Adoption application 235/1955, re SJK
[2013] NSWSC 2006
•11 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Adoption application 235/1955, re SJK [2013] NSWSC 2006 Hearing dates: In chambers Decision date: 11 December 2013 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Provision of information regarding reasons for adoption. Decline to provide full name of the birth father.
Catchwords: ADOPTIONS - Entitlement of adoptee to receive prescribed information relating to birth parents held by an "information source" - where birth father not shown on original birth certificate, an "unacknowledged birth father" - unacknowledged birth fathers should not be revealed without their consent - information source precluded from supplying information identifying full name of birth father - request for provision of information regarding reasons adoptee was put up for adoption able to be answered without disclosing information that identifies unacknowledged birth father. Legislation Cited: (NSW) Adoption Act 2000 s 133, s 133H, s 134, s 136A, s 138, s 142, s 143
(NSW) Adoption Regulations 2003 regs 46, 55
(NSW) Births, Deaths and Marriages Registration Act 1995
(NSW) Child Welfare Act 1939 Part XIX
(NSW) Uniform Civil Procedure Rules 2005 r 56.12Category: Principal judgment Parties: Applicant: SJK File Number(s): 2013/A48 and 2013/A51
Judgment
On 1 April 1955, on the application of the Minister of Public Instruction under Part XIX of the (NSW) Child Welfare Act 1939, Roper CJ in Eq made an order appointing JFK and JBK the adopting parents of a child, then unnamed, to be known as SJK.
On 24 December 2012, a delegate of the Director-General of the Department of Family and Community Services issued a "Supply Authority" to SJK, authorising "information sources" to supply him with certificates and "other prescribed information". The Supply Authority was "restricted to information prescribed by the Adoption Act 2000, s 134 relating to an adopted person's rights".
On 13 March 2013, SJK made application to the Court for the provision of information regarding "the reasons why I was put up for adoption".
On 15 March 2013, the Adoption Information Unit of the Department requested the Registrar to provide to it any affidavits on file in relation to SJK's adoption, for the purpose of processing "the prescribed information" for SJK.
On 28 March 2013, the Registrar provided to the Unit "all the affidavits from the court file".
Also on 28 March 2013, the Registrar provided to SJK copies of the consent of the birth mother and the affidavit verifying her consent, two supporting affidavits of the departmental officer supporting the application, the Order of Adoption, the Notice of Application, the original (pre-adoption birth certificate of the child, the adopting parents' authority to the Minister to apply for an order of adoption in their favour in respect of the child, and the joint affidavit of the adopting parents. The identity of the birth mother is apparent from those documents. However, the birth father is not named on the original birth certificate.
The Registrar advised SJK:
The Court is unable to supply you with the Affidavit of [the birth mother] and [the birth mother's husband] in accordance with section 136A of the Adoption Act 2000. These affidavits have been supplied to the Department of Family and Community Services ... Please enquiry (sic) with the Department for the release of the documents to you.
The birth mother's affidavit of 7 February 1955, and her husband's affidavit of 7 October 1954, the subject of that comment, identify the birth father and the reason why the child was given up for adoption.
Apparently in response to a request from the Unit, on 3 April 2013 the Registrar informed the Unit of the name of the birth father as it appears from the birth mother's affidavit.
By letter dated 25 September 2013, SJK requests that "the information of my birth father" be released to him, to overrule the Unit for "not releasing the information of my birth father to myself because my birth mother did not name him on the Adoption of Memorandum". It is apparent from his application that he has been informed by the Unit of the putative birth father's first name - Harry (which accords with the records available to the Court) and also that he was 45 years of age at the time (which does not appear from the records available to the Court), so that he must have been born in 1909 or 1910. SJK also explains that although he had always suspected it, he only discovered that he was adopted after his adoptive mother and father had passed away (in February 1985 and July 2011 respectively).
It appears that the Adoptions Unit of the Department has previously informed SJK that his birth father was known as "Harry" and his age at the time of the adoption in 1955 was 45, which would mean that he was born in 1909 or 1910. The information in the court file confirms that his first name was "Harry" but is silent as to his birth date or any other particulars. The birth mother was aged 33 years at the time of the birth on 31 January 1955, and was therefore born in 1921 or 1922, and would now be about 92 years of age; the possibility that she is alive is therefore a real one.
At the time when they consented to the adoption order, the birth mother and her husband would have expected that their identity and reasons for consenting to adoption would have remained confidential. Since then, however, the law has taken a different view about the entitlement of adoptees to "prescribed adoption information", even in respect of adoptions which took place before the 2008 amendments, although not to the same extent as in respect of adoptions after that date (see (NSW) Adoption Act 2000 ("the Act"), s 133H, which has the effect that Division 2 applies to adoptions before the 2008 amendments, whereas Division 1 applies to adoptions after those amendments).
In respect of adoptions before 2008, Adoption Act, s 134, sets out the information to which an adopted person is entitled, relevantly as follows:
134Adopted person's rights
(1) An adopted person is entitled to receive (subject to this Act):
(a) the person's original birth certificate, and
(b) the person's adopted person's birth record, and
(c) any prescribed information relating to the person's birth parents held by an information source, and
(d) any prescribed information relating to a sibling or an adopted brother or sister of the person held by an information source.
...
(4) An adopted person is not entitled to receive any prescribed information held by an information source unless the adopted person produces to the information source an authority authorising the information source to supply the prescribed information issued by the Director-General.
Prescribed information is defined by s 133, as follows:
133 Prescribed information
(1) For the purposes of this Act, prescribed information is information of a kind prescribed by the regulations.
In this respect, the (NSW) Adoption Regulations 2003 relevantly provides as follows:
46 Entitlement of adopted person-information prescribed under section 134
...
(1) An adopted person is entitled to receive:
(a) any relevant information that is held by an information source about the physical and intellectual attributes, educational and vocational qualifications, social and cultural background, health and welfare, family and other relationships, religious beliefs, hobbies and interests of a birth parent, sibling, grandparent, aunt or uncle of the adopted person and that will give the adopted person knowledge of his or her origins, and
(b) any of the following information held by an information source:
(i) date on which the person was placed with adoptive parents,
(ii) date of adoption order,
(iii) copy of the instrument of consent to the adoption,
(iv) copy of the request to make arrangements for the adoption,
(v) copy of adoption order or memorandum of adoption (or both),
(vi) reason the person was given up for adoption (as stated by the birth parent or recorded by the information source before placement for adoption),
(vii) copies of medical reports of examinations of the adopted person made before the date of the adoption order,
(viii) a document certifying particulars of the birth of a birth parent,
(ix) a document certifying particulars of the marriage of a birth parent,
(x) a document certifying particulars of the death of a birth parent,
(xi) messages given to the information source by a birth parent for the adopted person if clause 57 is complied with,
(xii) any other document, report, photograph or recording relating to the adopted person that contains information about his or her origins.
...
(3) Despite subclause (1), an adopted person is not entitled to receive:
...
(b) information consisting of the family name of a birth parent, sibling, grandparent, aunt or uncle unless that information is information that must or may be included in the Register kept under the Births, Deaths and Marriages Registration Act 1995 that the adopted person is otherwise entitled to receive under the Adoption Act 2000 or an access policy.
Accordingly, prima facie, SJK, as an adopted person, is entitled to receive prescribed information relating to his birth parents held by an information source (s 134(1)(c)), including the reason he was given up for adoption (as stated by the birth parent or recorded by the information source before placement for adoption) (reg 46(1) (b)(vi)) and any other document, report, photograph or recording relating to the adopted person that contains information about his or her origins (reg 46(1)(b) (xii). However, he is not entitled to receive information consisting of the family name of a birth parent, unless that information is information that must or may be included in the Register kept under the (NSW) Births, Deaths and Marriages Registration Act 1995 that he is otherwise entitled to receive. In addition, by s 134(4), he is entitled to do so only if he produces to the information source an authority authorising the information source to supply the prescribed information, issued by the Director-General.
In the Act, "information source" is defined as follows:
information source means:
(a) the Department of Family and Community Services, or
(b) the Ministry of Health, or
(c) an accredited adoption service provider, or
(d) a hospital, or
(e) the Office of the Registrar, or
(f) the Supreme Court, or
(g) any other institution, body or person prescribed as an information source for the purposes of this Act.
Accordingly, the Court is an "information source" for the purposes of the Act.
The Director-General has a limited discretion to decline to issue an authority, as follows:
136A Discretion to withhold supply or to supply subject to conditions
(1) The following persons may request the Director-General to act under this section:
(a) an adopted person who is 18 or more years old,
(b) a birth parent,
(c) an adoptive parent of a person who is less than 18 years of age,
(d) an adoptive parent of a person who is 18 or more years of age and who has consented to the request being made.
(2) The Director-General may, at the request of a person referred to in subsection (1):
(a) refuse to issue an authority authorising an information source to supply adoption information to which an entitlement arises under this Division, or
(b) supply such information subject to conditions specified in writing by the Director-General.
(3) The Director-General may refuse to issue an authority to supply adoption information under this section only if, in the opinion of the Director-General, exceptional circumstances exist that make it necessary to do so to prevent serious harm to a party concerned.
(4) Conditions that may be imposed by the Director-General under this section include conditions requiring the person entitled to the adoption information to undergo counselling by a person specified by the Director-General before the adoption information is supplied.
(5) The Director-General must deal with a request under this section in accordance with any guidelines prescribed by the regulations.
(6) An information source must not supply any adoption information that is the subject of an authority to supply adoption information imposing conditions on its supply unless the conditions are complied with.
(7) The Director-General cannot delegate his or her functions under this section to any person other than an officer of the Department.
In this case, the Director-General has not exercised a discretion to withhold supply under s 136A. Nor did he impose conditions. Section 136A does not authorise an information source to withhold information within the scope of a supply authority in the absence of non-satisfaction of imposed conditions. It provided no basis for withholding the affidavits that the Registrar did not supply to SJK.
However, s 142 provides that an information source must comply with any relevant guidelines:
142 Guidelines for release of prescribed information etc
An information source that supplies any adoption information pursuant to an application under this Act is required to comply with any relevant guidelines prescribed by the regulations.
The Adoption Regulations prescribe the following relevant guidelines:
55 Guidelines under section 142 for the release of prescribed information relating to unacknowledged birth fathers
(1) In this clause:
unacknowledged birth father means the birth father of an adopted person who:
(a) is not shown on the adopted person's original birth certificate as the person's father, or
(b) is not a person whom the Director-General, Registrar or another information source is entitled to presume, under any law (including a law of another State or Territory or the Commonwealth) to be the adopted person's birth father.
(2) An information source must, if it considers it to be necessary or appropriate to do so, obtain assistance from the Director-General or the Registrar to assist in its determination of whether it is entitled to presume a person to be an adopted person's birth father.
(3) An information source is not to supply prescribed information relating to an unacknowledged birth father if, in the opinion of the information source, the information could be used to identify the unacknowledged birth father or a relative of the unacknowledged birth father, except with the consent of the unacknowledged birth father.
The birth father in this case, not being shown on SJK's original birth certificate as his father, is an "unacknowledged birth father" for the purposes of reg 55. Accordingly, an "information source" is prohibited from supplying prescribed information relating to him if, in the opinion of the information source, the information could be used to identify the unacknowledged birth father or a relative of the unacknowledged birth father, except with the consent of the unacknowledged birth father. I am of the opinion that information identifying the full name of the birth father could be used to identify him. Accordingly, an information source is precluded from supplying that information.
As I have observed above, the Court is an "information source" for the purposes of the Act.
Section 138 provides that applications for the supply of prescribed information held by an information source are to be made to the information source:
138 Application for supply of adoption information
...
(4) An application for the supply of prescribed information held by an information source is to be made in writing to the information source.
(5) The regulations may make provision for or with respect to the making of applications under this Part.
However, particular provision is made in respect of Court records, as follows:
143 Access to court records
(1) A person is not entitled to receive prescribed information under this Act from records of proceedings in the Court relating to the adoption of a person, except as provided by this section.
(2) A person may apply to the Court for the supply of the information.
(3) The Court or a proper officer of the Court may supply the information to the person.
(4) Rules of court may be made for or with respect to orders under this section.
While Rules have been made ((NSW) Uniform Civil Procedure Rules 2005 r 56.12), they do not impact relevantly on the matters for consideration here.
As the Director-General has given a supply authority in this case, it is unnecessary to decide whether s 143 is subject to s 134(4) and s 136A(6), requiring the prior authority of the Director-General. The inclusion of the court in the definition of "information source" would suggest that it is. However, there are contrary indicia. First, the presence of s 143(2) enabling an application to be made to the Court, and more particularly s 143(3) enabling the Court to supply the information (without any qualification), seems to contemplate a process that involves only an application to and decision by the Court. Section 143(2) would be unnecessary if s 143 did not "stand alone", as applications to an information source are otherwise authorised by s 138(4). Section 143(3) would be unnecessary if the same conditions applied to the Court as to any other information source. I incline to the view that s 143 indeed does stand alone, and that the authority of the Director-General is not a precondition to the release by the Court of "prescribed information", so that, in the light of s 143, s 134(4) must be read as referring to an information source other than the Court - for which specific provision is made in s 143.
For present purposes, the more relevant issue is whether the Court, in considering an application under s 143, is constrained by any guidelines under s 142. On the one hand, the Court being within the definition of "information source", s 142 apparently applies to it. On the other, if the Court as an information source were to be constrained by the same restrictions that apply to other information sources, it is not apparent why special provision would be made by s 143 in respect of applications to the Court. Again, I think s 143 "covers the field" in respect of applications to the Court, so that the Court is not constrained by guidelines under s 142.
That said, it seems to me that the Court would normally have regard to considerations that inform the Director-General's discretion to withhold an authority to supply information, and to guidelines prescribed under s 142. Relevantly, reg 55 reflects a policy decision that the identity of unacknowledged birth fathers should not be revealed without their consent. I see no reason why the Court should depart from that policy judgment.
I therefore decline to provide information as to the full name of the birth father.
However, SJK's request for the provision of information regarding "the reasons why I was put up for adoption" can be answered, without disclosing information that identifies the unacknowledged birth father. The following information can be provided, as to the "reason the person was given up for adoption (as stated by the birth parent ...)".
The birth mother was married in 1941. She separated from her husband in January 1954. During the separation, she had an association with another man, the birth father Harry. She became reconciled with her husband in late 1954. Her husband was not prepared to have Harry's child in his home, and the birth mother decided that the child's best interests would be served by his being adopted by persons chosen and approved by the (then) Child Welfare Department.
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Decision last updated: 20 February 2014
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