Re Peter

[2009] NSWSC 697

CITATION:	Peter, Re [2009] NSWSC 697
HEARING DATE(S):	21 July 2009
JUDGMENT DATE :	21 July 2009
JURISDICTION:	Equity Division Adoption List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	21 July 2009
DECISION:	Adjournment refused; adoption order made.
CATCHWORDS:	ADOPTION – ADJOURNMENT – whether adjournment pointless as application for revocation of care order would fail – whether natural mother has reasonable prospect of being able to resume care of child – whether adoption order should be made now or Court should ‘wait and see’.
LEGISLATION CITED:	- Adoption Act 2000 (NSW) – s 90, s 186 - Children and Young Persons (Care and Protection) Act 1998 (NSW) – s 90
CATEGORY:	Principal judgment
CASES CITED:	C v XYZ County Council [2008] Fam 54
PARTIES:	Director-General, Department of Community Services (Plaintiff) Ms C (Natural Mother)
FILE NUMBER(S):	SC 80098/08
COUNSEL:	Ms D. Ward (Plaintiff) Ms C (Natural Mother, in person)
SOLICITORS:	Crown Solicitor’s Office (Plaintiff)

80098/08 Re “Peter”

JUDGMENT – Ex tempore

21 July, 2009

Adjournment application

1 This is an application by the Director-General of the Department of Community Services (“DoCS”) by their delegate, the Chief Executive Officer of Barnardos Australia for adoption of a boy to whom I shall refer as “Peter” in order to preserve anonymity pursuant to s 186 of the Adoption Act 2000 (NSW). For the same reason, I will refer in this judgment to the boy’s natural mother as “Ms C” and to the boy’s carers who are now seeking adoption as “Mr and Mrs D”. I will refer to the Director-General’s delegate as “Barnardos”.

2 The adoption application is opposed by Ms C because she wishes Peter to be returned to her parental care at some time in the future. Ms C has appeared today in person and has presented her case very clearly and very eloquently.

3 Ms C makes an application to adjourn these proceedings to enable her to apply pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to the Children’s Court for the revocation of a care order made in 2005 whereby the care of Peter was taken from her and was vested in the Director General. It is pursuant to that order that, ultimately, the adoption application in the present case has been made.

4 The application for adjournment is opposed. Barnardos says that Ms C's application to the Children’s Court for a rescission of the care order would not succeed and, therefore, the adjournment is to no purpose.

5 The care order was made in 2005. In 2005 Ms C was charged with murder and the trial took place in November 2006. Ms C was acquitted. The care order was made while Ms C was in custody and she says that she was not able to oppose that application properly and she now wishes the opportunity to do so.

6 As Barnardos submits, if this trial is to be adjourned, I have to consider whether Ms C has any reasonable prospect of success in her application under s 90 to resume care of Peter. Sub-section (2) of the section provides that the Children’s Court may grant leave to apply for the rescission or variation of a care order “if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied”.

7 Ms C's circumstances in life at the time that the care order was made are, I think, well revealed in the transcript of the submissions made by her Counsel at her murder trial. Ms C was then living as a trespasser in vacant premises in company with other unemployed people who manifestly had problems with alcohol and drug abuse. She was unemployed and the circumstances in which she lived were characterised by frequent violence and drug and alcohol abuse.

8 Sub-section (2A) of s 90 requires the Children’s Court to take into account a number of matters in considering whether to grant leave, and in considering whether there has been a significant change of circumstances since the care order was made. One of the circumstances which the Court is required to take into account is the age of the child affected, another is the length of time which the child has been in the care of the present carers, another is the plan for the care of the child and, finally, whether the applicant has an arguable case.

9 The Court has great sympathy for Ms C in the circumstances in which she finds herself now. She brings this application without legal assistance. She has obviously had a very troubled life. It is probably the most painful thing a person can endure to be told that society judges you not to be able to take care of your own child. However, the Court has to pay regard to the pre-eminent consideration of the law relating to children, and that is that it is their best interests and their future prospects in life that the Court must advance, even though the course of action which is in a child's best interests causes a great deal of pain to the natural parents. I have to consider whether Ms C's application to the Magistrate to revoke a care order and to regain custody of the subject child in this case has any real prospect of success due to changed circumstances, that is, change from the circumstances in which Ms C was living, as revealed by the evidence at her murder trial.

10 Ms C tells me that that she is no longer taking drugs or alcohol. She presently is homeless, living for the time being in a motel pending endeavours to find her some permanent housing. I think it is fair to say that that Ms C has no security of residence at present, although she hopes to have security in the near future. Ms C does not have any employment; she is living on Centrelink benefits. Although she has been out of gaol now for some two years, she tells me, she has not sought employment. She says that she has had no need to seek employment because she has been in receipt of Centrelink payments. I do not think that that has laid a good groundwork for Ms C's ability to take on the responsibility of caring for a seven year old boy who is now very attached to the family in which he has been living, secure in his schooling and in his accommodation and otherwise settled in his social environment.

11 It is also plain to me that, although Ms C hopes to put her life in order such as to be able to resume the care of not only Peter but two other children, there is no present assurance that this will happen, at least in the immediate future, although of course one hopes that it will happen in the future that Ms C will stabilise her life and perhaps regain the custody and care of the children for whom no adoption application has been made.

12 The circumstances of Ms C's position make it clear to me that there is no prospect, in my view, that the Magistrate in the Children’s Court would grant leave to make an application to discharge the care order which was made in 2005. Because that application in my view would inevitably fail at this stage, there is no useful purpose, and it is contrary to the interests of justice, to delay the hearing of this adoption application to enable such application to be made. For those reasons I decline to adjourn the adoption application and I will proceed today with it.

Final judgment

13 As s 90(1)(a) of the Adoption Act makes plain, the essential question which the Court must decide in this case is whether Peter’s best interests will be promoted by an adoption order. In answering that question the Court must consider, as required by s 90(3), whether any course of action in relation to Peter’s care could be taken other than an adoption order, and whether adoption is clearly preferable in Peter’s best interests to any such other course of action.

14 In this case, as I have earlier noted, the Children’s Court has made a care order in respect of Peter under the Children and Young Persons (Care and Protection) Act 1998 (NSW). The care order gave the parental responsibility for Peter to the Minister until Peter is eighteen years of age. This Court could simply leave that order in place, declining to make an adoption order and leaving Ms C in a position to apply to the Children’s Court under s 90(1) of the Children and Young Persons (Care and Protection) Act for revocation of the care order when she is confident of her ability to resume parental care of Peter. That is the course of action which Ms C urges on the Court.

15 Ms Ward of Counsel, who appears for Barnardos, submits that an adoption order made now is clearly preferable to any other course that might be followed in Peter’s best interests for three reasons.

16 First, Ms C’s history and present circumstances do not give any assurance that she will regain the ability to resume proper parental care of Peter in the short term or medium term future. Second, Peter who is now aged seven years and four months, has lived with Mr and Mrs D for more than four years and is secure in a loving and supportive family. He is suffering anxiety and stress by reason of the possibility that he may be taken from the care of Mr and Mrs D. Third, it could cause further considerable anxiety to Peter with long term detrimental psychological consequences if the present legal uncertainty of his relationship with Mr and Mrs D is prolonged and he and Mr and Mrs D are faced with an application, or perhaps more than one application, from Ms C under s 90 of the Children and Young Persons (Care and Protection Act) for revocation of the care order. I will now deal briefly with the critical facts.

17 Peter was born in March 2002. Within a month of his birth there was a report to DoCS concerning Peter’s welfare. There followed a period of notifications to DoCS raising concerns about failure on the part of Ms C to attend Peter’s medical appointments and repeated incidents of domestic violence between Ms C and Peter’s father and other people. Shortly thereafter, DoCS registered Ms C and Peter as case-managed clients. There were clearly reported issues of drug and alcohol abuse and issues in relation to violence and in relation to Ms C’s mental health.

18 On 17 February 2004, an application was made to the Children’s Court of New South Wales for a care order, and an interim order was made on that day placing Peter in the parental responsibility of Minister. Peter was placed with a carer but, because of his behavioural difficulties, this placement was unsuccessful and it appears he was moved to a number of carers over a period of time.

19 On 11 January 2005, Ms C was charged with murder and was remanded in custody until her trial. While Ms C was still in custody, in March 2005 the Children’s Court made final orders placing Peter in the parental responsibility of the Minister until he turned eighteen.

20 In September 2005, Peter was placed with Mr and Mrs D as adoptive parents. He was then aged three years and six months and he has remained in their care since the time in November 2006 when Ms C was tried and acquitted of murder and she was released from gaol.

21 Since her release from gaol Ms C has been largely homeless and she has been unemployed. Her accommodation has been of a temporary nature and clearly it is very unstable. She tells me that she was for a time living with a person she identifies as “Pops” but that she moved out of that accommodation because of his drunkenness and violence.

22 It is clear that Ms C has, since her release from gaol, not had any stable environment in which to live which would be suitable for the bringing up of a child.

23 The evidence tendered at Ms C’s murder trial as to the circumstances surrounding the murder with which Ms C was charged have been tendered and admitted in evidence as revealing the type of life which Ms C was leading in 2005 at the time of the murder. The evidence is not tendered, I emphasise, in order to suggest any guilt on the part of Ms C but, as I have said, rather to paint a picture from Ms C’s own evidence at the trial of the conditions in which she was then living. Those conditions can be said to be squalid, to be quite frank. The murder took place in a squat or disused factory in which Ms C was living at the time, albeit temporarily, with other homeless people.

24 It is clear that the environment in which Ms C moved at that time was one of violence and drug and alcohol abuse – clearly an environment grossly unsuitable for the care and upbringing of a child.

25 The situation Ms C now finds herself in is different from what it was some years ago, according to Ms C. She says she no longer has any problem with drug or alcohol abuse. She says that she has at least some temporary accommodation. She is presently staying in a motel while she endeavours to obtain public housing from a number of sources and she hopes to be able to procure assisted housing in the near future. However, the fact is that at the present time Ms C has no secure residence and there is no guarantee that she will be able to obtain a secure and safe residence in the near future, although of course one hopes that she can.

26 Since her release from prison after her acquittal Ms C has not been employed. She says that she previously had some employment on occasion but she has not sought work after her release from gaol because, in her own words, she did not need to seek employment because she was receiving Centrelink payments. This attitude to providing herself with financial security and stability does not really suggest that Ms C has been anxious to place herself in a position where she can be financially secure enough to assume responsibility for the care of Peter in due course.

27 There are a number of factors which, according to the evidence, were highly significant in the removal of Peter from Ms C’s custody pursuant to the Children’s Court order, and which Ms Ward submits still remain as factors in Ms C’s life and militate strongly against relying upon any medium or long term hope that Ms C will be able to resume parental care of Peter. They are, in brief, as follows.

28 Ms Ward points to the lack of stable accommodation for Ms C and Peter. I have already dealt with this aspect of the matter. Ms Ward next points to the incidence of violence in Ms C’s life. There is, of course, Ms C’s involvement in the murder in 2005 in circumstances which I have described. Ms C was in the room when the murder victim was brutally killed and this has traumatised her severely. Ms C says that fairly recently there have been other acts of violence to which she has been exposed. She recounts an incident in which a friend pulled a knife and threatened to kill a dog and another recent occasion upon which she was assaulted, resulting in a severely cut lip. It seems that the environment in which Ms C still lives is, unfortunately, one in which violence plays a major a part. As Ms Ward says, this is not an environment in which to bring up a child with any assurance of the child’s safety and security.

29 The next fact to which Ms Ward points is alcohol and drug abuse. Ms C says she does not have any problems in this regard, but evidence shows that certainly last year she was found in an environment by social workers that strongly suggests the prevalence of drug and alcohol abuse by those with whom she associates.

30 The next factor is a history of mental illness or, at the very least, instability. Ms C herself admits to be suffering from some degree of depression and post-traumatic stress disorder. To my observation, Ms C is very clear in her thinking and able to present her case very well. I can, however, accept that the violence to which she has been exposed causes her post-traumatic stress disorder for which she does require continuing medication. She is presently taking medication and undergoing treatment on a sporadic basis. However, it is clear that the instability that Ms C has felt in the past is still a factor in her life, although one hopes that it will be ameliorated with treatment in due course.

31 The next factor is financial insecurity. I have already referred to this. It seems that Ms C has not yet attempted to obtain financial security for herself sufficient to be able to take care of Peter. She says that she does not need financial security until she obtains care of Peter. It seems to me that it would have indicated a firm desire to turn her life around in a way such as to secure the return of Peter’s custody if Ms C had made some endeavour to obtain some form of employment before now.

32 The next factor to which regard must be had is the possible effect of continuation of a care order which is subject to rescission or variation upon application by Ms C to the Children's Court.

33 As I have said, Peter is now only seven years and four months old but according to the evidence of Ms Howell, clinical psychologist – whose evidence I accept as accurate – Peter already has some clear understanding of the vulnerability of his position. This, no doubt, comes from the fact that, prior to being placed with Mr and Mrs D, he was removed from carers on a number of occasions because of his behavioural problems. He has told Ms Howell several times of his anxiety at having to pack his bags, even though the occasion for packing his bags was going on a family holiday with Mr and Mrs D. Clearly, he associates packing his bags with his own removal from a safe and secure place to somewhere and someone unknown. According to Ms Howell, Peter suffers from a considerable degree of anxiety about the possibility that he may be removed at some time from the care of Mr and Mrs D. He has expressed the view that he wishes to be adopted for this very reason, and it appears that he has a sufficient understanding of adoption to realise that adoption means he is no longer at risk of being removed from the care of Mr and Mrs D.

34 I accept the evidence of Ms Howell that Peter has thrived in the care of Mr and Mrs D in the more than four years in which he has lived with them. I accept her evidence that he is now secure in their family and has identified himself as a member of their family – both the immediate family and the extended family. I accept that he has identified himself as the psychological child of Mr and Mrs D. Further, I accept the evidence of Ms Howell that it could be extremely damaging for Peter to continue to be exposed to the risk of applications to the Children's Court for termination of the care order if that order were left in place and the adoption did not proceed.

35 It is often referred to in the literature that children placed with foster carers, particularly if they have been placed more than once, have an abiding need for a sense of security and identity and that they feel most secure when they are assured that no one can take them away from the family of which they are legal members. It is recognised that the sooner a child can feel this sense of security, the better for his or development in the future: see e.g. per Arden LJ in C v XYZ County Council [2008] Fam 54, at 58G.

36 It is also well known – and not only that, can be said to be common sense – that if carers who have developed a strong bond of family relationship with the child feel that they are under threat of an application to the Children's Court at any time for vacation of a care order and the consequent removal of the child from them, they are subjected to a level of stress and anxiety which must affect their parental relationship with the child who is in their care.

37 There are, of course, very many different circumstances in which it would be more productive of the child's best interests to adopt a ‘wait and see’ attitude as to whether or not the continuation of a care relationship with carers is in the best interests of the child, with the hope that the natural parent or parents can resume care, or whether the best interests of the child demand an immediate adoption order. One cannot generalise. One has to consider each case on its particular circumstances.

38 In the present case, for the reasons I have given, there can be no assurance that Ms C will, in the short or medium term future, be in a position responsibly and properly to resume the care of Peter. I accept that Peter has been thriving in the care of Mr and Mrs D and that he feels a secure member of their family, but anxious that that relationship be made legally impregnable. It is for those reasons that I have come to the conclusion that it is in Peter’s best interests that an adoption order should be made now, in preference to any other course of action.

39 I formally make orders in terms of paragraphs 1, 2, 3 and 4 of the Short Minutes of Order signed by me, dated today and placed with the papers.

– oOo –