D v Director-General Department of Community Services [2006] NSWSC 511

New South Wales Supreme Court

CITATION : D v Director-General Department of Community Services [2006] NSWSC 511

HEARING DATE(S) : 26/05/06

JUDGMENT DATE : 31 May 2006

JURISDICTION : Equity Division Adoptions List

JUDGMENT OF : Barrett J

DECISION : Short minutes to be filed

CATCHWORDS : FAMILY LAW - adoption of children - pre-hearing orders regarding evidence

LEGISLATION CITED : Adoption Act 2000, s.180 Uniform Civil Procedure Rules 2005, rule 23.4

Angliss v Urquhart [2001] NSWCA 441 CASES CITED : D v Director-General Department of Community Services [2005] NSWCA 474 Department of Community Services v D [2004] NSWSC 1241

D - Plaintiff PARTIES : Director-General Department of Community Services - First Defendant Mr and Mrs F - Second Defendants E - Third Defendant

FILE NUMBER(S) : SC A80080/04

Mr M.W. Anderson - Plaintiff COUNSEL : Mr G.W. Moore - First Defendant Ms D.M. Falloon - Second Defendants Ms M.A. Cleary - Third Defendant

Legal Aid Commission of New South Wales - Plaintiff SOLICITORS : I.V. Knight, Crown Solicitor - First Defendant Colquhoun & Colquhoun - Second Defendants Kathryn Renshall Solicitors - Third Defendant

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

BARRETT J

WEDNESDAY, 31 MAY 2006

A80080/04 D v DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES JUDGMENT 1 These proceedings concern a child ("E") in respect of whom Palmer J made an adoption order in favour of "Mr and Mrs F" upon the application of the Director-General of the Department of Community Services. That order was made on 20 December 2004 over the opposition of the child's natural mother ("D"): see Department of Community Services v D [2004] NSWSC 1241. Almost a year later, on 9 December 2005, the Court of Appeal set aside the adoption order and remitted the matter to this Division for a new hearing of the adoption application: see D v Director-General Department of Community Services [2005] NSWCA 474. 2 Some weeks ago, I heard and determined an application by D concerning access arrangements in relation to the child pending the new hearing of the adoption application. On Friday last, 26 May, I heard a further application by D. That application was concerned with matters relevant to preparations for the new hearing, a date for which has not yet been fixed. I understand that the matter was before the Expedition Judge earlier this month and will be considered again in the Expedition List in due course. It is, to my mind, one that seems very clearly to merit expedition once it is ready for re-trial, but that, of course, is ultimately a question for the Expedition Judge. 3 There are two aspects to the application with which I am now dealing. Each concerns the preparation of evidence for new hearing. 4 In relation to the first aspect, D seeks one of three alternative orders as follows: "1. An Order that D, Mr and Mrs F with E attend the Offices of Dr Louise Newman for the purposes of Dr Newman conducting an assessment and providing a report on D, Mr and Mrs F and E. 2. In the alternative an Order that D, Mr and Mrs F with E attend the Offices of Dr Louise Newman for the purposes of Dr Newman conducting an assessment and providing a report on the relationship between D and E and the parenting capacity of D. 3. In the further alternative an Order that the parties attend the offices of a third expert as agreed between the parties or failing agreement as appointed by the Court for the purposes of undergoing an assessment and the preparation of a report." 5 At first sight, the reference to a "third expert" in order 3 is curious: orders 1 and 2 refer only to Dr Newman. But, as was readily recognised in the course of submissions, not only Dr Newman but also Dr Milch has already provided reports. These were placed before the court at earlier stages of the proceedings. 6 In the course of hearing D's the interlocutory application, I asked whether there had been any consensus of the parties as to whether all or any of the evidence adduced before Palmer J would be relied upon at the new hearing. The answers I was given made it clear that there was no agreement on the matter and indeed that it may be too early for it to be addressed. Mr Anderson of counsel who appeared for D said that, according to the present state of his instructions, there would be an intention to rely on all the previous evidence with the exception of Dr Milch's evidence. Mr Moore, counsel for the Director-General, indicated that it was unlikely that there would be any objection to the whole of the evidence before Palmer J being tendered, although he acknowledged that this would ultimately be a decision for the trial judge. Ms Falloon of counsel, who appeared for Mr and Mrs F, indicated that their position would be that the whole of the evidence before Palmer J would be appropriately received on the re-hearing. Ms Cleary, counsel for the appointed representative of the child E, did not have instructions enabling her to indicate an attitude on the matter. 7 I raised this question because I thought that the approach to the current application might be conditioned somewhat by the course that would be adopted in relation to the earlier evidence. That evidence included evidence of Dr Milch by way of assessment of D, Mr and Mrs F and E. There was also a joint report of Dr Milch and Dr Newman about relevant matters. In addition, there was a separate report from Dr Newman about D's situation and mental health. Dr Newman was D's treating psychiatrist. 8 The reports to which I have referred were all prepared towards the end of 2004. They thus reflect positions that will be at least eighteen months out of date by the time the new hearing occurs. Whether or not those existing reports form part of the evidence upon the new hearing (and that, I emphasise, is a matter for future decision), it is clear that the court will be greatly assisted by contemporary and up-to-date opinions. By the time of the new trial, the situation will not be one in which there exists a reasonable quantity of up-to-date expert evidence of the kind now under discussion, that is, evidence of an appropriate specialist medical practitioner who has assessed all relevant persons together: compare Angliss v Urquhart [2001] NSWCA 441. That raises the question of the extent to which the court should intervene in the process by defining evidence to be provided and making appropriate orders, as distinct from merely allowing the parties to adduce such evidence as they think fit. 9 In this latter connection, it was foreshadowed by Mr Anderson that, having regard to references in the Court of Appeal judgments to matters concerning cross-cultural or cross-racial sensitivity from the point of view of the family life of the child (E), his client (D) might wish to tender opinion evidence obtained unilaterally from experts with experience in cross-racial adoptions including, perhaps, a social worker, a psychiatrist, a sociologist and a community worker with relevant background. That proposal or possibility is relevant to the second part of the present application (to which I shall come in due course), but also underlines the point that, to a very large extent, it is for the parties themselves to decide what evidence should be placed before the court and, in cases of dispute, to make out a case before the trial judge regarding the admissibility of that evidence, from the perspective of relevance and otherwise. 10 The orders now sought raise different considerations, in that they entail a degree of compulsion giving rise to a need for a resort to rule 23.4 of the Uniform Civil Procedure Rules 2005: " Order for examination (cf SCR Part 25, rule 5; DCR Part 23, rule 5; LCR Part 20, rule 5)