Robb v Director General Department of Community Services & Ors

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4126/98 - JAMILA ROBB V DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES & ORS

JUDGMENT 1 HIS HONOUR: The plaintiff, who is the maternal grandmother of a child, Isabella, who was born on 7 April 1998, seeks that Isabella be made a ward of court and that the plaintiff have her care and control. 2 In order to retain as much anonymity as possible, I will refer to the parties by their first names. 3 Isabella's parents are the second defendant Trina, the plaintiff's youngest child, who is now aged 21, and the third defendant, Domenico. The second and third defendants are not married to each other and they appear to be living in different homes, though the third defendant says he spends a lot time in the second defendant's home. 4 The second defendant has another child Theron, a boy now aged three, having been born on 31 August 1995. The third defendant is not Theron's father, as the second defendant only met him in 1997. Theron is currently living with Trina. 5 On 7 July 1998 the second and third defendants signed a general consent for Isabella's adoption. They indicated a specific desire that Isabella be brought up in the Christian faith and not be placed with adoptive persons of the Muslim faith. Significantly the plaintiff is of the Muslim faith. 6 The plaintiff did have the care and control of Isabella for two weeks from about 16 June 1998. I will deal with the circumstances of that in due course. 7 From July 1998 the plaintiff reluctantly relinquished Isabella to the Department of Community Services, the first defendant in these proceedings, and she has been in the care of approved foster parents since at least September 1998. 8 Unfortunately, it became apparent in late 1998 that Isabella is suffering from some serious health problems. Just how serious they are and what impact they will have on her life is not yet clear, but it may well be that as a result of what was found on Isabella's CT scan that she will have severe developmental problems, to say the least. 9 The application made by the plaintiff by her summons of 1 October 1998 is for wardship. Practically speaking, Isabella's fate will almost certainly be adoption, one way or the other. Refusal of this application may well lead to adoption of Isabella by one of three couples whom the Department has assessed as being suitable adopting parents. Granting this application may well lead in due course to a successful application for adoption by the plaintiff, depending on what bonding takes place between the plaintiff and Isabella over the next few years. 10 This Court has wardship jurisdiction, which is part of its inherent jurisdiction and exercised in two distinct types of cases. First, there is protective wardship, where the court makes sure that minors are not preyed upon. Under protective wardship one makes sure that the minor has the rights, but no more than the rights, of any other citizen and bears in mind not only the minor's rights but also the rights of others. 11 The second type of wardship is custodial wardship, where the welfare of the child is paramount; as to the difference between the two classes of cases see S v McC [1972] AC 24, 48. 12 However, the fact that the welfare of the child is paramount does not mean that all other factors are irrelevant. One takes into account, for instance, other factors such as the attitude and feelings of those close to the infant. 13 Secondly, when one is working out the welfare of the child one does not limit oneself to financial welfare or to see which of a number of competing persons is the richest or most able to provide the best material comforts for the child. As Lord Esher MR said over one hundred years ago in R v Gyngall [1893] 2 QB 232, 243:

"The Court has to consider ... the whole circumstances of the case ... . Prima facie it would not be for the welfare of a child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up, as one may say, from its mother's lap in one form of religion, it would not, I should say, be for its happiness and welfare that a stranger should take it away in order to alter its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich, that, without regard to any other consideration, to the natural rights and feelings of the parent, or the feelings and views that have been introduced into the heart and mind of the child, the child ought to be taken away from its parent merely because its pecuniary position will be thereby bettered. No wise man would entertain such suggestions as these ... . It is the welfare of the child in the largest sense of the term that is to be considered."

14 Thus I have to assess whether, bearing in mind the welfare of the child in the largest sense of the term, would an order for wardship be preferable to leaving the matters the way that they are? 15 In one sense the making of a wardship order will be permanent until the child becomes sixteen. However, in a practical sense the order will not necessarily last that long for two reasons. First, the court will exercise regular superintendence and require regular reports as to the child's welfare and, secondly, as I said earlier, the probabilities are that within the next five years the child will be adopted under the Adoption of Children Act 1965. 16 It is necessary to look at some of the history of the persons involved in this case. The plaintiff is now 46 years of age. She has four children one son and three daughters. Trina was born on 31 December 1977, and so is now 21 years of age. The plaintiff and Trina's father separated in 1984. Trina initially lived with her father, but then went and lived with her mother. 17 In 1993 there were one or two incidents between the plaintiff and Trina. The plaintiff says that the major incident was that Trina stayed away from her home and, contrary to the rules, went to premises occupied by Timezone. Her mother thought that Trina was at her father's house, and when she found her at Timezone she grabbed her by the hair and attempted to take her home. The police intervened. The plaintiff says that any tugging of the hair was simply because the hair was the nearest place to tug and that in due course the mother and daughter were hugging each other. 18 The other incident that happened about the same time was that the plaintiff encouraged, it would seem, a man of the Muslim faith from Jordan or Syria in his early 20s to inspect Trina to see whether she was suited for matrimony. This appears to be culturally correct in the Muslim faith, but it was something that Trina did not find acceptable. Trina reacted by leaving the home. 19 Trina says that she has been away from her mother with virtually no communication for about five years. The plaintiff says that that is not so and that there have been many contacts. 20 Trina gave birth to Theron on 31 August 1995. 21 After the birth of Isabella in April 1998 Isabella was left with a Mr and Mrs D by way of an informal adoption arrangement. It would seem that the Department came to hear about this and was not particularly happy, and made that clear to Trina. Trina spoke to her sister Jasmein and on 16 June 1998 Trina and Jasmein were parties to an arrangement of delivering the child to the plaintiff. 22 Trina informed the Department and on 19 June 1998 the Department wrote to the plaintiff saying that they were concerned that Isabella was in an illegal placement, but "as they have now been informed that Isabella has been placed in the care of her grandmother the Department no longer has concerns about Isabella's legal status". However, they said they would carefully watch what was happening. 23 I have seen Trina in the witness box. It may be that she was having a day when she was not feeling particularly happy with the world, and may not have given evidence to her best advantage, but she did not come across as a very likeable person at all. She seemed particularly vindictive towards her mother. It may be that she considers herself to have good grounds to be in that situation, but certainly a sort of viciousness against her mother came through from her evidence. She did admit, however, that the plaintiff was experienced in child care. 24 It seemed to me that it was more likely than not that the reason why Trina delivered up Isabella to the plaintiff was more a means of getting the Department off her back, if I can use that expression, than with any genuine assessment that the child would be better with her grandmother than with Mr And Mrs D or anyone else. However, I really do not need to pursue that very far because it is only a peripheral matter. 25 On 1 July 1998 there was an incident at the Bankstown Railway Station, which I do not need to go into in detail, but shortly thereafter the child was put into the care of the Department and on 7 July 1998 Trina and Domenico signed adoption consent forms. As I say, they particularly specified that the child was not to be brought up as a Muslim. 26 The plaintiff gives a different story generally. She says that in mid-June 1998 Trina left Isabella with her on the basis that she would be cared for indefinitely; that she was happy to do this and although she has had differences with Trina there is still an open and loving relationship between them and she is prepared to permit Trina to dictate wishes as to the upbringing of the child, to a certain extent, including the child's religious upbringing, even though the plaintiff herself is strongly of the Muslim faith. 27 I do not really think that there is much purpose in going into the evidence as to what happened in June and July 1998. What is significant, however, is this, the officers of the Department quite clearly accepted virtually everything Trina said and gave little credence to anything the plaintiff said. 28 When the matter first came before me for hearing on 11 March 1999 I heard the evidence of the plaintiff, Trina, Domenico and an officer of the Department. Of the three I thought that Domenico was more likely to be correct and presented as quite an articulate and thoughtful young man. 29 Trina, as I said, appeared to be vindictive. On the other hand, the plaintiff appeared to have tremendous optimism as to a rosy future with Isabella, casting aside as just unlikely many of the problems that may well occur. 30 The departmental officer, however, gave the impression to me that she had found the facts solely in the way Trina had put them, without exception, and had made her assessment of the plaintiff on that basis. I thought, in view of my own assessment of Trina, that this was probably unwise and also that the plaintiff deserved to have an impartial assessment made. I contemplated making an order for wardship so that I could ensure that the plaintiff got a fair deal. 31 However, there was not time to finish the case that day and I mouthed some of those thoughts. I had been told that the Department was ready to reassess the situation, provided that the summons was dropped, and I thought that this was again unfair to the plaintiff. However, when the matter did not finish on 11 March a general agreement was reached between the lawyers that the plaintiff would be assessed as a potential adopting parent by a person to be agreed on between the parties; that I would have that report in due course and that the Department would consider the matter after the report was in. 32 Although there were some glitches, in due course the report was made by a clinical psychologist Mary Anderson and that is Exhibit DX03. That report was seen by the Supervisor of Permanent Care with the adoption unit of the Department and she is of the view, following that report, that the Department's attitude to the plaintiff remains the same. The Department does not favour this application nor at this stage adoption of Isabella by the plaintiff. 33 In one sense I have fulfilled my task. The law generally gives to the Department, and to the Director General as the guardian of the child, the determination of what is in the child's interest. This court has its inherent power, its parens patriae jurisdiction, but that is a reserve jurisdiction to be exercised in time of need or where in consequence the court sees that it needs to intervene. It is not exercised unless the ordinary processes have somehow or other miscarried; that is to say whilst the court has jurisdiction to intervene it exercises its discretion not to intervene, save in those cases. One reason is that the legislature has primarily committed the matter to the Director General and, secondly, questions of costs are relevant. 34 However, as the matter has been fully argued, I will deal with the respective contentions. Mr M Anderson of counsel for the plaintiff puts that this is a case where the plaintiff has shown that it is best for the child that there be a wardship order and in due course possibly adoption of Isabella by the plaintiff. 35 He puts that the plaintiff herself was adopted as a child. She went through the trauma of adoption and not knowing her roots and she is convinced that it is in the child's best interest that the child be kept within the family circle. She says that Trina is, for the moment, exaggerating the rift in relationships between mother and daughter and the plaintiff suspects that that is because of pressure that was being put on her by a third party, rather than that being her true feelings. 36 The plaintiff says that the question of her being a Muslim is just a red herring. She says that she is prepared to let the child develop with religious instruction from others, and that she will not compel the child to follow in the Muslim faith. She says that with the assistance of the appropriate government department despite her present situation, in which she is sharing a house, she will move into public housing with appropriate accommodation for the child; that she genuinely loves the child; that she has already cared for the child for a couple of weeks; (the mother concedes that the plaintiff is an experienced parent). Further, she understands the child will need medical treatment, she is prepared to give her that treatment and both the short and long term interests of the child are to be with the plaintiff. 37 Mr Bourke of counsel appeared for the Department on 11 March and Mr Singleton, solicitor, appeared today. Both very carefully and fairly summarised the problems that the Department sees in making this order. 38 I think it is probably as good a way as any to go through the eleven issues that Mr Singleton raised to come to an assessment of what is in the interests of the child. I will list the issues first and then deal with them one by one.

1. The severance of the biological family. 2. The religious issue. 3. The parenting ability of the plaintiff. 4. The relationship of the plaintiff and the biological mother. 5. The capacity of the plaintiff to deal with the child's medical problems. 6. Accommodation and housing. 7. The problem of double severance. 8. The preference of the child's natural mother. 9. The intergenerational issue. 10. The relationship of the plaintiff and the Department; and 11. The capacity of the court and the Department to make an assessment of adoptive parents. 39 1. As I have said earlier, I consider that it is a very strong factor that, if possible, children should remain within their biological families. They there can develop natural relationships with blood brothers and sisters and with uncles and aunts, and the relationship by blood does, probably because of compatibility factors and otherwise, very often lead to a happier child generally. 40 Thus I share the plaintiff's views, which she has formed as a result of being adopted herself, of the general unsuitability of being removed from the biological family. This factor is strongly in the plaintiff's favour. 41 2. The religious issue really falls into two parts. The first is whether the biological parents have made a valid assessment of what is good for the child's religious upbringing, or whether they have just said that she is not to be a Muslim so as to exclude the plaintiff from any possible adoption. 42 I believe that the truth is closer to the second proposition than the first, but that when one analyses it properly the experience with the plaintiff has probably led to the determination that the child should not be brought up a Muslim, rather than this being just a statement made to spite the plaintiff. 43 Although Trina herself had no religious upbringing, she says she has found Catholicism and she wants her child to be brought up in that religion. As I said recently in Re C & The Adoption of Children Act, 15 November 1994, unreported, the biological parent's specification of the religion in which she wishes her child to be brought up is a factor which is not to be lightly ignored. See also Re M (1967) 87 WN (Pt 1) (NSW) 48. On the other hand, I agree with both Mr Anderson and Mr Singleton when they say it is not an issue which would veto an adoption by a person who was not of the religion that the mother specifies, and authorities such as Re E [1974] 1 NSWLR 739 go along with this. 44 The other part of the religious issue is the capacity of the plaintiff to comply with the mother's wishes. I have briefly set out what the plaintiff says about this matter, that is that she will not impede the child being brought up in the Catholic religion and will allow her to have religious instruction from others. On the other hand, the plaintiff has firm religious views herself and there is evidence from an expert in Islamic studies that the Koran is the manifesto of how Muslims must endeavour to be, think and do and to pass on the faith to their children and their children's children is what God requires of them. Accordingly, he opines, either the plaintiff herself or those whose influence will be strong over the plaintiff in religious matters will feel considerable pressure not to honour the understanding and have the child brought up in the Muslim faith. This is a factor to take into account. 45 3. As to the parenting ability of the plaintiff, there is evidence that she has brought up four children and that she has experience in child care. However, there is also the incidents between the plaintiff and Trina in 1993. The Timezone matter is perhaps explicable, but the Muslim man episode is not so. It is quite clear from Exhibit PX01, which is the Department's notes on the incidents and later, that the Department did not consider that the plaintiff emerged from those incidents wholly without blame. There is also the problem that after her separation the children or some of the children elected to live with the plaintiff's ex husband. 46 Thus there must be some suspicion about the parenting ability of the plaintiff. 47 4. As to the relationship between the plaintiff and the biological mother, my view is that although I have some distrust of Trina's evidence I believe that the plaintiff is adopting an overly optimistic view as to the relationship. The evidence indicates to me that there has been little contact over the last five years and the handing over of the child was to play off the Department against the plaintiff, rather than anything else. I hope, but cannot see, any evidence of the fact that the relationship may get better, but I think that if things stand as they are at the moment there is sufficient ill-feeling, at least on Trina's side, for the relationship not to be normal. 48 5. As to the child's medical problems, as I have said earlier these may well be severe, but no-one knows yet. Mr Singleton said that when one reads Mary Anderson's report (DX03) one gets the flavour that the plaintiff was often expressing the thought that she still wanted to care for Isabella and that she would make arrangements for her care, but she did not really show any deep appreciation of just how significant those problems might be and just what strain might be involved. 49 6. So far as accommodation is concerned, at present the plaintiff is a "sub-tenant" with one room in a house which is rented from the Housing Commission by a gentleman whom the plaintiff describes as her "flatmate". There is no evidence as to how the flatmate would appreciate or not appreciate a young child around the house. 50 However, Mr Anderson says that really this is just a temporary matter as almost certainly if she does have the care and control of the child the plaintiff will get some public housing. I think that comment is probably right. 51 7. The child has been with foster carers for ten months and Mary Anderson's report says that she has been stabilized in her current placement and is rapidly attaching to her current carers. She goes on to say that Isabella is likely to experience some distress at being moved and movement to long term placement needs to be carefully planned with some intensive introductory period. 52 Mr Singleton says if this application does not succeed then the probability will be that the Department will make its assessment of the best adopting parents for the child and she will then move from her foster parents once to the care of those new people. It may be that something will go wrong and she will have to be moved again, but the odds are against it. 53 On the other hand, if the child is now moved to the plaintiff's care and then in due course to other adopting parents there will be a double severance and this will affect the child emotionally much more. An answer to this is, of course, that the child may never move from the plaintiff's care because the plaintiff may adopt her. However, it seems to me that on balance this point goes in favour of the Department. 54 8. The preference of the natural mother is for adoption by outsiders and I agree with Mr Singleton that this factor has to be taken into account. 55 9. The intergenerational issue. This Court takes the view that it should be extremely careful before it makes an adoption order in favour of an aunt or a grandmother for the reason that the child gets confused as to its familial relationships. In England in Re DX [1949] Ch 320 and in this Court in Re X (1964) 81 WN (Pt 1) (NSW) 335, it was said that an order for adoption in favour of a child's grandparents will only be made in exceptional circumstances while the child's mother is alive. I considered a similar case recently in Re W [1999] NSWSC 662 in connection with an adoption by an aunt. 56 However, as Mr Anderson has pointed out, there have been, despite that general rule, adoptions by grandmothers which have been ordered by the court and he gives as an example the decision of Waddell J in Re The Adoption of Children Act (1979) 5 Fam LN 15. Recently too in Re T [1995] 3 NZLR 373 Tompkins J said that there was no such general proposition that adoption orders should only be made in favour of grandparents in exceptional circumstances and particularly in connection with people of Samoan background one approaches the matter without any such general rule. Despite Re T, it does seem to me that the general rule that has been adopted in this State and in England is a salutary one and is generally supported by the evidence of psychologists that has been received in adoption matters over the years. 57 Again it is not a point upon which the plaintiff who is a grandmother must fail, but it is certainly one that goes against her. 58 10. The relationship between the plaintiff and the Department is not good. Whose fault it is does not matter. Because of the child's medical problems, the Department will be involved in her nurture at least in the foreseeable future and it does not help the application if there is that bad relationship. Mr Anderson says that once this Court has vindicated the plaintiff and given her the child she will be happy personally and with the Department, but I think, with great respect, that is a little too optimistic. 59 11. The probabilities will be that if the child is adopted outside the family she will be adopted by a couple, rather than by a single woman. The maxim Mr Singleton gave me of "better two parents than one" is, I think, one that fits in with the policy of the Adoption of Children Act 1965. Again, this is not a point which bars an application because the Act does allow for adoption by one person alone under s 19(2) but, again, it is something which makes one hesitate. 60 Having listed those eleven points one must make an overall assessment as to whether the order for wardship is in the child's interest. 61 It seems to me that the plaintiff starts off ahead as she is the biological grandmother and the child will stay within the family, but I also consider that the assessment of the other points means that it has not been demonstrated that it would be best for the child to go with the plaintiff as the carer and controller under the wardship of this Court and, accordingly, the summons must be dismissed. 62 Since I delivered my reasons there has been discussion on the question of costs which is a very difficult one. Mr Singleton submits that because the Department was successful it should get its costs. Mr Anderson, on the other hand, says that this was a case where an individual with small means was suing a government department because there was no other way in which she could get redress and she has to a degree been vindicated, even though when things are partially assessed she still lost. 63 Although I think the general principle of the successful party getting his or her costs with the unsuccessful party paying those costs does apply in this sort of case, the authorities tend to suggest that other factors also come into play. In cases between husband and wife over custody the court has often taken the view that orders against wives should often not be made. In many cases wives were put off from seeking custody merely because their husbands had more money and they would be bankrupted if they lost. On occasion the court has ordered the father should pay the costs of an application by the mother for custody in which she was unsuccessful. Often too no order was made for costs such as in Calder v Charlton (1983) 9 Fam LR 285, where both sides had made highly coloured allegations against each other, some of which succeeded and some of which did not. Again when there is a fight over wardship between two parties who are related to the child, a factor in the equation is that it is not in the child's interest to further alienate the parties by making an order for costs; Jolley v Payne (1981) 7 Fam LR 81. 64 Insofar as this was an application of an administrative law matter, the ordinary rules as to costs would seem to apply, save that there is some authority for the proposition that private citizens should not be dissuaded from taking actions against departments when something is awry for fear of having to pay costs. 65 I have wavered from side to side, but I think on balance that the plaintiff should pay two-thirds of the Department's costs. I say two-thirds because I do think that some of the material before the court and some of the investigation that went into this case really needed to be done in the interests of the child. That material includes Mary Anderson's report. I also bear in mind that at least up to 11 March there was some genuine apprehension by the plaintiff that she was not getting a fair go. I do not think that it is really expedient to say anything more than that.

Last Modified: 07/27/1999 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.