D v Director-General Department of Community Services - [2005] NSWCA 474

NEW SOUTH WALES COURT OF APPEAL

CITATION: D v. Director-General Department of Commuity Services & Ors. [2005] NSWCA 474

FILE NUMBER(S):
40119/05

HEARING DATE(S): 7 December 2005

JUDGMENT DATE: 22/12/2005

PARTIES:
D - appellant
Director-General Department of Community Services - 1st respondent
F - Second respondents
Kathryn Renshall, Child Representative for E - Third respondent

JUDGMENT OF: Hodgson JA Ipp JA Hunt AJA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): EDA80080/04

LOWER COURT JUDICIAL OFFICER: Palmer J

COUNSEL:
Mr. M.W. Anderson for appellant
Mr. G.W. Moore for 1st respondent
Ms. M. Falloon for 2nd respondents
Ms. M. Cleary for 3rd respondent

SOLICITORS:
Steve O'Connor, Legal Aid Commission of NSW, Parramatta for appellant
I.V. Knight, Crown Solicitor, Sydney for 1st respondent
Colquhoun & Colquhoun, Rozelle for 2nd respondents
Kathryn Renshall, Sydney for 3rd respondent

CATCHWORDS:
FAMILY LAW
CHILD WELFARE
ADOPTION - Whether errors were made by primary judge in failing to address alternatives, in failing to take into account factors required by ss.8 and 90 of the Adoption Act, or in dispensing with the mother's consent - Whether lack of capability referred to in s.67(1)(b) of the Act must be long-term - Whether "serious cause for concern" referred to in s.67(1)(c) of the Act must be closely linked to the available alternatives
PROCEDURE
ADJOURNMENT
APPEAL - Whether primary judge erred in refusing adjournment on the grounds of the mother's ill-health - Evidence of mother's recovery and changes of circumstances after hearing - Whether this evidence should be admitted on appeal - Whether further hearing of adoption application in best interests of child.

LEGISLATION CITED:
Adoption Act 2000 ss.8, 52, 54, 58, 67, 84, 90, 92 and 93

DECISION:
1. Appeal allowed. 2. Adoption order set aside, and the matter remitted to the Equity Division for a new hearing of the adoption application. 3. If any order as to costs is to be sought, that should be by written submissions by 16 January 2006, with any responding submissions provided by 30 January 2006.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40119/05
ED A80080/04
HODGSON JA
IPP JA
HUNT AJA
Thursday 22 December 2005

D V. DIRECTOR-GENERAL THE DEPARTMENT OF COMMUNITY SERVICES & ORS.

Judgment

HODGSON JA: On 20 December 2004, Palmer J gave judgment in proceedings in which the Director-General, Department of Community Services, sought an order for the adoption of a child E in favour of a married couple Mr. and Mrs. F, such application being opposed by the child’s natural mother D. On that day, the primary judge declared that a consent given by D to the adoption of E was ineffectual because D was not, at the time the instrument of consent was signed, in a fit condition to give the consent; made an order pursuant to s.67(1)(b) and (c) of the Adoption Act 2000 dispensing with the consent of D to the adoption of E; and made an order for the adoption of E in favour of Mr. and Mrs. F.
D appeals from that decision.
CIRCUMSTANCES
D was born on 31 December 1984 outside Australia. When she was 7, she and her family were driven from their home by war, her father was killed, and she arrived at a refugee camp separated from her mother. She remained in that refugee camp, under extremely adverse conditions, until 2003. In October 2002, she was attacked by three men and raped; and E was conceived as a result of that rape.
In March 2003, D came to Australia. In about May 2003 she found out she was pregnant. Her step-brother, who had taken her to the doctor, accused her of being pregnant; and when she denied this, he beat her severely over a considerable time.
D went to a women’s refuge, where she received physical and emotional support from case workers.
The primary judge made the following findings, which were not contested on appeal:
17           I am quite satisfied from the evidence of the case-workers that those involved in assisting D through this very difficult time before the birth of her baby fully, carefully and sympathetically discussed with D the options available to her and their implications. I am also satisfied that D frequently said during this time that she wanted to have the baby adopted, as she could not possibly care for it in circumstances where her community would reject both her and the baby if the truth about the baby’s birth were discovered.
18           D was at pains to ensure that when she went into hospital to give birth she would not be able to be identified, even by a chance meeting with a member of her community. She was registered in the hospital under an assumed name and she was not placed in a ward where she might possibly encounter someone who knew her.
19           After the birth of E, D was again counselled by case-workers from the Department of Community Services. I am satisfied that, to the best of their ability, they endeavoured to explain to D the consequences of her consenting to the adoption of E and the possible alternatives. With the benefit of that advice and counselling, D signed a general consent for the adoption of E, pursuant to s.53(2) of the Act. She did not revoke that consent within the thirty day period provided by s.70(2) of the Act and, as a consequence, E was placed with Mr and Mrs F for adoption.
E was born by caesarean section on 25 July 2003. E was placed in the temporary care of foster parents on 27 July 2003. D signed an instrument of consent to E’s adoption on 19 September 2003. Notice that the thirty-day period for revocation of consent would expire on 20 October 2003 was given to her on 13 October 2003; and D did not revoke the consent. On 21 October 2003, D indicated that, out of two possible families selected by the Department as having the characteristics requested by her for the adoptive parents, she chose Mr. and Mrs. F.
On 27 October 2003, E was placed with Mr. and Mrs. F. The handover was attended by D. E has been in the care of Mr. and Mrs. F since that time.
There was a contact meeting between D and E, in the company of Mr. and Mrs. F, on 22 March 2004.
Subsequently, D decided that she wished to have her daughter E back. On 27 August 2004, she went to see a Legal Aid solicitor, and the solicitor drafted a letter addressed to the Director-General, which D signed, withdrawing her consent to the adoption.
When Mr. and Mrs. F were told of this, this caused them considerable distress. A second contact meeting between D and E, in the company of Mr. and Mrs. F, occurred on 13 October 2004; and this meeting was affected by the circumstance that D had withdrawn her consent to the adoption.
On 27 October 2004, a Notice of Motion was filed on behalf of D seeking an order setting aside the consent she had given on 19 October 2003. The proceedings for the adoption of E were subsequently set down for a contested hearing before the primary judge, fixed to commence on 15 December 2004.
Evidence filed in the proceedings included affidavits by two psychiatrists, Dr. Anthony Milch on behalf of the Director-General, and Dr. Louise Newman on behalf of D.
Dr. Milch saw D and Mr. and Mrs. F on 19 November 2004 and 26 November 2004, on the latter occasion with E present. Dr. Milch expressed the view in his report dated 13 December 2004 that D had marked symptoms of chronic Post-Traumatic Stress Disorder and associated Major Depression Disorder, that had not been adequately treated. The report included the following:
If E would have retained the care of D, it is highly likely that E would have experienced significant psychological vulnerability in the context of her mother's impaired parenting capacity, secondary to these psychological vulnerabilities.
My reading of the documentation produced under subpoena and the supporting affidavits, produced by the personnel involved in the adoption counselling and placement, indicate that appropriate measures had been taken to explore with the biological mother her clear wishes to place E for adoption. It was evident that repeated discussions had been held with regard to the nature of this process and the outcome for both D and E.
It is my opinion that D currently has impaired memory for these events. Her recollection of the discussions held are inconsistent with the detailed records of the case workers involved. Such inconsistency is readily explained by D's long standing vulnerable mental state. Both Post Traumatic Stress Disorder and Major Depressive Disorder will impair D's ability to fully concentrate, comprehend and instruct the relevant authorities with regard to such issues. Her motivation is likely to largely be a response to perceived threat to herself and her child. In my view these are the core issues with regard to her original placement of E and more recent change of heart. I formed the view that adequate counselling and consultation had occurred leading up to E's adoption. Unfortunately, this occurred whilst D had an impairment in her mental state, as described above. This impairment continues up until the present. It is highly likely that there has been a more recent exacerbation of her level of emotional distress associated with the current proceedings, which has necessitated her to relive highly distressing circumstances repeatedly and, to confront the reality of E's circumstances.
It is my view that E has been appropriately placed and that her psychosocial development would be substantively impacted if a change of residence was to occur. E would be likely to experience initial and ongoing emotional distress and vulnerability if she was to be removed from her adoptive parents who have clearly functioned as her psychological parents since adoption. It was evident that D did not comprehend the importance of such issues.
In summary, the adoptive parents demonstrated excellent skills, abilities and capacities to care for the child in the short and long term, including the child's physical, emotional, educational and cultural needs. They demonstrated an ability to respect the child's sense of personal, family, cultural and racial identity. The birth mother's ability to provide for her daughter was significantly impaired by her psychological vulnerability, as described above.
An excellent relationship exists between the child and the adoptive parents. It was evident that the child had bonded closely primarily to the adoptive mother, but also to the adoptive father, with a resultant secure attachment. The outlook for the child's development and the capacity for the adoptive parents to empathise and foster her developmental needs are highly positive in this context. In contrast, no bonding or attachment exists between the child and the birth mother. This is likely to impact significantly upon the child developmentally, should the child be returned to the care of the birth mother.
Dr. Newman saw D on 8 December 2004, and on 10 December 2004 she had a telephone conference with Dr. Milch. Her report dated 13 December 2004 contained the following assessment and conclusion:
ASSESSMENT
In respect of the specific questions asked of this report.
1             At the time of signing the current forms it is highly likely that D was experiencing symptoms of both depression and post-traumatic stress disorder. Although she had been prescribed antidepressants around that time, she did not appear to be compliant with treatment.
2             Given her mental state and the cultural differences around adoption/alternate care, it is highly likely that D did not fully comprehend the nature of the documents, the process of adoption, permanency of care and could not assimilate information provided to her.
3             D's current mental state reflects ongoing and severe mental disorder which has not been adequately treated.
4             D is currently stressed by the Court proceedings and could not give an account of the legal process or issues under consideration. D is motivated to have her child back and sees E as her connection to her family and culture at a time when she is isolated and afraid. It appears that D has been unable to assimilate information provided by her legal representative and that she does not fully comprehend the nature of the current proceedings.
5             D is currently impaired in her capacity to care for a child. She does not understand the implications of resuming care of E or the effect on E of removal from the adoptive parents. D's future capacity to parent is in part dependent on her recovery from PTSD and depression and on her rebuilding a new life and attachments in Australia.
6             Ongoing contact with E is an important component of her recovery and in the process of resolution of trauma D's capacity to maintain positive and beneficial contact with E cannot be assessed currently due to her degree of distress and depression. This should be reassessed following adequate treatment and counselling when D may be better able to reflect on the needs of the child.
CONCLUSION
D is in need of psychiatric treatment and counselling as a matter of some urgency. She is currently confused in the capacity to comprehend current legal proceedings and to represent her wishes.
Adequate treatment would involve antidepressant medications, cognitive-behaviour therapy and culturally-sensitive support. She appears to require assistance in compliance.
Whilst D appears to have been provided with the required information regarding adoption, it is likely that she was not able to fully comprehend this and provide true informed consent.
I recommend a re-evaluation of D following a trial of medication of at least two months when her psychological condition may have improved to allow comprehensive assessment.
There was also prepared a joint statement of Dr. Milch and Dr. Newman dated 13 December 2004, containing the following:
D presents currently as having clinically significant depression and post-traumatic stress disorder relating to her sexual assault. She has not to date had adequate treatment for these disorders and has not been compliant with previous prescribed antidepressant medication or recommendations for counselling.
The degree of P's (sic) distress and agitation appears to be increasing with the imminent court proceedings. Her depression and distress are now of a degree that impairs her capacity to focus, recall and fully comprehend her situation. We are of the opinion that she should be adequately medically treated and her competency reassessed following a period of supervised treatment.
It appears that whilst D has received appropriate explanations of the adoption process and the implications of this, her judgement regarding these issues was impaired due to her mental state and the severity of her condition was not recognised at the time of obtaining consent from her.
D is not currently able to parent adequately due to her mental disorder and is also not able to fully appreciate the potential issues she would face, nor the impact on E of being removed from her current placement.
The attachment relationship between E and the adoptive parents is secure and the child is developing well. The removal of the child from her attachment figures would be extremely damaging and distressing to her.
It is important that E be aware of her culture and history and that professional support be available for her at such a time that her mother’s trauma is discussed.
D would benefit from regular ongoing contact with E and the adoptive parents. This will be in the interests of E and is important to D’s recovery.
On 13 December 2004, D was admitted to Westmead Hospital. She was taken there by her solicitor. She had heard on 10 December 2004 that her best friend had been shot dead in the refugee camp, and she was shocked and depressed. She was transferred to Cumberland Hospital the next day, and was in hospital for about one week.
On 14 December 2004, the Counsel briefed for her applied to the primary judge for an adjournment of the proceedings until such time as D was able to recover and give proper instructions. He submitted this should be for at least two months, conformably with Dr. Newman’s statement. This application was refused.
The hearing proceeded on 16, 17 and 20 December 2004. The primary judge gave his decision and brief reasons on 20 December 2004. Full reasons were published on 2 February 2005.
STATUTORY PROVISIONS
The Adoption Act 2000 provides in s.8 for principles to be applied by persons making decisions about the adoption of a child, as follows:
8 What principles are to be applied by persons making decisions about the adoption of a child?
(1)In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles:
(a)the best interests of the child, both in childhood and in later life, must be the paramount consideration,
(b)adoption is to be regarded as a service for the child, not for adults wishing to acquire the care of the child,
(c)no adult has a right to adopt the child,
(d)if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,
(e)the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,
(f)if the child is Aboriginal - the Aboriginal child placement principles are to be applied,
(g)if the child is a Torres Strait Islander - the Torres Strait Islander child placement principles are to be applied.
(2)In determining the best interests of the child, the decision maker is to have regard to the following:
(a)any wishes expressed by the child,
(b)the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,
(c)the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,
(d)any disability that the child has,
(e)any wishes expressed by either or both of the parents of the child,
(f)the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,
(g)the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,
(h)the nature of the relationship of the child with each proposed adoptive parent,
(i)the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,
(j)the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,
(k)the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.
The matter of consents to adoptions is dealt with in Part 5 of the Act. Section 52 has the effect that the consent of the mother of the child to be adopted is generally required, but s.54 makes it clear that this consent can be dispensed with by the Court. The other provisions of the Act concerning consent that are relevant to this case are ss.58 and 67, which are in the following terms:
58          When is consent ineffective?
(1)          Consent to a child’s adoption is not effective unless it is:
(a)          informed consent, and
(b)          given in accordance with this Act.
(2)Consent given by a person (other than a child under 18 years of age) is not effective if it appears to the Court that:
(a)it was not given in accordance with this Act, or
(b)it was obtained by fraud, duress or other improper means, or
(c)the instrument of consent has been altered in a material particular without authority, or
(d)the person giving or purporting to give the consent was not, at the time the instrument of consent was signed, in a fit condition to give the consent.
(3)Consent is not effective if it is revoked during the time allowed by section 73.
(4)Consent given by a birth parent who is less than 18 years of age is not effective if it appears to the Court that the birth parent did not have the benefit of independent legal advice concerning the adoption before the instrument of consent was signed by the birth parent.
(5)Consent to a child’s adoption given in another State under the law of the other State is an effective consent for the purposes of this Act.
67          When can Court dispense with consent of person other than the child?
(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 or guardian of 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 guardian.
(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.

Other relevant provisions concerning the making of orders are ss.84, 90, 92 and 93(1)-(5), which are as follows:
84          Making of interim orders
(1)The Court may postpone the determination of any application to the Court for an order for the adoption of a child and make an interim order for parental responsibility for the child in favour of the prospective adoptive parent or parents.
(2)On application to the Court by the Director-General or a principal officer, the Court may make an interim order for parental responsibility for the child in favour of the Director-General or principal officer.
(3)An interim order is subject to such terms and conditions as the Court thinks fit.
(4)The Court must not make an interim order in relation to a child in favour of any person unless the Court could lawfully make an order for the adoption of that child by that person.
(5)While an interim order remains in force in relation to a child, the person or persons in whose favour the order is made have parental responsibility for the child.
90          Court to be satisfied as to certain matters
(1)The Court must not make an adoption order in relation to a child unless the Court is satisfied:
(a)that the best interests of the child will be promoted by the adoption, and
(b)that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and
(c)if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and
(d)that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and
(e)if the child is an Aboriginal child - that the Aboriginal child placement principles have been properly applied, and
(f)if the child is a Torres Strait Islander child - that the Torres Strait Islander child placement principles have been properly applied, and
(g)if the child is a non-citizen child from a Convention country or other country outside Australia - that the applicable requirements of this Act and any other relevant law have been satisfied, and
(h)in the case of a child (other than an Aboriginal or Torres Strait Islander child) - that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.
(2)The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.
(3)The Court may not make an adoption order unless it considers that the making of the order would be 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.
92          Care of child after refusal of an application
If the Court refuses an application for an adoption order, the Court may make such orders for the care and custody of the child concerned as it thinks fit, including, if the child is less than 18 years of age, an order declaring the child to be under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998.
93          Discharge of adoption orders
(1)In this section:
concerned person means the Attorney General, or any party to an adoption.
(2)A concerned person may apply to the Court for an order discharging an adoption order (a discharge order).
(3)The Court is to give each concerned person (other than the applicant for the discharge order) notice of the application.
(4)The Court may make a discharge order if it is satisfied that:
(a)the adoption order, or any consent to adoption, was obtained by fraud, duress or other improper means, or
(b)there is some other exceptional reason why the adoption order should be discharged.
(5)The Court must not make a discharge order if it appears to the Court that:
(a)the making of the order would be prejudicial to the best interests of the child, or
(b)if the application for the order is made by the child - the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child’s access to information or contact with a person under Chapter 8 (Adoption information).
…
DECISIONS OF PRIMARY JUDGE
In relation to the adjournment application, the primary judge identified the issues which were raised by the proceedings as being whether D’s consent should be set aside, and if so, whether her consent should be dispensed with under s.67. He then gave the following reasons for refusing the adjournment:
9             There is no question also that the prospect that E may be taken away from the adoptive parent as a result of these proceedings is causing very great distress to the adoptive parents. There can be no question, as ordinary human experience would indicate, that the stress to the adoptive parents in such a situation will doubtless lead to instability, stress and upset within the home, all of which must have an impact upon E as well.
10           Mr Anderson seeks an adjournment for a period of at least two months. As he concedes, and as is evident in any event, there is no guarantee that after two months D will be in a position to give him proper instructions for the further conduct of the case. One would earnestly hope that her condition is much improved by then but there is no assurance that it will be. If it turns out that in two months time D's condition is not such as to enable the case to proceed then, as the representatives of the other parties point out, nothing will have been gained in terms of advancing the proceedings, but a great deal of distress will have been suffered, not only by the adoptive parents directly, but also indirectly by E as a result of the continued suspense as to the outcome of these proceedings in which they are all placed.
11           In determining this application for an adjournment, there is a very difficult tension to resolve between the interests of the child and the interests of justice in enabling D to present her case opposing adoption fairly and properly and with an adequate opportunity to give instructions for the conduct of the case. If the adjournment application is refused, the mother's interests in justice in having the opportunity of presenting her case properly will be sacrificed. The question is whether that sacrifice is outweighed in the balance by the best interests of the child.
12           It seems to me that in accordance with the objects of the Adoption Act as stated in s.7(a) of the Act, the interests of the child must prevail over all other interests which call for consideration in the case. Section 7(a) provides as follows:
"The objects of this Act are to emphasise that the best interests of the child concerned; both in childhood and in later life, must be the paramount consideration in adoption law and practice.”
13           Bearing in mind the strong attachment which E has already developed to the adopting parents, as evidenced by the report of Dr Milch, bearing in mind that further delay in the resolution of these proceedings on a final basis will prolong distress to the adoptive parents and thereby to the child while the fate of all of them hangs in the balance, it seems to me that I must refuse the adjournment because the interests of the child dictate that the child's fate be determined now, rather than at some indeterminate time in the future.
14 It seems to me that when the matter does proceed the question for resolution will have to assume, in fairness to D, that her application to set aside the consent which she gave would be granted. I think that that has to be assumed in fairness to the mother because she will not really be able to conduct that aspect of the case properly, given her present condition. The question of adoption really should be determined on the assumption that the mother's consent to the adoption is still required. That question will then involve a decision whether the mother's assumed necessary consent should nevertheless be dispensed with pursuant to s.67(1)(b) or (c) of the Act, given the mother's present psychiatric condition and given the joint report of Drs Newman and Milch.
15           If the Court comes to the conclusion that, even if the consent of D were still necessary, it should be dispensed with, then the Court would proceed to make the adoption order sought by the Director-General, there being no other ground for declining to make the order. I appreciate that as matters presently stand with D, particularly in the light of the joint statement of Drs Newman and Milch, the result of my decision on the adjournment application will very probably be that the consent of the mother, if required, should be dispensed with. However, I do not wish to pre-empt that question by any means. I will certainly hear submissions about it but I think the parties should focus their attention on the realities as they presently present themselves.
In his judgment on the substantive issues, the primary judge held that D’s consent was ineffective because she was not in a fit state at the time; and there is no challenge to that decision.
The primary judge then gave the following reasons for his other orders:
Whether adoption is in E’s best interests
32 The consent of D to E’s adoption is only relevant if I come to the conclusion that an adoption order should otherwise be made. I bear in mind the adoption principles enshrined in the Act which are of particular relevance to this case. They are set out in s.8(1) and (2). Of particular significance in this case is whether there is any better alternative to making an adoption order. Not only is this question to be considered under s.8(2)(k) but, in addition, s.90(3) provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child.
33 In the present case, Mr Anderson strongly urges that at least one of the orders which can, and indeed should, be made as an alternative to an adoption order, is an interim order under s.84(1) giving parental responsibility for E to Mr and Mrs F for a time. During that time – which may be, he suggests, a matter of some months – D's condition and her ability to undertake parental care for E may have improved substantially. Mr Anderson urges that the Court should make such an interim order so as not to preclude forever the possibility that D may resume full parental custody and care of E.
34 Another alternative to an adoption order which is urged by Mr Anderson is an order pursuant to s.92. That section provides that if the Court refuses an order for an adoption, it may make such orders for the care and custody of the child concerned as it thinks fit. Such an order may be made under the Children and Young Person's (Care and Protection) Act 1998 (NSW). Mr Anderson proposes a series of orders which would place E under the parental responsibility of Mr and Mrs F subject to orders allocating specific aspects of parental responsibility between Mr and Mrs F and D. Mr Anderson urges that if such orders are made, E could have the benefit of the care of both D and Mr and Mrs F and E could decide for herself when she reaches the age of eighteen years whether she wishes to be adopted by Mr and Mrs F or to remain as the child of D. Both of these interim arrangements are urged on behalf of D so as to leave open the possibility of D regaining some chance of salvaging her life by being involved in the care and up-bringing of her child and so as to expose E to a great deal more of her birth culture than would otherwise be the case.
35           I have come to the conclusion that no such interim arrangements should be put in place. I have seen for myself the agony which Mr and Mrs F are experiencing while the fate of the child, whom they unquestionably feel is their own daughter, hangs in the balance. D herself is in a state of acute distress while these issues are unresolved. I am firmly of the view that E's best interests now and in the future are prejudiced by the prolongation of this state of uncertainty. E is already at an age when she will feel and be affected by distress and security within her family environment. It is, in my opinion, clearly in E's best interests that her status be determined now and that insecurity removed.
36           This is especially so because D's own prospects of recovery of her mental health at this stage are necessarily uncertain. In addition to all of the traumas which D has already suffered she was told, during the course of the hearing, that her best friend, whom she had left behind in the refugee camp, had just been shot and killed by terrorists. Inevitably, this has worsened D’s condition.
Whether D’s consent should be dispensed with
37 I must now decide whether or not it is in the best interests of E to make an adoption order and whether D's consent should be dispensed with either under s.67(1)(b) or (c). The decisions turn upon the same considerations.
38           I have come to the conclusion that the Court should now make the adoption order and should therefore make the order dispensing with D's consent, under both relevant subsections. I am of the view that that course is clearly preferable in the best interests of the child to any other action that could be taken now or in the future in relation to the care of E. The principal factors to which I have had regard are as follows.
39           First, E has developed a very strong and secure relationship with Mr and Mrs F. There is no question but that Mr and Mrs F have developed a very strong and loving relationship with E. There is no issue at all as to the general suitability as parents of Mr and Mrs F, nor is there the slightest question as to their capacity to give E the best possible up-bringing.
40           On the other hand, D has developed no relationship or bond with E, as evidenced in a meeting in Dr Milch's rooms recently. E is, at this stage, extremely distressed and apprehensive when she is left alone with D.
41           Second, by reason of D's present mental condition, she is clearly unable to take over the parenting of E at the present time. It may be some considerable time before she would be able to do so. Indeed, tragic as it may be, it is possible that she would never be in a position to do so.
42 In addition, of course, this very circumstance means that D is now, and for an indefinite time will be, incapable of properly considering whether or not to give consent, so that the ground for dispensing with consent pursuant to s.67(1)(b) is established.
43           Third, even if E were returned to the care of D, it must be a matter of grave concern whether D would be able to give her the security and protection which she needs. D has not yet told her family of E's existence and of the circumstances of her birth. She has not even told her mother, though she is now in contact with her mother by telephone.
44           Fourth, there is no dispute that D's culture and community is extremely hostile to a mother and child in the position of D and E. The evidence is that a woman who conceives a child out of wedlock, even if raped as was D, is regarded as shameful to her family. The woman is customarily stoned and the child is routinely killed. That D would inevitably face this hostility and even acts of violence within her community, is strongly suggested by the fact that her step-brother was physically violent towards her when he suspected her of being pregnant.
The adoption plan
45           I have anxiously considered whether the presently proposed adoption plan should be approved. That plan provides for two face-to-face contacts per year between D and E, two exchanges of letters and two telephone calls. On behalf of D it is urged that far more frequent contact is both possible and desirable. As many as twelve contacts per year have been suggested by Mr Anderson. On the other hand, Mr and Mrs F say that they are completely unable, as matters presently stand, to accept such frequent visits. They say that having regard to D's mental condition, such frequent visits may well produce insecurity and instability in the relationship, particularly if D endeavours to establish more of a relationship of mother and child with E, to the prejudice of the stability of the parental relationship between E and Mr and Mrs F.
46           I think that it is premature and inappropriate to make an order now requiring an adoption plan which provides for more frequent contact than is presently provided. Quite apart from the fact that D's present mental condition might well make such contact harmful for all concerned, it may simply not be able to take place. However, I feel that I can rely safely on the expressed intentions of Mr and Mrs F to encourage more frequent contact between D and E as time goes by, if that is seen to be in the best interests of E and in accordance with her wishes.
47           Mr and Mrs F have struck me very forcibly as deeply caring, compassionate, decent and good people. They are very sensitive to the terrible privations and tragedies which have so blighted D's young life. I feel sure that, with the assurance that their status as parents of E is unchallengeable, they will do their best in E's interests as well as in D's interest, to encourage such contact between D and E as they feel benefits both E and D.
48           The making of an adoption order now in the terms presently before the Court, of course, does not preclude an application at a later stage to the Court to vary the adoption plan. That opportunity will never be foreclosed to D. I hope that such an application will never be necessary because there will have developed a relationship of support and encouragement between Mr and Mrs F, E and their family, and D and her family. It is something I think that all parties would earnestly hope for.
GROUNDS OF APPEAL
D relies on the following grounds of appeal:
1.That His Honour Justice Palmer denied procedural fairness to the mother known as "D" in the proceedings and erred at law, by failing to grant the application for an adjournment of the trial due to incapacity and health, and then determining the matter on the basis of Final Orders.
2.That His Honour Justice Palmer denied procedural fairness to the mother by failing to make an interim order under s 84(1) of the Adoption Act 2000 as was sought by the Mother and as was also sought by the First Respondent.
3.That His Honour Justice Palmer erred at law in failing to give proper consideration as to whether to dispense with the consent of the mother pursuant to section 67(1)(b) or (c) of the Adoption Act 2000 by;
a.having apparently prejudged the issue that the mother’s consent would probably be dispensed with when he refused the adjournment application;
b.failing to establish the exact nature of the mother's incapacity i.e. whether the incapacity was of a temporary or permanent nature before making a consent dispense order.
c.failing to give effect and proper consideration to the provisions of section 67(2) and 67(1)(c) of the Adoption Act 2000 in not considering all the factors required by and referred to in section 8(2) of the Adoption Act 2000.
d.failing to give any effect to the mother's evidence and the evidence of the Court appointed expert that the mother did not wish for her child to be adopted, considered, in terms of section 67(1)(b) of the Adoption Act 2000, the question of consent, and determined to bring an application to set aside the consent previously given;
e.failing to give adequate reasons;
f.failing to have adequate or any regard to sub-section 8(1) of the Adoption Act 2000;
g.failing to adequately or at all consider the child's racial identity and cultural ties;
h.erroneously considering that the child was experiencing or was in a state of acute distress;
i.erroneously finding that D would in the future be subjected to hostility and acts of violence in her community in Australia;
j.erroneously finding that during the course of the hearing D was told her best friend in the refugee camp had been killed when in fact it had been an occurrence prior to the hearing;
k.erroneously applying the evidence of danger in the refugee camp to the present living circumstances of the mother D;
l.failing to have regard to the long-term interests of the child.
m.erroneously determining the grounds for a consent dispense order pursuant to s67(1)(b) had been established.
4.That His Honour Justice Palmer erred at law in failing to give any or any adequate reasons that there exists serious concern for the welfare of the child and that it is in the best interests of the child to override the wishes of the parent in terms of section 67(1)(c) of the Adoption Act 2000 sufficient to dispense with the consent of the mother in particular by not referring to the matters required by section 8(2) of the Adoption Act 2000.
5.That His Honour Justice Palmer erred at law in making an order for adoption when he failed to adequately consider or consider at all the effect of other alternatives or "action that could be taken by law in relation to the care of the child" pursuant to section 90(3) of the Adoption Act 2000 both presently and in the future, and failed to give any or any adequate reasons in relation to such a determination.
6.That His Honour Justice Palmer erred at law in making an order for adoption in that he failed to give any or any proper effect to the objects of the Adoption Act 2000 and the principles referred to in section 8(1) of the Adoption Act 2000 in his reasons, and in particular failed to give the best interests of the child, both in childhood and later life, paramount consideration.
7.That His Honour Justice Palmer erred at law in failing to give any reasons for the change of name of the child, and failed to have regard to or consider adequately or at all, section 101 of the Adoption act 2000.
8.That His Honour Justice Palmer erred at law by considering the terms of contact proposed by the First Respondent as an "Adoption Plan".
9.(i)That in adopting the terms of contact as proposed by the First Respondent His Honour Justice Palmer erred at law by;
a.Failing to give adequate reasons;
b.Failing to adequately or at all consider the child's racial identity and cultural ties;
c.Failing to have regard to the long term interests of the child
d.Failing to give any or any proper effect to the objects of the Adoption Act 2000 and the principles referred to in section 8(1) of the Adoption Act 2000.
e.Failing to give any effect to the joint statement of the expert witnesses that contact by the mother with the subject child up to twelve times per year would be beneficial to both the child and the mother.
9.(ii) Further or in the alternative to (i),
That his Honour Justice Palmer erred at law in making the adoption order by failing to have regard to or properly consider the terms of section 90 of the Adoption Act 2000 by;
a.failing to give effect and proper consideration to the provisions of s90(1)(h) of the Adoption Act;
b.failing to give adequate reasons as to why the plan was in the child's best interests and was "proper in the circumstances";
c.by relying on the expressed intentions of the second respondents to decide when further contact between the mother and the child was in the child's best interests failed to discharge the court's duty pursuant to section 90(2) of the Adoption Act 2000;
d.failing to have regard to the long term interests of the child;
e.failing to give any or any proper effect to the objects of the Adoption Act 2000 and the principles referred to in section 8(1) of the Adoption Act 2000;
f.Failing to give any effect to the joint statement of the expert witnesses that contact by the mother with the subject child up to twelve times per year would be beneficial to both the child and the mother.

Also, D sought to rely on additional evidence, not before the primary judge. In outline, the evidence is to the following effect.
There is evidence from Dr. Newman that, by 22 February 2005, D had improved significantly, and then had capacity to give instructions in the matter; that, by 20 July 2005, she had made a full recovery and had no signs of clinical depression; and that D’s condition at the time of her initial assessment in December 2004 had been such that it was unlikely to be permanent.
There was evidence from D as to the circumstances of her hospitalisation in December 2004, and of her subsequent work and education activities; evidence that in about April 2005, she had told her family about E, that there were now many family members in Australia, and that her family wished E to be brought up in their community; and evidence that there had been no contact between her and E up to 29 August 2005, although a meeting was anticipated in September 2005.
Next, there was evidence from a psychiatrist Dr. Harris of his treatment of D, including evidence that by 26 July 2005 D had made an excellent recovery from her major depression, that she was capable of looking after her child, and that she had shown positive attributes in her responses to her many difficulties.
Finally, there was evidence from Sister Hixon confirming the improved situation in relation to D’s family, and confirming D’s qualities.
This evidence was admitted on the basis that, if this Court found error in the primary judge’s decision, it would certainly be relevant to what action by this Court would be appropriate. At the time of admitting the evidence, no final determination was made whether regard could be had to it even if error were not found; although the Court did indicate that it would not itself make a final determination that adoption was not to go ahead, so that if the Court did set aside the adoption order partly on the basis of this evidence, the matter would be remitted to a first instance judge so that this evidence could be tested and opposing evidence could be led.
I will consider in turn the question of adjournment, the question of errors in the primary judge’s judgment in the case, and the question of the effect of the new evidence.
ADJOURNMENT
Mr. Anderson for the appellant submitted that the primary judge approached the adjournment application on the assumption that D’s consent would be set aside, but also on the basis that, if the adjournment were refused, it was highly likely that the result of the case would be that consent would be dispensed with and an adoption order made. In those circumstances, he submitted, the matters relied on by the primary judge to refuse the adjournment, namely distress to the adoptive parents and its assumed effect on the child, and uncertainty that the position would be any different in two months’ time, were insufficient to justify refusal of the adjournment. There was, he submitted, no evidence that the child would be adversely affected by a two month adjournment; and the matters relied on were insufficient to justify a course leading to dispensing with consent where the evidence left it uncertain how D’s condition would progress (see In Re B (1979) 5 FamLR 150 at 151); and justice was the paramount consideration (Central Sydney Area Health Service v. Cooper [2001] NSWCA 329).
In my opinion, having regard particularly to the evidence of Dr. Milch, it was open to the primary judge to infer that even a two month adjournment would cause extreme distress to Mr. and Mrs. F, and that this would adversely affect E; and it was open to the primary judge, on the evidence as it then stood, to consider that there was no substantial likelihood that the situation would be materially different in two months’ time. In those circumstances, in my opinion it was within his discretion to refuse the adjournment, and no error is shown within the principles in House v. The King (1936) 55 CLR 499. This is particularly so in circumstances where the question of adjournment and/or the making of interim arrangements was a possibility still open for consideration on the actual hearing of the case.
WERE THERE ERRORS IN THE JUDGMENT?
Mr. Anderson relied on the numerous grounds of appeal which I have set out; but I will focus on the matters which in my opinion raised questions requiring consideration.
Mr. Anderson submitted that ss.8(2)(k) and 90(3) of the Act meant that all alternatives had to be considered; and that while the primary judge did consider the possibility of interim arrangements as an alternative to an adoption order, he did not consider either the possibility of an adjournment for a period of about two months with interim orders in place, or the possibility of final orders being made under s.92 giving custody and parental responsibility to Mr. and Mrs. F. He submitted that the drastic nature of an adoption order was emphasised by s.93(4) of the Act, which had the effect that an adoption order could be discharged only if the order had been obtained by fraud, duress, or other improper means, or there was some other exceptional reason why the order should be discharged.
Next, Mr. Anderson submitted that the primary judge made errors in deciding to dispense with D’s consent. First, the judge decided that an adoption order should be made and that therefore D’s consent should be dispensed with; whereas what was required was a decision first whether the consent should be dispensed with: see In Re B at 156. Next, he submitted that the judge erred in finding that the consent could be dispensed with pursuant to s.67(1)(b), because for that purpose it had to be shown that the incapability was long-term and not merely temporary: In Re B at 151. Next, he submitted that the primary judge erred in finding that s.67(1)(c) applied, because the “serious cause for concern” referred to there must relate to the available alternatives, and the primary judge did not find that there was serious cause for concern operating as between the alternatives of orders falling short of adoption and full adoption orders.
Next, Mr. Anderson submitted that the primary judge failed to take into account factors which he was required to take into account by s.8 and s.90 of the Act. He submitted that the primary judge was required to specify the factors taken into account, and did not do so: see Marriage of Smith (1994) FLC 92-488. In any event, he submitted, the primary judge had not considered factors referred to in s.8(1)(a) and (e), s.8(2)(e) and s.90(1)(h). He did not identify cultural ties or consider their preservation, as required by s.8(1)(e); and he did not consider the interests of the child in later life, as required by s.8(1)(a), in relation to these cultural issues. He did not take into account the wishes of the mother under s.8(2)(e). He did not reach satisfaction that the culture of the child and the child’s cultural and religious ties had been taken into account in the making of any adoption plan, as required by s.90(1)(h).
In my opinion, the primary judge did consider the alternatives referred to by Mr. Anderson. When he rejected the making of interim orders, it is clear that he had in mind the possibility of orders made under s.92 lasting until the child was 18 as being in the category loosely described as interim orders. Furthermore, having regard to the adjournment application that had been rejected shortly before the hearing, and the terms of the judgment as a whole, I think it is clear that the primary judge also had in mind the possibility of an adjournment for two months with interim orders operating in the meantime.
Turning to the question of dispensing with consent under s.67, in my opinion the present availability of a particular adoption, and the circumstance that the child had already been in the care of the proposed adoptive parents for more than a year, were relevant to the best interests of the child, and could be taken into account in determining whether consent should be dispensed with. I do not read In Re B as excluding that approach. In those circumstances, I see no error in the primary judge having decided that this adoption would be in the best interests of the child, and, subject to satisfaction of the other requirements of s.67, dispensing with consent essentially for that reason.
As regards s.67(1)(b), I would read that provision as requiring that the question of capability of properly considering whether or not the parent should give consent be approached on the basis that the present physical or mental condition should be such that the person will not be capable of considering this question within a reasonable time, rather than at the moment of the Court’s dealing with the question. If the evidence showed what was plainly a temporary incapacity, which would be resolved within a week or so, I do not think s.67(1)(b) could justify the dispensing with consent. However, in my opinion, the primary judge did approach the question on that basis, and was satisfied that the condition of D which made her incapable of properly considering the question was not a mere temporary condition but could continue indefinitely, and that accordingly the paragraph applied. I do not think the primary judge has been shown to be in error in that conclusion.
As regards s.67(1)(c), in my opinion it is not necessary that the “serious cause for concern” be closely linked to the alternatives available to the Court. The other requirement of s.67(1)(c), that it be in the best interests of the child to override the wishes of the parent or guardian, is plainly directed to the alternatives available; but the requirement of “serious cause for concern” is not explicitly linked to the alternatives and in my opinion can be approached more generally. In this case, there had been past violence to the mother from a member of her family, there was evidence of risk to the child from the mother’s family, and there was serious cause for concern due to the mother’s mental health. In my opinion, these factors were sufficient.
As regards the factors to be taken into account, it is not in my opinion necessary for a judge to go through a checklist of every item in s.8 and s.90(1). However, where the circumstances of the case indicate that there is an issue about one or more of these factors, then one would expect that the reasons would address those factors which are in issue in the case.
In my opinion, a fair reading of the whole judgment indicates that the primary judge did have regard to the wishes of the mother, as required by s.2(e); and in my opinion did give consideration to a proposed adoption plan having in mind provision for the child’s cultural and religious ties. As to whether the judge identified the child’s cultural ties and considered their preservation, and considered the interests of the child in later life, in the light of these matters, as required by s.8(1)(a) and (e), there is room for some doubt. D’s culture and community was referred to, but in the context of it being extremely hostile to a mother and child in the position of D and E, and the potentially adverse consequences of that. It does not appear that there was before the primary judge evidence of substantial beneficial consequences to the child through D’s culture and community, if an adoption order was refused. In those circumstances, it does not seem to me that there was material error in the judge not referring to these items. Of course, the further evidence, to which I will refer, puts the matter in a different light; but that was not before the primary judge, and cannot be relied on to show error by the primary judge.
FURTHER EVIDENCE
In my opinion, the question of reception and use of the further evidence, independently of error being shown in the judgment of the primary judge, should be considered in the light of principles discussed in Doherty v. Liverpool District Hospital (1991) 22 NSWLR 284. It is not necessary that “special grounds” be shown for the reception of evidence concerning matters occurring after the trial or hearing: see Supreme Court Act 1970, s.75A(8) and (9). The question whether such evidence should be admitted has to be approached as a matter of discretion and degree, having regard to the context in which it arises and also to the general public interest in finality of litigation. As stated by Lord Wilberforce in Mulholland v. Mitchell [1971] AC 666 at 679-680, such evidence may be admitted if basic assumptions, common to both sides at the trial, have clearly been falsified by subsequent events, or where to refuse to admit it would affront common sense or a sense of justice. On the other hand, it ought not to be admitted when it bears on matters falling within a field or area of uncertainty, in which a trial judge’s estimate has previously been made.
Although the additional evidence indicates that one assumption on which the primary judge acted in refusing the adjournment, namely that the position of D could well be the same in two months’ time, was falsified, the further material does not in my opinion show that there was any procedural unfairness to D. I would add that, in any event, procedural fairness in cases such as this is not an overriding consideration, the predominant consideration being the best interests of E: cf. Re Andrew [2004] NSWSC 842, 61 NSWLR 283.
The further evidence does show that D has recovered, in a way not anticipated; and shows a likelihood that there would be positive involvement of her family in the care and upbringing of E if the adoption was set aside. I think it is fair to say that this does amount to the falsification of assumptions, rather than merely being the realisation of a contingency taken into account by the primary judge. Had the primary judge not acted on the contrary assumptions but been in a position to make a correct assessment of these potentialities, a different outcome of the case would have been a substantial possibility; though I could not say that a different outcome would have been likely. In my opinion, to refuse to admit this evidence would affront common sense and a sense of justice.
Accordingly, I would admit the further evidence, so that the central question, namely what would be in the best interests of E, should be considered having regard to this further evidence. This in turn means, in my opinion, that whereas on the material before the primary judge there was no realistic option of E being cared for by D in association with D’s family and community, and thus no presently viable alternative to E being cared for by Mr. and Mrs. F, there is now that option and thus a viable alternative to E being cared for by Mr. and Mrs. F.
MATERIAL REQUESTED BY THE COURT
In order to decide whether the existence of this viable alternative would justify allowing the appeal, the Court requested further material concerning the following matters:
1.The present relationship between E and Mr. and Mrs. F, and E’s present wellbeing.
2.The short and long term effects on E of being removed from Mr. and Mrs. F and placed with D after a further first-instance hearing some time in 2006, having regard to D’s apparently improved health and relationship with her family.
3.The short and long term effects on E of being raised apart from her natural family and culture, and by parents who are patently ethnically different, as opposed to being raised by her mother within her culture.
In response to this request, there were submitted on behalf of D five affidavits. An affidavit by D herself did not directly address the matters raised by the Court.
There was an affidavit and report from Dr. Newman to the effect that removal of E from Mr. and Mrs. F. would cause short-term distress and trauma, with the likelihood of long-term trauma depending on D’s ability to take on the role of the primary attachment figure, to understand and accept E’s distress and tolerate E’s anger, to be patient, and to deal with her own problems; and that there was clear evidence that children raised apart from their culture and traditions may develop psychological and cultural difficulties.
There was an affidavit from Juliana Nkrumah, a Senior Health & Education Officer, to the effect that it was important for Africans to have a reference point back to their specific cultural group, and that the long-term effect of E being raised apart from her natural family and culture would be that she would lose her biological culture and be culturally separated from her mother and her extended family.
There was an affidavit from Associate Professor Susan Green, an Indigenous Australian, concerning problems encountered by Aboriginal children placed in different cultural groups, and the reasons for these problems. There was an affidavit from Sarah Armstrong concerning her research into trans-racial adoption, and the experiences of trans-racial adoptees.
On behalf of the Director-General, two further affidavits were submitted.
There was a further affidavit from Dr. Milch attesting to a strong and secure relationship between E and Mr. and Mrs. F, and to E’s continuing well-being and progress; to adverse short and long-term effects on E of being removed, with long-term effects depending on D and E meeting challenges arising from the removal; and as to challenges for E being raised apart from her mother and ethnic group, particularly during adolescence, which would be mitigated by the stable, secure environment provided by the adoptive parents.
There was an affidavit and report from Juliette Harper, a psychotherapist and a retired Associated Professor in psychology, asserting that most trans-racial adoptions are successful, that returning E to D would undermine her progress, particularly having regard to D’s own vulnerability, and that once attachment is established, ethnic differences can be successfully integrated into identity formation.
DECISION
It is not possible for this Court to resolve the issues raised by all the further evidence, so that if this Court now, on the basis of this further evidence, sets aside the adoption order, there would have to be another hearing before a judge of the Equity Division. Pending that hearing, E would remain in the custody and parental control of Mr. and Mrs. F. The issues on this further hearing would include the mental health of D, and her relationship with her family; and it could be expected that these issues would be explored at length. The material provided to this Court shows that other issues concerning the impact on the child of removal from Mr. and Mrs. F would also be matters for detailed and extended consideration. The result would in all probability be a lengthy hearing, which could exacerbate the damage already caused to the relationship between Mr. and Mrs. F and D, and the outcome of the litigation would be uncertain. There would be the possibility then of another appeal, extending the conflict and uncertainty.
One question that this Court must consider is whether this would be in the interests of the child. However, even if this Court does not set aside the adoption order, this litigation may occur in any event: D could apply to discharge the adoption order, claiming that the circumstances disclosed by the further evidence amounted to an exceptional reason justifying discharge of the order.
D has strongly expressed to Dr. Newman her view that the removal of her child is a violation of her rights as a parent. That view is understandable, but it is not a view that this Court can accept. D’s rights as a parent in this context are those recognised by the Adoption Act, and are most relevantly those associated with questions of consent and taking account of her wishes, all of which must be dealt with in accordance with the provisions of the Act and in accordance with the policy of the Act that the best interests of the child are the paramount consideration.

D has also expressed a belief that it would be in E’s best interests that she be raised by D within her own culture, and that it is not in her interests that she be raised in a different culture with only minimal contact with her mother. In my opinion, those are substantial considerations to be taken into account, and there is now evidence that could strongly support this view.
It must also be taken into account that, at least until about April 2005, when the child was about 21 months old, D was not in any position to look after the child because of her own mental health and her relationship with her family. For about 18 months, between October 2003 and April 2005, the child had been with Mr. and Mrs. F, and the evidence shows that they had devoted to her the care, attention and affection appropriate for persons expecting to be, through adoption, fully in the position of her parents. At least until about August 2004, this was entirely in accordance with wishes expressed by D, in circumstances where anxious care had been taken by all participating in the adoption process to ensure that D fully understood the consequences of consent to adoption and that she was capable of giving that consent (although, as found by the primary judge, she was in fact not in a fit state to give the consent).
The result has been that E has received, during the crucial first two years of her life, devotion from Mr. and Mrs. F of a kind that could not have been expected from persons who were merely in the position of temporary foster carers, as would have occurred if D had not purportedly consented to adoption and if long-term arrangements for E had remained uncertain until April 2005, when D may for the first time have been able to assume care of her. I would take it from the evidence of Dr. Milch that this has contributed to the excellent progress E has made, as well as to the extremely strong bond that exists between E and Mr. and Mrs. F.
It is not possible to reach a decision in this case which is altogether satisfactory. In my opinion, there could be very great benefits to E in being raised by her mother D, in the environment of D’s extended family and her culture. On the other hand, the effect on the child of being removed from persons who have given her such devotion as parents and have established such a strong bond with her, could be very adverse, and could possibly be lasting. The outcome of a further hearing is uncertain; but there is likelihood of distress to D and to Mr. and Mrs. F, possibly affecting the child, and exacerbation of ill-feeling, should there be further lengthy and difficult proceedings.
However, in my opinion the decisive consideration is that the decision in favour of the adoption ended the possibility of E having the benefit of being raised by her mother D in the environment of D’s extended family and culture, simply because at the time of the hearing it seemed clear that there was no such possibility; whereas it now is apparent that this is a realistic possibility, that could be in E’s best interests. In my opinion, it is in E’s best interests that this possibility be considered in the light of the evidence now available.
CONCLUSION
For those reasons, in my opinion the following orders should be made:
1.Appeal allowed.
2.Adoption order set aside, and the matter remitted to the Equity Division for a new hearing of the adoption application.
3.If any order as to costs is to be sought, that should be by written submissions by 16 January 2006, with any responding submissions provided by 30 January 2006.
IPP JA: I agree with Hodgson JA.
One certain result in this tragic case is that, whatever decision is ultimately made, either the birth mother or the adoptive parents will have to bear deep sadness and emotional loss. No court would be able to resolve the dispute by providing satisfaction to both sides.
The court can only apply the law and in so doing is required to dismiss from its mind certain factors that, while stark in human terms, are not legally relevant to the issue that has to be adjudicated upon. Firstly, the Court cannot have regard to the unhappiness that an unfavourable judgment inevitably will bring to the unsuccessful party, be it the birth mother or be it the adoptive parents. Secondly, the Court cannot have regard to the fact that the child was removed from the birth mother and given to the adoptive parents without – as has been held – the lawful consent of the birth mother. That means that the Court cannot take account of the fact that, had it been realised when the consent was given that the birth mother was not, mentally, capable of consenting, the child would not then have been given to the adoptive parents. The paramount and, indeed, sole question is: what is in the best interests of the child? And, although - depending on the ultimate decision - these factors might cause the unsuccessful party, understandably, to be aggrieved, that is not – in law – to the point.
Before a final decision can be made, the court must determine, after considering the oral evidence that is led, whether the birth mother is able to give the child appropriate care and understanding on a long-term basis. “Understanding” in this sense encompasses making due allowances and being able to compensate for the loss the child will experience as a consequence of being removed from the loving care of the adoptive parents with whom she has spent more than two years. That is an issue that would be dangerous for this Court to determine on the papers alone.
If that decision is favourable to the birth mother, the ultimate result will depend on a balancing exercise. The balancing exercise will be complex. There is persuasive affidavit evidence before this Court that once the child reaches adolescence, she is likely to suffer serious harm by having been brought up by and in the culture and society of an adoptive mother and father of a patently different racial group. This may be the case regardless of the best efforts of the adoptive parents. So the long-term benefits to the child of being brought up by a mother and extended family group of her own culture and race (having regard to the capacity of the mother, as found) must be weighed against the short-term harm (that may possibly endure) that she will experience by being removed from her adoptive parents now.
I would prefer to decide this case now, as more litigation will cause more stress and heartache, and also I incline to the view that being brought up by her own people will be of greater benefit to the child in the long run. But I am not able to be satisfied on the written material alone that the birth mother has the capacity to give to the child the care and understanding I have described. This issue, as I have said, should be determined with the benefit of oral evidence and by a judge who sees and hears the witnesses. It will be for that judge to undertake the balancing exercise and determine all factors for himself or herself.
HUNT AJA: I have read each of the judgments prepared by Hodgson JA and by Ipp JA. I agree with that prepared by Hodgson JA. I do not accept that the affidavit evidence is as persuasive as Ipp JA suggests, that the child is likely to suffer serious harm when she reaches adolescence “by having been brought up by and in the culture and society of an adoptive mother and father of a patently different racial group”. There is also evidence in the new material that the long-term effects could be mitigated by the stable and secure environment provided by the adoptive parents.
In my opinion, therefore, the issue to be determined now is not limited, as Ipp JA may be taken to have suggested, to whether the birth mother has the capacity to give the child the appropriate care and understanding necessary to overcome the inevitable short-term consequences of being removed from the loving care of the adoptive parents with whom she has spent the important first two years of her life.
These issues cannot be determined in this Court. The matter should be returned to the Equity Division, for the reasons given by Hodgson JA.

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LAST UPDATED: 22/12/2005