Re Samuel [2013] NSWSC 550

Supreme Court New South Wales

Medium Neutral Citation: Re Samuel [2013] NSWSC 550 Hearing dates: 11 April 2013 Decision date: 11 April 2013 Jurisdiction: Equity Division Before: Rein J Decision: Orders the adoption of the child Samuel in favour of the adopting parents. Orders that the consent of the child's natural father be dispensed with Orders that the child's surname changes to the surname of the adoptive parents. Catchwords: ADOPTION - whether an adoption order should be made when the natural father opposes adoption. Legislation Cited: Adoption Act 2000 (NSW) Category: Principal judgment Parties: Department of Community Services (plaintiff) Birth father of the child (defendant) Representation: Counsel: Ms T. Stevens (plaintiff) Defendant in person Solicitors: NSW Crown Solicitor's Office (plaintiff) File Number(s): A120/2012

Ex tempore Judgment 1REIN J: These proceedings concern a child to whom I shall refer, using an anonymised name, as "Samuel". 2 The Director General seeks an order for the adoption of Samuel by the proposed adoptive parents and an order dispensing with the requirement of the consent of the birth mother ("Lauren"), whose name I have also anonymised, and the defendant, the birth father. 3Samuel was born in August 2006, shortly after his birth he was placed in care due to concerns that his natural mother and father were not able to properly parent him. The birth mother suffers from schizophrenia and has a history of drug abuse. The birth father suffers from "psychosis schizoaffective" disorder for which he takes extensive medication: see Exhibit A, p 238-249. There is reference to the defendant having been diagnosed with bipolar disorder (see Angela Tarlington's affidavit sworn on 19 July 2012, Exhibit A, p 11) and the defendant did make reference to that himself in evidence today (see T23.2). There is evidence of domestic violence, drug use by both natural parents and there was instability between the birth parents at the time of Samuel's birth. Samuel was born premature and his blood tested positive for cocaine in the days following his birth: see Exhibit A, p 29 which forms part of the affidavit of Angela Tarlington of 19 July 2012. 4The child was placed with the proposed adoptive parents when he was seven months old and has remained with them since. The Children's Court made an interim order in August 2006 placing Samuel under the parental responsibility of the Minister of Family and Community Services ("the Minister"). Lauren at the time consented to a finding that Samuel was in need of care and protection but the defendant opposed such a finding being made. 5On 23 October 2006, the Children's Court made a Final Order placing Samuel under the sole parental responsibility of the Minister until Samuel turned 18. 6There were attempts to ascertain if a member of the defendant's extended family could provide long term care for Samuel but these attempts proved fruitless. In December 2006 temporary foster care was arranged and in March 2007 Samuel was placed with the proposed adoptive parents. 7Whether or not an adoption order should be made is governed by the Adoption Act 2000 (NSW) ("the Act"). For an adoption order to be made the Court must be satisfied as to a number of matters and these are set out in s 90 of the Act (excluding matters not relevant to this child): 90 Court to be satisfied as to certain matters (cf AC Act s 21) (1) The Court must not make an adoption order in relation to a child unless the Court is satisfied: (a) that the best interests of the child will be promoted by the adoption, and (b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and Note. Sections 127-129 contain provisions about ascertainment of the wishes of a child by the Court. (c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child-that the prospective adoptive parent or parents have been selected in accordance with this Act, and Note. See Part 3 of this Chapter. (d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and ... (2) The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances. (3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. Note. Other action that could be taken in relation to a child includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the Children and Young Persons (Care and Protection) Act 1998. Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt. 8I shall refer to those matters shortly. The Act also requires some more formal matters to be met, namely: (1)That the child was present in the state at the time that the application was filed: s 23(2)(a). (2)That the proposed adoptive parents live in New South Wales: ss 23(2)(b) and 28(1)(a). (3)That the proposed adoptive parents are of good repute and are fit and proper persons for the role: s 28. (4)That the child was less than 18 years of age when the summons was filed: s 24(1)(a). (5)That the proposed adoptive parents have been living together for more than two years. (6)That a report in writing concerning the proposed adoption has been provided to the Court in terms of s 91(1). 9None of these matters are in issue in the proceedings but in any event, I am satisfied on the evidence contained in Exhibit A that each of these requirements have been met. 10The Act, by s 59, specifies that the Director General or appropriate principal officer must ensure that a person whose consent to adoption is needed has been given the mandatory information referred to in s 57 of the Act. Whilst the Act does not require that the mandatory information must be provided as a precondition for the making of an adoption order, I am satisfied that birth parents have been provided with the mandatory written information, as part of the information package sent out by the Department, by the combination of: (1)The evidence in Ms Tarlington's affidavit, (2)the oral evidence of Ms Waterman, a Departmental officer, and (3)by the indication from the defendant that he received the package, which is referred to in a letter addressed to him (see p 70). 11Returning to the matters addressed in s 90, assistance is gained from s 8(2) of the Act which is in these terms: 8 What principles are to be applied by persons making decisions about the adoption of a child? (cf AC Act s 17, AC Reg cl 35) (1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles: (a) the best interests of the child, both in childhood and in later life, must be the paramount consideration, (b) adoption is to be regarded as a service for the child, (c) no adult has a right to adopt the child, (d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, (e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare, ... (2) In determining the best interests of the child, the decision maker is to have regard to the following: (a) any wishes expressed by the child, (b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant, (c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity, (d) any disability that the child has, (e) any wishes expressed by either or both of the parents of the child, (f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant, (g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, (h) the nature of the relationship of the child with each proposed adoptive parent, (i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child, (j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour, (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. 12The adoption is opposed by the defendant. The natural mother, Lauren, has not consented to the adoption although she has not sought to take any part in these proceedings. There is evidence (see Exhibit A, p 204-205) that Lauren continues to be affected by her schizoaffective disorder and likely drug abuse and I have serious doubts her ability to provide informed consent in any event. Lauren is of Anglo-Scottish heritage and was raised as a Catholic but is not a practising member of the faith. The defendant identifies himself as Jewish and of French Moroccan background. He is an Australian citizen. He is one of six siblings. 13The agreed issues were summarised by Justice Brereton at the preliminary hearing on 13 February 2013 (see T10.7-33), I set them out below: (1)[Samuel]'s physical, emotional and educational needs, including his sense of personal, family, and cultural identity. (2)[Samuel]'s relationship with his birth parents. (3)The need to protect [Samuel] from physical or psychological harm. (4)The alternatives to the making of an adoption order and the likely effect on [Samuel] in both the short and long-term of changes in his circumstances, so that adoption is determined best to meet his needs as opposed to maintaining the status quo restoring to a birth parent, or shared time with a birth parent, or parental responsibility to the proposed adoptive parents. (5)The parenting capacity of the birth father. (6)Whether the arrangements proposed in the amended adoption plan are in [Samuel]'s best interests and proper in the circumstances, particularly in the light of the birth father's wish for restoration, or, alternatively, for equal time. (7)Whether the making of an adoption order is clearly preferable in the best interests of [Samuel] than any other action that could be taken. (8)Whether the proposed change of surnames in [Samuel]'s best interests. (9)Whether the proposed contact regime as set out in the amended adoption plan is in the best interests of [Samuel], and whether any order should be made to give effect to it. 14The defendant has filed an affidavit in opposition to the adoption, and he gave evidence at a preliminary hearing before Brereton J and he has also filed a short statement (see Exhibit A, p 255-256 and 250-251). The defendant's opposition to adoption is based on the following matters: (1)He is the natural father of Samuel, (2)Samuel was taken by Department of Family and Community Services ("the Department") and placed in foster care at a very early age, (3)The defendant, he asserts, is in good health, (4)The defendant is currently living alone independently in stable accommodation where he has resided for the past 14 years, (5)He has: [s]ubstantial time, energy, motivation and capacity to love and support [Samuel] and be involved in his development. This includes carrying out all necessary tasks required to provide for his healthy mental, emotional and social development including provision of meals, clothing, taking to and from school, social outings and intellectual stimulation. (see p 255 of Exhibit A) 15The defendant today seeks joint custody of Samuel "together with the foster family" (see p 255, Exhibit A). The defendant does not contend that the adoptive parents are not suitable persons to care for Samuel but I understand him to assert that since he is the natural father and he has time available it is appropriate for Samuel to be in their joint care and for Samuel to live with him. 16The defendant also states that he would like "regular visitor rights" to Samuel and "receive regular updates about his wellbeing". I understand that submission to be in the context where, contrary to his principal submission, the court orders adoption by the proposed adoptive parents. The question of visitation rights and of updates involves quite different considerations to the question of adoption. In a case where extensive contact between the natural parents and the child is required, that could be a relevant matter in considering what would be the best alternative approach. 17Samuel was discharged from hospital with neonatal abstinence syndrome and jaundice but has developed normally and has no particular health concerns: see Ms Tarlington's affidavit of 19 July 2012. There can be no doubt that the removal of Samuel from Lauren (and the defendant) who were living together in disharmony at the time was appropriate given the circumstances recorded in the Department's file and the fact that the Children's Court made the orders that it did make in a contested hearing at which Lauren and the defendant were legally represented (in the case of Lauren through a guardian ad litem). 18Since Samuel is only 6 years of age the Department submits that he is too young for his views to be sought. I accept that submission and the defendant does not contend otherwise. 19There is evidence that Samuel has a strong attachment to the adoptive parents, considering them to be his "mum and dad". This is not surprising since he was seven months of age when he was placed in their care and they have provided for all his physical, educational and emotional needs since then. He appears to be progressing well at a Catholic primary school: see affidavit of Cynthia Nielson of 25 January 2013 pp 179-192. The adoptive parents exhibit attitudes and actions that indicate an acceptance of the responsibilities of parenthood. They have, in addition to Samuel, taken into care a younger girl, whose name I shall anonymise as "Anthea". Samuel and Anthea relate to each other as brother and sister. The adoptive parents are, or will be seeking, by separate application, an adoption order in relation to Anthea as well and the application is also supported by the Director General of the Department. The adoptive parents have the financial capacity to rear both Samuel and Anthea. 20The position now is that Samuel has been reared for 6 years as if he is the son of the proposed adoptive parents and reared appropriately in a loving, caring and stable environment. Since his birth he has had contact with the defendant only twice, on both occasions when he was less than one year old. Even were the defendant a wholly suitable person to be a parent to Samuel, and whatever the reasons for the lack of the contact, it would be difficult to accept that it would be in Samuel's interests to be brought up by anyone other than the proposed adoptive parents. 21Unfortunately it is necessary to explain why I am unable to accept that the defendant is an appropriate person to rear Samuel. In making the comments, which I will make, I recognise the defendant finds himself in a most unfortunate situation. I do not intend my comments to lay blame or constitute criticism of the defendant rather only to explain why, in addition to what I have said already, his proposal for bringing up Samuel, in my view, is unrealistic and not in the best of interests of the child. 22The defendant has been identified as suffering from the psychiatric condition bipolar affective disorder and "organic personality traits", (see para 30 of Tarlington's affidavit, pp 10-11 of Exhibit A) and has "psychosis; schizoaffective" (p 229, pp 238-289, Exhibit A) of which he makes no mention in his affidavit. I note that a psychiatrist has provided a report (see 168) and his General Practitioner Report (see pp 229 and 252) which details his medical condition from which he has been suffering since at least 1999 and expresses the view that the defendant's mental health does not pose a threat to Samuel if the defendant is allowed contact, a view which is not challenged by the Department. His condition appears to have stabilised by virtue of the extensive medication which he has taken: see Exhibit A, pp 238-249. 23The defendant is on a disability pension, and is not employed and not worked for a considerable time. 24The defendant has been the subject of the apprehended violence order (involving Lauren). 25The defendant has a criminal record (see Exhibit A, pp 230-237) including convictions for the offence of obtaining benefits by deception and of dishonestly obtaining financial advantage by deception and making a false instrument. He has been convicted of common assault in the context of his disharmony with Lauren. 26The defendant lives alone in subsidised government housing and at the moment in a one bedroom unit. If Samuel were to be returned to his care he would not have his own room, unless the defendant were successful in obtaining an upgrade. As of today, the defendant has taken no steps to ascertain if a two bedroom unit would be available to him if he obtained custody of Samuel. 27 When the problem of the defendant's accommodation and also the effect of change on Samuel was raised with the defendant by Brereton J, on 13 February 2013, there was the following exchange at T7.41-T8.5: Q. Do you live with anyone else? A. I live alone. Q. And in what sort of accommodation do you live? A. Well, I live in a - in a one bedroom flat, which is Department of Housing. Q. And how suitable do you think that is for a seven year old boy? A. Well - well, it's not - as you mean - what do you mean by suitable? Because he doesn't have a bedroom? Q. That's part of it, yes. A. Well, the mother - the mother has a two bedroom. Q. I'm sorry, [Lauren]? A. [Lauren]. [Lauren] has a - she lives on the other side of me, the other side of [omitted], and she has a two bedroom. Q: So where are you proposing that [Samuel] would live? A. Well, it's not - that really is not the issue, the issue is that I get -I get rights to my son. Q. Part of the issues I would have to consider- A. Well, I get a -I get a two bedroom transfer. Q. Now, what's your income at the moment, just the pension? A. Just the pension, yes. Q. What effect do you think it would have on [Samuel] to change from his current arrangements to the arrangements that you propose? A. Well, I'm not - I'm not saying that it won't be a bit of a - a bit of a change for him at this present time, because I myself visit -I had -I had - when [Samuel] was born I - from the hospital DOCs took - took my son away, okay. 28 The statement about Lauren was clearly, in my view, designed to encourage the Court to think that Samuel could live with Lauren at least for some period of time. The defendant denied today that that was his intention but he was unable to explain why he had proffered information about Lauren and I think that does not reflect well on his credibility. 29I regard the answers given on that occasion as revealing a considerable lack of insight by the defendant. First, the impact of removing Samuel from his current environment would be very considerable as the defendant today reluctantly conceded. Second, Lauren continues to suffer from significant psychological problems and does not reside with the defendant. She is an unsuitable person for any parental responsibility over Samuel, as the material in Exhibit A documents, even on a short-term basis. 30There were other aspects of the defendant's evidence today which led me to doubt his credibility: (1)Initially he denied that he had ever taken illicit substances. It is clear from the material in Exhibit A that he has, at least in the past, taken marijuana and today he reluctantly admitted that. (2)He, on occasions, was reluctant to answer questions directly and he was coy about the assistance he obtains from Jewish Care. (3)He is recorded as having a meeting with a case worker in August 2006 where he had the following conversation, substituting "defendant" for his real name (see Exhibit A, pp 99-100): I said: ' is this first baby?' [the defendant] said: 'to her yes.' I said: 'have you got other babies?' [the defendant] said: 'that's personal?' And at a subsequent meeting on 16 October 2006 having had the following conversation with a different case worker: [The defendant] said he had two other children, a girl and boy, I think aged twelve and fourteen. I asked their names but [the defendant] said he was here to spend time with [Samuel] and not discuss his other family. I said I understood how he would feel this way. 31In relation to the last point, the defendant denies on oath that he has any other children and, although he did not deny the first conversation, he did vehemently deny the conversation said to have occurred in October 2006 calling it a fabrication and querying how six years on it could be accurate. It is obvious from the note of the second conversation and the date at the bottom of the page that it was a report of what occurred shortly before the note was made. It is quite precise and, if correct, it is entirely inconsistent with the defendant's denial. It is difficult to see why the case worker, who supervised the contact and whose note it is, would have fabricated the question and answer that are recorded. If the defendant does have children by women other than Lauren what is relevant is not that fact but their fate and the quality of his parenting. The inability of the Department to pursue those questions because of the answers given is a reason for the defendant to answer the question in the way he is recorded as doing. The defendant was unable to proffer any convincing explanation as to why the case worker would have fabricated that conversation. 32From October 2006 until July 2012 the defendant made no attempt to seek contact with Samuel through the Department (or by any other means). That fact is most significant in relation to the defendant's attitude to his son and, of itself, demonstrates a lack of commitment that impacts upon his suitability to now parent Samuel. 33I gained the impression from the defendant's evidence today that he relies on Jewish Care for assistance in matters that go well beyond the issue of adoption or access to Samuel. He said that he has been attending Jewish Care for eleven years which confirms this. I have a real doubt as to whether the defendant has the capacity to adequately parent the child even aside from the economic considerations. 34I therefore conclude that it is in the best interests of Samuel that he remain in the care of the adoptive parents who, it is reasonable to conclude, are likely to continue to fulfil Samuel's physical, emotional and educational needs and continue to protect him from psychological and other harm. Further, Samuel should be adopted by them to create the stability and permanency that that entails and to cement the family which involves not only Samuel's relationship with the adoptive parents, but with Anthea as well. The defendant's proposal is unrealistic and could not, in my view, be in the interest of Samuel. Nor is it in Samuel's interest to continue under the care of the Minister with parental responsibility given to the adoptive parents.