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D v A&B – re C [2010] NSWSC 440 (27 April 2010)

Last Updated: 13 May 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
D v A&B – re C [2010] NSWSC 440


JURISDICTION:
Equity Division
Adoption List

FILE NUMBER(S):
A74/2009

HEARING DATE(S):
27 April 2010

JUDGMENT DATE:
27 April 2010

EX TEMPORE DATE:
27 April 2010

PARTIES:
Director General, Department of Human Services (Plaintiff)
Ms A & Mr B (Defendants)

JUDGMENT OF:
Palmer J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
W.J. Hunt (Plaintiff)

SOLICITORS:
I.V. Knight, Crown Solicitor – Plaintiff


CATCHWORDS:
ADOPTION – Whether adoption in child’s best interests – child with special needs – adoption opposed by birth parents – birth parents refuse to give any information as to their capacity to care for child – only available evidence strongly supports adoption.

LEGISLATION CITED:


CATEGORY:
Principal judgment

CASES CITED:


TEXTS CITED:


DECISION:
Adoption order made.



JUDGMENT:

A74/2009 D v A&B – re C

JUDGMENT – Ex tempore
27 April, 2008

1 This is an application by the Director General, Department of Human Services, for the adoption of a child (“C”) in favour of the Applicants (“Mr and Mrs D”). The application is opposed by the child's birth parents (“Ms A” and “Mr B”).

2 This matter has been before the Court for directions on many occasions, at most of which Mr B appeared without legal representation. Ms A appeared once, in the company of Mr B. Mr B spoke on her behalf. Both Mr B and Ms A are Chinese and their first language is Cantonese. Ms A, to my observation, has very limited English. Mr B's English, both written and spoken, is quite good, although not completely idiomatic. He is able to make himself understood, both orally and in writing, very effectively.

3 The Crown Solicitor has written to Ms A and Mr B in Cantonese advising that this application has been listed for final hearing today and that they should appear in Court. I am satisfied that both Mr B and Ms A have been notified of today's proceedings but have chosen not to appear. It is, therefore, proper to proceed in their absence.

4 I should begin by observing that, had this application not been opposed, it would not have been necessary for me to hear the matter in Court and to give reasons for judgment because the supporting material in favour of the application leads overwhelmingly to the conclusion that, in the best interests of C, an adoption order is clearly preferable to any other order which may be made regarding her care and custody. However, because the application is opposed and Ms A and Mr B may wish to pursue an appeal despite their absence today, I will give short reasons for judgment.

5 C was born on 31 March 2005 so that she is now five years old. She was born with severe hydrocephalus requiring urgent surgical intervention. Ms A initially gave consent to surgery for the insertion of a shunt to drain fluid from the brain, but shortly afterwards withdrew that consent, contrary to medical advice.

6 The Department then assumed care of C and consented to the insertion of a ventricular peritoneal shunt. That operation was performed on 6 April 2005 at the Sydney Children's Hospital.

7 The medical team had great difficulty in communicating with Ms A. The difficulty seems to arise not only from a language problem of Ms A, but more especially from an attitude of severe distrust – indeed hostility – demonstrated towards the medical team, and later towards the Department, not only by Ms A but most especially by Mr B. Ms A took the view that immediate surgery was unnecessary and that the doctor should wait to see how C’s condition developed.

8 When these proceedings first came before me for case management, the status of Mr B in relation to C was very unclear. Despite my frequent requests for information from Mr B, he would not say whether he was the father of the child. He represented himself to be a friend of Ms A. At a later stage, when he was pressed as to what interest he had in these proceedings, he said that he was the father of the child, and later DNA testing confirmed that this was so.

9 C was placed in the care of Mr and Mrs D at the age of about four months, soon after her discharge from hospital. She has remained with Mr and Mrs D since then. She has various medical problems which require ongoing treatment. She is slightly developmentally delayed. However, under the loving care of Mr and Mrs D, she has thrived and is now making very good progress. She is very securely bonded with Mr and Mrs D and their family, particularly a slightly older brother, also adopted, with whom she relates particularly well.

10 Ms A and Mr B have had no contact with C in about five years, despite frequent opportunity being given by the Department. I gather from Mr B that they refuse any contact which is supervised by the Department on the basis that no on has the right to interfere in their relationship with their child. Given the apparent inability of Ms A and Mr B to understand that their desires as parents must be accommodated to the special needs of C, the Department’s view that supervised contact is necessary is entirely reasonable.

11 I should return to the part played by Ms A and Mr B in these proceedings. The Court records will show that these proceedings have been listed for directions on very many occasions. On each of these occasions I have stressed to Mr B that, if he and Ms A desire that C be returned to their care as her birth parents, then the Court needs to know something of their circumstances and their ability to care for C, particularly given her special needs.

12 The only evidence put forward by Ms A and Mr B is an affidavit of Ms A in which she says, in effect, that she was justified in withdrawing consent to surgery on C after her birth and that she cannot understand why C was taken away from her. Ms A gives no information which can assist in assessing what is now in C’s best interests.

13 I have explained to Mr B that even if C was wrongly taken away about five years ago, that is not enough on its own to warrant her return to her birth parents: I must have regard to their ability to take proper care of her and to manage the trauma of her separation from a loving family which is the only family she knows.

14 Nevertheless, there has been absolutely no information forthcoming from Mr B or Ms A about their personal circumstances. This cannot be due to misunderstanding and inability to comprehend on the part of either of them. In early October 2009, I directed that a letter be sent to them by the Registrar explaining, very fully, what the Court needed by way of information in order to understand their case. The letter sought to assist them, to the extent to which it is proper to do so, to understand what was happening in Court and how they should present such case as they wished in support of their application for the return of their child. The letter was sent in Cantonese, despite the fact that Mr B has a more than adequate comprehension of written and spoken English. It was in the following terms:

“The Judge who is hearing this case, Justice Palmer, has directed me to write this letter to you in order to help you prepare for this case. A copy of this letter in English will also be sent to the Director General, NSW Department of Human Services (‘Department’) so that it knows what is happening.

The Court knows that you have difficulty in understanding English and the Court procedures. The decision about your daughter is very important so you should do your best to help the Court to make the correct decision.

It is natural for you, as parents, to believe that you have the right to take care of your daughter without interference from anyone else. But you will know that there are some people who are not good parents and sometimes it is better for a child to be looked after by someone else.

What the Court must decide in your case is whether it is in the best interests of your daughter to be returned to your care or to remain with the foster carers until she is eighteen years old. The Department will give evidence to the Court that:

– there was a good reason to take your daughter from you and that was because you would not agree to an operation which was necessary to prevent her from suffering serious brain damage;

– your daughter is now being cared for very well by the foster carers and it would be in her best interests to stay with them and to be adopted by them.

You will have to tell the Court why the Department is wrong. In order to do this you will have to give detailed information about yourselves to show that you are good parents and that it is better for your daughter to live with you. If you do not give this information to the Court, the Court will have no way of knowing that what you say is correct.

This is the information which you should give to the Court.

1. What is the relationship between Ms A and Mr B? Do you live together as husband and wife? Why did Ms A call Mr B her friend and not the father of the child?

2. Where were Ms A and Mr B born? When did you come to Australia? Are you Australian citizens?

3. What is your family background and education? Are you employed? If you are employed, can you please give some details, including what you earn.

4. Where would your daughter live if she returns to your care? Who will take care of her? Do you know that she still has some medical problems and needs regular medical treatment? What is your financial ability to care for her?

5. Do you have any health problems which would make it difficult for you to care for your daughter?

6. Do either of you have any other children? If so, could you please give details, especially where they live and who looks after them.

7.  The Court is aware that Ms A has a  son ... who lives with her. It would help the Court very much if some evidence could be given which shows that Ms A is able to care well for .... For example, a letter from Ms A’s local doctor, or friends, or family, which testifies that ... is well and happy and that there are no problems. School reports for ... would also be helpful.

The Court understands that this information is very private and personal. For this reason, none of the information in any adoption case is made public or is given to any person who is not directly involved in the case. No person who has private information about an adoption case may disclose that information to anyone else except as authorised by law. Any person who discloses such private information without the Court’s authority can be punished by imprisonment for up to twelve months. You will therefore be assured that the private information which you disclose to the Court will remain private.

The Judge will wish to know at the directions hearing on 8 October 2009 whether you are willing to provide this information and, if so, how long it will take you to prepare it.”

15 What was said in that letter has been repeated by me very frequently in the course of directions hearings, to no avail. Mr B resolutely maintains the position that C has been wrongly taken, that he and Ms A, as her parents have a supreme right to her care and custody, and that C must be returned to them without question by the Court as to their ability to take care of her.

16 In these circumstances, the Court simply does not know whether Mr B and Ms A have any capacity whatsoever to care for C, having regard to her physical and medical needs, as well as her emotional needs.

17 Every opportunity has been given to Mr B and Ms A to present a case to the Court for the return of C. Those opportunities have been refused. There is no prospect that the attitude of Mr B and Ms A will ever change. It is now in C’s best interests that a determination be made about her legal status for the future. The only evidence upon which I can act is the evidence which has been placed before the Court in support of the adoption application.

18 For the reasons which I have recounted briefly above, I am clearly satisfied that it is in C’s best interests that she should continue to be cared for and brought up by Mr and Mrs D, with the security of an adoption order which places her status beyond challenge by Ms A and Mr B. Accordingly, I have no hesitation in making an adoption order as sought.

19 I make orders in terms of paragraphs 1, 2 3 and 5 of the Short Minutes of Order initialled by me and placed with the papers.

– oOo –

LAST UPDATED:
12 May 2010