Re C and the Adoption Act 2000 (NSW)
[2014] NSWSC 1007
•25 July 2014
Supreme Court
New South Wales
Medium Neutral Citation: Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007 Hearing dates: 20 June 2014 Decision date: 25 July 2014 Jurisdiction: Equity Division - Adoption List Before: Kunc J Decision: Further interim parental responsibility order made
Catchwords: FAMILY LAW - Adoption - Consent to order and dispensing with consent - When consent dispense order will be made before application for adoption order - Relevance of earlier consent dispense order when adoption order ultimately sought - Adoption Act 2000, ss 67(1)(a), 70(1)(a) Legislation Cited: Adoption Act 1993 (ACT)
Adoption Act 2000 (NSW)
Adoption Act 1988 (SA)
Adoption Act 1984 (Vic)
Adoption Act 1994 (WA)
Adoption of Children Act 1965 (NSW)
Interpretation Act 1987 (NSW)Cases Cited: In the matter of an adoption of T [2012] ACTSC 61
Re EW and the Adoption of Children Act [1980] 1 NSWLR 89
Re WJP and the Adoption Act [2014] NSWSC 783Texts Cited: NSW Law Reform Commission, Report 81 (1997) Review of the Adoption of Children Act 1965 (NSW) Category: Principal judgment Parties: Secretary, Department of Family and Community Services (Plaintiff) Representation: Counsel: Mr J Harris (Solicitor) (Plaintiff)
Solicitors: IV Knight, Crown Solicitor (Plaintiff)
File Number(s): A049/2014 Publication restriction: No
Judgment
Summary
This judgment considers the circumstances in which the Court will make a "consent dispense order" under Chapter 4, Division 3 of the Adoption Act 2000 (NSW) (the "Act") before an application for an adoption order has been made in relation to a child (s 70(1)(a) of the Act).
On 2 April 2014 the Secretary (the "Secretary") of the NSW Department of Family & Community Services (the "Department") filed a summons seeking a preliminary hearing and interim order under s 84(2) of the Act for parental responsibility in relation to C in favour of the Secretary for a period of three months from the date of the order. No other relief was sought in the summons. At the time C was only a few months old. On 4 April 2014 the Court made, in chambers, the interim order sought in the summons until 14 July 2014.
On 13 May 2014 the Secretary filed a notice of motion in these proceedings seeking a preliminary hearing and an order pursuant to s 67(1)(a) of the Act to dispense with the consent of C's birth father to C's adoption.
On 4 June 2014 the proceedings came before me for directions. On that occasion, in what was candidly explained on behalf of the Secretary as an endeavour to simplify the jurisdictional basis on which the consent dispense order was sought, the Secretary sought leave to file an amended summons which additionally sought an order for the adoption of C in favour of "the adopting parents". At that time no adopting parents had been identified. In granting that leave, the Court noted that when the matter came before it for final argument, the Secretary would have to satisfy the Court that it was possible under the Act to seek an adoption order which did not identify the adopting parents.
The proceedings were heard on 20 June 2014. On that day the Court made the following orders:
1. Revoke the grant of leave made by the Court in order 1 made on 4 June 2014.
2. Order that the amended summons which was the subject of that grant of leave be removed from the file.
3. Grant the plaintiff leave to file an amended summons seeking an order to the effect of an interim order pursuant to s 84(2) of the Adoption Act 2000 for the child in favour of the Secretary for such period as the Court thinks fit.
4. An interim order pursuant to s 84(2) Adoption Act 2000 for the child in favour of the Secretary for a period of 12 months commencing on and from 5 July 2014.
5. An order pursuant to s 67(1)(a) of the Adoption Act 2000 dispensing with the requirement for consent of the child's natural father to the child's adoption.
6. Liberty to the plaintiff to apply in the first instance to the associate to Kunc J by email on seven days' notice.
These are the reasons for those orders.
The facts
The facts are uncontroversial and are set out in various affidavits of Ms G Romeo, the Secretary's delegate.
C's mother (the "mother") is a foreign student residing in Australia on a student visa. Although the mother's native language is not English, she speaks English very well.
The mother's family in her home country were unaware of her pregnancy. The mother was not in a relationship with the person in her home country whom she identified as C's father (the "putative father").
The day after C was born, the hospital social worker made contact with the Department because the mother had been considering adoption for C.
Three days after birth, C was discharged from the hospital into the care of an authorised foster carer (the "carer"), with whom C has remained with the exception of short periods of respite for the carer for personal reasons (see further paragraph [25] below).
For several weeks after C's birth, the mother gave careful consideration to whether or not she wished to offer C for adoption. She eventually provided the Department with the putative father's name, email address and two possible phone numbers in the home country.
After various unsuccessful attempts to contact the putative father through an agency in the home country, telephone calls to the numbers provided by the mother, emails, Google searches and sending letters to the putative father at his place of work, in both English and the language of the home country, the putative father eventually responded "What can I help you?" through his Linkedin account. The putative father's response included a new email address for him.
Later, the putative father emailed the Department denying he was C's father, stating that he had not been intimate with the mother at the time C would have been conceived and that he was willing to undergo DNA testing. Informed of these matters, the mother maintained that she had correctly identified the putative father.
Further attempts were made by the Department to contact the putative father in relation to his offer to undergo DNA testing. He has not replied to any further communications from the Department.
On 17 March 2014 the mother signed a general consent to adoption of a child under s 53(1)(a) of the Act.
Shortly after, the Secretary prepared a notice pursuant to s 56 of the Act to give the putative father an opportunity to consent to C's adoption (the "notice"). (Section 56 is set out in paragraph [53] below.) The notice was translated into the putative father's native language and was sent by international registered post and regular mail to the work address which the Secretary had for the putative father, as well as by email. Other information required under the Act was sent in both English and the putative father's native language by all those methods with the notice.
The communications accompanying the notice advised the putative father that the Department would apply to the Court to dispense with his consent to C's adoption if he did not make contact by 30 April 2014.
Between February and June 2014 a number of changes had been made to the putative father's Linkedin profile. His photograph has been removed, the contact phone number was changed and information pertaining to personal details has been added, including that his marital status was "married". Subsequently his photograph was replaced by a company logo and the contact telephone number was completely removed from the page and, for the first time, a surname was added.
A friend of the mother, living in the home country, also sought to meet the putative father under the guise of a business meeting. The putative father cancelled a number of appointments and, eventually, a female person identifying herself as the putative father's "girlfriend" cancelled the last appointment.
A further email was sent to the putative father after the 30 April 2014 deadline. On 6 June a copy of the amended summons (see paragraph [4] above) was also emailed to the putative father both in English and translation. The putative father has not made contact with the Department in relation to the notice or engaging in DNA testing. The Department has not received a return "signed as received" international registered receipt, confirming that the father had received the notice. Nor has the putative father responded to the emails sent to him after 30 April 2014.
However, none of the emails enclosing the notice or those sent after the deadline bounced. By reference to those matters I find that the notice was served on the putative father and that he is aware that the Department would be making the present application.
C has been admitted to hospital on two occasions with ongoing feeding and gastrointestinal problems and has been placed on a prescription only (and quite expensive) formula. C is under the care of a paediatrician who has remained in email contact with the carer in order closely to monitor C's health and to keep medical costs to a minimum.
Notwithstanding some improvement by the time of the hearing, C continues to be very unsettled and at times refuses food and drink. While, fortunately, there has been no need for C to be hospitalised again, the carer has had to manage C's ongoing feeding issues and unsettled behaviour in email consultation with the paediatrician.
C's health problems have placed a considerable burden on the carer, who has her own two teenage children as well as the short term placement of an 11 year old child with her. This has led the carer to ask for respite from caring for C on at least four occasions. The Department is concerned as to how long the carer may be able to continue to look after C. For this reason, the Department is endeavouring to locate a suitable adoptive family for C as soon as possible.
The Department's Local Adoption and Permanent Care Program (the "Program") is responsible for working with birth parents within New South Wales who are voluntarily considering adoption for their child, as well as families in New South Wales specifically wishing to adopt a child or infant from Australia (as opposed to overseas).
Due to the nature of the work (i.e. the birth parents approaching the Department as opposed to the children being removed due to child protection concerns), the majority of children in the Program are under 2 years of age. There is also only a very small number of infants in the Program at any one time (up to 20 being adopted each year).
Applicants are assessed and approved as suitable to adopt a child under Chapter 3 of the Act prior to any child actually being placed with them and then wait in a "pool" with other prospective adoptive carers. The Program is responsible for identifying the most suitable families from that pool to accept placement of a specific child once that child is in the Secretary's care.
Given the size of the Program, only a small number of couples or families are included in the pool of approved applicants. Sometimes applicants can wait years before a suitable child becomes available for adoption.
As has happened with C, when an infant comes into the Program they are placed with short term carers on a voluntary basis while casework is undertaken to assist the birth parent or parents to consider all of the options for the long term care of their child as well as the legal and emotional implications of an adoption decision.
Once the Secretary is allocated parental responsibility, those administrating the Program are able to make decisions about the child's long term care and to identify suitable prospective adoptive carers. The Department seeks to ensure that issues related to parental consent have been addressed and, if possible, resolved prior to placing a child with the proposed adoptive parents. This is for a number of reasons.
First, it helps reduce the anxiety of a consenting birth parent at a difficult time in their lives. Having been involved in an emotionally challenging and stressful process, it provides a consenting birth parent with a degree of certainty that their wish for their child to be adopted will be fulfilled.
Second, it reduces anxiety potentially experienced by prospective adoptive parents at the commencement of, and during, the early stages of placement. Although an adoption order cannot be guaranteed, one significant issue has been addressed. Accordingly, if consent has been dispensed with or given in accordance with the Act, prospective adoptive parents are generally better positioned emotionally to focus fully on a child's needs, which is critical at the early stage of placement when attachments are beginning to develop.
At the time of accepting a placement, and prior to the making of an adoption order, prospective adoptive parents are fully responsible for all aspects of the day to day care of that child. Unlike children in out of home care, there is no carer allowance available. Prospective adoptive parents generally need to use any parental leave entitlements that are available to them and are expected to make a significant investment both financially and emotionally in that child's care, in the same way as if it were their biological child.
It would be undesirable if parental consent issues were not addressed prior to the placement of a child through the Program. Birth parents are likely to experience greater stress and uncertainty with regards to their child's ongoing security, which may impact on their preparedness and capacity to participate in the consent process. Prospective adoptive applicants are also likely to experience greater stress and uncertainty, which may impact on their willingness to apply to the Program, to accept placements once approved or allow themselves to become fully attached to the child in their care.
The Act
The relevant provisions of the Act are:
Division 3 Dispensing with consent
66 How is need for consent dispensed with?
A requirement for the consent of a child or any other person to the child's adoption under this Act can be dispensed with if the Court makes an order under this Division dispensing with the requirement (a "consent dispense order").
67 When can Court dispense with consent of person other than the child?
(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that:
(a) the person cannot, after reasonable inquiry, be found or identified, or
...
(2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.
...
68 Who may apply for order dispensing with consent of person other than the child?
Any of the following persons may apply to the Court for a consent dispense order:
(a) the Director-General,
(b) the appropriate principal officer,
(c) if an application has been made to the Court for the adoption of the child by the mother, the father or a relative of the child (whether alone or jointly with another person)--the applicant or applicants,
(d) with the consent of the Director-General--the applicant or applicants for the adoption of the child.
...
70 When can consent dispense order be made?
(1) A consent dispense order may be made:
(a) before an application for an adoption order has been made in relation to a child, or
(b) in conjunction with an adoption order in relation to a child.
(2) Despite subsection (1) (a), a consent dispense order must not be made on the application of a person referred to in section 68 (c) except in conjunction with an adoption order in favour of that person or of that person and another person.
(3) A consent dispense order relating to the adoption of a child made before an application for an adoption order has been made in relation to the child has effect for the purposes of any application for an adoption order that is subsequently made in relation to the child.
71 Revocation of consent dispense order
(1) A consent dispense order in relation to the adoption of a child made before an application for an adoption order has been made may be revoked by the Court at any time before the making of the adoption order.
(2) The consent dispense order may be revoked on the Court's own initiative or on the application of:
(a) the Director-General or of the person whose consent was dispensed with, or
(b) if the order was made on the application of a principal officer-the principal officer.
72 Notice of consent dispense order
(1) The Court must not make a consent dispense order on the application of any person unless notice of the application has been given to the person whose consent is sought to be dispensed with at least 14 days before the order is made.
(2) Subsection (1) does not apply if:
(a) the person cannot, after reasonable inquiry, be found or identified, or
(b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent and his or her physical or mental health would, in the opinion of the Court, be detrimentally affected if he or she were to receive notice of the application, or
(c) the Court considers that in the particular circumstances of the case it is desirable to make an order without notice of the application having been given.
(3) The Court must not revoke any consent dispense order on application of a person unless not less than 14 days' notice of the application has been given:
(a) in the case of an application for revocation made by a person other than the Director-General-to the Director-General, and
(b) in the case of an application for revocation made by a person other than the principal officer who applied for the consent dispense order-to the principal officer, or
(c) if an application has been made to the Court for the adoption of the child by the mother, the father or a relative of the child (whether alone or jointly with another person)-to the applicant or applicants.
The issue
For the reasons set out in paragraph [57] to [67] below, I have no doubt that if this was an application for a consent dispense order in conjunction with an adoption order in favour of named adopting parents, a consent dispense order should be made. The relatively novel issue (in terms of reported or unreported authority) is what should inform the principled exercise of the Court's discretion to make a consent dispense order before an application for an adoption order has been made, as is permitted by s 70(1)(a). To consider this I will review the legislative history in New South Wales, the position in other states and the case law (such as it is).
The legislative history - NSW
The predecessor to the Act was the Adoption of Children Act 1965 (NSW) (the "1965 Act"). Section 32 of the 1965 Act included:
(2) An order under this section may be made before an application for an adoption order has been made in respect of the child or in conjunction with an adoption order in respect of the child but shall not be made on the application of a person referred to in paragraph (c) of sub-section (1A) except in conjunction with an adoption order in favour of that person or of that person and another person.
(3) Any order under this section made before an application for an adoption order has been made in respect of the child has effect for the purposes of any application for an adoption order that may subsequently be made in respect of the child.
A brief explanation of these sections was given by the Honourable A D Bridges, Minister for Child Welfare, on the second reading of the Adoption of Children Bill 1965 in the Legislative Council (NSW Parliamentary Debates (3rd series) Session 1965-1966, Volume LX, pp 3046-3047):
Under the Act the court has power to dispense with the consent of any person to an adoption if the court is of the opinion that it is just and reasonable so to do. Clause 32 of the bill reaffirms this discretion of the court, but in addition sets out certain specific circumstances in which the court may dispence (sic) with a consent to an adoption. An important new provision is that the court may make an order dispensing with consent before an application for the adoption of the child concerned has in fact been lodged. This will enable the director or an agency to be reasonably certain that a child is free for adoption before making an adoption placement.
This passage makes it clear that the policy underlying the introduction of the power to dispense with consent before an adoption application has been made was the desirability of it being reasonably certain that, in fact, a child was free for adoption. However, the second reading speech does not offer an insight into why that certainty was thought to be desirable. That matter has been discussed in more detail in Victoria.
The position in other states
In addition to New South Wales, the adoption legislation in Victoria, Western Australia, South Australia and the Australian Capital Territory specifically refers to the possibility of what the Act refers to as a consent dispense order being made before an application for an adoption order has been made: Adoption Act 1984 (Vic), s 43(4); Adoption Act 1994 (WA), s 24(1); Adoption Act 1988 (SA), s 19(1); and, Adoption Act 1993 (ACT), s 35(3). However, in the case of Victoria, South Australia and the Australian Capital Territory, the power to make an order before an application for an adoption order has been made is expressed to be (taking the Victorian legislation as an example) "in order to facilitate the making of arrangements with a view to the adoption of a child". The Act does not contain a similar statement of purpose.
The following remarks were made by RJ Hamer, Victorian Minister for Immigration, after moving an amendment to the Adoption of Children Bill 1964, the predecessor to the current legislation in that state (Victoria, Parliamentary Debates (1963-4), Vol CCLXXIV, pp 3827-2828):
Sub-clause (2) is important because it contains a provision which, for the first time, enables the application to the court for dispensing with consent to be made before the actual adoption proceedings are taken. Honorable members will appreciate that there are many people who would like to adopt children, but when they learn that some difficulty may be encountered in obtaining consent they are not willing to start adoption proceedings. If the court does not agree to dispense with the consent of the parent, then there is a tremendous upset for the adopting parents, who, in the meantime, may have become fond of the child and set their hopes on adopting it.
The amendment to sub-clause (2) proposes to give the principal officer of a private adoption agency the same power as the Director-General to clear the way for adoption. This will ensure that the child who is in the care of the principal officer and who is the subject of the adoption is prepared for that status by the consent of the natural parent being ready in advance. The effect of the amendment will be to extend this right to the private adoption agency.
On the amended bill's second reading, the Chief Secretary, Mr Rylah, said (Victoria, Parliamentary Debates (1963-4), Vol 1 CCLXXIV, pp 4018-4019):
The power to dispense with consents in sub-clause (1) of clause 29 is roughly the same as the power in the current Act, but sub-clause (2) introduces a novel provision. Under the current Act, a consent may be dispensed only for the purposes of an actual application. Because of the uncertainties involved, children for whom a consent cannot be produced are passed over by possible adopters in favour of those for whom consent is available. To remove this disadvantage, sub-clause (2) allows consent to be dispensed before application is made for adoption. This will greatly assist the adoption of children who have been abandoned in institutions by their parents, and for a long time it has been sought by people working in the social welfare field.
The authorities
The only relevant New South Wales decision which my own researches and those of the Secretary's legal advisers was able to identify is the decision of Powell J (as his Honour then was) in Re EW and the Adoption of Children Act [1980] 1 NSWLR 89. His Honour's expertise in matters such as guardianship, adoption, probate and the Court's protective jurisdiction was such that his judgments in those areas are generally to be accorded the highest respect. Regrettably, in this case, for reasons which I shall now explain, his Honour's decision is of no assistance in resolving the present issue. Contrary to the submission put on behalf of the Secretary, I do not propose to apply it.
His Honour records (at p 90B) that he was considering the first application that had ever been brought to dispense with a consent in the absence of an adoption application under s 32(2) of the 1965 Act (reproduced in paragraph [38] above). The difficulty for present purposes is that the application to dispense with consent before his Honour was made in reliance on then s 32(1)(e) that "by dispensing with the consent so that an order for the adoption of the child may be made, the interests and welfare of the child will be promoted". Neither that ground nor anything like it appears in s 67 of the Act. I do not accept the Secretary's submission that s 32(1)(e) of the 1965 Act may be equated to the present s 67(2): the former was a basis upon which to exercise the discretion whereas the latter is a prohibition against exercising the discretion.
His Honour records (at p 91F) a submission put by counsel for the parents whose consent was sought to be dispensed with that "the only cases in which it would be appropriate to make an order based on s 32(1)(e) pursuant to s 32(2) would be those in which it appeared that it would be impossible to obtain appropriate foster parents or adoptive parents until the "impediment" to adoption were removed. He instanced "deferred adoption situations", that is, cases of children suffered (sic) from significant physical or intellectual handicap, as an example". His Honour does not expressly deal with that submission. However, in attempting to formulate the appropriate test (at p 92B - D), his Honour described the task of identifying the appropriate test to apply in the case before him as "a difficult one". His Honour twice refers to "logical difficulties" in applying the established tests because they necessarily involved a comparison between the child's present circumstances and his or her circumstances if adopted by specified adopting parents. It is clear that his Honour was troubled as to what test to apply when that comparison was not available, as would have to be the case where an application to dispense with consent was made before the adoption application had been made.
His Honour's ultimate conclusion was (at p 92F):
The solution in this case - it may not apply in all cases - seems to me to lie in posing the question in this way: Whether it is more to the advantage of the children that they become fully integrated into stable and caring families - for a pre-condition to any adoption is that the child go to a stable and caring family - than that they remain, in law, the children of parents who have, in the past, proved totally unable to care for them properly; who are unlikely ever to regain the care of them again, who, even if they were to regain the care of the children, would, in all probability, be totally unable to care for them properly in the future, from whose care, in that event, the children would again need to be removed, and in or towards whom the children either have not the slightest interest or feeling - unless it be a feeling of animosity - whatsoever.
With the utmost respect to his Honour, I do not propose to apply his decision (by which I am not, in any event, bound) for three reasons. First, the context informing his Honour's reasons is a provision which does not exist in the Act. Second, the test posed by his Honour does not, in my respectful opinion, sufficiently attend to the peculiar circumstance of the application being brought in advance of any adoption application. Third, it is impossible to conceive of any occasion on which the question posed by his Honour would be answered other than "yes", whereas there is no suggestion in the statutory language which I am applying that an order must necessarily be made in advance of an application for adoption.
Moving further afield, the only other decision which has been able to be identified of any possible relevance is that of Higgins CJ In the matter of an adoption of T [2012] ACTSC 61. His Honour was there concerned with s 35(3) of the Adoption Act 1993 (ACT):
(3) To facilitate the making of arrangements for the adoption of a child or young person, on the application of the director-general or the principal officer of a private adoption agency, the court may make an order under subsection (1) before an application for an adoption order has been made, and the first order has effect for the purpose of any subsequent application for an adoption order.
The learned Chief Justice concluded:
[11] It is apparent that there is currently a proposal from a specific person for the adoption of T. In my view, s 35(3) permits the dispensation with consent only if there is such a specific proposal. That must be so because otherwise it could not be concluded that the best interests of the child would be served by the making of the order ...
The learned Chief Justice's decision turns on the particular language of the statute which he was considering. That language is different to the language of the Act. There is nothing in the Act which would produce the same conclusion reached by Higgins CJ that an order to dispense with consent before an application for an adoption order has been made could only occur if there was, at the time of the order, a specific proposal from a specific person for the adoption of the child. While I mention his Honour's decision for completeness, the differences between the relevant parts of the Act and its Australian Capital Territory equivalent mean that his Honour's decision is of no assistance in determining the question before me.
Resolution
Contemporary adoption practice does not ignore or unnecessarily seek to sever or discourage the relationship between the child being adopted and that child's birth parents. Rather, it respects the rights and role of the birth parents to the extent their involvement is consistent with the best interests of the child. That policy is made apparent in several of the objects and adoption principles set out in the Act:
7 What are the objects of this Act?
The objects of this Act are as follows:
...
(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,
...
(g) to encourage openness in adoption,
...
(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.
8 What principles are to be applied by persons making decisions about the adoption of a child?
(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles:
(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,
...
(2) In determining the best interests of the child, the decision maker is to have regard to the following:
...
(e) any wishes expressed by either or both of the parents of the child,
(f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,
The requirement for a birth parent's consent to an adoption is a fundamental manifestation of the policy evidenced by the provisions to which I have just referred and is given effect in subsequent provisions of the Act:
52 Consent of parents and persons who have parental responsibility generally required
The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given:
(a) in the case of a child who has not been previously adopted by:
(i) each parent of the child, and
(ii) any person who has parental responsibility for the child, or
(b) in the case of a child who has previously been adopted-by each adoptive parent of, or person who has parental responsibility for, the child.
53 Ways in which parent or person who has parental responsibility can give consent
(1) For the purposes of this Act, a parent of, or person who has parental responsibility for, a child may consent to the adoption of the child only by:
(a) giving "general consent" to the adoption of the child by an adoptive parent or parents selected by the Director-General or principal officer of an accredited adoption service provider, or
(b) giving "specific consent" to the adoption of the child by:
(i) a specified adoptive parent who is a relative of the child, or
(ii) 2 specified adoptive persons, one of whom is a parent or relative of the child, or
(iii) a specified adoptive parent who is step parent of the child, or
(iv) a specified adoptive parent who is an authorised carer who has had care responsibility for the child for 2 years or more.
(2) Nothing in this section prevents the Director-General or principal officer from selecting an adoptive parent or parents for the purposes of subsection (1) (a) from one or more of the classes of persons referred to in subsection (1) (b).
...
56 Birth father to be given opportunity to consent
(1) This section applies if:
(a) consent to the adoption of a child has been given by the child's birth mother or person who has parental responsibility but not the birth father of the child, and
(b) an adoption hearing has not been held, and
(c) the Director-General or appropriate principal officer knows, or after reasonable inquiry ascertains, the name and address of the person whom the Director-General or principal officer reasonably believes to be the birth father of the child.
(2) When this section applies, the Director-General or principal officer must give the person known, or reasonably believed, to be the birth father of the child notice:
(a) that the child's birth mother or person who has parental responsibility has consented to the adoption of the child, and
(b) advise him:
(i) of the legal processes by which he can establish paternity in relation to the child or be registered as the father of the child, and
(ii) of his rights as a parent in relation to the adoption of the child.
The need for a birth parent's consent is therefore an important part of the legislative scheme and is not to be dispensed with lightly. Nevertheless, the Act makes provision for such dispensation, the relevant provisions being set out in paragraph [36] above.
In relation to dispensing with consent in the present circumstances, properly to apply s 67(1)(a), s 67(2) and 70(1)(a) requires the Court to answer three questions:
(1) Is the Court satisfied that the person cannot, after reasonable inquiry, be found or identified?
(2) Is the Court satisfied that to make a consent dispense order before an application for an adoption order has been made in relation to a child is in the best interests of the child? and
(3) If the answers to questions (1) and (2) are "yes", whether in the exercise of its discretion the Court should make the consent dispense order?
I will deal with each of these questions in turn.
Whether C's birth father cannot, after reasonable inquiry, be found or identified
Insofar as s 67(1)(a) is concerned, the consistent approach of this Court is to address the question of reasonable inquiry from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made. I have previously set out the relevant authorities for this approach in Re WJP and the Adoption Act [2014] NSWSC 783.
Assuming, without deciding, that C's birth father has been identified and is the putative father with whom the Department has had some communications (see paragraphs [13] and [14] above), by reason of the matters set out in paragraphs [13] to [21] above the Court is satisfied that person cannot, after reasonable inquiry, be found. The person making the current application is the Secretary. It is clear from the matters to which I have just referred that the Secretary has made reasonable inquiries as to the whereabouts of C's putative father in his home country. It would not be reasonable to require the Secretary to make further inquiries in that country. The principal reason for that conclusion is clear when the Court looks at the question of reasonable inquiry from the perspective of the person about whom the inquiry is to be made. It is clear from the facts to which I have referred in paragraphs [19] to [21] above that C's putative father does not wish to be found and that, at least at this stage, wishes to have nothing further to do with the matter.
Accordingly, question (1) identified in paragraph [55] above is answered "yes".
The best interests of C
In determining whether the Court is satisfied that it is in the best interests of C to make a consent dispense order before an application for an adoption order has been made in relation to C, the Court must be satisfied that there are circumstances which warrant that conclusion. Those circumstances include the kinds of matters which the Court can discern that the Parliament had in mind when introducing s 70 of the Act or, as is the case here, its predecessor in the 1967 Act. The reason identified in the second reading speech in relation to the 1967 Act (see paragraph [39] above) was the desirability of there being reasonable certainty that a child is free for adoption before being placed with potential adoptive parents.
While never losing sight of the importance of any differences in language, I do not see any reason in principle why the Court, in seeking to identify matters which are relevant to cases like the present, is not entitled to look to any reasons articulated in other legislatures which have passed similar provisions. Taking this approach the Court accepts that considerations of the kind identified in the Victorian Parliament (set out in paragraphs [42] and [43] above) could be relevant to the present case. The facts which I have found in paragraphs [32] to [35] above reflect those matters. However, I should make it clear that I do not consider any recourse to the Victorian debates to be for the purposes of interpreting s 70(1) of the Act because there is no doubt about its meaning. Therefore, s 34 of the Interpretation Act 1987 (NSW), which authorises the use of extrinsic materials, is inapplicable.
Furthermore, a decision of the kind which the Court is being called upon to make in this case is "a decision about the adoption of a child" for the purposes of s 8(1) of the Act (set out in paragraph [52] above). That section identifies principles to which the Court is to have regard (as far as practicable or appropriate). While the first principle referred to in s 8(1) of the Act repeats the requirement to consider the best interests of the child as the paramount consideration, s 8(1)(e1) identifies the principle that "undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare".
Taking all the matters to which I have just referred into account, the Court is satisfied that by reason of the matters set out in paragraphs [16] and [23] to [25] above and the application of the principles set out in ss 8(1)(a) and 8(1)(e1) of the Act it is in the best interests of C for a consent dispense order to be made before an application for an adoption order has been made in relation to C. The reasons for this may be summarised as:
(1) Knowing that C is undoubtedly available for adoption may increase the number of potential adoptive parents prepared to consider C. The risk of C being passed over in favour of children in respect of whom consent has been given or dispensed with will be minimised. Given that some potential adoptive parents may not select C because of C's health issues, it is in C's interests for the pool of potential adoptive parents to be as large as possible.
(2) Dispensing now with the birth father's consent will minimise the risk of disruption to C that would occur if C was placed with potential adoptive parents with whom C began to bond only to have the adoption not proceed due to some difficulty with the consent later.
(3) The certainty of C's availability for adoption will enable C's proposed adoptive parents to focus fully on C's needs and ensure they are not inhibited in allowing themselves to become fully attached to C.
(4) Consistently with the principle set out in s 8(1)(e1) of the Act, disbursing with consent now will reduce the possibility of delay in obtaining an adoption order later.
(5) Any step which can ensure that the process of finding adoptive parents is accelerated is especially desirable in the case of C. There are genuine grounds for concern that the carer, through no fault of her own, may become unwilling or unable to care for C. It is obviously in C's interests that C only have to undergo one relocation to the proposed adoptive parents rather than adding a further intermediate step of a new carer.
Question (2) set out in paragraph [55] above is therefore also answered "yes".
Should the discretion be exercised?
Being satisfied of what might be referred to as the two prerequisites or jurisdictional facts, the remaining question is whether or not the Court should exercise the discretion conferred by the opening words of s 67(1) of the Act ("The Court may make a consent dispense order ....").
At least three matters inform the ultimate exercise of the discretion:
(1) The clear policy which the Act demonstrates in favour of respecting the rights of birth parents, including obtaining their consent to any adoption (see paragraphs [52] to [54] above);
(2) The Court's conclusion in this case and the reasons for that conclusion that it is in the best interests of C for a consent dispense order to be made before an adoption order has been made in relation to C (see paragraphs [62] to [63] above); and
(3) The fact that a consent dispense order can be revoked in the circumstances set out in s 71 of the Act (which, although set out in paragraph [36] above, I repeat here for convenience):
71 Revocation of consent dispense order
(1) A consent dispense order in relation to the adoption of a child made before an application for an adoption order has been made may be revoked by the Court at any time before the making of the adoption order.
(2) The consent dispense order may be revoked on the Court's own initiative or on the application of:
(a) the Director-General or of the person whose consent was dispensed with, or
(b) if the order was made on the application of a principal officer-the principal officer.
Taking all of those matters into account, the second and third prevail over the first. The Court therefore exercised its discretion to make the consent dispense order in Order 5 (set out in paragraph [5] above).
The significance of the power to revoke a consent dispense order
While not the subject of argument before me, because of the dearth of authority dealing with the making of a consent dispense order before an adoption order has been made, I consider it appropriate to express my views on the significance of the fact that a consent dispense order can be revoked under s 71 of the Act at any time before the making of the adoption order.
Insofar as the revocation of a consent dispense order is concerned, the Act contains a significant difference from the 1965 Act. Section 32 of the 1965 Act provided:
(3) Any order under this section made before an application for an adoption order has been made in respect of the child has effect for the purposes of any application for an adoption order that may subsequently be made in respect of the child.
(4) An order under this section referred to in sub-section (3) may, on the application of the Director-General or of the person whose consent was dispensed with or, where the order under this section was made on the application of the principal officer of a private adoption agency, on the application of that principal officer, be revoked by the Court at any time before the making of an adoption order in respect of a child.
It will be noticed that s 71(2) of the Act (see paragraph [66] above) now provides that a consent dispense order may also be revoked "on the Court's own initiative". This amendment is not the subject of any comment in the extrinsic materials to the Act such as the explanatory memorandum. The words do not appear in the draft bill (which formed the basis of the Act) propounded by the NSW Law Reform Commission (NSW Law Reform Commission, Report 81 (1997) Review of the Adoption of Children Act 1965 (NSW)).
In my view, when the Court comes to consider an application for an adoption order in favour of specified adoptive parents, the policy and provisions of the Act which refer to the role of the child's biological parents and the need for their consent (see paragraphs [52] to [54] above) coupled with the Court's power to revoke a consent dispense order on its own initiative, mean that at the time of considering an adoption order the Court should, in the exercise of its discretion to make such an order, consider whether or not a previously made consent dispense order should be revoked. Whether this should in fact occur will depend upon the facts of each case. It will also depend upon the basis upon which the earlier consent dispense order was made. It may be that the circumstances of a particular case will require the Court to ask for evidence to satisfy it that a previous consent dispense order should not be revoked.
It is impossible to foresee all the factual permutations which may confront the Court and require the question of an earlier consent dispense order to be revisited. However, one simple example will suffice to make the point. If an earlier consent dispense order was made because the person was not mentally or physically fit to give proper consideration to the question of consent (s 67(1)(b)), I consider that the Court should be provided with evidence by the applicant for the ultimate adoption order that the physical or mental condition because of which the earlier consent dispense order was made still persisted at the time of the application for the adoption order.
The amended summons is withdrawn
At the end of the hearing I informed the Secretary's legal representatives that the Court was prepared to make the consent dispense order on the basis that it did not have an application for an adoption order before it. The Secretary responded that, in that event, the Court would not be asked to determine the question of whether an application could properly be brought for an adoption order where the adoptive parents had not been identified. I therefore only note in passing to explain the Court's concern (see paragraph [4] above) that provisions such as ss 23(1) and 26 of the Act may have the effect that an application for an adoption order can only be brought in favour of a specified person or persons. Given the Secretary's response, the Court made Orders 1 and 2 set out in paragraph [5] above.
Finally, by reason of C's circumstances as set out in paragraphs [16] to [25] above, the Court was well satisfied that a further interim order for parental responsibility in favour of the Secretary should be made for an additional 12 months to enable the Secretary to identify potential adoptive parents for C as soon as possible. For this reason Order 4 was made. Order 3 was required to regularise the summons in support of Order 4.
Decision last updated: 25 July 2014
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