D v Director-General Department of Community Services

[2006] NSWSC 511

CITATION:	D v Director-General Department of Community Services [2006] NSWSC 511
HEARING DATE(S):	26/05/06
JUDGMENT DATE :	31 May 2006
JURISDICTION:	Equity Division Adoptions List
JUDGMENT OF:	Barrett J
DECISION:	Short minutes to be filed
CATCHWORDS:	FAMILY LAW - adoption of children - pre-hearing orders regarding evidence
LEGISLATION CITED:	Adoption Act 2000, s.180 Uniform Civil Procedure Rules 2005, rule 23.4
CASES CITED:	Angliss v Urquhart [2001] NSWCA 441 D v Director-General Department of Community Services [2005] NSWCA 474 Department of Community Services v D [2004] NSWSC 1241
PARTIES:	D - Plaintiff Director-General Department of Community Services - First Defendant Mr and Mrs F - Second Defendants E - Third Defendant
FILE NUMBER(S):	SC A80080/04
COUNSEL:	Mr M.W. Anderson - Plaintiff Mr G.W. Moore - First Defendant Ms D.M. Falloon - Second Defendants Ms M.A. Cleary - Third Defendant
SOLICITORS:	Legal Aid Commission of New South Wales - Plaintiff I.V. Knight, Crown Solicitor - First Defendant Colquhoun & Colquhoun - Second Defendants Kathryn Renshall Solicitors - Third Defendant

.IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTIONS LIST

BARRETT J

WEDNESDAY, 31 MAY 2006

A80080/04 D v DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES

JUDGMENT

1 These proceedings concern a child (“E”) in respect of whom Palmer J made an adoption order in favour of “Mr and Mrs F” upon the application of the Director-General of the Department of Community Services. That order was made on 20 December 2004 over the opposition of the child’s natural mother (“D”): see Department of Community Services v D [2004] NSWSC 1241. Almost a year later, on 9 December 2005, the Court of Appeal set aside the adoption order and remitted the matter to this Division for a new hearing of the adoption application: see D v Director-General Department of Community Services [2005] NSWCA 474.

2 Some weeks ago, I heard and determined an application by D concerning access arrangements in relation to the child pending the new hearing of the adoption application. On Friday last, 26 May, I heard a further application by D. That application was concerned with matters relevant to preparations for the new hearing, a date for which has not yet been fixed. I understand that the matter was before the Expedition Judge earlier this month and will be considered again in the Expedition List in due course. It is, to my mind, one that seems very clearly to merit expedition once it is ready for re-trial, but that, of course, is ultimately a question for the Expedition Judge.

3 There are two aspects to the application with which I am now dealing. Each concerns the preparation of evidence for new hearing.

4 In relation to the first aspect, D seeks one of three alternative orders as follows:

“1. An Order that D, Mr and Mrs F with E attend the Offices of Dr Louise Newman for the purposes of Dr Newman conducting an assessment and providing a report on D, Mr and Mrs F and E.
2. In the alternative an Order that D, Mr and Mrs F with E attend the Offices of Dr Louise Newman for the purposes of Dr Newman conducting an assessment and providing a report on the relationship between D and E and the parenting capacity of D.
3. In the further alternative an Order that the parties attend the offices of a third expert as agreed between the parties or failing agreement as appointed by the Court for the purposes of undergoing an assessment and the preparation of a report.”

5 At first sight, the reference to a “third expert” in order 3 is curious: orders 1 and 2 refer only to Dr Newman. But, as was readily recognised in the course of submissions, not only Dr Newman but also Dr Milch has already provided reports. These were placed before the court at earlier stages of the proceedings.

6 In the course of hearing D’s the interlocutory application, I asked whether there had been any consensus of the parties as to whether all or any of the evidence adduced before Palmer J would be relied upon at the new hearing. The answers I was given made it clear that there was no agreement on the matter and indeed that it may be too early for it to be addressed. Mr Anderson of counsel who appeared for D said that, according to the present state of his instructions, there would be an intention to rely on all the previous evidence with the exception of Dr Milch’s evidence. Mr Moore, counsel for the Director-General, indicated that it was unlikely that there would be any objection to the whole of the evidence before Palmer J being tendered, although he acknowledged that this would ultimately be a decision for the trial judge. Ms Falloon of counsel, who appeared for Mr and Mrs F, indicated that their position would be that the whole of the evidence before Palmer J would be appropriately received on the re-hearing. Ms Cleary, counsel for the appointed representative of the child E, did not have instructions enabling her to indicate an attitude on the matter.

7 I raised this question because I thought that the approach to the current application might be conditioned somewhat by the course that would be adopted in relation to the earlier evidence. That evidence included evidence of Dr Milch by way of assessment of D, Mr and Mrs F and E. There was also a joint report of Dr Milch and Dr Newman about relevant matters. In addition, there was a separate report from Dr Newman about D’s situation and mental health. Dr Newman was D’s treating psychiatrist.

8 The reports to which I have referred were all prepared towards the end of 2004. They thus reflect positions that will be at least eighteen months out of date by the time the new hearing occurs. Whether or not those existing reports form part of the evidence upon the new hearing (and that, I emphasise, is a matter for future decision), it is clear that the court will be greatly assisted by contemporary and up-to-date opinions. By the time of the new trial, the situation will not be one in which there exists a reasonable quantity of up-to-date expert evidence of the kind now under discussion, that is, evidence of an appropriate specialist medical practitioner who has assessed all relevant persons together: compare Angliss v Urquhart [2001] NSWCA 441. That raises the question of the extent to which the court should intervene in the process by defining evidence to be provided and making appropriate orders, as distinct from merely allowing the parties to adduce such evidence as they think fit.

9 In this latter connection, it was foreshadowed by Mr Anderson that, having regard to references in the Court of Appeal judgments to matters concerning cross-cultural or cross-racial sensitivity from the point of view of the family life of the child (E), his client (D) might wish to tender opinion evidence obtained unilaterally from experts with experience in cross-racial adoptions including, perhaps, a social worker, a psychiatrist, a sociologist and a community worker with relevant background. That proposal or possibility is relevant to the second part of the present application (to which I shall come in due course), but also underlines the point that, to a very large extent, it is for the parties themselves to decide what evidence should be placed before the court and, in cases of dispute, to make out a case before the trial judge regarding the admissibility of that evidence, from the perspective of relevance and otherwise.

10 The orders now sought raise different considerations, in that they entail a degree of compulsion giving rise to a need for a resort to rule 23.4 of the Uniform Civil Procedure Rules 2005:

“ Order for examination
(cf SCR Part 25, rule 5; DCR Part 23, rule 5; LCR Part 20, rule 5)

(1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place.

(2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.”

11 D entertains apprehensions that Dr Milch is unsympathetic to her and may be biased against her. Both Mr and Mrs F and the Director-General would prefer that Dr Milch give a further assessment with respect to D, Mr and Mrs F, and the child, E. Ms Cleary, representing the interests of E, also expressed a preference for Dr Milch. The reality is that, having made an assessment of the relevant kind in late 2004, Dr Milch is, as an objective matter, well placed to re-visit the question by reference to the situation as it currently exists and to update his opinion. The respective attitudes I have mentioned make it necessary to address the question whether there is any substance in the apprehension on the part of D regarding Dr Milch to which I have referred.

12 The reservations of D regarding Dr Milch arise from events at the time of her visit to him in November 2004, that is, on the occasion when D, Mr and Mrs F and E all saw Dr Milch together. She refers first to contemporary notes of an employee of her solicitor who received two telephone calls from Dr Milch on the day in question. Dr Milch telephoned on the first occasion to say that D was running late for the appointment and that this meant that the assessment process was going to be disrupted. The employee’s note concludes:

“My impression was that he was frustrated with the client being late as it obviously not only impacted on the child and this assessment but probably also disrupted other patients planned for the day. I was concerned about his approach and was left with the feeling that he was not necessarily very understanding of our client’s position.”

13 The second note refers to a telephone call received by the solicitor’s employee from Dr Milch after he had seen the parties. Dr Milch reported having completed the assessment saying, according to the note, “timing made a significant difference” but “didn’t affect his assessment”.

14 The next aspect of the concerns of D concerning Dr Milch are set out in D’s affidavit of 9 December 2005 (filed in the Court of Appeal) in which she recounts aspects of her attendance upon Dr Milch on the occasion in question. I will not go into all the details. It is sufficient to say that she reports various things as having happened in the course of the consultation which were not referred to in Dr Milch’s report. That, one might think, is of itself not surprising: no professional could conceivably include in such a report every little thing that happened during the consultation. But D places emphasis on some of the things as potentially relevant to Dr Milch’s assessment. Whether that is a correct characterisation it is not possible to say with any certainty; but the possibility is one that cannot be overlooked. The affidavit reads in part as follows:

“19. Throughout the interview Dr Milch spoke in a very rough way to me. He kept shaking his head at me and was not very kind to me.
20. Prior to the hearing of the matter I did not have a chance to tell my solicitors that I disputed the contents of Dr Milch’s report. My solicitors did not have a chance to cross-examine about my instructions. I was admitted into Westmead Hospital on Monday 13 December 2004. I understand from my solicitor that this was the day they first obtained a copy of Dr Milch’s report.
21. I was discharged from hospital on the afternoon of Monday 20 December which I understand was the last day of the hearing.
22. I have only raised this information with my solicitor now as my solicitor asked my view about Dr Milch preparing a further report from [sic] the court addressing the memorandum of Justice Hodgson dated 15 November 2005.
23. I would not be happy with Dr Milch preparing a further report for the court in this manner. I felt he did not like me and he was rude to me without reason. I believe that he had made up his mind about the matter before seeing me and my child.”

15 Dr Milch was cross-examined before Palmer J. Mr Anderson appeared for D at the hearing. He was able to cross-examine Dr Milch on the matter raised in the solicitor’s employee’s notes. Dr Milch strenuously denied that the fact that D was late for the appointment affected his assessment in any way. Mr Anderson was unable to cross-examine Dr Milch on the matters raised in D’s affidavit of 9 December 2005. The reasons are stated in the extract from the affidavit quoted above.

16 The third matter on which D relies comes from Dr Milch’s cross-examination where he gave answers suggesting, it is submitted, that he took a negative view of D’s parenting abilities because of the long period she had spent in harsh conditions in a refugee camp in Kenya, even though she had devoted efforts there to looking after young children.

17 There is not before me any application that any person be ordered to attend for examination by Dr Milch. The only questions for decision are those raised by the application of D which, of course, does not contemplate examination by Dr Milch. I have nevertheless come to the conclusion that, although there would be obvious advantages of continuity in having Dr Milch make a further assessment, the preferable course is that the task be undertaken by some other appropriately qualified medical practitioner.

18 I must say at once that I am not at all satisfied that Dr Milch has acted otherwise than in a wholly proper and professional way in relation to the earlier assessment. The fact remains that D has developed a mistrust of him. As I have said, she considers Dr Milch to have been insensitive and to have misunderstood her experience in the refugee camp; and she points also to aspects of the consultation in November 2004 which she considered significant but which found no place in Dr Milch’s report. As I have also said, it may well be that, as an objective scientific matter, those matters were irrelevant to the conclusions reached and the reasons for them. But the reality is that, if any further assessment of the four relevant persons – D, Mr and Mrs F and E – is to be of value to the court, it must be an assessment in which all of them willingly and comprehensively co-operate. As things stand, there could be no confidence that D would co-operate in that way. One could imagine, in an abstract way, an order of the court compelling her to attend and to submit to the assessment, backed by all the machinery that is involved in the enforcement of court orders. But an approach of that kind, in a case such as this, would be, in my view, unthinkable. There are delicate matters of personal well-being at stake in these proceedings and it is far preferable that the orders the court makes be orders which do not entail deep-seated resistance on anyone’s part.

19 I turn then to the question of the suitability of Dr Newman. She, as I have said, was D’s treating psychiatrist. As the text of the orders sought shows, D would be content for Dr Newman to perform either of the envisaged assessments. All other parties are opposed to the idea that the court should require them to submit to assessment by Dr Newman. The reasons are, in essence, that Dr Newman, as D’s treating psychiatrist, has an existing professional relationship with D and, as things stand, owes duties to D alone. It might be difficult, both professionally and as a matter of legal duty, for Dr Newman to detach herself sufficiently from the interests of her existing patient to give an opinion that has regard to the interests of all concerned and, most particularly of course, the interests if the child E. There is substance in that objection.

20 In these circumstances, I do not consider it appropriate to make an order requiring the persons concerned to submit themselves to assessment by Dr Newman. It is, of course, open to D to seek to tender evidence of Dr Newman in the usual way.

21 That leaves, by default, the proposition that some suitably qualified medical expert other than Dr Milch and Dr Newman should make an appropriate assessment of D, Mr and Mrs F and E and produce a report. All parties have indicated that if the decision of the court is such as to preclude both Dr Milch and Dr Newman, the role would appropriately be undertaken by Dr Robinson. I intend to make an order to that effect, provided that I have an appropriate indication from Dr Robinson of willingness to act, something that does not seem to be in the papers at this point, although the parties have indicated Dr Robinson’s availability.

22 There is also a question about the precise definition of the function to be performed by the expert or, more precisely, the description of the assessment to be made. I am not sure that the description in the first order sought (“conducting an assessment and providing a report on the relationship between D, Mr and Mrs F and E”) is sufficiently well defined. I would ask the parties to provide a more succinct agreed description when they furnish me with an indication of Dr Robinson’s consent.

23 I turn now to the second aspect of the application before me. D seeks the following order:

“An order that D may provide to her experts documents or details in documents filed in or otherwise relevant to the proceedings on a confidential basis except documents or details in documents that tend to identify or reveal the parties’ names, place of residence, financial information, financial records or employment details, any identifying details of the adoptive parents’ referees, relatives or friends .”

24 This application is made having regard to s.180 of the Adoption Act 2000:

“ Restriction on publication of identity of parties
(cf AC Act s 53)

(1) A person must not publish in relation to an application under this Act or under a law of another State for the adoption of a child or in relation to the proceedings on such an application:
(a) the name of an applicant, the child, or the father or mother or a guardian of the child, or
(b) any matter reasonably likely to enable any of those persons to be identified.
Maximum penalty: 25 penalty units or imprisonment for 12 months, or both.

(2) This section does not apply in relation to the publication of any matter with the authority of the Court to which the application was made.
Note: ‘Publish’ is defined in section 176.“

25 I mentioned earlier that Mr Anderson has foreshadowed the possibility that D might seek expert reports from a number of persons having knowledge and experience in matters of cross-cultural and cross-racial adoptions and families. It is with that in mind that this part of the application is made. Each of the other parties opposes the making of an order in the terms sought. There is an apprehension about the breadth of the order. I did not gather, however, that there is opposition to the basic proposition that D should be allowed to make relevant materials available to experts under an appropriately constructed regime. I therefore propose to make the following order, subject to such comments on matters of form (as distinct from substance) as I may receive from the parties:

Order that, notwithstanding s.180(1) of the Adoption Act 2000, D may furnish to any person retained or proposed to be retained by D to give expert evidence in these proceedings (a “proposed witness”) any document that contains information pertaining to these proceedings or the persons involved in them that that section requires not be published provided that
(a) D has first obtained from the proposed witness and filed in these proceedings a written undertaking by the proposed witness to the court to keep the contents of the document confidential (except by way of disclosure in a report prepared solely for the purposes of these proceedings and to be delivered to D’s solicitors);

(b) D has served on each other party to these proceedings at least seven days before the document is furnished to the proposed witness a copy of that written undertaking together with a copy of the document proposed to be furnished or, if it is a document that has been served in these proceedings, a description of it permitting ready identification of it; and
(c) the court has not made an order that D not furnish that particular document to the proposed witness.

26 There will also be a grant of liberty for all parties other than D to apply following any event of service under paragraph (c) in the foregoing order.

27 I direct that the parties file not later than Tuesday, 6 June 2006, by delivery to my Associate, short minutes of orders giving effect to paragraphs [22], [25] and [26] of these reasons. If short minutes are not filed by that date, the proceedings will be listed for mention before me at 9.30 am on Thursday, 8 June 2006.

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