Re K & C and the Adoption of Children Act

[2006] NSWSC 854

CITATION:	Re K & C and the Adoption of Children Act [2006] NSWSC 854
HEARING DATE(S):	14 August 2006
JUDGMENT DATE :	14 August 2006
JURISDICTION:	Equity Division Adoption List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	08/14/2006
DECISION:	Application for Court expert and separate representation dismissed.
CATCHWORDS:	ADOPTION – CONSENT DISPENSE APPLICATION – INDEPENDENT EXPERT – Whether consent dispense application should be heard with final adoption application – whether independent Court expert should be appointed where no conflicting experts’ reports – whether children’s interests should be separately represented.
LEGISLATION CITED:	Adoption Act 2000 (NSW) – s.67(1)
PARTIES:	Principal Officer, Barnardos – First Plaintiff Director General, Department of Community Services – Second Plaintiff Natural Mother – First Defendant Natural Father – Second Defendant
FILE NUMBER(S):	SC 80138/05
COUNSEL:	Ms J. Merkel – First Plaintiff Ms A. Walsh (Sol) – Second Plaintiff H. Cummings (Agent for Johnson Horsley Solicitors) – First Defendant No appearance – Second Defendant
SOLICITORS:	Mallesons Stephen Jaques – First Plaintiff Crown Solicitor’s Office – Second Plaintiff Johnson Horsley Solicitors – First Defendant No appearance – Second Defendant

Whether consent dispense application should be heard separately

1 The Plaintiffs in these proceedings, namely the Principal Officer of Adoptions Barnardos and the Director General of the Department of Community Services, seek, ultimately, orders for the adoption of two children who are the children of Ms B, to whom I will refer as the natural mother. Both the natural mother and the natural father oppose the adoptions. The first issue which must be determined is whether or not the consent of the natural parents should be dispensed with pursuant to s.67(1)(b) and (c) of the Adoption Act 2000 (NSW) “the consent dispense application”).

2    As this matter has progressed through the Court, it seemed as if the consent dispense application would be heard before, and separately from, the substantive adoption hearing. As matters have transpired, I now think that it would be contrary to the interests of the children and, indeed, of all concerned in these proceedings, if the issues were split in this way. That is because the consent dispense application will be opposed on the same grounds as will be put forward to oppose the adoption itself should the substantive hearing take place so that, in effect, to make an order dispensing with the consent of the natural parents would almost inevitably mean that the orders in favour of the adoption would then be made but, possibly only after another hearing before another Judge. The issues in both applications being largely the same, it seems to me far more conducive to the efficient, just and speedy determination of the proceedings that the consent dispense application be heard at the same time as the adoption application. In light of that consideration, I turn to the question that is now raised.

Court expert

3    The natural mother, by a Notice of Motion returnable today, seeks an order for the appointment by the Court of an independent expert to give opinions on a number of issues relating to the children's position, attitudes to adoption, attitudes to the natural mother, and attitudes to continuing contact after an adoption order is made, if an order is made.

4    The Plaintiffs have filed the reports of a clinical psychologist, Ms Jenny Howell, which deal with almost all of the matters upon which the natural mother wants an independent expert to advise the Court. The natural mother says that there should be an independent expert appointed by the Court to give an opinion on these matters because she feels that Ms Howell is partial in the interests of the Plaintiffs. Her principal concern in this respect is that she has not had any interviews with Ms Howell for the purpose of enabling Ms Howell to provide her reports.

5    The application for the appointment of a Court expert is opposed on a number of grounds by the Plaintiffs. The first and most powerful ground – for which there is ample support in the evidence – is that there is a real apprehension that for another psychologist to interview the children in relation to their history with the natural mother and their present feelings about the natural mother would cause them unwarranted distress. There is, unquestionably, in this case a history of abuse of the children and it is beyond argument, I think, that the children have been traumatised. The Court would be anxious to avoid further trauma to the children by requiring them, without very good reason, to relive the experiences from which they have suffered so much.

6    With that in mind, I turn to the necessity for further expert opinion. Where there are conflicting expert reports put forward by the parties to litigation, those conflicts can often be resolved by the Court appointing an expert who can take into account the conflicting views of the parties' experts and can advise the Court impartially on the proper resolution of those disputes. However, this is not such a case. The natural mother has received Legal Aid for the conduct of the proceedings, although there was an interruption in that aid for some time. As matters presently stand, the natural mother could have procured expert opinion in her favour if she had so desired and if she were able to find an expert willing to come forward with such a report. As it is, the Court has been provided with only one relevant expert's report and that is the report of Ms Howell.

7    The natural mother fears that Ms Howell is partial to the Plaintiffs. That apprehension is a natural one, although there is nothing in the reports which I have read which suggests that Ms Howell is partial in any way or is doing anything other than carrying out an exercise, for which she is very well qualified professionally, with a view to the best interests of the children.

8    I do not think that the appointment of an independent expert by the Court will give the Court assistance on many of the issues which will arise for consideration beyond that which is provided by Ms Howell's report. For example, the children, who are now eight or nine years old, are able to express their wishes in relation to the adoption. Those wishes are recounted as matters of fact by Ms Howell in her reports. Whether those wishes are accurately reported may be tested by the cross examination of Ms Howell. It does not require another person to record the wishes of the children as matters of fact. Similarly, the children's age, maturity, level of understanding and so on are the subject of Ms Howell’s report. It does not seem to me that any basis has been shown for the necessity to have any other expert give opinions as to those matters.

9    The real complaint of the natural mother is that she thinks that Ms Howell is likely to be partial because she herself, that is, the natural mother, has had no input at all into the reports prepared by Ms Howell. I think that there is a sense of grievance on the part of the natural mother that she has not been able to express her own views, her own feelings and her own side of the story to Ms Howell. In a sense, one can understand why the report of Ms Howell has not included the natural mother's account of matters. This is because the whole object of the report is directed to assessing the best interests of the children, not the best interests of either the natural parents or the prospective adoptive parents.

10    However, there is one aspect which I think does require input from the natural mother in order that Ms Howell may give worthwhile assistance to the Court and that is on the desirability and extent of future contact between the children and the natural mother should an adoption order be made. It is obvious that in the final stage of the proceedings that issue would be an essential factor for the Court to take into account. As I have said, because these proceedings will now resolve all issues simultaneously, it is clear that the Court will have to consider the question of contact in the course of considering the very questions which this particular application involves.

11    It seems to me that in order to provide the best assistance possible to the Court, expert opinion should be available to the Court on the question of future contact. It would, therefore, be of assistance for Ms Howell to interview the natural mother for the purpose of providing a further report to the Court on the desirability, scope, nature, frequency, and so on, of future contact between the natural mother and the children.

12    It may be that, as a result of discussion between Ms Howell and the natural mother, Ms Howell comes to the view that it would be desirable for her to conduct interviews with the natural mother and the children together in order that Ms Howell may assess the reaction. If that were the professional view formed by Ms Howell, then one would expect that such-face-to face meetings would be arranged. However, it may be that Ms Howell comes to the view that further interviews with the natural mother and the children together would be counter-productive and would not be in the interests of the children. If that were the view that Ms Howell formed, then I would not expect that there would be further interviews with the natural mother and children present, and Ms Howell would give reasons in her report as to why she formed her opinion.

13    In short, it seems to me that, with all of the issues in the proceedings now to be decided simultaneously and on a final basis, there is a gap in the evidence of what the Court has to take into account on a final hearing and that it would be to advantage that Ms Howell interviewed the natural mother to fill that gap.

14    Accordingly, I would not appoint an independent expert to report on the issues sought by the natural mother in her Notice of Motion, but I would require a further report from Ms Howell in which she gives her assessments as to future contact between the children based upon interviews between herself and the natural mother and, if thought desirable by Ms Howell, based upon interviews with the natural mother and the children together. However, I reiterate that the latter possibility is one to be left entirely to Ms Howell's professional judgment.

Separate representation for children

15    The next question which arises is whether a lawyer should be appointed by the Court to represent separately the children’s interests. I do not see the necessity at the moment for separate representation. This is not the typical case in which separate representation is ordered such as where, for example, there is conflict between parents in the Family Court over the custody of a child or there may be cultural considerations to be taken into account in the interests of the child where the adopting parents and the child are of different cultures. It seems to me that the Director General in this particular case has properly undertaken the duty of speaking on behalf of the children’s interests and that there is no necessity for the children to be separately represented.

16    Accordingly, I would decline to appoint a separate representative for the children. I would simply require a further report from Ms Howell on the question of contact, bearing in mind the considerations to which I have referred earlier in these reasons.

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