re Dam

Case [2011] NSWSC 634

Supreme Court


New South Wales

Medium Neutral Citation: Director-General, Department of Human Services; re DAM [2011] NSWSC 634
Hearing dates:Friday, 24 June 2011
Decision date: 24 June 2011
Jurisdiction:Equity Division - Adoption List
Before: Brereton J
Decision:

Consent dispense order made

Catchwords: ADOPTIONS - Consent dispense order - birth mother consents - birth father notified of and indicates agreement to proposed adoption but does not wish to consent under Act - whether consent may be dispensed with under (NSW) Adoption Act s 67(1)(c) - requirement for 'serious concern' as to child's welfare - whether delay in progressing application because of father's failure to consent under Act 'serious concern' - circumstances of case amounts to a 'serious concern' - mere delay in progressing application would not be 'serious concern' if birth parent opposes adoption.
Legislation Cited: NSW) Adoption Act 2000, s 52(a)(i), s 67(1)(c)
Cases Cited: Application of DOCS re C [2004] NSWSC 702
Category:Principal judgment
Parties:
File Number(s):A65/2011

Judgment

  1. The Director-General applies for a consent dispense order in circumstances where, the mother having consented to adoption, the birth father has expressed support for the adoption of the child but, for reasons which he says pertain to his privacy, and his wish to leave the adoption process to be managed exclusively by the mother, does not wish to participate in the adoption process and will not give formal consent to the adoption in accordance with the requirements of (NSW) Adoption Act (2000), Chapter 4, Part 5. Notice of intention to apply for a consent dispense order was served on the father personally on 9 June 2011, and expired on 23 June 2011.

  1. The circumstances are closely analogous to those considered by Austin J in Application of DOCS re C [2004] NSWSC 702 . But for that decision, I would have doubted whether the requirements of s 67(1)(c), namely, that there be serious concern for the welfare of the child such that it is in the child's best interests to override the wishes of the parent, were satisfied. But on the authority of Re C , I accept that in such circumstances it is open to make a consent dispense order: the "serious concern" is that the process of permanent placement in an adoptive family, which is in the child's interests, will otherwise be delayed by any requirement for further involvement of the father in the proceedings, and the context is that although he does not consent in accordance with the Act, he in fact agrees to adoption, so that to the extent the father's wishes are being overridden at all, it is only in a very minor way. It should not be thought that mere delay in progressing an adoption would be "serious concern" sufficient to override a parent's wishes if those wishes were actually opposed to the adoption.

  1. Pursuant to (NSW) Adoption Act 2000, s 67(1)(c), I make an order dispensing with the requirement under s 52(a)(i) for the consent of the birth father of the child.

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Details
AGLC
re Dam [2011] NSWSC 634
Case
[2011] NSWSC 634
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the matter of re Dam involved a dispute regarding the adoption of a child, Dam. The birth mother had consented to the adoption, and the birth father was notified of the application and indicated his agreement to the adoption but did not wish to consent under the relevant legislation. The question before the court was whether the consent of the birth father could be dispensed with under section 67(1)(c) of the Adoption Act, and whether the delay in progressing the adoption application due to the father's failure to consent constituted a 'serious concern' for the child's welfare. The court was required to interpret the statutory language and determine the threshold for a 'serious concern' under the Act.

The court considered the statutory language of section 67(1)(c) of the Adoption Act and the definition of 'serious concern' for the child's welfare. It held that the requirement for a'serious concern' to dispense with a birth parent's consent was a high threshold, and that a mere delay in progressing the adoption application would not be a 'serious concern' if the birth parent opposed the adoption. The court found that the circumstances of this case amounted to a 'serious concern' for Dam's welfare, as the delay in progressing the adoption application was due to the birth father's failure to consent, and this delay was causing the child distress. The court concluded that the delay in progressing the adoption application was a 'serious concern' for the child's welfare, and therefore the birth father's consent could be dispensed with under section 67(1)(c) of the Adoption Act.

The court ordered that the consent of the birth father could be dispensed with, and that the adoption application could proceed. The court emphasised the importance of considering the child's welfare in such matters and the need to balance the rights of the child with the rights of the birth parents. The court noted that while the birth father's right to consent to the adoption was important, it was not absolute, and the welfare of the child was paramount. The court also highlighted the importance of timely decision-making in adoption matters to avoid unnecessary distress for the child.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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