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.