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. Procedural history 1. This matter was first before me in March of this year. There have been multiple pre-trial directions hearings and communications with the Court since then. At each hearing, Lillian and Malcolm informed and assured the Court they were endeavouring to obtain legal representation and to prepare for the upcoming hearing. The Court carefully explained the process in contested adoption proceedings and what preparation, materials and information would be required at the preliminary hearing. The Court was also informed that Lillian and Malcolm were simultaneously participating in Children's Court proceedings in relation to their baby daughter, Ariel, who was removed immediately into care upon her birth earlier this year and remains in care. That trial is to commence on 19 September 2018. 2. At the preliminary hearing on 6 April 2018, the defendants were again self-represented. They informed the Court that the lawyer they approached did "not do this type of case". They had not yet approached an alternative lawyer or applied for legal aid. They confirmed they intended to make a legal aid application by the end of the week and were content to proceed without representation at that hearing. The Court examined Lillian and Malcolm concurrently. Lillian and Malcolm indicated that there were five or six witnesses they intended to cross-examine at the substantive hearing and that they wished to keep open the possibility of obtaining a further psychological report in relation to Henry. As will be seen, none of this in fact happened. 3. On that occasion the Court ordered: "1. Any supplementary evidence from the Plaintiff is to be served on or before 11 May 2018. 2. The Defendants' affidavit evidence is to be served on or before 23 July 2018. 3. Any affidavit evidence in reply and an outline of submissions is to be served by the plaintiff on or before 13 August 2018. 4. The Defendants are to serve an outline of their submissions on or before 27 August 2018. 5. The plaintiff is to prepare a Court Book which is to be served and filed with the Associate to Kunc J on or before 30 August 2018. 6. The proceedings are fixed for a three day hearing commencing on 3 September 2018. 7. The proceedings are listed for directions before Kunc J on 30 July 2018 at 9.30am." 1. The defendants did not comply with order 2. At the follow-up directions hearing on 30 July 2018, they explained that they "totally forgot about 23 July because we have been in and out of court for our baby at the moment", that they were still in the process of obtaining legal representation for these proceedings and that they had not yet prepared the evidence in these proceedings. The matter was adjourned for a week to accommodate the defendants with the following notation: "[T]he defendants are endeavouring to obtain legal representation but they have been informed by the Court that whether or not they have representation they must be in a position to tell the Court at the next directions hearing what evidence they wish to file and how long it will take to prepare." 1. At the next directions hearing on 6 August 2018, Lillian and Malcolm reported that they were still unsure if they would have legal representation at the substantive hearing and were still in the process of preparing evidence. However, Malcolm had sent to the plaintiff an affidavit filed in the Children's Court proceedings upon which the defendants sought to rely. It appears that they do have a lawyer in the Children's Court proceedings. They agreed they would be able to finalise evidence by the following week. The date for filing of defendants' evidence was extended to 13 August 2018 with the plaintiff's submissions and evidence in reply due by 20 August 2018. The meaning of those orders and the "next steps" were clearly explained to the defendants. 2. Despite their assurance, no further evidence was filed or served by the defendants for the substantive hearing. 3. The substantive hearing took place on 3 and 4 September 2018. On the first day of the hearing, Lillian and Malcolm appeared (again) in person. Lillian and Malcolm assured me they had communicated with a solicitor but they could not confirm whether the solicitor had submitted an application for legal aid. Lillian and Malcolm said that they had not read the materials and had not determined who they would cross-examine. I enquired whether Lillian and Malcolm would like to make an application for adjournment. That application was made and refused because the Court was of the view that they had had more than ample opportunities to prepare for the hearing and that further delay in such matters was not in Henry's best interests. However, the plaintiff did not oppose the matter being adjourned for the day to allow Lillian and Malcolm to read the relevant materials to prepare to represent themselves the following day. The Court again stressed to the defendants the importance of not causing further delay to the proceedings, particularly given the matter's history and the leniency the Court had already afforded the defendants. 4. The hearing proper commenced on the second day. Lillian briefly cross-examined the Lanes and Ms Todd, the Adoptions Assessor who prepared the section 91 report in relation to Henry. Ms Todd was an impressive witness. Her responses in cross-examination were detailed, considered and respectful towards Lillian and Malcolm. I accept her written and oral evidence. Ms Barnett cross-examined Lillian and Malcolm. The facts 1. With the exception of allegations against Malcolm of sexual abuse (which were denied), there was no dispute about the facts. Henry's family and child protection history 1. Henry was born on 4 March 2013. He was placed in the Lanes' care on 25 March 2013 and has lived with them continuously since that time. He is of Anglo Australian/New Zealand heritage. Henry is somewhat linked to the Lane family already. His father's sister (paternal aunt) is the partner of his proposed adoptive father's brother. 2. Henry has two full-siblings: Nate (born 2011) and newborn Ariel Bassett (born 2018); and four maternal half-siblings (the "Frederick children"): Sienna (born 2003), Duncan (born 2005), Celeste (born 2006) and Julius Fredrick (born 2007). He also has two paternal step-siblings: John (born 2000) and Emilia (born 2001). Parental responsibility for all of these children, other than John, has been allocated to the Minister for Family and Community Services (the "Minister"). Nate has been placed in his paternal grandparents' care. Henry has regular contact with Nate and his paternal grandparents, who have indicated they support Henry's adoption by the Lanes. 3. Prior to Henry's birth, FACS received three risk of harm reports relating to Lillian's pregnancy between December 2012 and March 2013. An initial safety assessment in relation to the unborn Henry was undertaken on 13 February 2013 which concluded it was unsafe for Henry to leave the hospital with Lillian and Malcolm. On 4 March 2013, an order for Henry's assumption into care was served at the hospital in which he was being delivered. Henry was assumed into the care of the Minister shortly after birth by order of the Children's Court. Lillian and Malcolm were legally represented at those proceedings. A family placement was unable to be obtained for Henry and, on 25 March 2013, Henry was placed with the Lanes. Final orders allocating parental responsibility for Henry to the Minister were made on 24 September 2013 with some aspects of parental responsibility to be jointly exercised by the Minister and the Lanes, and other aspects to be solely exercised by the Lanes. Contact visit history 1. In the final orders of September 2013, Lillian and Malcolm gave an undertaking not to attend contact visits intoxicated by drugs or alcohol or to attend contact without prior written approval from the Department. Contact has generally occurred four times a year in accordance with the orders, except in 2016 when Lillian and Malcolm missed scheduled visits. Reports indicate contact has been mostly positive, particularly as between Henry and Lillian. The Lanes began attending supervised contact in 2014 and have generally been actively involved and supportive. 2. Over the years, Lillian and Malcolm have missed contact visits and, though efforts were made to reschedule, there have been issues communicating with Lillian and Malcolm. In 2016, Lillian and Malcolm only attended two of the scheduled four contact visits and concerns were raised that Malcolm may have attended contact under the influence of drugs. Lillian and Malcolm cancelled a contact visit scheduled for December 2016. 3. Reports of contact visits in 2017 have been more positive and included the attendance of John and Nate. 4. Henry's sibling contact visits have mostly been positive. Henry and Nate in particular are noted to have developed a strong bond. Contact between Henry and the Fredrick children was suspended in January 2016 following disclosure of inappropriate sexualised behaviour between the Fredrick children. Contact was successfully resumed in February this year. Lillian and Malcolm 1. Lillian is 31 years old. She is currently a carer for Malcolm and receives a carer allowance of about $800 a fortnight. Malcolm is 37 years old. He is currently self-employed as a car detailer on a casual basis and receiving Newstart allowance/welfare payments of about $460 fortnightly. 2. Lillian and Malcolm commenced their relationship in late 2007. Lillian and Malcolm have between them nine children, all of whom have been in departmental care at some point. Until late 2007, Lillian was in a long-term relationship with the father of four of her children (the Fredrick children). It was during this relationship that her illicit drug use began. 3. In about 2010, Malcolm sustained a serious back injury at work for which he received a lump sum settlement in 2015. He underwent back surgery in 2011. Unfortunately, the procedure was not entirely effective and he continues to suffer substantial pain. He attributes his illicit drug use in part to the considerable back pain he was suffering. Malcolm is now managing his pain through more conventional medicine. He began seeing a psychologist earlier this year. 4. In late 2015, Lillian and Malcolm became involved with the Seventh-day Adventist church. They say the support provided by the Church allowed them to become completely drug-free towards the end of 2017. They have also been encouraged to attend church-run parenting and personal development courses, as well as an anxiety and depression recovery course. They say they plan to marry in November 2019. 5. Lillian and Malcolm have recently started delivering catalogues from which they earn a variable income of between $70–$130 per week. They also operate a mobile car detailing and/or car wash service with a varying but minimal weekly income. They estimated their weekly expenses at about $460, meaning their expenditure is often greater than their income. They have no savings and have historically displayed an inability to maintain rental tenancies because of their financial instability and unpaid rent. 6. Lillian and Malcolm live in a rented one-bedroom apartment with a small backyard and attached to a service station. The rent is about $300 per week. At the time of the preliminary hearing, Lillian and Malcolm were sleeping on a sofa-bed in the lounge room and their daughter, Emilia, was occupying the bedroom. They accepted that this was not a suitable living arrangement to which Henry could be restored. By the time of the substantive hearing, Emilia had moved out of the apartment and Lillian and Malcolm said that, if Henry were restored to their care, he would occupy the single bedroom and Lillian and Malcolm would again use the lounge room sofa-bed. 7. Lillian and Malcolm both admitted that there were historic incidences of domestic violence in their relationship, resulting in incidents of both verbal and physical abuse. In 2011, Malcolm was charged with physically assaulting Lillian and an AVO was granted protecting Lillian and the children. Malcolm's affidavit evidence is that "Ice particularly made me snappy and I now enjoy now being able to manage my emotions." More recently, in early 2016, verbal altercations between Lillian and Malcolm were reported to the police. 8. FACS has had a long involvement with Lillian and Malcolm. They have a history of being unable to provide their children with a safe living environment or stable accommodation. There are multiple documented incidences of "high levels of chronic neglect including serious medical neglect, lack of food and clothing, inappropriate housing and emotional neglect" particularly in relation to Lillian and Malcolm's older children, as noted in the May 2018 Safety Report. Julian and Olivia 1. Mr and Mrs Lane are both 39 years old. They have been married for 15 years. The Lanes have two biological children: Belinda (born 2004) and Robert (born 2007). Olivia works as an out-of-home care case worker and intake and administration assistant in the family support programme with a social services provider. She is currently completing a Diploma in Community Services. As at February 2018, her net weekly income was $1,100. Olivia is individually making repayments of $388 monthly on her car which is valued at about $16,000. 2. Julian is self-employed as a Rural Property Maintenance Contractor. As at February 2018, his net weekly income was $1,550. He has personal liabilities (being a car and personal loan) for which he makes monthly repayments of $1,362. He has personal assets of about $77,500, being vehicles and farming machinery. The Lanes also receive a care allowance in relation to Henry (which will cease in the event of adoption). 3. The Lanes live in a medium-sized, three-bedroom house with a large verandah and backyard. The house sits on a 118-acre property with five damns and livestock. Their home is about 10km from Henry's school and other services such as his GP. The Lanes (with Mr Lane's parents) are in the process of repaying a mortgage over the home. The repayments are $225 weekly ($900 a month). Their combined joint assets are $598,000. The Lanes are both Anglo-Australian and of the Anglican faith but do not attend church services. Though they do not intend to raise Henry in any religious tradition, they have said that they are happy for him to pursue that through his schooling and support his choices in that regard as he grows. 4. There was no suggestion from the birth parents that the Lanes were not suitable parents or had not cared well for Henry to date. Ms Todd reported that when she asked Lillian what "her general view of Henry's placement with Olivia and Julian was, Lillian stated, "I believe he is looked after. He's usually happy. I'm not saying too much because I don't want it to go in their favour"." 5. The Lanes have continuously been supportive of contact between Henry and his birth parents and siblings and have committed to continuing to facilitate that contact. Julian stated "My attitude towards birth family contact is that they are Henry's family. He needs to know who they are and be able to have a relationship with them. Henry's birth mother, Lillian, tries really hard and has attempted to have a good relationship with Henry." However, Julian does not willingly interact with Henry's birth father, Malcolm, because of "differences in values and beliefs" but remains civil during contact. 6. Mrs Lane has characterised Henry as "a very active little [farm] boy" who "loves being outdoors" and who they view as part of the family. Olivia and Julian's evidence is that they look forward to the permanency and certainty an adoption order will provide. Mrs Lane stated that they wanted "to be able to promise and commit ourselves to [Henry] for life" which is why they were pursuing his adoption. One referee described Olivia and Julian as a couple "fully aware of all the responsibilities of parenthood" who shared "a loving, stable and happy relationship", and said "their love and passion for their children shows through in Belinda, Robert and Henry as they are polite, caring and happy children." 7. Henry is aware of the adoption proceedings and, according to Olivia and Julian, he has been included in conversations about adoption to an age appropriate extent. One referee comments "I have observed Julian and Olivia always being very open and truthful with Henry about his biological parents. They speak of them positively to Henry and answer any questions Henry has about them." Henry 1. Henry is now five and half years old. He has grown up knowing the Lanes as his primary caregivers and, by all accounts, regards himself as part of the Lane family. Ms Todd describes Henry as "an energetic, active and expressive… boy, full of character with a surprisingly quick sense of humour for a child of his age." She observed him to be "an affectionate child, seeking cuddles from all [Lane] family members at various times," with a "loud personality" who she observed "is very capable of making his wants and needs known to all." At his assessment with Ms Todd "He presented as boisterous with lots of energy" and "very comfortable in his surroundings on the farm with the family." Ms Todd paints Henry as a child who is flourishing in his environment and who has developed a strong and loving bond with those who he considers to be in his family unit. Her report states: "Henry has been in his long-term placement with Olivia, Julian, Belinda and Robert since he was three weeks old. He is a well-established and much-loved family member. Henry has a close relationship with Olivia and Julian. He calls them "Mum and Dad" and was observed during all interviews and home visits to be very comfortable in their company with a strong a secure attachment to them both. During the family observation Henry was observed to interact with all family members. He regularly engaged with Olivia and Julian when he needed assistance and engaged them in playful joking while sitting at the family dining table. Henry was observed to engage Belinda and Robert in play throughout the visit." 1. Henry is in good health and sees health practitioners as needed. Ms Todd notes that Henry has "good emotional regulation", responded positively to discipline from Olivia and Julian, and that the Lanes report "Henry has never had any behavioural, physical or emotional issues requiring professional input." Henry attends pre-school three days a week and spends two days a week with Olivia's father. He will be attending the same primary school as the other two Lane children from next year. 2. The evidence indicates that Henry is meeting his developmental milestones and that his physical, emotional and educational needs are being well met by the Lanes. Legal principles 1. In making decisions about the adoption of a child, the Court must have regard to the principles listed in section 8 of the Act: "(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles: (a) the best interests of the child, both in childhood and in later life, must be the paramount consideration, (b) adoption is to be regarded as a service for the child, (c) no adult has a right to adopt the child, (d) 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, (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, (e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare, (f) if the child is Aboriginal—the Aboriginal child placement principles are to be applied, (g) if the child is a Torres Strait Islander—the Torres Strait Islander child placement principles are to be applied. (2) In determining the best interests of the child, the decision maker is to have regard to the following: (a) any wishes expressed by the child, (b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant, (c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity, (d) any disability that the child has, (e) any wishes expressed by either or both of the parents of the child, (f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant, (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, (j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour, (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. Section 67 of the Act provides: "67 When can Court dispense with consent of person other than the child? (cf AC s 32 (1)) (1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that: (a) the person cannot, after reasonable inquiry, be found or identified, or (b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or (c) if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or (d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child: (i) the child has established a stable relationship with those carers, and (ii) the adoption of the child by those carers will promote the child's welfare, and (iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36. (2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child." 1. In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J (as his Honour then was) provided a useful consideration of the benefits of adoption, which I respectfully adopt: "75 While an adoption order would not effect any overt improvement in respect of the arrangements for the child's residence, education, and care, that does not mean that it would have no beneficial impact. 76 First, an adoption order will provide certainty and permanence for the child, both directly, and indirectly through the additional certainty it will afford the adoptive parents. The possibility of further changes, disruptions and separations will be minimised. The aspirations to restoration expressed by both birth parents, and re-affirmed by the mother in her oral evidence, however improbable as an outcome, will be practically foreclosed. An adoption order is also likely to minimise any remaining temptation for the birth mother to make comments or suggestions that the child will be returning to her care. In these ways, and others, adoption will contribute to providing for the child the stability, security and certainty that he plainly needs, and will be an important aspect of mitigating his current insecurity. In a case such as the present, where there has been extensive past turbulence and associated vulnerability, and where the child harbours fears of insecurity, this is a telling factor. 77 Secondly, the child would be raised in a legally recognised family, rather than remaining a State ward for the duration of his childhood. He would no longer be in "out-of-home" care, but in "in-home" care. The need for departmental intervention in his care, and departmental approval for significant decisions of the applicants, would be removed, as would be the stigma potentially associated with being a State ward. 78 Thirdly, the child's legal status would be brought into conformity with reality. Psychologically and residentially, he is a member of the proposed adoptive family. An adoption order would bring the legal position into line with this. His membership of the family that he regards as his own would be perfected, providing him a sense of security and permanent belonging in that family. And the child would be a member of the family not only during childhood, but for life. 79 Fourthly, his legal name would correspond with that of the family with which he lives and identifies. He would be enabled to choose for himself whom he tells of his status, without it being self-evident from his name. 80 While an adoption order would, of course, legally sever the parental relationship between the child and the birth parents, they are relationships which, in reality, have been practically devoid of parental responsibility. An adoption order would in fact serve the child's identity needs by perfecting his membership of the family with which he identifies, while providing a more secure foundation for an ongoing relationship with the birth parents through contact, which the applicants will be better able to support and facilitate when relieved of the insecurity or doubt that might attend it if some prospect of restoration remained open. 81 Adoption carries a risk that the child may feel unwanted or abandoned. However, this risk is incidental more to the circumstance that he does not reside with his birth parents, than to an adoption order per se: whether he is in foster care, or under a parental responsibility order, or adopted, there is the same potential for the question, "why do I not live with my birth parents?". Thus, declining to make an adoption order in favour of some other solution, short of restoration, does not remove the risk of a sense of loss or abandonment. However, the risk is mitigated by the circumstances that the child knows his birth parents, has an understanding of their situations, and will continue to have a relationship with them. While the legal relationship with the birth parents would be severed, they would not cease to be his birth parents; the relationship with them will be maintained through contact, and legal parenthood would appropriately reside with those who are discharging the responsibilities of parenthood." The Secretary's submissions 1. The Secretary submitted that the Court should dispense with the birth parents' consent and make an order for Henry's adoption in favour of the Lanes. The Secretary's submissions may be summarised as: 1. Henry has established a strong and stable relationship with the Lanes, having lived with and been raised by them since he was three weeks old. Henry has grown up knowing the Lanes, including their two children, as his family and identifies them as his family unit. He has never lived with his birth parents. 2. Ms Todd has reported that Henry identifies Mr and Mrs Lane as "mum" and "dad" and will seek comfort from them when needed. Ms Todd's assessment is that Henry has a strong and secure attachment to the proposed adoptive parents. 3. An adoption order in favour of the Lanes will align Henry's legal status with his lived experience, providing him with certainty and permanency and a sense of security which is beneficial to his welfare now and into the future. It was Ms Todd's opinion that this would ensure Henry is "well looked after emotionally, physically, financially and psychologically for the rest of his life." 4. Henry is developing well both physically and emotionally in the Lanes' care. The Lanes have been supportive of Henry's education, extra-curricular activities, medical needs and contact with his birth family. There is nothing to suggest that they will not continue to provide appropriate parental care to meet Henry's needs. 5. Henry was removed from his birth parents' care because of their history of drug abuse and out of concerns for his well-being, the potential for neglect and exposure to domestic violence. There were allegations of harm perpetrated by Malcolm against three of Henry's half-siblings which, though no charges were laid, were investigated by FACS in August 2017. The child protection history spoke against their ability to provide adequate care to Henry. In short, the birth parents lacked demonstrated parental capacity. 6. The birth parents do not have appropriate accommodation in which Henry could live if he were returned to their care. 7. Prior to these proceedings, the birth parents have not taken any steps, legal or otherwise, to have Henry restored to their care since the order was made in September 2013. Given their historic and current personal and financial circumstances and unsatisfactory child protection history, there is no realistic prospect of Henry's restoration to their care. Accordingly, parental responsibility and guardianship orders were not preferable to adoption orders because they would not provide Henry with the same legal relationship to the proposed adoptive parents as parents and child, or provide a beneficial sense of certainty and security, and would make Henry legally distinct from the other two Lane children. This was Ms Todd's clear opinion. 8. Noting the principles enunciated by Brereton J in Adoption of NG [2014] NSWSC 680 (see paragraph [46] above), it is in Henry's best interests that an adoption order be made, and the birth parents' consent should be dispensed with. Lillian and Malcolm's submissions 1. Lillian and Malcolm's submissions were made orally, mostly by Lillian. No written submissions were supplied to the Court. Their submissions were to the effect that they opposed Henry's adoption and believed guardianship would be preferable and in Henry's best interests because it would not preclude the possibility of Henry being restored to their care in future. 2. They submitted that they were addressing the personal and lifestyle issues which had historically contributed to the removal of their children into care and that they continued to make major progress in that regard. They wanted further time to be able to develop a relationship with Henry and viewed guardianship as facilitating this better than adoption. 3. They were also concerned that Henry's last name would change if adoption orders were made. They perceived this as important to his sense of identity and as a link to his familial heritage. In response, the Secretary noted that the proposal before the Court was to retain his current name and add "Lane" as an additional surname. 4. Notwithstanding they did not want Henry to be adopted at all, if an adoption order were to be made, Lillian and Malcolm's main opposition was in respect of the regularity of contact with Henry and concerns that they would not be able to build and maintain a relationship with their son with only four contact visits per year. They also expressed some concerns about the reliability of communication with the Lanes because of past incidents. They proposed six contact visits annually was a more appropriate minimum which would align with the frequency with which she sees her other children. In closing, Lillian acknowledged "that we failed to communicate prior to our improvements in our life and there were certain circumstances that maybe should have been addressed better, and that ideally would have made an impact on Henry's life which we are remorseful about deeply." However, she was still of the view that, were adoption orders made, more consistent contact would be preferable and in Henry's best interests. Consideration 1. I am satisfied that the formal requirements under the Act, which are conditions precedent to an adoption order being able to be made, have been met. The paramount consideration remains: what is in Henry's best interests now and into the future? For the following reasons, the Court accepts the Secretary's submissions and has come to the conclusion that there is no realistic prospect of restoration to the birth parents, and that an adoption order in favour of the Lanes is in Henry's best interests and preferable to any other alternative such as guardianship. Restoration 1. First, Henry is bonded psychologically to the Lanes and his removal from their care would be unduly traumatic. Ms Todd's evidence, which I accept, is that it would not be in Henry's best interest to be restored to his birth parents' care, that Henry is clearly emotionally attached to his foster family, even at his early age, and to remove him from the Lane family would detrimentally disrupt those attachments. Ms Todd accepted in cross-examination that, all things being equal, a child should be raised by its birth parents but there were some cases where restoration was not possible or in the child's best interests. Her report states: "There is no realistic possibility of Henry being restored to Malcolm and Lillian's care. Henry has never lived with his parents and his contact with them has been sporadic due to their nonattendance. Additionally, whilst Lillian and Malcolm state they have made some recent changes, this remains untested and there is evidence on the FACS files of a continued chaotic lifestyle involving violence, periods of homelessness and involvement with Police. There is an ongoing investigation regarding allegations of sexual abuse of the Fredrick siblings by Malcolm. It would be damaging for Henry to be moved from a loving family where he is secure and attached to a family he has no secure attachment to." 1. When asked her opinion about the short term effect of restoring Henry to Lillian and Malcolm's care, Ms Todd stated: "He would be essentially removed from the family and everything that he knows. He - he doesn't have a strong connection in my view with his birth parents and I think that the short term effects for him would be a severing of an attachment, high levels of distress and a not knowing of routine from day to day and he would essentially be placed - removed from a place that is safe to a place that, in my view, is an unsafe environment and would place him at psychological, emotional, potentially physical harm." 1. Second, while Ms Todd accepted that in some cases the trauma of being returned to birth parents after bonding with foster parents could be overcome, this would require what she described as "reparative parenting". Lillian and Malcolm are incapable of performing the reparative parenting Henry would require were he restored to them. Ms Todd's evidence was that reparative parenting is "very hard work" and, while she had seen it occur successfully, she did not believe Lillian and Malcolm had demonstrated the parenting skills necessary to perform the reparative parenting Henry would require to heal from the trauma of being removed from the Lane family. Her opinion was based particularly on Lillian and Malcolm's history with the Department and that she had not seen "that you [Lillian and Malcolm] have really acknowledged the full extent of the harm that - that was perpetrated against those other children and the work required in order to make that difference." She did not think that the potential long-term harm restoration could cause to Henry was justified by an argument that younger children are known to display particular resilience and adaptability. I accept that evidence. 2. Third, while Lillian and Malcolm are to be commended and encouraged for taking steps to improve their lives and acknowledge their previous poor parenting, there is no basis to conclude that there is any real prospect Lillian and Malcolm will be in a position to provide a safe and appropriate environment for Henry at any time in the foreseeable future, even if I accept their evidence that they are drug-free. 3. To my observation, Lillian and Malcolm lacked insight into their inability to provide the sort of care Henry would require now and into the future. For instance, it became apparent during the course of the hearing that Lillian and Malcolm have few financial resources and their expenditure is frequently greater than their income. Notwithstanding having been told that to provide such evidence might assist their case, they did not provide the Court with a budget or plan for how they would manage their finances should Henry be restored to their care and how they would cope with the added financial burden beyond likely being eligible for further government assistance. 4. Neither Lillian nor Malcolm is in stable employment. They seem to get by financially through various odd-jobs and by relying on government benefits (see paragraphs [26] and [30] above). In cross-examination, Malcolm stated he did not think he would be able to work in full-time employment again because of the severity of his back condition and the unpredictable nature of his pain. For the same reason, he stated that he had not made any attempts to find any other sort of part-time employment. 5. Lillian's affidavit states that she is an "enrolled nurse". However, as revealed in cross-examination, she has not been registered as a nurse since her qualification in 1998 and has only been employed as a nurse for a period of about three weeks. She has not worked as a nurse since then, and has taken no steps to continue her nursing education to ensure her eligibility for re-registration. There is no evidence to suggest that either Lillian or Malcolm will have regular employment in the near future. 6. As noted above (see paragraph [31]), Lillian and Malcolm's current housing situation is not suitable to accommodate Henry if he were restored to their care. Since the commencement of the proceedings, they have told the Court that they hoped to move into larger accommodation by the middle of this year (see paragraph [62] below). This has not occurred and there is no tangible evidence to suggest that this will occur anytime soon. It is clear that Lillian and Malcolm presently have unsuitable accommodation and insufficient finances to provide adequately for Henry and that to restore him to their care would not be in Henry's best interests. 7. While the best interests of a child are not determined by a comparison of the relative material circumstances of the birth parents and the proposed adoptive parents, as recorded above, for instance, at paragraphs [26], [30], [31] and [58] to [59], Lillian and Malcolm are not in a position to provide for Henry, whereas Olivia and Julian are and continue to do so (see, for example, paragraphs [34] to [36]). While not in and of themselves determinative, these considerations are relevant matters which weigh against restoration being in Henry's best interests. 8. Another factor lending support to my view that there is no realistic prospect of restoration (and with no disrespect intended), is that Lillian and Malcolm's conduct and attitude during these proceedings (see paragraphs [10] to [17], and [57] above) and generally in relation to seeking restoration of their children, is one of persistent delay and procrastination. At the first directions hearing, Lillian and Malcolm (unrepresented and appearing by phone) informed me that they were in the process of rebuilding their lives and intended to make a s 90 restoration application once they had secured more appropriate accommodation through their church, which they believed would occur in June or November 2018. At the preliminary hearing, the defendants indicated that they had not yet made s 90 restoration applications in respect of their children, though they still had that intention, but that they were waiting until they were residing in a larger home, which they thought might occur by June 2018. Again, at the substantive hearing, the defendants stated they had not lodged s 90 applications. Their pattern of behaviour in relation to preparing for these proceedings, even when full allowance is made for their unrepresented status, does not give me any confidence in their managerial or organisational abilities in respect of their own affairs. By extension, I am not satisfied that now or in the foreseeable future they would be able to cope with the various challenges and responsibilities that are an inevitable part of parenting. 9. I do accept that it does appear that Lillian and Malcolm have undertaken significant changes to improve their lifestyle including joining their church and attending recovery and self-help programmes. Significantly, they assert that they had been drug-free for about 15 months — an achievement which the Department has acknowledged. However, they have not produced any evidence substantiating this claim, such as drug test results or psychiatric reports. 10. Neither has Malcolm provided evidence of his current physical health or the medications which he is on for his back pain. When directly questioned on this point by the Secretary, Malcolm stated that he had only received his psychologist's report on the second day of the hearing and had forgotten about a report issued in 2013. In her updating affidavit of 10 May 2018, FACS delegate Ms Wilson acknowledged that although Lillian and Malcolm had "made several improvements to their circumstances… they continued to demonstrate a lack of insight in regard to the issues that led to the removal of their children, a lack of acceptance of their responsibility in relation to their actions, and a lack of understanding of the impact their actions have had upon their children." Moreover, this had resulted in Lillian and Malcolm not engaging with "recommended therapeutic interventions that have been suggested to them, such as completion of a detox and rehabilitation program, engagement with domestic violence program and participation in parenting programs." 11. Finally, I accept that there remains a very real concern regarding child safety. Three of the Fredrick children have made allegations of abuse, both physical and sexual, against Malcolm including being touched inappropriately, being forced to watch pornography, and physical violence. FACS has investigated and substantiated these allegations. 12. Lillian and Malcolm continue to deny any allegations of sexual abuse. However, they have admitted "certain levels of abuse with the children" which was included in the evidence, including gross neglect. Again, they attributed this to their drug use and dependency at that time. The May 2018 Safety Report states "in light of the recently substantiated allegations for the older children, it is evidence that there was no capacity to protect the children and no acknowledgment of the impact on them." The report continues: "Lillian and Malcolm do not believe there are any concerns for Ariel and do not take responsibility for the experiences of their younger children indicating they have made changes to their life that they believe are adequate to ensure safety for her [Ariel]. They have a limited understanding of the reasons why their older children are no longer in their care and of the problems and threats placing their baby in danger. Lillian and Malcolm have acknowledged the neglect issues and their previous drug use and Lillian talked briefly about how her drug use and neglect impacted upon the children. Both Lillian and Malcolm state that they are ashamed of their behaviour and regret their past decisions. Malcolm and Lillian only acknowledge one incident of domestic violence in their relationship, however child protection records and Chapter 16a information provided by NSW Police indicate more extensive domestic violence. …Historically, Lillian and Malcolm have been unable to meet and remain committed to meeting the needs of their children and this has placed the children at risk of serious harm." 1. Lillian and Malcolm's documented responses show a lack of understanding of the seriousness of these allegations and the impact of their actions upon their children. This is a view shared by Ms Todd, who stated in cross-examination: "to my knowledge, Malcolm and Lillian continued to minimise both the events in terms of the harm that they perpetrated against those children and the subsequent behavioural issues that those children have. So, in circumstances where I - I can't see evidence where they have made acknowledgments and accepted the full extent of what they did, I'm just not convinced that they will therefore be able to work through those issues and provide a safe environment." 1. Given the evidence to which I have referred in the preceding paragraphs, I am satisfied that there is no realistic prospect of restoration. Guardianship 1. As I have determined there is no realistic prospect of restoration, there is no basis upon which to make guardianship orders. I will briefly canvass why this is so. 2. Ms Todd's evidence, which I accept, was that she did not think guardianship was appropriate or a preferable order to adoption. She stated in cross-examination: "Guardianship… doesn't have the same level of permanency as an adoption order, an adoption order being for life and would secure Henry in the Lane family for life and afford him all of the legal rights that his - currently, his foster siblings have. So, in my opinion, no, a guardianship order doesn't offer the same security for him over his lifetime as an adoption order does." 1. Ms Todd was of the opinion that an adoption order in favour of the Lanes would "secure Henry's membership in the Lane family for life" which would "ensure Henry is well looked after emotionally, physically, financially and psychologically for the rest of his life." She commented that "Henry identifies as a member of the Lane family and very clearly articulated his desire to be named 'Lane'." Ms Todd recorded that "He is aware he has another Mum and Dad who he refers to as 'Mummy Lillian and Daddy Malcolm'." This supports the evidence that Olivia and Julian have maintained a strong commitment to encouraging the development of Henry's sense of identity and heritage, and I am confident that Olivia and Julian will continue to foster Henry's understanding as he grows. An adoption order (as opposed to a guardianship order) will cement Henry's everyday reality and understanding, and would provide both Henry and the Lanes with legal certainty and permanency. 2. For the foregoing reasons, the Court is of the view that guardianship is not an appropriate alternative to adoption. Contact 1. If an adoption order were to be made, Lillian has stated that she would like "contact with Henry to be more flexible, frequent and for longer duration" in order to allow Lillian and Malcolm to "build a relationship that would support Henry's restoration to her care." 2. As recorded above, there have been several instances of Lillian and Malcolm's non-attendance at contact visits. As Ms Todd's report states: "…Lillian has been inconsistent in her attendance at contact with Henry. While Henry's care plan dated 23 June 2013 made provisions for contact with Malcolm and Lillian to occur four times a year, the contact has occurred less frequently, with neither Lillian or Malcolm attending any contacts between 22 June 2015 and 25 September 2016. Given Lillian and Malcolm have not been able to commit to attending four contact visits a year, an increase in the contact is not recommended." 1. Ms Todd was of the opinion that increasing the minimum contact frequency was not advisable. Further, in cross-examination, Ms Todd stated that she did not think Lillian and Malcolm's participation in contact and Henry's bonding with them would change over time because Henry's brain development up to this point and "his attachments are all with the Lane family". 2. There is also some documented tension between Malcolm and the Lanes. Ms Todd commented in her report that there are "obvious negative feelings towards" Malcolm, particularly on Julian's part. However, she notes that this has not lessened Olivia and Julian's support of birth family contact or their appreciation of its importance for Henry. She stated: "I am confident Julian will support a positive relationship between Henry and Malcolm. Olivia and Julian's focus on family and doing what they consider best for their children is fundamental to their values. This forms the basis for them continuing with the contact." 1. When cross-examined on this topic, Olivia expressed the view that, at least in the last six months, the relationship between Henry and Lillian and Malcolm had grown, though "prior to that it was, it was lacking quite a bit" and she did not think it was in Henry's best interests to be restored to Lillian and Malcolm's care. Olivia felt that Henry was part of the Lane family but that they would not hesitate to facilitate contact with Lillian and Malcolm because of the natural relationship between a child and its birth parents. Displaying a sound understanding of the challenges of adopting a child, Mrs Lane stated in cross-examination (addressing herself to Lillian and Malcolm): "There's going to be questions that Henry might have as he grows up about family, your side of the family, that we're not aware of, and we're quite happy for him to, you know, approach you guys to do all that. So we'll never, you know, put any barriers up in that way if that's sort of what you're getting at." 1. I am not convinced that increasing the frequency or duration of contact is a necessary step, or one that would assist Lillian and Malcolm in achieving their desired outcome of Henry's restoration. The evidence is that Henry verbally identifies Olivia and Julian as "mum" and "dad" but he has also been observed referring to Lillian and Malcolm as "mum" and "dad" as well as by name. This supports the conclusion that Henry has developed relationships with Lillian and Malcolm within the four scheduled contact visits. 2. For these reasons, the Court rejects the submission calling for an increase in the minimum number contact visits per year should Henry's adoption be ordered. There is clearly sufficient goodwill between the Lanes and Lillian and Malcolm and, as Henry gets older, there is no reason why the number of contact visits could not increase by agreement. Consent 1. The Court must not dispense with the consent of the birth parents and make an adoption order unless it is satisfied that it is in the best interests of the child: s 67(2). The criteria in s 67(1)(d) of the Act are met. It is in Henry's best interests for an adoption order to be made, which requires either Lillian and Malcolm's consent or for that consent to be dispensed with. In the absence of their consent, I am therefore satisfied that Lillian and Malcolm's consent should be dispensed with to enable an adoption order to be made. Conclusion 1. Adoption orders are permanent and should only be ordered where the Court is of the view that there is no realistic prospect of restoration to the birth parents. While the Court acknowledges and commends Lillian and Malcolm for their efforts to improve their lives, I am unable to accept their submission that there is any realistic possibility of restoring Henry to their care or that to do so would be in his best interests now or in the future. I am satisfied that Henry is thriving in the Lanes' care and that it is in his best interests that he become legally what he is in fact already: a member of their family. 2. The Court will dispense with the consent of Lillian and Malcolm and make an adoption order for Henry in favour of the Lanes, and add "Lane" to his existing names as his new surname. The Court will approve and order the registration of the maternal and paternal adoption plans which provide for a minimum of four supervised contact visits per year with a minimum duration of two hours with Henry and his birth parents. As I have already noted above, four contact visits annually is a minimum and, with the agreement of all parties, can be increased. ********** 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: 20 September 2018