The Secretary, New South Wales Department of Family and Community Services v Zara - [2018] NSWSC 580 - NSWSC 2018 case summary — Zoe

NSWNSWSC

The Secretary, New South Wales Department of Family and Community Services v Zara

[2018] NSWSC 580

Supreme Court of NSW|2018-02-09|Before: Kunc J

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Source facts

Court

Supreme Court of NSW

Decision date

2018-02-09

Before

Kunc J

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Summary

By amended summons filed on 25 November 2016, the Secretary of the New South Wales Department of Family and Community Services (the "Secretary" and "FACS") applies for an adoption order under the Adoption Act 2000 (NSW) (the "Act") of Evie in favour of Penny. Zara, Evie's birth mother, opposes the adoption.
Ms S Christie of Counsel appeared for the Secretary. Zara appeared for herself. Other than Counsel and the departmental and expert witnesses, the names of the central participants in these reasons are pseudonyms. No disrespect is intended by the use of given names.
Evie was born in 2007. She is now 10 and a half years old. She was placed with Penny in 2009, when she was about one and a half years old. She has lived continuously with Penny for most of her life. The Secretary submitted that restoration to Zara was not possible and was not in Evie's best interests. This was because of, first, the length of time in which Evie had been in Penny's care and the strength of Evie's consequential attachment to Penny and, second, because Zara was not capable of providing the safe, stable and nurturing environment a child requires. To that end, the Secretary submitted that Zara's consent to the adoption should be dispensed with pursuant to s 67(1) of the Act, and that an adoption order should be made in favour of Penny for Evie. The Secretary also sought an order dispensing with Evie's birth father's consent because his identity was unknown and reasonable inquiries had yielded no information about his identity or whereabouts.
For her part, Zara passionately advocated that Evie should be restored to her care. She submitted that Penny was emotionally abusing Evie or was at least "brainwashing" Evie and causing her (Evie) to detach from Zara; that the adoption agency was facilitating this process of "brainwashing"; that there was insufficient evidence to support the assertion that Evie was scared of Zara (which was a contributing factor in contact ceasing in 2014); that her (Zara's) fitness to parent should not be judged on an historic incident of poor parental judgement (see paragraph [24] below); and, that she was capable of providing Evie with adequate parental care and support but had been deprived of the opportunity to do so.

[2]

Procedural matters and adjournment application

These proceedings have been somewhat drawn-out, mostly to ensure that Zara, as a self-represented litigant, was accorded procedural fairness. In addition to the preliminary and substantive hearings, there have been multiple pre-trial directions hearings and communications between Zara and the Court.
On 30 June 2017, an extension of time for the serving of her evidence was granted at Zara's request by email.
At the preliminary hearing on 17 July 2017, in response to Zara's reasonable requests that updating evidence regarding Penny and Zara's respective general circumstances and mental health be put to the Court, the Court ordered a further report be produced on behalf of the Secretary: "6. Appoint Dianne Starkey as expert to prepare an independent report for the Court and address: (a) parenting capacity and mental health issues if any for Zara; (b) parenting capacity and mental health issues if any for Penny; (c) appropriate contact arrangements having regard to (a) and (b). 7. The expert is to be informed that Zara alleges Evie had been the victim of emotional abuse by Penny and the Court directs that it will be a matter for the expert to determine in whose company and in what order Evie, Zara and Penny are seen by the expert. … 9. Ms Starkey's report is to be provided to the parties on or before 29 September 2017. 9A. Within 14 days after receiving Ms Starkey's report the Secretary serve an updated adoption plan which addresses, in particular, proposed contact arrangements."
On 28 November 2017, Zara applied by telephone for orders that there should be an observational assessment of a contact visit between Evie and Zara. The Secretary objected. However, it was agreed that Zara could file an expert report outside of the proposed timetable. The Court ordered: "1. Leave is granted to the defendant to file and serve a report from a qualified psychologist who has sworn to abide by the expert code of conduct, such report to be filed and served by 19 January 2018 dealing with the following questions: a. Any comments on Ms Dianne Starkey's clinical psychological report dated 28 September 2017, including what outcome is in the best interests of the child between maintaining the status quo, adoption by the current carer, or restoration to the defendant; b. An assessment of the defendant's mental health; c. Whether, in the opinion of that psychologist, it is necessary for the purposes of these proceedings for there to be an assessment undertaken of the defendant and the child interacting together and how, if at all, that can be done in a way that is safe for the child?; d. Any comments on the proposed contact arrangements as contained in the adoption plan. … 5. Between 19 January 2018 and 6 February 2018, Ms Starkey and the defendant's psychological expert are to meet in conclave and prepare a joint experts' report which is to be filed and served on the parties on or before 6 February 2018; 6. The joint experts' report referred to in order 5 is to set out: a. Those matters on which the experts agree; b. Those matters on which the experts disagree; c. In relation to any matter on which the experts disagree, the reasons for that disagreement;"
Those orders resulted in Zara filing an expert report by Mr Warren Freeman, a registered psychologist, dated 15 January 2018. The joint experts' report of Ms Starkey and Mr Freeman referred to above was produced on 25 January 2018 and was provided to the Court on the first day of hearing (the "Joint Report").
On 13 December 2017, a further extension of time for evidence in reply was granted to Zara by orders made in chambers on her application.
On the first day of hearing, Zara made an application for adjournment in order to allow an opportunity for an assessment to be undertaken by a psychologist of a controlled contact visit between Evie and Zara. Zara believed this was the only way in which an informed decision about prospects of restoration and adoption generally could be made. If such an assessment were to take place, it would have been the first face-to-face contact between Evie and Zara since October 2014.
I refused the adjournment application for three reasons.
First, there was already sufficient information before the Court (including, in particular, the Joint Report) for me to make an assessment of the current situation and the steps which should be taken in Evie's best interests. I was not satisfied that any further information was required or that an assessment of this kind would necessarily have returned useful evidence.
Second, I took into consideration the opinion provided in the Joint Report on this point: "19. Ms Starkey explained that the reason that she did not observe Evie with her mother during the assessment conducted was because the child had not seen her mother for over three years and it was Ms Starkey's belief that an assessment situation was not the time to resume contact for a child who has been fearful of seeing her mother for so long. Ms Starkey was of the opinion that an unbiased and real assessment of the relationship between the mother and child could not be made in such circumstances. Mr Freeman agreed that this could be a problem in terms of making an assessment of the relationship. He was of the opinion that if the [agency] workers were not present at contact then contact would have been better. 20. After some discussion, both psychologists agreed that Evie would require some counselling first, as recommended in Ms Starkey's report, prior to contact with her mother being reinstated, Mr Freeman spoke strongly about the fact that he would like there to be another chance for the reintroduction of contact. Ms Starkey agreed."
Third, the hearing of these proceedings had already been delayed more than once. As noted above, the proceedings had been adjourned and extensions of time granted to the defendant on several occasions. Section 8(e1) of the Act provides that "undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare". It seemed to me that further delay should not be allowed to enable an assessment of doubtful utility where the last instance of contact ended with Evie experiencing some distress (see paragraphs [29] to [31] below), and where both Ms Starkey and Mr Freeman had agreed that counselling would have to take place before contact resumed, and that, in any event, any such assessment may not be particularly informative or reflective of the true nature of the relationship and bond between Evie and Zara.

[4]

Evie's family and care history

Evie was born in August 2007. Her mother, Zara, was 27 years old at the time Evie was born. The identity of Evie's birth father is unknown to the Department and Zara was only able or willing to provide the Court with Evie's birth father's given name.
Evie has a maternal half-brother, Byron, who was born in August 2000. He was assumed into care in 2003. In 2004, parental responsibility for Byron was allocated to the Minister for Family and Community Services (the "Minister") until Byron attained 18 years of age. Byron and Evie have never lived in the same household. In October 2015, Byron self-restored to Zara. He ceased living with Zara in about June 2016 and returned to a residential supported place. He has recently expressed a desire not to know of his mother's whereabouts. Evie and Byron currently have contact four times per year during school holidays. Evie has said that she wishes this frequency of contact to continue.
FACS has been involved with Evie's family since 2003. Between August 2007 and Evie's removal from Zara's care in November 2008, FACS received at least 11 risk of harm reports relating to Evie which raised various concerns including about Zara's alcohol and other substance abuse, her unstable emotional state and the risk of physical harm to Evie. It is important to emphasise that in determining the present application, the Court is not concerned with the truth or merits of the reasons for Evie or her half-brother coming into the child protection system. The Court's decision in relation to Evie's adoption is made on the basis of the evidence of circumstances as they currently stand and by reference to the paramount consideration of what is in Evie's best interests.
In November 2008, the decision was made to remove Evie from Zara's care after Evie had attended day care with a red handprint or welt on her leg, which was reported to FACS. Zara later admitted to caseworkers that she had smacked Evie.
After her removal from Zara, Evie was placed in emergency overnight care, followed by a temporary placement for about five months before coming into Penny's care in March 2009. In July 2009, final orders were made allocating parental responsibility to the Minister until Evie attained 18 years of age and Evie was placed into Penny's care for the long term. The Children's Court determined that there was no realistic possibility of Evie being restored to Zara. However, orders were made providing for two hours of supervised contact fortnightly for three months and once a month thereafter. No order was made on that occasion in relation to sibling contact.
In August 2009, Zara filed an appeal in the District Court against those orders and sought restoration of Evie to her care. Zara was legally represented for the four day hearing. In December 2009, Judge Sidis found that there was no realistic possibly of restoration and the appeal was dismissed.
In October 2012, Zara filed an application in the Children's Court pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) in relation to Evie either to rescind completely the final orders of the Children's Court of July 2009 or to vary the orders in respect of contact. The application was dismissed in July 2013 and further orders were made rescinding the contact order made in July 2009, but noting the intention of FACS that supervised contact should take place four times a year for a minimum of two hours. These orders remain in force and decisions regarding contact including appropriate frequency have since been at the relevant authority's discretion (FACS initially and, from January 2014, the adoption agency).

[5]

Contact visit history

On 22 October 2014 (the "last contact visit"), contact visits between Evie and Zara were stopped and have not recommenced.
The evidence demonstrates that, at least initially, contact visits between Zara and Evie went well. However, in the period leading up to the last contact visit from about June to October 2014, Penny reported that Evie appeared emotionally distressed following contact visits with Zara (including crying, bed wetting - something which had not occurred since Evie's infancy - and saying that she was scared to be alone).
During the last contact visit, Zara became exasperated during the visit and raised her voice at the attending caseworkers in Evie's presence. Evie withdrew from Zara and requested the visit come to an end shortly thereafter. Agency caseworkers intervened. This further exasperated Zara who, once Evie had left the room, became verbally abusive and threw a cup of water at a wall in the direction of the caseworkers. A caseworker's notes of the contact visit record that Evie subsequently stated to her: "I don't want to have any more visits". The caseworker's notes then state: "Recommendation: Evie was extremely anxious and fearful as a result of Zara's aggressive outburst and is now stating she does not wish to have any more visits. Senior Manager … recommends Evie receive counselling and Program Manager Adoption Team … recommends for Evie to undergo a psychological assessment relating to birth family contact."
Evie continued to refuse to attend contact visits for several months after the last contact visit. The adoption agency organised for an assessment of Evie with Ms Lindfield to address "Evie's recent ambivalence about contact with her birth mother" and to provide recommendations regarding what a suitable level of contact in future may be. This retainer resulted in the Lindfield Report.
At about this time, Penny reported to the adoption agency that Evie had asked when she would be seeing Zara again.
Several attempts have been made by the adoption agency to discuss with Zara the manner in which contact could be resumed between her and Evie. Such discussions have not taken place. In part, this was because Zara refused to meet with the adoption agency to consider any proposal. In an email of 27 April 2017 to the adoption agency, Zara stated that she did "not feel safe" attending a meeting at any of the agency offices, particularly after "the fight [the caseworker] picked with me, cancelled contact & made my daughter cry". She requested that any meeting with the agency take place on neutral territory and in a convenient location for her, being her home town.
The adoption agency maintained the position, which the Lindfield Report had recommended, that contact could not recommence until a meeting had occurred between the adoption agency and Zara. It is clear from the correspondence that by mid- to late- 2015, Zara's antipathy for the adoption agency and resentment of the situation generally was impeding her ability to cooperate with the adoption agency at all.

[6]

Evie

Evie is now 10 and a half years old and has lived continuously with Penny for most of her life (about 8 and a half years). She is described in the Lindfield Report as "a bright and loving girl" who "shares a close and loving bond with her carer Penny". The evidence on the topic all supports the conclusion (and I find) that Evie has benefitted from the stability provided by Penny's care and that she has been meeting her developmental milestones since entering into that care, whereas she was previously somewhat delayed.
Evie has been diagnosed with tall stature, premature adrenarche, advanced bone development, hypertension, and hypothyroidism for which she has or continues to receive treatment. Otherwise, she is in good health generally and sees her GP when necessary.
Evie is too young to consent to her own adoption. However, there is evidence (which I accept) that she looks forward to being adopted by Penny, whom she views as the mother that "she wants to stay with forever". It is clear that Evie has a strong attachment to Penny and that she considers Penny and Penny's extended family to be her own. Evie has also indicated that she is afraid of the possibility of being taken away from Penny or of not seeing Penny if she were restored to Zara. During a home visit with her caseworker in February 2017, when asked how being adopted by Penny would make her feel, Evie responded that it would not make a difference because she always thought she was adopted by Penny. In March 2017, Evie's caseworker reported that Evie had "asked if she would meet the judge and questioned whether she had to wear a dress" to her adoption. Along with other evidence, these interactions support the making of an adoption order. An adoption order in favour of Penny would cement Evie's everyday reality into a legal reality and should provide her with stability and a beneficial sense of permanence.
Nonetheless, Evie does identify as having "two mums" and has requested that she would like to retain her full name because it is important to her sense of identity and connection to her heritage and birth family. It seems that Evie particularly likes sharing this name with her half-brother Byron (though she no longer shares her surname with Zara who changed her name back to her birth name in 2013).
Evie has also expressed an interest in seeing Zara again in a calm and stable environment.
She quite clearly loves Zara and cares about her wellbeing in a way I find very mature for someone of her relatively young age. For example, the Starkey Report records: "98 Evie was asked how she would feel about seeing Mum Zara again. She said that it would be good to finally get to see her after such a long time. When asked what would be good about it, she said that Mum Zara would then not miss Evie as much. When asked if she worries about Mum Zara, she said that she did. She said she would like to see her "just to make sure that she is going all right with her social life and not making bad decisions or doing things that will ruin the future of her life". When asked if she has been scared of Mum Zara, she said that she was sometimes scared because sometimes Mum Zara is a bit mad (meaning angry). When asked, she said she has not talked to Byron about this. She volunteered that Byron loves their mother but he does not think that their mother cares for him because she does not want to see him. She said "something bad happened to him and Mum but we don't know because he won't tell us". She said he talks on the phone to Mum Zara but he does not visit her anymore because he chooses not to. When asked what might be the bad things about seeing Mum Zara, Evie said "she probably would get mad at the caseworkers for not letting her see me, but they did. They were texting her but she didn't answer back" "
In the Joint Report, both experts agree that supervised contact between Evie and Zara could be reinstated in the near future if Evie receives appropriate counselling prior to contact and continues to be amenable. The Joint Report also recommended that contact should take place in an environment independent of the adoption agency or Penny's supervision in light of previous contact visits and given the history of tension generally. This was a view also expressed in the Starkey Report: "186. Contact between Zara and her daughter has not occurred for the past three years. Sadly Zara has not been willing to participate in planning meetings or other meetings that would lead to her being able to resume contact with Evie. The introduction of contact, should it occur, will need to be gradual so that Evie can be assured of her own safety. I would recommend that initially mother and daughter exchange letters and photos and other things such as gifts so that they can re-engage in a nonthreatening manner. It is my opinion that Evie should attend counselling with a counsellor experienced with children who have parents with a mental health issue. Evie's feelings need to be worked on so that she is ready before any contact occurs."
The Secretary has, correctly in my opinion, embraced the recommendations of the experts. This is reflected in the amended adoption plan in order to facilitate the best outcome for Evie and to accommodate, where possible, Zara's requests that contact not be supervised by the adoption agency, and that it should occur without Penny and be outside of an office environment. I accept the expert evidence to which I have referred and the Court will approve the amended adoption plan accordingly.

[8]

Zara

Zara is 38 years old. She is currently unemployed and receives a disability support pension/Centrelink benefits of about $900 per fortnight. This is her only source of income. She has a small amount of savings. Zara said that she previously worked a few days a week at a pub in Victoria. Zara said that she intends to find employment soon and has made inquiries about undertaking some voluntary work in her local area. However, she stated that if Evie were restored to her care, she would postpone her employment search to be available to assist Evie settle into her new environment.
Zara reports a degenerative spine and neck condition for which she is seeking treatment. She said she is not currently seeing a psychiatrist or psychologist but is prescribed, presumably by her GP, an antidepressant which she takes daily. She sees a social worker for counselling purposes fortnightly.
In January 2015, Zara moved from Victoria to a small country town in New South Wales. She currently lives alone in community housing which she described as a basic three-bedroom cottage with lounge and dining areas, a reasonable sized kitchen and fenced yard. The house is within walking distance of local schools, shops and the train station. Zara has recently used some of her savings to make some improvements to the house such as installing air conditioning.
As she is new to the area, she has yet to build an extensive network of contacts within the community, though she noted she had befriended some locals. She did not seem to have any plans about who might care for Evie in the event that Zara was unable to, for instance because of illness, other than relying on Evie's 16 year old half-brother Byron. She acknowledged that "upon Evie being returned back to my care that a lot of things would change" and that she would have many new responsibilities as a full-time carer and single parent.
Zara has a history of varied mental health and behavioural issues including diagnoses of borderline personality disorder, bipolar II depression, and anti-social personality traits. She has also had (and the evidence indicates continues to have) problems with substance abuse, notably alcohol and marijuana.
Zara has difficulties with anger and emotional regulation generally. The Court's attention was drawn to incidents of Zara's aggression and her argumentative nature, including being physically aggressive towards both Evie (smacking her when about 18 months old, see paragraph [24] above) and, more recently, Byron. For example, Zara admits to punching him in the arm in early 2016 after they "had a small heated argument where we both said horrible things to each other".
There was also in evidence FACS notes from a home visit with Byron in May 2016 which document instances of aggression and violence by Zara towards Byron. Zara admitted that those incidents had occurred. The notes state: "Byron spoke about the previous physical and verbal abuse by his mother Zara since self-placing with his mum. Byron and Zara had both reported this had ceased and the placement had been going very well at the previous home visits. I raised this issue with Byron and he disclosed that Zara had hit him three days ago and had been verbally abusive on many occasions. When I asked him about the last time Zara had hit Byron, he told me that it was "just a slap across the face" not like the other times when "she has belted the shit out of me". I spoke to Byron about these times, and he explained to me that when his mum drinks alscohol she always hits him and yells at him. I told Byron that violence and verbal abused was not ok, and that he did not have to live in an enviornment like that. I told Byron that what he was experiencing was not a "normal" and that if he does not feel safe at home, that we can look at other options. Byron told me that he was sick of being called names every day and that he didn't know how much longer he could put up with it. Byron told me that his mum has a diagnosis of bi-polar disorder and she is not taking any medication for this. … Byron told me that he wants to live with his mum, and that she is always what he has wanted but he is sick of the way she treats him."
Police incident reports concerning Zara were tendered in evidence. These reports included: 1. A noise abatement request in July 2017 which notes that Zara stated "she had a hangover from partying all the night before." 2. An alleged assault against Zara in October 2016 which was cleared immediately and where it was noted that "[Zara] was well affected by intoxicating liquor as she was at times incomprehensible… given [her] level of intoxication no statement was able to be obtained… police re-attended… observed that [Zara] appeared to continue consuming intoxicating liquor and at this stage was well effected talking loudly on the mobile phone when police arrived". 3. Another in October 2016 which documents death threats Zara made against her former psychologist for whom she had unsatisfactorily completed a period of housesitting. The disagreement was regarding cannabis use in the house and costs incurred by Zara during her stay. The police report states: "The following message was left [on the former psychologist's phone]. "You fucking cunt, I'll kill you. If you make life hard for me, I'll make life hard for you. I'll say you're selling heroin to your patients. I'll plant something. You're fucking crazy". 4. A personal violence incident in August 2016 where she "was heard to yell "I'm going to fucking kill him" " following a hearing in the Civil and Administrative Tribunal regarding a dispute Zara was having with her former landlord.
Zara also gave evidence of an altercation with a flatmate which occurred in about September 2016 (and verified by the police records in evidence): "Q. Was there an incident in September 2016 where you and you flatmate had an argument and your flatmate left with the belief that you were going to kill him? A. No, no, I believe that I had gotten out of the shower and I was getting dressed and I - there was an incident, I think, between Byron or with, with Dennis surrounding Byron and I remember reporting to Kylie, I said that I saw the knife block in the bedroom and I said that I knew that - that if it was any other situation and any other character, that I, I would - I was feeling like I could kill him and I walked out and went down the street and went and spoke to Kylie about it and didn't go back until, I don't know, I don't think it was until later on that night. Q. So you went and spoke to your support worker about the fact that having seen the knife block, you needed to remove yourself from the house? A. Mm-hmm."
I have already recorded that Zara has also had ongoing issues with the adoption agency which she perceived to be working directly against her and "interfering with contact". She is reported to have been at times difficult to work with, to use offensive language and to be generally disrespectful and impolite to agency caseworkers (including what occurred at the last contact visit - see paragraphs [28] to [31] above). At several points during the hearing, Zara indicated her frustration at the presence of agency representatives in the court room, saying, for example, "I don't feel safe around them. They make me sick. I don't even feel comfortable with them sitting in this courtroom here today".
Zara took issue with characterisations of her as "volatile" but acknowledged that she is a very "passionate" person. She said "Yeah, definitely [passionate] but that's not passionate you know with "fist city" written on my knuckles, you know, I'm not passionate about hurting somebody".
It was obvious to me during the course of the substantive hearing that there were points at which Zara struggled to maintain her composure and to control her strong, emotional responses. She was inclined to interrupt and was, at times, impetuous and discourteous to the Court, counsel and witnesses. For example, the following interaction occurred during Zara's cross-examination of Ms Starkey (with Zara speaking in what I considered to be an aggressively sarcastic tone of voice): "DEFENDANT: Ms Starkey, you, you said that I - you attempted to calm me down or, or something of that effect and, and you failed to do so. In-- WITNESS STARKEY: To help you down‑regulate, yep. … That means calm down, yes. DEFENDANT: And you've been a therapist for 40 years? WITNESS STARKEY: Yes, I have. DEFENDANT: You can't be a very good therapist if you can't calm me down. WITNESS STARKEY: Is that a question? DEFENDANT: No, that's, that's a statement, yeah? Secondly, you were in my home when this happened, yes?"
Court proceedings are often stressful. Contested adoptions can be especially so. I am always inclined to give unrepresented birth parents the maximum benefit of the doubt when considering the extent to which what I have observed in Court may be a reliable indicator of how the person will behave in a more normal environment. I have adopted that approach in this case. However, even with that allowance, I conclude that the behaviour which I observed was the type of behaviour attributed to Zara in all of the expert reports, including Mr Freeman's. The Court finds that Zara has a volatile personality, prone to emotional outbursts and well capable of verbal and, at times, physical aggression. That remains the case notwithstanding whatever counselling she is having at the moment (see paragraph [47] above). It is unnecessary for me to make any finding about the clinical basis for such behaviour. To the extent there is such a clinical basis, Zara's vehement denials of any such diagnoses demonstrate a troubling lack of insight on her part.

[9]

Zara's submissions

Zara provided the Court with several written submissions. With no disrespect intended, they were often discursive and hard to follow. They seemed in places to allege conspiracies directed against Zara and her prospects of being reunited with Evie. Although still sometimes unfocussed, Zara's oral submissions were somewhat easier to follow. The overall thrust of these submissions was that she vehemently opposed Evie's adoption by Penny because of "psychological and security concerns" for Evie. She saw adoption as an unnecessary process that would be "a huge injustice" if it were to proceed.
The specifics of these "psychological and security concerns" were not clearly articulated, but were largely levelled at Penny personally. Zara's submissions were that: 1. Penny seemed "to be some sort of attention, addictive drama‑addicted sort of personality" which she did not "think that is good for Evie"; 2. adoption was something that only Penny wanted; 3. Penny wanted recognition and "to be rewarded" (presumably for her role in raising Evie) through the adoption process; 4. Penny was "brainwashing" Evie and "getting in Evie's ear". She believed that Evie did not in fact wish to be adopted but that Penny had coerced or encouraged this desire in Evie. This was particularly "because she [Evie] comes out with things that can only come from an adult." 5. Penny was feeding Evie damaging information regarding Zara. For example, she said: "There seems to be a lot of ‑ is it mis‑informing? Information as far as in front of Evie as far as my capacity to care for her or my capacity to have cared for her; that the child has been in earshot on more than one occasion where it is reported that I am an intravenous user, that the child was never fed any food, she was only fed cow's milk, that she never had any interaction with anybody, not even myself. She was locked in a cot." 1. Penny was generally disingenuous or deceitful and was impeding contact visits: "I don't believe that Penny is genuine in any way or even telling the truth in any way when she says she hopes to have a respectful relationship with myself as I am Evie's birth mother. She is constantly in Evie's ear about how she does not like it when she calls me "Mum". She does not like it when she calls Penny "Penny". … Penny appears to be very misleading when it comes to contact with Byron. Apparently Evie in the last contact visit of July, I think it was, became confused as to why Byron wants to see her every month and Penny did not do anything about it. Instead Penny does what Penny does and just refuses to bring Evie along to another contact visit. This little boy has done nothing wrong in all of these proceedings." 1. When she was older, Evie would eventually "desire to leave Penny because of her mental torment" and that there was insufficient evidence to indicate that Evie could not be successfully restored to Zara's care.
Zara also referred to an accident Evie had in about 2012. While not specifically put, the implication was that the circumstances were suspicious, the underlying allegation being that Penny was somehow involved: "There was a fall in the shower that Evie apparently had at the age of five where she jumped up out of a ten hour sleep and went straight into the shower which, I mean, she is a little girl. Five year olds I don't think do that. I could be wrong. She could be one of very few that does do that. You know, she was reported to be unresponsive. Penny had to take her to the emergency room and once this was brought to my attention in a review I was actually shut down and told that it was nothing more than a dizzy spell."
It seems that, at one point, Penny raised her own concerns or fears regarding Zara's volatility and her (and Evie's) own personal safety. Penny explained to the Court: "As for security issues, we ‑ I do have a safety plan which I have discussed with [the adoption agency]. If Zara does come to our house, and it is a very clear plan, we would ask her to leave. I then would, if she did not leave, I would call the local police. At no time part of that security plan was to call my family."
In addition to the shower incident referred to above, this "safety plan" seems to be the basis of Zara's "security concerns". Zara stated: "Any security risk is I don't know who her family is, if she is attached to the Mafia or the T58 gang or some bikie club, I'm not sure, but what the point is of calling her family I don't know, and how this is supposed to keep this little girl safe I am not sure."
In relation to contact, Zara's request generally was that contact should not be supervised by the adoption agency, that Penny should not be present, and that contact should not occur in an office environment. In regard to what she thought was appropriate contact if adoption were to proceed, she stated: "At an absolute bare minimum, your Honour, every second weekend and if not half ‑ if not the full of the holidays every Christmas, every New Years and at least half of them and birthdays and Mother's days definitely."
In summary, Zara's submissions were to the effect that Penny was not a suitable parent to Evie and that Evie should be restored to her. While I will deal with Zara's allegations further below, I should immediately say that I do not accept any of Zara's submissions as to why Penny is unsuitable to adopt Evie. This is both because there is no evidence to support them and because the evidence is all to the opposite effect.

[10]

What order should be made in relation to dispensing with consent?

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."
What is a "reasonable inquiry" for the purposes of s 67(1)(a) is to be "evaluated from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made" per White J in Re K and the Adoption Act 2000 [2005] NSWSC 858 at [22]. White J further explained at [21]: "Before consent can be dispensed with under s 67, it is necessary, but it is not sufficient, that the Court is satisfied that dispensation of consent is in the best interests of the child. In order to dispense with the consent, one of the paragraphs in subs 67(1) must be satisfied."
Evie has never had contact with her birth father. Zara has been unable or refused to provide sufficient information to FACS or the Court either to identify or locate Evie's birth father. She told both FACS and Ms Lindfield that she knew where he was but would not disclose anything about him unless Evie asked. In evidence before me Zara said that she was unable to confirm whether or not the birth father was still living. In those circumstances I am satisfied that the Secretary has made "reasonable inquiry" for the purposes of s 67(1)(a) by inquiries made of the only known person who may have such information, being Zara. As I set out below, I am satisfied that adoption by Penny is in Evie's best interests. That cannot occur unless the birth father's consent is dispensed with. I am therefore satisfied for the purpose of s 67(2) that is in Evie's best interest to dispense with her birth father's consent and the Court will make that order pursuant to s 67(1)(a).
A similar logic applies to explain why the Court will dispense with Zara's consent under s 67(1)(d). The same evidence upon which the Court relies for the conclusion that adoption by Pennuy is in Evie's interests informs my finding (which I make) that s 67(1)(d)(i) and (ii) are satisfied. As I set out below, I am satisfied that adoption by Penny is in Evie's best interests. That cannot occur unless Zara's consent is dispensed with. I am therefore satisfied for the purpose of s 67(2) that is in Evie's best interest to dispense with Zara's consent and the Court will make that order pursuant to s 67(1)(d).

[12]

Section 8(1)(a) - best interests of the child both in childhood and later life, must be the paramount consideration

In dealing with this consideration, s 8(2) of the Act makes mandatory as the first consideration of the decision maker in determining the best interests of the child "any wishes expressed by the child". For the reasons and by reference to the evidence which I have set out above, I am satisfied that Evie has a clear wish, which is free, informed and rational, to be adopted by Penny. In that regard, I repeat what I said in The Secretary, New South Wales Department of Family and Community Services v Hanna [2018] NSWSC 77: "69. However, in case the matter goes further, I should make plain that I do not consider even a strong expression of wishes to be determinative of the application. In my respectful view, on the proper construction of the Act, even a strong wish by a child to be adopted is no more than a very important factor among those matters which the Act requires a decision maker to take into account. … 72. First, s 8(1)(d) of the Act provides that (emphasis added) "If the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances". "Due weight" is not absolute weight. 73. Second, as any parent or teacher knows, in some circumstances even the rational wishes of a child are not in the child's best interests. That is a judgment which a parent, teacher or, in this case the Court, is familiar with having to make on a child's behalf. Sometimes that decision must be made notwithstanding, and in anticipation of, the strongly expressed objection of the child."
I have taken into consideration that adoption may not be the only available course of action in Evie's best interests. However, as I have indicated throughout these reasons, the evidence weighs heavily in favour of adoption being in Evie's best interests now and into the future. That evidence includes Evie's wishes and the desire she has expressed to be adopted. I am fortified in this view by the opinions of all three experts referred to above that Evie has flourished in Penny's care and that restoration to Zara at this stage would not be in Evie's best interests.

[18]

Section 8(2)(g), (h) and (i) - (g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, (h) the nature of the relationship of the child with each proposed adoptive parent, (i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child

I have already drawn attention to the fact that Evie regards Penny as her primary caregiver. Penny has clearly provided Evie with a stable, nurturing environment in which to live for the past eight or so years. Their relationship has been characterised as a loving "mother daughter relationship" and Evie has been noted to display behaviours indicative of her strong attachment to Penny, including reverting or deferring to Penny in contact visits and being loyal and protective of Penny.
As noted above, Penny has embraced the responsibilities of parenthood and has competently attended to Evie's physical and emotional needs. This has included paying for Evie's medical care and her private school tuition, and encouraging and facilitating her developmental progress.
In assessing suitability and capacity, the Court's role is not to undertake a financial analysis of the respective parties and determine an adoption application on an economic basis. I have given some consideration to material circumstances, but only to the extent that Evie will continue to be provided with adequate care and, particularly, appropriate and secure accommodation.
First, I note that Zara has an itinerant history. In the last five years, she has lived in rented accommodation in Raymond Terrace, Muswellbrook and in Victoria, and has only just recently settled in rented accommodation in the NSW country town where she now lives.
Second, Zara has a history of being in troubled domestic circumstances, by which I refer to altercations with flatmates and neighbours and difficulties with landlords and the like in the past (see paragraphs [53] to [54] above). This has contributed to her itinerancy. I acknowledge she is now living alone. However, the sources of potential irritation, such as neighbours, still remain.
Third, she currently resides in community housing, which often lacks security of tenure. While I have no doubt that Zara would do her best to provide Evie with a nurturing home environment, all of the evidence leads me to the conclusion that the Court cannot be confident that Zara would be able to meet her stated aspirations.
Penny, on the other hand, owns her own home subject to a mortgage which she is currently paying off. She has lived in the same house for 12 years and there is no suggestion she intends to move in the near future. The house is of a suitable size and nature to accommodate Penny and Evie and, importantly, Evie is settled there and would naturally have a sense of belonging to what she has grown up to know as her home.
I have carefully considered Zara's submissions (set out at paragraphs [59] to [65] above) regarding Evie's security, psychological wellbeing and the general care Penny is providing. As I have said in paragraph [65] above, I cannot accept those submissions.
Penny presented as a capable and insightful carer who has bonded with Evie and had Evie's best interests at heart. While there is undeniable tension between Penny and Zara, and Penny has expressed some reservations about Zara's behaviour at contact visits and concerns regarding Evie's emotional response to Zara, Penny has not attempted to discourage or impede contact or to prevent the development of Evie and Zara's relationship. There is evidence that Penny has offered to cover the costs of future contact visits between Evie and Zara in order to facilitate that relationship and she has expressed a desire to help Evie overcome any anxiety about seeing Zara.
When I asked Penny about possible terms of contact, if contact between Zara and Evie were to be restored, Penny responded: "A. I think the most important thing is that Evie feels secure at contact. It was proposed we were trying to do contact four times a year in the office and I think that is possible as long as the contact is positive for Evie and, as well, as long as Zara…Evie has asked that Mum listens to her and she listens to other people. That is what Evie wants. She wants to feel safe and secure and to have fun during contact and she wants Mum to listen to what she has to say to Mum and what other people ask Mum to do. Q. Do you have a view, assuming for example, another adult was present to assist in the contact, do you have a view as to how you would feel about not being there? A. I want whatever is going to make Evie happy. I want the contact to be as positive as possible. I believe that Zara would not like me there and that would interfere with the contact, so I am happy to facilitate somebody else to do that contact. I want it to be a good experience for Evie."
Later she stated: "…I have always been positive with Evie about her Mum. I have never said negative things. I have certainly never said that her Mum was an IV drug user to Evie. I just want them to, if contact is goes forward in the future I want it to be good for Evie."
I accept that evidence.
I have also taken into account that all of the experts agreed that Penny had provided good care for Evie to date and that Evie should remain in Penny's long term care if the Court concluded that there was no realistic possibility of restoration to Zara. I should record that Mr Freeman disagreed that adoption was necessarily preferable to any other action that could be taken such as maintaining status quo. However, I do not accept Mr Freeman's view for two reasons. First, there is his admitted lack of expertise when compared to Ms Starkey (see paragraph [20(3)] above). Second, Mr Freeman's expression of hope that efforts should be made that might result in Evie being restored to Zara seemed to me to display an optimism which, while admirable, was completely detached from the available evidence.
Turning, for example, to two of Zara's complaints, I do not think that is out of the ordinary that a child who has been in long term foster care with the one person would develop a strong sense of attachment and loyalty to that person, and may consequently wish to continue living with or be adopted by that person. Of itself this is not evidence of "brainwashing" by the carer. While I understand how this may make Zara feel that she was losing her "rightful" place or position as birth mother in Evie's life, with all due respect, I do not think it is uncommon, unusual or inappropriate for an adult to ask a child who has been in their long term care to refer to them by a title such as "mum" rather than by their given name. Ms Starkey gave evidence to the same effect, noting that it is "very uncommon for children to call a carer by their first name if they're a long term carer."
I also find that Zara lacked any insight into the challenges Evie might face if she were removed from Penny and restored to Zara's care, such as feelings of loss, frustration or confusion. Zara was able to identify that Evie would likely be sad to leave her current school but did not think Evie necessarily had to be upset about leaving Penny. She stated: "Well, I think that that all depends on, on the way in which it's handled. How much contact is she allowed to have with Penny? … it doesn't have to be a negative thing, it should be a positive thing. She's going home to her mum. Who wants to be in foster care? Who wants to be adopted, you know, when they can go home? It doesn't have to be a negative thing. … She doesn't have to lose her friends, she doesn't have to lose Penny, she doesn't have to lose anybody."
In cross-examination, even Zara's expert witness, Mr Freeman, acknowledged potential difficulties of restoration in this regard: "CHRISTIE: I want you to think about the child for a moment, the child Evie. If the Court were to find that restoration were a possibility, Evie would experience moving from the household where she has lived … akin to losing a parent, i.e. she would experience grief wouldn't she? WITNESS FREEMAN: I would expect so yes. CHRISTIE: She would desire to have frequent and regular contact with the person with whom she's formed a primary attachment relationship, would you accept that? WITNESS FREEMAN: I would expect that yes. CHRISTIE: Nothing in the way in which Zara spoke to you about the current carer would suggest that Zara has the skills to deal with that grief would it? WITNESS FREEMAN: I don't know. I would expect that she would find difficulty yes. CHRISTIE: That would impact on Evie wouldn't it? WITNESS FREEMAN: I expect it would. CHRISTIE: There is nothing in your dealings with Zara which would suggest that she has the skills to be able to facilitate Evie's ongoing relationship with Penny was there? WITNESS FREEMAN: I think that would be very difficult. I'm not saying it's impossible but yes it's got difficulties. CHRISTIE: That would impact negatively on Evie wouldn't it? WITNESS FREEMAN: I expect so yes."
Zara was also unable to accept the documentary evidence that stated that Evie had expressed a desire to be adopted. She stated: "No, I don't, no, no. Because again, this is what - who, who said this, who wrote this? [The adoption agency] or was it Penny that wrote it? You know, I mean, do you agree that, that Evie gets asked about this adoption so much that she changes the subject, that she changes the subject, she doesn't want to talk about it? You know, I mean, come on, give the kid a break. Does she even know what adoption is?"
In my opinion, Zara's inability to empathise with or understand Evie's world view speaks against her capacity to provide suitable parental care to Evie and fortifies the conclusion that it is in Evie's best interests to be adopted by Penny. The Court is not satisfied that Zara is capable of meeting Evie's emotional needs now and into the future.
Zara also displayed a lack insight into her own condition and the personal challenges or difficulties she may face in rearing children, particularly in respect of her ability to regulate her emotions and to cope with frustrating situations. This concern was also expressed in the Joint Report: "…The issue of whether Zara has Borderline Personality Disorder or personality issues associated with a history of childhood abuse and neglect does not alter the fact that Zara has a problem with the regulation of emotions, particularly anger. It was noted during Ms Starkey's assessment that Zara was unable to down-regulate with the assistance of the interviewer. It was pointed out to Mr Freeman that this kind of dysregulation would be scary for a child, to which Mr Freeman agreed. He reported that he did not pursue some of the responses that Zara gave during his interview with her because Zara only wanted to talk about the court situation and her concerns for Evie (which both psychologists understood in the circumstances)."
The Lindfield Report notes the same absence of insight: "She [Zara] denies that she is cranky, and it makes her get "louder and more passionate" while people tell her to "calm down". Zara's general comments indicate a distrust of Penny, and a basic lack of acceptance of the reasons why Evie is in care. … Zara thought it ridiculous for anyone to suggest that her daughter might be scared of her. At various times throughout our interview, Zara made it clear that it was simply not possible for Evie to be frightened of her, and whenever I suggested that Evie may sometimes feel uneasy or worried, Zara essentially denied this."
This was consistent with the Court's observations (see paragraph [57] above).
Based on all of the evidence to which I have referred in the judgment thus far, the Court finds that Zara lacks the capacity to provide the care and understanding that Evie is entitled to expect from a competent parent and which she needs to ensure her emotional and physical wellbeing. In reaching this conclusion I have not overlooked what Zara says she has done to improve herself and her circumstances. She is to be commended for those efforts, but they have not yet brought her to a condition where it would be in Evie's best interests to be restored to her.

[20]

Section 8(2)(k) and s 90(3) - adoption clearly preferable in the best interests of the child

I respectfully repeat and adopt Palmer J's observations in Application of A: re D [2006] NSWSC 1056; (2006) 36 Fam LR 142, in relation to long term foster care placements: "[47] It would be inappropriate for the Court, by undertaking a review of the literature in the field of child psychology and adoption, to come to the view that, as a general rule, adoption is more likely to be in the best interests of a child than long-term fostering or, indeed, any other form of care. When the Court comes to the consideration required of it by s.8(2)(k) and s.90(3), no general rule can be applied. … [48] The choice between long-term fostering as an alternative to adoption will, by definition, arise where the child is fairly young. Even so, the age of the child in itself will inevitably give rise to different considerations in different circumstances. The case of a baby some months old, or a child under the age of two, with no possibility of ever being returned to its parents, is very different from the case of a ten year old who has a real prospect of returning to parental care; what a child has experienced before coming into foster care may have a considerable impact on the child's need for future stability and security. [49] For these reasons, s.8(2) emphasises that the Court must have close regard to the particular circumstances of each case in order to assess whether the child's interests are best served by an adoption order or some other form of care: s.8(2)(k). [50] Research, and the literature in child psychology, confirm ordinary human experience: in order to attain normal, healthy, emotional, intellectual and physical development, children need to feel stable and secure in a nurturing environment, and they need to feel a sense of identity and belonging within their family and in their community. Human experience also tells us that we very often identify ourselves, both to ourselves and in our community, by reference to who and what the State says we are. We are treated as citizens if we have a passport; we are regarded as capable of driving a car if we have a driving licence; we are identified as the children of those persons whose names appear as our parents on our birth certificates. [51] I do not intend to suggest that learned literature in the field of child psychology has no value in the courtroom in adoption cases. However, the results of research are often disputed and open to different interpretations. In the end, decisions in adoption cases as to what form of care is in a child's best interests are intuitive, founded on the Judge's impression of the particular facts of the case formed in the light of the Judge's experience of life."
In this case and by reason of all of the evidence to which I have referred above, I am satisfied that there is no possibility of restoration of Evie to Zara to be preserved and that the advantages of adoption clearly outweigh any other course, including maintaining the status quo. Adoption by Penny is in Evie's best interests, giving effect to Evie's current social and psychological reality.
I have also taken into account that Zara has previously made an application for restoration, which was rejected (see paragraph [26] above). An adoption order in favour of Penny will ensure permanency and stability of care and bring litigation in respect of Evie to an end (subject, of course, to Zara's rights in these proceedings).
I am satisfied that in time, and following the measures prescribed by Ms Starkey and Mr Freeman, contact between Evie and Zara can be reinitiated. I do not think Zara's submissions referred to in paragraph [64] above are sufficient reason not to approve the amended contact plan. I take into account that Penny has offered to assist financially to facilitate contact and has made inquiries about a supervised contact centre where visits can take place independently of the adoption agency.