The Secretary, New South Wales Department of Family and Community Services v Zara [2018] NSWSC 580

Supreme Court New South Wales

Medium Neutral Citation: The Secretary, New South Wales Department of Family and Community Services v Zara [2018] NSWSC 580 Hearing dates: 8, 9 February 2018; written submissions 26 February, 1 March 2018 Date of orders: 03 May 2018 Decision date: 03 May 2018 Jurisdiction: Equity - Adoptions List Before: Kunc J Decision: Consent of birth parents dispensed with; adoption order made Catchwords: FAMILY LAW AND CHILD WELFARE — child welfare under State legislation — adoption — child living with proposed adoptive parent continuously since age two — Adoption Act 2000 (NSW), ss 8, 67 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 Application of A: re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 The Secretary, New South Wales Department of Family and Community Services v Hanna [2018] NSWSC 77 Category: Principal judgment Parties: The Secretary, New South Wales Department of Family and Community Services (Secretary) Zara (Defendant) Representation: Counsel: S Christie (Secretary)

Solicitors: Crown Solicitor (Secretary) Zara (In person) File Number(s): A125/2016 Publication restriction: No

Judgment

Summary 1. By amended summons filed on 25 November 2016, 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 Evie in favour of Penny. Zara, Evie's birth mother, opposes the adoption. 2. Ms S Christie of Counsel appeared for the Secretary. Zara appeared for herself. Other than Counsel and the departmental and expert witnesses, the names of the central participants in these reasons are pseudonyms. No disrespect is intended by the use of given names. 3. Evie was born in 2007. She is now 10 and a half years old. She was placed with Penny in 2009, when she was about one and a half years old. She has lived continuously with Penny for most of her life. The Secretary submitted that restoration to Zara was not possible and was not in Evie's best interests. This was because of, first, the length of time in which Evie had been in Penny's care and the strength of Evie's consequential attachment to Penny and, second, because Zara was not capable of providing the safe, stable and nurturing environment a child requires. To that end, the Secretary submitted that Zara's consent to the adoption should be dispensed with pursuant to s 67(1) of the Act, and that an adoption order should be made in favour of Penny for Evie. The Secretary also sought an order dispensing with Evie's birth father's consent because his identity was unknown and reasonable inquiries had yielded no information about his identity or whereabouts. 4. For her part, Zara passionately advocated that Evie should be restored to her care. She submitted that Penny was emotionally abusing Evie or was at least "brainwashing" Evie and causing her (Evie) to detach from Zara; that the adoption agency was facilitating this process of "brainwashing"; that there was insufficient evidence to support the assertion that Evie was scared of Zara (which was a contributing factor in contact ceasing in 2014); that her (Zara's) fitness to parent should not be judged on an historic incident of poor parental judgement (see paragraph [24] below); and, that she was capable of providing Evie with adequate parental care and support but had been deprived of the opportunity to do so. 5. Zara also submitted that if the Court did decide to make an adoption order, the proposed contact plan was not appropriate or sufficient (see paragraph [8] above). She said she found the proposed contact arrangements confusing because she did not understand why a controlled environment was necessary for contact, particularly if both she and Evie were to undertake counselling before contact would be resumed. Zara also objected to any contact plan that required her to travel from her current location because of "unreliable" public transport. 6. The Court's fundamental task is to decide what is in Evie's best interests, both now and in later life. In this case, the Court is well satisfied that it is in Evie's best interests to be adopted by Penny, and that adoption is clearly preferable and in Evie's best interests compared to any other measure available at law, including maintaining the status quo. 7. In reaching the conclusion expressed in the preceding paragraph, I have considered the steps taken by Zara to improve her situation (including relocating from her previous troubled domestic circumstances) and to demonstrate her fitness to resume her parenting role. I have also taken into consideration that Evie's half-brother, Byron, self-restored to Zara for a period of time after he had spent about 13 years in foster care. However: 1. the length of time that Evie has been continuously in Penny's care (since 2009 when Evie was about one and a half years old); 2. that Evie has established a stable relationship with Penny, whom Evie identifies as her mother and principal caregiver; 3. the length of time (about three and a half years since late October 2014) during which there has been no contact between Evie and Zara, and that Evie has no recollection of ever living with Zara; 4. that Evie is settled with Penny at home and at school, and is progressing well developmentally in Penny's care; 5. the emotional, physical and geographic upheaval which Evie would experience if she were restored to Zara's care; and 6. the desirability of bringing litigation in relation to Evie to an end, all clearly support the conclusion the Court has reached. 1. In relation to the ancillary orders sought by the Secretary, having determined that adoption is in Evie's best interests, the Court is also satisfied that dispensing with Zara's and the birth father's respective consents to the adoption is also in Evie's best interests and the Court will make those orders. The Court will also approve the registration of the proposed adoption plan which was revised on 9 February 2018 (the "amended adoption plan"). The amended adoption plan allows for a minimum of four supervised contact visits to occur between Evie and Zara each year to commence in the near future if possible, and with scope to increase contact should Evie desire.