Re Simon (No. 2) [2006] NSWSC 1412

New South Wales Supreme Court

CITATION : Re Simon (No. 2) [2006] NSWSC 1412

HEARING DATE(S) : 12 December 2006

JUDGMENT DATE : 12 December 2006

JURISDICTION : Equity Adoption List

JUDGMENT OF : Campbell J

EX TEMPORE JUDGMENT DATE : 12/12/2006

DECISION : Consent of birth parents dispensed with. Adoption order made. Order for change of given name made.

CATCHWORDS : FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – adoption – construction of test for dispensing with consent of birth parent, in section 67(1)(c) Adoption Act 2000 – change of given name by former surname becoming a middle name – otherwise no question of principle.

LEGISLATION CITED : Adoption Act 2000 Adoption of Children Act 1965

PARTIES : Director-General, Department of Community Services - Applicant

FILE NUMBER(S) : SC 41/04

COUNSEL : D Ward - Applicant M Falloon - Separate Child's Representative

SOLICITORS : Crown Solicitor - Applicant Natural father appeared in person

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTION LIST

CAMPBELL J

TUESDAY 12 DECEMBER 2006

41/04 RE: SIMON (NO. 2) JUDGMENT – Ex Tempore 1 HIS HONOUR: There are two applications before the Court at the moment. One of them relates to an application to dispense with the consent of both of the birth parents of the child who is involved in this application. The other is an application for the adoption of that child. The names of those involved, other than expert witnesses, have been anonymised. 2 The child in question is Simon Z who was born in October 1999. His mother is Isobel Z. It is now known, though it has not always been known, that his father is Mark Q. 3 The couple who are seeking adoption of the child, are Andrew and Natasha. They made themselves available for foster care after having tried over a period of about ten years to conceive a child. Simon was the first foster child that they were allocated. 4 Isobel has a sad history of mental illness, that has unfortunately led her into criminal activity. She has a criminal history that dates back to 1989. She has one other child, Jane, who was born seven years before Simon was born. Almost immediately after Jane's birth, Isobel ceased to have custody of her, and Jane has been brought up by Isobel's parents. It was because even at that stage Isobel had drug addiction and mental health issues that this course was necessary. 5 Over the years she has had a history of substance abuse relating to several different substances, including alcohol, something referred to as "benzo" and heroin. She suffers from a major psychotic illness namely paranoid schizophrenia and has what a psychiatrist has described as marked personality issues. While these are fairly well controlled when she is in an environment where the taking of medication can be supervised, she has a history of defaulting on medication and lapsing into substance abuse when she is not in gaol or in hospital. Even in those environments she sometimes has lapses. In 2000 she was placed in a segregation unit in Mullawa for three months as a consequence of two different incidents involving assault on prison officers. She gave birth to Simon at a time when she was in gaol on charges of shoplifting and assaulting police. DOCS were notified of the impending birth shortly before it happened. 6 The birth certificate does not have the box for the identity of the father filled out. Departmental officers interviewed Isobel at Westmead and asked about the identity of the natural father. Her answer was that she knew his first name, she didn't know his second name and she wasn't going to tell them his first name. She said that she would find him when she was released from gaol. The file of Mullawa stated that she told the gaol authorities that she had been raped by someone and that this person was the father of Simon. That appears to be untrue. However, this lack of information meant that the identity of the birth father was not at first known to the Department. 7 When Simon was four days old, Isobel signed a voluntary agreement for him to be placed into care and he was placed with voluntary carers. That voluntary care arrangement continued, until eventually, on 8 June, 2000, the Campsie Children's Court made an order for him to become a ward of the State until he was aged 18. Simon's mother had some involvement in the early stages of those wardship proceedings, but around March of 2000 she said that she didn't want any further part in them because "the Department were looking after everything". 8 It was in June 2000, when Simon was aged eight months, that he began to live with the people who now seek to adopt him. At first, that placement was seen as being a long term fostering arrangement. 9 Simon's maternal grandparents have had an involvement with him throughout his life. From the time he was first placed with the applicants for adoption, there were regular access visits with his maternal grandparents. At first these took place on a supervised basis, but they worked well and eventually the need for supervision dropped away, and the visits came to be simply organised between the parties themselves. On those visits Simon has contact with his extended birth family on Isobel's side, including his aunts, cousins, great-aunt and uncles. Through this contact, the applicants have a well established record of facilitating contact between Simon and his birth family. 10 The identity of Simon's birth father first became known to DOCS on 1 June, 2004 when Isobel told a DOCS worker that Mr Q was the father. Mr Q lives in a place where phone contact is unreliable, and he has a habit of not living in the one place. He has family in North Queensland, and visits there from time to time. It took a while to find him but eventually in February 2005, he was found, and agreed to undergo paternity testing, involving comparison of his DNA with that of Simon. The results of that paternity testing were known in July 2005 and for all practical purposes they established that he was the boy's father. 11 The notion of adoption of Simon had been raised at least as early as 2002. In November of 2002 the caseworker who has been assigned to Simon since his first placement with the applicants, discussed the idea with Simon's maternal grandparents. They supported the idea at that stage, and they continue to support it. 12 There had been only irregular contact visits between Simon and his birth mother. There were fairly regular contact visits up to September 2000 but then, once his birth mother was out of gaol, she did not carry through on her expressed intention to keep in contact with Simon, and no further visits occurred, until July 2004 and then again in November 2004. There have been visits that have occurred regularly, though not often, since then. 13 Isobel continues to have difficulties with controlling her medication and substance abuse and continues to have difficulties with the law. She is at present in gaol, awaiting trial on some fairly serious charges. 14 Andrew and Natasha have a comfortable and adequate home, and an adequate income to care for themselves and Simon. There are referees who speak well of them. Natasha has a problem with petit mal epilepsy but it is controlled with medication. There was a time when this medical difficulty led to her not having a driver's licence, but, with the support of her treating doctor, she has now regained her licence. Dr Clouston the neurologist who was treating her, gave a report in September 2006 in which he is optimistic that the symptoms will come under complete control when the right combination of anti-convulsants is used. 15 Andrew was himself raised in a foster family. This was an experience that he found very supportive, however he was never adopted, because his birth mother would not consent to his adoption, and no proceedings were taken to dispense with that consent. Since becoming an adult he has continued to regret that he had not been adopted, and has voluntarily taken the surname of his foster parents. 16 Natasha was brought up by her birth parents but they adopted a boy who was younger than her with whom she got on well. Thus both of the prospective adoptive parents have personal experience that has been positive with the mixed families that come from adoption. 17 Andrew and Natasha have so far declined the opportunity to take other foster children so as to devote their attention to Simon. Because he is, in social terms, an only child he has attended preschool from the age of three. He learned many language and social skills there before moving into the regular school system. 18 The picture that is presented by caseworkers' reports is that he has blossomed under the care of Andrew and Natasha. One such report describes him as a delightful little boy. He has been provided with the love, attention, emotional security and physical environment that has enabled him to develop strongly from a very unpromising start in life. 19 By 2004 by far the most significant emotional attachments were to his prospective adoptive parents, though his ongoing relationship with his maternal grandparents and his half sister Jane, was also important to him. More recently, Jane's importance to him has increased, though his prospective adoptive parents are still very important to him. This change in attitude is hardly surprising for a boy who is now seven. 20 As well though, he now recognises Mark as someone who loves him. This year when the children were making Fathers' Day cards at school Simon made two, one for each of his fathers. He does this even though, so far, his personal experience of Mark is very limited. It has occurred in the context of two supervised contact visits, one on 16 February 2006, and another more recently this year. The case workers' reports on those visits present a picture of two people who do not know each other well but each of whom is willing to try to get to know the other better. 21 In 2004 Simon expressed his views about adoption to a psychologist who was assessing him. At that stage he said he wanted to stay with the prospective adoptive parents forever and he wanted his surname to be the same as theirs. Indeed at that stage he had been told that one of the purposes of that visit was for the psychologist to find out whether his surname should be made the same as theirs and he periodically interrupted him by asking whether it had happened yet. Since then he has met Mark, and has had more contact with Isobel. He obviously feels empathy with them. He expressed the view, more recently, that he wanted to live with daddy Mark. However, he also explained that as being because daddy Mark's bones don't work properly. When the prospect of him not living with the applicants was pointed out to him, he was horrified at that idea. While he is old enough for his views to be taken into account, they are far from decisive, and he is insufficiently mature for those views (whatever their content might be) to be given much weight. 22 Overall, the professional assessments of him are that for a long time the applicants have been his psychological parents. The evidence is to the effect that he has taken on their social attitudes, and even has some of Andrew's mannerisms. That process of introjection is a normal one in child development. 23 From the time he first knew of the existence of Simon, Mark has wished to know about him. He contacted the maternal grandfather of Simon about four to six months after Simon was born and said, "I saw [Isobel] and she says I have a baby boy." Mr Z replied, "I don't know much about it. The best thing you can do is call DOCS, they are looking after it." There has not been any contact between Mr Z and Mr Q since then. It is apparent, from other things, that Mr Q has said to the case worker who has been looking after Simon's file that he has known about Simon's existence, and also that he has made some attempts to find out about him, but that those attempts have been unsuccessful. They have not been very thorough attempts, but I accept that he made an attempt where he contacted DOCS, and received no useful information. After that he did not try to follow up any other potential lines of inquiry, or to find a different track through DOCS' bureaucratic maze to the information he wanted. 24 Mark's attitude to the adoption is one that he has explained to me in submissions today. He says he wants to be part of Simon's life, but also that he would not want to take Simon away from the applicants. He says he is grateful for what they have done for him. On the other hand, he says that he has raised his own daughter, and has raised other members of his extended family, and that he wants Simon to know his extended family. He lives on a disability support pension, but he says that he has his own land, on which he grows food of various kinds. 25 The adoption proposal comes to the Court in conjunction with an adoption plan. That adoption plan is one which, because of his objection to the adoption taking place at all, Mark has so far not signed. However, what it provides for is for meetings to occur between Simon and Mark at least twice per year. It provides for the meetings to take place in a neutral venue for one and a half hours and to be supervised by Anglicare for the foreseeable future. Equally, though, it provides for the arrangements to be subject to change, depending on Simon's wishes, and Mark's situation at the time. The adoption plan also makes provision for contact visits to occur between Simon and his half sister Melinda Q. She is now aged about twenty-two, and has a son aged four. They have already met Simon, on the first of the contact visits this year. The adoption plan makes provision for separate visits between Melinda and Simon being organised. It also provides that consideration will also be given to Simon having contact with other members of Mark's family once he has met his father and Melinda. It requests that those other members be asked to provide a photo and some brief introductory information prior to a visit. The adoption plan provides that the inclusion of other family members in visits will be subject to Simon's wishes, and dependant on the circumstances at the time. 26 That adoption plan is one which is, rightly in light of the fundamental requirements of the Adoption Act 2000, one that places its primary focus on the best interests of the child. However, it has within it an element of flexibility, so that it is not as though adoption will necessarily result in Simon ceasing to have contact with Mark, or with other members of his extended birth family, on his father's side. However, the arrangements for any such contact need to be assessed, from time to time. The point, for present purposes, is that the particular fear that Mark has expressed about contact between himself and Simon ceasing if an adoption order is made, is in my view unlikely to happen. I say that both because of the provisions of the adoption plan that are proposed, and also because of the established record that the applicants have, in their relations with the maternal grandparents, and extended family on Isobel's side. 27 The legal test for dispensing with consent that is relied upon by the Department in the present case is that contained in section 67(1)(c) of the Adoption Act 2000, namely: "… there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility." 28 Before seeking to apply that test, it is necessary to give some attention to just what it means. Its first limb does not impose a test such that the consent can be dispensed with only if there is likely to be serious harm to the welfare of the child if the consent is not dispensed with. Rather, "serious" is an adjective that describes the whole expression "cause for concern for the welfare of the child." What it requires is that there be cause for concern for the welfare of the child, and for that concern to be of a serious nature, before the consent can be dispensed with. 29 In my view, that test is satisfied in the present case. Simon, even before he went to school, was a very active child. Now that he is at school, he has been exhibiting some signs of boisterousness, and some signs of temper tantrums at home. None of these are at a stage where they amount to a behavioural problem. However, they do give some reason to believe that he will not be immune from the usual bouts of adolescent rebelliousness. 30 The report of a psychologist, Dianne Starkey of 25 September 2006 has considered the way in which failure to make an adoption order might affect Simon. She says that, while the adoption will not make a great change in the day-to-day lives of the family, because he is already treated as and acts as their son, and they already have a parental commitment to him, there is still a benefit from the adoption. She points out that: "In the long term, [Simon] will be able to develop more security in his relationship with [Natasha] and [Andrew]. When he gets to the age of understanding more fully the difference between fostering and adoption (possibly around the age of ten) he will not experience the anxiety often felt by foster children about the chance of being taken away or being given up. Instead, he will be able to progress through the normal stages of adolescence knowing he is securely placed with [Natasha] and [Andrew], and will be able to move on to develop a secure identification as a young adult. The other benefit of adoption will be that the family will be able to make decisions about [Simon's] schooling and other similar issues without having to consult the authorities, and there will be no ambivalence about the line of inheritance within [Natasha] and [Andrew's] family in relation to [Simon]. The main changes for [Simon] and the family will be subtle ones, but ones that have been found to be extremely significant in a child's life in terms of emotional security and personality development." 31 There is another aspect of Simon's particular situation that needs to be taken into account here. Given the difficulties that his birth mother has had, there is a possibility that he might develop schizophrenia in the future. This is only a possibility, by no means a certainty. It has been discussed with the prospective adoptive parents. That possibility certainly does not deter the prospective adoptive parents in wanting to continue with the adoption. If it were to happen that this possibility were to eventuate, it would be very much in Simon's interests to have the security of knowing that the people he had lived with all his life were legally his parents, and in a position where they would fully support him in his difficulties. It is to be hoped that this eventuality does not come about. Nonetheless, the combination of the general factors relating to the importance of knowing where one belongs in providing security during adolescence, and in later life, that Ms Starkey has pointed to, and the particular difficulty that it is possible Simon might face, together give cause for concern for his welfare. Given the nature of the potential problems, taken together, that cause for concern deserves to be described as serious. 32 The applicants are the only parents that Simon has ever known. The adoption is one that is supported by everyone who is concerned in it, apart from his birth parents. It is supported, as I have said, by Simon's maternal grandparents. There are two people who have provided expert assessments of Simon's situation - Ms Starkey, who has presented two lengthy reports of 15 March 2004 and 25 September 2006, and Ms Margaret Thomson, who has been a caseworker allocated to Simon's file from the time of his placement and who is trained as a social worker. They are both firmly of the view that the adoption is in Simon's interests. 33 Because Simon is a ward of the State, the Minister is his legal guardian. The Minister supports the making of the adoption order. The views of the Minister as the person with legal power to decide day-to-day matters about Simon's welfare is one that is taken into account by the Court, though it is far from decisive. 34 At the Court's request, a separate representative was appointed for Simon. The separate representative supports the dispensing with consent, and the adoption. 35 As well, and certainly not least, the adoptive parents themselves are in favour of the adoption, and are conscious that adoption is something which is carried out in the best interests of the child. They are the people in the whole world who best know this boy. Their judgment, while not decisive, is entitled to considerable respect on this topic. 36 In all the circumstances, I am satisfied that it is appropriate, applying the test in section 67(1)(c) to dispense with the consent of Simon's birth mother and birth father. I recognise that section 67(2) forbids the court to make a consent dispense order unless it is satisfied that to do so is in the best interests of the child. I am satisfied, for the reasons I have given, that it is in his best interests. 37 I said earlier today that there is some doubt about whether this adoption is under the Adoption Act 2000 or the Adoption of Children Act 1965. If it is under the latter Act, section 32 includes as a ground for dispensing with consent that: "The child is in the care of a foster parent or foster parents, the child has established a stable relationship with that person or those persons and the interests and welfare of the child will be protected by the child remaining in the care of that person or those persons."