re D

[2012] NSWSC 223

Supreme Court

New South Wales

Medium Neutral Citation:

Director-General, NSW Department of Family and Community Services; re D [2012] NSWSC 223

Decision date:

14 March 2012

Jurisdiction:

Equity Division - Adoption List

Before:

Ball J

Decision:

The Court orders that:

1. Pursuant to s 67(1)(d) of the Adoption Act 2000, the consent of the child's natural mother be dispensed with.

2. Pursuant to s 67(1)(d) of the Adoption Act 2000, the consent of the child's natural father be dispensed with.

Catchwords:

FAMILY LAW - adoption - order under s 67 of the Adoption Act 2000 dispensing with consent of natural parents - where application made by authorised carers -meaning of 'those carers' where Minister is authorised carer - whether adoption 'will promote the child's welfare' where child already in care of proposed adopted parents.

Legislation Cited:

Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Category:

Principal judgment

Parties:

NSW Department of Family and Community Services (Plaintiff)
D (Child)

File Number(s):

011/2012

Judgment

1. This is an application by the Director-General as a delegate of the Minister for Family and Community Services for an order for adoption of a child, who I will refer to as "D", who is currently under the care of her proposed adoptive parents, who I will refer to as Mr and Mrs J.

1. There is no question that Mr and Mrs J are suitable to be parents of D. D, who was born on 23 April 2009, has been in their care since 27 April 2009 and during that time they have established a strong bond with her and have demonstrated their commitment to her welfare. The evidence establishes that D is developing into a happy and healthy child under their care. The only question is whether orders should be made under s 67(1)(d) of the Adoption Act 2000 (NSW) dispensing with the consent of D's natural parents to the adoption.

1. Before dealing with that question, I should say something about D's background and the circumstances in which orders are sought under s 67.

1. D was removed from the care of her natural mother shortly after she was born because of concerns about her mother's ability to care for and protect her. Those concerns arose from an extensive history of violence against D's mother by D's father. Most recently, D's mother had presented to the local hospital on 27 February 2009 following an assault by D's father. At that time, it appeared that she was substance affected and had had limited antenatal care. On 5 March 2009, D's mother was hospitalised following a further severe assault on her by D's father, although she subsequently discharged herself without medical consent. Concerns about D's mother's ability to look after D also arose from her mother's history of epilepsy and the aggressive behaviour she has demonstrated towards staff at certain refuges where she had stayed.

1. On 28 April 2009, the Children's Court made interim orders placing D in the care of the Minister. Subsequently, on 29 September 2009, an order was made by the Children's Court under s 79 of the Children and Young Person's (Care and Protection) Act 1998 placing D under the parental responsibility of the Minister until she attains 18 years of age. No application has been made to rescind or vary that order by D's natural parents under s 90 of the Act.

1. Various alternatives to adoption by Mr and Mrs J were considered. D has an older brother who is also in care. However, that carer was not willing to take D because of the close bonds she had already established with Mr and Mrs J. D's maternal grandmother had expressed an interest in caring for D. However, she was considered inappropriate because there was a current apprehended violence order taken out by her against her husband. D's paternal grandmother was not in a position to care for her. There are no other family members who might be in a position to do so.

1. Since the final orders of the Children's Court, the relationship between D's natural parents appears to have stabilised and, since D was born, D's parents have had two other children, who remain in their care.

1. A social worker appointed by the Department met with D's natural parents in July 2011 to discuss the proposal for D's adoption by Mr and Mrs J. Initially during that meeting, D's parents indicated that they thought D should be adopted by Mr and Mrs J and that they were happy with the care that D was receiving from them. The views they expressed then were consistent with views they had expressed previously to a case worker assigned to the case. However, when they were told that D's surname would change as a result of the adoption, they indicated that they were not prepared to give their consent.

1. On 20 February 2012, both D's natural parents were served with a notice of intention to seek an order dispensing with their consent to the adoption and notice of the application for adoption orders, together with a copy of the adoption plan. Under the terms of the adoption plan, it is proposed D's natural parents will attend a minimum of four contact visits per year, although the frequency with depend on D's needs and wishes.

1. Neither of D's natural parents has filed an appearance in the proceedings in response to the notices that were served on them.

1. Section 52 of the Adoption Act relevantly provides:

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) ...

1. Section 66 provides:

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 ).

1. Section 67 relevantly provides:

(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:

...

(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child:

(i) the child has established a stable relationship with those carers, and

(ii) the adoption of the child by those carers will promote the child's welfare, and

(iii) ...

(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.

"Authorised carer" is defined in the dictionary to include, relevantly, a person who "has care and responsibility for a child under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act 1998".

1. Section 135 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides:

(1) For the purposes of this Act, out-of-home care means residential care and control of a child or young person that is provided:

(a) by a person other than a parent of the child or young person, and

(b) at a place other than the usual home of the child or young person,

whether or not for fee, gain or reward.

(2) There are 3 types of out-of-home care for the purposes of this Act, as follows:

(a) statutory out-of-home care -see section 135A,

(b) ...

(c) ...

1. Section 135A(1) relevantly provides:

(1) Statutory out-of-home care is out-of-home care that is provided in respect of a child or young person for a period of more than 14 days:

(a) pursuant to a care order of the Children's Court, or

(b) ....

1. It seems clear that, as a result of these provisions, the authorised carer of D is currently the Minister.

1. The wording of s 67 of the Adoption Act is not entirely satisfactory. As I have said, the authorised carer of D is the Minister; and it is appropriate, therefore that this application be made (as it has been) by the Director-General as the Minister's delegate. However, the court is not to make an order under s 67 unless relevantly it is satisfied that "the child has established a stable relationship with those carers". In my opinion, the reference to "those carers" must be read as a reference to the persons who have been caring for D and who seek to adopt her - that is, Mr and Mrs J. It would make a nonsense of the section to read the reference to "those carers" as a reference to the authorised carer - that is, the Minister.

1. In my opinion, it is appropriate to make a consent dispense order in respect of both D's natural parents in this case. D has formed a strong bond with Mr and Mrs J and treats them as her parents. There is no question of D returning to the care of her natural parents. They accept that it is in D's best interests that she be adopted by Mr and Mrs J. Their only objection to the adoption is that it will result in a change in D's surname. It is D's best interests that the adoption proceed and the adoption will promote her welfare. It will give her a stable and loving environment in which to grow up in. I accept the views of Ms Yen, one of the case workers assigned to the case, that adoption will provide D with the security of belonging permanently in the family who is committed to her and is able to meet her needs; and that that is far preferable to the only alternative, which is that she simply remain in the care of Mr and Mrs J without the security and sense of belonging that adoption will bring.

1. Consequently, I make the following orders:

(1) That pursuant to s 67(1)(d) of the Adoption Act 2000, the consent of the child's natural mother be dispensed with.

(2) That pursuant to s 67(1)(d) of the Adoption Act 2000, the consent of the child's natural father be dispensed with.

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Decision last updated: 16 March 2012