.  Obviously as well as to their clients.  There is no doubt that this child’s, the mother’s and the applicant’s interests were promoted by engaging DoCS adoption services not excluding them.  Although this case has not ultimately involved an illegal child placement there were features of her placement which required DoCS attention and scrutiny.  In my view in a case such as this members of the legal profession are required to place the child’s interests first and do all that is ethically appropriate to ensure the communities concern for the general welfare of children included the child.

1. At the hearing, Counsel for the Director-General of DoCS opened by saying that her client does not condone the way in which the arrangements came to be and invited me to make certain observations. Although the adequacy of the legal advice the applicants received was an issue during the 6 December 2007 hearing, and lawyers from that firm were present no evidence was called in reply on the issue.  On 1 April 2008 the applicant’s solicitors forwarded an Application in a Case but no affidavit seeking to have the matter re-listed to be joined as a party and provide evidence on this issue. In the absence of an affidavit the application does not conform with the rules and was rejected for filing. 

2. While I am satisfied that the arrangement between Mr and Mrs Pilot, Ms Edwards and Ms Boland was not an illegal adoption, the way in which the arrangements came to be were less than satisfactory.  The unsatisfactory nature of the arrangements is a relevant factor in deciding the child’s future living arrangements, however, on the facts of this case do not tip the balance in favour of dismissal of the application.

Conclusion

1. As I discussed earlier in this judgment, the whereabouts and identity of the child’s father are unknown. At the hearing, all parties agreed that there is no evidence to suggest that there may be a father who is actually interested in the child’s welfare. If it later transpires that the situation is different in that there is a father who is interested in this child’s welfare, and could have been located but the information was not forthcoming, then the orders I made are highly contestable.

2. Neither of the child’s parents are available to care for her.  There are no family members offering to care for.  The only people proposing to care for the child are the applicants who are the people to whom she is most strongly attached. 

3. Ms S in her report comments that “[The child] is a very lucky little baby… who is contented and basking in the love of her carers and of her maternal grandmother, and who has the less direct input of her birth mother as well”.  I am satisfied that Mr and Mrs Pilot are physically, emotionally and intellectually equipped to meet the child’s short term and long term needs to a high standard.

4. Ms S opines that it is in the child’s best interests to remain in the applicants care. At the hearing, this did not seem to be in dispute.

5. The applicants would like the child to have a relationship with her birth family, particularly her grandparents, her mother and eventually her half brother.  There is no reason to doubt that they will do their best to ensure this occurs.  While this outcome is not solely within their capacity to the extent it is possible they will co-operate. 

6. At the hearing, DoCS abandoned their application for parental responsibility, in favour of an order that allocated equal shared parental responsibility to the applicant’s solely without the need to seek the consent of others, namely the mother and the maternal grandmother. The Department considered that orders that provide for consultation would be appropriate.

7. DoCS also invited me to make structured orders for the mother and maternal grandmother to spend time with the child. I am of the view that prescriptive orders are unnecessary in this case. There is a great degree of goodwill between the applicants, the mother and maternal grandmother. I am conscious that it is still very early in the child’s life and that while there is no conflict of interest between them; it is possible it may arise in the future. The parties willingly embraced DoCS invitation to work with their adoption specialists and are all motivated to promote the child’s best interest.  If difficulties arise they have the personal skills and community connections which should equip them to work through these. If necessary a further application could be made.

8. While I do not condone the way the parties initial exclusion of DoCS while making arrangements for the child’s future care, it is her best interests to remain living with them. I am conscious that my orders do not guarantee the child’s entitlement to stay in Australia. Mr and Mrs Pilot are dealing with the Department of Immigration and Multicultural and Indigenous Affairs to ensure that she obtains the necessary visa. Mr and Mrs Pilot indicated that if the child is unable to remain they will leave Australia with her. This stance reinforces their commitment to this child.

9. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate

Date: 5 November 2008