The Secretary, Department of Family and Community Services v Andrew and Kathie (Pseudonyms)

[2017] NSWSC 1183

Supreme Court

New South Wales

Medium Neutral Citation:

The Secretary, Department of Family and Community Services v Andrew and Kathie (Pseudonyms) [2017] NSWSC 1183

Hearing dates:

31 August, 1 September 2017

Decision date:

01 September 2017

Jurisdiction:

Equity - Adoptions List

Before:

Kunc J

Decision:

Adoption order made

Catchwords:

FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Whether return to birth mother or adoption in best interests of children — No issue of principle

Legislation Cited:

Adoption Act 2000 (NSW)

Category:

Principal judgment

Parties:

The Secretary, New South Wales Department of Family and Community Services (Plaintiff)

 

“Andrew” (First Defendant)

  “Kathie” (Second Defendant)

Representation:

Counsel:
M Neville (Plaintiff)

 

Solicitors:
Lea Armstrong, Crown Solicitor for NSW (Plaintiff)

  “Kathie” (Second Defendant)

File Number(s):

A173/2016

Publication restriction:

No

EX TEMPORE Judgment (REVISED)

Summary

1. This judgment determines an application for the adoption of three children by their foster parents. Ancillary orders including a declaration of paternity, the dispensing with various consents, and orders as to each child's name are also sought. In these reasons, all of the names are pseudonyms.

2. Amelia (currently 11 years old), Brendan (currently 9 years old) and Hayley (currently 7 years old) (together "the children") are all the children of Kathie. Kathie is currently engaged to Stephen. Kathie has one other child, Daniel (currently three and a half years old) who is the children's maternal half sibling. He lives interstate in an out of home care placement pursuant to orders of the Children's Court of that state.

3. Amelia's birth father is Andrew. He is the first defendant in the application, although he has not taken an active role in the proceedings. He consents to a declaration that he is Amelia's father.

4. Brendan's birth father is Patrick. He has not participated in the proceedings.

5. The identity of Hayley's birth father is unknown. Each of the children is the subject of New South Wales Children's Court orders placing them under parental responsibility of the Minister for Family and Community Services (the "Minister"). The plaintiff in these proceedings is the Secretary of that department (the “Secretary”).

6. The proposed adoptive parents are James and Donna. James and Donna have one other child, Jack (currently 12 years old), who is also an adopted child, and whose adoption was finalised four years ago.

7. Ms M Neville of Counsel appeared for the Secretary. Kathie represented herself. But for Kathie's application that the children should be returned to her, the Court would have had no hesitation in making the orders sought for the adoption of the children by James and Donna, having regard to the matters set out in ss 8 and 90 of the Adoption Act 2000 (NSW) (the "Act").

8. The essential issue for determination arises from the "paramount consideration" in relation to the making of a decision about the adoption of the children, being "the best interests of the child, both in childhood and in later life" (see s 8(1)(a) of the Act). In this case that means whether the best interests of the children will be served by making the adoption order sought, returning the children to Kathie's care, or maintaining the status quo. These alternatives are the practical result of s 8(2)(k) of the Act which provides:

“(2)    In determining the best interests of the child, the decision maker is to have regard to the following:

…

(k)   the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.”

9. It is clear that Kathie loves the children very much. The evidence of their contact visits supports the conclusion that the children reciprocate that feeling: they really look forward to their contact visits with Kathie and Kathie's mother.

10. Faced with all the challenges of a litigant in person, Kathie presented her case appropriately, courteously and with great dignity. As I reminded her during the course of the hearing, neither she nor Stephen was in any sense on trial in these proceedings, nor was this an occasion to revisit the merits of past allegations in relation to Kathie's capacity to care for the children.

11. The only real issue is what outcome is in the best interests of the children. While acknowledging Kathie's obvious love for her children, and her entirely understandable maternal desire to have them returned to her care, I have concluded that all the relevant considerations point to only one conclusion: the best interests of the children will be promoted by their being adopted by James and Donna, and the various ancillary orders sought in the summons should be made. This is because the Court is satisfied that — for the purposes of s 90(3) of the Act — the making of the adoption order is clearly preferable in the best interests of the children than any other action that could be taken by law in relation to the care of the children.

12. While Kathie and Stephen's financial and domestic circumstances have been an important factor, the main reason for the Court's decision is that having carefully considered Kathie's evidence, and with the considerable advantage of having seen her both conduct her case and give her evidence, it is clear that she (and to the extent relevant, Stephen) lacks the insight and capacity to care adequately for the children. On the other hand, quite apart from their materially secure circumstances, I have been left in no doubt that there is a reciprocally close and loving bond between the children and James and Donna, and that James and Donna have demonstrated a high level of skill and commitment as parents.

13. Similar considerations inform the Court's conclusion that the best interests of the children are served not by maintaining the status quo of the children being raised by James and Donna as children in the care of the Minister, but that the family relationship which now exists between James and Donna and the children should be given legal reality by the making of the adoption orders sought in the summons.

Dramatis personae — Amelia

14. Amelia is currently 11 years old. She was five years old when she was placed in James and Donna's care. Donna describes Amelia as a "kind and helpful child, loves praise, loves to do things that help people and make other people happy". She enjoys gymnastics, acrobatic dance, swimming, tennis, riding her bicycle and playing on the trampoline.

15. In 2007, the New South Wales Children's Court made final orders placing Amelia in the parental responsibility of the Minister until she attains the age of 18 years. She was placed with James and Donna when she was 5 years old, and has lived with them for almost six years. This represents more than half her life.

16. Amelia was assumed into care shortly after she was born due to concern about Kathie's and Andrew's capacity to care for her. She was briefly placed with family friends and then returned to the care of Kathie, who had attended a five day Tresillian course. The family then went to live with Amelia's maternal grandparents. The Secretary subsequently received a report that Amelia was at risk of harm. She was removed from Kathie's care and placed with her paternal grandparents. She remained in placement with them for five years, until moving to James and Donna's care.

17. Although now well settled with James and Donna, Amelia's behaviour when she first came to them was very challenging. It included hitting, biting, and angry outbursts. She is now a Year 5 student. Her most recent school report indicates that she is a hardworking and helpful student who focuses her attention on her work. She is polite to teachers and has strong friendships with a small group of her peers.

18. Although generally healthy, she has experienced a number of educational and cognitive challenges that have required intervention. A cognitive assessment undertaken in 2013 indicated that her skills were on the borderline of intellectual disability. The evidence indicates that she has struggled to meet academic milestones and that she is behind her peers in learning.

19. Amelia has received and benefited from tutoring. She was assessed as making steady progress at school in 2017 and now no longer receives tutoring. She has had individualised education programs throughout school, and the teacher comment at the end of her most recent school report indicates that she is completing a program designed to help her with her reading.

20. In 2011, Amelia was also assessed as having a mild to moderate language delay. She has attended speech therapy throughout her placement with James and Donna. She has engaged well with speech therapy and currently attends one session per month at school. It is not yet known how long Amelia will require this assistance.

21. There is evidence that Amelia has had difficulty regulating her behaviours and emotions. She has been assessed as having ADHD and, having first been prescribed with Ritalin in 2014, has responded well to that treatment. The medical evidence suggests that she has been making steady progress. In February 2017, a psychologist prepared a behaviour support plan in relation to Amelia to assist with managing her behaviours of concern.

22. Amelia's birth certificate does not identify her father. In 2015, Andrew participated in DNA testing which determined that the relative chance of his being Amelia's father was in excess of 99%. Andrew signed a consent declaration of parentage in 2016.

Dramatis personae — Brendan

23. Brendan was placed with James and Donna when he was seven months old. He is currently nine years old. For all intents and purposes, Brendan has known only James and Donna as his day-to-day parents. James described him as "a beautiful little boy who is just incredibly affectionate and energetic. He gets excited about lots of things, anything to do with sport". He likes to read, swim, and to ride his bike, skateboard and scooter. He plays soccer, cricket, tennis and AFL.

24. In December 2008, the New South Wales Children's Court made final orders placing him in the parental responsibility of the Minister until he attains 18 years. Brendan was assumed into care at hospital just after he was born due to concerns about Kathie and Patrick's capacity to care for him. He had one short term placement before going to live with James and Donna.

25. Brendan had some early childhood health problems which now appear to have resolved. However, while he appears relatively physically healthy, in 2014 it was observed that he was demonstrating typical features of ADHD of the combined type, which was manageable and not requiring direct intervention.

26. Nevertheless, Brendan has had a number of behavioural struggles. He has been prescribed Vyvanse, which is a stimulant medication first prescribed to him in 2015 to address reported difficulties in concentration, performing below grade level in key learning areas and exhibiting demanding behaviours at home. In consultation with a treating doctor, Brendan with trialled without that medication in or around April to May 2017. However, both Donna and Brendan's school observed that Brendan did not respond well to having been taken off the medication, and he recommenced taking Vyvanse in May 2017. Brendan has also required speech therapy throughout his time with James and Donna.

Dramatis personae — Hayley

27. Hayley is now in Year 1 at school. She was placed with James and Donna when she was three months old. Despite attempts to arrange paternal DNA testing and testing on sibling DNA, it has not been possible to ascertain the identity of Hayley's birth father.

28. Now seven years old, Hayley is described by James and Donna as having "an unbelievable imagination" and as being "very content in her own company ... but ... socially well adjusted ... she's got friends and ... gets invited to parties". She likes painting, swimming, gymnastics, jumping on the trampoline and riding her bike.

29. In 2010, the New South Wales Children's Court made final orders placing her in the parental responsibility of the Minister until she attains 18 years. Prior to being placed with James and Donna, Hayley had two short term placements.

30. Hayley was assumed into care at birth after the department assessed that the previous parenting concerns that had been raised in relation to Kathie and Patrick had not been adequately addressed by them.

31. Hayley has been assessed as having a very significant language delay. She requires support at school for speech and language, and is delayed in her receptive language skills. She has attended speech therapy for assistance in that regard.

32. James and Donna have identified that Hayley has a very rudimentary understanding about life, and believe that she will be diagnosed with a mild intellectual disability in the future. Her treating doctor has assessed that she stands out as a child with special needs, and has diagnosed her with having ADHD of the combined type.

33. In May 2017, her doctor formed the view that Hayley demonstrated many typical features of ADHD and it was appropriate to trial her on Ritalin. Although still quite young, having regard to Amelia and Brendan's developmental needs and the medical evidence about her condition to date, the Court accepts that there is a real prospect that she may present with further developmental issues as she gets older.

Dramatis personae — James and Donna

34. James and Donna are both in their early 40s. They married in 1997.

35. Donna completed secondary education and subsequently a Bachelor of Applied Science (Physiotherapy) from the University of Sydney. Donna has currently chosen not to continue her career as a physiotherapist, but has taken employment in various casual administrative roles that are flexible and allow for her to be available to the children and Jack outside of school hours.

36. James completed secondary education and subsequently completed a Bachelor of Science from Wollongong University and a Diploma of Education. He was, for a period of time, a teacher. However, he has also changed occupations, again with the intention of being able to work flexibly in the interests of the children and Jack.

37. James and Donna's combined weekly income is in excess of $2,000. They are currently paying off the home in which they reside, the value of which they estimate to be in excess of one million dollars. That home is a four bedroom house with a study, two bathrooms and two living areas. It also has a large outdoor lawn space with a pool and deck. Brendan has his own room, and both Amelia and Hayley share a room. The home is approximately a two kilometre drive to the children's schools and approximately three to five kilometres from the church which they attend, sport, gym and medical facilities.

38. James and Donna have in excess of $200,000 in savings. James has a significant amount of superannuation, and Donna's assets include an industrial investment property, a residential investment property, a motor vehicle and superannuation.

Dramatis personae — Kathie

39. Kathie is the children's birth mother. She is currently 34 years of age and engaged to Stephen. Kathie has one other child, Daniel. Daniel is currently three and a half years old, and is in an out of home care placement pursuant to orders of the Children's Court in the state where Kathie now lives.

40. Kathie has been on the disability support pension since completing high school. According to her evidence during the preliminary hearing, she has only held paid employment for about two years or less since leaving school. That employment consisted of various impermanent manual jobs such as cleaning.

41. Kathie has no assets of which to speak. It appears that she spends most of her disability pension to meet all her expenses. She told me, to the best of her recollection, that her only bank account has about $13 in it at the moment before she receives her next pension instalment.

42. Kathie currently lives interstate with her fiancé, Stephen, and her uncle, Henry, in rented accommodation in a rural area. Kathie has never herself owned or leased a property. Kathie pays $200 a fortnight board to Henry. Kathie was unable to identify to me the basis on which she was entitled to a disability pension. However, she did say that some years ago she had been diagnosed as being bipolar. She rejected that diagnosis vehemently, and alleged that she had been given a clean bill of health by the mental health authorities in the state in which she now lives (see further paragraph [62](12) below).

Dramatis personae — Stephen

43. Stephen is 28 years of age. He and Kathie have known each other for many years, and have been in a relationship for the last three.

44. With no disrespect intended, it was obvious from observing Stephen in the witness box that he has real cognitive difficulties. He was unable to tell me how it was that he was entitled to the disability support pension, which has been his sole source of income for his entire adult life. However, he was able to tell me that one consequence of his disability is that, notwithstanding having attended school to Year 10, he is unable to read or write. He informed me that he had dictated to Kathie, and she had typed, the statement which had been provided to the Court as his evidence.

45. Like Kathie, Stephen's disability support pension is $800 per fortnight. He pays $200 per fortnight in board to Henry. Stephen said that he did manage to save some money from his pension. However, that was contradicted by his later evidence that, at the moment, his pension is being reduced to repay advances which he obtained from Centrelink. He was unable to give me any explanation as to how he had got himself into the situation where he had needed advances on his pension from Centrelink. He did not know how much was presently being deducted to repay the advances, or for how long that would continue.

Dramatis personae — Henry

46. Henry is 67 years old. He is the lessee of the rural premises in which he, Kathie and Stephen currently live. It is to those premises Kathie said she intended to take the children immediately upon them being restored to her care if that was the result which the Court reached.

47. The evidence in relation to Henry, some of it only emerging during the course of his cross-examination by Ms Neville, may be summarised as:

1. It was said that Henry conducts a counselling service for sexual abuse victims from his home office in the premises he shares with Kathie and Stephen. He said he currently has two clients, both female, being aged 17 and 19 or 20 respectively. Kathie said that if the children were restored to her care and were living at those premises, she would take them out to the park at those times when Henry was seeing his clients. When I asked Henry what his counselling qualifications were, he informed me that he had a TAFE certificate in counselling.

2. In 2013, Henry was imprisoned for nine months in connection with an unspecified offence (Henry could not recall the details) involving sexual intercourse. Henry said that the girl involved had lied to him about her age, to the effect that she was 19 when in fact she was only 16 years old.

3. Henry will be leaving Australia at the end of the year to take up the position of a caretaker in a resort in an Asian country. He regarded this as a permanent relocation.

48. Henry told the Court that he had made inquiries about transferring the lease of their current premises to Kathie. He said that the possibility of such a transfer was being considered by the property's managing agent, but the chances of the transfer being approved were only "50/50" because Kathie had no history as a tenant.

Dramatis personae — Andrew

49. Andrew is Amelia's birth father. He is the first defendant in these proceedings, although he has not taken an active role in the litigation.

Dramatis personae — Patrick

50. Patrick is Brendan's birth father. He has not participated in the proceedings.

Course of the proceedings

51. With the exception of Andrew and Patrick, all of the adults referred to in the preceding dramatis personae gave evidence before me. Kathie required two departmental officers for cross-examination, although their evidence did not take matters any further. James and Donna were cross-examined by Kathie.

52. In Kathie's case, evidence was given by Kathie, Stephen and Henry. Each of them was cross-examined by Ms Neville, with Henry's cross-examination taking place by telephone.

Consideration

53. But for Kathie's application for the return of the children to her, the Court has no doubt, taking into account the considerations in ss 8 and 90 of the Act, that it is in the children's best interest to be adopted by James and Donna.

54. That result is to be preferred to maintaining the status quo, because the evidence makes it clear that the children, who are obviously well settled at home with Donna, James and Jack and at their school, regard themselves to be members of James and Donna's family. Their wellbeing and feeling of security will, on the evidence, be enhanced and assured by giving legal effect to what is now their day-to-day reality (including amending their names).

55. This means that the fundamental issue for determination by the Court is whether it is in the best interests of the children to be returned to Kathie as opposed to being adopted by James and Donna. Ms Neville submitted, and I accept, that in this case (and contrary to many that come before the Court) the children have the good fortune to be loved by both their birth mother and their foster parents and various other adults in their lives. Ms Neville submitted that the outcome in this case was dictated by the certainty which attended the children's current circumstances with James and Donna when contrasted with the significant areas of uncertainty that attended what might happen to the children if they were to be returned to Kathie. I accept that characterisation. For the reasons which follow, the Court is satisfied that the making of an adoption order is clearly preferable in the bests interests of the children, rather than any other action that could be taken by law in relation to the care of the children (see s 90(3) of the Act.), including maintaining the status quo.

56. Material circumstances are important but not necessarily decisive. However, the evidence makes it clear that insofar as their material circumstances are concerned, the children's best interests will be served by remaining with James and Donna.

57. Kathie and Stephen have no real assets to speak of, no savings, and manage to just get by on their disability pensions. Neither of them has ever leased accommodation in their own name. There is real doubt as to whether or not they will be able to continue to live in the rented accommodation in which they currently reside when Henry leaves at the end of the year to take up his employment overseas.

58. I have not overlooked Kathie's submission that she and Stephen will be able to budget to meet the expenses which will necessarily have to be incurred should the children be returned to her care. However, she has not produced any evidence as to what such a budget might look like and, for reasons which I will develop below, I am not satisfied that she has a realistic understanding of what those expenses might be. I should add that there was no evidence as to whether, and if so, as to what amount, Kathie might be entitled to some additional pension support were the children to be returned to her care. In short, and with no disrespect intended to Kathie and Stephen, the Court has been left with a serious doubt as to whether Kathie (with or without Stephen) will be able adequately to accommodate and otherwise meet the children's material needs.

59. On the other hand, I have no doubt (by reference to the matters set out in paragraphs [37] and [38] above) that James and Donna can meet the children's material requirements.

60. As I have said, material circumstances are important but not necessarily decisive. Ultimately it is a question of assessing the circumstances in which the children will be raised, and above all else, the parenting abilities of the proposed adoptive parents and the birth parent. Turning to their respective parenting abilities, the evidence demonstrates that James and Donna are competent and caring parents. They have appropriate skills to deal with the various challenges that each child's special needs present. Each of them has, to their credit, organised his or her employment to maximise their ability to give focused, individualised attention to each child as required.

61. In relation to Kathie, while the Court readily accepts that she loves the children deeply and is determined to have them returned to care, there is a large body of evidence which compels the Court to find that there is serious doubt or uncertainty about her parenting capacity, and her level of insight into her own limitations and the obligations which come with appropriately providing and caring for three active children, each of whom has some degree of special need.

62. The evidence upon which I have relied to reach the conclusion expressed in the previous paragraph includes (in no particular order):

1. Each of the children and Daniel has been placed into care on the basis of findings made by a Children's Court to support those orders being made. The precise nature of the allegations in relation to each child was not explored before me. However, it was of considerable concern to me that Kathie was unable to admit even the possibility that there may have been some merit in the allegations that had been made about her parenting ability which brought the children to the attention of the care authorities. In relation to each of the children, and most recently Daniel, Kathie dogmatically asserted that, as far as she was concerned, the allegations that had been made which resulted in the children and Daniel being removed from her care were all false.

2. While Kathie acknowledged the need for the children to have access to schooling, speech therapy and counselling, she had made no plans for this. All she had done was to identify and assert that services of this kind were available in some degree of proximity to where she, Stephen and Henry currently lived.

3. Kathie exhibited no sense of acknowledging the possibility that the children might exhibit difficult behaviours or be upset by the process of relocating from James and Donna to Kathie's care. Her primary reaction was that she thought they would be excited by the prospect. I accept Ms Neville's submission that Kathie's response may have been more a reflection of how Kathie viewed the prospect of the children being returned to her. There was no evidence of either Kathie or Stephen having any parenting skills that would assist them to deal with any difficult behaviours that might arise as a result of the transfer. Both of them had not thought beyond the possibility of "time out" strategies.

4. She displayed what I consider to be an unrealistically optimistic or quixotic belief that the house in which she presently lives (being a run down, wooden, rented rural property comprising three bedrooms and one bathroom) might really be suitable for herself, Stephen, Henry and the children to live in together.

5. In response to various questions put to her about practical arrangements such as bedding, clothing and disciplining the children she frequently resorted to phrases such as "I am still working on it", or "it's a work in progress".

6. I noted her apparent lack of concern or understanding as to the difficulties she might have looking after the children appropriately in her current financial circumstances (with or without Stephen). She gave no sense of an ability to budget realistically at all and, for example, had not attempted to present a draft budget as part of her evidence.

7. She lacked understanding of, and was apparently disinterested in, how much Henry was currently paying in rent for the property in which they were living. She just did not seem to have thought through how she might be able to afford the rent in addition to the additional expenses that responsibility for the children would bring, once Henry had left for overseas.

8. She gave the impression of apparent lack of concern when she learned about Henry's going to gaol. As Kathie would have it, she was unconcerned to ask what the nature of Henry's offence was. She did not seem to understand that it would have been appropriate for her to make inquiries of Henry as to the nature of the offence in order to satisfy herself that it was not something that might be of concern in terms of the children living in the same house as Henry.

9. I have no doubt that she knew about Henry's time in gaol at the time when she was preparing her evidence, such as it was, for this hearing. I also conclude that there is a real possibility that at the time she prepared her final evidence she was aware of Henry's plans to leave the country at the end of the year. She told me when I asked her, in regard to the latter, that this was something that she intended to draw to the attention of the Court. I regret to say that I am not so sure.

10. Having regard to the totality of her evidence, and having observed Kathie during the hearing, I am not in a position to conclude whether or not she deliberately intended to conceal from the Court Henry's incarceration or his impending travel plans. However, what is of greater concern for present purposes, is that I was left with the clear impression that she did not really understand that either of those matters was important in relation to the children, let alone potentially relevant for the Court. Her own evidence that she did not think to ask Henry about the nature of his offence, regrettably, reflects seriously against her parenting ability.

11. When asked by Ms Neville how she (Kathie) thought the children might react, and as to whether they would miss James and Donna, if they were to be returned to Kathie's care, she answered, "How would I know?". Her evidence got to the point of acknowledging that there would be a possibility that the children would miss James and Donna and, perhaps, Jack, and that she was open to the children having telephone contact with James and Donna should they wish to do so. This part of her evidence gave me no confidence that she had a realistic understanding of how the children might respond to being taken from their current carers and environment and returned to her to live in a quite different environment with two people (Henry and Stephen) whom they had never met.

12. The evidence as to whether or not Kathie suffers from any mental disability was completely unsatisfactory. Kathie did not advance any evidence of a current diagnosis one way or the other by a mental health practitioner. There is no doubt that there has been an earlier diagnosis of Kathie suffering from a bipolar disorder. What is of some concern is that Kathie explained that, in relation to Daniel being taken from her, she had attended upon the health authorities in the state where she and Daniel now live for an assessment of her mental condition. Kathie's evidence was that the examination had resulted in her being given a clean bill of health. However, she went on to say that she had not been given any paperwork to record the diagnosis to which she referred. I have some difficulty in accepting the likelihood that, in the circumstances Kathie described, if it were in fact the case that a mental health professional had reached the conclusion that Kathie did not suffer from any mental disability, there would be no written diagnosis generated to record that result.

63. In addition to the Court’s conclusions about Kathie herself, there are the following, additional reasons which militate against it being in the children’s best interests to be returned her care.

64. Despite her generalised assertions to the contrary, I am not satisfied that Kathie has any real support where she is currently living that might be of assistance to her should the children be returned to her care. Whatever may be said about Henry and his suitability, the real issue arising from Henry's evidence is that he is going away, permanently, at the end of the year. Henry was someone who Kathie advanced as being a key support person should the children be returned to her care.

65. With no disrespect intended, the Court is also not satisfied that Stephen is in a position to provide sufficient or appropriate support in caring for the children. Stephen has had no children of his own. He accepted that his only experience of caring for children was in the context of babysitting other family members. There is no evidence as to the nature of the mental issues with which Stephen has to contend and the impact that those issues may have upon his ability to care for the children.

66. Further, what evidence the Court has received demonstrates Stephen’s lack of insight about the children. He said that he thought that the children would be happy to come and live with him and Kathie. In response to a question from me, Stephen asserted he thought that the transfer from their current secure and familiar environment to living with Kathie, him and Henry would be "pretty smooth sailing". As a matter of common sense, that assessment can only be described as being seriously unrealistic and overly optimistic.

67. In reaching the conclusions which I have expressed in the preceding paragraphs, I have not overlooked Kathie's submissions, both written and oral. She sincerely pleaded that the children should be returned to their biological family. She told me that she and Stephen were committed to caring for the children, and that she needed to be given the chance of which she had been deprived by the authorities of being a mother to her children and being given the opportunity to look after them. She told me that she would guarantee the wellbeing of the children.

68. I have no doubt that all of those sentiments were sincerely meant and that she truly believes herself to be able to fulfil them. Unfortunately, the evidence, objectively viewed, does not support that conclusion.

69. In addition, Kathie sought to draw to my attention that she had made all the inquiries to establish that suitable services were available in the interests of the children near the location where Kathie was now living with Henry and Stephen. She told me that there was both primary and secondary education with special needs classes nearby, that there was mental health support, and that there were organisations which offered parenting programs if it was necessary for her and Stephen to undertake them.

70. The difficulty with that submission is, as Ms Neville pointed out, that it is one thing to have made inquiries as to the existence of those services, and another to have actually taken steps to undertake appropriate programs, or to make firm arrangements to ensure that they would be in place and available to the children if the children were restored to her care.

71. Kathie told me that she would put a safety plan in place to care for the children. She assured me that Henry was not a risk to the children. She submitted that it was essential that each of the children should have regular contact with Daniel, their respective fathers, James and Donna and Jack.

72. Again, the issue with those assurances was that the Court is not satisfied that those are things which it can conclude would be adequately done by Kathie as opposed to, for example, being undertaken in the course of a supervised contact program in accordance with an adoption plan.

73. Kathie submitted that she (and Stephen) were capable of feeding, housing and clothing the children. Again, the evidence does not permit the Court to be satisfied to the requisite degree of certainty that any of those things will be the case. That conclusion must be contrasted with the clear evidence that James and Donna are able to do all those things for the children as they have been doing over the years that the children have been in their care.

74. Finally, Kathie submitted that she had "heaps of support people" close to where she was currently living. She drew attention to the fact that she had two support people with her in court. She said that some of them only lived five or ten minutes away. Two things need to be said about this submission.

75. First, the principal support people that she clearly had in mind were Stephen and Henry. For the different reasons which I have already indicated, neither of them is someone who the Court can be satisfied is able to be an effective support person should they be required. Second, there is no evidence about who the other support people are that Kathie had in mind in drawing to my attention that there were "heaps" of such people available to her. Who they are, what sort of people they are, where they are and their willingness to assist are all complete mysteries in terms of the evidence before the Court.

The adoption plan

76. The Court has before it three adoption plans.

77. The first relates to the proposed contact arrangements in relation to Brendan and his birth father, Patrick, and a paternal sibling. On its face, that plan is appropriate and given that Patrick did not actively participate in the proceedings, it is not necessary for me to say anymore about it, beyond indicating that the Court accepts that, for present purposes, it is a suitable adoption plan.

78. The second relates to Amelia and contact with Andrew. Again, on its face, that plan is appropriate and given that Andrew did not participate in the proceedings, it is not necessary for me to say anymore about it, beyond indicating that the Court accepts that, for present purposes, it is a suitable adoption plan.

79. The other adoption plan relates to Kathie and her mother's contact with the children and Daniel. There were two aspects of that proposed plan which were the subject of argument before me.

80. First, the plan provides for four supervised visits each year for a period of up to two hours between the children and Kathie. Kathie submitted that, if the Court was minded to make the adoption orders, she wanted to have unsupervised contact visits with the children. I am not satisfied, at this stage, that the visits can be unsupervised.

81. There are two, connected reasons for this conclusion. First, I refer to my conclusions about Kathie's lack of insight into her own situation and the responsibilities of parenthood set out in paragraph [62] above. Second, there is a history of what I am satisfied were inappropriate and angry reactions during the course of some of the contact visits (which Kathie was unable to acknowledge as inappropriate or angry when asked about them in the witness box). This leaves me in real doubt that it is in the best interests of the children for their contact visits with Kathie to be unsupervised. However, I emphasise (as was acknowledged by Ms Neville) that this is not a once and for all outcome. The very nature of the adoption plan is that it is flexible. As the children grow older and, it is to be hoped, as Kathie's acceptance of the situation improves, adjustments to the adoption plan can be reconsidered, including the possibility of unsupervised visits by Kathie.

82. The second issue, raised in final submissions, was the question of Stephen being a participant in the contact visits. At the moment the adoption plan does not provide for that. However, I again accept Ms Neville's submission that this is a matter best left to future versions of the plan. It was in fact the case that until the hearing before me, James and Donna had never met Stephen. As Ms Neville put it, the first building blocks in a relationship between them were established by their encounter during the course of the hearing.

83. I am satisfied that James and Donna have a clear understanding of the desirability of the children maintaining appropriate contact with their birth families (see s 7(c) of the Act). I accept Ms Neville's submission that James and Donna have exhibited a mature and careful understanding in relation to the importance of the contact visits. This was demonstrated in the evidence by the sensitive way in which James has handled the fact that Kathie has been very uncomfortable and, perhaps, oversensitive to James' presence at contact visits.

76. James has done his best to “take a back seat” at contact visits to ensure that he did nothing to upset Kathie. That was done not so much with a view to Kathie's feelings, but to ensure that the children did not see any friction between James and Donna on the one hand and Kathie on the other. James' approach to the matter was to do everything he could to ensure that the contact visits were happy and positive occasions for the children.

77. Bearing those considerations in mind, I accept the submission that the extent to which Stephen should participate in contact visits is a matter for the development of the plan in the future. Kathie and Stephen told me that their marriage plans had been put on hold pending the outcome of these proceedings and the determination of the question of whether or not they would have the care of the children. In my view, the question of whether, and if so to what extent, Stephen should participate in any contact visits is best left to the parties, with the assistance of the department, to consider once the heat and disappointment of the present proceedings has passed, and the parties, it is to be hoped, have settled into the new reality that will come into existence with the making of the orders sought in the summons.

Conclusion

86. Subject to any further submissions from the parties, the Court proposes to make orders in accordance with the summons and for the exhibits to be returned. The Court notes that an engrossed form of the orders with accompanying forms of birth certificates and other necessary documents will be emailed to my associate on Monday by the Secretary’s solicitors.

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Decision last updated: 05 September 2017