Re B

[2010] NSWSC 1155

CITATION:	B, Re [2010] NSWSC 1155
HEARING DATE(S):	6 October 2010
JUDGMENT DATE :	6 October 2010
JURISDICTION:	Equity Division Adoption List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	6 October 2010
DECISION:	Consent of father dispensed with; adoption order made.
CATCHWORDS:	ADOPTION – whether in child’s best interest to dispense with consent of natural father and make adoption order – no question of principle.
LEGISLATION CITED:	Adoption Act 2000 (NSW) – s 67(1)(d), s 90(1), s 180(1)
CATEGORY:	Principal judgment
PARTIES:	Mrs and Mrs C (Applicants) Mr D (Natural Father)
FILE NUMBER(S):	SC A32/2010
COUNSEL:	W.J. Hunt (Applicants) Ms M. Daniels (Natural Father)
SOLICITORS:	Crown Solicitor (Applicants) Hal Ginges & Co Pty Ltd (Natural Father)

A32/2010 Re B

JUDGMENT – Ex tempore
6 October, 2010

Introduction

1 The persons to whom I refer in this judgment will not be identified by name, in accordance with the requirements of s 180(1) of the Adoption Act 2000 (NSW).

2 The Director-General, by her delegate, applies for the adoption of a child (“B”) in favour of a married couple (“Mr and Mrs C”).

3 B's birth mother does not oppose the adoption, although she has not formally consented. Her birth father (“Mr D”) opposes the adoption.

4 The Director-General, therefore, applies for an order under s 67(1)(d) of the Adoption Act, dispensing with the consent of Mr D. If a consent dispense order is made, it will be necessary to determine the substantive application for adoption. The same factual circumstances are directly relevant to both applications.

5 B was born in May 2000, so that she is now a little more than ten years old. In circumstances to which I will come in a moment, B was temporarily taken into the parental responsibility of the Minister in August 2004 and a final order for parental responsibility was made by the Children's Court in July 2005.

6 In January 2006, B was placed in the foster care of Mr and Mrs C and she has remained in their care ever since then.

7 Mr D does not dispute that B has thrived in the care of Mr and Mrs C and that she is now happy and secure in their family. However, he opposes an adoption order because he wishes to preserve the possibility that, at some time in the near future, his circumstances will be such that he can resume full time parental responsibility for the care of B.

8 Accordingly, there are two broad issues to be decided in these applications:

– is there a realistic prospect that Mr D will be able to resume full time responsibility for the care of B in the fairly near future;

– is it in the best interests of B to make a decision about her adoption, one way or another, now or to wait until she is twelve years old when, under the Adoption Act , Mr D's consent is no longer necessary and B will be able to judge for herself whether she wishes to be adopted or wishes to remain in the parental care of Mr and Mrs C without an adoption order, or even that she wishes to return to the full time care of Mr D, if his circumstances then permit.

The facts

9 I will recount, only in brief summary, the circumstances which led to B coming into the care of Mr and Mrs C.

10 B was born with drug dependence. Between May 2000 and August 2004, the Department of Human Services received numerous reports about concerns for B's safety and welfare.

11 In August 2004, Mr D was sent to prison. B's mother was suffering from mental illness and was incapable of looking after her. By some means, B was put in the care of a friend of Mr D who was herself quite unable to take care of B.

12 On 7 August 2004, the Police were called to an incident in the friend's house. They found B, then aged four years, in a state of serious neglect. She and Mr D’s friend were taken to the police station where, shortly afterwards, B was left abandoned.

13 B was immediately placed in temporary foster care and an application was successfully made to the Children's Court for an interim parental responsibility order in favour of the Minister.

14 Between August 2004 and January 2006, B was placed with several different carers for short times. It is clear that these placements, together with her experiences while in the care of her birth parents, left her severely traumatised.

15 When Mr and Mrs C assumed care of B in January 2006, her behaviours were very difficult to manage. It is not necessary now to recount them. It is sufficient to say that they reflected the emotional injuries which she had already experienced in her short life and the insecurities which she had obviously felt about those caring for her.

16 Since she has been with Mr and Mrs C, however, she has thrived and blossomed. There is no question that she now feels secure and happy with Mr and Mrs C and in their extended family. She is doing well at school and her difficult behaviours have evaporated. There is no question that she is deeply loved by Mr and Mrs C and loves them in return.

17 I now turn to Mr D's circumstances. It is clear that he has had a difficult life. He has had a history of drug abuse, but he says that he has now been drug free for some now two and a half years. He has been in prison on a number of occasions, the last time in 2004. He has had a succession of relationships and a number of children have been born of them, but he has not been able to take parental responsibility for them for any substantial period.

18 Mr D has been unemployed for a number of years. He presently receives a carer's allowance for looking after his partner, with whom he has had a child. They live together in a rented home at Mt Druitt. Mr D says that the relationship is now only one of friendship.

19 Mr D made strong endeavours to see B when she was first taken into care. However, his contact with her has been far less frequent over the last five years. I accept that this is not due to a lack of interest or lack of affection on his part. I think that Mr D would have seen his daughter far more often if the circumstances of his life had permitted it.

20 The evidence clearly shows that Mr D dearly loves B and that it is his sincere hope that one day, as her father, he will be able to resume full care of her and to share in her life fully. It is the strength of Mr D's love for his daughter and his hope of a new life with her which have given him the courage and the determination to oppose this adoption application.

21 Mr D’s love and his courage as a father are to be admired and respected. Yet, as the Adoption Act makes clear, it is not Mr D's love and hopes as a father which govern the Court's decision in this case. Rather, the Court must decide what in all of the circumstances is in the best interests of B.

Consideration

22 Having regard to the matters referred to in s 90(1) of the Act, the Court must be satisfied that an adoption order made now is clearly preferable in B's best interests than any other action which could be taken in relation to her care, such as making no orders now and leaving B in the care of Mr and Mrs C until she turns twelve years of age, when she can herself consent to her adoption.

23 Making that decision obviously also requires consideration of the requirements of s 67(1)(d), namely: should Mr D's consent as a father be dispensed with because there is serious concern for B's welfare if an adoption order is not made now?

24 I take into account the following considerations. B has had a long period of stability now within the family of Mr and Mrs C. That must be contrasted with a life, up to the age of four years, of great instability, neglect and insecurity. I must bear in mind also the insecurity which B experienced by reason of her short term care placements between August 2004 and January 2006. It is clear that B has thrived in the care of Mr and Mrs C and it is obviously in her best interests that she should continue to have certainty, love and stability throughout her childhood.

25 I take into account that B has expressed considerable excitement and anticipation at the prospect of being adopted by Mr and Mrs C. These are wishes that require consideration under s 90(1)(b) of the Act. In this case, however, I am concerned about the manner in which B's wishes as to adoption have been ascertained.

26 The evidence shows that, on more than one occasion recently, Mrs C and the caseworker have encouraged B to believe that an adoption order would almost certainly be made and that it would be an occasion for a party, where her friends would be invited, presents would be given and a joyous fuss would be made of her.

27 In fairness to Mrs C and the case worker, I should say that these encouragements were given to B at a time when it was thought that there would be no opposition to B’s adoption from either of her birth parents. While I can understand that Mrs C and the caseworker wished to reassure B and to emphasise that adoption was a matter of joy, nevertheless, in the circumstances of this case, they acted prematurely.

28 As matters now stand, if the Court were not to order B’s adoption, B would doubtless suffer severe disappointment and, perhaps anger, for all the wrong reasons. However, the expectation as to adoption which B has been encouraged to hold and the consequence of denying that expectation should not be allowed to pre-empt the Court's proper consideration of the real issues in the case.

29 I hope that adoption caseworkers in the future will receive careful direction that they should not encourage a child to believe that an adoption order is a fait accompli until it is quite clear that there is no prospect of the application being opposed and that the making of the order is a virtual certainty.

30 In this case, in the circumstances in which B's views about her adoption have been ascertained, I take them into account but cannot place strong reliance on them.

31 I turn to the question whether there is a realistic prospect that, in the fairly near future, Mr D will be able to resume full parental responsibility for B in a manner which is in her best interests. I am unable to be satisfied that there is such a prospect. While I am convinced that Mr D would try his very best to take care of B, I do not think that he would be able to do so, even to his own satisfaction.

32 He would have to look after his daughter virtually on his own. He has no strong and secure relationship with a partner. He does not have close family support in looking after a young child. He is presently looking after someone else with a disability who could not assist with looking after B. Mr D has been struggling with depression. He has very limited financial resources. Quite apart from the trauma which separation from Mr and Mrs C would cause B, and Mr D’s lack of support in managing that trauma, all of the other circumstances combine to make it very unlikely that Mr D could take care of B in a way which is conducive to her best interests.

33 Because there is no real prospect at this time of Mr D being able to resume full parental care of B as he hopes to do, I consider it to be in her best interests for the Court to make a decision now about her future legal status, rather than for the Court to defer a decision, even for the relatively short time, until B turns twelve years of age.

34 Of particular importance in this regard, in my opinion, is the need of a child who has a history of insecurity such as B's to be certain of her future status and position in a family. I have a real apprehension that if consideration of an adoption order were deferred, even for a year or two, Mr D would renew his opposition to B remaining in the care of Mr and Mrs C, either in this Court or in the Children's Court, with no real prospect of success, but to the great anguish and insecurity of B.

35 For those reasons, I make orders in terms of paragraphs 1, 2, 3 and 4 of the Amended Summons.

36 In conclusion, I wish to express my appreciation to both Counsel and to the solicitors for the great assistance which they have given the Court in this difficult case.

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