Re AP - [2013] NSWSC 562

Supreme Court

New South Wales

Medium Neutral Citation: Application of Director General, Department of Family and Community Services; Re AP [2013] NSWSC 562
Hearing dates: Wednesday 8 May 2013
Decision date: 08 May 2013
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Order pursuant to Adoption Act s 84(2) that until 8 May 2014 or further order the Director General have parental responsibility for the child AP, born 12 November 2012

Catchwords: FAMILY LAW AND CHILD WELFARE - Child welfare under State legislation - application by Director General - interim orders for parental responsibility under (NSW) Adoption Act - where responsibility under (NSW) Children and Young Persons (Care and Protection) Act cannot be extended
Legislation Cited: (NSW) Adoption Act 2000 s 63, s 75, s 79, s 84, s 85
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 151
Category: Interlocutory applications
Parties: Director General, Department of Family and Community Services (applicant)
Representation: Counsel:
Ms N Hailstone (solicitor - applicant)
Solicitors:
Crown Solicitors Office

File Number(s): A67 of 2013

Judgment (ex tempore)

HIS HONOUR: The child the subject of these proceedings was born on 12 November 2012. Her birth mother has been provided with the mandatory written information and counselled as required by s 63 of the Act, but has not yet executed any consent. The putative birth father, who may dispute paternity, has not executed a consent. The child has been in the care of an authorised carer since 20 November 2012, originally under a temporary care arrangement, dated 14 November 2012, which was renewed on 12 February 2013 and expires on 14 May 2013 by operation of which the Director General has care and responsibility for the child pursuant to (NSW) Children and Young Persons (Care and Protection) Act 1998, s 151(2)(a). By reason of s 152 of that Act, that temporary care arrangement cannot be further extended. The Director General has reached the preliminary view that the most preferred option for the child is adoption and has filed a summons for adoption on 3 May 2013. At this stage, however, proposed adoptive parents have not yet been identified. A recently raised suggestion of aboriginality on the part of the birth mother requires investigation, and consents of the birth mother and the birth father remain to be obtained or else, if appropriate, to be dispensed with. Accordingly, it is not possible at this stage to make an order for adoption.

Section 75 of the (NSW) Adoption Act2000 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 is required under the Act or the requirement for consent has been dispensed with by the court. That provision is not capable of present application, because the requisite consents have not yet been given nor dispensed with. However, s 75(4) provides that subsection (1) does not apply to a…

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 Re AP

Details

AGLC: Re AP [2013] NSWSC 562
Case: [2013] NSWSC 562
Decision Date: 08 May 2013

CaseChat Overview and Summary

The case of Re AP involved the Director General of the NSW Department of Family and Community Services as the applicant seeking interim orders for parental responsibility for a child named AP under the Adoption Act 1998 (NSW). This application followed the refusal to extend existing care and protection orders under the Children and Young Persons (Care and Protection) Act 1998 (NSW). The primary concern was the welfare of the child, AP, who had been in the care of the State for an extended period. The legal issues before the court were whether the Director General could apply for interim orders for parental responsibility under the Adoption Act and whether these orders could be granted without extending the existing care and protection orders.

The court examined the interplay between the Adoption Act and the Children and Young Persons (Care and Protection) Act. It found that the Director General was indeed entitled to seek interim orders for parental responsibility under the Adoption Act, even when the existing care and protection orders could not be extended. The court concluded that the Adoption Act allows for the consideration of parental responsibility independently of the care and protection regime. This interpretation ensured that the child's welfare remained the paramount consideration while providing a clear pathway for the adoption process to proceed. The court granted the application for interim orders for parental responsibility, thereby facilitating the adoption process without the necessity of extending the care and protection orders.

The final orders of the court were to grant the Director General the authority to act as a parent for the purposes of the adoption application under the Adoption Act. This decision allowed the adoption process to progress while maintaining the child's welfare as the central focus. The court's ruling clarified the legal framework governing the transition from care and protection to adoption, providing a structured approach for similar future cases.

Orders