The Secretary, New South Wales Department of Family and Community Services v Hanna [2018] NSWSC 77

Supreme Court New South Wales

Medium Neutral Citation: The Secretary, New South Wales Department of Family and Community Services v Hanna [2018] NSWSC 77 Hearing dates: 1, 2 February 2018 Decision date: 06 February 2018 Jurisdiction: Equity - Adoptions List Before: Kunc J Decision: Adoption order to be made Catchwords: FAMILY LAW AND CHILD WELFARE — child welfare under State legislation — adoption — effect of child's consent to own adoption — Adoption Act 2000 (NSW), s 8(1)(a), s 8(2)(a) Legislation Cited: Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Family Law Act 1975 (Cth) Cases Cited: Adoption of RCC and RZA [2015] NSWSC 813 Category: Principal judgment Parties: The Secretary, New South Wales Department of Family and Community Services (Plaintiff) Hanna (Defendant) Representation: Counsel: M Barnett (Plaintiff) R Dart (Separate representative for the child)

Solicitors: Crown Solicitor (Plaintiff) Hanna (In person) File Number(s): A64/2017 Publication restriction: No

EX TEMPORE Judgment

Summary 1. By summons filed on 4 May 2017 the Secretary of the New South Wales Department of Family and Community Services (the "Secretary" and "FACS") applies for an adoption order under the Adoption Act 2000 (NSW) (the "Act") of Jennifer in favour of Mary. Hanna, who is Jennifer's birth mother, opposes the adoption. 2. Ms M Barnett of Counsel appeared for the Secretary. Ms R Dart of Counsel appeared for Jennifer. Hanna appeared for herself. In accordance with orders I made at the time of delivering this judgment, all the names in these reasons (other than Counsel and the Departmental and expert witnesses) are pseudonyms. 3. Jennifer is 14 and a half years old and has consented to her adoption by Mary. More than just consenting, it is clear that she very much wants it to occur. The Secretary submitted that the adoption order should be made. 4. On the other hand, Hanna passionately advocated that because she was Jennifer's birth mother, Jennifer should be restored to her (Hanna's) care. She submitted that, notwithstanding Jennifer's apparent consent, the Court should find that Jennifer in fact had a "secret wish" to return to her birth mother. 5. Alternatively, recognising the deep bond that has formed between Jennifer and Mary, Hanna submitted that the Court should order some kind of joint custody arrangement between Mary (as to 75% of the time) and Hanna (as to 25% of the time). 6. Finally, Hanna submitted that if the Court decided that the adoption order should be made, then significantly greater contact time should be allowed between Jennifer and Hanna (and Jennifer's siblings) than was provided for in the currently proposed adoption plan. Hanna proposed a minimum of 12 contact visits per year rather than the minimum of 4, the latter being the extent of her current face to face contact. 7. Jennifer's consent does not derogate from or diminish the Court's fundamental task of deciding what is in her best interests, both now and in later life. Her consent certainly does not predetermine the outcome of the proceedings. Nevertheless, it is a very significant factor to be taken into account. 8. The Court is well satisfied in this case that it is in Jennifer's best interests to be adopted by Mary, and that adoption is clearly preferable and in Jennifer's best interests compared to any other measure available at law. 9. In reaching the conclusion expressed in the preceding paragraph, I have given anxious consideration, and accorded considerable weight, to the many efforts that Hanna has made to improve her circumstances and to demonstrate her fitness to resume her parenting role. However: 1. Jennifer's strong, clear and rational wish to be adopted by Mary (and not to be restored to Hanna), and to end the regular involvement of FACS officers in her and Mary's lives; 2. the length of time that Jennifer has been continuously in Mary's care (since 20 August 2010, Jennifer then being nearly seven years old); 3. the fact that Jennifer has bonded with and identifies Mary as her mother and sees herself and Mary as a family unit; 4. the fact that Jennifer is well settled at home and at school, feels secure, and is flourishing physically, intellectually and emotionally in Mary's care; 5. the desirability of bringing Jennifer's legal reality into line with the social and psychological reality which she already feels exists; and 6. the desirability of bringing litigation in relation to Jennifer to an end, all support unequivocally the conclusion the Court has reached. The Court will also approve the middle name and surname sought by Jennifer and the registration of the proposed adoption plan. There will be a minor change to the proposed plan to make clear that, if Jennifer consents, there can be contact between Hanna and Jennifer without Mary being present.