Re Alice

[2021] NSWSC 700

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Re Alice [2021] NSWSC 700

Hearing dates:

15 June 2021

Date of orders:

16 June 2021

Decision date:

16 June 2021

Jurisdiction:

Equity - Adoptions List

Before:

Williams J

Decision:

Order that, until further order, the child be made a ward of the Court; order that, for a period of three months or until earlier further order, parental responsibility for the child be delegated to the Secretary, New South Wales Department of Communities and Justice; order that the consent of the child’s birth father be dispensed with; order that the plaintiff serve a copy of the reasons for judgment and order on the child’s birth mother as soon as practicable.

Catchwords:

FAMILY LAW AND CHILD WELFARE – adoption – interim order – application for interim order allocating parental responsibility to Secretary under s 84(2) of the Adoption Act 2000 (NSW) – where temporary care arrangement expiring imminently – where Secretary will not have parental responsibility under s 75 of the Adoption Act 2000 (NSW) on expiry of temporary care arrangement – whether s 84(2) applies where no existing application for adoption order – whether orders should be made in exercise of parens patriae jurisdiction where s 84(2) does not apply.

FAMILY LAW AND CHILD WELFARE – adoption – consent – consent dispense order under Adoption Act 2000 (NSW), s 67(1)(a) – application for order dispensing with the consent of the birth father – where birth father cannot, after reasonable inquiries, be found or identified – where in best interests of child to make consent dispense order

Legislation Cited:

Adoption Act 2000 (NSW), ss 53, 63, 67, 70, 73, 75, 84, 85, 206

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 151, 152

Interpretation Act 1987 (NSW), s 33

Cases Cited:

Adoption of NV [2015] NSWSC 2135

Application by Director-General Department of Community Services; Re L (a child) (2008) 71 NSWLR 343

R v A2; R v Magennis; R v Vaziri (2019) 93 ALJR 1106

Re Application by Director-General of Department of Community Services; re BCG (a child) [2003] NSWSC 1040

Re Jules (2008) 40 Fam LR 122

Re Liam [2009] NSWSC 643

Category:

Principal judgment

Parties:

Secretary, NSW Department of Communities and Justice (Plaintiff)

Representation:

Counsel:
Mr M. Anderson (Plaintiff)

Solicitors:
Crown Solicitor of New South Wales

File Number(s):

2021/159649

Publication restriction:

N/A

Judgment

1. The child who is the subject of these proceedings is known by the pseudonym “Alice”.

2. By summons filed on 3 June 2021, the Secretary, NSW Department of Communities and Justice (the Secretary) seeks an order pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW) dispensing with the requirement for the consent of the child’s birth father to the adoption of the child, and an interim order for parental responsibility for the child in favour of the Secretary pursuant to s 84(2) of that Act.

3. The Secretary relies on two affidavits of Ms Melissa Stokes affirmed on 3 June 2021 and 15 June 2021 and documents exhibited to each affidavit. Ms Stokes is a Manager Casework, Open Adoption and Permanency Services employed by the Department of Communities and Justice and a delegate of the Secretary under s 206 of the Adoption Act. The Secretary also relies on an affidavit of Ms Margaret Farrand, a paralegal employed by Department of Communities and Justice, affirmed on 14 June 2021. Ms Farrand gives evidence of personal service of the summons and supporting affidavits on Alice’s birth mother.

4. Alice was born on 30 December 2020 at a public hospital in New South Wales.

5. Shortly before Alice’s birth, her birth mother contacted the Department of Communities and Justice by email and made inquiries about adoption. The birth mother stated that the child had been conceived as the result of an assult on her and that she could not afford to raise the child. The Mandatory Written Information on Adoption was provided to the birth mother at that time and an adoption caseworker visited her in hospital at her request the day after the birth.

6. On 31 December 2020, the birth mother consented to a temporary care arrangement in respect of Alice for a period of three months pursuant to s 151 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) to enable Alice to be placed with authorised carers while the birth mother considered adoption. That temporary care arrangement was subsequently renewed for a further period of three months, which expires on 30 June 2021 and cannot be renewed for a further period thereafter by reason of s 152 of the Care Act.

7. For one month after her birth, Alice was cared for in hospital. She required respiratory support and very intensive care due to a difficult delivery for mother and baby. Alice responded well to that care and was discharged from hospital on 31 January 2021 into the care of authorised carers, who had been visiting her in hospital in order to learn her routine and her care needs. Alice remains in the care of those same carers today. Ms Stokes’ affidavit sets out a detailed account of the steps taken by the carers to attend to Alice’s medical needs, including ongoing specialist care required in order to address the problems she suffered immediately after birth, and the manner in which they have cared for her. It suffices to say that the evidence establishes that the carers have diligently attended to Alice’s needs and caseworkers have observed that Alice appears to be doing well and to be content in their care.

8. Alice’s birth mother has given consistent accounts to her adoption caseworker and to staff at the hospital where Alice was born that Alice was conceived following an assault and she does not know who the birth father is. She was not in any other relationships around the time of the assault. The adoption caseworker has obtained a detailed account of the assault from the birth mother and has made a police report, but the assault was not captured on security cameras and the available details are not sufficient to enable further enquiries to be made with a view to identifying the birth father.

9. From the time of Alice’s birth, the birth mother has consistently expressed her intention that Alice should be adopted, but her caseworker experienced difficulty in contacting the birth mother from about early April 2021 until very recently. Until two days ago, the birth mother had failed to complete certain documentation required for the adoption process. This appears to be at least partly attributable to practical difficulties arising from her limited access to technology, but may also reflect some reluctance to continue to engage in the adoption process at this stage. Ms Stokes has given evidence that, in her experience, some parents considering voluntary adoption for their child find engaging in the process emotionally difficult and need some additional time. In Ms Stokes’ opinion, the circumstances around Alice’s conception may be a factor contributing to the birth mother’s need for some additional time in this case. That would be entirely understandable. I note that the birth mother has told her caseworker that she has not informed her family about the child. Lack of support from her family, in circumstances where they do not know what she has been through with the assault and the subsequent birth of Alice and what she is presently going through in contemplating the adoption of Alice, must compound the difficulty of the process for the birth mother.

10. As things presently stand, the birth mother indicated to the adoption caseworker on 24 May 2021 that she wishes to continue with the voluntary pre-adoption process for Alice. The birth mother confirmed this position to Ms Farrand on 14 June 2021 when the summons and supporting affidavits for this application were served on her by Ms Farrand. The birth mother asked Ms Farrand to inform the Court that she wants the adoption of Alice to go ahead and for the Secretary to do whatever is needed to make it go ahead. That is not effective consent for the purpose of the Adoption Act, but the birth mother’s wishes and present intentions are of course relevant to this application.

11. The caseworker will now need to meet with the birth mother on one further occasion to complete pre‑adoption counselling. It will then be necessary for the birth mother to complete counselling in accordance with s 63 of the Adoption Act and, if she wishes to do so following that counselling, to provide her consent to the adoption in accordance with s 53 of the Adoption Act. These steps will take some time, including allowing for the 30 day period in which any consent given by the birth mother under s 53 may be revoked pursuant to s 73 of the Adoption Act.

12. There is no current application for an adoption order in respect of Alice. Such an application would be premature at this time, as prospective adoptive parents have not yet been identified.

13. Ms Stokes has given evidence that the Department of Communities and Justice will continue to support the birth mother to complete the voluntary pre‑adoption process. The Secretary seeks an order under s 67(1)(a) of the Adoption Act dispensing with the requirement for the birth father’s consent at this stage so that, if the birth mother’s consent is provided in accordance with s 53 of the Adoption Act, the Secretary will then be in a position to place Alice with approved adoptive applicants. The Secretary will then undertake a period of post-placement supervision and, if it is considered to be in Alice’s best interests following that supervision period, will apply for an order for adoption in favour of those applicants. The birth mother will be invited to participate in the selection of the approved adoptive applicants with whom Alice is placed. The Secretary intends that Alice will remain with the temporary carers until she is placed with prospective adoptive parents, assuming that the birth mother’s formal consent to adoption is forthcoming in due course.

14. On the expiry of the temporary care arrangement on 30 June 2021, the Secretary will cease to have care and responsibility for Alice. In circumstances where it is now highly unikely that the birth mother will provide consent to Alice’s adoption in accorance with the requirements of the Adoption Act before 30 June 2021, the Secretary will not have parental responsibility pursuant to s 75 of the Adoption Act on the expiry of the temporary care arrangement. Parental responsibility will be with the birth mother who lacks the financial means and family support to take over the care of Alice.

Dispensing with the consent of the birth father

15. Section 67(1)(a) of the Adoption Act provides that the Court may make an order dispensing with the requirement for consent of a person to a child’s adoption if the Court is satisfied that the person cannot, after reasonable inquiry, be found or identified. On the basis of the evidence referred to above concerning the circumstances of Alice’s conception and the inquiries made since her birth in an attempt to elicit any information that might enable her birth father to be identified, I am satisfied that reasonable inquiries have been made and that the birth father cannot be found or identified.

16. Ms Stokes’ evidence is that, in her experience, prospective adoptive parents are better placed emotionally to take on the role as the authorised carers of a child pending an application for an adoption order if the consent of both birth parents is resolved. In this case this, would occur by the birth mother giving consent in accordance with the Adoption Act (if that continues to be her intention after completion of the steps referred to above) and by an order dispensing with the requirement for the consent of the birth father who cannot be identified.

17. In the circumstances outlined above, I am satisfied that it is in the best interests of Alice to exercise the discretion to make the order sought under s 67(1)(a) of the Adoption Act dispensing with the consent of the birth father. Section 70 of the Adoption Act permits the order under s 67(1)(a) to be made before an application for an adoption order has been made in respect of the child. The order will have effect for the purpose of any subsequent application for an adoption order.

Interim order for parental responsibility for the child in favour of the Secretary

18. Section 84 of the Adoption Act provides (emphasis added):

“(1)   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.

(2)   On application to the Court by the Secretary or a principal officer, the Court may make an interim order for parental responsibility for the child in favour of the Secretary or principal officer.

(3)   An interim order is subject to such terms and conditions as the Court thinks fit.

(4)   The Court must not make an interim order in relation to a child in favour of any person unless the Court could lawfully make an order for the adoption of that child by that person.

(5)   While an interim order remains in force in relation to a child, the person or persons in whose favour the order is made have parental responsibility for the child.”

19. Under s 85 of the Adoption Act, the maximum period for which an interim order may be made is one year. The Court may extend the order for further periods, but the total period for which the order is in force must not exceed 2 years. Pursuant to s 86(3), an interim order made under s 84 ceases to have effect on the making of an order for the adoption of the child.

20. Section 86 also provides that the Court may make an order at any time discharging an interim order made under s 84, in which event the Court may make an alternative order for parental responsibility for the child.

21. Within this Court, there has been a divergence of views concerning the meaning of s 84(2) of the Adoption Act. The Secretary submits that, construed in accordance with well established principles of statutory construction and having regard to the objects underlying the Adoption Act as required by s 33 of the Interpretation Act 1987 (NSW), s 84(2) of the Adoption Act confers power on the Court to make an interim parental responsibility order in favour of the Secretary in relation to a child in respect of whom there there is no exisiting application for an adoption order. The Secretary submits that it is relevant to the exercise of the discretion under s 84(2) to have regard to any such applciation in existence or under contemplation, but these matters are not necessary for the Court to have jurisdication under s 84(2).

22. The applicable principles were summarised by Kiefel CJ and Keane J, with whom Nettle and Gordon JJ generally agreed, in R v A2; Rv Magennis; R v Vaziri (2019) 93 ALJR 1106; [2019] HCA 35 at [32]-[37] (citations omitted):

“32  The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

33   Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. ‘Mischief’ is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

34    This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.

35    The joint judgment in Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v R, it was necessary to reiterate that the question of whether there had been a ‘substantial miscarriage of justice’ within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.

36   These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

37    None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, ‘if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance’. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.”

23. The observations of Bell and Gageler JJ concerning the principles of statutory construction were to the same effect (at [124]):

“The principles of interpretation were not in issue on the hearing of the appeals. In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical meaning of the words taking into account both context and legislative purpose. Consideration of context in its widest sense and the purpose of the statute informs the interpretative task throughout. That consideration, and the consequences of giving a provision its literal, grammatical meaning, may lead the court to adopt a construction that departs from the ordinary meaning of the words. Purposive construction, however, does not extend to expanding the scope of a provision imposing criminal liability beyond its textual limits.”

24. In relation to the purposive approach to statutory construction, Edelman J observed at [165]:

“There might sometimes be a fine line between asking: ‘In light of its legislative purpose, what would Parliament have intended in these circumstances?’ and asking: ‘Does the intended meaning of the words used by Parliament extend to these circumstances?’ But the proper question to ask in statutory interpretation is always the latter.” 

25. The submissions made on behalf of the Secretary emphasised the objects set out in s 7 of the Adoption Act, the context of s 84(2) in the Adoption Act and the mischief that it was submitted was intended to be addressed by s 84(2).

26. Chapter 2 of the Adoption Act sets out the objects of the Act and the principles to be applied in making decisions about the adoption of a child. Section 6 provides that the provisions of Chapter 2 are intended to give guidance and direction in the administration of the Act and do not create or confer on any person any right or entitlement enforceable at law. Section 7 provides:

“The objects of this Act are as follows—

(a)   to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,

(b)    to make it clear that adoption is to be regarded as a service for the child concerned,

(c)   to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,

(d)    to recognise the changing nature of practices of adoption,

(e)    to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas,

(f)   to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements,

(g)   to encourage openness in adoption,

(h)    to allow access to certain information relating to adoptions,

(i)    to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents.”

27. Chapter 3 of the Adoption Act establishes the role of the Secretary and accredited organisations in the provision of adoption services.

28. Chapter 4 of the Adoption Act provides for the adoption process. Chapter 4 is divided into numerous parts. Parts 1 to 4 deal with who can adopt and who can be adopted, the principles to be applied in placing children for adoption, the selection of prospective adoptive parents and adoption plans. Part 5 deals with consent to adoption.

29. Part 6 of Chapter 4 deals with parental responsibility for children awaiting adoption. Pursuant to sub-sections (1) to (4) of s 75 within Part 6, the Secretary 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 is required under the Act or the requirement for that consent has been dispensed with by the Court. Section 75(4) provides that s 75(1) does not apply on unless and until the Secretary is satisfied that the requisite consents have been given or dispensed with, or upon the Court making an interim order under s 84 in favour of the Secretary, whichever is earlier.

30. Pursuant to s 79(1) of the Act, the Secretary’s parental responsibility under s 75 continues until:

1. an adoption order is made in relation to the child;

2. the revocation of any consent by reason of which the Secretary had parental responsibility under s 75;

3. the Court makes other provision for the parental responsibility for the child;

4. the Secretary declines or renounces parental responsibility for the child; or

5. the child is placed under the parental responsibility of the Minister administering the Care Act.

31. Sub-sections (2) to (2B) of s 79 provide that the Secretary may place any child for whom they have parental responsibility under s 75 in the care responsibility of any suitable person, and the Secretary’s parental responsibility is suspended for the duration of that placement. Any such placement may be terminated by the Secretary at any time and for any reason, in which event parental responsibility for the child returns to the Secretary.

32. Part 7 of Chapter 4 of the Adoption Act provides for the Court to hold preliminary hearings in relation to any matter concering or arising out of an application to adopt a child that is prescribed by the regulations. Such preliminary hearings may be held at any time before the making of an adoption order. Part 7 plainly contemplates that an application is on foot for an adoption order in respect of the child.

33. Part 8 of Chapter 4 of the Adoption Act is headed “Interim Orders”. It contains s 84, the provisions of which I have set out in full above, and ss 85 and 86 to which I have also referred above.

34. Part 9 of Chapter 4 of the Adoption Act provides for the making of adoption orders, including setting out the matters of which the Court must be satisfied before an adoption order may be made. Part 10 provides for orders to be made concerning the parental responsibility for a child in the event that the Court refuses an application for an adoption order in respect of the child and for orders to be made discharging an adoption order in certain circumstances. Part 11 provides for the effect of adoption orders.

35. The remaining chapters of the Adoption Act provide for recognition of interstate and overseas adoptions (Chapter 5), proceedings under the Act (Chapter 6), records of adoptions and adoption information (Chapters 7 and 8), offences (Chapter 9), review of decisions (Chapter 10) and miscellaneous matters (Chapter 11).

36. Turning to the terms of s 84 in Part 8 of Chapter 4 of the Adoption Act, s 84(2) provides for an application to be made to the Court, and for an interim order for parental responsibility to be made in favour of the Secretary in relation to “the child”. The expression “the child” in s 84(2) stands in contrast to s 84(1), which refers to “a child”. Read in the context of s 84 as a whole, it is my opinion that “the child” is a reference to a particular child, rather than to any child, and the particular child is the child referred to in s 84(1) – namely a child in respect of whom an application has been made to the Court for an order for adoption, but the Court has postponed the determination of that application.

37. I acknowledge that my opinion differs from Austin J’s construction of s 84(2) in Application by Director-General Department of Community Services; Re L (a child) (2008) 71 NSWLR 343; [2008] NSWSC 235 (Re L). In that case, his Honour held that “the child” in s 84(2) is a reference back to the child referred to in s 84(1). I respectfully agree with Austin J to that extent. However, his Honour also held (at [28]) that the child referred to in s 84(1) is a child who is either the subject of an existing application for an adoption order or is the subject of a contemplated application for an adoption order. His Honour considered that the word “any” in the expression “any application to the Court for an order for the adoption of a child” in s 84(1) signified that there need not be an application for an adoption order on foot in order for the Court to make an interim order under s 84(1) provided that an adoption application is suffiently in contemplation that there are prospective adoptive parents. I respectfully disagree with this aspect of his Honour’s reasoning. In my opinion, the ordinary literal and grammatical meaning of the text of s 84(1) is that the Court may make an interim order in favour of prospective adoptive parents in circumstances where the Court exercises the discretion conferred by s 84(1) to postpone the determination of an application for an order for adoption. If there is no application for an adoption order on foot, there is nothing to be postponed. The word “any”, read in the context of the whole of s 84(1), means that, in any case where an application is made for an order for adoption, the Court may postpone the determination of the application and make an interim order for parental responsibility.

38. I also acknowledge that my preferred construction of s 84(2) departs from the construction adopted by Brereton J (as his Honour then was) in Adoption of NV [2015] NSWSC 2135 (Adoption of NV). In that case, his Honour said (at [6]-[9]):

“6   … 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.

7 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).

8 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.

9 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.”

39. I respectfully agree with Brereton J that the intersection of s 84(2) with the provisions of s 75 to which I have referred above indicates that there are circumstances in which an interim order can be made under s 84(2) conferring parental responsibility on the Secretary notwithstanding that the requisite consents for the adoption of the child have not been given or dispensed with. However, I respectfully disagree with his Honour in that I consider that those circumstances are limited to cases in which an application for an order for adoption in respect of the child has been made and the determination of that application has been postponed.

40. That is to say, the object of s 84(2), read in the context of s 84 and in the context of the Adoption Act as whole, is to empower the Court to make an interim order for parental responsibility for a child where an application for an adoption order has been made, the determination of that application is postponed, parental responsibility does not already rest with the Secretary by reason of s 75, an interim order in favour of the prospective adoptive parents under s 84(1) is not in the best interests of the child in the circumstances of the particular case and parental resposibility will not otherwise rest with any suitable person (for example, the Minister pursuant to an order under the Care Act).

41. I acknowledge that this description of the object or role of s 84(2) differs from Brereton J’s description of the role of the sub-section in Adoption of NV at [9]. I respectfully disagree with his Honour’s description of the role of s 84(2) because I consider that it does not pay adequate regard to the words of s 84(1) which, in my opinion, require that there be an existing application for an order for adoption.

42. In my opinion, if s 84(2) had been intended to apply in circumstances where an application for an adoption has not yet been made (albeit that an application may be in contemplation) it is to be expected that the power to make such an interim order would have been included in Part 6 of Chapter 4 of the Adoption Act which governs parental responsibility for children awaiting adoption. The placement of s 84(2) within s 84 in Part 8 of Chapter 4 is a contextual consideration that supports the words of s 84(1), by reference to which “the child” in s 84(2) is identified, being given a legal meaning that is consistent with their ordinary literal and grammatical meaning to which I have referred at [37] above.

43. The Secretary submits that s 84(2) was intended to address the mischief of multiple proceedings concerning children awaiting adoption. I do not consider that my preferred construction of s 84(2) gives rise to a risk of multiple proceedings concerning the parental responsibility for a child in respect of whom an application for an adoption order is contemplated but has not yet been made. In circumstances such as the present case where an adoption application is contemplated but the requisite consents are neither provided nor dispensed with within the currency of a temporary care arrangement, with the result that the birth parents who lack the capcity to care for the child will have parental responsibility on the expiry of the temporary care arrangement, orders can be made by this Court for the protection of the child in the exercise of its parens patriae jurisdiction. That was the approach adopted by White J (as his Honour then was) in Re Liam [2009] NSWSC 643 (Re Liam), in which his Honour expressed doubt that s 84(2) conferred power on the Court to make the interim orders sought in circumstances that were materially similar to the present case.

44. Adoption is a process that is available in respect of a child not being cared for by their birth parents. However, an application for an adoption order will not necessarily be made in every such case. The Adoption Act applies to adoptions and does not purport to cover the entire field of arrangements for the care of such children. That field is also covered in part, by the Care Act and the parens patriae jurisdiction. Taking those matters into account, it is my opinion that the objects set out in s 7 of the Adoption Act do not detract from what I consider to be the ordinary literal and grammatical meaning of the words of s 84(2) construed in the context of s 84 and Chapter 4 of the Adoption Act.

45. For completeness, I record that I reject the Secretary’s submission that “the child” in s 84(2) is simply a reference to the child who is the subject of the application referred to in s 84(2). That circular reading of the text of s 84(2) finds no support in any of the authorities relied on by the Secretary. Moreover, the effect of such a construction would be that the Court would have power under s 84(2) to make an interim order in respect of any child, including a child in relation to whom adoption proceedings are not even contemplated. That is contrary to the ordinary literal and grammatical meaning of the expression “the child” in the context of s 84 and, for the reasons I have explained above, I do not consider that the context of s 84(2) or the objects of the Adoption Act warrant that departure from that ordinary meaning of the text of s 84(2).

46. It is with considerable hesitation that I have come to a different view to Austin J in Re L and Brereton J in Adoption of NV concerning the meaning of s 84(2). I acknowledge that interim orders have also been made under s 84(2) in other proceedings in which it appears that there was no existing application for an adoption order. I also note that other judges of this Court have previously expressed doubts about the availability of s 84(2) in circumstances where there is no such application on foot: Re Liam; Re Application by Director-General of Department of Community Services; re BCG (a child) [2003] NSWSC 1040 at [9].

47. The evidence that I have summarised above clearly establishes that it is necessary for the protection of Alice and the promotion of her welfare that she remain under the parental responsibility of the Secretary in circumstances where her birth father is unknown, her birth mother is presently unable to care for her and some arrangement must be made for her ongoing care until the necessary steps can be taken for an application to be made for an adoption order. I propose to take the course taken by White J in Re Liam and exercise the parens patriae jurisdiction of the Court to make orders that will have substantially the same effect as those sought by the Secretary.

48. The parens patriae jurisdiction is a very wide jurisdiction, the foundation of which is the need to act for the protection of those who cannot care for themselves. The jurisdiction extends to making orders about the custody and care of children: see Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193 at [7]–[22]. For the reasons identified by Brereton J in that case, and following the approach of White J in Re Liam, it is desirable to make an interim order that Alice be made a ward of the Court and an order delegating parental responsibility for Alice to the Secretary. The first order will be expressed to be made until further order and it will be necessary for the order to be discharged at an appropriate time in the future, which will be no later than the time at which any adoption order is made but may be earlier. Having regard to the provisions of s 79(1)(c) of the Adoption Act, the Secretary will need to consider whether it will be necessary upon receipt of the birth mother’s consent to adoption (assuming that consent is forthcoming) to apply to discharge the orders made today so that the Secretary can have parental responsibility for Alice pursuant to s 75 of the Adoption Act.

49. At the hearing on 15 June 2021, the period of time in respect of which the Secretary seeks the interim parental responsibility order was reduced to three months. As I understand it, the Secretary presently considers that this will be sufficient time for the birth mother to make a considered decision whether to consent to the adoption of Alice after counselling in accordance with the Adoption Act. If that consent is given, then the Secretary will have parental responsibility pursuant to s 75 of the Adoption Act, subject to the potential operation of s 79(1)(c) of the Adoption Act to which I have referred immediately above. If that consent is refused or is not given within the period of three months, the Secretary will need to make a further application. In any event, there will be liberty to apply at any time to vary, discharge or extend the order.

50. Whilst Alice’s birth mother has been advised of these proceedings and has expressed her wishes, it is appropriate that a copy of these reasons and orders be provided to her so that she has ready access to the materials she will require in the event that she should wish to make any application to have these orders discharged or varied in the future.

39. For those reasons, I make the following orders:

1. Order that, until further order, the child known in this proceeding by the pseudonym Alice be made a ward of the Court.

2. Order that, for a period of three months or until earlier further order, parental responsibility for the child be delegated to the Secretary, New South Wales Department of Communities and Justice.

3. Grant liberty to any affected person to vary, discharge or extend orders (1) and (2) above on reasonable notice.

4. Order that prayer 2 of the summons is dismissed.

5. Order pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW) that the consent of the child’s birth father be dispensed with.

6. Order that the plaintiff serve a copy of these orders and the reasons for judgment published on 16 June 2021 on the child’s birth mother as soon as practicable.

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Amendments

16 June 2021 - typographical errors corrected

Decision last updated: 16 June 2021