Hackett (a pseudonym) v Secretary, Department of Communities and Justice

Background

1. J was assumed into care in August 2008, the day after her birth. This occurred in circumstances where from 2005 to 2008, 36 risk of harm reports had been received in respect of her maternal half siblings, U and V.
2. In July 2009 final orders were made granting parental responsibility to the Minister until J attains 18 years of age. In March 2011 orders were made recommending that J have contact with her mother for one hour each month and for the birth father to have contact with her for one hour each second month.
3. Contact between the birth mother and J ceased between 19 July 2016 and 14 September 2018. Concerns were held about the effect of the mother's behaviour on J following contact. In April 2017 the mother made a s.90 application. There was an attempted mediation following which it was agreed that there would be an initial trial contact and then a discussion about J's wishes in relation to another contact visit. Contact subsequently resumed.

Adoption or not?

1. In short, the birth mother opposes the order and submits that it is not in J's best interests, nor is the suggested maternal adoption plan. Further, she submits that an order for adoption is not clearly preferable as against the alternative of maintaining the status quo. She submits that s.90 of the Act, in particular s 90(1)(a), will not be satisfied because of the likely adverse impact the adoption will have on J's relationship with her. Indeed, she submits an order for adoption is premature. Further, she opposes the adoption plan in that the four proposed visits each year are inadequate and again contrary to J's best interests.
2. The Plaintiff on the other hand submits that an order for adoption is clearly preferable in the circumstances of this case, and that the adoption plan and in particular the four visits a year with her mother is not only sufficient but in J's best interests.

The applicable principles

1. Sections 7 and 8 of the Adoption Act emphasise the requirement that the decision maker have regard to the best interests of the child both in childhood and in later life which must be the paramount consideration. An adoption order is a service to the child and no adult has a right to adopt the child. The Court should also give consideration to the wishes of the child if the child is able to express his or her own views on a matter concerning the adoption. The child is to be given the opportunity freely to express those views and they are to be given due weight in accordance with the developmental capacity of the child and the circumstances of the case (ss 8(1)(d), 8(2)(a), 9, 127-129).
2. In assessing the child's best interests there are a series of factors to which regard must be had (see s.8(2)). Without intending to be exhaustive, these include the wishes of the child, the wishes of the birth parents, the attitude of the adoptive parents, their suitability, and the nature of the relationship the child has with the parents and the adoptive parents. It is necessary to consider the child's physical and emotional needs and importantly to consider the need to protect the child from physical or psychological harm. In addressing these and the other factors mandated by s.8 consideration is to be given to an adoption order and its likely effect on the child in the short and longer term and the changes in circumstances caused by the adoption so that it is determined against alternative forms of care (s.8(2)(k)).
3. Before making an order for adoption, the Court must be satisfied of certain matters in s 90. The consent of the parents is not a necessary requirement in the making of an adoption order, and can if not forthcoming be dispensed in certain circumstances if in the child's best interests (ss 54(1)(a), 67). But such an order is not lightly to be made. Indeed it is considered a grave step for obvious reasons: see Application of A; Re D [2006] NSWSC 1056, per Palmer J at [52] and Adoption of RCC and RZA [2015] NSWSC 813 at [17]. Appropriately counselled a child once twelve can give consent to his or her adoption: ss 54(1)(c), 54(2), 55 and 63 of the Act.
4. Section 90(3) prohibits a Court from making an adoption order unless it considers that such an order is clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. The answer to the question whether an adoption is "clearly preferable" is informed by the various considerations referred to in s 8(2). While not amounting to satisfaction "beyond reasonable doubt" the Court needs "something more than a slight preponderance of considerations in favour of adoption over the alternatives". It is accepted that an order for adoption would be made if the court was satisfied that such an order would "obviously, plainly or manifestly" be preferable over any other action: see Adoption of NG (No 2) [2014] NSWSC 680 at [14]-[17].
5. The Court, where it is of relevance, must give careful consideration to any proposed adoption plan. This is the regime for the all-important contact between the child, his or her birth parent or parents, and/or other significant persons in the child's life. Unless the Court is satisfied that the plan is in the child's best interests and is proper in the circumstances it is not able to make an adoption order (s 90(2)). In this regard, birth parents have special and important rights. A parent has a right not to consent to an adoption plan. The relationship between a child and its natural parents is to be preserved unless the Court considers that a child's best interest dictate otherwise. The maintenance of a relationship with a child's birth family is an important consideration, but the terms of the level of contact should be "realistic and achievable", and in some circumstances excessive contact may very well not be in the child's best interests: see Re the Adoption of AJH [2017] NSWSC 751 at [356]; see also Kate and William, Re - Reduction in Post Adoption Contact [2017] NIFam 13 at [16]. Whether an adoption plan is appropriate in the circumstances requires consideration of all of the relevant circumstances and in particular the purpose of "open adoption" - being one in which the child will know and have contact with his or her birth family: see Adoption of Hogarth (No 2) NSWSC 9 at [121].

The evidence

1. It is necessary, briefly, to consider the evidence before the Court, especially the oral testimony. In reviewing the evidence in this matter I have taken into account s 126 of the Adoption Act and the comments of Basten JA in Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 at [161]-[170].
2. The first witness called by the Plaintiff was Ms Katherine Post. She prepared only one affidavit dated 5 September 2019. Ms Post described herself as an "Independent Assessor"; formerly she was a "Contracted Adoptions Caseworker". She commenced her long career in 1996 by completing an intensive training program at the University of Wollongong in the treatment of people with serious mental illness and substance abuse. In 2010 she graduated from the University of Newcastle with a Bachelor of Social Science. However, since 1988 she has had an interest in and employment with numerous agencies involved in women's, children's and family issues and employment as a resident social worker and health worker in New South Wales and the ACT. In other words, she has a good deal of experience across the board in all manner of social issues concerning family relationships. Those activities have also involved, since at least 2015, providing support and advice to health workers across New South Wales on all aspects of child wellbeing and protection of children. Since March 2018 she has worked in the area of the preparation of assessments for adoption, foster care and parenting capacity for government and non-government services for use in the Children's Court and the Supreme Court. She is an approved registered adoption counsellor pursuant to section 63 of the Adoption Act.
3. Between 3 December 2018 and 13 May 2019 she spent time involving herself with the persons and the issues in this case which involved numerous interviews with the proposed adoptive parents including J and their two other adopted children, Y and W. She visited their home on three separate occasions. She also took into account various reports from numerous sources and considered the very detailed history those documents contain concerning J and relevant others. She attempted to meet with the birth mother but was told that she had refused to speak to Ms Post. Instead the birth mother's solicitor, Mr Donaghy, intervened, asking that all correspondence be directed to him and that his client thought it was not necessary to speak to Ms Post. It was also indicated that she would at some point seek that J be restored to her care. Mr Donaghy did indicate that his client may engage at a later point of time.
4. However, Ms Post was able to speak to J's father, M N, by telephone. He said he was opposed to the adoption. In what appears to be a lengthy conversation, he was not uncritical of the proposed adoptive parents. M is an amputee who as a result of a subsequent accident is in a wheelchair.
5. Ms Post records that in her view J wanted to be adopted but "had a limited understanding of adoption"; although, she thought R and Q (the proposed adoptive parents) "would still be Mum and Dad" (CB.416). It is clear that Ms Post has relied on the observations of Ms Matasau. Ms Post observed that J had expressed doubts about adoption but that this was connected with her feeling anxious about managing her mother's negative reaction to adoption.
6. There is an important observation to the effect that Ms Post believed that the adoptive parents "demonstrate empathic, non-judgemental and compassionate attitudes towards J's birth family". She also observed that they had focused on J's needs. They had family members visit their home and had maintained connection with extended family members. She also noted that they had not been able to facilitate contact between "[the mother] and [the child], as [the child] has requested this does not happen and [the mother] has refused to meet with [the proposed adoptive parents] to discuss this" (CB.420).
7. Ms Post noted that she had observed from various reports that J had struggled with the 12 contact visits a year provided by the s 86 contact order (Children and Young Persons (Care and Protection) Act 1998). Such reports had noted that contact continued to have an adverse impact on J's emotional and psychological wellbeing. There are reports that the mother scared J from time to time (CB.421). She also noted that J did not want month to month contact with her mother and wanted more flexibility (CB.421). The same difficulties do not appear to arise with the birth father.
8. At the end of a comprehensive and thorough report Ms Post expressed the view that adoption was in J's best interests.
9. In cross examination, Ms Post accepted that while J overall enjoys contact with her mother, she feels that contact visits are unpredictable, and that J has a sense of uncertainty and wariness and goes into the contact feeling quite anxious as to how her mother is going to present herself (T.8). Ms Post also said that J has talked of anxiety at the end of contacts. Although Ms Post accepted that J is anxious about other things, she said J's mother is the "largest anxiety in life" (T.9). Ms Post said she thought J was anxious about things her sisters had told her about her mother and that there was information that J had said she felt safe when her mother was in prison (TT.9-10). Ms Post said she was of the view that J had learnt that her mother had been violent towards her father and that her sister had been assaulted by her mother (T.10). As a result, Ms Post thought it was detrimental for J to continue to have monthly contact with her mother. Ms Post thought that the time could be extended if J wanted that.
10. Ms Post believed that the adoptive parents had been prepared to meet with the mother to make some plan but she has refused. However, she believed that the adoptive parents had supported J having a positive relationship with her mother and would do whatever they can to make that happen (T.11).
11. Ms Matasau was the next witness. She made one affidavit dated 26 March 2020. She completed a degree in behavioural science in 1998. She has been a registered psychologist since 2006 and has dealt with children and adolescents since 2007. She has known J since she was about three years old. She has also dealt with the adoptive parents since that time. She first met J when she was in-house at the Department of Family and Community Services and since 2017 after going into private practice has consulted with J there.
12. Over the years she has had many consultation sessions with J. Ms Matasau stated that J had often expressed the view that she wishes to be adopted by the proposed adoptive parents and further that she would be angry and sad if the adoption did not go ahead. Further, Ms Matasau said J did not want her mother to stop the adoption from happening. Ms Matasau said her impression was that J clearly wanted to see her mother but not "too frequently". Her impression was that J felt an obligation to see her mother rather than being motivated by a genuine desire to see her (CB.658). Ms Matasau reported that J was very happy seeing her father and her half siblings but needed guidance and support in relation to contact with her mother. She felt J was frustrated about the delay in the adoption process. She also expressed that adoption is the appropriate course and that J "appears ready to be adopted" (CB.660). J had, during one of her consultations with Ms Matasau, written a note in clear support of adoption: "Dear Judge, I, J K, (soon to be S) do want to be adopted by Q S and R S ... DO NOT want O to stop that in anyway".
13. Previously Ms Matasau had prepared several reports: one dated 2 February 2019, one dated 10 February 2020 and one dated 23 March 2020.
14. In the February 2019 report she expressed the view that J at that time was happy with the idea of adoption and was ready for it. By February 2020 she again expressed the view that J "definitely wants to be adopted…", "would be angry if the adoption didn't go through", was "worried she wouldn't get heard by 'the Judge' who would be deciding if she could be adopted", and that J would be emotionally devastated if her feelings and wishes were not adequately taken into account. In addition, based on different conversations Ms Matasau has had with J overtime, Ms Matasau's understanding is that J has strong feelings about contact with her mother. In the March 2020 report Ms Matasau observed among other things that J had consistently expressed the view that she has to make an effort to pretend to be happy when seeing her mother. She further observed that J had not asked for increased time with her mother or sleepovers and was fearful of her mother's unpredictability and was worried that her mother might hurt her or hurt "Mum" (the proposed adoptive mother).
15. Ms Matasau accepted in cross examination that she had previously been providing parenting advice to Mr and Mrs S (T.22). She accepted that she was in a therapeutic role with J and helped her to process her thoughts and feelings (T.23). She also accepted that the majority of the information she received was from J or her carers (T.24). Ms Matasau accepted that J spoke of many things including her relationship with her adoptive sibling, W. However, Ms Matasau expressed the view that J was always "reflective and balanced in her view about that, very open to being able to be self-reflective", which Ms Matasau found impressive (T.24). She would be brought to the appointments by the carers and they would wait outside when J was with her (T.25). She has never met the birth mother (T.26). Given the close relationship she has with J she has no reason to believe that J is not accurately sharing things with her (T.30). She also recalled J telling her that she might tell the caseworker things she thinks the caseworker may want to hear but does not have the view that J does that with her, the reason being that she has dealt with J for long enough to appraise that objectively (T.30). She does not think the views J expresses are the result of influence by others (T.30).
16. Although J has anxieties, Ms Matasau is of the view that J's anxieties are predominately caused by contact with her mother (T.31). Ms Matasau said that J has reported that she was fearful her mother might be hurtful towards her or others (T.32). J has also said that she is fearful that her mother might take her back to live with her (T.34). Whilst there are other things which cause anxiety in J, Ms Matasau is of the view that J needs to gauge her mother's mental health as she is, according to Ms Matsau, a relatively astute young girl and she has expressed the view to Ms Matasau that her mother has mental health issues (T.36). She told Ms Matasau she wanted to be adopted by the proposed adoptive parents and that she did not want to hurt her mother's feelings but felt very strongly that she wanted to make sure that the people who make decisions about her life knew they were her feelings (T.37). Ms Matasau also said that J has said to her "on a number of occasions" that she would prefer less contact with her birth mother and wants to know how she is going with regards to her mental health (T.38).
17. The proposed adoptive father, Mr R S, next gave evidence. He deposed two affidavits, one dated 6 December 2019 and the second dated 20 March 2020.
18. In the first, he explained that he and Mrs S married in 1989. At the date of his affidavit he resided in his home with her and three children, J, Y and W. The latter two children have been adopted by the proposed adoptive parents. In addition, it is not in issue that he and his wife have four adult biological children, X aged 28, N aged 26, B aged 24 and Z aged 21.
19. Having completed his secondary education in New Zealand, Mr S also completed a Bachelor of Social Science from Southern Cross University. He then set out other matters dealing with financial issues not presently relevant. He stated that contact for J with her birth siblings would be flexible, as would contact with her birth father, but that contact with her mother would be reliant on J. He would pay for a suitable venue and supervisor, having personally made contact with the birth mother, and the visit would go ahead subject to her mental state and attitude. He said that he envisages four visits annually. He has never met the birth mother. He stated that J had expressed views about not wanting to see her mother and was anxious about her. He denies he has been hostile towards the birth mother. He does believe that J is a "pleaser" in that she tries to please everyone. He would be open to telephone or email contact with the birth mother in the future. He has regular phone and social media contact with other members of J's family. He supports J's contact with the birth mother. As he had been advised by caseworkers not to organise contact directly with the mother due to her instability and volatility, he intends to use an ex-colleague who is an experienced contact supervisor initially but would be prepared to transition to a more personal arrangement.
20. In cross examination, Mr S agreed he had been told things by UPA about the birth mother's drug and alcohol use, her mental health and her aggression and violence towards others. However, he said that he has never discussed those concerns with J (T.44). He thought it unlikely that J might have heard any conversations he had had with his wife about such matters. He does hold concerns about contact between J and her mother and thinks that contact with her mother makes her anxious (T.44). He agrees, however, that it is in J's best interests to have contact with her mother (T.45). He also agreed that he and the birth mother had not had any communication so he did not know how to contact her (T.47). He would like to know that the birth mother has got everything fairly stabilised before visits. He was hoping that communication could take place between him and the birth mother (T.49). He would hope to build a relationship so that trust could be built (T.50). He is not aware of any previous diagnosis as to the birth mother's mental health, nor the current state of her mental health. He would also like to know if she is using drugs but would not expect clinical evidence (T.51). He was also asked about the adoption of the other two children and spoke of being frustrated at the delay and how to handle that at home (T.53).
21. Ms Pilon was the next witness. She had sworn three affidavits on 8 October 2019, 23 March 2020 and 14 May 2020, respectively. She is the Manager, Client Services with the Department of Community Services. In her first affidavit, she set out the extensive care history concerning J and relevant others. She expressed the view that adoption is the best course for J. Her affidavit of March 2020 is an updating one with additional case notes. Her last affidavit falls into the same category and amongst other things chronicles some recent difficulties in contacting the birth mother.
22. She agreed in cross examination that she was also involved in the adoption of W and Y, who were assessed by Ms Post. She also agreed that from her perspective Mr and Mrs S are able appropriately to meet all of J's needs in the long term (T.65). The Department has made an assessment that contact between J and her mother should remain supervised and not be undertaken by the carers. There was concern that J should not be subjected to her mother and the carers in conflict. She also has the view that "mum" has not made the changes she needs "to have the insight of what's in the best interests of J" (T.66). She also agreed that UPA had done the best they could to arrange safe contact for J. UPA has also managed J's anxiety. She agreed that there have been periods when the mother has been uncontactable and not responsive to UPA's attempt at contact. She regards the proposed adoptive parentd as "very skilled carers". She said that "they are committed to J having contact with her parents and family" and in her view have demonstrated that successfully with J's father and siblings and want to do the same with the birth mother (T.68). She agreed there had been no direct communication between the mother and the adoptive parents and no relationship between them. She explained there was a funding package approved as part of the adoption plan to support ongoing supervision and support services for J such as psychologists (T.70). She also agreed that there continues to be benefits in J having contact with her mother.
23. The last witness called by the Plaintiff was Mrs S, the other proposed adoptive parent. She made two affidavits, one on 6 December 2019 and the second on 20 March 2020.
24. Her first affidavit covers similar factual material as her husband's. However, she completed a Teacher Aide course in 1986 and numerous other courses in 2001 and 2002, and currently works as a School Learning Support Officer (Teacher Aide) for the New South Wales Department of Education.
25. In her second affidavit, she stated that she and her husband "present contact" between J and her mother as a positive experience. However, she also restated her concerns about the birth mother that have arisen because of what she has been told by J's family and the Department of Communities and Justice. She and her husband were warned not to have any direct contact with the mother. They were told she could be aggressive, particularly verbally, and that her moods fluctuated. She then listed (at [25]) various matters she had been told. When J was small she tried to have dialogue with the mother by the use of a "communication book" but after a while the mother wrote comments in the book which upset Mrs S. As a result, the process stopped. She then referred to occasions when J either has been fearful or has done or said things to appease her mother (see [46] to [53]). In contrast, she outlined in some detail her relationship with J's sisters, U and V (at [60]-[65]). Mrs S also dealt with the question of future contact and who might supervise that contact if an adoption order is made ([74] and [75]).
26. In cross examination, Mrs S stated that she had received information about the mother's mental health from the mother's relatives. Information about her fluctuating moods was an example. She had also received information from V's father about an attack on him but had not discussed the information with J (T.90). She has had limited discussion with J about her mother's mental health (T.90). She also believes that J should in an age appropriate way know the truth about her mother (T.91). She did concede that great care should be taken in discussing the mother's mental health with J (T.92). She also agreed that it is important for J to have a positive view about her mother for her own self-identity (T.93).
27. However, Mrs S stated that she thought J does have a positive self-identity and "a good rounding and a good understanding of her birth family" (T.94). She may have discussed another attack by the mother on J's father (T.94-95). She agreed that there was a period when J did not want to have contact with her mother and that contact made her scared (T96). She has always provided J with information in a child appropriate manner (T.97) but she had not heard of J being choked during a contact visit (T.100). She has concerns for J's emotional safety during contact (T.100). She was concerned to tell J what had happened with the adoption of Y and W, and to explain the delay in J's own adoption (T.102-104). She was asked about the circumstances in which she had discussed J's mother contesting the adoption (T.106-108). She agreed she told J the adoption was contested. She also accepted that she may have been frustrated and annoyed at the prospect of a contest (T.108). She asserted she had from time to time tried to do different things with respect to contact by sending photographs and a gift for Mother's Day, for example (T.111).
28. The last witness in the case and the first and only for the Defendant was the mother. She made an affidavit dated 10 February 2020. She stated that both her parents died when she was quite young (her father when she 11 and her mother when she was 15) and that she has cared for herself since she was 14 (at [6]-[10]). She currently lives on her own (at [12]). She referred to her strong Catholic upbringing and the fact that she would want J to live with her. Although on a Disability pension, she felt she could care for J. She stated that each of the contact visits have been happy and that J has asked that they be increased and whether she could stay overnight. She does not agree to the proposed plan for contact. She is frightened that if an order for adoption is made she will never see J again (at [45]). Further, she stated that apart from an accidental encounter the carers have made no attempt to communicate with her (at [50]). She was also concerned that adoption would end the relationship between J and her siblings, U and V (at [62]).
29. With leave, she was asked some short questions in chief. She was asked whether it was still the case that she was seeking restoration. She replied "No, J - not today" (T.117). In so far as Ms Pilon had said they had tried to contact her and could not, she stated she had not received a text or phone call (T.118).
30. In cross examination, she agreed it was important for her and J to have contact and that it was good for her and J (T.118). However, UPA organises contact by registered mail. She never writes back and generally no contact is made by UPA via her mobile, although at times they have contacted her on her mobile (T.118). When asked whether she would provide the proposed adoptive parents with her mobile phone number she said she would not as she has a relationship with her daughter - "If my daughter's old enough to say she wants to be adopted she can ring me up... that's the way I see it" (T.119). She was then asked whether she has an email address. She agreed she did but again said, "If it's contact between me and my daughter and the adoption is going on because it's what my daughter wants, she should be able to plan these things. She wouldn't need R and Q to do this for her. Like, that's - like, a very misleading kind of - you know, between the minds kind of misunderstanding that" (T.119).
31. She was also asked if she accepted that arranging activities for an 11 or 12 year old is something that often falls to the adults in their lives. She responded, "Yeah. I'm an adult" (T.119). She was asked if she would provide a mobile for contact with the proposed adoptive parents and she refused, stating "they can contact me through registered mail...only registered mail" (T.120). Further, she would not be willing to provide an email address to the proposed adoptive parents either (T121). The reason she gave was that she had a relationship with her daughter - "I don't even need to explain. Just no" (T.121). She was asked whether it would be to J's benefit for there to be more open contact between herself and the Ss. She said, "I've got J a stationery set. She's got my address. She can write to me. And I've brought her a beautiful stationery set, pens, everything right? Like, I've never received any letters from J or anything, or thank you ... and it's a bit hurtful and disappointing on my half" (T.122). She then explained that J had told her she had done beautiful paintings for me and how Q wanted them" (T.122).
32. She was asked again whether she saw benefit in the proposed adoptive parents and her having a bit more information flowing between them and she said, "I just answered your question and my answer is that J can write to me and put them in an envelope." When asked whether she would like the proposed adoptive parents to inform her of things in J's life, she replied, "Zero contact". She stated she did not appreciate the proposed adoptive parents criticising her (T.122). It was, she thought, "just too little, too late" (T.123).
33. She rejected that she had mental health issues but accepted she had "anxiety, but really bad anxiety" (T.123). She agreed she had been a patient at Tallowwood hospital in Lismore in the middle of 2018 but not presenting with a drug induced psychosis. Rather, she said she "had a series of dreams and … got admitted... They tried to classify me as schizophrenic" (T.124). When she later saw a Mr Andrew Moulding, a social worker, she could not recall telling him she was smoking marijuana on a daily basis (T.125). She later denied making that statement (T.126). She agreed she had been charged and found guilty of assault and incarcerated for a period of five or six weeks (T.126). She has not done an anger management course (T.126). She also accepted she had been the subject of an AVO (T.127). She said she would not take full responsibility for certain situations although she was remorseful (T.127). Indeed, she asserted she defended herself from a volatile attack (T.127). She was then asked about the first contact visit on 17 January 2020 and whether she was upset. She then gave a long answer about reasons which had to do with her other daughters, V and U (T.128-129). She was taken through the note of the visit (T.129-130). She recalled some things but not others but again the answer dealt with her daughter, V (T.129-130). She was asked whether she currently took medication. She said, "I take anti-depressants, but I can't take them every day, because I don't have the emotional strength to - like, I just feel, so heavy and burdened. Do you know what I mean? Like - and then, like if I felt - if they made me happy, it's like - would be kind of uncomfortable, sort of" (T.130). She was to see her doctor the following week (T.130). She was then asked about other events that took place on 17 January, including whether the emotional state she was in on 17 January could be distressing for J. She replied, "The whole thing is stressful....Why do I have to wear all the criticism?" (T.131).
34. When later pressed about the deleterious impact of J seeing her in an emotionally distressed state, she said she could not take it anymore and that "it's just getting too hard" (T.133). She had not read Ms Matasau's report but heard her give evidence (T.133). She accepted that J does have anxiety about contact with her - "I don't think it's a personal ... It's more a burden...like the burden and restrictions around it" (T.134). She would not accept that some of the stress J experiences is because of contact with her (T.134).

Other evidence

1. I have already observed that there is a good deal of material in the Court Book about the mother. Over the years there have clearly been instances of drug and alcohol use - arguably abuse - by the birth mother, together with aggressive behaviour (as examples, see CB 60, 81, 94, and 99). In 2009 it was recommended she see a psychologist for a minimum of two years to deal with a range of issues (CB.91). There is no evidence she followed that recommendation.
2. The Supplementary Tender Bundle discloses the criminal history of the mother, together with hospital and other records from Housing Pathways.
3. The mother has had numerous convictions for a variety of offences ranging from larceny, shoplifting and destruction of property. She was it seems convicted in February 2016 of assault occasioning actual bodily harm together with an AVO. She received a bond on the basis she maintain treatment at a Community Health Service. In May 2017 she was convicted of assault occasioning actual bodily harm and incarcerated for 5 weeks and three days. She was charged with assault on two other occasions in 2017 and 2019 but was acquitted after a hearing in both cases.
4. There are also hospital records. The record of the Moon Street Medical Centre shows that she presented in early 2018 with a "drug induced psychosis". The records disclose that she was admitted and medicated at a facility called Tallowwood. It is observed that she "numbs all feeling with cannabis" and had also self-ceased "Moclombebide with a worsening of depressive symptoms". It is also observed that she has "no healthy supportive relationships in this area" (TB.30). There is a diagnosis of "Emotionally unstable personality disorder" (TB.31). It is also plain from the notes at TB.32 that it was recorded that she was smoking large amounts of cannabis at the time (November 2017). The records are replete with references to depression, mood swings and emotional upheaval.
5. Of particular relevance are the reports of contact visits at CB.551 to 586. They cover the monthly contact visits from August 2019 to February 2020. The August contact would appear to be uneventful.
6. The September visit, however, discloses that the mother appeared to rebuke J for not having sent her "anything". She asked J if she needed her address again. J is recorded as having said she had been busy at school. The mother observed that "Q doesn't want me to know where you live but I already know you live somewhere on [redacted] Road". The note appears to record the mother demanded someone speak to her about extended time with J. The mother's behaviour was observed to fluctuate throughout the visit. At one point, she was polite and engaging, however, at another point, she became angry. On more than one occasion she was observed to whisper in J's ear. Towards the end of contact the mother was observed to again whisper in J's ear which caused J to become upset and tense up (CB.557). She began to cry and needed to be comforted by a caseworker. J confided in the caseworker that the mother has "spoken badly about carer and myself" when the mother whispered in J's ear. J told the caseworker she had wanted to end the visit earlier.
7. The October visit, on the other hand, was uneventful.
8. During the November visit J was observed to be nervous. She expressed the view that she wanted to make one of the caseworkers a Birthday card but that her mother does not like any caseworkers. The mother asked J at one point if she would like to see more of the mother and to go to her house and stay the night, to which J said, "Yeah". The mother had promised J an iPad. After the contact visit J told the caseworker that if she got it "they" might have to check her mother did not put a secret message on it or something "that shouldn't be there" (CB.566).
9. During the December visit J was again observed to be "slightly nervous" (CB.569). Having spoken at length about gifts the mother had for her other two daughters she explained she did not have the iPad as promised for J (CB.570). At the end of the visit J called her mother by her mother's first name. The caseworker explained the mistake was an accident and that appeared to satisfy the mother. The mother was upset at the use of her name and appeared to rebuke J (CB.570). The mother remarked that her other two daughters "do not know how" to speak to her because "they have been in care too long". After the visit J thanked the caseworker for assisting her and said she thought her mother was "going to get mad at me" (CB.572).
10. The visit in January portrays the mother exhibiting rather strange behaviour. She arrived at the visit seemingly not in a good mood. At one point she fell to the floor crying with her hands shaking. This obviously disturbed J who asked her mother what was wrong. The mother had her phone with loud music playing. She was upset about her daughter, V. The caseworker tried to placate her. The mother lay on the floor with a cushion under her head. At another point she stood up, turned the music on again loudly on her phone and started dancing in the corner of the room (CB.576). During the visit she was observed to have sudden mood swings and "her eyes appeared red and glassy". She went from dancing to crying, to using coloured pencils, during which time she appeared calm. She also made remarks which were critical of V's father and of the proposed adoptive mother.
11. Prior to the next visit in February J according to the proposed adoptive mother was worried about contact and told her she was "scared" to go to contact on that day. She was nonetheless taken by Mrs S to the visit. Having apologised again for not bringing J the iPad the mother started talking about her house where she was living and the fact that there was mould and that she had to get rid of it straight away as it attracted evil spirits and she did not want evil spirits in the house (CB.583). J was wearing a ring at the visit which the mother commented on. J said she had found it at the beach. In fact, the adoptive mother had given it to her. After the visit had concluded J confided in the caseworker that she did not want to tell her mother that the adoptive mother had given it to her as it might hurt her mother's feelings (CB.585).
12. By the June visit (Ex.Pl) J was recorded again as being nervous. She was worried the issue of adoption would arise and that her mother might withhold the Ipad due to the adoption. However, what was observed during this visit was that the mother kept calling J, "V". J only corrected her once. The visit was otherwise uneventful.

Consideration

1. Before coming to the principal issues in the case I should observe in passing that it is uncontroversial that the formal requirements under the Adoption Act 2000 (NSW) have been met. In particular, the requirements of ss 23(2)(a), 23(2)(b), 24(1)(a), 28(1)(a), 28(1)(b), 28(3)(a), 72(1), and 88(1)(a). I am also satisfied that the adoptive parents were selected in accordance with the Act (s 90(1)(c)).
2. The principal question is whether the Court can be satisfied that adoption is the clearly preferable option. That question needs to be viewed against the alternatives. The birth mother at the outset of her evidence said that she was not seeking restoration. She said, somewhat enigmatically, "not today". However, it has not been suggested that restoration could be a viable alternative as a matter of practical reality. The mother suggests that an order for adoption is premature. But that begs the question - why? J has been with the proposed adoptive parents for the whole of her life. She regards them as her de facto parents. There is no suggestion she will physically move anywhere. She has bonded with her "family" and her brother and sister, Y and W. The proposed adoptive parents have cared for her continuously since she was three days old. They have provided a loving, stable and secure environment for her. There is no suggestion nor could there be that they are not skilled carers or experienced parents. They have been appropriately vetted and no-one, even the mother, could suggest that they have not fulfilled their role comprehensively and successfully.
3. There has been a suggestion that the proposed adoptive parents have not made sufficient effort to get to know the mother or that they have acted unfairly in some way in not encouraging a relationship between themselves and the mother. They were so it seems encouraged not to engage with the mother. The mother does regrettably have a history which has included mood swings, substance abuse and aggressive behaviour. But for someone who will now not provide a mobile number or an email so as to facilitate contact is not reasonable in my view to lay the blame at the feet of the adoptive parents for not making contact an easy or constructive exercise. To communicate as she insists by registered mail is neither constructive nor helpful for J. The obvious resentment and animosity exhibited by the mother is not in J's interests, in the slightest and yet the mother seems to have no insight at all into the problem. To insist that arrangements are or should be just between her and J is both unreasonable and out of touch with reality. There is no doubt the adoptive parents harbour concerns about the mother and it may well be that things have been said by them out of frustration and which J may have heard but I accept that that is by no means a regular event. I also accept that they genuinely and quite correctly accept the need for J to have contact with her mother.
4. The evidence supports the conclusion J wants to be adopted. She has said so on numerous occasions, especially to her psychologist, Ms Matasau. She has, however, sometimes wavered in that view. Ms Post says, in my view plausibly, that her conduct in that regard appears to be as a result of wishing to appease her mother and avoid conflict. She has written a note to be presented in these proceedings quite clearly expressing that view. Although it has been suggested that Ms Matasau is not independent, there is no suggestion that she or anyone else put J up to the note. It is only one but an important example of her expressing her wishes in a most direct way. The birth mother also gave some evidence in which she appeared to accept that J wants to be adopted (T.119). l am satisfied on the evidence that J does have a sufficient understanding of adoption and the consequences and she should be heard.
5. I also accept Ms Matasau's assessment as to adoption being the appropriate option. Although she is not quite twelve, J by all accounts is an astute and intelligent person whose views in my view should be given appropriate weight. Of course, once she turns twelve subject to the provisions of the Act being complied with she would be legally able to give consent. Her views are very important but not determinative. Nonetheless they are to be accorded the respect they deserve.
6. The submission as to Ms Matasau's lack of independence is in my view misplaced. True it is she has had prior association with the adoptive parents but she is J's clinician and has spent a good deal of time listening to her and helping her cope with her anxieties which J has obviously found helpful. Of course, she is on J's side by reason of the role she plays. But the mother has not sought to counter any of the views expressed by Ms Matasau or for that matter Ms Post with any suitably qualified witness. The point to be made about Ms Post as I understood it was that she did not have extensive experience in the adoption assessment process. But again, I consider that criticism to be misplaced. She has spent most of her working life focusing on issues relating to children and families and in my view is well qualified to express the views she does. I accept the evidence of both she and Ms Matasau. I also accept the evidence of Ms Pilon.
7. I am satisfied as I have already said that the proposed adoptive parents are more than adequately qualified to attend to J's health, emotional and educational needs in all relevant respects. Rather than it being premature, I am satisfied it is timely and is clearly preferable that an order for adoption be made. Rather than maintaining the current care situation, it will give J a real sense of permanency, stability and certainty, which in my view she needs, and is in her best interests. I am cognizant that an order for adoption practically forecloses any aspiration to restoration but again I consider it in J's best interests. It will have the effect of serving her identity needs. She is in my view emotionally, psychologically, and residentially a member of the S family and an order will, as has often been said, bring her legal status into conformity with the reality and perfect her sense of permanent belonging in the family she identifies as her own (see Adoption of NG (No 2) [2014] NSWSC 680 at [76]-[80]; Adoption of N-Clay [2019] NSWSC 27 at [58]). It will also place her on an equivalent basis to the other S children, most importantly Y and W. She has good relations with the adoptive parents' biological children, especially X and Z. Through the encouragement and flexibility adopted by the adoptive parents J has a strong and loving relationship with her birth siblings, U and V.
8. The security and certainty provided by an adoption order may also provide a firmer basis for the adoptive parents to be supportive of contact between J and the birth mother and father. The relationship with the latter is certainly true. The relationship with the former will perhaps take an extraordinary amount of goodwill on both sides which at the moment is lacking but in time one trusts it can occur because it is in J's best interests.
9. It follows that I am satisfied that I should dispense with the consent of the birth mother and father (ss 67(1)(d), 67(2)). I am also satisfied that a change of name is also in J's best interests (s 101(5)).
10. The next question is the question of contact. The Plaintiff proposes four supervised visits a year. The mother opposes that course. Instead, as I best understand her position, she wishes to have at least monthly visits. The proposed maternal adoption plan is at CB.364-376 and the proposed paternal adoption plan is at CB.371-374. Before I come to the terms of each it should be observed that J's father has supplied his mobile phone for contact purposes whereas J's mother has not, a position she maintained through the hearing.
11. Having carefully considered the evidence and observed the various witnesses give their evidence I am satisfied that Mr and Mrs S can be relied upon to protect J's interests in and around contact. They have made arrangements for an experienced person to organise the contact which on the Plaintiff's proposal will take place four times a year. Costs associated with the contact visits will not be borne by the proposed adoptive parents. The basis upon which the plan is constructed is for there to be a minimum of four visits a year provided J wants contact to occur. The location is to be determined between J, her mother, the proposed adoptive parents and the supervisor. Because of the requirement set by the mother the only method of contact is via registered mail.
12. In considering this aspect of the matter I have had carefully to consider the totality of the evidence. Contrary to the mother's submissions I am satisfied the proposed adoptive parents have not deliberately subverted the process or sought to undermine the mother to J. Not only are they to be believed when they say J has been anxious around contact, observations to like effect have been made by others. There is no doubt in my mind that J had not only observed first hand her mother's unpredictable mood swings and angry responses, she has been reliably informed of similar episodes by her siblings and birth father I am sure.
13. It is clear from the evidence discussed above J has had some distressing and unsettling things occur at contact. Equally, it must be accepted that some contacts have been positive and loving. I accept that the proposed adoptive parents wish to support contact between J and her mother. The problem is that there have been a significant number of occasions when due to the mood the mother has been in from J's point of view unsettling behaviour has occurred in some form or other. I accept the evidence of the proposed adoptive parents that contact is anxiety producing for J. I also accept she has told others the same thing.
14. At one extreme, the mother was clearly in no fit state to have contact in January this year. Her behaviour was suggestive of her being on medication of some sort, or worse, that she was self-medicating. The reason she resorts to self-medication is connected obviously with issues associated with J and her other daughters, V and U. I am satisfied she is simply not coping with her own anxiety caused by the rather complex situation she finds herself in. That was apparent when she gave her evidence before me. Not only her manner of speech but the sometimes rambling and distracted way in which she gave her evidence indicates to me she likely has serious mental health issues. My observation of her during her evidence and in particular her manner of speech caused me to ask whether she was on medication at that time (T.130). She has of course provided no medical reports or evidence about any treatment or assistance she is or has had in relation to these issues. Examples which in my view expose some of her distracted and unfocused responses (which having made due allowance for the stress associated with proceedings generally and these proceedings in particular) are at TT.120, 128, 132, 134-135 and 136). But the problem is that notwithstanding Covid-19 she seems to regard the taking of her prescribed anti-depressants as discretionary (T.130).
15. There is also ample evidence of her resorting to cannabis to calm herself. She would not clarify when it was she last made use of it. None of this is said to find or attribute any blame on her part but is to put into context why it is not fair and not in J's best interests for her to have to deal with her mother's mental health issues and navigate around them depending on her mother's mood swings. She should see her mother and have contact with her but I regard monthly contact in the current circumstances as being potentially disruptive. By reason of the mother's intractable requirement that there be "zero contact" with the proposed adoptive parents simply means in my view that without a change of attitude the quality of contact will be a lottery as to what her mood will be and whether, given her attitude towards the proposed adoptive parents, she may simply use it as an opportunity to denigrate or criticise them. Supervision, given her attitude, should therefore continue but it cannot obviously occur with the proposed adoptive parents directly. That is no way to build a relationship which would clearly be in J's interest. She is seemingly resentful of J's bond with proposed adoptive parents and blames Mrs S in particular for J's attitude towards her. She fails I consider to see rationally that the proposed adoptive parents are regarded by J as her emotional and psychological "mum" and "dad". I understand the birth mother finds that hurtful but her inability to accept that reality is significantly in my view marring her relationship with J.
16. Whilst it is crucial not just ideal for birth parents to maintain contact with their children it will sometimes be detrimental for excessive contact to occur. This in my view is such a case so far as the mother is concerned and I consider at this stage monthly contact would likely be excessive. I am satisfied that the maternal plan is appropriate in all the circumstances (s 90(2)). In the absence of the mother providing evidence that she has addressed what I see to be her various issues by at the very least regular contact with an appropriate clinician I am concerned that her anxiety and anger issues are likely to worry J, with her feeling either the need to protect the adoptive parents or as I have said navigate around her mother's difficulties.
17. The plan is designed to ensure that J is able to be heard on the nature of the contact, so that any concerns surrounding her contact are appropriately addressed. As the plan provides for a minimum of four visits, J's views about increased contact should this arise must be listened to and given weight. The plan is entirely appropriate in relation to siblings and significant others. I am also satisfied that the manner and method of contact proposed with the birth mother and others in the circumstances are appropriate, as is the regime for exchange of information. The proposed adoptive parents have signed the plan and I am satisfied they will implement it accordingly.
18. So far as the paternal adoption plan is concerned, it is entirely appropriate. In particular, the number, frequency and length of the visits are reasonable and appropriate for the birth father and relevant siblings. The manner and method proposed for telephone and electronic contact along with exchange of information are also appropriate.
19. In all the circumstances I would make an order for adoption, dispense with the consent of the birth parents, make the order concerning J's change of name, and I approve both of the proposed plans for contact with the birth mother and father.
20. I also propose to make the declaration sought by the Secretary that M N is the father of J and am of the view that he ought to be included as J's father in the Register of Births, Deaths and Marriages. Mr N has not opposed this course and I consider it appropriate in the circumstances.

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