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)

1. 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.

1. 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 child unless and until the Director General is satisfied that each person who is required to give general consent has given consent or that the court has dispensed with the requirement for consent, or "(b) the court makes an interim order under s 84 in favour of the Director General", whichever first occurs.

1. Although there are difficulties in reconciling the application of subsection (1) with the concept of an interim order under the section in literal terms, it appears clear that the intent was that, even if the requirements of subsection (1) are otherwise not satisfied, the Director General will have parental responsibility if the court makes an interim order in favour of the Director General under s 84.

1. Section 79 provides as follows:

Duration of parental responsibility

(1) The Director-General continues to have parental responsibility for a child under section 75 or 78 until:

(a) an adoption order is made in relation to the child, or

(b) if consent has been given, the instrument of consent is lawfully revoked, or

(c) the Court, by order, makes other provision for parental responsibility for the child, or

(d) (Repealed)

(e) the Director-General declines to have parental responsibility for the child, or

Note. See section 75 (5).

(f) the Director-General renounces parental responsibility for the child, or

Note. See section 76.

(g) the child is declared to be, or is placed, under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998.

1. The effect of that section would appear to be that the Director General would continue to have parental responsibility once it was obtained under s 75(1), until one of the events referred to in that subsection happened. However, there is a tension between that and s 85, to which I shall come.

1. Section 84 provides as follows:

Making of interim orders

(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 Director-General or a principal officer, the Court may make an interim order for parental responsibility for the child in favour of the Director-General 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.

1. For the reasons I have outlined, it is appropriate in this case to postpone the determination of the application for an order for the adoption of the child. The Director General applies for an interim order under s 84(2) which satisfies the jurisdictional basis for making that order.

1. Section 85 provides as follows:

Duration of interim orders

(1) Subject to this Part, an interim order remains in force for such period, not exceeding one year, as the Court specifies in the order and for such further periods, if any, as the Court may from time to time order.

(2) An interim order must not be in force for periods exceeding in total 2 years.

1. As I have foreshadowed, there is a tension between this and s 79. It seems to me that the preferable way of reconciling that tension is to read s 79 as limited by the later section, to the extent that where the Director General's parental responsibility under s 75 is gained by operation of an interim order made under s 84, then that parental responsibility will continue only so long as the interim order remains in force, which in the first instance cannot exceed one year, and in total cannot exceed two years.

1. It seems to me unlikely that given what remains to be done in this case, and allowing some time for the child to settle in any placement, the interim order would be required for any less than one year. But if I am wrong in that respect, then it can be terminated in any event by order of the court at an appropriate time within that period.

1. I order, pursuant to Adoption Act s 84(2), that until 8 May 2014, or further order, the Director General Department of Family and Community Services have parental responsibility for the child AP, born 12 November 2012.

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Decision last updated: 18 June 2013