Application of DOCS re C - [2004] NSWSC 702

CITATION: Application of DOCS re C [2004] NSWSC 702

HEARING DATE(S): In chambers

JUDGMENT DATE:
4 August 2004

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Consent dispense order and order dispensing with notice to father, made

CATCHWORDS: ADOPTION - consent dispense order - father does not want to be involved in adoption process - whether consent dispense order 'overrides' father's wishes for purposes of s 67(1)(c)

LEGISLATION CITED: Adoption Act 2000 (NSW) ss 67, 72

PARTIES :
Director-General NSW Department of Community Services (P)

FILE NUMBER(S): SC 80122/04

COUNSEL:

SOLICITORS: Adoption & Permanent Care Services (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTIONS LIST

AUSTIN J

WEDNESDAY 4 AUGUST 2004

80122/04 APPLICATION OF DIRECTOR-GENERAL NSW DEPARTMENT OF COMMUNITY SERVICES RE C

JUDGMENT

1 HIS HONOUR: By Summons filed 23 July 2004 the plaintiff, the Director-General NSW Department of Community Services (“DOCS”), applies for a preliminary hearing under the Adoption Act 2000 (NSW) in relation to the adoption of a child, C. The plaintiff seeks orders to:

2 C was born on 21 February 2004 at Gosford District Hospital. The mother had known the father as an acquaintance for about 12 to 18 months at the time of C’s birth, but that they were not in contact with each other at that time. On 25 February 2004, the mother advised of her wish to relinquish C for adoption. At pre-adoption counselling with a caseworker from Adoption and Permanent Care Services, Ms Munro, the mother was made aware of the need to include the father in the process of C’s adoption. The mother then attempted to contact the father to advise him of C’s birth, but by 22 April 2004 had not contacted him.

3 Ms Munro contacted the father on the mother’s behalf on 22 April 2004. According to the evidence, the father was “in shock” at being named as C’s father but was open to discussing C’s adoption.

4 At a meeting on 28 April 2004 between Ms Munro and the parents, the father stated that he would “not be able to take care of [C] at this stage of his life as his focus was on furthering his career.” He stated that he:

· did not want his name added to C’s birth registration;

· did not want to share social and medical information about himself;

· rejected any involvement in the pre-adoptive process;

· did not wish to be engaged in any further aspect of C’s adoption; and

· would not co-operate with sharing any further information about himself.

5 According to the evidence, the father cited concerns about his privacy as the reason for taking this position.

6 On 4 May 2004 the father contacted Ms Munro and discussed the issue of secrecy of his identity. He reiterated that he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application of DOCS re C

Details

AGLC: Application of DOCS re C [2004] NSWSC 702
Case: [2004] NSWSC 702
Decision Date: 4 August 2004

CaseChat Overview and Summary

The case before the court involved an application by the Department of Communities and Justice (DOCS) seeking a consent dispense order for the adoption of a child, C. The father of the child, who was not married to the child's mother at the time of conception, did not want to be involved in the adoption process. The legal issue before the court was whether the consent dispense order under section 67(1)(c) of the relevant legislation could override the father's wishes in this instance.

The court considered the statutory provisions and case law relevant to consent dispense orders and the rights of unwed fathers. The court noted that the purpose of the consent dispense order was to facilitate the adoption process when a parent's consent is not reasonably available, and that the order was intended to protect the best interests of the child. The court also considered the principle of parens patriae, which emphasised the state's role in protecting the welfare of children. The court held that the consent dispense order did indeed override the father's wishes for the purposes of section 67(1)(c), as the order was designed to protect the best interests of the child and facilitate the adoption process when a parent's consent was not reasonably available.

Ultimately, the court granted the application by DOCS and issued a consent dispense order for the adoption of the child, C. The court found that the order was in the best interests of the child and that the father's wishes could be overridden for the purposes of the legislation. The court emphasised the importance of protecting the welfare of children in adoption cases and the role of the state in ensuring that the best interests of the child were prioritised.

Orders