Adoption of LJK

[2015] NSWSC 2105

Supreme Court

New South Wales

Medium Neutral Citation:	Adoption of LJK [2015] NSWSC 2105
Hearing dates:	In chambers
Date of orders:	22 December 2015
Decision date:	22 December 2015
Jurisdiction:	Equity - Adoptions List
Before:	Brereton J
Decision:	Adoption order made.
Catchwords:	FAMILY LAW AND CHILD WELFARE – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – consent dispense order – application that birth father’s consent be dispensed with – whether application made by ‘authorised carers’ – where adoptive father is child’s step-father – where consent dispense order ultimately unnecessary as birth father’s consent given – expiry of consent revocation period without notice of expiry being given to birth father – (NSW) Adoption Act 2000, s 74 – whether s 74 applies to adoptions in which Secretary is not involved – whether absence of consent renders consent invalid.
Legislation Cited:	(CTH) Family Law Act 1975, s 4, s 60G, s 61B, s 61C(1) (NSW) Adoption Act 2000, s 23, s 24, s 28, s 30, s 53, 54(1)(b), s 58, s 59, s 67(1)(a), (c), (d), s 71, s 73, s 74, s 87, s 88
Cases Cited:	Application of MKM & RDM [2010] NSWSC 1189
Category:	Principal judgment
Parties:	RLMK and DJK (plaintiffs)
Representation:	Counsel:   Solicitors: Robert J McCarthy & Co (plaintiffs)
File Number(s):	A168/2012

Judgment

1. HIS HONOUR: This adoption application, initiated by summons filed by the proposed adoptive parents R and D as plaintiffs on 18 October 2012, has an unfortunate history, not least because there has never been any serious doubt that it is in the interests of the child L that an adoption order be made in favour of the plaintiffs. However, the manifest desirability of an adoption order does not permit one to disregard the formal requirements, which the legislature has put in place to ensure that the rights of all interested persons – including birth parents – are addressed, and that the facility of adoption is not abused. This application illustrates the unfortunate delay that can arise from not attending to those requirements, and confirms that the grave step of dispensing with a birth parent’s consent is not lightly to be taken. Nonetheless, it may be hoped that the result will, as well as securing for L the benefit of adoption by two parents who are clearly devoted to him, also – through the ultimate engagement of his birth father A in the process – assist him to know and have a relationship with his birth father and his origins, which form an indispensable element of his identity, and knowledge of which will help him to avoid the identity issues which sometimes beset adopted children who do not know their birth parents, or one of them.

2. L was born on 12 April 2006, the son of R and A; although they were not married, L’s birth was registered with A’s surname. R and A separated when L was about five months of age, and since then L has always resided with R. When he was about 18 months old, in late 2007, R and he relocated in the context of a new relationship, and contact with A ceased. That relationship broke down in late 2008, and R relocated again, twice, ultimately to the town where she now lives. In March 2009, R and D began their relationship, and they have cohabited since later in 2009.

3. On 8 July 2010, the Local Court made an order – in purported exercise of jurisdiction under the (CTH) Family Law Act 1975 – authorising the change of L’s surname to R’s maiden name. R married D on 28 January 2012, and on 1 December 2011, in anticipation of that marriage, the Local Court made a further such order, authorising the change of his surname to D’s surname.

4. For the purposes of (NSW) Adoption Act 2000, s 23(2)(a), when the application was filed, L was present in the state. For the purposes of s 24(1)(a), L was less than 18 years of age when the summons was filed; he is now aged 9; he has always resided with R, and has resided with D for six years.

5. For the purposes of s 23(2)(b) and s 28(1)(a), the applicants are domiciled in the state. For the purposes of s 28(1)(b), they are of good repute, fit and proper. According to advice provided by the Commission for Children and Young People’s Working with Children Check and Screening Unit, they have no charges or convictions recorded against them. For the purposes of s 28(4), they have been a couple and living together for longer than 2 years. For the purposes of s 30, the court can make an adoption order in favour of D, being a step-parent of L, as L is at least 5 years old, and D has lived with L and his birth parent for a continuous period of not less than 2 years immediately before the application for the adoption order was made, and specific consent to the adoption of L by D has been given in accordance with this Act by A, and I am 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.

6. A has not had contact with L since he was seven months old, and has rarely paid any child support. R has always been L’s primary carer, and D is the only father of whom he has any recollection; he identifies D as his father. The s 91 reporter recommended that an adoption order be made, essentially to confirm L’s status as a member of the family of D and R. Making such an order will bring the legal status of L’s familiar relationships into accord with the reality of how they practically operate. However, the reporter also recommended that an adoption plan be negotiated to re-establish contact with A, who was then opposed to adoption. The evidence does not fill me with confidence that R and D understand the importance, for L’s future psychological development and welfare, of his knowing his birth father and origins.

7. The original summons sought, in addition to an adoption order and approval of LJK as the child’s name, a consent dispense order (under Adoption Act, s 67(1)(a)) in respect of A, and the supporting affidavit also included a request for leave (under Family Law Act, s 60G) to commence adoption proceedings.

8. In a requisition issued on 31 January 2013, the court (Hallen J) indicated that there was no satisfactory evidence of service by post of the requisite notice on A; that it was not satisfied that A could not be found or identified for the purposes of s 67(1)(a); that on the present evidence it would not make a consent dispense order; and that there was no evidence of negotiation of an adoption plan as recommended by the s 91 reporter.

9. In response, on 16 May 2013, the plaintiffs filed an amended summons, an affidavit which deposed that no response could be obtained to endeavours to negotiate an adoption plan, and an affidavit which proved service on A of a request for consent, but not the prescribed form of notice. By further requisition of 27 June 2013, issued at the direction of Hallen J, the requirements for service of the prescribed form of notice, and provision of an adoption plan, were drawn to the attention of the plaintiffs’ solicitors.

10. On 6 November 2013, the plaintiffs’ solicitor lodged a further affidavit of the plaintiffs, which purported to, but did not, attach an adoption plan, and a copy statutory declaration of a process server which deposed to service on A of a specific consent, adoption plan and letter, but did not annex them. On 11 April 2014, the plaintiffs’ solicitors provided an affidavit of service (on 6 September 2013) of a letter giving A notice under s 71(2) and a proposed adoption plan, which provided for supervised contact with A at the discretion of R and D and provision of information to him upon request.

11. On 12 May 2014, at the direction of Hallen J, a further requisition drew attention to the absence of leave under Family Law Act, s 60G, and the inability of this court to grant such leave; and the requirement for updating evidence given the age of the matter. No further communication was received from the plaintiffs’ solicitors before 14 April 2015, when I made an order that unless by 15 May 2015 (or such later time as the court might on application made before that date permit) the plaintiffs had filed submissions and/or evidence addressing the requisitions of 12 May 2014, the summons be dismissed.

12. In response, under cover of a letter dated 20 April 2015, the plaintiffs’ solicitors provided a copy of an order of the Family Court of Australia made on 17 December 2014, apparently with the consent of A, giving leave under s 60G for the commencement of adoption proceedings, and updating evidence. I was satisfied that the issues previously raised concerning Family Law Act, s 60G, and an adoption plan, had been adequately addressed; in particular, although I would have preferred to see birth father contact not entirely at the discretion of the adoptive parents, I was prepared to accept that the adoption plan is in the interests of L given the absence of A from any role in L’s life for many years. Although there were defects in the birth mother’s consent, that did not present an obstacle, as the birth mother’s consent is not required where, as here, she is also a proposed adoptive parent. I was also satisfied that the plaintiffs were suitable adoptive parents and that adoption appeared to be in the best interests of the child. However, there remained two obstacles to making an adoption order. The first was that for a consent dispense order (which was at that stage required, as the birth father A had not given consent to the adoption), the plaintiffs relied on the ground contained in Adoption Act, s 67(1)(c), which provides that a consent dispense order can be made:

if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility.

13. There was no evidence of any serious cause for concern for the welfare of the child. The second was that while the evidence established service on the birth father of a letter containing notice of the intention to apply for a consent dispense order under s 67(1)(d), notice under s 88 of the intention to apply for an adoption order had not been given, and in any event the notice did not adequately specify what the birth father should do if he wished to oppose the application, and did not refer to the Court file number in which he would need to file a notice of appearance. Accordingly, on 28 April 2015, the court made requisitions as follows:

1. Provide evidence and submissions supporting the ground referred to in s 67(1)(c) for dispensing with the birth father’s consent (or any other ground that might be relied on for dispensing with consent).

2. Provide evidence of notice under s 72 and s 88 to the birth father to the effect of the attached draft notice. Such notice may be given in person or by post to the birth father’s address.

14. Under cover of a letter dated 30 June 2015, the plaintiffs’ solicitors lodged, in response to those requisitions, an affidavit proving service on A of notice of intention to seek a consent dispense order and adoption order, and an affidavit of the plaintiffs dated 26 June 2015 with respect to the basis for a consent dispense order. I was satisfied that sufficient notice under s 72 of the application for a consent dispense order and under s 88 of the application for an adoption order had been given to the birth father, on 21 May 2015. However, in respect of dispensing with consent, the plaintiffs, who had formerly relied on s 67(1)(c), did not adduce any further evidence or submissions on that ground, but instead relied on s 67(1)(d), under which a consent dispense order may be made if the application for the adoption of the child has been made by one or more persons who are authorised carers for the child, the child has established a stable relationship with those carers, and the adoption of the child by those carers will promote the child’s welfare. They submitted that they were the child’s “authorised carers”, and that the child had established a stable relationship with them.

15. While I was satisfied that the child had established a stable relationship with them, the question was whether they were “authorised carers”. “Authorised Carer” is defined in the dictionary as follows:

authorised carer means any person who:

(a) has care and responsibility for a child under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act 1998, or

(b) has responsibility for the day-to-day care, welfare and development of a child under the Family Law Act 1975 of the Commonwealth.

Paragraph (a) of that definition does not apply. The plaintiffs submitted that paragraph (b) applied in the circumstances.

16. As the child’s birth mother, the female plaintiff R has parental responsibility for the child pursuant to Family Law Act, s 61C(1), in the absence of any order otherwise. Parental responsibility comprises all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. That includes their day-to-day care, welfare and development. I accepted that the female plaintiff is an “authorised carer” of the child. However, the male plaintiff D is not a birth parent, but the spouse of a birth parent. He is a step-parent within the definition in Family Law Act, s 4, but in the absence of a parenting order under the Family Law Act so providing, a step-parent does not have parental responsibility for a step-child. The circumstance that the child may for certain purposes be “a member of the family” of the male plaintiff does not confer parental responsibility, or responsibility for the child’s day-to-day care, welfare and development, on him. Accordingly, he is not an “authorised carer”.

17. On that state of the evidence, the Court could not make a consent dispense order. In those circumstances, I proposed to dismiss the application after 28 days, unless prior to that date the plaintiffs satisfied me that there was good reason not to do so (which might include a clear indication that there is a realistic prospect of gaining consent from the birth father). Thus, on 31 July 2015, the Court ordered that unless by 31 August 2015 (or such later time as the Court might on application made before date time permit) the plaintiffs have filed submissions and/or evidence showing good reason not to do so, the proceedings be dismissed.

18. Under cover of a letter dated 13 August 2015, the plaintiffs’ solicitors lodged an affidavit to the effect that the birth father was prepared to consent to the adoption and indicated that steps to obtain that consent had been initiated, and sought an extension of time in which to do so. While observing that it was somewhat extraordinary that, the plaintiffs having first sought a consent dispense order on the basis that the birth father could not be found, then on the basis that there was serious concern for the welfare of the child, and then on the basis that they were authorised carers with whom the child had established a stable relationship, when they all failed the birth father could readily be contacted and was willing to consent, nonetheless, as there now appeared to be real prospect that he would consent and that the proposed adoption could then proceed, time for filing further evidence proving the consent of the birth father was extended to 31 October 2015. It is to be hoped that this co-operation by A presages the opportunity for L to get to know his birth father post adoption.

19. On 26 October 2015, the plaintiffs’ solicitors provided copies of A’s specific consent and statements of witness, and the originals followed on 28 October. These established that on 26 October 2015, A executed a specific consent in the presence of a solicitor independent of the plaintiffs, more than 14 days after having received the mandatory written information, and that he had received counselling under Adoption Act, s 63(1), by a registered counsellor on 7 October, being no more than 30 days and no less than 72 hours before executing the consent.

20. The final outstanding issue is the effect of the expiry of the consent revocation period without notice of its pending expiry having been given. Section 73 relevantly provides as follows:

73 Revocation of consent

…

(2) Revocation by person other than child

A person other than a child who has consented to a child’s adoption may revoke his or her consent by notice in writing given to the nominated officer before the end of the period of 30 days beginning on the day on which the instrument of consent to the adoption was signed (the revocation period).

(3) Consent cannot be revoked under subsection (2) after the end of the revocation period.

(4) As soon as practicable after receiving a notice under this section, the nominated officer is to give notice of the revocation:

(a) to the Secretary, and

(b) if it appears to the nominated officer that the consent concerned was given to a principal officer—to the principal officer, and

(c) if an application has been made to the Court for the adoption of the child by the mother, the father or a relative of the child (whether alone or jointly with another person)—to the applicant or applicants.

21. The consent revocation period referred to in s 73 expired on 26 November 2015, without A revoking his consent. The plaintiffs’ attention was drawn to the requirement to provide evidence of the giving to A of notice of the expiry of the revocation period, as referred to in s 74(1), which provides as follows:

74 Notification of pending end of revocation period

(1) The Secretary (or, if the consent was given to a principal officer, the principal officer) must give notice to each person (other than the child) who consented to an adoption before the end of the revocation period that on the end of the revocation period the consent cannot be revoked and that an adoption order may be made.

(2) The notice is to be given not less than 7 days before the revocation period ends.

Note. See section 73 (2).

22. The plaintiffs, after making inquiries of the Secretary, responded that they were unable to provide such evidence, as the Secretary was not engaged in intra-family adoptions of this kind, and as a matter of practice did not issue s 74(1) notices in such cases. There is no provision allowing or requiring such a notice to be given by persons such as the plaintiffs in the context of a step-parent or relative adoption. The question to be resolved is whether s 74 applies in an adoption in which the Secretary is not otherwise involved – that is, where the Secretary is not a plaintiff and the Secretary’s consent is not required; and if so, whether the absence of notice under s 74 renders the consent ineffective.

23. Adoption Act, s 53, provides in respect of the giving of consent:

53 Ways in which parent or person who has parental responsibility can give consent

(1) For the purposes of this Act, a parent of, or person who has parental responsibility for, a child may consent to the adoption of the child only by:

(a) giving general consent to the adoption of the child by an adoptive parent or parents selected by the Secretary or principal officer of an accredited adoption service provider, or

(b) giving specific consent to the adoption of the child by:

(i) a specified adoptive parent who is a relative of the child, or

(ii) 2 specified adoptive persons, one of whom is a parent or relative of the child, or

(iii) a specified adoptive parent who is step parent of the child, or

(iv) a specified adoptive parent who is an authorised carer who has had care responsibility for the child for 2 years or more.

(2) Nothing in this section prevents the Secretary or principal officer from selecting an adoptive parent or parents for the purposes of subsection (1) (a) from one or more of the classes of persons referred to in subsection (1) (b).

24. Notably, paragraph (1)(a), dealing with general consent, contemplates the involvement of the Secretary or a principal officer, while paragraph (1)(b), dealing with specific consents in the context of step-parent and relative adoptions, does not.

25. This dichotomy is also reflected in s 59, which relevantly provides as follows:

59 Mandatory written information

(1) The Secretary or appropriate principal officer must ensure that a person whose consent to an adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption.

(2) In the case of the adoption of a child by a step parent or relative of the child:

(a) the applicant (and not the Secretary or appropriate principal officer) must ensure that a person whose consent to the adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption, and

(b) the requirement to give that information is satisfied if the information given is information in a form approved by the Secretary for the purposes of compliance with this subsection.

26. Thus, sub-section (2) makes the applicants – and not the Secretary or principal officer – responsible for provision of the mandatory written information to a person whose consent is required in the context of a step-parent or relative adoption.

27. Similarly, in respect of making an adoption application, s 87 provides as follows:

87 Application to be consented to by Secretary

(1) The Court may make an adoption order only on application made by:

(a) the prospective adoptive parent or parents with the consent of the Secretary, or

(b) the Secretary or by a principal officer on behalf of the prospective adoptive parent or parents, or

(c) (Repealed)

(d) a child who is 18 or more years of age for his or her adoption.

(2) Despite subsection (1) (a), the consent of the Secretary to an application for an adoption order is not required:

(a) if the applicant is a step parent or relative of the child, or

(b) if the application relates to an intercountry adoption.

28. Thus, once again, applications for adoption by step-parents and relatives are exempted from the requirement that adoption applications can be made only by, or with the consent of, the Secretary.

29. The effect of the provisions to which I have referred is that the Secretary has no direct role or involvement in a step-parent or relative adoption. This means that the Secretary does not have the requisite information or means of knowledge to enable the giving of notice under s 74 in such a case: the Secretary has no means of knowing when a consent is given in such a case, or when a revocation period is to expire. It is not possible for the Secretary to comply with s 74 in such a case – unless upon request of an applicant. As a matter of practice, the Secretary does not issue s 74 notices in such cases.

30. Although s 74 allows for the alternative that a Principal Officer might give notice, where the consent is not given to the Secretary, it does not allow for an applicant in a relative or step-parent adoption to do so. In this respect, it may be contrasted with s 59(2). In my view, the preferable analysis is that s 74 was not intended to apply in a case of a specific consent referred to in s 53(1)(b), where the Secretary (or any principal officer) is not involved. This is consistent with the exclusion of the Secretary from responsibility for provision of the mandatory written information in such a case (under s 59(2)), and from the requirement to consent to such an application (under s 87). Implying into s 74 a provision that a step-parent or relative applicant must give such a notice would be beyond the scope of reasonable implication and construction. Accordingly, there is no requirement for notice of pending end of the revocation period to be given in such a case.

31. If I am wrong in that respect, I am of the view that compliance with s 74 was not intended to be a condition of the validity of a consent. The Act stipulates the circumstances in which a consent is ineffective:

58 When is consent ineffective?

(1) Consent to a child’s adoption is not effective unless it is:

(a) informed consent, and

(b) given in accordance with this Act.

(2) Consent given by a person (other than a child under 18 years of age) is not effective if it appears to the Court that:

(a) it was not given in accordance with this Act, or

(b) it was obtained by fraud, duress or other improper means, or

(c) the instrument of consent has been altered in a material particular without authority, or

(d) the person giving or purporting to give the consent was not, at the time the instrument of consent was signed, in a fit condition to give the consent.

(3) Consent is not effective if it is revoked during the time allowed by section 73.

(4) Consent given by a birth parent who is less than 18 years of age is not effective if it appears to the Court that the birth parent did not have the benefit of independent legal advice concerning the adoption before the instrument of consent was signed by the birth parent.

32. While a consent is not effective if it is revoked, it is not provided that it is not effective if notice under s 74(1) is not given. Nor does a consent fail to be “given in accordance with this Act” for the purposes of s 58(1)(b) if such notice is not given; the consent is given when it is executed. Thus, while the provision of such notice is an important safeguard, the legislature has not made it an essential ingredient of a valid consent, nor manifested an intention that failure to give it should result in invalidity.

33. It follows that I am satisfied that the absence of notice under s 74 does not affect the validity of the consent, or the expiry of the revocation period. An adoption order can therefore, at last, be made.

34. The Court therefore makes an order for adoption of the child LJK by the adopting parents RLMK and DJK and approves the names LJ as the forenames and K as the surname of the child.

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Decision last updated: 08 September 2016