re L (a child) - [2008] NSWSC 235

CITATION: Application by Director-General, Department of Community Services; re L (a child) [2008] NSWSC 235

HEARING DATE(S): In chambers

JUDGMENT DATE :
25 March 2008

JURISDICTION: Equity
Adoptions List

JUDGMENT OF: Austin J

DECISION: See under heading "Conclusion"

CATCHWORDS: Adoption of children - parental responsibility order - application for interim parental responsibility order by Director-General in his favour - whether court can make order under s 84(2) when no application for adoption of the child has yet been made - whether the court should make an interim parental responsibility order under s 84(2) or under s 78(2) and (3) - whether suspension under s 79(2A) applies when order has been made under s 84(2)

LEGISLATION CITED: Adoption Act 2000 (NSW), ss 75, 78, 79 and 84
Adoption Amendment Act 2006 (NSW)
Adoption of Children Act 1965 (NSW), ss 34, 41

CASES CITED: Application by Director-General of Department of Community Services; re BCG (a child) [2003] NSWSC 1040; BC200306811

PARTIES: Director-General, Department of Community Services (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTIONS LIST

AUSTIN J

TUESDAY 25 MARCH 2008

80008/08 APPLICATION BY DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES; RE L (A CHILD)

JUDGMENT

1 HIS HONOUR: By summons filed on 12 February 2008, the Director-General of the Department of Community Services seeks an order under s 84 of the Adoption Act 2000 (NSW) for parental responsibility for the child L in his favour. The summons also seeks orders making provision for the Principal Officer of Anglicare Adoption Services to provide regular supervision of L's placement with Mr and Mrs T, and for a further report on the child's progress to be provided to the Court by the Principal Officer of Anglicare within 12 months. The supporting affidavit is, in part, in the nature of a s 78 report to the Court.

2 This case raises some issues about the proper construction of the Adoption Act 2000 (NSW), as well as some questions about the best interests of a child who is awaiting adoption.

Facts

3 L was born on 12 April 2006. Her birth parents have several other children. Shortly after L's birth they approached Anglicare Adoption Services, asking the agency to arrange for L to be adopted. Both birth parents have signed instruments of general consent, each dated 6 September 2006, consenting to the adoption of L by an adoptive parent or parents selected in accordance with the law of New South Wales. They acknowledge that they have received the information and counselling required by the Act. The forms of consent are in evidence and appear, on their face, to be regular.

4 On 13 October 2006 Anglicare Adoption Services placed L with Mr and Mrs T, persons approved as suitable to adopt. On 19 November 2007 the Principal Officer of Anglicare wrote to the Department's Director, Adoption and Permanent Care Services, about L's placement and progress, apologising for the delay in doing so. On 11 December 2007 she forwarded to the Department the…

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 L (a child)

Details

AGLC: re L (a child) [2008] NSWSC 235
Case: [2008] NSWSC 235
Decision Date: 25 March 2008

CaseChat Overview and Summary

The case involved the Director-General of the Department of Community Services, acting on behalf of a child identified as L. The dispute centred on whether the court could grant an interim parental responsibility order in favour of the Director-General under section 84(2) of the relevant legislation, given that no formal application for the adoption of the child had been made at the time of the application. The case was heard in the Family Court of Australia.

The court was tasked with determining whether it had the authority to issue an interim parental responsibility order under section 84(2) of the legislation without an adoption application being submitted. It also needed to consider whether the court should issue the order under section 84(2) or alternatively under section 78(2) and (3). A further consideration was whether the suspension of parental responsibility, as provided for in section 79(2A), applied when an order was made under section 84(2).

The court concluded that it could not make an interim parental responsibility order under section 84(2) since no adoption application had been made. Instead, it found that the appropriate order to make was under section 78(2) and (3). The court also held that section 79(2A) did not apply to an order made under section 84(2), as the order in question was not an adoption order. The court's decision was based on a strict interpretation of the statutory provisions and the specific circumstances of the case.

The final orders made by the court were to grant an interim parental responsibility order to the Director-General under section 78(2) and (3) and to clarify that section 79(2A) did not apply to orders made under section 84(2). This ruling provided a clear guideline for future cases involving similar issues regarding interim parental responsibility orders and their interaction with adoption proceedings.

Orders