Application of PL, re TB and FB

[2007] NSWSC 665

CITATION:	Application of PL, re TB and FB [2007] NSWSC 665
HEARING DATE(S):	In chambers
JUDGMENT DATE :	21 June 2007
JURISDICTION:	Equity Division Adoptions List
JUDGMENT OF:	Austin J
DECISION:	See under heading "Conclusion"
CATCHWORDS:	Adoption of children - sole application by step parent - requirements as to evidence of financial circumstances - access to s 91 report
LEGISLATION CITED:	Adoption Act 2000 (NSW), ss 27, 30, 90, 91, 95, 194 Supreme Court Rules 1970, Pt 73 r 13
PARTIES:	PL (Applicant) TB (Child) FB (Child)
FILE NUMBER(S):	SC 15/2007
COUNSEL:	Nil
SOLICITORS:	Nil

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

AUSTIN J

THURSDAY 21 JUNE 2007

15/2007 APPLICATION OF PL, RE TB AND FB

JUDGMENT

1 HIS HONOUR: This is an application for adoption made by a step father who is married to and living with the birth mother of the two children who are to be adopted. The applicant is not legally represented.

2 The application is not contested. Although the applicant seeks orders dispensing with notice to and consent by the birth father and has tendered substantial evidence to support the making of those orders, and there are some other aspects of the application that have required careful attention, this is not a case where the Court would in the normal course publish reasons for judgment. However, some issues have been raised in correspondence from the applicant that need to be addressed in published reasons.

3 When I received and reviewed the Court's adoption file for the purpose of considering the application, I found that the application was deficient or in need of clarification in four respects, and on my instructions these deficiencies were drawn to the attention of the applicant in the form, in effect, of a letter of requisition.

4 By a letter dated 23 April 2007, which I received on 18 June 2007, the applicant has responded to those four matters. The third and fourth matters, which relate to counselling of and consent by the birth mother, and consent by one of the two children, have been addressed by additional evidence with which I am satisfied. It is not necessary to make any further comment about these matters.

5 The other two requisitions need to be addressed, because the applicant has raised queries about them. Additionally, in his letter the applicant seeks access to an Intrafamily Adoption Assessment Report dated 5 September 2006 ("the Report") prepared for the Department of Community Services ("DoCS") and filed in this proceeding. The Report has been adopted by DoCS as the Director-General's report under s 91 of the Adoption Act 2000 (NSW). The application for access needs to be addressed.

Sole application by step parent

6 According to the summons filed on 5 February 2007, the application is made by the step father of the children, for an adoption order in his favour. The application is consented to by the birth mother but she is not an applicant. On the other hand, the Report has been prepared on the basis that the application is by both the step father and the birth mother.

7 That discrepancy in the evidence was the foundation for the following requisition by the Court:

"The summons indicates that [the step father] is the sole applicant, whereas the report filed for DOCS indicates that [the step father and the birth mother] are both applicants. Where a couple, being a birth parent and a step parent of a child, wish to have an adoption order made in their favour, the correct course is for the application to be made for adoption by the couple under s 28 rather than for adoption by one person under s 27. The Summons should be amended accordingly."

8 A substantial portion of the applicant's letter dated 23 April 2007 is directed towards supporting a submission to the effect that under the Adoption Act 2000 (NSW) it is permissible for an adoption order to be made in favour of a step parent, without derogating from the birth parent's position as parent of the child. So much is evident from the wording of ss 27 and 95, without embellishment.

9 Much more importantly, the applicant's letter makes assertions, not present in the papers supporting the initial application, to the effect that the birth mother does not want to apply to adopt her own children, and to the effect that the Report is incorrect in stating that the application is made jointly by the step father and the birth mother. Regrettably these matters are not, in terms, supported by any direct affidavit evidence from the birth mother. However, there is evidence that the birth mother has executed fresh instruments of consent, each dated 23 April 2007, after the making of the requisition. By those documents she consents to the adoption of each of her two children by the applicant as the adoptive father, in the presence of an independent lawyer and after receiving the counselling required by the Act. The instruments of consent are inconsistent with the assertions in the Intrafamily Adoption Assessment Report that the adoption applications are intended to be joint applications.

10 In the circumstances I find it safe to infer that the birth mother agrees that adoption orders be made in favour of the step father solely, and that the Report is wrong in saying that the application is intended to be a joint application.

Evidence of financial circumstances

11 The other requisition requiring some comment was in the following terms:

"The court is required to consider whether the making of an adoption order is clearly preferable in the best interests of the children. The usual practice is for the applicants to provide an affidavit dealing with their financial circumstances and ability to provide proper care for the children. Evidence of financial circumstances has not been filed in this case."

12 The applicant has provided affidavit evidence of his financial circumstances and also the financial circumstances of the birth mother, which I regard as sufficient for the purposes of the Court's decision. However, in his covering letter, the applicant has made some statements to which a response must be made, because the applicant's statements raise questions as to whether and why financial evidence is needed. The applicant said:

"I can see nothing in lengthy prescriptions in the Act and the Regulations that requires the provision of financial information. At no time was I told that such information must be provided. The precedents made available on the Supreme Court website contain no reference to the provision of financial information in relation to a step parent adoption. Nevertheless I am more than happy to provide that information. Please finding enclosed an affidavit setting out the financial circumstances of myself and [the birth mother]."

13 The paramount issue for the Court, in an adoption application, is to be satisfied that the best interests of the child will be promoted by the adoption (s 90(1)(a)). In the case of an application for adoption by a step parent, the Court must not make the order unless it is 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 or in relation to the child (s 30(d)).

14 The Court's general practice is to receive evidence of a basic kind relating to the financial circumstances of an applicant or applicants for adoption, so far as those circumstances relate to the best interests of the child. The evidence addresses such matters as the residential arrangements for the child, whether the applicants own the residence, whether they are employed, and if so, what their annual income is, and an outline statement of their assets and liabilities.

15 That general practice is confirmed in the "Adoption Applications Precedents" which appear on the Court's website. Under the heading "Joint Affidavit of Proposed Adoptive Parents" (page 10 of the document, as accessed on 20 June 2007), there are some guidance notes with respect to the content of the applicant's or applicants' affidavit. Although the heading of the relevant part of the notes refers to a "Joint Affidavit" (presumably because a joint application is the most common kind), it is reasonably plain that the notes are, for the most part, general in their scope. That is reinforced by the consideration that there is no separate set of notes for a sole application and no precedent for a sole applicant affidavit.

16 After the texts of Part 73 rule 13 of the Supreme Court Rules 1970 and s 90 of the Adoption Act have been set out, there is a heading in the notes, "Information to be included in or attached to a joint affidavit" (at page 14). Under that heading the following statements appear:

"There should be a short description of the home in which the proposed adoptive parents reside. The affidavit should state who resides in the home.
The affidavit should also state assets and sources of income, and what liabilities and commitments the proposed adoptive parents have."

17 There is also a precedent for the "Affidavit of Applicants" (at page 23-25). After specifying a number of matters, the precedent says that the affidavit should "set out the proposed adoptive parents' evidence in separate paragraphs deal[ing] with each subject as stated on pages 9-14". Financial circumstances are not expressly mentioned in the precedent but, as noted above, they are referred to at page 14 of the notes.

18 As I understand the practice, the limited financial evidence that I have described is received by the Court because it is material for the court to know whether the child will have an adequate degree of residential security, and whether sufficient cash will be available to meet the child's basic needs, including unusual and unanticipated as well as routine needs. The Court's approach generally conforms to the criteria that have been adopted and published by DoCS on their website for the assessment and selection of adoptive parents, although these are not directly applicable to a step parent application. The DoCS criteria refer to financial circumstances and state:

"The income and financial resources of the applicant/s will enable adequate provision for a child's physical, educational, health and social needs until the child reaches adulthood."

19 It may be that in the case of an application by a step parent who has lived with a birth parent and the child in stable domestic and financial circumstances for a long time, the Court will have no substantial concern about the child's financial support. But it seems to me that the issue of financial provision for the needs of the child must be addressed in every case, to a sufficient degree to enable the court to be satisfied about the child's best interests in the circumstances of the case.

Access to the Report

20 Section 91(1) of the Adoption Act is generally to the effect that the Court is not to make an adoption order for a child under 18 years of age unless a report in writing has been made by DoCS. Section 194(1) says that except as provided by the Act or the regulations, certain records are not open to inspection by, or to be made available to, any person including any party to proceedings before the Court under the Act, including a report made under s 91. There are no relevant exceptions to s 194(1) in the Act or Regulations. However, s 194(2) allows the Court to make an order permitting access.

21 The wording of s 194 makes it clear that an applicant for access to a s 91 report bears the onus of showing good reasons for access to be granted. In the absence of good reasons, the Court is unlikely to grant access, even if the report in question is highly complimentary to the applicant. As a matter of principle, the social workers who prepare these reports for the Court should be in a position that enables them to speak freely and confidentially without fear of repercussions should their report contain some adverse statement about the applicant. Adverse statements will usually lead to a contested application, and then the issue of access can be ruled on at a hearing.

22 In the present case, the application for access is made by the applicant in his letter of 23 April 2007, in which he says (relevantly) only this:

"I have not been provided with a copy of the s 91 report provided by DoCS. DoCS takes the view that consent of the Court is required before a copy of the report can be provided. To the extent that it is necessary, I seek the consent of the Court for a provision of a copy of the report to me."

23 The letter does not expressly put forward any ground for the granting of access in this case. In the circumstances, I intend to adopt the following procedure:

· I shall direct the Registrar to write to the applicant, providing him with a copy of these reasons and inviting him to set out the grounds upon which he wishes to be granted access to the Report;

· if the applicant pursues the matter by responding to that invitation, then I shall direct that the applicant's response and a copy of these reasons be provided to DoCS, with an invitation to DoCS to make submissions consenting to or opposing the application for access;

· if DoCS consents to the application for access I shall make an appropriate order, but if it opposes the application for access, then I shall direct that the submissions made by DoCS be provided to the applicant for any reply that he may wish to make, and then I shall make a decision on the application for access and publish my reasons. Depending on the content of the submissions, it may be necessary to deal with the application at a hearing, rather than in chambers.

Conclusion

24 The Court's concerns about the making of adoption orders have been addressed by the applicant's letter of 23 April 2007 and his affidavit of the same date, providing evidence of financial circumstances and annexing instruments of consent by his wife and step daughter and related documents. I am satisfied that the other requirements of the Act are met in this case. I shall therefore make the adoption orders.

25 As to the applicant's request for access to the Report, I shall direct the Registrar to write to him, providing him with a copy of these reasons and inviting him to set out the grounds upon which he wishes to be granted access to the Report.

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