Peter, Re [2009] NSWSC 697

New South Wales Supreme Court

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