Re WS (No 3) [2017] NSWSC 1160

Supreme Court of NSW|2017-08-03|Before: Hallen J

rthern 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

Background

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.
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.)
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").
(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.)
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.
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.
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".
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

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.
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.
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.
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."
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.
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."
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).
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."
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."
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."
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.
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

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.
WS was born in Thailand, in the north eastern province of Kalasin, in September 1999. She remains a citizen of Thailand.
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.
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.
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.
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".
WS was issued with a Thai passport in March 2014. It will expire in March 2019.
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.
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.
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."
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.
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".
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."
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…"."
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.
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.
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

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

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.
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.
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.
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).
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

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

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.
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). 1. A report in writing concerning the proposed adoption has been provided to the Court. The report complies with the requirements of s 91. 2. 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. 3. SS and PGH do not rely upon an adoption plan.
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.
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

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.
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.
In written submissions, PGH contended that "since the Adoption proceeds 'unopposed', it should therefore be granted".
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.
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.
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."
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."
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.
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].
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.]
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).
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.
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.
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.
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).
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.
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.
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.
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.
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.
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."
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.]
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."
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.]
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."
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."
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."
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.
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.)
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.
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.
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.
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".
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.
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.
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."
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.
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. In addition, there is no evidence that an order for adoption will enable WS to return to Australia in any event. His Honour considers that he would be benefitted by further submissions on these matters. Please let me know, urgently, by say noon tomorrow, whether you wish to take the opportunity to appear before his Honour on Tuesday, 22 August 2017 to make further submissions. Your urgent attention to providing a response (sent to all other representatives) would be appreciated."
This prompted the following response from PGH: "If it will assist his Honour, I am able to make myself available to appear on Tuesday next 22 August to make further submissions on the matter. I will indicate that I have been heavily afflicted for the past week by the Flu virus that has been circulating, without any sign of relief. To the extent I appeared at today's FCC decision by telephone. I am assuming his Honour is aware of the published decision in that matter prompting today's email request? In any event, I will try to appear next Tuesday in person regardless of my medical condition, however would appreciate a listing not before 11am in case I am too sick to drive & need to utilise public transport. The Plaintiffs position is that regardless of the Visa situation it will benefit WS for an adoption order to be made at the least confirming her psychological parenting bond with her Aunt SS. If the court & particularly the 1st defendant find that outcome more palatable, we will not press for the Order to include myself (the 2nd Plaintiff). What occurs thereafter is a matter for ourselves to navigate as a family."
The legal representative of WS responded: "Thank you for your email. Ms Ward or I will appear on behalf of WS if the matter is listed on Tuesday."
The Defendant's legal representative responded: "Thank you for your email. Dr Barnett is unable to appear on Tuesday, 22 August 2017. Dr Barnett may have some limited availability during the week of 22 August 2017, if an alternate date is available to list the matter. If the matter is listed on 22 August 2017, I would be grateful if his Honour would grant leave for Dr Barnett to be excused from appearing. I confirm that I am available and can appear in Dr Barnett's absence. My client does not intend to make any further submissions on the matters set out below."
The Court then forwarded the following email to PGH and the legal representative of each of the Defendant and WS: "His Honour has been shown each of the responses to the email sent yesterday. If no party considers it necessary to make any further submissions on the matters raised by his Honour, then the matter will be determined on the evidence currently before the Court and the inferences, to be drawn from the evidence or lack of evidence. Please let his Honour know, as soon as possible, whether you are content for the matter to proceed in this way. Also, in light of [PGH's] recent email, his Honour would like to consider, to the extent it is relevant, the judgment of the Federal Circuit Court when published. Please confirm that there is no objection to him doing so. (His Honour will not do so if any party objects, and, so far, it has not been published.)"
This prompted PGH to send the following email: "The other parties have today requested the following from us: 1. Judgement & Orders of the Federal Circuit Court 2. Evidence of WS current Visa Status We have provided: 1. Judgement & Orders of the Federal Circuit Court 2. Emails between ourselves & Department Of Education & Training 3. WS' VEVO status as at today. His Honour may also wish to consider the attached documents and determine their relevance if there is no objection?"
There was no objection to the Court reading the documents provided by PGH and all of the emails referred to, as well as the copy of the documents provided, have been marked as Ex. F. I regret to say that these documents did not alleviate, but to the contrary, heightened the Court's concerns regarding the events that have occurred.
(I do not propose to identify the medium neutral citation of the Judgment & Orders of the Federal Circuit Court (part of Ex. F) as to do so would reveal the identity of SS, PGH, and WS. If reference is made to the reasons, it will be anonymized by referring to each in the same way as he and she has been identified in these reasons.) I note that the Judgment & Orders, whilst appearing on the relevant website, now bears the following statement: "This judgment is not available at the present time per force of s.180 of the Adoption Act 2000 (NSW)."
It appears from the copy of the Judgment & Orders provided, at [49], that it had been asserted, in that case, that WS "had been informally, or customarily, adopted by her grandparents and SS", in Thailand, "where such informal adoptions are a customary practice, particularly by relatives". The learned Federal Magistrate stated, at [51], that he "had not been taken to, and had not found, any evidence to support that assertion", and in any event, it had not been articulated before the Tribunal. He also stated, at [61], that the Decision Record of the Tribunal did "not support any suggestion that evidence or arguments concerning a previous adoption in Thailand were submitted to the Tribunal". (No such assertion appears to have been made in any of the proceedings before this Court.)
The result of the appeal in the Federal Circuit Court, at [68], was that SS and PGH failed to establish the decision of the Tribunal was effected by jurisdictional error. The Further Amended Application filed in the Federal Circuit Court was dismissed.
Another document relied upon by PGH, described as "Offer for [WS]" (part of Ex. F) was copy correspondence dated 31 May 2017, sent by PGH to TAFE NSW and which stated: "… As discussed, please provide a letter of offer for [WS] for the University Preparation Course commencing 1st term/semester 2018. Her high school study course & International Student details are attached. The plan is for her to return to Thailand ASAP for 6 months while waiting for a Federal Court Appeal regarding an Adoption Visa. If successful she will return to Australia as a permanent resident & undertake the course on that basis. If not, we are trying to keep her Student Visa open for her to return & take the course as a continuing International Student. In order to make the changes without prejudice to her existing Student Visa, we are asking for a Letter of Offer at this stage to enter the 2018 course or equivalent."
The response, dated 1 June 2017 was from DE International, NSW Department of Education, and was in the following terms: "I have received two enquiries from TAFE for [WS]. My understanding is that [WS] will withdraw and return home soon and then come back for the TAFE course in 2018. We will cancel her COE after she leave (sic) country and after her COE is cancelled, it's up to the TAFE campus to offer the course to her or not. It will be between her and TAFE course. I am waiting for the withdrawal letter signed by the parents and her departure ticket."
(It is to be noted that none of the emails sent to, and from, TAFE NSW/NSW Department of Education, were provided to Ms Starkey.)
There is no evidence stating what has happened subsequently. (To leave the country, having been informed that her Confirmation of Enrolment would be cancelled after WS did so, and without confirmation that the TAFE Campus would offer a course to her, also makes the decision to leave Australia even more inexplicable.
The copy Visa Entitlement Verification Online (VEVO), also relied upon by PGH, (part of Ex. F) which was said to be valid as at 17 August 2017, revealed "the visa status and entitlements associated with a particular visa holder, such as work or study rights" in relation to WS. It described WS as a "temporary resident", who was allowed "multiple entries to and from Australia during the validity of your visa" until 15 March 2019.
There were a number of conditions, to which reference has earlier been made, as well as noting that the visa holder "cannot change those arrangements without the written approval of their education provider"; "must notify their education provider of any change in their residential address within 7 days of the change" and "of a change in education provider within 7 days of receiving the electronic Confirmation of Enrolment (CoE) or evidence of enrolment from their new education provider".
From all of the evidence, it appears that the return of WS to Australia, under her current student visa, is now uncertain. The failure by the Plaintiffs to provide more evidence about this matter is important in the determination of the application for the adoption order. The Court is unable to speculate on, or surmise, the current immigration status of WS. Nor can the Court speculate on whether, and if so, how, the making of an adoption order will enable WS to return to Australia and to continue to live with SS and PGH, or to apply for permanent residency, or Australian citizenship.
It is to be noted that PGH submitted at the hearing that without a right of permanent residence, WS would not have citizenship conferred on her by an adoption order in favour of SS and PGH. This is because of the provisions of s 13 of the Australian Citizenship Act 2007 (Cth): T85.33 - T85.36.
All of these concerns could have been resolved by SS and/or PGH obtaining and providing evidence on the topic.
I also note the lack of any affidavit evidence by any of SS, PGH or SS, going to the topic of SS and WS leaving Australia, returning to Thailand, and events that have taken place in Thailand since her return there. I have earlier referred to UCPR rule 56.3, which imposes a duty, on the parties, 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.
Before leaving the topic of the s 91 Report, I should note, finally, that PGH, towards the end of the second day of the hearing, made a request that the Court make an order allowing the s 91 Report to be used for the purposes of the Plaintiff's immigration proceedings either in the Federal Circuit Court or the Administrative Appeals Tribunal, pursuant to s 194(2) of the Act.
As counsel for the Defendant indicated they would not consent to such an order, and in the absence of any evidence supporting the requirement of the s 91 Report for this purpose, I declined to make this order: T134.5 - T137.20.
As I wrote in Director General Department of Human Services; Re M [2011] NSWSC 369 at [17], "adoption is, traditionally, regarded as unique, or nearly so, in the degree of confidentiality maintained, and the practical reasons for making sure that disclosure of a report does not create unnecessary risk".

Other Evidence

I have taken much of what follows from the s 91 report of Ms Starkey, as it appears that the matters of significance have been referred to in that Report. There was no dispute as to the facts which follow.
PGH was interviewed at Ms Starkey's professional rooms at Constitution Hill on 14 July 2017.
In that interview, PGH repeated that he and SS had cared for WS for a long time, but especially since orders were made by the Family Court in October 2014 giving them Parental Responsibility for WS. He added that because they already had Parental Responsibility, nothing much would really change if WS were adopted by them.
In relation to decisions concerning WS, PHG stated that because WS is SS's blood relative, and not his, if he has an issue with WS, he discusses it with SS. He said he "does not believe that he should interfere with his partner's management of her blood relative". However, he also stated, later, that WS does come and talk to him about issues of concern to her at times, citing an occasion where she talked to him about some drug use in her family that she was concerned about.
SS, during her interview with Ms Starkey, gave a history of her relationship with WS, stating that although she had been living in a neighbouring city when WS was born, she came home to look after WS for almost a year. Even when SS moved to Bangkok, when WS was 8 or 9 years of age, she would fly home to stay with the family on weekends, and during school holidays WS would come to stay with her in Bangkok.
SS said that she earned money to support WS because she was the one who had attended university and was able to work in Bangkok.
SS explained that in Thailand if someone gets married and has children, it is normal for the children to stay with the grandparents. This did not happen in her family because her maternal grandfather remarried and her mother was not close to them. Similarly, SS's paternal grandfather had passed away and the paternal grandmother had remarried. Because of this, SS's parents looked after their own children.
SS reported that WS's parents had needed to work, so that, from the beginning, she had looked after WS quite a lot. She stated that "everything she does is about [WS]. Whenever she does something, she considers [WS] every time. She said [WS] is like her own child and she thinks about her first. She would like [WS] to have a good future".
SS stated that she had been very concerned about WS's safety when she was living on her own at the age of 12, and that she would ring her daily. SS said that she brought WS to Australia "to try to keep her safe" as she was worried about WS being on her own all the time in the apartment. When SS called her, WS would say that she was very lonely. This was a factor in SS and PGH seeking WS to come to Australia in order to care for her.
SS stated that PGH and WS both share a love of music, and she viewed PGH as experienced in dealing with teenagers because he had his own children. She viewed WS's relationship with PGH as closer than that which exists between WS and CS, her father.
In terms of her own relationship with WS, SS said that she sees WS as "my niece, my daughter, my friend". She said WS talks to her about everything. SS states that she "thinks of [WS] as her own child".
I have read the affidavit of WS affirmed on 9 February 2017 in which she described her family, her history, her understanding that WS and PGH had applied to the Court to adopt her and maintained that she wished to be adopted by them.
She also gave evidence of the various applications for a visa for her to remain in Australia and to having returned in March 2016. She stated that she "loved being back in Australia. It was less lonely than living in Thailand". She also said that she loved living with SS and PGH and that "I think of Australia as my home. I feel that Australia is more like my home than Thailand" and she also felt "like my family is here in Australia" and that SS "looks after me and takes care of all of my needs…..and she will always be there for me".
I have earlier referred to the report of Ms J Wyles, a registered Adoption Counsellor, who prepared a report. She had met WS on 16 April 2016 in Sydney. A few days earlier, she had spoken to WS by telephone "to assess her capacity to engage in the counselling, without the aid of an interpreter".
Ms Wyles described WS as seeming to be "an intelligent young woman…[who] has learnt to speak English quite quickly, had no difficulties understanding quite complex concepts and [who] was able to communicate quite effectively in a language that is her second language".
WS told Ms Wyles that she had read the Mandatory Information on Adoption for Children, had discussed the contents with SS and PGH and had also had her questions answered. She "seemed to have a very good age appropriate understanding of the legal effect of signing the instrument of consent, the effects of the proposed adoption and an understanding of what the proposed adoption would mean for her…she is clear that she would like to be adopted".
Ms Wyles was satisfied that WS "understands the legal effect of signing the instrument of consent, the procedure of revoking consent, the effect of the Mandatory Written Information, the emotional effects of adoption and the alternatives to adoption". As previously referred to, Ms Wyles concluded 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".
WS also met with Mr Brian Bembrick, a social worker with Legal Aid NSW, who prepared a report dated 14 December 2016. With the assistance of a Thai interpreter, he interviewed WS on 12 December 2016 in Sydney.
WS described her history of being mostly cared for by her paternal grandparents and that she had a close and important relationship with SS, with whom she was then residing. She regarded that relationship as almost as significant as her relationship with her grandparents, and ahead of her relationship with her parents, stating that: "Since I was born, I have been very close to my aunty. Even my name, she was the person who gave me my name when I was born. When she had a day off she visited me. When I had a holiday or time I visited her. She always send me money. She collect things like toys, clothes and visit me and give those to me."
WS referred to her visits to Thailand because she wanted to visit her family but was clear that she wanted to return to Australia to study. She said that wanted to have a good future and was very happy to return to her aunt's care. Mr Bembrick concluded that it appeared that SS "has been a consistent, caring and supportive presence since [WS's] earliest years, and WS enjoys a very strong bond with her".
She said that she called PGH "Uncle" and described him as "kind" and said they got on well together.
Mr Bembrick described WS as "both mature and intelligent. Her decision making appears to have been considered and independent…she is clear in her mind that her best interests lie with being with [SS and PGH] in Australia". She also "appears to have a very clear understanding of the proposal that [SS and PGH] adopt her".
Ms Starkey's report also deals with the interview with WS on 14 July 2017, who, she wrote, "presented as a pleasant 17-year-old girl who communicated well in English. She was very clear about what she wanted and was open to talking about her life. She is clearly very experienced at this because she has been through a number of interviews in the past few years. She appeared to be quite honest and open in her way of speaking. She was clear that she fully understands what adoption means as they had been discussing it for a long time now".
WS also told Ms Starkey about her relationship with SS, including that as a little girl she had lived with her paternal grandparents, her brother and SS; that when she went to a selective high school away from home and lived by herself (for 2.5 years), that SS had sent her money and telephoned her once or twice a week to see how she was, and sometimes the telephone calls would last for nearly an hour; that sometimes when SS telephoned her, WS would also talk to PGH for a while; that she did not like to talk to her mother about her problems; and that she enjoyed her times in Australia.
Importantly, Ms Starkey records the following: "When asked what it was like going between two countries, [WS] said "I feel like I can't stay in any country". She could not stay in Australia because of the Visa situation but she said she could not stay in Thailand either because she was alone there. [WS] reported her anguish at coming back to Thailand after her first visit to Australia. She said she wanted to go back to Australia and she did not want to stay in Thailand. When asked what the main difference was between living in Australia and living in Thailand, she said, for her, family is the most important thing. In Thailand she cannot stay with her family but in Australia she has [SS] to look after her. In Thailand she has no one to cook for her or look after her. When asked how she would feel about leaving her family in Thailand, she said she is not very close to her parents or her brother. When asked who she was closest to in the world, she said her grandmother, her grandfather and [SS]. She said she would miss her grandparents if she moved to Australia but she could call them every week as she did when she was in Australia before, and could go to visit them once a year."
WS also explained that she knows what adoption means because it had been talked about for 2 years. She said that it means that "when you are adopted someone will look after you". She said that SS and PGH "would legally be her mother and father. She said she feels comfortable about this and would like to stay with them in Australia and go to school there".
When asked what she would like to do when she grows up, WS said that she would like to be able "to fix computers and phones and recognised the word "technician" as one that fitted with this career plan. She said she would need to go to University to complete a course in order to be able to do this. The university in Thailand would be 2 hours away from her family home".
When asked about SS, WS said "she is like the bank for me" (described by Ms Starkey as having been said "with a big smile"). She said that SS was everything, including "cooker and chef … like my sister, my everything, my mum, my friend". WS felt that she can talk to SS about any problems. She did describe SS as being bossy sometimes. She acknowledged that SS "told her to do the right thing".
When asked about PGH, WS said "he is a lot like SS in every way, including being a bit bossy". He is someone she can talk to and who cares for her. She feels that "he cares too much sometimes". For instance, he is very serious about school, and if she wears the incorrect uniform, he will ask her to change. He always checks that she has done her homework. She described him as "nice", and she told Ms Starkey that her "relationship with [PGH] is better than her relationship with [CS] as [CS] is not very close to her".
When asked what she would like the court to do, WS said "I would like to go to Australia as soon as possible. I want to be an Australian". She expressed her concern about the cost to SS of her schooling in in Australia and the legal costs of these and other related proceedings. She understood that SS "had to work very hard to earn the money and she said she does not want her to work so hard for her". She added that if she was adopted and could be an Australian, "she would not have to worry about Visas and going back to Thailand all the time"; schooling in Australia would be free and she could also go to University; she thought that it would be "Very, very better. [SS] could be my mother. She can decide to do everything legal for me".
WS said she would continue to have contact with her biological family in Thailand after being adopted, because she can call and talk to them. Once a year she would be able to go to see them and that would be an "okay" frequency for her, she said.
CS and BS consented to the application made by SS and PGH to the Family Court and they have also consented to SS and PGH adopting WS (albeit that their consent is ineffective). They state in their affidavit sworn/affirmed on 6 January 2017 that they have "a full understanding of the meaning and implications of the Adoption, which have been explained to us by an Adoption Lawyer we engaged and visited in Bangkok".
I have earlier referred to the evidence regarding the provision of the Mandatory Written Information and the explanation provided by the lawyer in Thailand to them.
More recently, Ms Starkey interviewed BS, through a Thai interpreter, on 14 July 2017 by Skype. BS told Ms Starkey that she understood that the purpose of the interview was "to seek the best way for WS to be adopted" and that she was she was glad that WS would be adopted, because normally she would live with the grandparents as she and her husband needed to travel for work. BS said that she had no objection to the adoption.
BS also told Ms Starkey that it was common, in Thailand, for children to live with their grandparents from birth, as happened with WS. She said she understood that if the Court decided that WS could be adopted, the plan would be for WS to live in Australia.
BS was also asked what she understood adoption to mean. She initially appeared a bit puzzled and this was re-explained to her. She said that when SS had asked her if she could apply for the adoption of WS, SS told BS that if WS were adopted, she would live with SS and PGH and if anything happened to WS, BS and CS would not have any rights to WS, only SS and PGH would have those rights. When asked how she felt about that, BS said that she "is glad and pleased that they will take [WS] to live with them and that [SS] would be [WS's] mother from that time on and it does not worry her".
When BS was asked about the views of other family members (WS's grandparents), she said that "as a family they had all worked out together that [WS] should be given to [SS and PGH] and adopted by them".
BS also told Ms Starkey that she would like WS to study in Australia but she does not know if WS would like to do so. She said sometimes WS had told her that she would like to study and sometimes has told her that she does not.
Ms Starkey also spoke with CS, through an interpreter, by Skype. He said that he understood the current interview was so that they could talk about WS and the possibility of her going to Australia and his opinion about her adoption. This was confirmed and the process and purpose of the interview were briefly discussed.
CS also said that he was willing to allow WS to be adopted because SS "was going to look after her". When asked why he thought it might be better for WS to be adopted, he said it was better for her to live with SS because she had looked after WS since she was born. He said that WS was closer to SS than to him. When asked about the fact that PGH would be considered to be WS's father if she were adopted, he said that he was pleased that this would be the case. He said that he did not think there were any bad things about WS being adopted "because she and [SS] love each other very much". When asked about his view of PGH, CS said that PGH is nice and he loves WS. He described PGH as "a loving family man".
CS was asked if he had any worries about WS going to Australia. He said, "at first he was concerned about her being lonesome in a foreign country. She had since been to Australia many times and he does not worry about this anymore because she seems to like it in Australia".

The s 91 Report - Summary of Findings

I next set out the findings of Ms Starkey, at [137] - [154] of the s 91 Report, as there has been no challenge to them (the names are referred to as in these reasons). I do so in a summary form but referring specifically to the words in the s 91 Report: 1. WS presented as a vulnerable 17-year-old girl who expressed a strong desire to live in Australia with her paternal Aunt, SS, and SS's husband, PGH. 2. The cultural norms in Thailand are very different from some of those in Australia. WS was brought up by the grandparents while the parents worked to help support the family. 3. WS reported being emotionally closer to her paternal grandparents and SS than she is to own biological parents. She appears to have formed a primary psychological attachment to them as she only saw the parents sporadically when they visited the grandparents' farm in between working around the country or in Bangkok. 4. WS stated that the person she always turned to when she was growing up was SS, and SS has had a lot to do with supporting her, both financially and emotionally during her adolescent years as well as prior to that. SS rang her frequently when she was residing on her own and had long conversations with her to give her support while she lived in Kalasin City. 5. SS and PGH made the suggestion of WS coming to Australia to see if she liked it. They have worked hard to try to get her to be able to stay in Australia once she decided that was what she wanted. 6. At interview, WS's parents showed little emotional response to the idea of their daughter being adopted. It is important that this be seen within the context of a culture where a child is raised by a family, rather than just her parents. They appear to be very happy about the idea of WS being adopted as they see this as something that will be positive for WS and will allow her to have a better life. 7. There is no doubt that WS was in need of parental care at the time she first visited Australia. She was a young girl and had already been living largely independently for a few years. She liked Australia and wanted to come back to live with her SS and PGH. She described not wanting to go back to Thailand to live after her first visit to Australia, even though she had to because of visa requirements. She has been clear in all interviews she has had in relation to the adoption process that she wants to live with SS with whom she shares a strong attachment bond. 8. WS's wishes are well-defined and they coincide with what she needs: a warm, loving home where she feels she belongs and where she feels she is wanted. She reportedly gets on well with SS and PGH and she is clear that she has been longing to live with them ever since she first visited Australia. 9. WS has not yet had the opportunity to fully establish Australia as her habitual residence, though this is clearly what she would like, so that she can reside with SS and PGH and be part of their family, where she knows she is cared for and looked after. 10. From a psychological point of view, it would appear that WS's needs and her wishes coincide and that the central aim for her is to be adopted so that she can remain in Australia with her "family". 11. There does not appear to be any doubt that the proposed adoptive parents can meet the needs of the child financially and physically. They have been meeting these needs to a large extent for years already. There is no doubt that they will support her educational needs, as they have been supportive of these for years as well. 12. Emotionally, it would appear that SS has been WS's primary emotional and psychological support for many years and PGH has reported that WS comes to him for certain things as well, when she is with them. 13. PGH has been involved in litigation of one kind or another over many years, including the 7 years of litigation in the Family Court with his wife, further Family Court Litigation in support of a later partner, and the past few years of interaction with the Immigration Department and various appeals courts, as well as the Family Court in Tasmania to gain Parental Responsibility for WS and now the Supreme Court to seek adoption orders for WS. 14. The other aspect of PGH's personality that emerges in the perusal of the documents is his generosity of spirit. It is seen in his improving the facilities in the home of SS's parents; it is seen in his donating and installing a sound system at the Buddhist temple his wife attends; it is seen in his taking on the financial responsibility for SS's family, including WS, when he married SS, especially during the periods when SS was not working and being able to earn an income to provide this financial assistance herself. 15. In terms of whether PGH would make a good adoptive parent for WS, it is my opinion that he would be able to provide for her physical needs, and that he would support her educational and emotional development. He impressed as committed to her contact with the biological family through electronic media and through at least annual visits to see them in person. He is supportive of her Thai Buddhist Culture, attending the temple with SS and WS sometimes when WS is in Australia, despite his lack of belief in religion itself. It is therefore my opinion that PGH should be considered as an adoptive parent for WS, along with his wife (and one of WS's "psychological parents") SS. 16. SS is a woman who is steeped in her cultural traditions and wishes to maintain the financial and emotional support of her family that is expected in her culture. She does not see this as a burden, but just as how it is and should be. 17. SS has also taken on a good deal of responsibility for WS from WS's birth. However, it is clear when talking to her that her desire to have WS live with her, and to adopt WS to make this possible, is not coming from a sense of duty but from a place of love and strong emotional attachment to the child she has cared for from the child's birth. She has been closer to WS than WS's parents, who do not appear to have a strong emotional connection to WS. They have not been her primary carers for most of her life. The strong emotional attachment between WS and SS is reciprocal and WS also has a strong desire to live with, and be cared for by, SS. 18. In terms of the wishes of the proposed adoptive parents and the biological family, it would appear that all 4 adults want WS to be adopted by SS and PGH and for WS to reside in Australia, while keeping in regular contact with WS's biological family in Thailand. The parents have had counselling about the meaning of adoption and recognise the fact that it removes from them their parental rights. They both stated in their affidavit and at interview that they wish for the adoption to proceed. WS has also received such counselling from an experienced adoption counsellor and appears to understand the implications of adoption for her and has expressed her willingness, and indeed enthusiasm, to proceed with the adoption. 19. 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. SS and PGH already have Parental Responsibility for WS as awarded by the Family Court in Tasmania. This has not been sufficient to secure stability of placement for WS and she has experienced a chaotic life in the past few years, travelling between Australia and Thailand, without fully belonging in either place. The option of WS 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. While she has a close relationship with the grandparents, living with the Aunt would allow her to blossom and develop in a home where she is looked after and cared for. 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 SS and PGH and where she can still continue her education.
Ms Starkey concluded having completed the current assessment and perused the documents provided, "that the best option for WS in terms of her long-term care would be for her to be adopted by the proposed adoptive parents [SS and PGH]. All of the parties interviewed agree with this recommendation".

The Legal Framework

The starting point is the Act, which commenced on 1 February 2003. It has been amended since then.
Whilst the Act contains objects, to which reference will be made, it does not contain any stated purpose for adoption. The Long Title, relevantly, refers to an Act "with respect to the adoption of children … and for other purposes".
Adoption is purely a creature of statute. An adoption order is status changing. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. The child becomes part of her, or his, adoptive parents' family, solely through operation of law, and there is no necessity for any actual blood relationship to exist between them (although, in this case, there is the blood relationship between SS and WS). She, or he, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child: s 95(2)(c) of the Act. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act. The effect is to extinguish any parental responsibility of the birth parents. Thus, the order directly affects three parties, namely the child, the birth parents and the adoptive parents.
The adoption creates a legal fiction: that a child is the child of parents with whom there is no biological relationship. For this, and other, reasons, adoption will be an extremely important step in a child's life, which will determine her, or his, identity and family relationships throughout her, or his, remaining life. Thus, the making of an order must be considered, not as a means of determining with whom a child is to live, but as a way of making a child legally part of a new family and severing any legal relationship with her, or his, birth family.
As was been pointed out in regard to the effect of an adoption order, in Oxfordshire County Council v X [2010] Fam Law 790; [2010] EWCA Civ 581; at [4]: "It is important to remember that this is not just some legal fiction. As Thorpe LJ said in Re J (Adoption: Non-patrial) [1998] INLR 424 at page 429, the result of adoption 'is the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences.'"
Section 6 of the Act provides that the provisions of Chapter 2 are "intended to give guidance and direction in the administration of [the] Act. They do not create, or confer on any person, any right, or entitlement, enforceable at law".
Bryson J wrote in Application of M [1999] NSWSC 497 at [2]: "Where an application is made by a relative, consideration by the Court of the welfare and interests of the child concerned, which is to be regarded as the paramount consideration … requires me to address whether the existing family relationship is in some way adverse to the welfare and interests of the child in the making of an Adoption Order. The existence of a natural family relationship between the child and the adopting parent suggests that it is possible that there may be confusion for the child about relationships and family roles if the adopting parent and other relatives have several family ties to the child. There are sources of confusion which do not arise in the lives of children generally. The Adoption of Children Act does not show any signs of a policy adverse to adoptions by relatives, and applications by relatives are not appraised with any sense that an unusual degree of scrutiny is required. However, recurringly, Courts have addressed the impact on the welfare and interests of the child of existing natural relationships as a possible source of confusion."
Generally, the two principal justifications of the general rule against intra-familial adoption are, firstly, that psychological and emotional harm could arise from generational confusion if the true parentage of an adopted person was discovered later in life, and secondly, that intra-familial adoption could sever the natural ties of mother and child by legally excluding the mother from the child's life: Re A & B (Adoption by Grandparents) (2003) 30 Fam LR 387; [2003] NSWSC 595, at [13] and [15] (Palmer J).
(In this case, neither of those justifications exists. The identity of WS's birth parents and her true biological history is not being concealed. WS is completely aware of her biological status within the family, and has no difficulty with it. The making of an adoption order would not sever any ties between WS, CS and BS.)
Section 7 of the Act states the objects of the Act as: "(a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice, (b) to make it clear that adoption is to be regarded as a service for the child concerned, (c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage, (d) to recognise the changing nature of practices of adoption, (e) to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas, (f) to ensure that adoption law and practice complies with Australia's obligations under treaties and other international agreements, (g) to encourage openness in adoption, (h) to allow access to certain information relating to adoptions, (i) to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents."
In Adoption of KH [2015] NSWSC 274, Brereton J noted at [20], that: "In speaking of adoption being a service to the child, the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption, just because his or her needs are already adequately being met."
Section 8(1) of the Act requires the Court, in making an adoption decision, to have regard (as far as practicable or appropriate) to principles which include the following: "(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration, (b) adoption is to be regarded as a service for the child, (c) no adult has a right to adopt the child, (d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, (e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare, … (2) In determining the best interests of the child, the decision maker is to have regard to the following: (a) any wishes expressed by the child, (b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant, (c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity, (d) any disability that the child has, (e) any wishes expressed by either or both of the parents of the child, (f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant, (g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, (h) the nature of the relationship of the child with each proposed adoptive parent, (i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child, (j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour, (k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child's circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child."
In Director General Department of Human Services; Re M at [88] - [91], I wrote: "It is to be noted that s 8(1) refers to "principles" pursuant to which a decision will be made about the adoption of a child. Section 8(2) refers to factual matters for consideration in determining what is in the best interests of the child. Of course, and unsurprisingly, there is no definition of either of the terms "the best interests" or "the paramount consideration" in the Act. However, judicial statements as to the meaning of the latter term abound. The thrust of Australian authority is that "paramount" means "overriding": In the Marriage of Kress [1976] FLC 90-126; In the Marriage of H [1994] FamCA 132; [1995] FLC 92-599 (at 81,974). The word does not indicate exclusivity. The test to determine the best interests of the child cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. There must be a judicial evaluation and balancing of many factors from which an overall conclusion is reached on a concept that is inherently imprecise: Re B (A Minor) [2001] UKHL 70 at [16]; [2002] 1 All ER 641. The approach to be adopted is for the Court to weigh, and balance, those factors, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have. Not all of the factors are referred to in the context of the child whose adoption is sought. For example, in s 8(2), there is a reference to 'any wishes expressed by either or both of the parents of the child' and 'to the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood.'"
As I have also written, "the term 'best interests of the child' is a long-standing, important and salutary, principle of substantive law (Northern Territory v GPAO (1999) 196 CLR 553, at 584) and does not require elaborate elucidation: Department of Family & Community Services and LH; Re R [2011] NSWSC 551, at [40].
McHugh, Gummow and Callinan JJ said in CDJ v VAJ (No 2) (1998) 197 CLR 172, at 218-19; [1998] HCA 76, at [151], albeit in the context of applications for parenting orders, described what is in the best interests of children as: "necessarily [involving] predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order ... Best interests are values, not facts."
Judicial statements as to the meaning of the term "paramount consideration" abound. The thrust of Australian authority is that "paramount" means "overriding": In the Marriage of Kress [1976] FLC 90-126; In the Marriage of H [1994] FamCA 132; [1995] FLC 92-599 (at 81,974). The word does not indicate exclusivity.
Lord McDermott in J v C [1970] AC 668, at 710, said that the words "paramount consideration": " . . . must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood."
In discussing the obligation to consider the best interests of the child, as required by s 6 of the Adoption Act 1993 (ACT), Refshauge J in the matter of Re Adoption of D [2008] ACTSC 44 stated, at [37] in relation to paramount consideration: "The majority of cases, however, have decided that while the paramount consideration, it "is not the overriding consideration nor is it the only consideration"; ABA and Anor v EWF (1977) 3 Fam LR 11,487 at [47]."
In Adoption of JLK and CRK [2017] NSWSC 7, Brereton J, at [12], referred to the "paramountcy principle": "The "paramountcy principle" contained in par (a) means that the inquiry is child and future focussed: as the best interests of the children, both in childhood and in later life, must be the paramount consideration, so it is necessary to evaluate the competing proposals (and any viable alternatives) so as to ascertain which will best serve the interests of these children now and in the future, given what has already happened, rather than revisiting the actual or perceived rights and wrongs of the past (save insofar as they may be indicative of the future)."
In EV (A Child), Re (Scotland) [2017] UKSC 15, Lord Reed (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hodge agreed), at [27] - [28], wrote: "It is, emphatically, not enough to show that a child would benefit from being brought up elsewhere. This is made clear in the speech of Lord Templeman in In re KD (A Minor) (Ward: Termination of Access) [1988] AC 806, 812: "The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered." The implications of that statement were considered in In re L (Care: Threshold Criteria [2007] 1 FLR 2050, a case which, like the present case, concerned parents with learning difficulties. Hedley J, having quoted Lord Templeman, continued: "It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance [semble: province] of the state to spare children all the consequences of defective parenting."
I have earlier referred to sections 23 and 28 which deal with the factual preconditions to the Court having jurisdiction to make an adoption order, in respect of whom an application can be made, as well as by whom an application may be made. If an application is made by a couple, s 28 sets out the basic requirements to be established.
I have also referred to s 24(1)(a) of the Act (relating to the age of WS as less than 18 years of age on the date on which the application for the order was made). I should also refer to s 24(1)(b) of the Act, which provides that an adoption order may be made in relation to a child who was 18 or more years of age on that date and who was cared for by the applicants for the order.
Section 24(2), relevantly, provides that for the purposes of subsection (1) (b), a child was cared for, if the child has been cared for by the applicants, as their child prior to reaching the age of 18 years. (Whilst in any future proceedings, there may not be an issue about whether WS was "cared for" by SS and PGH, there may be an issue concerning whether they did so as "their child" or otherwise, for example, as the niece of SS, pursuant to the orders of the Family Court.)
Because this is an application for an adoption by a relative (or relatives), it is necessary to set out part of s 29 of the Act verbatim: "The Court must not make an adoption order in favour of a relative of a child unless: (a) specific consent to the adoption of the child by the relative has been given in accordance with this Act by the appropriate person or persons specified in section 53 (b), and (b) the child has established a relationship of at least 2 years' duration with the relative, and (c) the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child."
Section 32(1) of the Act requires the Court, in making an adoption decision, to also take into account, amongst other things, the culture, language and religion of the child and the principle that the child's given name, identity, language and cultural and religious ties should, as far as possible, be preserved.
Section 52 of the Act provides: "The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given: (a) in the case of a child who has not been previously adopted by: (i) each parent of the child, and (ii) any person who has parental responsibility for the child, or (b) in the case of a child who has previously been adopted-by each adoptive parent of, or person who has parental responsibility for, the child."
In this case, there is no dispute that effective consent has not been given by each of CS and BS, even though the consent of each was an informed consent, confirmed, most recently, to Ms Starkey.
It is clear that SS and PGH, as the persons currently having parental responsibility for WS, have provided the necessary consent which is described in s 53(1)(b) as "specific consent".
Relevantly, s 54 relevantly provides: (1) Consent is not required under section 52 if: (a) the requirement for the consent has been dispensed with by the Court, or Note : See Division 3 of Part 5. (b) the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or (c) the child gives sole consent to his or her adoption in accordance with subsection (2), or (d) the child is 18 or more years of age. (2) A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years. (3) However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless: (a) the Court is satisfied that at least 14 days' notice of the application for the adoption order has been given by the Secretary or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or (b) the Court dispenses with the giving of notice. (4) The regulations may prescribe the particulars to be contained in a notice under this section."
Clearly, the age of the child, inevitably, will give rise to different considerations in different circumstances.
In this case, there is an issue because s 54(2) requires that WS (the child) "has been cared for by the proposed adoptive … parents for at least 2 years". The sub-section does not state whether the two years is calculated prior to the date of the consent having been given or some other date.
As to the application proceeding on the basis of WS's sole consent, s 55 of the Act provides: "(1) The Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless: (a) the child has been counselled as required by s 63, and (b) the counsellor has certified that the child understand the effect of signing the instrument of consent (as required by s61), and (c) the child consents to his or her adoption by the prospective adoptive parent or parents or the court dispenses with the requirement for consent."
There was no dispute that the section had been complied with.
Under s 66 of the Act, a requirement for the consent of a child or any other person to the child's adoption under the Act can be dispensed with if the court makes an order under Division 3 of Part 5 of the Act dispensing with the requirement, which is defined as a "consent dispense order".
The relevant circumstance in which the consent of CS and BS can be dispensed with, if that is what is required, are limited by s 67(1)(d) as follows: "(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that: (a) … (b) … (c) … (d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child: (i) the child has established a stable relationship with those carers, and (ii) the adoption of the child by those carers will promote the child's welfare, and (iii)…"
For the purposes of s 67(1)(d), an "authorised carer" is relevantly defined as any person who has responsibility for the day-to-day care, welfare and development of the child under the Family Law Act 1975 (Cth).
Counsel for WS submitted that SS and PGH fall within the definition of "authorised carers" by reason of the orders made by the Family Court on 8 September 2014. The effect of the raft of orders made, at that time, mean that the Plaintiffs have "responsibility for the day-to-day care, welfare and development" of WS, indeed the parental responsibility order extends to long term care, welfare and development.
The inclusion of s 67(1)(d) in the Act reflects a policy decision that once a child has, by judicial decision, been removed from her, or his, birth parents, and placed with a person who has, or persons who have, responsibility for the day-to-day care, welfare and development of the child under the Family Law Act , the rule that legal parental relationships are not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption: Adoption of KH at [62].
In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J made the following remarks, at [11] and [17], with respect to the history and rationale for s 67(1)(d): "... It is not the role of this Court in these proceedings to review the decisions that have been made by the Children's Court in respect of parental responsibility; nor even to determine whether in the different circumstances that prevail today such an order would still have been made; but rather to judge which of the competing proposals (and any viable alternatives) will best serve the interests of these children now and in the future, given what has already happened. ... Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child's welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006), as enabling consent to be dispensed with where adoption would enhance a child's sense of belonging and permanence in the carers' family notwithstanding that there is no concern about the child's current welfare (as distinct from the child's welfare at the beginning of the placement). As the Court of Appeal observed in Re Sarah [2013] NSWCA 379, [68] - endorsing what Slattery J had said in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, [59] - the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child's present situation. Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child."
White J (as his Honour then was) explained in Re K & The Adoption Act 2000 [2005] NSWSC 858 at [21]: "Before consent can be dispensed with under s 67, it is necessary, but it is not sufficient, that the Court is satisfied that dispensation of consent is in the best interests of the child. In order to dispense with the consent, one of the paragraphs in subs 67(1) must be satisfied."
In the event that the consent of CS and BS is required, SS and PGH seek an order dispensing with their consent. There was no dispute that the Court has power to make a consent dispense order pursuant to s 67(1)(d) of the Act in the event that the Plaintiffs do not establish compliance with either s 29(b) or s 54(2) of the Act.
Section 90 of the Act relevantly provides: (1) The Court must not make an adoption order in relation to a child unless the Court is satisfied: (a) that the best interests of the child will be promoted by the adoption, and (b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and (c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child-that the prospective adoptive parent or parents have been selected in accordance with this Act, and (d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and… … (3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child."
In Adoption of RCC and RZA Brereton J, at [14], stated that s 90(3) requires: "... something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]]."
Brereton J, at [15], reiterated the principles that his Honour had previously expressed in Adoption of NG (No 2) [2014] NSWSC 680 at [16]- [17]: "The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows: ● Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships; ● Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and ● Concerning the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them. In addition, all these are informed by the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption."
His Honour went on to explain at [74], and then in [83] - [84] (Adoption of NG (No 2)): "Consideration of whether adoption would promote the child's best interests, and whether it is clearly preferable to any other order that could be made, involves identification of the likely effects of adoption, and of the various available alternatives, and examining their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is, or is not, clearly preferable to all the others. In the light of the proposals of the parties, the alternatives to adoption that require consideration in this case are: ● restoring the child to the care of the birth mother; ● allocating parental responsibility in favour of the applicants; ● maintaining the status quo, with the Minister having parental responsibility and the child in foster care; and ● deferring determination of the question until the child is older, either maintaining the status quo or making a parental responsibility order in the meantime." … Once an adoption order is made, the possibility of restoration is practically foreclosed, and future decision-making in respect of the child is vested in the adoptive parents. Because of the permanency of an adoption order, and the general preference based in human nature and experience that, where practicable, children are best raised by their birth parents, the Court would not likely make an adoption order if there were a realistic prospect of the child being restored to the care of one or both of his birth parents. However, if there is no real prospect of restoration, then the disadvantages of the permanent nature of an adoption order are minimal, and no greater than those of natural legal parenthood; and the advantages of permanency are considerable. Future contingencies in relation to contact can still be addressed and accommodated after an adoption order is made [Re TVK [2012] NSWSC 1629]. The starting point for consideration of whether there is a realistic prospect of restoration is that there is in place an order of the Children's Court allocating parental responsibility to the Minister until the child attains 18 years of age. Implicit in that order is a conclusion that restoration is improbable. That conclusion does not bind this court, and between the time when a care order is made in the Children's Court, and an adoption application is considered in this court, much can change. The Children and Young Persons (Care and Protection) Act 1998 (NSW) itself admits, by s 90, of an application for restoration (by way of rescission of the care order) in the event of a change of circumstances, notwithstanding that a final order allocating parental responsibility to the Minister until 18 is in place. Nonetheless, in this type of case, there has already been a judicial decision, by a specialist court, that the child cannot be satisfactorily cared for by the birth parents, such as to require long-term removal."
In Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926, Bergin CJ in Eq, had similarly explained, at [99], that: "The words 'clearly preferable' in s 90(3) do not require the court to be satisfied 'beyond reasonable doubt'. Rather "the word 'clearly' serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision": Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 at [53] (Palmer J) and that the order for adoption be "obviously, plainly or manifestly preferable" to any other alternative: Director-General, Department of Community Services NSW v D at [25] (Brereton J)."
In Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD [2016] NSWSC 1926, Sackar J, after referring to the decisions quoted above added at [41]: "I also note the pertinent remarks of Sir Thomas Bingham MR in Re O (Contact: Imposition of conditions) [1995] 2 FLR 124, who stated that 'the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems'".
At [38], after referring to the earlier decisions on the term, his Honour added: "It requires that adoption be "obviously, plainly or manifestly preferable to any other action that could be taken by law": Deputy of Community Services v D (2007) 37 Fam LR 595 at [25]."
This will often require an acute, and difficult, decision to be made. In reaching the conclusion, "a global, holistic evaluation of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare" should be undertaken: Re G (A Child) [2013] EWCA Civ 965 at [50].
In W (A Child) [2017] 1 WLR 889; [2016] EWCA Civ 793, McFarlane LJ, speaking with agreement of the other two members of the Court of Appeal (Jackson and Lindblom LJJ) stated at [64]: "One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters."
As has been stated in Re B (A Minor) [2002] 1 WLR 258; [2001] UKHL 70 at [16]: "[T]here is no objectively certain answer on which of two or more possible courses is in the best interests of the child ... There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this course or that course will, or may, have for the child."
Section 92 of the Act provides that if the Court refuses an application for an adoption order, the Court may make such orders in relation to the parental responsibility for the child concerned as it thinks fit. In this case, if that occurs, there is no need to make any further order since WS remains under the parental responsibility of SS and PGH until she is 18 years of age pursuant to the orders made in the Family Court.
In any event, so far as is known, she remains out of the jurisdiction, and in Thailand, it being uncertain whether she will be able to return under her current visa. It is only a matter of days before she attains the age of 18 years.
The combination of these things is extremely important in the determination of this case.

Agreed Issues for Determination

The parties agreed that the following issues are in dispute: Ex.1. (Counsel for WS submitted that from the perspective of WS "the single most important question for the Court to answer is the question: Should the adoption order be made… [but] there are questions that sit underneath that final question": T19.16 - T19.21.)
At the commencement of the second day of the hearing, I raised with the parties some minor amendments to Ex. 1 (paragraphs (1)(c) and 1(d)), to reflect the terms of the relevant sub-sections of the Act to which the factual matters related, and to which amendments they agreed. In addition, counsel for WS raised what has now been added as 1(f) below.
The issues, as amended, were divided into factual, and then legal, issues as follows: "(1) Factual issues in dispute a. Whether the capacity to consent report dated 19 April 2016, of Joanne Wyles, is a s 91 Report for the purposes of the Act; b. Whether one of the primary purposes of the proposed adoption is to obtain a visa for the child, WS, to remain in Australia on a permanent basis; c. Whether WS has established a relationship with PGH, the second Applicant, of at least two years duration: s 29(b) of the Act; d. Whether WS has been cared for by SS and PGH, the proposed adoptive parents for at least 2 years: s 54(2) of the Act; e. If consent of WS' birth parents, CS and BS, is required, whether their consents, dated 3 March 2016, is effective. f. Whether WS has established a stable relationship with SS and PGH: s 67(1)(d)." (Because the Plaintiff tendered Ex. A, the parties agreed that the first factual issue, regarding the report of Ms J Wyles to which reference will later be made, was no longer an issue, and as above, it has been crossed out on Ex. 1 and above so that the numbering on that document does not change.) "(3) Legal Issues in Dispute a. Whether the consent of the birth parents, [CS] and [BS], is required. b. Whether the formal consent of the plaintiffs is required, in accordance with s 52(a)(ii) and/or ss 29(a) and 53(1)(b). c. Whether the child is able to provide sole consent to her adoption, pursuant to s 54(2). d. If the answer to question 2(a) and/or 2(b) is yes, whether dispensing with those consents will promote the child's, WS', welfare and is in her best interests. e. Whether the adoption of WS will promote WS's best interests having regard to: i. WS' age, background and family relationships; ii. WS' relationship with her birth parents; iii. The attitude of the Plaintiffs to the responsibilities of parenthood; iv. The nature of the relationship between the proposed adoptive parents and WS: v. The suitability and capacity of the proposed adoptive parents to provide for WS, including her emotional and intellectual needs; vi. The alternatives to the making of an adoption order, being to maintain the status quo, and the likely effect on WS in both the short and long term of changes in WS' circumstances caused by an Adoption Order, so that adoption is determined to best meet the needs of WS as opposed to maintaining the status quo. f. Whether the making of an adoption order is clearly preferable in the best interests of WS than any other action which could be taken."
Although not an agreed issue identified by them, the parties agreed, when it was raised by the Court, that a legal issue that might arise, in the event that the Court finds a real purpose of obtaining an adoption order is for immigration purposes, namely to enable WS to remain in Australia, is whether there is a public policy reason for refusing to make an adoption order: T16.43 - T16.49.
In Ex. 1 (Issue 2), there were two other questions raised, namely whether the Defendant's conduct in the proceedings might be considered misconduct and also whether the Defendant should pay the other parties' costs of the s 91 Report, was raised. The parties agreed that these two matters should await the completion of the submissions regarding the factual and legal issues and should only be dealt with then if PGH wished to have it dealt with.
At the end of the submissions, I returned to the topic, and mercifully, PGH, after making some complaints about the Defendant's conduct, which does not bear repetition, agreed that it was not necessary to deal with these issues.
In the circumstances, I have simply referred to the questions in this way rather than identifying them as they appear in Ex. 1.

1b. Whether one of the primary purposes of the proposed adoption is to obtain a visa for WS, so that she may remain in Australia on a permanent basis

This really does not appear to be in issue. In any event, I would be satisfied that the answer is in the affirmative.
In the directions hearing on 18 May 2017, PGH stated at T7.08 - T7.15: "…The proposed adoptive applicant as to the ongoing involvement of the birth family, that is sort of a fait accompli because it is an intra-family adoption. The nature and the relationship between the child and the proposed adoptive family. Again pretty much negated by the fact that it is an intra-family adoption and the last thing, whether the making of the adoption order is clearly preferable to any other order that could be made. Well, we have got the other alternative order being a Family Court order. It doesn't give us an adoption visa a pathway to an adoption visa and that's why we're here because the child can't live with us under the other order unless we apply to adopt the child and apply for an adoption visa and we have been frustrated. HIS HONOUR: Well, is that right? 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 [re-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."
WS informed Ms Starkey that if she were to be adopted and could be an Australian, she would not have to worry about visas and going back to Thailand all the time.
At [72] of the written submissions PGH stated: "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."
At [82] of the written submissions, he stated: "These proceedings have been brought to facilitate an Adoption Visa which is required to effect the practicality of implementation of the Child's best interests".
In PGH's written Submissions in Reply, the following passages appear: "It is common ground one of the reasons, if not the primary reason, for undertaking the Adoption is to provide the Child with an Adoption Visa. Why the 1st Defendant raises this as a disputed factual issue belies understanding? Presumably they are not now proposing some alternative sinister underlying purpose for the Adoption? … The answer to the Factual question 1b is therefore Yes from all parties. … It is common ground one of the reasons, if not the primary reason, for undertaking the Adoption is to provide the Child with an Adoption Visa."
At the hearing, PGH submitted that "the Commonwealth has made regulations and, and legislation to allow for adoption of children and that… our… attempts to adopt WS through those avenues have been in accordance with the Act rather than to circumvent it": T84.43 - T84.46.
However, PGH also contended in the written Submissions in Reply [22]: "The Plaintiffs do not deny - if a Resident Visa had been forthcoming, following the Family Court Orders, we would most likely not be here unless obtaining Citizenship by Adoption became necessary for the Child. The Plaintiffs' primary reason for bringing WS to Australia was for her welfare & benefit…not simply to obtain a Visa for her."
Even before the filing of the Summons in March 2016, SS and PGH made it clear that they were going to bring the application for an adoption order so that WS could obtain a visa that would enable her to remain in Australia. For example, in [225(e)] of the earlier judgement, I concluded that "Every effort was being made by SS and PGH to ensure that she obtained a visa to enable her to do so permanently, or at least for an appreciable period of time".
I have previously referred to paragraph [225(h)] of the earlier judgment.
In the affidavit of the Applicants filed on 7 March 2016, they stated that the "visa options for this situation are now very limited". They deposed to the significant number of applications made to have WS live in Australia. They deposed to having decided to adopt WS after different visas had been refused. They asserted that they have needed to "play leapfrog with the immigration rules" with the intention that the adoption will allow WS to be granted a visa so that she can return to, and remain in, Australia: Affidavit of Applicants, at [17], [27] and [36].
The question then, is what flows from the conclusion that one of the primary purposes of the adoption is to obtain a visa for WS, so that she may remain in Australia on a permanent basis.
The Defendant submitted that the Court ought to be hesitant to allow adoption to be used as a means of "circumventing" immigration laws given the Migration Act 1958 (Cth) has been created as a means to regulate those who can legally live and visit Australia. The Court, it was submitted, ought to pay attention to the public policy of not usurping the legislative framework to control immigration "even if other issues override that consideration": T17.08 - T17.16.
Unlike s 12 of the Adoption Act 1993 (ACT), which provides that "An adoption order must not be made if the court considers that it is being sought primarily as a means of evading the operation of a law of the Commonwealth relating to immigration", the Act does not contain any such prohibition.
Yet, in Re K and the Adoption of Children Act 1965 (1988) 12 Fam LR 263, at 264, Young J wrote: "The Court is always very careful to see that adoption is used for the purposes contemplated by the Act and not for any collateral purposes. As Selby J said in Re Lee Yen Chum (1963) 4 FLR 296 at 299: 'The Court looks with disfavour upon what are sometimes called 'accommodation' adoptions, that is to say, adoptions which are sought for a motive other than an intention to establish a parental relationship between the applicants and the person sought to be adopted. In such cases, the Court, in the exercise of its discretion, has refused to make the order asked.'"
In Application by Webster [1991] NZFLR 537; (1991) 7 FRNZ 569, Judge Kendall wrote at 539: "Counsel has properly in my view submitted that there are three public policy principles that are in many cases interwoven in relation to adoptions. Firstly, should an adoption order be made if there are other methods available to the Court to give the child a secure and settled family situation? Secondly, in relation to adoption by relatives, because adoption extinguishes existing legal family relationships on one side, and distorts relationships on the other family side, then adoptions should not be considered desirable unless the benefits secured by adoption cannot be met by other means. Thirdly, if adoption is purely for immigration purposes the adoption should be refused."
The Court of Appeal in England decided in Re B [1998] 1 FLR 965 that the purpose of pursing an adoption for immigration purposes was of overriding importance against the granting of an adoption order. However, that decision was reversed by the House of Lords in Re B [1999] 2 AC 136; [1999] 2 All ER 576.
Yet, notwithstanding the reversal of the decision by the House of Lords, Lord Hoffman, in Re B [1999] at 580, remarked that in circumstances where a child is nearing the age of majority the adoption order has limited benefit to the child during childhood: "The second proposition is that the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during the childhood to constitute the 'first consideration.' The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority."
I also note that in ASB and KBS v MQS and the Secretary of State for the Home Department [2009] EWHC 2491, Bennett J wrote at [35]: "In my judgment it remains the court's obligation … to be on its guard in adoption proceedings against misuse of such proceedings. Misuse of adoption proceedings to gain a right of abode (as opposed to exercising parental authority) is most unlikely to be in the child's welfare as well as undermining immigration policies and procedures."
Counsel for the Defendant acknowledged, appropriately in my view, that there are some significant differences between the adoption process in the United Kingdom and the adoption process in New South Wales. Significantly, the Act does not make a real distinction between the adoption of a child under the age of 18 years and the adoption of a "child" who is older than 18 years. For example, the objects of the Act speak about the benefit to the child, and emphasise "the best interests of the child concerned, both in childhood and later life": s 7(a) of the Act, whereas, in the United Kingdom, adoption is done as a child and the benefit must be during the childhood rather than adulthood: T54.15 - T54.28.
In L and L v P [1986] 4 NZFLR 75 at 78, Sinclair J wrote: "Where an application is made to adopt a child not domiciled in New Zealand the Court must be satisfied that the child's welfare will be promoted by being a member of a family in New Zealand rather than the advantages that merely flow from residing in New Zealand. An application for adoption involves the creation of a parent child relationship and is not a substitute for an entry permit into this country"
In Adoption Application by V [2001] NZFLR 241, Judge MacCormick wrote: "Adoption is rarely purely for immigration purposes. The personal factors properly relevant to an adoption application and factors associated with immigration issues are often both present to a highly significant degree. Where to draw the line in determining whether any particular application is primarily a genuine adoption application or primarily an immigration application is very difficult. … This Court is not given jurisdiction to determine immigration issues. That jurisdiction is vested in others who have established, in accordance with Government policy, their own guidelines for determining those issues. If New Zealand immigration law is not humane enough or liberal enough to provide for the perceived welfare and needs of [the children] then that is a policy matter for department, ministerial and ultimately government consideration."
However, as Young J in Re W & the Adoption of Children Act [1999] NSWSC 662 noted, at [14], it is the duty of the Court is "to see that the welfare and interests of the child are the paramount consideration. Even if an adoption order is made, it is still a matter for the Immigration Department to decide on residency".
(PGH referred to Adoption of CCRS [2014] NSWSC 232 submitting that the case was "virtually identical" and that "Reading between the lines … it becomes obvious CCRS is also about obtaining an Adoption Visa for the child". I do not share this view. Most importantly, in that case, Darke J concluded, at [11]: "On the basis that the Child is "a non-citizen child", s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) operates to place her under the guardianship of the Minister for Immigration. A delegate of the Minister for Immigration has consented to the making of the order for adoption."
In this case, WS is not a non-citizen child (as defined by s 4AAA(2) Immigration (Guardianship of Children) Act 1946 (Cth)), and there is no simply no evidence about the attitude of the Minister for Immigration to the adoption or to the return of WS to Australia. For example, there is no evidence that an adoption order will give any right of residence to WS, or that it will enable her to return to live in Australia permanently.)
It is to be remembered that in 2016, WS was admitted to Australia, on a temporary basis (until 2019) specifically for the purposes of study. As has been read, the conditions of her admission did not confer any entitlement to permanent residence and her right to remain as a student was made subject to the conditions referred to. On completion of her studies, subject to obtaining any other visa, she would be required to return to Thailand.
It is to be noted that despite the different applications made for visas, including applications that have identified the application made by SS and PGH for an adoption order in this Court, there has been no opposition to an adoption order mounted by immigration authorities in these proceedings.
No doubt, there are many children who live overseas who have a relative living in Australia and whose short, medium and long term prospects would improve upon gaining the ability to live permanently in Australia. This, in, and of, itself, cannot form an adequate basis for an adoption order to be made.
In answer to the first question, I am satisfied that one of the primary purposes of the proposed adoption is to obtain a visa for WS, so that she may remain in Australia on a permanent basis. It has not been submitted that the application was a sham or a device to get around immigration. Yet, there are immigration considerations which bear on the application. It would still be for the Minister to determine the consequences that follow in the event that an adoption order was made.

1c. Whether WS has "established a relationship with PGH, the second Applicant of at least two years duration": s 29(b) of the Act

I turn, next, to consider whether WS established a relationship with PGH of at least two years duration, as required by s 29(b) of the Act, in circumstances of an adoption application by a relative.
At the hearing, counsel for the Defendant acknowledged that there was really no dispute about this: T45.29 - T45.33.
There is no definition in the Act of the nature of the "relationship" that is to be established. Counsel for the Defendant submitted that, at the minimum, the requirement under s 29(b) for having "established a relationship" requires "at least the child knowing the person": T34.10 - T34.11.
In the Plaintiff's written Submissions in Reply, it is stated that "[WS's] relationship with [PGH], commenced & established itself from his 1st visit to Thailand in 2010 some 7 years ago & continued in 2012 during a 2nd Visit". In my view, the evidence relied upon supports the submission.
The affidavit made on 4 January 2017 of the Plaintiffs, also refers to SS and PGH having resided with WS in Thailand for a month between November 2012 and December 2012.
As has earlier been noted, SS and PGH resided with WS at their home in NSW for five months between 4 June 2014 and 4 November 2014. Therefore, at the time of completing her sole Consent, WS had resided with both Plaintiffs together for a total period of no more than eight months. During each of these periods, a relationship would have been established.
I have earlier referred to the views of WS as to the nature and extent of her relationship with PGH that she reported in her interview with Ms Starkey and in her own affidavit.
At the hearing, the Defendant acknowledged that meeting the requirement of being "cared for", as defined in s 54(2), to which reference will be made, may be more onerous than the requirement for simply having "established a relationship", particularly where the type of relationship required is not defined in the Act: T34.5 - T34.9.
Reading the evidence, I am satisfied that WS has established a relationship with PGH. There was no dispute that WS has established a relationship with SS.

1d. Whether WS has been cared for by SS and PGH, the proposed adoptive parents, for at least 2 years: s 54(2) of the Act

As earlier stated, in circumstances where a child is 12 or more years of age, and of sufficient maturity to understand the effect of giving consent, gives sole consent to his, or her, adoption by a proposed adoptive parent, or parents, and if the child has been cared for by the proposed adoptive parent, or parents, for at least 2 years, the consent of the birth parents, under s 52, is not required: s 54(2).
The evidence reveals that between June 2014 and November 2014, WS lived with SS and PGH, that she then returned to Thailand, but maintained contact with them; and then she returned to live with them in March 2016 and remained living with them (with the exception of two trips to Thailand in August 2016 and between 29 December 2016 - 1 February 2017) at least until she returned to Thailand in mid-June 2017.
In their written Outline of Submissions, SS and PGH argued that, as the reference in s 54(2) of the Act is to "parent or parents", it is sufficient for either one, or both, to have cared for the child "for at least 2 years".
It was further submitted that as s 54(2) does not go to any pains to limit "parent" to one adoptive "parent", nor to limit "parents" to two adoptive "parents", it is left open to the Court to broadly interpret whether the provision intends one or both in a two parent adoption.
Counsel for the Defendant submitted that the wording of this section supports an interpretation that where there are two proposed adoptive parents, both parents must show that they have each cared for the child for the minimum period of two years.
I respectfully agree. When one looks at the section, a child who has the required maturity and knowledge is able to provide sole consent, but that consent is for the adoption, where there is more than one proposed adoptive parent, by both of them: T42.16 - T42.19.
In the written submissions, PGH stated that this criteria is fulfilled because the Family Court orders are almost 3 years old; those orders were made after WS first came to Australia and started living with them, albeit, then, for only a few months; that the periods she has returned to Thailand should be considered irrelevant, since children in boarding school, for instance, do not cease to be in the care of their parents while at school.
In her written submissions, counsel for WS stated that to be "cared for" by someone does not require their immediate presence at all moments. This "care" and WS's relationship with SS and PGH was evident in: 1. The emotional attachment and support between WS and SS that has been life-long for WS. 2. The emotional attachment and support between WS and PGH that has developed since his marriage to SS. 3. The financial support that SS and PGH has each provided to WS, even whilst she was living in Thailand. 4. The decision of the Plaintiffs to bring WS to Australia and then to commence family law proceedings in which proceedings an order for parental responsibility was made. 5. Independent evidence from the Family Court Counsellor who observed WS with the Plaintiffs in 2014 and who observed that "[WS] clearly has a close relationship with the maternal [sic] aunt and the aunt has always been involved in her life. [WS] seems to be enthusiastic about living in Australia and has made friends and already overcome some initial difficulties in this area. [WS] appears happy to live with her aunt and uncle and no concerns were identified with her living arrangements". 6. The exercise of parental responsibility since the orders of October 2014 and regardless of whether WS was in Australia or Thailand. To this end the Plaintiffs have financed WS's care, lived with her on a day to day basis when permitted by Australia immigration laws, made arrangements for her education, maintained close contact even when WS has had to return to the family in Thailand (SS has accompanied WS for part of that period), and involved themselves in complex legal proceedings to push for WS to live with them as a family in Australia. 7. The various times living, in Australia, with the Plaintiffs as has been referred to previously. 8. The independent evidence of Mr Bembrick that WS "described her uncle as "'kind' and said they get on well together…The strength of her connection with her aunt in particular appears to be especially important to [WS], and it appears her aunt has been a consistent, caring and supportive presence since [WS's] earliest years, and WS enjoys a very strong bond with her". 9. The independent evidence of Ms Starkey who observed that the Plaintiffs "have an established pattern of caring for [WS], [SS] from [WS's] childhood, and [PGH] from the time he became part of the extended family through his marriage to [SS]". 10. WS's own words that since at least the family law orders of 2014 "I was happy that [SS] and [PGH] were legally responsible for me. [SS] would talk to me about what arrangements were planned for me so I felt like I got to say what I did and did not want but I don't really understand too much about all the paper work. I depend upon [SS] and [PGH] to do what is best for me".
Counsel for WS submitted that even whilst living on her own near school in Thailand, WS had been cared for by SS, who would call regularly, and with PGH's support, supported WS financially. It was this difficult living arrangement for WS that had prompted the Plaintiffs to bring her to Australia to (hopefully) live with them in the long term. They had at all times been motivated by their responsibilities to care for WS.
The affidavit of CS and BS referred to WS having been cared for by, or living with, SS, over many years. For example, they stated: "Our children were raised by [SS], her younger sister [NN] & their Paternal Grandparents throughout their primary years"; "[SS] stayed in our home compound for about 6 months, after which she got a job in Bangkok where she lived during the week, returning home on weekends to look after [WS] & her brother…When [SS] became aware she was unable to have children she virtually adopted [WS] and her brother as her own children"; and "When the children needed to attend school, they would stay with their Paternal Grandparents in our residential compound. [SS] spent weekends looking after them, and the children spent their school holidays with her in Bangkok."
The Defendant acknowledged that, at various times throughout WS's childhood, and prior to SS's migration to Australia, SS had cared for WS. For example, in addition to what has already been outlined above, in the affidavit made on 4 January 2017, of SS and PGH, it is noted that during a period in 2011 when SS had travelled to Thailand to obtain her partner visa, SS was said to have "stayed in her family village while waiting for her visa & again personally cared for [WS], including [WS's] stay in hospital to recover injuries (sic) following a motor vehicle accident".
The Defendant also identified several facts that were accepted as supporting a finding that PGH has cared for WS for a period of some years before she arrived in Australia or when she was living in Thailand, having come to Australia: "1. From 2010, the Applicants provided "continued financial support"; The financial support by the Applicants is supported by the birth parents. 2. PGH and SS planned for WS to live in a bedsit near her selective high school in Kalasin City and that they paid a family friend to provide her with supervision; this contention is supported by the birth parents. 3. When the friend was no longer available to provide supervision of WS, PGH suggested moving WS to Australia; this contention is supported by the birth parents. 4. PGH, and SS, spoke to WS nightly during the period in which she resided in Thailand from November 2014 onwards, whilst waiting for a further visa which would allow her to return to Australia."
The Defendant also submitted: "Some factors that support such a finding at this preliminary stage are: a. The financial support provided by the Applicants, in particular SS when WS was younger and since 2010 with the support of PGH; b. The emotional support and frequent communication between the Applicants, in particular SS, and WS; c. The Applicants, in particular PGH, have been instrumental in assisting WS in spending time in Australia and pursuing avenues for her to join them in living in Australia; d. The Applicants have given advice, made decisions regarding education and place of residence of WS; and e. The Applicants have parental responsibility for WS which was awarded to them on 15 October 2014."
The Defendant, in written submissions, also identified the factors that did not support such a finding, namely: a . "The Applicants and WS have not all resided together for the period of two years. They have lived together for a period of approximately 8 months prior to the filling of the Summons; b. The evidence supports that whilst WS has been cared for by the Applicants whilst in Australia, her grandparents have cared for her for significant periods of time whilst she lived in Thailand; and c. There is less evidence about the relationship between WS and PGH and the care he has given her."
The term "cared for" is clearly capable of a wide construction. There is nothing in the sub-section to suggest that the requirement is to be taken literally, in the sense that at all times during the two years, the child must be physically cared for by the applicants and be living with them. What seems to be required is that the applicants should arrange, supervise, provide and undertake, some direct, or indirect, care of the child. The term is "capable of flexible application, having regard to family circumstances and the primary best interests of the child": W v Secretary of State for the Home Department [2017] EWHC 1733 at [40].
The Act was amended in 2008. At that time, s 24(2) was amended to provide that a child was cared for by the applicants if the child "a) has been cared for by the applicant or applicants…" and the previous requirement that the child be "brought up, maintained and educated…" was removed. In the Explanatory Memorandum to the Adoption Amendment Act 2008 (NSW) it was noted that " … it will only be necessary to establish that the prospective adoptive parent cared for the person, as his or her child, before the person turned 18".
The second reading speech discussed the amendments to the eligibility to adopt and relevantly noted: "The intent of these amendments is to simplify the conditions that must exist before the Supreme Court can make an adoption order, legally formalising family arrangements where there is or has been an established caring child and parent relationship."
The Macquarie Dictionary defines the phrase "care for" as including "to look after; to make provision for".
The matter of Re Director General, Department of Community Services (NSW); Adoption of DR by DCB and HMB (2000) 26 Fam LR 107 provides an analysis of a similar factual situation but where the Court had to determine whether or not an Australian couple had "brought up, maintained and educated…", as required by the Act at that time. Re DR concerned a child who had resided with the prospective adoptive parents for only 8 months prior to his turning 18. The Court found that this requirement was satisfied.
In Re Sarah [2013] NSWCA 379, Ward JA (as her Honour then was) at [70] - [71], wrote: "Section 54(2) permits a child who is 12 years or more of age, and of sufficient maturity to understand the effect of giving consent, to give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least two years. As already noted, as at the time of the adoption orders, Sarah had been in the care of the first respondents for at least two years. Having regard to the contents of the s 91 report…, Sarah appears to have been assessed as of sufficient maturity to have understood the effect of giving consent to her adoption. Section 54(2) would therefore be applicable. Section 54(3), however, provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption unless the Court is satisfied that at least 14 days' notice of the application for the adoption has been given or the Court dispenses with the giving of such notice. Therefore, there remains the difficulty that no notice was given of the application for the adoption to the putative birth father and there was no dispensation with that requirement."
Section 54(2) does not specify that the two year requirement needs to be continuous. Therefore, the Defendant submitted that it was open to the Court to interpret this requirement as being that the Plaintiffs must show that they have cared for WS for a combined period of no less than two years during the course of WS's life prior to the filing of the Summons.
Furthermore, as earlier noted, the Act does not specify the date from which the 2 year period is calculated. The second Plaintiff submitted that s 90 suggested that the 2 year period was to be calculated at the point that the Court is deciding whether or not to make the order: T106.30 - T106.33.
Counsel for the Defendant submitted that as s 54(2) is concerned with the consent of the child, by the date on which consent to the adoption has been given by the child, the child should have been cared for by both adoptive parents for at least 2 years: T46.21 - T46.38, T47.38 - T47.44.
I do not have to decide which is the correct interpretation because, in all the circumstances, I am satisfied that SS, to a greater extent, and PGH to a lesser extent, had "cared for" WS for more than two years at the date of the filing the Summons (some months before the consent of WS). So far as SS is concerned, she did so whilst they lived in Thailand, and then when WS was in Australia prior to March 2016. Then, after SS came to Australia and married PGH, they both "cared for" WS whilst she remained in Thailand but did so more directly when WS came to live with them in Australia.
I am also satisfied that PGH partially supported WS financially for more than 2 years prior to the date of the filing of the Summons. In addition, he appears to have taken a very close interest in the communications between SS and WS, whilst WS was in Thailand and before, and after, her visits to Australia. He also appears to have supported SS in everything she did for WS. From her arrival in Australia, at various times, he demonstrated a commitment to her schooling and gave full attention to her academic progress. In these ways, he, too, has "cared for" WS for at least 2 years.

1e. If consent of WS' birth parents, CS and BS, is required, whether the consents, dated 3 March 2016, is effective

Although the Defendant acknowledged that CS and BS consented to the adoption of WS, it was not in dispute that their consent was ineffective at law: T87.14 - T87.42.
As I dealt with earlier in these reasons, under sections 29(a) and 58(2) of the Act, consent to the adoption of WS by her birth parents has not been given in accordance with the Act.
In order to dispense with the consent of the birth parents, I still need to find that to do so is in the best interests of the child: s 67(2) of the Act. I will return to this issue later in these reasons.

1f. Whether WS has established a stable relationship with SS and PGH: s 67(1)(d)

There was no dispute by the Defendant that WS had established a stable relationship with SS.
It was submitted, however, that the Court may have some hesitancy in finding that WS had a stable relationship with PGH, given the short duration of time they lived together and that Ms Starkey had noted that "the relationship between [PGH] and [WS] is emerging in a positive manner", particularly when no one whose evidence is relied upon, and who is independent, has had the opportunity to see PGH and WS together.
In response to this submission, PGH contended that the Defendant "does not challenge the Referee Statements provided by the Plaintiffs which do provide such evidence. And there is the Family Court Report, again unchallenged".
It was, however, acknowledged at the hearing by counsel for the Defendant, that the requirement of a stable relationship does not require a time period requirement of two years, and so it is open to the Court find on the evidence, which had not been challenged, that there is established a stable relationship: T38.37 - T38.41.
The Defendant also submitted that Ms Starkey had raised some matters which may give rise to concerns about PGH's suitability, which would affect the Court's conclusion about the stability of the relationship, including that: 1. "[PGH] volunteered that there was one incident when [WS] thought that [PGH] was "leering" at her and she told [SS]. He explained to [SS] that when he looks her up and down it is to make sure she is appropriately dressed for school and nothing more. 2. [WS] reported that sometimes [PGH] buys something for her that [SS] does not want her to have, like her second phone."
These concerns regarding suitability were raised with PGH, and considered by Ms Starkey, who, ultimately, concluded that both SS and PGH should be considered to be suitable as adoptive parents for WS. However, the Court may take the concerns into account when assessing the nature of the relationship between PGH and WS.
As I have already found that at least from March 2014 (and probably earlier), WS had been cared for by both SS and then since their marriage, by SS and PGH, this suggests stability of the relationship that exists between them.
Finally, I have also previously noted, and as was acknowledged by counsel for the Defendant at the hearing, that SS and PGH have had parental responsibility since 2014, which parental responsibility they have exercised. This, too, forms a basis for concluding that they have a stable relationship: T39.29 - T39.37.
In all the circumstances, I am satisifed that each of SS and PGH has had a stable relationship with WS.

3a. Whether the consent of the birth parents, CS and BS, is required.

In my view, in light of the findings regarding WS's sole consent, to which I will shortly come, and having determined that notice was given to them, the consent of CS and BS is not required.
In any event, if I am wrong, I would dispense with their consent under s 67(1)(d) of the Act.
By reason of s 8(2)(e) of the Act, the Court must still have regard to the wishes of the birth parents in determining WS's best interests. That is because, even if the child's consent to her adoption is freely given, the Court must be satisfied, as required by s 8(1), that an adoption order is, in fact, in her best interests, both in childhood and in later life.

3b. Whether the formal consent of the Plaintiffs is required, in accordance with s 52(a)(ii) and/or ss 29(a) and 53(1)(b)

The Defendant accepted that SS and PGH do not need to provide a formal consent, as they have parental responsibility for WS and because they are the proposed adoptive parents. I respectfully agree.
Furthermore, I would certainly infer such consent by virtue of their persistence in endeavouring to adopt WS and the steps they have taken, in various jurisdictions, to enable this to occur.
Even if I were wrong, I would, in any event, dispense with the consent of the Plaintiffs: s 67(1)(d) of the Act.
(I should mention that because SS and PGH are relatives of WS, the Defendant's consent to their adoption application is not required: s 87(2)(a) of the Act.)

3c. Whether the child is able to provide sole consent to her adoption, pursuant to s 54(2)

The Act provides for certain people to give consent to adoptions, depending on the circumstances of the case. Section 55 provides for the consent of the child to the adoption. The requirements of s 55(1) of the Act have been made out and WS has validly signed an instrument of consent to the adoption.
WS, who as stated, is almost 18 years of age, has given a child's sole Consent to adoption under s 55(1) of the Act. The copy of that Consent is Ex. B in these proceedings. She was counselled by a registered counsellor in that respect, and was provided with the Mandatory Written Information. As a result of WS having given such consent, the consent, under s 52 of the Act, of her parents, CS and BS, and of any person such as the Minister who has parental responsibility for her, is not required, provided that WS has been cared for by SS and PGH, the proposed adoptive parents, for more than 2 years: s 54(1)(c) and s 54(2).
In their Outline of Submissions, SS and PGH requested the Court either to accept the Sole Consent of the WS, and/or dispense with the consent of the natural parents, CS and BS. As more than 30 days has well passed since WS gave Sole Consent, s 89 is satisfied.
In oral submissions, the Defendant accepted that it would be open to the Court to find that s 54(2), "covers the field". That is, where s 54(2) uses the word "sole" with respect to consent, that could be interpreted as meaning the only consent needed in order for the adoption to go ahead is that of the child, as long as the other requirements contained within section 54(2) are found to be satisfied: T33.4 - T33.11.
Alternatively, as there was no dispute that both SS and PGH fall within the definition of a "relative of the child", the Defendant submitted that "in circumstances where you have someone [who] is old enough, mature enough, has the understanding about what they're accepting with respect to the adoption, and they've been cared [for] by the proposed adoptive parents for that period of two years, the Act is saying they are in a position to consent to the adoption, notwithstanding what other persons, as in birth parents or other people with parental responsibility may or may not say": T33.42 - T33.47.
WS, therefore, may give sole consent to the adoption given that she has been cared for by the proposed adoptive parents for at least 2 years (as per s 54(2)), as addressed above.

3d. If the answer to question 3(a) and/or 3(b) is yes, whether dispensing with those consents will promote the child's, WS', welfare and is in her best interests

As I have already found that the relevant parts of s 29 and s 54 have been established, the consent of CS and BS, the birth parents, is not required, and that WS may give sole consent to her adoption, it is not necessary for me to dispense with the consent of either the birth parents or the Plaintiffs.
I will deal with the issue of WS's welfare and best interests in this matter under the next question for determination.

3e. Whether the adoption of WS will promote WS' best interests having regard to: 1. WS' age, background and family relationships; 2. WS' relationship with her birth parents; 3. The attitude of the Applicants to the responsibilities of parenthood; 4. The nature of the relationship between SS and PGH and WS; 5. The suitability and capacity of SS and PGH to provide for WS, including her emotional and intellectual needs; 6. The alternatives to the making of an adoption order, being to maintain the status quo, and the likely effect on WS in both the short and long term of changes in WS' circumstances caused by an Adoption Order, so that adoption is determined to best meet the needs of WS as opposed to maintaining the status quo.

I have dealt with the factual matters in (i) to (v) above, so shall not repeat all of the facts stated earlier.
As stated, the wishes of WS have been expressed eloquently, coherently, and logically. Those wishes should be given full weight, given her age, maturity, level of understanding and background, particularly in the light of the life long relationship she has had with SS: s 8(2)(b) and s 90(1)(b).
WS has the age and, I have no doubt, the maturity to understand the effect of her adoption. I have also read statements attributed to WS which satisfy me that she has comprehended the effect of an order. There is a consistent thread in her views.
It is not suggested by the evidence that WS, over the years, has had no contact with CS and BS. They have remained in reasonably regular contact, bearing in mind the exigencies of their employment, with her.
Counsel for WS further submitted that WS's physical, emotional and educational needs are best served if an adoption order is made in favour of SS and PGH. Doing so will preserve her personal, family and cultural identity because she has a clear understanding of her family background (unlike a child adopted in infancy, for example) and because she shares her family, her first language, her religion and her cultural background with SS.
Ms Starkey observed that WS's long term needs are best served by an adoption order because "The option of WS 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".
Section 8(2)(d) has no application in this case.
Section 8(2)(e) requires the Court to consider the wishes of the birth parents. They are both supportive of the adoption proceeding as set out above.
Section 8(2)(f) invokes a consideration of WS' relationship with her parents, siblings and others. Her relationship with her parents is not close because they worked, and because she was raised by her grandparents and paternal aunts, particularly SS, effectively, in the absence of her parents. WS does not have a close relationship with her brother. They have lived separately for long periods and never together in a "conventional" nuclear family unit.
WS' close relationship with her paternal grandparents will continue. The making of the adoption order does not disrupt that relationship.
Section 8(2)(g)-(j) will be considered together because the evidence relating to each sub-section overlaps to a significant extent.
The attitude that SS and PGH bring to WS and the responsibilities of parenting her cannot be in doubt given the years they have supported her (whether living in the same country or not) and the manner in which they have pursued legal channels to have WS live with them in Australia.
Undoubtedly, they have the capacity to meet her physical and intellectual needs and SS has provided lifelong emotional support to WS. Indeed WS tells Ms Starkey that "the person she always turned to when she was growing up was [SS]".
PGH has his own history with his daughters from a previous relationship which, on one view, might raise concerns about his approach to the responsibilities of parenthood in relation to WS. However, Ms Starkey, the expert has considered this history and has not expressed the same degree of concern as was expressed by the Defendant.
In addition, counsel for WS highlighted the following matters: 1. Wherever the truth lies in relation to allegation and counter allegation from those earlier proceedings, they resolved via consent orders on October 2002 providing for one of the children to live with PGH (for at least a two year period). 2. During the 2014 Family Court proceedings the Department of Family and Community Services were invited to intervene in the proceedings concerning WS but elected not to do so, having told the Court "they hold no records in relation to the child and have no concerns in relation to this parenting application". 3. A copy of the family report prepared in the family law proceedings was forwarded to the Maitland Community Services Centre of the Department but prompted no child protection intervention with the family. 4. The Defendant does not submit that the adoption order should not be made (neither consenting to, nor opposing, the relief sought). 5. PGH's expression of genuine regret and remorse in his interview with Ms Starkey (and later email to her) and frank acknowledgement that "he feels desperately guilty now about what they [meaning he and his former partner] have done to their children".
Counsel for WS contended that there was no basis for concluding that WS is at risk of abuse in the household of the Plaintiffs.
Counsel for WS also submitted that WS wishes to be adopted by SS and PGH. The adoption will establish in law the reality that WS already knows: the Plaintiffs (but particularly SS) are the adults in her life who provide for her physically, but more importantly, emotionally, and who she relies upon for guidance and support.
WS's relationship with SS has been the most important attachment in her life to date, and since the Plaintiffs married in December 2010, PGH has shared some of the responsibility with SS for all of the important decisions in WS's life.
However, it is important to note that WS's wishes will not be determinative of the application for adoption, but given her age and maturity, it is submitted by counsel for WS, they are highly relevant to the decision that the Court must make.
In the written submissions, the Defendant contended that in determining what is in the best interests of WS, the Court may consider the following matters: 1. The purpose of the adoption order is to provide a greater likelihood that WS will be able to live permanently in Australia. 2. The Plaintiffs already have an order for parental responsibility, although this has not been sufficient to ensure WS's ability to live in Australia. 3. The making of an adoption order clearly has significant consequences. Amongst other effects, a child ceases in law to be regarded as the child of the birth parents upon the making of such an order: s 95(2)(d). 4. Traditionally the Courts have not granted relative adoption applications if the parents of the child are alive, or unless there are exceptional circumstances: Re Adoption of SS [2002] ACTSC 24; Re Director-General, Department of Community Services (NSW); Adoption of DR by DCB and HMB (2000) 26 Fam LR 107; [2000] NSWSC 22; and Re A & B (Adoption by Grandparents) (2003) 30 Fam LR 387; [2003] NSWSC 595). 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). 1. 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.) 2. 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. 3. 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. 4. WS has expressed a wish for the adoption order to be made. 5. 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. 6. The wishes of WS's parents is of significance in determining the best interests of the child: s 8(2)(e) of the Act.
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".
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.
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

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.
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.
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".
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.
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.
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.
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.
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".
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".
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".
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".
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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."
At least indirectly, WS has been involved in the litigation that SS and PGH have maintained.
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.
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".
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.
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.
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.
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.
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.
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.
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.)
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.
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.
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.
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.
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".
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".
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.
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.
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.
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.
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).
Nor is it an appropriate exercise of the Court's jurisdiction under the Act to make an adoption order.
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).
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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2017

Adoption Amendment Act 2008(NSW)

Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption Evidence Act 1995(NSW)

(2003) 30 Fam LR 387

(2000) 26 Fam LR 107

(1988) 12 Fam LR 263

(2007) 37 Fam LR 595

(2006) 36 Fam LR 142

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