Department of Community Services v D

[2004] NSWSC 1241

CITATION:	Department of Community Services v D & Ors [2004] NSWSC 1241
HEARING DATE(S):	16, 17 and 20 December, 2004
JUDGMENT DATE:	20 December 2004
JURISDICTION:	Equity Division Adoption List - Closed Court
JUDGMENT OF:	Palmer J
DECISION:	Adoption order made as sought.
CATCHWORDS:	ADOPTION - CONSENT - WHETHER EFFECTIVE - Birth mother gives general consent to adoption while suffering severe depression and post-traumatic stress - whether consent effective under s.58(2)(d) Adoption Act. HELD: Birth mother's consent ineffective. - ADOPTION - CONSENT DISPENSE ORDER - Whether birth mother's mental condition and general circumstances required that her consent to adoption be dispensed with and adoption order made. HELD: Consent dispense order made.
LEGISLATION CITED:	- Adoption Act 2000 (NSW) - s.8, s.52, s.53, s.58, s.67, s.70, s.84, s.87, s.90, s.92, s.180 - Children and Young Person's (Care and Protection) Act 1998 (NSW)
PARTIES :	Director-General, Department of Community Services - Plaintiff "E" - Child "D" - Natural mother "F" - Putative adoptive parents
FILE NUMBER(S):	SC 80080/04
COUNSEL:	G.A. Moore - Plaintiff Ms M.A. Cleary - "E" M.W. Anderson - "D" Ms M. Falloon - "F"
SOLICITORS:	I.V. Knight, Crown Solicitor - Plaintiff Ms K. Renshall - "E" Legal Aid Commission - "D" Colquhoun & Colquhoun - "F"

1 The Director-General, Department of Community Services ("DOCS") seeks an order under s.87(b) of the Adoption Act 2000 (NSW) ("the Act") for the adoption of a child, identified as E, in favour of a married couple whom I shall identify as Mr and Mrs F. The application is opposed by E’s birth mother, identified as D.

2    The case was brought on for hearing as a matter of extreme urgency because of the acute distress which the parties were suffering, as will appear hereafter. At the conclusion of argument I thought it best to give a decision immediately, with an outline of my reasons, and to publish later a judgment amplifying those reasons. This is that judgment.

3 The names of the parties and any details which may serve to identify them have been omitted from the judgment to secure anonymity, in accordance with the policy recognised in s.180 of the Act. The judgment is published, however, because it may be of assistance to the profession.

The facts

4    D was born in a part of the world which has long been ravaged by civil strife. When D was seven, she and her family were driven from their home by war and fled as refugees to a neighbouring country. In the flight, D was separated from her family. Eventually, she arrived at a refugee camp, where she was told that her father had been killed. Her mother, at first, could not be found but later she was discovered in another refugee camp some distance away. For some reason, D was never reunited with her mother.

5    There were in the refugee camp, however, some members of D’s extended family and she lived with them, looking after the younger children and being responsible for cooking and washing. Each day she would help in obtaining food and water, often carrying them long distances.

6    A rudimentary school was set up in the camp and D was able to attend lessons, learning English amongst other subjects. This was D’s life for about ten years.

7    One day, when D was eighteen, she went on her own to get food for the family from a food distribution centre some distance away. As she was walking through a remote area, she was approached by three men who were strangers to her. There was no one else around. The men attacked her. Two held her down while the third raped her. She screamed and struggled but there was no one to help her.

8    After the attack, D walked to the food distribution centre. When she arrived, she saw that she was bleeding so she walked back to the refugee camp, washed and returned to the distribution centre to get food for the family. She had no money to seek medical treatment. She did not tell anyone about the attack or ask for help because she was too ashamed of what had happened. In her culture, if people found out that she had had sexual intercourse outside marriage, even though she had been raped, she would have been stoned, possibly to death.

9    A short time later, D was given permission to come to Australia, where a step-brother had been sent a little earlier. She arrived in Sydney in March 2003 and was provided with a two-bedroom unit in an outer suburb of Sydney. She lived there on her own but her step-brother lived only about five minutes away.

10    At first D was very lonely and missed her family. Then, in April 2003, she enrolled in Year 11 at a local high school and began to make friends. She was very keen to study and to begin a new life.

11    About a month after she had started school, D suddenly felt ill. The next day she felt so sick that she could not get out of bed. Her step-brother happened to arrive at her flat and when she told him she was sick, he took her to the doctor.

12    The doctor examined D alone in his surgery and told her that she was pregnant. She was deeply shocked. When she left the surgery, her step-brother asked what was wrong but she avoided giving an answer.

13    D stayed alone in her apartment for about two days afterwards, eating nothing. Then she went to her step-brother’s apartment. However, her step-brother suspected why she had been to see the doctor and he accused her of being pregnant. D denied the accusation. Her step-brother angrily persisted in his accusations and demanded that she tell him the name of the man who had made her pregnant.

14    D continued to deny that she was pregnant, fearing that if she told how she had been raped her step-brother would tell his family in the refugee camp. She was frightened that fighting between groups in the camp would break out and that people would be killed.

15    D’s step-brother began to beat her severely, repeating his demands that she tell him the name of the man involved. The beating went on for a considerable time. Fortunately, when her step-brother left the room for a moment, D escaped from the apartment and hid from him. Clearly, she had been deeply traumatised by the incident.

16    Eventually, D found her way to a women’s refuge, where she was taken in and cared for until her baby was due to be delivered. D was given both physical and emotional support and the case-workers in the refuge discussed with her the possibilities of keeping the baby or having it adopted.

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.

20    Only days before these proceedings were listed for hearing, D suffered a severe emotional collapse. She is now a patient in a psychiatric hospital and a tutor has been appointed to represent her in these proceedings.

The issues

21 D now seeks an order setting aside or revoking her consent to the adoption of E, pursuant to s.58(2)(d) of the Act. If D’s consent is set aside, the Court must not make an order for the adoption of E (s.52(a)(i)) unless the Court dispenses with D’s consent under s.67.

22 In the alternative to orders the effect of which would return full parental care and custody of E to D, D seeks an order under s.92 that she have some, if not all, parental responsibility for E until E attains the age of eighteen years. In the course of his final submissions Mr Anderson, Counsel for D, suggested as a further alternative that the Court should postpone the determination of the application for adoption for some time in order to allow D to be restored to health. In the meantime, an interim order should be made under s.84(1) giving parental responsibility for E to Mr and Mrs F.

23 The latter order was also sought by the Director-General, but only as a last resort, the Director-General’s primary application being that, if necessary, a consent dispense order should be made under s.67(1)(b) or (c) and that a final adoption order should then be made in favour of Mr and Mrs F.

24    The issues for determination are:

– whether D’s consent to the adoption of E was effective for the purposes of the Act;

– if the consent given by D was ineffective, should an order now be made under s.67(1)(b) or (c) dispensing with D’s consent;

– is an order for the adoption of E by Mr and Mrs F “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” , as required by s.90(3);

– are the arrangements proposed in the present adoption plan put forward by the Director-General in E’s best interests and are they proper in all the circumstances, as required by s.90(2).

25    Each of the parties to the proceedings is separately represented by Counsel and solicitors. Counsel for the Director-General, E, and Mr and Mrs F support an order dispensing with the consent of D, if required, and an adoption order in favour of Mr and Mrs F on the basis of the adoption plan proposed by the Director-General. The adoption plan proposed by Counsel for D, as a fall-back position if an adoption order should be made, provides significantly greater access to D than is given in the Director-General’s plan.

Whether D’s consent effective

26 Section 58 of the Act relevantly provides:

“(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.”

27 Counsel for the Director General, Mr Moore, conceded during the course of the hearing, that the adoption consent of D should be declared to be ineffective pursuant to s.58(2)(d) of the Act. That concession has also been made by Counsel for E and Mr and Mrs F. However, a consent to adoption, and its consequences, cannot be rendered ineffective in law merely by agreement of the parties concerned. The consequences of setting aside an adoption consent directly affect the interests of the child so that, as s.58(2) requires, it is the Court which must be satisfied that the consent is ineffective. I am satisfied that the concession made by the Director-General and the parties in the same interest is correctly made and that the consent should be declared ineffective. My reasons are as follows.

28    In my opinion, D's evidence, which is unchallenged, proves a number of circumstances which demonstrate that at the time she signed the instrument of consent, she was not in a fit condition to give it. This conclusion is reinforced by the opinion of Dr Milch, a very experienced psychiatrist, who was called to give evidence by Mr and Mrs F. I must say that I found Dr Milch to be a thoroughly reliable witness who gave carefully balanced and impartial answers in Court in the spirit of his role as an expert witness. I have found his evidence to be most helpful.

29    The evidence shows that at the time D signed the adoption consent she was still very much suffering from post-traumatic stress disorder and major depression disorder as a result of the tragic difficulties and traumas which she had suffered in her life. Those circumstances include:

– the flight from her home at the age of seven as a result of civil war;

– the separation from her family in the course of the flight;

– the discovery at the age of eight that her father had been killed in the fighting;

– separation from her mother with whom she has not yet been reunited;

– the hardships of living in severe deprivation in a refugee camp for ten years;

– her rape by a gang of men in the refugee camp when she was only eighteen;

– her concealment of the rape for fear of what would happen to her in her community;

– her arrival shortly afterwards in Australia with the shock and loneliness of being in a very alien culture;

– the shock of discovering that she was pregnant as a result of the rape;

– the violence displayed towards her by her step-brother because he suspected that she was pregnant;

– her fear of reprisals against her and her baby from her community if the community discovered that she had had sexual intercourse outside marriage even though in a violent rape

– her separation from such support as she might otherwise have had from her own community;

– and, finally, a difficult labour of some thirty-six hours which resulted in delivery by Caesarean section.

30    To all of these circumstances, which cumulatively produced in D severe stress and an inability to cope, was added the fact that in her culture the concept of adoption as we know it is entirely foreign. Young children are very frequently given by their parents to others to care for in their early years and are later returned to their families. Dr Milch is of the opinion that despite the very anxious care taken by the case-workers from the Department of Community Services, and others who participated in the adoption process to ensure that D fully understood the consequences of what she was doing by giving consent to the adoption of E, and that she was truly capable of giving that consent, nevertheless there was not an adequate appreciation of how severe was D's trauma, nor how severe was her inability to deal with the whole of the adoption process. I intend no criticism whatsoever of the case-workers and support persons who assisted D in the adoption process when I say that I agree in Dr Milch's opinion.

31 For these reasons, therefore, I conclude that the adoption consent of D should be declared ineffective under s.58(2)(d) and that I should consider whether D's consent, which is now necessary under s.52(a)(1), should be dispensed with under s.67(1)(b) or (c). I take into account that s.67(2) provides that the Court must not make a consent dispensation order unless satisfied that to do so is in the best interests of the child.

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.

Orders

49    The orders of the Court are as follows:

(1) Declaration that the general consent given by D to the adoption of E is ineffective by reason that D was not, at the time the instrument of consent was signed, in a fit condition to give the consent.

(2) 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.

(3) Order for the adoption of E in favour of Mr and Mrs F, in the terms of paragraph 3 of the Notice of Motion filed by the Director-General on 12 October 2004.

(4) Order approving the names of E in terms of paragraph 4 of the said Notice of Motion.

(5) No order as to costs.

(6) Grant liberty to apply on two days’ notice.

(7) Exhibits may be returned.

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Last Modified: 07/16/2007