The Secretary, New South Wales Department of Family and Community Services v Richard and Bassett [2018] NSWSC 1423

Supreme Court New South Wales

Medium Neutral Citation: The Secretary, New South Wales Department of Family and Community Services v Richard and Bassett [2018] NSWSC 1423 Hearing dates: 6 April (preliminary hearing); 3, 4 September 2018 Decision date: 20 September 2018 Jurisdiction: Equity - Adoptions List Before: Kunc J Decision: Consent of birth parents dispensed with; adoption and related orders to be made Catchwords: FAMILY LAW AND CHILD WELFARE — child welfare under State legislation — adoption — child living with proposed adoptive parents continuously since infancy — 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 NG (No 2) [2014] NSWSC 680 Category: Principal judgment Parties: The Secretary, New South Wales Department of Family and Community Services (Plaintiff) L Richard (Defendant) M Bassett (Defendant) Representation: Counsel: M Barnett (Plaintiff)

Solicitors: Crown Solicitor (Plaintiff) L Richard (In person) M Bassett (In person) File Number(s): A177/2017 Publication restriction: No

Judgment

Summary 1. These proceedings concern the future of Henry. He is now five and half years old. The plaintiff (the "Secretary"), the Secretary of the NSW Department of Family and Community Services ("FACS"), applies for an order for the adoption of Henry by Julian and Olivia by Summons filed 28 November 2017 under the Adoption Act 2000 (NSW) (the "Act"). Julian and Olivia have cared for Henry since he was three weeks old. 2. The defendants, Lillian and Malcolm, are Henry's birth parents. They oppose the adoption. To their credit, they make no secret of the fact that their substance abuse and mental health issues justified Henry being taken into care when he was born. However, they say that they are now drug-free and that their lives have undergone a complete, positive transformation, supported by the Seventh-day Adventist church community to which they now belong. 3. Lillian and Malcolm argued that they are confident that their lives will continue to improve to the point that Henry could be restored to them. To keep that possibility alive they submitted that only a guardianship order should be made in favour of Julian and Olivia. Lillian and Malcolm have not consented to Henry's adoption and the Secretary seeks an order under the Act that the requirement for their consent be dispensed with. 4. But for the matters raised by Lillian and Malcolm, there would have been no issue that the making of an adoption order is in Henry's best interests. As the case was argued, the outcome turns on two questions. 5. First, is there a realistic prospect of Henry being restored to his birth parents? If the answer to that question is "no", the expert and lay evidence all points to the conclusion that adoption by Julian and Olivia is in Henry's best interests. If the answer to that question is "yes", the second question is which outcome is in the best interests of Henry: adoption or a guardianship order? 6. The Court is satisfied that there is no realistic prospect of Henry being restored to his birth parents. There is no doubt that Lillian and Malcolm have tried very hard — and have to some extent succeeded — to improve their lives. Nevertheless, even if the Court accepts that they are now drug-free, their circumstances in life remain precarious. The evidence they have presented does not enable the Court to conclude that in the foreseeable future their circumstances will have improved sufficiently to make Henry's restoration to them a realistic option. 7. When their current, albeit improved, circumstances are weighed against the clear evidence of, first, Henry having bonded strongly with Julian and Olivia (the only parents Henry has ever known) and, second, the deleterious psychological effect on Henry of being restored to his birth parents, the Court is well satisfied that it is in his best interests to be adopted by Julian and Olivia. 8. With the exception of the Secretary's witnesses and Counsel, all of the names in this judgment are pseudonyms. No disrespect is intended by the use of given names. 9. Ms M Barnett of Counsel appeared for the Secretary. Lillian Richard and Malcolm Bassett appeared for themselves, with Lillian taking on the role of advocate for herself and Malcolm.