Adoption of NV
[2015] NSWSC 2135
•29 September 2015
Supreme Court
New South Wales
Medium Neutral Citation: Adoption of NV [2015] NSWSC 2135 Hearing dates: 29 September 2015 Date of orders: 29 September 2015 Decision date: 29 September 2015 Jurisdiction: Equity - Adoptions List Before: Brereton J Decision: Parental responsibility order made.
Catchwords: FAMILY LAW AND CHILD WELFARE – parental responsibility – application for interim order allocating parental responsibility to Secretary – (NSW) Adoption Act 2000, s 84(2) – where no application for adoption pending – whether jurisdiction for interim order under s 84(2) requires pending application for adoption order – whether birth mother should be joined to proceedings. Legislation Cited: (NSW) Adoption Act 2000, s 75(1), s 75(4), s 84, s 84(1), 84(2), s 84(4)
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 152(4)Cases Cited: Director General, Department of Family and Community Services; Re AP [2013] NSWSC 562 Category: Procedural and other rulings Parties: The Secretary, NSW Department of Family and Community Services (plaintiff)
NV (child)Representation: Counsel:
Solicitors:
M Neville (plaintiff)
NSW Crown Solicitor’s Office (plaintiff)
File Number(s): A105/2015
Judgment (ex tempore)
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HIS HONOUR: The child NV, the subject of these proceedings, was born on 27 March 2015, the son of MV and a presently unknown father. From such evidence as presently available, there does not appear much likelihood that the father will ever be identified, although it is not impossible that he might be.
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MV is married, but it is clearly established that her husband is not the father of the child. At various times MV has wished to have NV adopted, but her attitude in that respect has been equivocal. MV did, on 26 June 2015, after registered counselling, execute an instrument of general consent to NV's adoption. Subsequently, however, she expressed wavering views, and on the last day of the revocation period orally indicated to a departmental officer that she wished to revoke her consent. Although no written notice of revocation was given, the departmental officer indicated that the oral revocation would be accepted. It is not necessary at present to resolve the legal consequences, as the Court would not likely make an adoption order over the mother's opposition in those circumstances.
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Since then, however, the mother has again indicated that she wishes for NV to be adopted. There is, however, doubt – both by reason of the mother's mental health, as well as by the circumstances of the oral revocation – as to whether there is any valid consent on foot.
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Except for a couple of days following the oral revocation during which NV lived with the mother and her husband, he has otherwise resided with an authorised carer, pursuant to temporary care agreements, the latest of which will expire in a few days’ time on 4 October 2015.
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By operation of (NSW) Children and Young Persons (Care and Protection) Act 1998, s 152(4), it will not be possible to make any further temporary care arrangement having any effect after that date. At least at present, the mother – whom the Court was informed has been advised of the present application and invited to attend Court, but has declined to do so – does not wish to resume care responsibility for NV. By summons filed on 28 September 2015, the Secretary of the Department seeks consent dispense orders in respect of the mother (lest there be no valid consent at present) and the (unknown) father. By notice of motion filed in Court by leave today, the Secretary seeks an interim order pursuant to (NSW) Adoption Act 2000, s 84(2), allocating parental responsibility for the child to the Secretary for a period of 12 months or further order.
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I have referred to the operation of the provisions of the Act that enable an interim order to be made on the application of the Secretary in Application of Director General, Department of Family and Community Services; Re AP [2013] NSWSC 562. Essentially, the Secretary – in the Act still called the Director-General – may apply pursuant to s 84(2) for an interim order for parental responsibility of "the child". The reference to "the child" seems to be a reference back to "the child" the subject of the application in subsection (1), which provides that the Court may postpone the determination of any application to the Court for an order for the adoption of a child and make an interim order for parental responsibility for the child in favour of the prospective adoptive parent or parents.
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That said, the intersection of subsection (2) with s 75(4)(b) and s 75(1) envisages circumstances in which parental responsibility may be allocated to the Secretary under an interim order, notwithstanding that consent has not been given nor dispensed with. Although there appears to be some connection, as I have said, between s 84(2) and subsection (1), it is clear enough that subsection (2) sits somewhat uncomfortably in s 84 – not least because subsection (4), which on its face refers to any interim order under the section, could not conceivably be intended to apply to an interim order under subsection (2).
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The difficulty arises in the present circumstances because there is not yet before the Court any such application for an order for the adoption of the child as is referred to in s 84(1), and it is unlikely that there could be such an application in circumstances where proposed adoptive parents have not yet been identified. It seems to me that it may well be that it was just to address that type of situation – that is to say, where there cannot be an application for adoption because prospective adoptive parents have not yet been identified – that subsection (2) was included. In any event, there is before the Court an application in connection with the proposed adoption of the child – namely, one for consent dispense orders – being a necessary step preliminary to or in connection with an adoption application.
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In my view, it is not necessary in order to engage jurisdiction under s 84(2) for there to be a pending application in the Court for an adoption order in favour of identified prospective adoptive parents. The role of subsection (2) includes enabling the Court to make an interim order where adoption is in contemplation, but it has not yet been possible to identify a prospective adoptive parent or parents or make an application for an adoption order. Such an approach enables a multiplicity of proceedings in different Courts – in particular the Children's Court and this Court – to be avoided, and sits comfortably with the function of an interim order under s 75(1) and (4). Of course, the Court would not likely make an order under s 84(2) if adoption proceedings of some kind were not before it or in contemplation, but that can be left to be a matter of discretion in the application of the section, rather than a jurisdictional requirement.
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If proceedings for adoption orders were before the Court, then it would be necessary for notice to be given of those proceedings to the mother, and she would be entitled to apply to be joined as a party if she so wished. It is apparent on the material currently available that the mother's position has been equivocal, and it is also plain that the effect of the order the Court is asked to make is to interfere with the parental responsibility that the mother would otherwise have for the child. In those circumstances, it seems to me that natural justice requires that she be joined as a party, and afforded an opportunity to be heard on the application. While I agree that it is undesirable in the present circumstances to give her the impression of adversarial proceedings, the dictates of natural justice insist that she should be informed of what is being done and afforded an opportunity to be heard. In addition, this may facilitate bringing her to a position of making a final decision in respect of her position.
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For those reasons, I propose to make an interim order, but for a relative short time in the first instance, to enable the mother to be served and to appear if she wishes.
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The Court orders that:
MV be joined as a defendant.
Pursuant to Adoption Act, s 84(2), until and including 27 October 2015 the Secretary have parental responsibility for the child NV born 27 March 2015.
The proceedings be adjourned to 27 October 2015 at 9.45am before me.
The Secretary serve a copy of this order together with the summons, notice of motion and supporting affidavit on the defendant.
The defendant have liberty to apply on 3 days' notice to vary or set aside order 1.
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Decision last updated: 13 July 2017
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