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. Jennifer's family and litigious history 1. Jennifer was born in 2003. At the time of her birth her mother, Hanna, was 33 years old and Jennifer's birth father was nearly 57 years old. Unfortunately, Jennifer's birth father died from a cardiac arrest when Jennifer was four and a half years old. 2. Jennifer has four half or full siblings: 1. Natalie, who was born in 1999. Natalie is Jennifer's maternal half-sister, although Jennifer's birth father was considered Natalie's psychological father. Natalie consented to her own adoption and this Court made an adoption order for Natalie in 2012. 2. Adam, who was born in 2005. Adam is Jennifer's putative full sibling, although the identity of his father is not listed on his birth certificate. Parental responsibility for Adam is allocated to his authorised carers until he attains 18 years of age. 3. Michael, who was born in 2007. Michael is Jennifer's full sibling. Parental responsibility for Michael is allocated to his authorised carers until he attains 18 years of age. Michael lives with Adam. 4. Richard, who was born in 2010. Richard is Jennifer's maternal half-sibling. Parental responsibility for Richard is allocated to the Minister for Family and Community Services (the "Minister") until Richard attains 18 years of age. Richard lives with his authorised carers. 1. FACS has been involved with Jennifer's family since 2005. A total of 17 risk of harm reports were received by FACS between 2005 and 2009 raising various concerns, including about Hanna's mental health. It is important to emphasise at this point — as I explained to Hanna during the course of the hearing — that in determining the present application, the Court was not concerned with the truth or merits of the reasons which had led to Jennifer and her siblings coming into the child protection system. The Court must make its decision in relation to Jennifer's adoption based on the evidence about everyone's circumstances as at today. 2. In early 2009, Hanna signed a Temporary Care Agreement in relation to Natalie, Jennifer, Adam and Michael. That agreement was renewed more than once until later in 2009. 3. During the time of the Temporary Care Agreements (a period of just under six months), Jennifer was placed either with the couple who are now Natalie's adoptive parents or with her uncle and aunt. 4. The Secretary ultimately filed an application in the Children's Court seeking parental responsibility for Natalie, Jennifer, Michael and Adam to be allocated to the Minister until each of the children attained 18 years. Just over a year later, in late 2010, final orders were made in relation to Natalie, Jennifer, Adam and Michael allocating parental responsibility for: 1. Natalie to her now adoptive parents until the age of 18 years, other than for contact which was allocated to the Minister for a period of two years; 2. Jennifer to the Minister until the age of 18 years; and 3. Adam and Michael to their carers until they each attained the age of 18 years, other than for contact which was allocated to the Minister for a period of two years. 1. The Children's Court's final orders included notations that Jennifer should have supervised contact with Hanna on a minimum of 12 occasions each year, and that Jennifer and her siblings should have contact for a minimum of 12 occasions each year. While those orders remain in effect, for reasons which it is not relevant to set out, contact between Jennifer and three of her siblings has been taking place four times a year. Hanna has no contact with Natalie and blames Natalie's adoptive parents for the estrangement. The Court expresses no view about this, not least because Natalie and her adoptive parents have played no part in these proceedings. 2. Hanna participated throughout the Children's Court proceedings and was legally represented. Once the proceedings had begun, Jennifer lived either with Natalie's now adoptive parents or her (Jennifer's) maternal uncle and aunt. Ultimately, Jennifer's maternal aunt nominated a family friend, Mary, as a potential carer for Jennifer. Jennifer was placed with Mary and Mary's former partner on 20 August 2010 and has been continuously in her care since then. 3. After final orders were made in relation to Jennifer in late 2010, a considerable series of further litigation ensued at Hanna's behest. 4. In late 2011, Hanna filed an appeal regarding the orders made in relation to Richard. That appeal was dismissed by a judge of the District Court in late 2012. 5. Earlier in 2012, Hanna had commenced an appeal to the District Court regarding the final orders made in the Children's Court for Jennifer, Michael and Adam. In mid-2012, that appeal was dismissed by a District Court judge. 6. Also during 2012, Hanna filed what would be the first of several applications in the Children's Court pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the "Care Act") in respect of Jennifer, Michael and Adam. Her application for leave under s 90 was refused and her application dismissed later in 2012. 7. Hanna then filed a further appeal in the District Court against the refusal of leave regarding Jennifer, Michael and Adam. In early 2013, a District Court judge dismissed Hanna's appeal against the refusal of leave. 8. In late 2012 and early 2013, Hanna filed notices of appeal in the Court of Appeal in relation to orders that had been made in respect of all four of her children. Later in 2013, during the Court of Appeal proceedings, Hanna filed a further s 90 application in the Children's Court in respect of Jennifer. That application was dismissed by that court when it was made aware that there were current proceedings before the Court of Appeal in relation to Jennifer. 9. Hanna's appeal was heard in 2014 and dismissed by the Court of Appeal in 2015. 10. Following the making of an adoption order in respect of Natalie in early 2012, Hanna filed a notice of appeal in 2013 in respect of that adoption order. In late 2013 the appeal was dismissed. 11. In mid-2015, Hanna filed a further application in the Children's Court pursuant to s 90 of the Care Act regarding Jennifer, Adam, Michael and Richard. Two months later the Children's Court refused Hanna leave in respect of that latest s 90 application. 12. In 2016, Hanna filed a further s 90 application in relation to Richard. Leave was granted to Hanna in relation to that application. However, in early 2017, the Children's Court dismissed Hanna's application for the orders made in 2010 to be rescinded and for her to be allocated parental responsibility for Richard. 13. Also during 2016, Hanna filed a fresh application in the Children's Court pursuant to s 90 of the Care Act in relation to Jennifer. In late 2016, the Children's Court refused to give leave to Hanna and her application was dismissed. 14. In early 2017, Hanna filed a further application in the Children's Court pursuant to s 90 of the Care Act in relation to Jennifer. However, Hanna ultimately withdrew that application. Mary 1. Mary is a 52 year old social worker, having completed her secondary education and subsequently completed a Bachelor of Applied Social Science (Counselling). At the time Jennifer was placed with Mary, Mary was in a domestic relationship. That relationship has now come to an end, although Mary and Jennifer continue, from time to time, to socialise with Mary's former partner. Mary has since formed a non-domestic relationship with another person. 2. Mary earns approximately $1,650 net per week. She and Jennifer live in a home, the value of which Mary estimates to be $1.2 million. Mary is making repayments of approximately $1,900 per month. The home is a three bedroom townhouse/terrace with two and a half bathrooms, a two car garage, lounge and dining areas and three terraces. It is close to Jennifer's school and other services and amenities such as her GP. Mary also owns a car and household assets. She is in good physical and mental health. 3. While being diametrically opposed to her preferred course, Hanna, to her credit, did not suggest that Mary was not a suitable person to care for Jennifer. During the course of argument, Hanna said: "I know [Jennifer] loves Mary. Mary's a great person. She's a child protection worker. She's like me. We're in the same sort of field and I know that it's love. The most important ingredient, well I think, to give a child is love. Obviously food, shelter comes second. But that's definitely something Jennifer's had, and she's full of it." Hanna 1. Hanna is currently 47 years old. She works in a service industry. As such, her income varies with the hours worked. She tendered a January 2018 payslip which, together with her other evidence, supports the conclusion that her net income is between $500 and $700 per week, but generally towards the higher end of that range. She produced a letter of recommendation from her current employer (for whom she has worked since May 2016) which attested to her reliability and dedication and said: "While the position itself is listed as casual, Hanna works a full time roster…She is a valued employee…and her position is secure". 2. At the time of the preliminary hearing of these proceedings in October 2017, Hanna was living in hostel accommodation. However, in her evidence on that occasion she informed me that she had been offered rent free accommodation in an apartment owned by a company controlled by her two brothers. She informed me that both of her brothers were successful business people, with at least one of them being a multimillionaire. Approximately three weeks before the final hearing she moved into that apartment. It is a one-bedroom apartment. She said that if Jennifer was restored to her, she would screen off the greater part of that bedroom to be available to Jennifer and that she (Hanna) would have a single bed in the corner. 3. Hanna tendered letters of support from her brothers which also confirmed the apartment was being offered to her rent free for as long as she required it. Hanna referred to this as being rent free accommodation for life. The Court notes, however, that she does not have, nor does she appear to have been offered, any enforceable legal right of ownership or occupation of the property. Without casting any doubt on the goodwill of her brothers, her occupation depends upon that goodwill continuing and the fortunes of the company which owns the apartment. 4. Hanna conceded that, with the exception of about $3,500 in the bank, she has no assets. She was very straightforward about the comparison between herself and Mary, saying: "I can accept that I don't have the financial security that Mary does. I can accept that. I've told you that and I've given you evidence with the bank statement, my net worth, three and a half thousand. To me money doesn't matter. To me it's about happy, being alive, and enjoying every minute of your life, spiritual happiness to me, I've just never been a material person. So — and I didn't think I was getting my kids back, so to be honest I thought well what do I need money for if I've got no kids…". 5. On behalf of the Minister, Ms Barnett properly conceded (a concession adopted by Ms Dart for Jennifer) that Hanna has taken a number of steps to improve her circumstances. She was now working and had undertaken a number of courses of study, including in parenting and in early childhood care. Hanna explained that she was no longer able to work in child care because a physical condition meant she could not lift the children. 6. However, the question of the state of Hanna's psychiatric or mental health has been something of an "elephant in the room" during the management of these proceedings. While Ms Barnett expressly disavowed that the Court should find that Hanna was suffering from some mental or psychiatric condition, she submitted that the evidence did not allow the Court to make a finding one way or another. I disagree. 7. Hanna tendered various medical and psychiatric reports concerning her condition. Three of them were prepared within the last few months for these proceedings. They are unanimous in finding that Hanna is not suffering from any diagnosable psychiatric condition. The Court finds accordingly. To the extent I am entitled to rely on my own observations of Hanna during the hearings of this matter, that finding accords with my own, admittedly inexpert, observations. I am also satisfied that Hanna does not drink, smoke or take drugs. I find that Hanna's mental condition is neatly summarised in the report of Dr Yu-Tang Shen, a consultant psychiatrist, that "There is insufficient evidence to point to a major mental illness. She remains understandably distressed about her circumstances." The "circumstances" referred to in the report are, in summary, having had her children taken from her, that she has had no contact with Natalie and that she fears the adoption of Jennifer will lead to a similar estrangement. Hanna's distress, which was clear during the course of the hearing, is not a mental illness. 8. While it may be the case that Hanna is not suffering from any diagnosable psychiatric condition, she does not deny (and there can be no doubt) that over the last few years she has been determined — I must say obsessed — with doing everything she can, both in terms of her own personal improvement and through the Court system, to achieve the return of her children. She is plainly driven by a sense of deep injustice at their removal. This explains the large number of appeals and applications she has brought (see paragraphs [19] to [29] above). During the course of the preliminary hearing, she put as one of her grounds of opposition to the adoption: "If this adoption goes through it cuts off any opportunity for me to continue for me to be trying to put s 90's on and trying to keep my Court battle up and alive, which is where my heart is, your Honour. It is my battle." 1. Similarly, during the course of final addresses she said: "So I'm doing both to cover myself if I do further section 90s for Richard, your Honour, which I have a right to do — significant changes, accommodation and over the first stage of denial of grief, so they're two big changes that could — so if I got Richard back, Jennifer would have a brother". 2. It also became apparent during the course of the hearing that Hanna is very concerned that if the Court allowed Jennifer to be adopted by Mary, Jennifer would become estranged from Hanna in the same way that has occurred since Natalie was adopted. Jennifer is in contact with Natalie. It was clear from the material before me that there is undoubtedly real tension between Hanna (on the one part), and Natalie and her adoptive parents (on the other part). Hanna feels that Natalie's adoptive parents have turned Natalie against her (Hanna). Hanna expressed concern that somehow those adoptive parents might seek to influence Jennifer against Hanna through the agency of Natalie. 3. Other than accepting that there is tension between the relevant parties, I hasten to add that the evidence does not enable me to make any other findings that might support Hanna's concerns. Nothing in these reasons should be construed as a finding by the Court on any matter adverse to Natalie or her adoptive parents. However, what I have accepted and taken into account is the opinion of Ms Haskins (see further paragraphs [63] to [65]) below that to the extent there was any inter-family tension, she (Ms Haskins) was confident that Mary was strong enough to neutralise it, because she (Mary) understood and was supportive of the importance of a positive connection being maintained between Jennifer and Hanna. Jennifer — generally 1. Jennifer is now fourteen and a half years old and has spent just over half her life in Mary's continuous care. Words witnesses used in relation to Jennifer included "lovely", "intelligent", "thoughtful" and "determined". There was no dispute that she is very well settled both at home with Mary and at school. She is doing well at school and has a well-established network of friends. She loves and regards Mary as her mother. Jennifer is anxious to take on Mary's surname to formalise her sense of being a member of Mary's family. Furthermore, although perfectly well aware of her own Jewish heritage, Jennifer wishes to be educated and raised in Mary's own faith tradition, which is Roman Catholicism. Jennifer's consent 1. The Act provides: "55 Consent of child (1) The Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless: (a) the child has been counselled as required by section 63, and (b) the counsellor has certified that the child understands the effect of signing the instrument of consent (as required by section 61), and (c) the child consents to his or her adoption by the prospective adoptive parent or parents or the Court dispenses with the requirement for consent. Note. See Division 3 of Part 5. (2) The Court may make an adoption order in relation to such a child who is incapable of giving consent if the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order. … 61 Form of consent (1) Consent is to be given by an instrument ("an instrument of consent") that is in a form that contains the information prescribed by the regulations. (2) A separate instrument of consent must be signed by the child and by each other person whose consent is required by this Act. (3) Before the instrument is signed, a counsellor must sign a statement on it certifying that: (a) the child or other person giving the consent has been counselled by the counsellor, and (b) that the counsellor is of the opinion that the child or other person understands the effect of signing the instrument. … 63 Child or other person consenting must be counselled (1) A child or other person giving consent must be counselled in accordance with this section within the period prescribed by the regulations before he or she signs the instrument of consent to an adoption. (2) A person is counselled in accordance with this section if a counsellor: (a) accurately explains to the person, in a way that the counsellor thinks will be understood by the person: (i) the legal effect of signing the instrument of consent and the procedure for revoking consent, and (ii) the effect of the mandatory written information, and (b) counsels the person on the emotional effects of the adoption and alternatives to adoption (including, in the case of birth parents, the feasibility of keeping the child). (3) This section does not require the Minister administering the Children and Young Persons (Care and Protection) Act 1998 or any delegate of the Minister to be counselled before giving consent to the adoption of a child who is under the parental responsibility of the Minister. … 184 Undue influence (1) A person who uses or threatens to use any force or restraint or does or threatens to do any injury, or causes or threatens to cause any detriment of any kind to, or exerts any other undue influence on, a parent of, or person who has parental responsibility for, a child with a view: (a) to inducing that parent or person who has parental responsibility to offer or refrain from offering the child for adoption under this Act, or (b) to influencing the parent or person who has parental responsibility in the expression of any wishes contained in an instrument of consent to the adoption of a child, or (c) to inducing the parent or person who has parental responsibility to revoke a consent to the adoption of the child given by that parent or person who has parental responsibility, is guilty of an offence. Maximum penalty: 25 penalty units or imprisonment for 12 months, or both. (2) A person who uses or threatens to use any force or restraint or does or threatens to do any injury, or causes or threatens to cause any detriment of any kind to a child with a view: (a) to influencing the child in the expression of any wishes concerning his or her adoption, or (b) to inducing the child to consent to his or her adoption, or (c) to inducing the child to revoke consent to his or her adoption, is guilty of an offence. Maximum penalty: 25 penalty units or imprisonment for 12 months, or both." 1. The evidence demonstrates that all of the formal requirements for a consent from Jennifer which is effective for the purposes of the Act were satisfied. That evidence includes a statement from a counsellor which certifies that Jennifer received counselling in relation to: "» the legal effect of signing the instrument of consent, » the procedure of revoking consent, » the effect of the mandatory written information, » the emotional effects of adoption and » the alternatives to adoption" 1. Furthermore, the statement of a person qualified to witness her consent includes: " I certify I am satisfied that: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX First middle name/s last (full name of person giving consent) » Has been provided with a copy of the instrument of consent and the mandatory written information at least 14 days before the consent was signed; AND » Has been given ample opportunity to read the instrument of consent and mandatory written information and understands the effect of signing the consent; AND » Has been counselled within the prescribed period (not more than 30 days or less than 72 hours before giving consent) and understands the effects of giving consent; AND » Is signing the consent free from any threat, inducement or influence of the kind as set out in section 184 of the Adoption Act 2000." 1. Finally, Jennifer's consent has been properly executed and includes. "• I hereby request and authorise: » the Secretary of the NSW Department of Family & Community Services to make arrangements for my adoption. • I am under 18 years of age, I have met with a counsellor or other appropriate expert regarding my capacity to understand the effect of this consent." 1. At the heart of Hanna's case was her determination to demonstrate that Jennifer's consent was, in some way, not genuine. In final address Hanna urged the Court to find that, despite all the evidence to the contrary, Jennifer had a "secret wish" to be restored to her birth mother. It is very easy to understand why Hanna clearly wishes, with every fibre of her being, that Jennifer held such a "secret wish". However, I am satisfied well beyond the civil standard of proof that Jennifer unequivocally wishes to be adopted by Mary and that Jennifer's consent to her adoption, over and above its formal validity under the Act, is free, informed and rational. 2. In challenging the reliability of Jennifer's consent, Hanna also submitted that I should be concerned because, notwithstanding the determination with which Jennifer was said to hold her views, she had declined to address the Court directly but had appeared by solicitor and counsel. I do not think the evidence allows me to draw any inference from the course of representation Jennifer has chosen to take and, in particular, I cannot see how it says anything about the quality of Jennifer's consent. Sections 127, 128 and, especially, 129 of the Act also establish a statutory scheme which militates against the drawing of an inference of the kind Hanna urged upon the Court based upon the manner in which Jennifer chose to put her case. 3. It is clear from the terms of the Act set out in paragraph [45] above that the legislation itself establishes a regime which has as one of its purposes to ensure that a child who consents to his or her own adoption is doing so voluntarily and on an informed basis. The completion of those formalities in this case allows that inference to be drawn about Jennifer's consent. 4. However, in this case the evidence goes much further. It demonstrates that Jennifer has consistently, over a period of years, expressed a firm wish to be adopted by Mary, and not to be restored to Hanna. That same evidence supports the conclusion, and the Court finds, that Jennifer has been frustrated by how long the process has taken. Furthermore, that same evidence satisfies me that while Jennifer has warm and caring feelings towards Hanna, Jennifer loves Mary as her own mother. Consistently with that, while Jennifer looks forward to and enjoys the four contact visits per year that she currently has with Hanna and her siblings, at this time she does not want them to be longer or more frequent. 5. It is sufficient if I give only a few examples of the evidence to which I have referred in the previous paragraph. 6. In November 2015 Jennifer completed a form entitled "About my Adoption". With the question "What do I look forward to, if I am adopted?", Jennifer deleted "if" and replaced it with "WHEN". She went on to answer the question "I look forward to knowing that I am no longer having to worrying about docs [sic]. I can't wait until those adoption sheets arrive and to live with mama (Mary)". Later in the same questionnaire Jennifer answered the question "How would I feel if my adoption did not happen?" with "I don't think I would have to feel any emotion because I KNOW my adoption WILL go through. I would prefer it to happen faster but I am certain it will go through soon." 7. In September 2016, Jennifer completed another form describing how she felt about adoption. The words she used were "keen to happen quickly", "happy", "belonging and secure", "worried about Hanna appealing", "impatient", and "excited to get in [sic] over and done with". 8. For a number of reasons, including the concerns Hanna had raised about the independence of Jennifer's consent, the Court directed that Jennifer should be separately represented. The separate representative commissioned a report from Mr Brian Bembrick, a highly experienced social worker with Legal Aid New South Wales. Mr Bembrick has had a great deal of experience, primarily in the family law area, of interviewing young persons in connection with their wishes about matters such as their future care. Mr Bembrick was an impressive witness and I accept and rely upon both the evidence in his written report and what emerged from his cross-examination. 9. Mr Bembrick interviewed Jennifer in the absence of any other person. His report includes: "10. She impressed as a thoughtful, intelligent and sensitive girl who engaged well in the lengthy interview, and with whom rapport was easily established. She clearly had well thought through and considered views and wishes regarding being adopted by her current carer, Mary, and there was an absence of anxiety in her manner during our discussion. 11. Her views were clearly expressed and consistent throughout the interview, with an absence of equivocation in her responses. I felt her views and wishes should be given considerable weight given her age, maturity, and their strength and consistency. Jennifer's views and wishes regarding the following I. Her proposed adoption by Mary 12. Jennifer stated a clear desire to be adopted by Mary. In her words: "I've always wanted to be adopted. I don't think about it too much. Like, she's my Mum. I love her very, very much. I love the home I'm in, my school, my friends, my life." 13. Jennifer advised that for her, being adopted will give her even more security. "I feel I'll belong even though I already do." She continued: "It means I can finally change my name on my birth certificate. No more interviews and no more DoCS" 14. Jennifer further elaborated: "I think if I was adopted I'd feel better — like I really want to be adopted. I've always wanted it. It would just be complete." … II. The proposed contact in the Adoption Plan with Hanna 16. Jennifer confirmed her agreement with the proposed outline of contact with Hanna in the Adoption Plan. She was shown the copy of the document signed by her on the 22 March 2017 and agreed with the plan concerning contact. I read the detail in the plan concerning contact with Hanna to Jennifer, and she responded: "Yes, that's fine. Nothing needs to be changed." 17. Jennifer told me that the level of contact feels "right" for her. She continued: "I think as I got older I had more work to do, things to do. I think it's better that we have contact four times a year. It's spaced out a bit more." 18. Jennifer said the existing four contacts a year is: "It's great, it's good." … IV. The proposals in the Adoption Plan for identity and cultural heritage and religious upbringing including the changing of the name from "XXX" to "XXX." 23. Jennifer told me that she is very clear that she wants to be raised as Catholic. In her words: "I went to a Catholic primary school since year 1 and I'm in a Catholic high school now. I learn about religion at school. Sometimes we go to church. I also go to Jewish events involving Natalie. I feel I know both religions. I'm comfortable with being Catholic." … 2. Jennifer's views and wishes in relation to: a. Hanna's application for Jennifer to be restored to her care 26. Jennifer emphatically opposed any application by her mother for her restoration. In her words: "I don't want to ever be restored in her care for obvious reasons. I don't think I would where I am with knowledge, education, learning, health, clothes, everything, I don't think I would be brought up properly. I never would think of going back, and I wouldn't." 27. Jennifer continued in a similar way: "I mean, like, I'm happy where I am, Mum (Mary) does everything for me. She makes sure I'm healthy, makes me proper meals, she's the best. I love her very much. I feel secure with her." … 3. Whether in your opinion there are any factors which would impact the weight the court places on Jennifer's views or wishes 30. As noted, Jennifer in an intelligent, mature and thoughtful girl. She has been in the placement with Mary since August 2010, and described a strong attachment to her during the interview. She feels safe and secure and very emotionally connected to Mary. She is very clear in her mind that she wants to be adopted by Mary and appears to understand the implications of this. 31. Jennifer has also had a great deal of time to consider her position on the question of adoption, at least the past couple of years. She has been interviewed by multiple people, including DoCS workers, solicitors and myself. She has described a consistent wish to be adopted by Mary. 32. At the conclusion of the interview she was asked to rate her certainty about wanting to be adopted using a ten point scale, with "1" representing "not sure" and "ten" representing "very, very, sure" — she immediately responded that she was: "ten out of ten" sure." 1. Two other important matters emerged from Mr Bembrick's cross- examination by Hanna. I should record that Hanna's cross-examinations, like her presentation throughout the entire hearing, were courteous and thoughtful, although suffused from time to time with understandable nervousness and a degree of emotion. 2. First, Hanna took Mr Bembrick to task for the fact that he had not expressly asked Jennifer whether her consent and the various opinions she expressed in the interview were genuinely her own. Mr Bembrick's response was that it was not necessary for him to do so: by reason of his training and experience he was astute to the possibility that a young person may have been coached or otherwise coerced and that, if he saw signs of this, he would explore it. I accept his evidence that, during the course of their interview, Jennifer displayed no such signs. 3. Next, Hanna put a number of alternative theories to Mr Bembrick and the other witnesses (see paragraphs [62] and [65] below) to explain how Jennifer may have been influenced in her decision making. These included guilt, trauma, being adversely influenced by people who are badly disposed to Hanna, being coached in her answers, and that Jennifer was simply trying to please Mary or other adults in her life. This line of questions produced this evidence from Mr Bembrick (which I accept): "Q. Deep in her heart do you feel there is a chance that she has a longing for — to be reunited with the mother that gave her life and that she sadly has been deprived of for nearly a decade? A. No — Q. Deep down in her heart do you think there could be a hidden wish that she's scared to expose because of the consequence of hurting the foster mother that she loves, obviously? A. Look, I — as I said, I, I didn't get that sense from her, that she was conflicted in any, any way about this decision. It seemed very clear from what she said that this is something that she has been wanting for a number of years and I — there was no, no evidence from what she said or her presentation that she was conflicted in any way." 1. Finally, Ms Barnett elicited the following evidence from Mr Bembrick in cross-examination, which I also accept: "Q. Of course a restoration to her mother would be incredibly destabilising for her? A. Yes, that's correct. Q. What sort of outcomes are possible if a restoration is made and it was as destabilising? A. Well, frankly a restoration would not work with this girl, in my mind. She's — she knows her own mind, she, she impressed me as being — even though she's a quiet and thoughtful girl, she is also I think quite assertive and I, I just cannot, from the presentation, from, from the way she presented at the interview, even imagine her cooperating with a restoration to her mother. If that were to happen though, I would think it would not be lasting and I would think that she would vote with her feet and simply return to her carer's care. That would be my opinion on the likely outcome. I think it would be emotionally devastating for her to — for that to happen." 1. Hanna also cross-examined Ms Karen Simes, a senior project officer with FACS who had provided an updating affidavit in the proceedings by reference to FACS' records in relation to Jennifer. Ms Simes confirmed that Hanna had been compliant with all of FACS' requests and that to her (Ms Simes') knowledge and personal experience, Hanna had behaved very appropriately in all her dealings with FACS concerning the proposed adoption. However, Ms Simes also made it clear that it was her understanding that Jennifer very clearly wanted to be adopted and that "Jennifer has also been conscious that in saying that to you [Hanna] that may come across as quite hurtful, but she is still very clear she wants to be adopted by Mary". Ms Simes also gave evidence, which I accept, that she did not agree that Jennifer's consent was the product of any conditioning or the like; that in her opinion failure to make an adoption order would leave Jennifer distressed and angry; and, that Jennifer wanted FACS (especially the regular visits by officers to her home) "out of her life". 2. The third witness Hanna cross-examined was Ms Penny Haskins, the adoption assessor who had prepared a report under s 91 of the Act. This had involved Ms Haskins interviewing Mary and Jennifer and each of Hanna, Jennifer and Mary over a period of 15 months between 2015 and 2016. 3. The evidence included this exchange: "Q. Penny, I was actually going to ask you something. That is, do you think in your heart Jennifer loves me as the birth mother? A. What I know, because Jennifer has told me, is that she cares about you and that she cares that you are happy and that you are well and that you are okay. I also know that she really wants to see you. She likes to see you and I — Mary has told me that independently and she has told me herself. I don't know. I have not said ever to her, "Do you love your mum", meaning you, her birth mum. I have not asked her that question so I can't say that she has said that she loves you, but what she has demonstrated to me is a continuing care about you and for you and I think that that's important and actually quite remarkable for a girl who has, you know, lived through what she's lived through. She still wants to see you and she's a teenage girl and she's got every reason to have all sorts of other things she wants to do, but she still wants to see you. So, I think that that, for me that says it's a strong feeling of, of, of connection, I think. Yes, I do think that, but I can't say to you, Hanna, that she has said to me, "I love Hanna" because I have not asked her that question." 1. When questioned further by Hanna, Ms Haskins said that she (Ms Haskins) had "every reason to believe that you [Hanna] do unconditionally love [Jennifer]". However, when Hanna asked Ms Haskins about the latter's views concerning the possibility of Jennifer being restored to Hanna, this exchange ensued: "Q. But there is a chance she could be returned to me and adapt naturally as the natural birthparent? We don't know that as we can't see that but you don't know until you give it a try right? A. And that — I guess that's right Hanna Q. So you can't compare something A. but why would I risk — why would I want to put at risk this girl's security and sense of herself for an experiment? I know that's what you'd like but that's not my job — this is why my job's difficult Hanna, that's not what's right for this little girl. This young girl. It's not right for her, to upend her life to make it better for you. I can't do that. That's not — I have to be child focused. Do I feel your pain? You know I do, but I can't, I can't make it better by upending her life. That's not my job, it's not my right. That's what I think Hanna. That's what I really think, and you know I think that." 1. I accept that evidence, particularly from a witness such as Ms Haskins who made it clear that she respected and felt concerned for each of Hanna, Jennifer and Mary. In cross-examination by Ms Dart, Ms Haskins gave her opinion that Jennifer's expression of desire to be adopted was very much Jennifer's own and not the product of outside pressure or anything similar. Her evidence (which I accept) was that she had "formed the view that I think Jennifer would like her view to … hold much more weight than anybody else's. She's … very strong — "why aren't people listening to me?"". What order should be made? 1. There was no suggestion that any of the formal requirements under the Act which are conditions precedent to an adoption order being able to be made had not been satisfied. I find that all such formal requirements have been proven. The essential issue in dispute was what order would be in Jennifer's best interests? The Court's conclusion that an adoption order is in her best interests represents the acceptance by the Court of Ms Barnett's helpful and thorough submissions as adopted and supplemented by Ms Dart. As might be expected, those submissions reflected, in particular, the provisions of ss 8(1)(a) and (2) of the Act. Section 8(1)(a) — best interests of the child both in childhood and later life, must be the paramount consideration 1. In dealing with this consideration, s 8(2) of the Act makes mandatory as the first consideration of the decision maker in determining the best interests of the child "any wishes expressed by the child". For the reasons and by reference to the evidence which I have set out above, I am well satisfied that Jennifer has a strong wish, which is free, informed and rational, to be adopted by Mary. There is no evidence which would enable the Court to accept Hanna's submission that Jennifer has a "secret wish" to be restored to Hanna. The evidence points decisively to the contrary conclusion. 2. However, in case the matter goes further, I should make plain that I do not consider even a strong expression of wishes to be determinative of the application. In my respectful view, on the proper construction of the Act, even a strong wish by a child to be adopted is no more than a very important factor among those matters which the Act requires a decision maker to take into account. This was the construction advocated by Ms Barnett and Ms Dart. 3. Section 9 of the Act provides for the participation of the child in decisions. The importance of a child's consent is apparent from the fact that, after living with the proposed adoptive parent/s for at least two years, a child may give sole consent to his or her adoption if the child is "12 or more years of age and of sufficient maturity to understand the effect of giving consent" (s 54(2)). Section 55 of the Act requires the counselling and certifications referred to in ss 61 and 63 and prohibits the making of an adoption order in relation to a child over the age of 12 and less than 18 unless the child consents to his or her own adoption. That consent can only be dispensed with if the child is not capable of "properly considering the question of whether he or she should give consent" (s 69(1)). The importance of the fact that the consent must be free of undue influence is demonstrated by the offence created by s 184(2) of the Act. 4. Despite all these statutory indicators of the importance of the considerable weight to be given to the consent of a child to his or her own adoption, I respectfully remain of the view that such a consent is not absolutely determinative of the question. So much may be demonstrated by two considerations. 5. First, s 8(1)(d) of the Act provides that (emphasis added) "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". "Due weight" is not absolute weight. 6. Second, as any parent or teacher knows, in some circumstances even the rational wishes of a child are not in the child's best interests. That is a judgment which a parent, teacher or, in this case the Court, is familiar with having to make on a child's behalf. Sometimes that decision must be made notwithstanding, and in anticipation of, the strongly expressed objection of the child. 7. So it is in this case that I have not overlooked the possibility that something other than adoption may be in Jennifer's best interests, despite her wishes and notwithstanding that it may result in disappointment, frustration or even stronger emotions in Jennifer. Nevertheless, I have considered that possibility only to reject it immediately. I am unable to identify any countervailing benefit to Jennifer of a course other than adoption which outweighs the emotional disturbance that I am well satisfied she would suffer if an adoption order is not made. I respectfully adopt Ms Haskins' conclusion that to restore Jennifer to Hanna on any basis would be an experiment the only benefit of which would be to make Hanna feel better while putting Jennifer's wellbeing at risk. Section 8(2)(b) — the child's age, maturity, level of understanding etc. 1. All of the evidence, but for present purposes most notably Mr Bembrick's, establishes that Jennifer is of an age and has the necessary maturity and level of understanding to appreciate the significance of what is occurring and the importance of any wishes she may express on the topic. In this case, the expression of wishes by someone like Jennifer should, in my respectful opinion, be given effect unless there are the most compelling reasons — reflecting her interests and not those of any other person — to the contrary. No such reasons exist in this case. Section 8(2)(c) — the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity 1. Jennifer has been with Mary for half of the most formative years of her life. She regards Mary as her mother and sees herself as part of Mary's family unit. Jennifer is well settled, feels secure and is flourishing intellectually and emotionally in Mary's care and at the school which she (Jennifer) is attending. She has a well-established network of friends. 2. In the preliminary hearing Hanna told the Court that she would move Jennifer to a new school, closer to where they would both be living. I conclude that to do so would be contrary to Jennifer's best interests. In final submissions Hanna suggested that she might be able to persuade one of her brothers to provide funds to enable Jennifer to continue at her present school. However, notwithstanding their general expressions of support for Hanna, there is no evidence that either of her brothers would be prepared to do so. There is no basis on which the Court can conclude that Jennifer remaining at her current school is a realistic possibility if Jennifer were to be restored to Hanna. Section 8(2)(e) — any wishes expressed by either or both of the parents of the child 1. I have given anxious consideration to Hanna's desire to have Jennifer restored to her. For the various reasons set out in this judgment, I am unable to give Hanna's perfectly understandable wishes decisive weight in determining the paramount consideration of what is in Jennifer's best interests. Section 8(2)(g), (h) and (i) — (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 1. I have already drawn attention to the fact that Jennifer regards Mary as her mother. There was no issue, even from Hanna, that Mary was suitable and capable of caring for Jennifer. 2. At this point I should record that, in terms of comparing the material circumstances of Hanna and Mary, the only matter to which I have given some small weight is the respective security of tenure which each of Hanna and Mary has over their respective accommodation. Mary owns a large and suitable home, albeit subject to a mortgage to the bank. Hanna depends upon the goodwill of her brothers and has no security of tenure in relation to her apartment. This is far from ideal. Nor is the fact that it is only a one-bedroom apartment (and notwithstanding Hanna's commendable intention to give most of that one-bedroom to Jennifer). 3. The reason I have given the accommodation issue only slight weight is that, in my view, if all things are equal (which is not the case here), the relative material circumstances of birth parents versus proposed adoptive parents ought not be the determinative consideration in the exercise of the Court's discretion to make an adoption order. In making this observation I am not to be taken as laying down a general rule: each case falls to be determined on its facts. However, when it is understood that, in general, the law prefers the outcome that children should be raised by their birth parents (see paragraph [82] below), the fact that they are to be raised in a cottage rather than a castle should not predetermine the outcome, or leave the less well-off birth parents feeling that they have been discriminated against on economic grounds. Section 8(2)(k) and s 90(3) — adoption clearly preferable in the best interests of the child 1. Ms Barnett and Ms Dart drew to my attention this observation by Brereton J in Adoption of RCC and RZA [2015] NSWSC 813 which I respectfully adopt: "69. The birth mother propounds restoration, in the future if not immediately, as an alternative. Moreover, because of the permanency of an adoption order, and the general preference based in human nature and experience that, where practicable, children are best raised by their birth parents, the Court must in any event consider that once an adoption order is made, the possibility of restoration is practically foreclosed, and future decision-making in respect of the children is vested in the adoptive parents. However, although I have previously suggested that the Court would not likely make an adoption order if there were a realistic prospect of restoration [see, for example, Adoption of NG (No 2) [2014] NSWSC 680, [83]], on reflection that overstates the position, which is more accurately stated as that the Court would not make an adoption order unless satisfied that the advantages of adoption clearly outweighed the benefits of preserving the possibility of restoration." 1. In this case I am satisfied by reason of all of the evidence to which I have referred above, that there is no possibility of restoration to be preserved and that the advantages of adoption clearly outweigh any other course, including maintaining the status quo, in the best interests of Jennifer. Jennifer does not want to be restored to Hanna and wishes to be adopted as soon as possible by Mary. To this must be added the adverse consequences for Jennifer's wellbeing were an adoption order not to be made and in particular, if she were to be restored to Hanna. Adoption is the only course available that will give effect to Jennifer's desire that her current social and psychological reality (that Mary is her mother and that together they are a family) should also become the legal reality. 2. For the same reasons referred to in the preceding paragraph, I also reject Hanna's suggestion of a 25:75 joint custody arrangement between herself and Mary. Such an arrangement could not possibly be in the best interests of Jennifer. I infer from the evidence of Mr Bembrick, Ms Simes and Ms Haskins (see paragraphs [57] to [65] above), that even a limited form of restoration as opposed to complete adoption by Mary would have serious, adverse emotional consequences for Jennifer. Such an arrangement could not be ordered under the Act. However, if it be accepted that it could be made by this Court under the Family Law Act 1975 (Cth), I have no doubt that it would not be in the best interests of Jennifer because it would represent the worst of all possible worlds. Jennifer would be left in a kind of limbo, the only possible purpose of which would be to give Hanna some comfort, notwithstanding that her interests are simply not a material consideration under the Act when compared to those of Jennifer. 3. I also accept Ms Barnett's and Ms Dart's submission that another advantage of an adoption order over any other option is that it will end Hanna's ability to make applications under the Care Act in relation to Jennifer. Hanna herself recognised that this would be a consequence of an adoption order (see paragraph [40] above). As is apparent from paragraphs [19] to [29] above, Hanna is not afraid to make court applications of various kinds in an endeavour to recover her children. While the evidence of direct adverse effect on Jennifer of such applications was thin, I accept that, particularly as she grows older, she will undoubtedly be aware of such applications and the possibility that they may result in her being restored to Hanna. I infer from Mr Bembrick's evidence that even to be aware of such a possibility is contrary to the best interests of Jennifer as it would threaten her sense of the stability and security she so obviously values with Mary. I therefore accept the submission that one advantage, albeit not in and of itself determinative, of an adoption order is that it would foreclose all other legal avenues that are otherwise open to Hanna to have Jennifer restored to her, other than an appeal from this decision itself. Conclusion 1. The Court will make an adoption order for Jennifer in favour of Mary. 2. In relation to the adoption plan, and largely due to the weight which the Court considers should, in this case, attach to Jennifer's wishes, the Court rejects Hanna's submission for a minimum of monthly contact. There was no dispute that the current four times a year visits that have been taking place have worked well and that Jennifer looks forward to them. In rejecting Hanna's submission, the Court notes that the four times a year postulated by the proposed adoption plan is a minimum. It is always open to Hanna and Jennifer to agree to more frequent contact. 3. In the same vein, the only matter which the Court will alter in the proposed adoption plan is to make it clear that after any of the visits contemplated by the adoption plan, it is permissible for Hanna and Jennifer to spend time together without Mary present, provided that Jennifer consents. The Court will order that plan to be registered in its amended form. 4. The Court will give the Secretary an opportunity to bring in a form of orders reflecting these reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2018