Re WS (No 3)

[2017] NSWSC 1160

Supreme Court

New South Wales

Medium Neutral Citation:

Re WS (No 3) [2017] NSWSC 1160

Hearing dates:

2 and 3 August 2017

Date of orders:

31 August 2017

Decision date:

31 August 2017

Jurisdiction:

Equity

Before:

Hallen J

Decision:

Orders that the amended Summons be dismissed.

 

Makes no order as to the costs of any party to the intent that they, she and he, will pay their, her, or his own costs, respectively of the proceedings.

Orders that the exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

Catchwords:

FAMILY LAW AND CHILD WELFARE  - Adoption -application for order – adoption by relatives

 

FAMILY LAW AND CHILD WELFARE  - Adoption – Whether adoption in child’s best interests - whether adoption order clearly preferable to any other any other action that could be taken by law in relation to their care

 

FAMILY LAW AND CHILD WELFARE - Adoption – Whether consent of birth parents required - Consent of child’s birth parents not given in accordance with Adoption Act 2000 (NSW) – Consent not effective – grounds for making consent dispense order – Child is over 12, but less than 18, years old - Child gives sole consent to adoption

  FAMILY LAW AND CHILD WELFARE – Adoption – Whether one of the primary purposes of the proposed adoption is to obtain a visa for the child to remain in Australia – Whether a relevant consideration

Legislation Cited:

Adoption Act 1993 (ACT)
Adoption Act 2000 (NSW)
Adoption Amendment Act 2008 (NSW)
Adoption Regulation 2015 (NSW)
Australian Citizenship Act 2007 (Cth)
Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Immigration (Guardianship of Children) Act 1946 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Adoption Application by V [2001] NZFLR 241
Adoption of CCRS [2014] NSWSC 232
Adoption of JLK and CRK [2017] NSWSC 7
Adoption of KH [2015] NSWSC 274
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of RCC and RZA [2015] NSWSC 813
Application of M [1999] NSWSC 497
Application by Webster [1991] NZFLR 537; (1991) 7 FRNZ 569
ASB, KBS v MQS and the Secretary of State for the Home Department [2009] EWHC 2491
CDJ v VAJ (No 2) (1998) 197 CLR 172
Department of Family & Community Services and LH; Re R [2011] NSWSC 551
Director General Department of Human Services; Re M [2011] NSWSC 369
EV (A Child), Re (Scotland) [2017] UKSC 15
Hull v Thompson [2001] NSWCA 359
In the Marriage of H [1994] FamCA 132; [1994] FLC 92-599
In the Marriage of Kress (1976) 13 ALR 309; [1976] FLC 90-126
J v C [1970] AC 668
Keith v Gal [2013] NSWCA 339
L and L v P [1986] 4 NZFLR 75
Lam v Lam [2017] VSCA 173
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Masters Home Improvement Pty Ltd (formerly Shellbelt Pty Ltd) v North East Solution Pty Ltd [2017] VSCA 88
Northern Territory v GPAO (1999) 196 CLR 553
Oxfordshire County Council v X [2010] Fam Law 790; [2010] EWCA Civ 581
R v Fisher (2009) 22 VR 343; [2009] VSCA 100
R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122
Re A & B (Adoption by Grandparents) (2003) 30 Fam LR 387; [2003] NSWSC 595
Re Adoption of D [2008] ACTSC 44
Re Adoption of SS (2002) 167 FLR 238; [2002] ACTSC 24
Re B (A Minor) [2002] 1 WLR 258; [2001] UKHL 70
Re B (a Minor) [1999] 2 WLR 714; [1999] 2 AC 136
Re B (Adoption order: Nationality) [1998] FLR 965
Re Director General, Department of Community Services (NSW); Adoption of DR by DCB and HMB (2000) 26 Fam LR 107; [2000] NSWSC 22
Re G (a Child) [2013] EWCA Civ 965
Re K and the Adoption of Children Act 1965 (1988) 12 Fam LR 263
Re K & The Adoption Act 2000 [2005] NSWSC 858
Re Sarah [2013] NSWCA 379
Re W & the Adoption of Children Act [1999] NSWSC 662
Re WS [2016] NSWSC 919
Re WS (No 2) [2017] NSWSC 475
Secretary, New South Wales Department of Family and Community Services (by his delegate Principal Officer, Adoptions, Barnardos Australia); Re JLR [2015] NSWSC 926
Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD [2016] NSWSC 1926
Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087
Sirola & Sirola [2016] FamCA 620
Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293
Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971
Underwood v Gaudron [2015] NSWCA 269
W v The Secretary of State for the Home Department [2017] EWHC 1733
W (A Child) [2017] 1 WLR 889; [2016] EWCA Civ 793

Texts Cited:

Macquarie Dictionary Online, 2016, Macquarie Dictionary Publishers

Category:

Principal judgment

Parties:

Ms SS (first Plaintiff)
Mr PGH (second Plaintiff)
Separate Representative for the Child
Secretary, Department of Family & Community Services (first Defendant)

Representation:

Counsel:
In Person (second Plaintiff)
Ms D Ward (Child WS)
Dr M Barnett (Defendant)

  Solicitors:
N/A (Plaintiffs) 
Legal Aid NSW (Child WS)
Crown Solicitor’s Office (Defendant)

File Number(s):

A019/2016

JUDGMENT

Background

1. HIS HONOUR: These are, effectively, the continuation of proceedings relating to the intra-family adoption of a teenager, to whom I shall continue to refer to as WS. She was born in early September 1999, and at the date of the hearing, which commenced on 2 August 2017, she was only a few weeks away from her 18th birthday. At the date of delivering these reasons, she is only a few days away from that birthday. As will be read, she is not currently in Australia.

2. In accordance with the requirements of s 180 of the Adoption Act 2000 (NSW) (“the Act”), I shall refer to the persons affected by the adoption application in a manner which will not identify them, or make it reasonably likely that they may be identified. Relevantly, the Dictionary to the Act defines the expression “parties to an adoption”, to include: (a) the child (WS); (b)….; (c) person or persons selected to be the prospective adoptive parent of the child (SS and PGH); and (d) the Secretary [of the Department]. As will be read, although the birth parents of WS have not provided an effective consent, I shall continue to refer to them as CS and BS. (They are not parties to the proceedings and have not sought to be joined.)

3. It has already been necessary for the Court, as well as the Court of Appeal, to deal with issues surrounding the jurisdiction of the Court to hear the application for the adoption of WS. I have set out the relevant procedural history in my earlier judgment, which bears the medium neutral citation, Re WS (No 2) [2017] NSWSC 475 at [17] – [20], which judgment was published on 27 April 2017 (“the earlier judgment”).

4. (There was also a judgment of White J (as his Honour then was) which bears the medium neutral citation Re WS [2016] NSWSC 919. However, it is not necessary to refer to that judgment other than by reference to the earlier judgment.)

5. I shall refer to certain parts of the earlier judgment and to the parties to these proceedings, and other persons, where appropriate, in the same way as I did in that judgment. The issues, then, to be determined, related to contested facts going to the habitual residence of WS, and the date on which habitual residence was to be determined. I concluded that, as at the date of her move from Thailand, being 6 March 2016, WS had abandoned, and had lost, her habitual residence in Thailand and that the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption did not apply because she was not a child habitually resident in one Contracting State (Thailand, “the State of origin") who had been moved to another Contracting State (Australia, "the receiving State"). There was no appeal. This judgment should be read in conjunction with the earlier judgment.

6. It follows that this Court has jurisdiction to hear, and determine, the application by SS and PGH, a married couple, for an order for the adoption of WS under the Act. It is that application that has now been heard and to which these reasons relate.

7. At the outset, I should mention that I have not forgotten the statement made by Basten JA in Underwood v Gaudron [2015] NSWCA 269, at [11], that “in a case where the moving party had not always had (and might after the trial no longer have) legal representation, unnecessary length and complexity in a judgment is to be avoided”.

8. However, the general proposition stated by his Honour, whilst, respectfully, and undoubtedly, correct, must give way to the circumstances of the individual case, including where the unrepresented litigants are (or one of them is) legally sophisticated; where there are many matters of fact and/or law in dispute which must be determined; where there is a complexity of legal issues; and where, because of the submissions made, the trial judge must adequately explain the reasons for the findings and the application of the law to the facts as found which led him, or her, to the relevant conclusion: Lam v Lam [2017] VSCA 173 at [107] – [112] (Kaye J, with whom Whelan and Santamaria JJA agreed).

Correspondence with the Court

9. The task of dealing with the matter, on each occasion that it has been before the Court, has not been made any easier, because PGH, until relatively recently, has sent a sustained sequence of communications, by email, to the Court, without the consent of the other parties, in some of which he has made an array of complaints about the conduct of the Defendant and the legal representatives, as well as raising other issues.

10. More than once, without having read the email correspondence, the Court informed PGH that such email correspondence had not been considered; that the Court could not fairly determine a contested application, or request, by reference solely to untested assertions contained in an email sent to the Court; and that he should not forward emails to the Court without first having obtained the consent of the other parties involved in the proceedings.

11. The Court was also required to forward a copy of the relevant email, sent by PGH, with the response, to the legal representative for the Defendant and for WS. This has been time consuming and clearly avoidable.

12. Whilst in the few weeks immediately before the hearing, PGH refrained from sending emails other than those relating to compliance with the relevant directions that had been made in regard to the conduct of the hearing, as recently as 28 July 2017, having been informed, when the matter was last before the Court, that I was on leave in the week before the hearing, he sent an email to the Court, and to the legal representative of the Defendant and of WS, which was in the following terms (correcting typographical errors):

“We are writing as a courtesy to inform the Court that none of the Parties have requested any of the witnesses for cross examination (reference the email below).

It is our understanding that absent any challenge to the Plaintiffs’ & Child’s evidence, it stands at its highest, without any latitude for contradiction by submission. The 1st Defendant has not, to our knowledge, filed any contradictory evidence beyond their rejected Affidavit.

We refer to:

CGU Insurance Bhd v ASEAN Security Paper Mills Sdn Bhd [2006] 2 CLJ 409 and YK Fung Securities Sdn Bhd v James Capel [1997] CLJ 300 where it was held:

“... Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all... It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent’s witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asked no "question with regard to this, then he must be taken to accept the plaintiff’s account in its entirety…”.

That being the case, regardless of the Parties & Court still waiting on the overdue submissions of the 1st Defendant, it seems unlikely this matter will proceed beyond the first hearing date. If indeed it is necessary for the matter to proceed in court at all other than on the documents in Chambers. Vacating the hearing dates will certainly save all parties considerable costs, and hopefully advance the Court's ability to expedite a decision in the matter.

We had suggested this course to the 1st Defendants yesterday, cc the Child, & suggested it was prudent for them to notify the Court, that at the least, a 3 day trial is unlikely to be required.

I would rather save the motel costs of staying overnight between the Immigration Hearing & the first listed date of this hearing, in favour of possibly accompanying my recovering wife in Thailand. Particularly if there is no point in attending Court, other than to mark the roll, and send his Honour (with thanks) to consider the written submissions & unchallenged evidence.

We hope this email is not an infraction of our promise to his Honour not to email on trivial matters.

If indeed my attendance, absent my unwell wife, is unnecessary or the length is reduced, we would be grateful of knowing before the weekend if possible so we don't book & pay for unnecessary accommodation for next week.”

13. Whilst it was necessary, and proper, to inform the Court that the time required for the hearing may be reduced, the balance of the email was unnecessary and, perhaps, in part, was, or may have been, contentious. It also required, it would seem, the advice of the Court regarding whether the attendance of the parties and their legal representatives was required at the hearing.

14. The Court responded in the following terms:

“Dear All,

I have informed his Honour of the email from Mr H.

So far as the Court is concerned it is still a matter for the Court to determine how the matter proceeds and what orders are to be made.

Whilst the proceedings may be shortened, the Court has not read the evidence or decided the result.

The matter will proceed, as listed, on Wednesday and, if necessary, will continue on Thursday and Monday.

His Honour is not able to predict how long the matter will take, although presumably it will be shorter than anticipated since there is to be no cross-examination. However, two folders of documents were delivered to Chambers yesterday which will have to be considered.

The matter will proceed in the usual way with affidavits read, any objections made and then submissions.”

15. A litigant in person, whilst not being bound by Professional Rules that apply to solicitors and barristers, must remember, as must legal representatives, that:

“Written communications between a party to litigation and the judge's associate should normally be confined to matters concerning practice or procedure. Communications including emails containing allegations, matters of substance or requests for substantive advice should not be forwarded to a judicial officer without the parties’ express agreement (save in an exceptional case warranted for example by an ex parte application).

Unless the subject of express prior consent of the other parties, written communications should not include information or allegations which are material to the substantive issues in the litigation. In all circumstances, the other parties to the litigation should be copied in on any such correspondence. If a communication which apparently fails to comply with those requirements is received in chambers, it would be for judicial staff promptly to enquire whether the other party has been notified before engaging in any further exchanges with the sender. The ubiquity and prevalence of informal email communications between courts and litigants entails many advantages but, unless approached with an appropriate protocol by litigants and within judges' chambers, presents potential risks of the errors demonstrated in the present case.”

See: R v Fisher (2009) 22 VR 343, at 351-352; [2009] VSCA 100, at [38] – [39] (Redlich and Dodds-Streeton JJA).

16. In Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971, Kunc J, after referring to R v Fisher added, at [21] - [22]:

“There should be no communication (written or oral) with a judge's chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge's chambers should be provided to the other parties for their consent. There are four exceptions to this:

(1) trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing);

(2) ex parte matters;

(3) where the communication responds to one from the judge's chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge's associate); and

(4) exceptional circumstances.

There are three other matters. First, any communication with a judge's chambers which falls into any of the categories set out in sub-paragraphs [21] (2), (3) and (4) above should expressly bring to the addressee associate's or tipstaff's attention the reason for the communication being sent without another parties' knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge's chambers in relation to proceedings should always be copied to the other parties.”

17. More recently, in Sirola & Sirola [2016] FamCA 620, McClelland J, at [15], added:

“…if consent to communicate with a Judge’s chambers cannot be obtained from the other party or parties, then the party seeking to communicate with the Judge should make a formal application for the matter to be listed before the Judge so that the argument that the party wishes to present can take place in open court. It goes without saying that open justice is a fundamental aspect of procedural fairness that is foundational to proceedings before all Australian courts.”

18. These protocols exist to preserve the impartiality of the judiciary. As was said as long ago as 1973, in R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127, by McInerney J:

“…save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of, or with the previous knowledge and consent of, the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”

19. Whilst, in an adoption application, one would not, necessarily, descend into commentary regarding the conduct of one of the parties prior to the hearing about such matters, in this case, the correspondence from PGH has been so relentless that it is necessary to write something about it as a reminder to parties, whether or not litigants in person, and to legal practitioners, to whose attention these reasons for judgment may come.

20. Finally, I should mention, for completeness that, at the hearing, when I raised the matter of the last email and his previous conduct regarding email correspondence, PGH unreservedly, and I consider, genuinely, apologised: T144.37 – T145.01.

The Prior Proceedings

21. As stated earlier, it is necessary to repeat a number of factual matters referred to in the earlier proceedings. I shall, where necessary, simply summarise the findings that I made in those proceedings.

22. WS was born in Thailand, in the north eastern province of Kalasin, in September 1999. She remains a citizen of Thailand.

23. Her birth parents, CS (her father) and BS (her mother) are both alive. CS is the brother of SS. WS has one brother, N, who is about 21 years of age. She has two living grandparents. All of these persons are citizens of Thailand and each has resided, and continues to reside, there. WS has another aunt, NN, who lives in Australia.

24. SS was born in Thailand, but she has been an Australian citizen since 26 January 2016. PGH has been an Australian citizen since his birth.

25. SS has no children by her marriage to PGH, or from her prior marriage. PGH has two children from his prior marriage, each of whom is now an adult. He has one grandchild. WS has met, and has socialized with, all of them.

26. In January 2014, CS and BS, in writing, appointed SS and PGH to be the “authorised guardians” of WS “in all matters relating to her travelling to, and staying in, Australia” with “the same authority as our own actions”.

27. WS was issued with a Thai passport in March 2014. It will expire in March 2019.

28. WS lived in Thailand since her birth until she came to Australia at different times. She arrived, for the first time, on 4 June 2014; she left Australia, returning to Thailand, on 4 November 2014; she returned to Australia on 7 March 2016, staying until 23 July 2016; she returned to Australia, from Thailand, on 28 August 2016, pursuant to the Student (Temporary) (Class TU) Student (Subclass 500) visa, in the charge of SS. From that date, WS had been living in Australia (with the exception of a trip back to Thailand on 29 December 2016 and returning on 1 February 2017), with SS and PGH, pursuant to that student visa.

29. On 29 August 2014, whilst WS was in Australia for the first time, SS and PGH filed, in the Family Court of Australia, an application for parenting orders under the Family Law Act 1975 (Cth) in relation to WS.

30. On 15 October 2014, following a hearing of the application, in which CS and BS gave evidence by telephone, Benjamin J made the following orders (inter alia):

“[WS] (born 5 September 1999) live with SS and PH (the aunt and the uncle).

The aunt and uncle have parental responsibility for the child.

[CS and BS] (‘the parents') shall communicate with the child as agreed between the child and the parents which communication shall comprise of weekly telephone/Skype calls.

The child shall spend time with the parents at least one month per year in either Australia or Thailand.

…

BY CONSENT the financial expenses for spending time with the child shall be borne by the aunt and uncle.”

31. The orders in the Family Court were made with the consent of CS and BS. There has been no application to set aside, or vary, these orders. It follows that SS and PGH remain persons with parental authority for WS at least until WS reaches 18 years of age. The Defendant, although provided with copies of documents in relation to the application, decided not to intervene in those proceedings.

32. Between November 2014 and March 2016, as set out in the prior reasons for judgment, a number of applications were made for different visa classes on behalf of WS. In addition, on about 6 November 2014, WS lodged, or there was lodged on her behalf, with the Australian Embassy in Bangkok, an application dated 18 October 2014, for a permanent visa under the Migration Regulations 1994 (Cth), namely a Child (Migrant) (Class AH) visa, subclass 117 (Orphan relative) on the basis that WS “is an orphan relative of an Australian citizen”.

33. I should quote verbatim my conclusion in [152]:

“I have some doubt about the correctness of the submission by the Plaintiffs that WS was not moved to Australia for the purposes of adoption, considering, amongst other things, that in their application for a Visitor Short Stay Visa (subclass 600) lodged on the 27 May 2015 (pursuant to which WS entered Australia on 7 March 2017), the purpose of stay is described as including “Parties will be applying to adopt the child following which an adoption visa application will be made” (Ex B1/153) and PGH’s references, during the hearing, to this being at least one of the purposes for which WS sought to come to Australia.”

34. I also noted at [225(h)] that:

“Even after WS returned to Thailand in November 2014, SS and PGH continued to seek to fulfil the parental responsibilities that were conferred upon them by the Family Court. The efforts by them, following the visit to Australia in March 2014, seeking one, or other visa, were made with the intention that WS permanently return to Australia. Indeed, evidence given to the Administrative Appeals Tribunal, on 13 October 2015, included an acknowledgement by PGH “that it was his intention in the long term to have the visa applicant remain in Australia permanently, but that they had no intention that she would breach her visa conditions on her visitor’s visa as they do not wish to jeopardise either her permanent application in the future…” and that “as part of [his] and his wife’s plans to have their niece reside permanently in Australia they intend to file an application with the Supreme Court for her adoption as soon as the visa applicant arrives in Australia…”.”

35. The Student (Temporary) (Class TU)(Subclass 500) visa, pursuant to which WS returned to Australia in August 2016, had the following conditions, namely, “NFS EXCEPT PTW” (which meant that the visa holder cannot apply for another visa except, a further student visa with permission to work), “WORK LIMITATION” (which means that the visa holder must not engage in any work in Australia before the holder's course of study commences), “MEET COURSE REQUIREMENTS” (which means that the visa holder must remain enrolled in a registered course), “MAINTAIN HEALTH INSURANCE” (which means that the visa holder must maintain adequate arrangements for health insurance during the stay in Australia), “MAINTAIN ELIGIBILITY” (which means that the visa holder must continue to satisfy the requirements for grant of the student visa), “MAINTAIN EDUCATION FOR DEPENDENTS” (which means the visa holder must maintain adequate schooling arrangements for any school-age dependents who joined her in Australia for more than 3 months as part of your student visa application), as she is younger than 18 years she must have accommodation and support, and her general welfare must be maintained for the duration of your stay in Australia, and “INFORM PRVDR OF ADRS”, which means that the visa holder must provide certain information to the education provider.

36. On each of the occasions that WS had returned to Australia from Thailand, she resided with SS and PGH, and continued, until recently, to reside with them in New South Wales. As will be read, WS and SS left Australia, and returned to Thailand, on a date not disclosed in the evidence, but seemingly, in about mid-June 2017. It will be necessary to return to this matter later in these reasons.

37. I should mention, to the extent that it is relevant, there is no dispute that:

1. The application for adoption before the Court has not been made by the Secretary of the Defendant;

2. There has been no order for adoption of WS by the Plaintiffs granted in Thailand. Under Thai law, she has not been declared available for adoption.

3. There is no evidence that an adoption compliance certificate has been issued in Thailand.

4. There is no foreign adoption that can be recognised in New South Wales.

5. The agreement of the New South Wales Central Authority in Australia and the Central Authority in Thailand, respectively, to the adoption of WS, has not been sought, and, accordingly, has not been given.

These Proceedings

38. SS and PGH filed the Summons for the adoption of WS on 7 March 2016. They filed an amended Summons for her adoption on 24 January 2017.

39. At the hearing, the Court was only required to deal with part of the relief sought in the amended Summons, being the relief sought in Paragraph 1 (the order for the adoption of WS), Paragraph 6 (an order that a copy of the order could be made available to the Department of Immigration and Border Protection), Paragraph 10 (a declaration that the sole consent of WS to the making of an adoption order was only required and that the consent of CS and BS was not required), Paragraph 11 (in the alternative to 10, a consent dispense order in relation to CS and BS) and Paragraph 13 (such further or other order as the Court sees fit): T2.42 – T3.45.

40. In the current proceedings, the Secretary, Department of Family and Community Services, is the only Defendant. WS, again, was separately represented by Australian legal practitioners (solicitor and counsel). Her legal representatives, in accordance with s 122(3) of the Act, ensured that the views of WS have been placed before the Court and that all relevant evidence was adduced.

41. The position of the parties, at the hearing, can be briefly summarised as follows. SS and PGH, the proposed adoptive parents, naturally, wished the adoption to proceed and an adoption order to be made. WS, also, consented to the making of the adoption order. It was submitted that CS and BS, the parents of WS, had consented to the adoption, but, during the hearing, it was accepted by all parties, that their consent had not been given in full compliance with the Act, or in accordance with the Adoption Regulation 2015 (NSW) (“the Regulations”): T40.48 – T41.44. It is clear, however, from the evidence, that they support the making of the adoption order.

42. In written and oral submissions, counsel for the Defendant stated that the Secretary “neither opposes nor supports the adoption”. Very fairly, if I may say, counsel advanced arguments for, and against, the making of the adoption order to assist the Court in coming to its determination.

43. From this broad summary, it will be appreciated that there is no specific opposition to the adoption order being made. However, that does not relieve the Court from performing the obligations imposed by the Act. The Court must bear in mind the adoption principles enshrined in the Act.

44. The following affidavits were relied upon by the Plaintiffs and/or WS, for the purposes of the hearing:

1. Affidavit of Applicants, sworn 7 March 2016;   

2. Affidavit of Identity, sworn 7 March 2016;   

3. Affidavit of PGH re s 91 Report sworn 12 August 2016;

4. Affidavit of Brian Bembrick, sworn 20 December 2016;   

5. Affidavit of Applicants re Jurisdiction & Habitual Residence, sworn 4 January 2017

6. Affidavit of Natural Parents sworn 6 January 2017;   

7. Affidavit of WS, sworn 9 February 2017.

45. In addition, the Plaintiffs tendered a copy of the “Sole Consent to His or Her Adoption by a Child who has attained the age of Twelve Years”, dated 2 May 2016, signed by WS supplemented with a two page statement of a person qualified to witness a consent: Ex. B. As will be read, WS was counselled by a registered counsellor, Ms J Wyles, in that respect: see, s 55(1)(a) and s 63, and was provided with the Mandatory Written Information.

46. Also, as is obvious, a period of 30 days, beginning on the day on which the instrument of consent to the adoption was signed, has expired: s 89(b) of the Act.

47. The Court may not make an order for the adoption of a child unless a report in writing concerning the proposed adoption has been provided to the Court (s 91(1) of the Act.) PGH tendered a report dated 20 July 2017, of Ms D Starkey, which meets the requirements of s 91: Ex. A.

48. The Defendant did not rely upon any affidavits that had been served.

49. All of the evidence, including the exhibits to which reference has been, or will be, made, has been read and considered. It is not necessary to refer to all of the affidavit evidence because it has been summarised, adequately, in what will be referred to below and because the facts to which reference has been made and the findings in the prior proceedings were not the subject of any dispute at the hearing of these proceedings. The Court has had to survey a wide canvas.

50. Unfortunately, the decision by the parties to not cross-examine any of the witnesses, or Ms Starkey, has not made this case any less difficult from the Court’s point of view. All of the submissions made in writing, and orally, have ensured that there has been a rigorous examination of the various considerations.

51. I have had the benefit of detailed written, and oral, submissions, the former of which were provided to me promptly, and, for the most part, as directed. The written submissions will, of course, remain in the Court papers. The Court has been greatly assisted by the participation of, and submissions from, counsel for WS and from counsel for the Defendant. Both counsel approached the task with tact and skill.

52. As in the last hearing, SS and PGH did not appear with legal representation, it would seem, through choice. Indeed, only PGH appeared at the hearing. He also provided detailed submissions in chief (24 July 2017) and in reply (30 July 2017). He sought to address the issues to the best of his ability.

SS and WS – At the date of the hearing

53. The Court was informed that the reason SS was not present at the hearing was that she was in Thailand. Whilst there, she had been admitted to hospital, on 12 July 2017, because she had sustained endogenous endophthalmitis (an intraocular infection affecting the inner coats of the eye) at her left eye, and had undergone enucleation (the removal of the eye that leaves the eye muscles and remaining orbital contents intact) of her left eye on 12 July 2017. However, the copy medical report referring to these matters (Ex. C), also revealed that she had been discharged from hospital on 20 July 2017.

54. The failure of SS to attend the hearing did not cause any procedural difficulty, because, in the earlier hearing, she had appeared for only part of the time and had asked the Court to permit PGH to speak on her behalf. Throughout the directions hearings that followed, at some of which SS had appeared, there was no suggestion that PGH would not continue to speak on behalf of them both.

55. WS did not attend the hearing either. There is evidence that she, also, is in Thailand, having gone there in about mid-June 2017. This was confirmed by WS in a conversation held on Skype with Ms Starkey.

56. There was no application, by any party, to adjourn the hearing to enable SS and/or WS to attend the hearing. The hearing proceeded without their involvement (other than as the deponents of affidavits that were read).

57. There is one aspect of some significance caused by both SS and WS having left Australia to return to Thailand when they did, to which I shall refer below.

Events after publishing the earlier Judgment and the Hearing

58. Following the Court publishing the earlier judgment on 27 April 2017, I adjourned the matter until 18 May 2017. On that day, in the presence of SS, PGH and the legal representatives of WS, and of the Defendant, the following orders, notations and directions were made:

“1.   Orders that the second Defendant be excused from further appearance before the Court in relation to the balance of the proceedings.

2.   Orders that the Intervener, being the Attorney-General for the Commonwealth, be excused from further appearance before the Court in relation to the balance of the proceedings.

3. Directs the Applicants to provide to the Court a report in accordance with s 91 of the Adoption Act 2000.

4.   Notes the agreement of the parties that Ms Dianne Starkey is to be appointed to provide the report and that the report is to be provided by 21 July 2017.

5.   Directs each party to serve any further evidence upon which it is intended to rely by 4:00 p.m. on 15 June 2017.

6. Notes that there is an estimated cost of $8,800 for the s 91 report.

7.   Directs the parties to agree upon how those costs are to be paid initially upon the basis that any party may, at the hearing of the proceedings, seek an order for reimbursement of any costs paid in that regard.

8.   Notes that the parties wish the Plaintiffs’ application for adoption to be heard and determined prior to 5 September 2017.

9.   Notes that the parties agree that the evidence relied upon in the separate question, and any evidence served in accordance with the earlier direction, be made available to Ms Starkey.”

59. It had been agreed that Ms Starkey was an “authorised person” within the meaning of that term in s 91(2A) of the Act. (Her report discloses that she is a Clinical Psychologist who has 37 years of experience in conducting therapy with children, adults and families, particularly with children who have histories of abuse and placement out of home. During the 15 years she has been in private practice, she has completed psychological assessments for the Children’s Courts in Sydney, Newcastle, Port Kembla, Armidale and Darwin; the Family Courts in Parramatta, Darwin and Newcastle; and the Administrative Decisions Tribunal in Sydney and Penrith.)

60. Ms Starkey was provided with a joint letter of instructions and certain documents. PGH tendered a copy of her report dated 20 July 2017, concerning the proposed adoption, together with a copy of the documents with which she was provided: Ex. A.

61. (The Defendant had not considered it appropriate to make a report to the Court in relation to the adoption of WS, and the Court did not require the Defendant to make a report, even though the application for the adoption order has been made by persons other than the Defendant: s 91(3) and (4) of the Act.)

62. There was a degree of urgency brought about because of the age of WS and her, as well as the Plaintiffs’, desire for the adoption to be dealt with before she reached the age of 18 years. This was only possible by the Court expediting the hearing.

63. At the directions hearing on 18 May 2017, the Court raised with SS and PGH the question whether any further evidence was required to be filed to bring their circumstances, or the circumstances of WS, up to date, “by saying, for example, what the child is doing. She is continuing with school, whatever it is you want to add. It's up to you”. PGH responded that he thought that “would be covered in the interviews” to be held with Ms Starkey: T4.03 – T4.12.

64. Because the Defendant wished to adduce further evidence, I made the directions concerning the service of any further evidence (Paragraph 5).

65. PGH raised the prospect of filing evidence in reply, to which the Court indicated that although a direction did not need to be made regarding this, the Plaintiffs would not be prevented from relying upon any such evidence filed: T12.29 – T12.40. (Because of what occurred subsequently, it was not necessary to file any evidence in reply.)

66. Immediately after the directions hearing, and following enquiries made of Ward CJ in Eq., the Court was able to inform the parties by email sent on that day, that the matter was listed before me, for hearing, on Tuesday, 1 August 2017, with an estimated duration of 3 days. They were also told that there was to be a pre-trial directions hearing, to ensure that the matter was ready for hearing, at 9:30 a.m. on Thursday, 29 June 2017.

67. (I should mention that, subsequently, the first day of the hearing was vacated, at the request of PGH, but by consent of the Defendant and the legal representatives of WS, because PGH was appearing, on that day, in the Federal Circuit Court, in regard to a matter involving a visa application made on behalf of WS. In the events that happened, this did not inconvenience the other parties, or the Court, as the hearing was completed, in any event, on 3 August 2017.)

68. Despite the degree of urgency about which the Court had been informed earlier, the following submission, as it appears in the written Outline of Submissions filed on behalf of SS and PGH, was made:

“A final adoption Order will not be sought by the Plaintiffs until the precondition of a Resident Visa is satisfied, and/or our Niece reaches 18, however the timing of these parallel proceedings is making that goal increasingly difficult to juggle.”

69. In the Plaintiff’s written Submissions in Reply, after taking objection to the requirement for the s 91 Report to be obtained, the Plaintiffs stated, at [18]:

“..if any other obstacle arises preventing an Order being made, the proceedings should adjourn until the Child reaches 18, to remove them”.

70. However, PGH made no application to vacate, or adjourn, at the hearing. Any such application, if made, in all probability, would have been opposed because counsel for WS took the view that the Court should determine the issues in dispute without further delay: T74.22 – T74.23.

71. On 20 June 2017, PGH filed a notice of motion in which he sought a raft of orders (15 in all, many with sub-paragraphs). However, the principal orders sought related to an affidavit, proposed to be relied upon by the Defendant, which affidavit, if admissible, was to be sent to Ms Starkey. The Plaintiffs objected to certain paragraphs of that affidavit.

72. I dealt with the notice of motion, urgently, on 29 June 2017, because the parties required, pursuant to s 192A Evidence Act 1995 (NSW) rulings in advance of the hearing on part of this lay evidence. This was necessary because of the need to provide affidavits and other documents to Ms Starkey, to enable her to provide the s 91 Report to the Court.

73. Section 192A of the Evidence Act, relevantly, provides that where a question arises in any proceedings, being a question about the admissibility or use of evidence proposed to be adduced, the court may, if it considers it to be appropriate to do so, give a ruling in relation to the question before the evidence is adduced in the proceedings.

74. Following submissions, I ordered that the affidavit of Ms N Martin, sworn 15 June 2017, not be filed in Court, and not be relied upon, by the Defendant, in relation to the application for the adoption of WS. Orders and directions were then made, which included that the Defendant provide to the Plaintiffs and the legal representative of WS, a statement of facts (in narrative form) which included paragraphs 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28 (up to “see each other”), 38 (up to “made by consent”), 42, 44, 46 (the first sentence), 49 (up to “was dismissed”) and 50 of the Affidavit of the Plaintiff filed in support of the notice of motion by noon on Friday, 30 June 2017. Other directions were also made regarding the parties endeavouring to reach agreement on a number of matters of fact, and if agreement could not be reached, competing versions to be provided to the Court, that I would deal with by making orders in Chambers.

75. The orders and directions made were complied with and, ultimately, a Statement of Agreed Facts was able to be drafted and provided to Ms Starkey. I have read that Statement of Agreed Facts but do not consider that what is stated requires repetition in these reasons.

76. At the time, due to the pressure of other work, I was unable to deliver reasons for making the order that the affidavit not be filed. I indicated that, if required, reasons would be provided as part of the determination of the substantive application.

77. Under cover of an email, sent to the Court, on 28 July 2017 (in which the Defendant also sent a copy of an outline of submissions), I was requested to provide reasons for my decision on the notice of motion.

78. This part of the judgment, therefore, deals with the reasons for limiting the affidavit evidence upon which reliance could be placed by the Defendant and which went to alleged conduct by PGH in respect of a custody dispute relating to children of his first marriage. I do not propose to set out the allegations made in the affidavit.

79. The basis of the application was that the advance rulings would assist in providing a just, quick and cheap resolution of the real issues in the adoption proceedings and that if those rulings were not given, it may require the vacation of the hearing.

80. At the commencement of the hearing of the notice of motion, the Court referred the parties to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rule 56.3. That rule states that “Each party to proceedings in the Supreme Court under the Adoption Act 2000 has a duty to the Court to make known fully and frankly all matters relevant to the making of an adoption order, whether those matters tend to support or tend not to support making the order”.

81. The thrust of the Defendant’s argument was that the contents of the affidavit should be provided to the expert to “inform the s 91 reporter, as an expert providing sociological, psychological and expert opinion, about the way in which an adoption order serves the best interests of, [in] this case, a teenage child”.

82. Counsel for the Defendant referred to UCPR rule 56.8, which identifies the evidence that must be included in support of an application for an adoption order, and identified sub-rule (n), which refers to “facts and circumstances relied on to show that the best interests of the child will be promoted by the adoption”.

83. (In relation to the matter, generally, none of the parties referred to rule 56.8(q), which requires evidence of “whether the child is, or has ever been, an immigrant and whether the Minister administering the Immigration (Guardianship of Children) Act 1946 of the Commonwealth has consented to the making of the application for adoption”. There have been no submissions made upon the relevance, if any, of this sub-rule.)

84. Counsel for the Defendant properly pointed out that the deponent of the affidavit to be relied upon had acknowledged that “these are not my observations, these are [some of] the records held by my employer”. (In fact, it was stated in the affidavit that what had been asserted was part of “15 files of material concerning [PGH’s] children”: T8.25 – T8.32.)

85. Having read the affidavit, I formed the view that its contents included unproved allegations made against, and counter-allegations made by, PGH. Furthermore, the conduct alleged, some of which was said to have occurred at least two decades ago, was conduct in the over-heated cauldron of contested custody proceedings, and in circumstances of extremely high emotion. (The conflict between PGH and his first wife had continued between 1995 and 2002, but, it would seem, not thereafter. Allegations were also made regarding a relationship that PGH had with another woman subsequently.)

86. I also expressed the view, during the argument on the notice of motion, that if the affidavit was permitted to be relied upon, it was likely that the Court would allow PGH to respond, and that this could result in the Court, in the adoption hearing, having to determine the truth of the myriad of allegations and counter-allegations that had been made about events long ago, and which would be likely to result in a hearing that far exceeded three days.

87. Also, I was of the view that many of the allegations did not go to the principles that the Court would be required to consider, pursuant to s 8 of the Act, in making a decision about the adoption of WS, who, as earlier stated, is nearly an adult, and who has provided written consent to the adoption order.

88. Furthermore, it seemed to me, that the Defendant, by seeking to rely upon the evidence, was, perhaps, suggesting that the alleged conduct revealed PGH has, or had, a tendency to act in a particular way, or to have a particular state of mind, which evidence, in my view, would not be admissible either by itself, or having regard to other evidence adduced, or to be adduced, by the Defendant, because it did not have significant probative value: s 97 of the Evidence Act.

89. (In regard to the last matter, counsel stated that the Defendant was not “urging anything on [the Court]” but was submitting that the report writer ought to know what was alleged to have occurred “so that proper enquiries can be made”: T16.16 – T16.21.)

90. I also formed the view that, as PGH and his former wife had, subsequently, entered into consent orders involving their children in 2002, that these, when considered, might dilute the seriousness of some of the allegations that had been made against PGH.

91. Neither PGH, nor the legal representative of WS, opposed the making of orders and directions that would enable the preparation of an agreed statement of facts and documents which, preferably in a non-contentious way, raised the issues sought to be raised. In this way, the expert would be provided with a document (or documents) that could be considered by her, and these would enable her to give any conduct the weight she considered it ought to bear, in relation to the matters referred to in s 91.

92. It is clear from the s 91 Report, that Ms Starkey was provided with the original, or a copy, of the Statement of Agreed Facts, together with a number of the orders made, at different times, by the Family Court, between 1995 and 2002, as well as other information, obtained from documents, dealing with the conduct of PGH. She has referred to the conduct alleged as part of her report to the Court. I shall not separately refer to the Statement of Agreed Facts. However, I shall refer to the s 91 Report, in more detail, later in these reasons.

93. Subsequent events have confirmed that the course adopted was an appropriate one, as PGH was not cross-examined on any of the conduct allegations that were made against him.

Formal Matters

94. Before an adoption order can be made in New South Wales, the Court must be satisfied that a number of procedural factual safeguards required by the Act have been met.

95. I shall refer to the formal matters that are required by the Act, by reference to the facts of this case, as there is no dispute about them:

1. When the application was filed, WS, the child, was present in New South Wales: s 23(2)(a). (The Act does not require the child to be present at the time of an order being made.)

2. WS was less than eighteen years of age, but over the age of 12 years, when the Summons was filed on 7 March 2016: s 24(1)(a).

3. SS and PGH are a couple in respect of whom the Court may make an adoption order jointly: s 23(1).

4. SS and PGH, the proposed adoptive parents, are domiciled in the state of New South Wales: s 23(2)(b) and s 28(1)(a).

5. Each of SS and PGH meets the age requirements, SS having been born in April 1976 and PGH having been born in January 1961: s 28(3)(a).

6. SS and PGH have been a couple and living together for longer than 2 years. They were married in December 2010: s 28(4).

7. Each of SS and PGH is of good repute, fit and proper. (PGH has a charge of common assault, but with no conviction recorded. SS has no charges or convictions recorded against her.) They have provided witness character references: s 28(1)(b).

8. The application is made by a relative of the child, namely her paternal aunt, SS, and her uncle by marriage, PGH: s 29. (The Dictionary to the Act defines “relative” to include uncle or aunt of a person and whether the relationship is of the whole blood, or half blood, or by marriage.)

9. WS has established a relationship of at least 2 years’ duration with SS: s 29(b). (There is a factual issue regarding whether she has established a relationship of at least 2 years duration with PGH to which it will be necessary to return.)

10. Consent to the adoption must be given by every person whose consent is necessary, unless that consent has been, or should be, dispensed with (s 90(1)(d) and s 52).

11. SS and PGH do not need to provide consent, although they have parental responsibility for WS, because they are the proposed adoptive parents: s 54(1)(b). In any event, they have consented by bringing, and maintaining these proceedings.

12. Notice has been given to BS and CS prior to any adoption order being made. The Mandatory Written Information was sent to them, by email, on 28 May 2015, although a copy of the document sent is not in evidence: s 88(1)(a) and s 59.

13. WS was counselled as required by s 63 of the Act and told the counsellor, Ms J Wyles, that she had read the Mandatory Written Information on adoption for children and discussed it with SS and PGH. At the conclusion of her consultation with WS, Ms Wyles was satisfied that WS “has the capacity to understand the effect of signing an instrument of consent to her proposed adoption and is ready to do so”.

14. WS validly signed an instrument of consent to the adoption on 2 May 2016 (Ex. B): s 55(1).

15. WS’s consent was witnessed by Ms K M Daly, a Delegate of the Secretary, on 2 May 2016: s 62.

16. On the basis that WS has consented to her own adoption in accordance with s 54(2) of the Act, notice of the application has been given to CS and BS: s 54(3). Neither has filed a notice of Appearance or advanced arguments in opposition to an adoption order. An affidavit by them has been relied upon by the Plaintiffs.

17. Although the Plaintiffs also relied upon documents stating that BS and CS specifically consent to the adoption of WS, the consent of each was not provided in accordance with the Act and Regulations and is, therefore, ineffective. Both CS and BS were said to have been counselled by Mr Phaisan Meechai, LL.B., who in the Statement of Counsellor, dated 3 March 2016, said to have been made pursuant to s 63 of the Act, certified that he provided CS and BS with counselling in relation to: the legal effect of signing the instrument of consent, the procedure for revoking consent, the effect of the Mandatory Written Information, the emotional effects of adoption, and the alternatives to adoption including for the parents, the feasibility of keeping their child.

Mr Meechai described himself as a “Certified Practicing Lawyer in Thailand and authorised to act in matters of Child Adoption under the Laws of Thailand”. His qualifications appear to be an LL.B, which it is submitted does not fulfil the requirement for a qualification in the social sciences but a qualification in law. Therefore, as provided for in s 58 of the Act, the consent provided by the birth parents is ineffective.

However, there was no evidence that Mr Meechai, was a person on the register of counsellors, or that he was an employee of the Department, an accredited adoption service provider, or a body or class of body approved by the Secretary for the purposes of this paragraph. Rather, he appears to be a lawyer at Siam Firm Inter Laws Ltd.

Nor was there any evidence that he is a member of a professional association approved by the Secretary for the purposes of the section. There is also no evidence that he is the holder of a qualification in the social sciences conferred by a University (whether within, or outside, New South Wales) after the equivalent of at least 3 years full time study (Regulation 77).

18. A report in writing concerning the proposed adoption has been provided to the Court. The report complies with the requirements of s 91.

19. There is also a report of Ms J Wyles which complies with s 61(3) and s 63 of the Act and Regulations 77(3) and 82(3). The report goes to adoption counselling and the ability of WS to provide consent.

20. SS and PGH do not rely upon an adoption plan.

96. I am also satisfied that WS has been able to participate in any decision made under the Act that has a significant impact on her life and that she has (a) adequate information, in a manner and language that she can understand, concerning decisions that have been made; (b) the opportunity to express her views freely, according to her abilities; (c) been provided with necessary assistance to enable her to understand the information and to express those views: s 9.

97. In view of her age, her legal representatives will, undoubtedly, provide her with these reasons, so that she has information about the outcome of the decision and an explanation of the reasons for the decision.

The Failure to Cross-Examine any Witnesses

98. As was stated earlier, each of the witnesses whose affidavit was read, and Ms Starkey, the author of the s 91 report, was not cross-examined. As a result, the evidence of the deponents of affidavits and Ms Starkey has not been tested through the process of cross-examination.

99. Because it was raised by PGH in an email to the Court to which reference has been made, it is necessary to deal with the Court’s use of evidence upon which there is no cross-examination. In this regard, it is not necessary to refer to cases decided by a foreign court (it seems, Malaysia) for the relevant principles or to the criminal cases referred to in PGH’s submissions in reply.

100. In written submissions, PGH contended that “since the Adoption proceeds ‘unopposed’, it should therefore be granted”.

101. Counsel for the Defendant submitted, at the hearing, that “it's coming down to whether or not the evidence before your Honour is cogent; whether or not there's some reason that your Honour may not put such weight into it; but absent such matters, your Honour would accept it as unchallenged. That certainly the position that's taken by the Secretary”: T81.14 – T81.17.

102. UCPR rule 35.2(1) provides that “a party may, by written notice served on the party serving or proposing to use an affidavit, require the attendance for cross-examination of the person by whom the affidavit has been made”. It can be seen that the rule does not make cross-examination mandatory.

103. In Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293, although a case involving experts none of whom were cross-examined, the Court of Appeal (per Beazley JA (as her Honour then was), Basten and Macfarlan JJA agreeing) discussed the legal principles relating to unchallenged evidence, relevantly, at [130] – [131]:

“A trial judge is not required to accept evidence merely because it is unchallenged. However, the fact that evidence is unchallenged may provide a cogent reason for its acceptance: see Bulstrode v Trimble [1970] VR 840; Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 19. In Hull v Thompson [2001] NSWCA 359 Rolfe AJA (Sheller JA and Davies AJA agreeing) noted, at [21], that “[p]rima facie if there is no cross-examination of an expert … there is no basis for a Judge not to accept the unchallenged evidence”. However, it depends on the evidence in question. As Rolfe AJA stated, at [21]:

… there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence.

See also State Rail Authority (NSW) v Brown [2006] NSWCCA 220; 66 NSWLR 540; Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [121]–[122].

The judicial comments to which I have referred are essentially comments on judicial method in cases where a witness was not cross-examined on a material aspect of that witness’ evidence. The present case is different. None of the expert engineering witnesses were cross-examined and the “unchallenged” evidence to which Mr Taupau or Forstaff referred was, on their submission, evidence that was not “met” or commented upon by the opposing expert.”

104. In Hull v Thompson [2001] NSWCA 359, referred to above, at [25], Davies AJA had written:

“The only reasonable inferences to be drawn from the failure of Counsel for the appellant to cross-examine the respondents' experts are that his instructions were that their evidence was probably right; or that a calculated decision (perhaps influenced by the first point) was taken to try to argue the matter without attacking the evidence.”

105. In Keith v Gal [2013] NSWCA 339 at [130], Gleeson JA, with whom Simpson JA and Emmett AJA, agreed, referred to the passages quoted from Hull v Thompson with approval.

105. Where there is expert evidence, the Court’s role is still to evaluate it critically and to weigh the cogency of the opinion. Whether or not a witness is cross-examined, it remains the function of the trial judge to assess the evidence, even of an expert, using whatever tools are available in the circumstances, including considering how that expert evidence sits with the other evidence in the case. If, after careful examination, the Court forms the view that any part of the evidence is not cogent, including the evidence of the expert, then it may be disregarded: Masters Home Improvement Pty Ltd (formerly Shellbelt Pty Ltd) v North East Solution Pty Ltd [2017] VSCA 88 at [420].

106. It is necessary, at this point, to refer to part of the s 91 Report (with amendments to refer to the relevant parties as in these reasons), at [134] – [136], that is particularly relevant to the issue:

“The author of the current report would like to first point out that the current report has some limitations. Firstly, it is possible that there is information in the documents not perused by the author that could change the conclusions drawn. If that is the case, then His Honour will need to assess whether this affects the weight he would assign to the report’s conclusions.

Another limitation of the report is that the majority of interviews conducted were done through Skype, as most of the participants are currently in Thailand, including [WS] herself. While I am of the opinion that the responses given by [WS] appear genuine and are consistent with previous interviews conducted with her, such an interview is not the same as one conducted in person. This issue holds true for all persons interviewed, apart from [PGH] who was interviewed in person.

The interviews with [CS and BS] were conducted through an interpreter and the accuracy of the interview information presented in the current report in relation to them is therefore dependent on the accuracy of the translation by the interpreter. I note, however, that the information from the interviews is consistent with that provided in the parents’ affidavits before the court.” [Emphasis added.]

108. In a letter dated 28 June 2017, from Ms McMullen, the solicitor from Legal Aid, acting for WS, to Ms Starkey, in which the requirements for the preparation for the s 91 Report are set out, it is noted that “[WS] and [SS] are currently living in Thailand and, therefore, as discussed, interviews will need to be conducted by Skype or AVL” (Ex. A).

109. There were no reasons given, in that letter, for each of SS and WS having gone to Thailand, the date when each of them travelled there, or when each might return.

110. In addition, there is no suggestion in the s 91 Report that any of PGH, SS or WS, provided any explanation to Ms Starkey for SS and WS having left Australia when she did and before she was able to meet Ms Starkey face to face.

111. It is important to note that there was no other evidence of the precise date when SS, or WS, had left New South Wales. At the hearing, surprisingly PGH appeared unable to provide that evidence.

112. On what I have read, it appears probable that SS, and WS, left Australia on a date after 18 May 2017, and before 28 June 2017, the earlier date being when the expert who was to provide the s 91 Report was appointed; the date by which the Report was to be provided had been directed; and the date for the hearing; all of which were known to the Plaintiffs (as SS as well as PGH was present in Court), as were the legal representatives of WS; the later date being the date of the letter from the solicitor for WS to Ms Starkey in which she stated that each of SS and WS was in Thailand: (part of Ex. A).

113. Ms Starkey confirmed that WS was interviewed by Skype. A Thai interpreter was present (in Ms Starkey’s office) to translate anything with which WS had difficulty. This was explained to her at the beginning of the interview. However, her English understanding and expression was good and she did not require intervention by the interpreter. WS informed Ms Starkey that her understanding of the interview was that it was about her, and about SS, PGH and her. The purpose and process of the current assessment were explained to her.

114. All that WS appears to have told Ms Starkey is that “she had been back in Thailand for about a month”. No explanation, if any, for returning to Thailand given by WS, was included in Ms Starkey’s report.

115. Ms Starkey also interviewed SS by Skype, with no interpreter present on 17 and 19 July 2017. No explanation, if any, for returning to Thailand given by SS, was included in Ms Starkey’s report.

116. In the written submissions, PGH wrote, at [74], after referring to SS’s medical condition, that “Otherwise [SS] is expected to make a full recovery in 3-6 months. However she needs to remain in Thailand until she recovers sufficiently to have a prosthetic eye replacement”. He also stated that “It was planned for her to return to attend the Adoption Hearings”. However, there was no evidence to support this submission and his statements cannot be treated in that way.

117. Even though Ms Starkey identified the failure of SS and of WS to be personally present at the interview with her, and despite me raising the question with PGH, numerous times, during the course of the hearing on 3 August 2017 (T94.41 – T95.18; T96.19 – T96. 30; T97.16 – T97.36, T99.33 – T99.41, T100.6 – T101.18, T102.24 – T103.19, T117.1 – T117.13, T118.25 – T118.38, T119.17 – T119.45, T120.38 – T120.47), it was not until just before the long adjournment on the second day of the hearing, that PGH indicated that he wished to give evidence about the reasons why SS and WS had left Australia prior to meeting with Ms Starkey.

118. I should mention, however, that PGH suggested that there was an inference available to be drawn (T96.32 – T96.49):

“SECOND PLAINTIFF: There's an inference, your Honour.

HIS HONOUR: What's the inference?

SECOND PLAINTIFF: The inference is that, that, that she's applied for an adoption visa, she - in Bangkok, she needs to be in Bangkok when the decision is made and the, and the, and the, the, the, the adoption visa needs to be decided before she's 18 because she - otherwise she loses compliance with it and that's under the regulations. So you only - one only needs to look at the regulations of, of 102 and thereafter in the, in the adoption - in the Migration Regulations 1994 to, to see that the child needs to be in the country where the, where the visa was applied for and it needs to be - the decision needs to be made before she's 18.

HIS HONOUR: But I don't draw that inference because I was told that you weren't even in the Federal Court until 1 August and I was only told that relatively recently, that is, as I recollect it. It may have been 29 June when I dealt with the issue of the affidavit.”

119. PGH’s evidence on this topic (at T123) is not very long and it may be set out in its entirety (again with amendments to avoid the name of the witness):

“Q. Mr H, you wanted to give some evidence about the reasons why I think your wife and WS left the country prior to meeting with Ms Starkey.

A. Yes. WS needed to leave Australia to wait for the result of the adoption visa. The AAT refused the adoption visa review on 12/5/2017. Earlier, the Department of Immigration had refused the adoption visa on the 7th of the 10th. The plaintiffs filed an, an appeal in the FCC on 22/5/2017. That matter was heard on 1 August after the first listing on 9/6/2017. Immigration regulations require her to be in, in the country of, of the adoption visa application at the time of the decision. As a consequence of waiting in Thailand for the adoption visa decision, WS is not continuing her student visa at this point in time, so there's some question over whether or not it will be allowed to continue to 2019.

Q. Is that the evidence?

A. Well, that was all we agreed was, was going to be the, the dot points.

…

Q. I'm sorry, I'm having some difficulty understanding, I have to say, Mr H. At the time they left, you had not even had a hearing, correct?

A. In the, in the immigration court?

Q. In the FCC?

A. Yeah, yeah, WS went to the first listing of the, of the -

Q. You had not had a hearing of your appeal?

A. No.

Q. Therefore, when they left, you didn't know when the decision was going to be granted -

A. But we, we -

Q. - or was going to be determined?

A. Yes, but we had, we had communications with Ms Starkey and we had, we had tried to organise the, the, the interview dates during the school holidays, which would have allowed, would - she certainly didn't leave till the end of the school holidays which would have allowed, allowed, allowed them to appear in person but, because of this, this, the issue that, that occurred with the Department and, and with the, the funding issue of the, of the report and the question mark over that and the other issues that, that, of, of disputed issues we weren't certain the report was going to even go ahead, and so, therefore, because they had plans or wanted, you know, desires to do things in Thailand, WS wanted to go with her mother – with SS, and there was also, because, if she had to go to Thailand and come back or, or be in Thailand for an adoption visa decision, she would have had her school disrupted in Australia.

So the decision was made because the, that coincident, coincidence of, of the commencement of the Thailand school, because their, their years are out of step with ours, that, that, that, at the end, if she, if she, the, they started their schooling actually at the beginning of the school holidays here. So we waited until the end of them to see whether or not she could, she could attend Ms Starkey when the thing, matter was still up in the air as to, as to whether the report was going to go ahead or not.

They decided to take her to Thailand because Thailand don't tolerate children starting late and the idea being that she starts her school over there for a term while she's waiting for the, the, the adoption visa decision, which we hoped would happen before her 18th birthday and, if not, then she would continue in Thailand to, to, throughout the school year and then come back to Australia and continue in Australia next year, providing the student visa was, was still able to be kept alive, and that's an issue that we're, we're dealing, you know, we're waiting for, for New South Wales Department of Education communicating to the Immigration Department that she's not there this term and then they have to decide whether or not we get the option to, to, to, to vary the conditions of her student visa or not or whether they'll cancel it and ask us to reapply or what the situation will be but that's, that's where, where it's at.

We're just trying to do the best with the circumstances as they are, and you can criticise us for it or not, but that's what we're trying to do, and it's been difficult because we've got parallel proceedings and we've had, you know, as you know we've been to the NCAT. We've done everything we possibly can to try and establish visas for WS to stay and give her stability in Australia, and that's, that's our, our, our, you know, has been our primary concern is to get her stability in Australia.”

Q. Anything else?

A. Anyway, that's it, your Honour.” [Emphasis added.]

120. I should mention that PGH had raised the prospect of WS returning to Thailand at the directions hearing on 18 May 2017 (T6.50 – T7.15):

“HIS HONOUR: … I thought the position was, my recollection

Is, that the child has got a visa until 2019.

SECOND PLAINTIFF: Yes, but that doesn't allow her to remain in Australia after she has completed her schooling.

HIS HONOUR: No, after that.

SECOND PLAINTIFF: The situation with her student visa is that she is probably going to have to abandon that and go back to Thailand and wait for the proceeding that we are instigating in the Federal Circuit Court to appeal the adoption, the AAT's, you know, decision affirming the refusal of the adoption visa which means that then we would have to, you know, either [apply] or hopefully we will get a visa. One way or another we have to have undertaken to adopt the child and of course you know we are going to undertake to do something like that then we follow through with it.”

121. I should also note that in the Plaintiffs’ Outline of Submissions, the following assertion was made, at [134]:

“The 1st Defendant initially refused to contribute to the s91 Report despite the Court’s direction to the Parties. FACS’ dispute over the issue caused unnecessary delays to the commencement of the Report. When it initially appeared the Report would not proceed, that situation precipitated the departure of the 1st Plaintiff & Child to Thailand to await the outcome of the Adoption Visa decision, where they had initially been trying to wait in Australia for as long as possible to attend the Report Interviews in person. These circumstances have added an extra dimension of difficulty to the Report’s compilation, caused by FACS, which the Plaintiffs were trying to avoid.” [Emphasis added.]

122. I note that the written Plaintiff’s Outline of Submissions also included the following passage at [66]:

“The Plaintiffs Applied for an Adoption Visa for WS on 27 July 2016, absent a formal Approval “as suitable adoptive parents for the applicant” from FACS, despite making every effort to obtain one. The Child’s Visa was refused for that reason. The Plaintiffs unsuccessfully appealed the visa refusal to the AAT, and currently have subsequent Appeal Proceedings of the Child’s Migrant Visa in the Federal Circuit Court listed for hearing on 1 August 2017 a decision is expected mid-August.”

123. The Plaintiffs also stated, at [69] – [71]:

“…it is a requirement of MR 102.211(3) that the child not be adopted until the Adoption Visa is granted, otherwise the Child is captured by other Regulations such as 102.211(2), (4) or (5) which the Plaintiffs cannot satisfy for other insurmountable reasons, and then an Adoption Visa becomes unattainable. The child needs to hold a Resident Visa to achieve citizenship by adoption under the Australian Citizenship Act 2007 s13(c).

One of the conundrums in this situation, is that if the Supreme Court makes an Adoption Order, that may satisfy Migration Regulations 1994, 102.211(3)(d)(ii) but doing so may also remove eligibility due to the other capturing clauses.

Had these proceedings not been delayed by the “Separate Question” issue something may have been able to be achieved to satisfy the Adoption Visa despite FACS’ callous obstruction of it. However the cut-off point for an Adoption Visa is the Child’s 18th Birthday less than 2 months hence.”

124. Earlier in the written Outline of Submissions from PGH, the following submission appeared, at [18]:

“Since the outcome of the Federal Circuit Court Visa Proceedings will not be known until after these Adoption hearings conclude, the Plaintiffs request the Adoption Order not be formally made until the outcome of the Visa Application is known. However the Adoption Decision may assist the Visa Decision if it is made in time to convey to the FCC before that Visa decision is rendered.”

125. Again, even though PGH was not cross-examined on the evidence given by him at the hearing, I am entitled to reject it if I find it to be unreliable. For the following reasons, after careful analysis, his evidence on the topic contains some discrepancies and inadequacies, and otherwise lacks probative force. That evidence, and for that matter the submissions to which I have referred, are neither credible nor compelling, particularly when considered in the context of other undisputed facts.

126. If, as appears to be the case, SS and WS left some time around mid-June 2017, all relevant persons knew about the directions made by the Court on 18 May 2017. The application in the Federal Circuit Court (Ex. D) appears not to have been filed until on or about 18 May 2017. (A Further Amended Application was not filed until 23 June 2017: part of Ex. F.) It was by this application, that SS and PGH sought to quash, and have re-determined, a decision dated 12 May 2017, of the Administrative Appeals Tribunal, which had affirmed the decision dated 7 October 2016, of the Delegate of the Minister of Immigration and Border Protection, refusing to grant to WS a Child (Migrant) Class AH Adoption (Subclass 102) visa. (WS had applied for that visa on 27 July 2016.)

127. More importantly, there was no hint that any decision, which would have required WS to be in Thailand at the time it was handed down (assuming that the requirement existed), was imminent when WS left Australia. Indeed, as far as I can tell, the listing of the hearing in the Federal Circuit Court that would have given rise to any such decision, may not have occurred at the time she left Australia. Neither SS nor PGH could have reasonably expected any decision to have been handed down at, or about, the time SS and WS left Australia in about mid-June 2017.

128. Furthermore, to have WS return to Thailand, so that she could commence the new school term there, does not provide a satisfactory basis for leaving Australia, particularly since one of the bases for the adoption of WS that had been stressed throughout these proceedings, was that it would be in her best interests to remain, and be educated, in Australia, thereby maintaining a degree of stability since March 2016.

129. Nor do I find PGH’s explanation to be a satisfactory one. In circumstances of what was said to be the urgency in dealing with the application for the adoption order, more than once, and where that urgency was taken into account by all concerned, to then have SS and WS leave the country, with the consequence that Ms Starkey was unable to meet with each of them face to face, resulted in the limitations that Ms Starkey identified.

130. As Ms Starkey, herself, noted, if an expert is to give evidence to this Court about the matters identified in s 91 of the Act, in respect of a child whose future is being considered by the Court, that expert should meet relevant persons, face to face, before the Court can rely, completely, upon that expert’s evidence. As Ms Starkey wrote, “such an interview [by Skype] is not the same as one conducted in person”.

131. The significance of not being able to conduct the interview in person, particularly with SS and WS, is highlighted, particularly where there is no proper, or adequate, explanation given for each of them leaving the jurisdiction without having met with the expert.

132. Furthermore, and importantly, PGH seems to have acknowledged that a result of WS returning to Thailand, so that she no longer attended school in Australia, may be a breach of her current student visa, with the result that she may not be able to return to Australia and continue her studies until 2019 (T122.17 – T122.20) unless the conditions imposed by that visa are varied and the visa is, thereby, “kept alive”: T123.18 - T123.29.

133. Counsel for WS stated at T132.00 – T132.03:

“We don't know WS's - we don't know the status of her entitlement to come back to Australia up until 2019. We know that the visa exists but we don't know whether this action has put it in jeopardy.”

134. There was no evidence going to whether WS would, in fact, be able to return to Australia, and if so, when she would be able to do so.

135. Remembering that “arguably the most important work at least in this Division of the court by a very large margin … is determining applications for adoption”: Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9] (Sackar J), and also that SS and PGH have appeared without the benefit of legal representation, upon re-reading the evidence, and despite all of the matters set out above, following the conclusion of the hearing, on 16 August 2017, the Court sent the following email to PGH and to all of the representatives (Ex. E):

“His Honour is in the course of reviewing all of the evidence read at the hearing and remains troubled about the circumstances surrounding SS and WS leaving the country and the effect that this has, or might have, on the ability of WS to return to Australia under the current visa or otherwise.

However, each case has to be decided on its individual merits, and at least one adoption order has been made in NSW in favour of an aunt whilst the child’s parents were alive: Re W & the Adoption of Children Act).

5. Traditionally the Courts have considered the way in which adoptions by a relative changes the nature of relationships between those biologically related. In this case, if WS is adopted, her brother will become her cousin. Consistent with Palmer J’s findings in Re A & B and the Adoption of Children Act at [22], the Court may consider the risk of generational misunderstandings to be less given WS’s age and maturity. (I have stated earlier that I do not consider that this is a relevant matter.)

6. SS and PGH appear to have played a substantive role in WS’s life and have expressed a wish to legally concrete that role. Other persons have also played a significant role in WS’s life, including her paternal grandparents.

7. WS’s parents are still alive. The evidence is that historically they have been unable to provide day-to-day care for WS due to their work commitments.

8. WS has expressed a wish for the adoption order to be made.

9. WS is now very close to being a legal adult. There is no suggestion that she has any unique care requirement, or dependency, on SS and PGH.

10. The wishes of WS’s parents is of significance in determining the best interests of the child: s 8(2)(e) of the Act.

372. In the s 91 Report, Ms Starkey, in recommending that an adoption order be granted, stated:

"It would definitely be in [WS’s] best interests to have somewhere that she can feel that is home".

373. Counsel for WS submitted that the factors set out in s 8(2) of the Act loom large in the particular circumstances of WS’s case. Most particularly, counsel pointed to s 8(2)(a) (the best interests of the child, both in childhood and in later life) and WS’s wishes.

374. To my mind, the significant issue remains under what arrangement is WS to continue to reside with SS and PGH (assuming she is able to do so by returning to Australia): adoption, parental responsibility (until she is 18 years of age), or the status quo. This involves, amongst other things, whether adoption would promote WS’s best interests and whether it is clearly preferable to any other order that could be made with respect to her care.

Determination

375. When one considers what has been written above, one might be led to the view that, had WS remained living with SS and PGH, in Australia, pursuant to the student visa under which she had entered the country in March 2016, and had she maintained her desire to continue to do so, it would have been in her best interests to make an adoption order.

376. As counsel for the Defendant submitted at the hearing, Ms Starkey's report seems to accept that the granting of an adoption order will result in WS being able to remain in Australia. That is to say, there seemed to be the assumption that if an adoption order were made, WS would not have a “chaotic lifestyle” in Thailand, and that she would be able to reside, in Australia, thereby “meeting her short, medium and long term needs” as well as providing “secure stability of placement” for her.

377. However, since WS has left Australia, with SS, and has returned to Thailand, with the knowledge that to do so would create uncertainty in her being able to return to Australia, an adoption order will not, necessarily, provide the stability and the reasonable certainty that was said to exist whilst she was here. The fact that SS and PGH permitted her return to Thailand, even if for a period of several months, does not suggest that “staying in Thailand would not provide her with the security of a warm family environment in which she feels a sense of belonging and in which her bright personality and intelligence can be fully fostered”.

378. Counsel for WS submitted that WS’s “best chance to have a stable long-term future living in the same country as the Plaintiffs comes through her final application for immigration clearance based upon the adoption order. It’s the last option available to her, therefore, the adoption order gives her that option. Dismissing the summons and allowing the Family Law orders to continue, takes away that opportunity for WS”:T66.3 – T66.9. Why all of that is so, is not clearly demonstrated on the evidence. In any event, providing a “chance” would not be enough.

379. I am unable to conclude that the making of an adoption order is in the best interests of WS, without any evidence of its consequences so far as her ability to return to Australia, to continue to live with SS and PGH as part of their family, and to continue with her education, and otherwise remain here. The matters identified by Ms Starkey (and by counsel for WS) are premised upon these matters occurring. They are not premised on the uncertainty of WS being able to do so.

380. Furthermore, as stated earlier, the Court must be satisfied that an adoption order is clearly preferable to any other order that could be made. To reach that conclusion, it is necessary to consider, in relation to WS, her physical, emotional and educational needs, including her sense of personal, family and cultural identity, and any disabilities; her wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships.

381. I take account her good progress in Australia, the fact that, until recently, she appeared to be well settled with SS and PGH, that she was enjoying her life in Australia, seemed to be making good progress with her education, and that her welfare needs were being met living with SS and PGH.

382. In relation to SS and PGH, I consider their suitability and capacity to provide for the needs of WS, their attitude to WS and to the responsibilities of parenthood, and the nature and quality of WS’s relationship with each of them. It is also necessary for the Court to bear in mind everything said on behalf of SS and PGH, and on behalf of WS, as to the perceived purity of the motivation for the application for the adoption of WS. I also take into account the evidence which provides the sense that SS and PGH have a true desire, for their own reasons, to adopt a child. In the affidavit of SS and PGH dated 7 March 2016, SS states “I have been medically advised that I am physically incapable of having children”.

383. In the affidavit of CS and BS dated 6 January 2017, they state at [14]:

“When [SS] became aware that she was unable to have children she virtually adopted WS and her brother as her own children”.

384. In the reasons for judgment of Benjamin J in the Family Court giving parental responsibility to SS and PGH, he noted at [9] that:

“the aunt is willing and anxious to care for the child”.

385. Also, the report of Ms Starkey noted that PGH has “contemplated how his current assets would be divided in his will, considering both his own biological children and [SS] and [WS]”. Ms Starkey also noted, at [85]:

“[SS] said she thinks of [WS] as her own child”.

386. In relation to CS and BS, I take into account their wishes, the nature of WS’s relationship with them, their parenting capacity, and their attitude to WS and to the responsibilities of parenthood.

387. But these matters must be considered in context. As counsel for the Defendant submitted at the hearing, “The plaintiffs had made [the] concession, clearly, that really they are here seeking an adoption for the singular purpose of being able to give [WS] the chance of living permanently in Australia”: T54.42 – T54.44. In this regard, there can really be little doubt that the application for the adoption of WS would not be being made if it were not needed to assist with immigration issues.

388. Counsel for WS submitted that the motivation of SS, PGH and WS had always been for WS to come and live with them permanently in Australia and to continue with her education here: T27 – T28.

389. This Court is not given jurisdiction to determine immigration issues. In any event, I cannot be satisfied that the making of an adoption order will entitle WS to return to Australia, or even if it did, would entitle her to permanent residence, or citizenship, in each case, thereby providing her with the stability and security considered so important to WS by Ms Starkey.

390. The re-entry into Australia by WS on her current visa, or the grant of any new visa to enable her to re-enter Australia, will remain a matter for the Minister of the Department of Immigration and Border Protection. It has not been established, on the balance of probabilities, that the current visa will be “kept alive” or that another visa will be granted. Furthermore, if WS and/or SS, were to remain in Thailand, because, for example, WS was not permitted to return under her current visa, or otherwise, the principal bases for the making of an adoption order, namely to provide to her “stability, security and sense of belonging” would no longer be achievable.

391. Furthermore, I have found that the return to Thailand, without a reasonable, or proper, explanation, by both SS, PGH and, through them, WS, in apparent disregard of a potential breach, or breaches, of the conditions of her current visa, to be extremely troublesome. To do so when they did, only heightens my already existing concerns. As earlier stated, from 18 May 2017, both SS, PGH and the legal representatives of WS, were well aware of the steps to be taken to obtain the s 91 report and to have the Court hear the matter with a matter of urgency.

392. The reasons given by PGH, when no hearing, let alone, no determination of the application which is said to have required WS to be outside Australia, was imminent, does not assist SS and PGH, and it raises significant questions about the reasons for SS and WS leaving Australia and returning to Thailand, which, to my mind, remain satisfactorily unanswered.

393. Even if I were to accept that there was an intention for visa purposes for her to go back to Thailand, there is no evidence that WS had to leave at the time she did, that she has had to be away from Australia for the length of time she has been, or that the decision for her to attend school in Thailand had to be made when it was.

394. It is only if she is entitled to return to Australia, that the option of adoption may be the most beneficial alternative to meet her short, medium and long term needs. Otherwise, the making of an adoption order will not necessarily ensure the stability of placement for WS.

395. In any event, there is nothing to suggest that only the making of an adoption order will provide what is sought by the making of that order, and which is already present in the absence of any order having been made. In fact, the evidence is to the contrary. WS has said of Australia, "I feel like this is my home". If she returns to Australia, and her student visa is “kept alive” (using the words used by PGH and by counsel for WS), she can remain in Australia until 15 March 2019, as she was entitled to do, at least up until her most recent departure for Thailand.

396. These conclusions are based upon overall impression, balancing one consideration against another, but having regard always to the consideration that the best interests of the child, both in childhood and later life, must be the paramount consideration.

397. In a very short time (a matter of some days), WS will legally be an adult. She will not have the same dependency upon any of the adults that a younger person would have on her, or his, caregivers. Nor is this a case in which a child’s sense of security within a proposed adoptive family, to which she, or he, has no biological relationship, might be enhanced through the making of the order.

398. WS does not, at her age, need substitute parents. Even if she did, there is no evidence to suggest that SS and PGH would not continue to be there for her, even if an adoption order is not made. Indeed, whether WS and/or SS remain in Thailand, or return to Australia, the close emotional relationship that WS has with SS is unlikely to change, even if an order for adoption is not made. As an adult, even if WS is not able to return to Australia, she can continue to seek the guidance, and the assistance, of SS, and, if necessary, the guidance and assistance of PGH. There is no evidence to suggest that such guidance and assistance would not be provided.

399. So long as WS remains in Thailand, there is no suggestion that CS and BS would be unable, or unwilling, to care for WS to the extent that she continues to require care. Presumably, they will still play a role, as they have previously, in her life, although that role will be different once she reaches 18 years. Importantly, at all times whilst WS was living in Australia, she was required to, and did, regularly speak to and visit her parents, and she did so. The current role that they play in her life, whilst WS remains in Thailand, is not the subject of evidence.

400. The view taken by SS and PGH is that an adoption order will assist WS in the immigration process, but, as I have pointed out previously, there is no evidence that if such an order were to be made, WS will then be able to obtain another visa, or gain permanent residency, or citizenship, or even be able to return to Australia, if she is found to be in breach of her current visa conditions. What has been said is that this “would assist in the immigration process”:T58.45. Precisely how it would do so has not been made clear.

401. Also, the recent events in returning to Thailand and the consequences that may follow, so far as they relate to the student visa that currently exists, or an application for another visa, could give rise to further litigation. An adoption order may, or may not, prevent such further litigation. As counsel for WS stated at T30.28 – T30.29:

“There’s no expert evidence to permit [the Court] to safely conclude that the adoption order will necessarily play out in any particular way.”

402. Although stated in the context of disputes in the family law context (Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152), there can be little doubt that:

"... continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children."

403. At least indirectly, WS has been involved in the litigation that SS and PGH have maintained.

404. Furthermore, if WS and SS return to Australia, after WS reaches the age of 18 years of age, it is not suggested that she will not continue to live with SS and PGH, for as long as she wishes. So long as she does so, whilst permitted to remain in Australia, she will continue to have the security and the stability that her relationship with them provides.

405. It is difficult to understand why WS returned to Thailand, albeit with SS, and for a relatively significant period of time, putting at risk her ability to return to Australia, and in circumstances when Thailand is said to not “provide her with the security of a warm family environment in which she feels a sense of belonging and in which her bright personality and intelligence can be fully fostered...It would definitely be in her best interests to have somewhere that she can feel is “home” where she can be a child who is cared for by a loving Aunt and the Aunt’s husband and where she can still continue her education”.

406. It was also submitted that as WS has stated she wishes to go to University upon completing high school, if she was to return to Thailand, she said to Ms Starkey “The university in Thailand would be 2 hours away from her family home”, thereby losing the practical and emotional support of her family in Thailand. Yet, WS has returned to Thailand and has recommenced going to school there.

407. As a result, WS can no longer pursue her education in Australia, particularly as her Confirmation of Enrolment was to be cancelled when she left Australia. This, to my mind, raises a real concern about the assertions made by SS, PGH and WS. Ms Starkey relied upon their assertions but does not appear to have been told about the cancellation when WS left Australia. In those circumstances, it raises doubt about the importance of her being educated in Australia: T130.1 – T130.6.

408. Yet, she returned to Thailand, and whilst there, has recommenced her schooling. This is likely to have an effect on her ability to complete her schooling in Australia, and gain university entrance as was anticipated prior to her returning to Thailand. Her current living arrangements in Thailand are unknown.

409. Ms Starkey concluded that the wish of all of the relevant persons is that the legal status of WS accord with her psychological relationship with SS and PGH confirmed in law. Highlighting the emotional significance of an adoption order for WS, PGH stated in oral submissions “We've become aware that [WS] actually has now got an emotional vested interest in, in feeling like she becomes part of our family legally. And that's, and that's the point that I'm asking you to consider as the - as probably now the primary and most important reason for making the order”: T114.24 – T114.27.

410. PGH added that “she's got a deep emotional connection with the thought of becoming our child and I think that's, that's one of the, the considerations that the Court must put a lot of weight on”: T116.20 – T116.23.

411. The events involving SS and WS returning to Thailand appear to be inconsistent with what has been asserted, in the past, regarding the reasons for WS coming to, and wanting to remain living in, Australia. Considering those recent events and the lack of any apparent proper justification for them, suggests, to my mind, that SS, PGH and WS have put at risk the very stability and certainty that Ms Starkey has, and they have, asserted as being so very important, in the best interests of WS.

412. The recent events, in my view, also seriously affect the cogency of the conclusions reached by Ms Starkey. Taken with the limitations to which she referred in the Report leads to the view that her conclusions cannot be wholly, and uncritically, accepted even though she was not cross-examined. (Of course, it was not for her to consider the immigration matters to which reference has been made and, it appears, that she may not have been told about the potential consequences of WS’s return to Thailand.)

413. The length of time that WS has remained in Thailand since she left in June 2017 until the date of the commencement of the hearing is the longest period (more than 1.5 months) (T129.25 – T129.32) that she has been absent from Australia since she arrived on 7 March 2016. On the other occasions that she has returned to Thailand, it has been for a shorter period (about one month or so) and with the intention of not attending school for any significant time.

414. In her report, Ms Starkey does not specifically identify the relative merits of any other alternative, other than adoption. The failure to cross-examine her, means that she has not had put to her any of the alternative options to ascertain, specifically, whether she has discounted them, or not considered them, and her reasons for doing so: T57.8 – T57.39.

415. Counsel for the Defendant submitted that despite the failure to cross-examine Ms Starkey, the Court was not prevented from making an order under s 90(3), although “that lack of contemplating, that is, of the other alternatives to adoption are not explored, which affects the amount of weight you can put on the report”: T59.10 – T59.15.

416. In reply, counsel for WS pointed out that in her report, Ms Starkey does state that "When considering possible case plan options for [WS], adoption stands out as the option most likely to meet her short, medium and long term needs”. She goes on and refers to the only other realistic option in WS’s case, being the continuation of the parental responsibility orders.

403. Against the background of events, both past and recent, the adoption for WS strikes me as somewhat unreal. Even if an adoption order were made it seems highly unlikely that, at her age, she will begin to see her SS and PGH as her mother and father. Her relationship with SS in particular, has already been cemented without an adoption order. By way of example, in Ms Starkey’s report, at [96], WS says that SS is “like my sister, my everything, my mum, my friend”.

404. In the adoption references which are annexed to the affidavit of applicants dated 4 January 2017, it is stated “[SS] does not have any children of her own, other than her niece [SS]” and “WS and SS have a close bonded relationship and act like mother and daughter when they are together”.

405. Indeed, even now, WS has returned to Thailand, and although SS, as well as her other family members are there, PGH is not. It is difficult to assert that the living in Thailand is not in her interests, since that is precisely what she is doing.

406. Furthermore, in considering the cultural framework in Thailand, Ms Starkey seems to have considered the evidence that there is greater flexibility about members of the extended family of the child taking on a parenting role. This is achieved without the need for the person who takes, or the persons who take, over the parenting role to adopt the child.

407. I accept that WS and SS, in particular, but also PGH, wish to achieve an alignment between what each sees as the actual relationship between SS and WS (in effect, as mother and daughter) and to a lesser extent between PGH and WS, with the corresponding legal relationship (adoptive parents and child). But within a few days WS will be an adult.

408. Although WS, SS and PGH wish legally to recognize what is said to be the child-parent relationship that they consider exists between WS and SS particularly, but with PGH to a lesser extent, I am satisfied that the primary motivation for wanting the adoption order has always been their desire to have WS live permanently in Australia. There is no evidence that the making of an adoption order will necessarily enable that to be achieved. Even if it might assist, this is by no means certain.

409. In all the circumstances of this case, and in the light of all of the matters to which I have referred, I cannot be satisfied that an adoption order is clearly preferable to any other action that could be taken by law, including making no order. I am unable to feel the necessary degree of conviction in favour of adoption which is commensurate with the gravity of the decision: Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD at [38] (Sackar J).

410. Nor is it an appropriate exercise of the Court’s jurisdiction under the Act to make an adoption order.

411. In all the circumstances, I decline to make the adoption order sought and dismiss the Amended Summons. It is not necessary to make any orders in relation to parental responsibility. I order that the exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

412. As the parties agreed that none of them was seeking any costs of the proceedings (T144.20 – T144.26), I make no order as to the costs of any party to the intent that they, she and he, will pay their, her, or his own costs, respectively, of the proceedings.

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