Director General Department of Family and Community Services v GKD

[2011] NSWSC 1637

Supreme Court

New South Wales

Medium Neutral Citation:

Director General Department of Family & Community Services v GKD [2011] NSWSC 1637

Hearing dates:

Tuesday, 20 December 2011

Decision date:

20 December 2011

Jurisdiction:

Equity Division - Adoption List

Before:

Brereton J

Decision:

Order that the natural father be joined as a defendant in the proceedings and copies of the affidavits and reports to be relied on by the Director-General be provided to the natural father.

Order that the natural father not disclose the evidence served on him to any person other than a legal practitioner.

Catchwords:

FAMILY LAW AND CHILD WELFARE - Adoptions - child over 12 consents to adoption - natural father files notice of appearance and seeks access to evidence - consent of natural father not required - natural justice requires natural father have access to evidence so as to enable formation of view as to adoption and to make submissions as to whether adoption order ought be made.

Legislation Cited:

(NSW) Adoption Act 2000, s 8, s 54, s 118, s 194

Cases Cited:

Kioa v West (1985) 159 CLR 550

Category:

Interlocutory applications

Parties:

Director-General Department of Family & Community Services (plaintiff)
GKD (defendant)

Representation:

Counsel:
Ms Neville (plaintiff)
GKD (defendant in person)
Solicitors:
Crown Solicitors (plaintiff)

File Number(s):

A143/2011

Judgment (ex tempore)

1. HIS HONOUR: This is an application by the Director-General for an adoption order in favour of nominated adopting parents in whose care the child, who is now seventeen and a half years of age, has been for more than a decade. The child has executed a consent and in those circumstances, pursuant to (NSW) Adoption Act 2000, s 54(1)(c) and s 54(2), the consent of the child's natural parents is not required. On the evidence so far filed, it seems prima facie clear that the child desires that the adoption order be made, and that it is in her best interests that such an order be made. However, that is only a provisional view expressed on such evidence as has so far been filed.

1. Section 54(3) of the Act provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless the Court is satisfied that at least 14 days notice of the application for the adoption order has been given to the parent or person who has parental responsibility whose consent would otherwise be required. I am satisfied that such notice has been given to the child's natural mother, who has not filed a notice of appearance, or otherwise indicated any intention to oppose the application. I am satisfied also that such notice has been given to the child's natural father, GKD, who on 23 November 2011 filed a notice of appearance and has appeared before the Court today.

1. GKD also made an application to the registry for access to the court file. Access to adoption files is not readily given, for the obvious reasons of confidentiality associated with the adoption process. However, GKD says that while he has not determined to oppose the adoption application, and may well ultimately not oppose it, he wishes to see the evidence in order to satisfy himself of its accuracy and to make up his mind as to his attitude to the application.

1. In my view, s 54(3) provides for notice to a person whose consent would otherwise be required, where there is a child's sole consent, in order to enable that person to be heard in respect of and, if they wish, in opposition the application. It would not be a sufficient ground of opposition simply that consent has not been given by that parent, as that consent is not required once a child has given consent: s 54(1)(c) and s 54(2). But such a person could advance other arguments in opposition to an adoption order, other than simply that consent has not been given. Section 8(1) and s 8(2), for example, state principles that the Court must consider when making a decision about adoption, and factors relevant to ascertaining the best interests of a child. A natural parent could well make submissions on such matters. It is difficult to see how such a person could make an intelligent judgment as to what attitude to take and what submissions to make without access to the evidence to be relied on.

1. The Director-General argued that the Act evinced an intention that, in circumstances where a child had given sole consent to the adoption and the natural parents notified of the proposed adoption, the requirements of natural justice and procedural fairness were at least limited to allowing the natural parents to make submissions as to certain factors contained in s 8(1) and s 8(2). But it requires a clearly manifested contrary statutory intention to exclude the rules of procedural fairness [ Kioa v West (1985) 159 CLR 550, 584 (Mason J)]. There is no such manifestation in the Adoption Act . Indeed, the notification provisions for natural parents appear to contemplate birth fathers and mothers being afforded an opportunity to be heard and therefore to make submissions, based on appreciation of the relevant evidence, as to whether an adoption order should be made.

1. In those circumstances it seems to me that natural justice dictates that the evidence to be relied on - albeit in a redacted form so as to preserve the confidentiality of the proposed adoptive parents - be served on GKD.

1. I make the following orders:

(1)   Order pursuant to Adoption Act, s118, that GKD be joined as a defendant in the proceedings.

(2)   Direct that by 23 December 2011, the Director-General serve on GKD a copy of the affidavits and reports to be relied on by the Director-General in the proceedings,such copies to be redacted so as to remove any information that tends to identify the residential or work addresses or whereabouts of the proposed adopting parents or the child.

(3)   Order pursuant to Adoption Act, s 194, that GKD not disclose the evidence served on him to any person other than a legal practitioner for the purposes of obtaining advice in connection with these proceedings.

(4)   Adjourn the proceedings to Monday, 16 January 2012 at 10am before me.

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