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." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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.