Adoption of G

[2022] NSWSC 631

Supreme Court

New South Wales

Medium Neutral Citation:

Adoption of G [2022] NSWSC 631

Hearing dates:

On the papers, submissions received 10 & 17 May 2022

Date of orders:

17 May 2022

Decision date:

20 May 2022

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Application for orders allocating parental responsibility to the Secretary pursuant to s 78 of the Adoption Act 2000 (NSW) refused

Catchwords:

FAMILY LAW – children – adoption – whether a declaration should be made to the effect that the Secretary holds parental responsibility for the child pursuant to s 78 of the Adoption Act – where parental responsibility for the child will rest with the Secretary pursuant to s 75 of the Adoption Act if no orders made

Legislation Cited:

Adoption Act 2000 (NSW)

Adoption Regulation 2015 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Category:

Procedural rulings

Parties:

The Secretary, NSW Department of Communities and Justice (Plaintiff)

Representation:

Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s):

2022/133956

Publication restriction:

This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

Judgment

1. The Secretary, NSW Department of Communities and Justice (the “Secretary”), seeks an order pursuant to ss 78(2) and 78(3)(b) of the Adoption Act 2000 (NSW) (the “Act”) that the Secretary continue to hold parental responsibility for the child, who I will call “G”, for a period of 12 months, or until further order, whichever is earlier.

2. G was born in November 2020.

3. G’s father, as recorded on her birth certificate, is GB (the “Father”).

4. G’s mother, as recorded on her birth certificate, is MM (the “Mother”).

5. Prior to G’s birth, the Mother expressed a wish for G to be placed for adoption. At that time, and also following G’s birth, the Mother was provided with information regarding adoption and other long-term permanency options.

6. On the day G was born, the Mother signed a Temporary Care Arrangement in respect of G, pursuant to s 151 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the “Care Act”).

7. From that time until 14 May 2021, G was under the care and responsibility of the Secretary.

8. G remained in hospital until 16 December 2020 due to medical issues.

9. On 16 December 2020, following her discharge from hospital, G was placed with temporary authorised foster carers.

10. On 24 February 2021, the Mother and Father signed a second Temporary Care Arrangement in respect of G for a further period of three months. It was noted in the second Temporary Care Arrangement that the extension was sought to allow the parents to complete pre-adoption counselling.

11. On 27 February 2021, G was placed with different temporary foster carers. G remained in this placement until 12 April 2022, when she transitioned into the care of Mr and Mrs L (collectively, the “Proposed Adoptive Parents”).

12. The Mother and Father have each provided formal consent to G’s adoption in accordance with s 53 of the Act and cl 80 of the Adoption Regulation 2015 (NSW). Neither parent has revoked their consent.

13. The Secretary accepts that the proposed order is unlikely to affect the eventual adoption application that it is expected the Proposed Adoptive Parents will make in relation to G.

14. At present, the Secretary has parental responsibility for G pursuant to s 75 of the Act.

15. The Secretary has submitted:

“If [G’s] placement with [the Proposed Adoptive Parents] progresses as well as hoped, the Secretary will make an adoption application with [the Proposed Adoptive Parents] as [G’s] Proposed Adoptive Parents when possible. As long as the Secretary continues to hold parental responsibility for [G], this placement can be supported and monitored by the Secretary.”

16. In those circumstances, I enquired of the Secretary as to how the Secretary contended that the best interests of G would be promoted by making the order proposed.

17. The Secretary informed me that, if the order sought was made, the Secretary would have a statutory obligation to file a report with the Court in relation to G under s 78(1) of the Act and that this would give the Court greater oversight over G’s position.

18. The evidence shows that G has high medical needs. But there is no suggestion in the evidence that those needs will not be met by the Proposed Adoptive Parents now that G has been placed with them.

19. The Secretary has submitted that, in the absence of the order sought:

“The Secretary still has a statutory obligation to file a report pertaining to [G] pursuant to s 78 of the Adoption Act 2000, however, there is no extant proceedings regarding [G]. If his Honour is of the view [that] the order is not necessary, in the future as an alternative, the Secretary is content to file s 78 reports with only a cover letter requesting that the Registry create a Court file number. In other words, a s 78 report and letter would be filed with no summons. Then after a period of time, once the adoption application is ready, the Secretary can subsequently file the summons under the same proceedings number (being the proceedings number created for the s 78 report and letter).”

20. In those circumstances, I am not persuaded that there is any reason, associated with G’s best interests, to make the order sought.

21. I note that the Secretary will follow the procedure to which I have referred.

22. If any practical or procedural difficulties arise in relation to that course, the Secretary should contact my Associate and I will make appropriate directions to ensure that the problem is resolved.

23. I decline to make the order sought by the Secretary. The Secretary’s Notice of Motion filed 9 May 2022 is dismissed.

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Decision last updated: 20 May 2022