Director-General of DOCS and E

[2007] NSWSC 209

CITATION:	Director-General of DOCS and E [2007] NSWSC 209
JUDGMENT DATE :	12 March 2007
JUDGMENT OF:	Gzell J
DECISION:	Application refused. Order made instead that the Director-General continue to have parental responsibility for the child for a further period of 1 year.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Adoption - Parental responsibility in Director-General of the Department of Community Services consequent upon the giving of general consent to the adoption of the child under the Adoption Act 2000, s 75(1)(a) - Application by Director-General to continue parental responsibility until further order or for 12 months or until further order - Director-General required to report to the Court within 12 months of acquiring parental responsibility under s 78(1) - If child less than 18, the Court may order that the Director-General continue to have parental responsibility for a further period of 1 year under s 78(3)(b) - S 78(2) gives the court power to make any order concerning parental responsibility - Whether the period of 1 year should be extended
LEGISLATION CITED:	Adoption Act 2000
PARTIES:	Director-General NSW Department of Community Services - Plaintiff E - Defendant
FILE NUMBER(S):	SC 0008/07

- 1 -

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

GZELL J

MONDAY 12 MARCH 2007

0008/07 DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES AND E

JUDGMENT

1 E is an infant of less than two years of age. The Director-General of the Department of Community Services acquired parental responsibility for her on 27 February 2006 when both her parents had given general consent to her adoption. The Adoption Act 2000, s 75(1)(a) provides that the Director-General has parental responsibility for a child to the exclusion of all other persons after general consent to the adoption of the child has been given by every person whose consent to the adoption of the child is required under the Act.

2 The Adoption Act 2000, s 78 requires the Director-General to give a report to the court within a year of acquiring parental responsibility for a child and the court may make orders with respect to parental responsibility for the child. It provides as follows:

“(1) The Director-General must make a report to the Court concerning any child of whom the Director-General has parental responsibility under this Part if the Director-General has not, within a period of one year after taking over parental responsibility, ceased to have parental responsibility.
(2) The Court may make any order concerning parental responsibility for the child that it thinks fit.
(3) Without limitation, an order under subsection (2) may, if the child is less than 18 years of age:
(a) declare the child to be under the parental responsibility of the Minister under the Children and Young Persons (Care and Protection) Act 1998, or
(b) order that the Director-General continue to have parental responsibility for the child for a further period of one year.”

3 The Director-General sought an order continuing parental responsibility of E with the Director-General until further order, with leave to apply. I indicated to the Adoption Clerk that should the Director-General persist in that application, I required submissions as to why I should make such an order. The Director-General now seeks an order continuing parental responsibility of E with the Director-General for a period of 12 months or until further order, with leave to apply.

4 In my view, neither order should be made. It is the clear intention of the legislation that parental responsibility in the Director-General should be for a short period and subject to the review of the court. Hence the requirement in the Adoption Act 2000, s 78(1) for a report to the court by the Director-General within an year of the acquisition of parental responsibility and the general power in the court to extend that parental responsibility for one year under s 78(3)(b).

5 True it is that the Court may make any order concerning parental responsibility for a child under Adoption Act 2000, s 78(2). But, in my view, where the child is less than 18 years old, there must exist some factor that distinguishes the matter from the general case of a desire in the Director-General to continue parental responsibility to justify the court in departing from the clear intention of the legislation by extending parental responsibility for more than a year.

6 No factors have been drawn to the court’s attention with respect to the parental responsibility for E. Nor have any submissions been made on behalf of the Director-General indicating a need to adopt a different approach from that contained in the Adoption Act 2000, s 78(3)(b).

7 I therefore decline to make either of the orders sought by the Director-General. Instead, I make an order under the Adoption Act 2000, s 78(3)(b) that the Director-General of the Department of Community Services continue to have parental responsibility for E for a further period of one year.

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