Re Sarah

[2013] NSWCA 379

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Re Sarah [2013] NSWCA 379

Hearing dates:

5 November 2013

Decision date:

05 November 2013

Before:

Meagher JA at [1]
Barrett JA at [28]
Ward JA at [35]

Decision:

1. Extend time for application for leave to appeal to 5 November 2013;

2. Dismiss application for leave to appeal;

3. Dismiss first respondent's notice of motion of 27 August 2013;

4. Order applicant to pay respondents' costs of these proceedings.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

FAMILY LAW AND CHILD WELFARE - child welfare under state legislation - adoption - where it is not apparent on the child's instrument of consent that the child's counsellor has certified that the child understands the effect of signing that instrument - where no notification of putative birth father or consent dispense order thereto - whether in the best interests of the child to grant leave to appeal

Legislation Cited:

Adoption Act 2000
Children and Young Persons (Care and Protection) Act 1998
Status of Children Act 1996
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

Cases Cited:

Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186
D v Director-General Department of Community Services [2005] NSWCA 474
Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521
Director-General, Family and Community Services Re Felicity [2012] NSWCA 272
Druett v Director-General of Community Services [2001] NSWCA 126
GKD v Director-General, Attorney General's Department [2012] NSWCA 219
Krishna v Lovett [2011] NSWCA 354
Moulieux Pty Limited & Girvan NSW Pty Ltd (Receiver and Manager Appointed) (Court of Appeal, 20 September 1991, unreported)
Re DG and The Adoption Act 2000 (NSW) [2007] FMCAfam 712; (2007) 38 Fam LR 122
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Category:

Principal judgment

Parties:

JL (Applicant)
KLP and JSP (First Respondent)
Director-General, Department of Family and Community Services (Second Respondent)

Representation:

Counsel:
Applicant self represented
G Moore (First Respondent)
Ms S Christie (Second Respondent)
R D Wilson SC (Amicus curiae)
Solicitors:
Ellis McLachlan Solicitors (First Respondent)
I V Knight, Crown Solicitor (Second Respondent)

File Number(s):

CA 2013/212651

 Decision under appeal 

Date of Decision:

2012-03-02 00:00:00

Before:

Black J

File Number(s):

A167/2011

Judgment

1. MEAGHER JA: These are my reasons for joining in the orders made by the Court on 5 November 2013. Those orders extended the time for the applicant to apply for leave to appeal and dismissed that application with costs.

1. The applicant is the natural mother of Sarah who in March 2012 was 12 years and 9 months old. She sought to appeal from the order made by Black J on 2 March 2012 for the adoption of Sarah by the first respondents jointly. That order was made in a proceeding commenced by summons on 16 December 2011. The applicant was given written notice of the making of that application by letter dated 23 December 2011. That letter stated that on 7 December 2011 Sarah had signed a consent to her own adoption. It advised the applicant that if she wished to "oppose the adoption application" she should seek legal advice.

1. The applicant did not oppose the adoption application which was dealt with in accordance with UCPR r 56.4, that is in the absence of the public and without any attendance by or on behalf of the first respondents as plaintiffs.

1. The application was dealt with on the basis that Sarah had consented to her own adoption in accordance with s 54(2) of the Adoption Act 2000 and that the applicant had been given notice of the application as required by s 54(3)(a). No specific attention appears to have been addressed to the position of Sarah's natural father - possibly because it was assumed either that he was dead or that his identity was unknown. That was not, however, the position and was known not to be the position by the applicant and, it would seem, the first respondents.

1. In addition the fact that Sarah's natural father was alive and residing overseas was referred to in the adoption report prepared in accordance with s 91 and dated 21 October 2011. That report was not made available to the applicant or the first respondents at any time before the making of the adoption order: s 194. It was however before the Court by the time the order was made. The author of that report recorded that the man with whom the applicant had been living at the time of Sarah's birth, who had died in 2008, was not her natural father. The country where Sarah's natural father was now believed to be living was also referred to.

1. The form of consent which Sarah signed is dated 7 December 2011. It does not, as is required by s 61(3)(a) and (b) contain a statement on it by a counsellor that Sarah had been counselled and that the counsellor was of the opinion that Sarah understood the effect of signing the consent. The evidence did, however, include a statement from the counsellor dated 23 November 2011 that she had provided counselling to Sarah in accordance with s 63 concerning the legal effect of the consent. Sarah's consent was witnessed, in accordance with s 62, by a legal practitioner who stated that she was satisfied that Sarah understood the effect of signing the consent and that Sarah had been given a copy of the relevant mandatory information: ss 57, 59.

1. At the time of the application Sarah had been living with the first respondents since August 2009. She was first given into their care for a short period in March 2009. In November 2010 the Children's Court made an order granting sole parental responsibility of Sarah to the first respondents. There has been no appeal from that order. By March 2012 she had established a stable and happy relationship with the first respondents.

1. The adoption report concluded that assessing Sarah's overall circumstances the adoption was in her best interests. It noted that during the period that Sarah had been in the care of the first respondents she had made emotional, social and academic progress due to her personal drive and resilience and the stable and attentive care which she was receiving. It also recorded that Sarah had read the Department of Family and Community Services publication Mandatory Written Information for Children about Adoption and "was able to explain the implications of an adoption order, including the way her birth certificate would change".

1. That report also addressed in some detail Sarah's family history, the circumstances in which she had first been placed into the care of the first respondents and the contact which she had had with her mother and four siblings since that time. It noted that the proposed Adoption Plan also addressed her continuing contact with her siblings, mother and extended family. In relation to the applicant's views as to the adoption the report records that the applicant had received letters from Sarah stating that she was happy and that she understood Sarah was progressing well academically. The report did not suggest that the applicant opposed the adoption. On the contrary, it noted that she considered the adoption offered Sarah security and greater dignity.

1. Before making the adoption order the primary judge was required to be satisfied of the matters in s 90(1)(a) to (d). They include that the "best interests of the child will be promoted by the adoption" and that "as far as practicable ... the wishes and feelings of the child have been ascertained and due consideration given to them": see s 90(1)(a), (b). These matters seek to give effect to the underlying principles to be applied by persons making decisions about the adoption of a child: see s 8(1). The primary judge also had to consider and be satisfied that the making of the order was clearly preferable in the best interests of Sarah to any other action that could be taken by law in relation to her care: s 90(3).

1. On 12 July 2013, 16 months after the adoption order was made, the applicant filed a notice of appeal from that order. Because the subject matter of that order is not about money or property, the applicant requires leave to appeal: Re DG and the Adoption Act 2000 [2007] NSWCA 241; 244 ALR 195. The application for that leave was required to be filed by 30 March 2012: UCPR r 51.10. This made it necessary for the applicant to seek an extension of the time in which to apply for leave to appeal, as well as leave to appeal. The first respondents and the Director-General of the Department oppose those applications.

1. The evidence before this Court establishes that the appellant was aware of the making of the adoption order by July or August 2012. It is not necessary to determine whether, notwithstanding her denials, the Department's email dated 9 March 2012 or letter dated 5 April 2012 advising of the adoption order also came to her attention. On any view the applicant delayed 12 months before giving any notice that she challenged the making of the adoption order.

1. The grounds of appeal stated in the applicant's draft notice of appeal are:

"1) I was not given any legal information of court except for a letter from DOCS.

2) Both parents oppose Adoption.

3) Child has not attended supervised DOCS contact visit for years. Other children have. Not fair to other children.

4) [One of first respondents] caused DOCS to remove kids. Alleged I unfit to mother cannot provide basics to them."

1. The applicant filed four affidavits in support of her applications. The first (sworn 5 September 2013) and the second (sworn 11 September 2013) refer to the circumstances in which Sarah was first given into the care of the first respondents and the circumstances in which the applicant's four other children were removed from her care. There is also reference to the identity of Sarah's natural father and the lack of contact between Sarah and her siblings since August 2009. The applicant alleges that the first respondents have been keeping Sarah away from her and her siblings and that this is likely to harm Sarah's emotional wellbeing. The applicant also says that Sarah's natural father was not notified of the adoption application and maintains that the appeal was filed out of time because she was "informed of nothing".

1. The third and fourth affidavits, sworn 14 and 25 October 2013, attach written submissions which broadly speaking address the same subject matter as the earlier affidavits. Those submissions identify the following reasons as justifying the appeal: that one of the first respondents falsely alleged that the applicant was not properly looking after one of her younger children; that the remaining four children were removed from her care as a result of that claim; that the first respondents have misled Sarah concerning the applicant's health and mental wellbeing, that there was no evidence that the applicant was not fit to look after Sarah; and that Sarah may have consented to her adoption on the basis of misinformation supplied by the first respondents.

1. None of the four grounds of appeal sought to be raised by the applicant identifies an arguable basis on which the adoption order should be set aside. The first is not factually correct. The applicant was given notice of the adoption application in December 2011. That letter was a sufficient notice to the applicant for the purpose of s 54(3) of the Act. The second ground also is not factually correct and not to the point. The applicant was given notice of the application. She did not appear in opposition to it and indicated in discussions with the writer of the s 91 report that she had no real opposition to it. Sarah's natural father is not shown to have been given notice of the application. However the evidence before this Court is that he is aware of the proposed appeal and does not want to participate in it. He was initially named, without his consent and knowledge, as an appellant in the notice of appeal filed by the applicant. His name was subsequently removed by order of the Registrar. The evidence before this Court is that in telephone conversations with a senior officer of the Department, the natural father has indicated that he wants whatever Sarah wishes for in her best interest.

1. The subject matter of the third ground is dealt with in some detail in the s 91 adoption report; both as to the degree of contact between Sarah and her mother and siblings in the period since August 2009 and as to the ongoing contact proposed under the Adoption Plan which as amended was agreed to by relevant officers of the Department. In doing so that report describes, particularly from Sarah's perspective, the reasons why she has had little or no contact with the applicant, regular contact with one sibling and much less contact with the others. There is no suggestion in the report that the nature and extent of the contact which has occurred, and which it is proposed might occur consistently with the terms of the Adoption Plan, is considered to be other than in Sarah's best interests taking into account her wishes.

1. The subject matter of the fourth ground, which is the focus of much of the applicant's affidavit evidence and written submissions, is also dealt with in the s 91 report. That report refers to difficulties experienced by the applicant in looking after her children in the period before 2009. There are references to the involvement of officers of the Department. The fact that the applicant blamed one of the first respondents for the removal of her other children is also referred to. That matter as raised by the applicant was addressed and taken into account in the counsellor's assessment that the adoption was in Sarah's best interests.

1. In my view none of the four grounds of appeal relied upon by the applicant identifies any arguable error on the part of the primary judge in the making of the adoption order. For that reason I did not grant leave to appeal on any of those grounds.

1. There remain two matters raised in argument which do provide a basis for setting the adoption order aside. The first, which is relied upon by the applicant, although not in the draft notice of appeal, is that the order was made contrary to s 54(3)(a) because Sarah's natural father was not notified of the application. Subject to what follows that proposition would be correct.

1. The second, which was raised by Mr Wilson SC who appeared as amicus curiae on the hearing of the application, is that the order was made contrary to s 55(1)(b) because the counsellor did not certify on Sarah's consent, and before she signed it, that in her opinion Sarah understood the effect of doing so. Such a certificate was required by s 61(3)(b). Each of those propositions is correct. It would seem to follow that Sarah's consent was not effective because of the failure to comply with that requirement: s 58(1)(b). That would mean that s 54(1)(c) was not satisfied with the consequence that s 52 continued to apply and prohibited the making of the order in the absence of the consent of both of Sarah's parents. If that is right the order was made contrary to s 52 and not s 54(3)(a).

1. In the event of an appeal further evidence could be led provided there were shown to be "special grounds" for receiving it: s 75A(7), (8). It would then be necessary for this Court to decide, in the light of that evidence, whether to confirm the adoption order, in accordance with its powers under s 75A(6) and (10), or set the order aside and remit the adoption application to the Equity Division for further hearing. That question would have to be considered in accordance with the principles in s 8(1) of the Act; taking into account the child's best interests as the "paramount consideration", as this Court did in D v Director-General Department of Community Services [2005] NSWCA 474 at [58]-[59], [65] (per Hodgson JA, Ipp JA and Hunt AJA agreeing).

1. The two matters raised before this Court were not brought to the attention of the primary judge or otherwise noticed when the application was dealt with in chambers. Had they been each could have been addressed either by different orders being made or by the leading of further evidence. Neither would have been fatal to the success of the application.

1. The requirement for consent of the natural parents could have been dispensed with under s 54(1)(a) on the basis that s 67(1)(d) and (2) were satisfied because Sarah has established a stable relationship with the first respondents as her authorised carers and her adoption by them would promote her welfare and be in her best interests. That application could have been made by the Director-General or the first respondents, with the consent of the Director-General, and notice of it could have been given to the applicant (as was done) and the natural father. In those circumstances it would not have been necessary to obtain Sarah's consent.

1. Alternatively, a further consent which complied with s 61(3) could have been obtained from Sarah. At the same time an order under s 54(3)(b) could have been made dispensing with notice to Sarah's natural father. The evidence before this Court satisfies me that if this second course had been taken the further consent and certificate would have been obtained and the subject of evidence and that the circumstances otherwise would have justified the making of an order under s 54(3)(b). Those circumstances included that the natural father was living overseas; had telephone contact only with Sarah, most of that contact having occurred before she was seven years old; and did not oppose the adoption, his attitude being that it should go ahead if that was what Sarah wished.

1. If leave to appeal was granted to the applicant to raise these two further matters it would be open to this Court on the hearing of the appeal either to make an order under s 54(1)(a) dispensing with the consent of both natural parents or to permit further evidence as to Sarah's consent and justifying the making of an order under s 54(3)(b) as to the giving of notice to her natural father. Either course would justify this Court confirming the making of the adoption order. The question which then arises is whether it is in the best interests of Sarah that this occur. In my view it clearly is not. None of the matters relied upon by the applicant suggests that the primary judge was not properly satisfied as to the matters contained in s 90. The two additional matters concern respects in which the provisions of the Act were not complied with. Ordinarily those matters would require that any adoption order be set aside. However here notice of the application to do so was given 16 months after the order was made. The applicant has not referred to any matter which, taking into account the contents of the s 91 report, was not considered by the primary judge. Nor has the applicant raised any matter happening subsequently which in Sarah's best interests would justify a reconsideration of the original adoption order: cf D v Director-General Department of Community Services at [65]. In short, if leave to appeal was granted limited to the two matters first raised before this Court, the outcome would be the same. The making of the adoption order would be confirmed.

1. For these reasons it was my view that the application to extend the time for the leave application should be granted and that the application for leave to appeal should be dismissed. I also considered that costs should follow the event. The only matter which the applicant raised in opposition to that being the position was her impecuniosity which is not a relevant factor in the exercise of the discretion to order costs.

1. BARRETT JA: Two errors or irregularities attended the making of the adoption order in this case. They are referred to in the judgments of the other members of the Court. In summary:

(a) no order was made dispensing with the consent of the natural father or with the requirement that he be given notice of the proceedings; and

(b) the instrument of consent signed by the child did not bear any certificate of the attending counsellor stating an opinion that the child (then aged 12 years and about 9 months) understood the effect of signing the instrument, with the result that the consent was arguably invalid.

1. On any appeal brought by the natural mother, it would be open to this Court to exercise the powers that the primary judge could have exercised: Supreme Court Act 1970 s 75A(6). In addition, it would be open to this Court to receive further evidence if "special grounds" were established: s 75A(7) and (8).

1. Upon the hearing on 5 November 2013, the respondents produced material from which two things may confidently be inferred: first, that the person who is now said to be the child's father respects the child's wishes, has no desire to challenge the adoption order and is content for the child to be the adopted child of the first respondents; and, second, that the child herself was appropriately counselled before she gave her consent to her adoption and understood the implications of what she was doing, even though the counsellor's certificate to that effect was not forthcoming.

1. There is also material warranting a conclusion that the child, now aged 14 years and about 6 months, is well-settled with the first respondents (having been in their care since March 2009), that she has expressed clear and strong wishes to remain with them, that she is an intelligent and sensible girl, that she is thriving under the care of the first respondents and that she has a strong desire not to live with her natural mother.

1. Given that, in matters of this kind, the paramount determinant is the best interests of the child, there would be, in my opinion, "special grounds", in terms of s 75A(7) and (8) of the Supreme Court Act, for the Court to receive further evidence as to these matters upon the hearing of any appeal. It may therefore confidently be predicted that, upon any appeal by way of rehearing, a positive case would be made for dispensing with the father's consent and that an appropriate certificate of a counsellor as to the child's understanding of the meaning and significance of her consent would be forthcoming. There is, in my assessment, an overwhelming likelihood that the case would be shown to be one in which the two errors or irregularities are truly of a technical kind and the clear merits strongly warrant the upholding or re-making of the adoption order by this Court.

1. That being so and with the particular matters of objection raised by the natural mother being devoid of merit for the reasons stated by Meagher JA at [13] to [19] and by Ward JA at [58] to [64], the appeal the mother sought to bring enjoyed no prospects of success.

1. The appropriate course on 5 November 2013 was therefore to extend the time for the making of an application for leave to appeal by the natural mother but to dismiss that application, at the same time ordering that costs follow the event so that the natural mother must pay the respondents' costs in this Court.

1. WARD JA: On 2 March 2012, an order was made for the adoption, by the persons who are together the first respondent in these proceedings, of a child then aged 12 years and about 9 months. Pursuant to orders made by Beazley P on 12 September 2013, the child is to be known by the pseudonym Sarah and there is to be no publication of the name of the child or any information, picture or other material that identifies or is likely to lead to the identification of the child. The parties to the proceedings and other relevant persons will therefore not be referred to in these reasons by name.

1. The applicant in the present proceedings, to whom I will refer as the birth mother, is Sarah's birth mother. The identity of Sarah's birth father was stated in the Summons for Adoption filed by the first respondents as not known. There was, however, evidence (in a report prepared in earlier Children's Court proceedings relating to another child of the birth mother) and in the report filed pursuant to s 91 of the Adoption Act in relation to the adoption application (to which the first respondent did not at the time have access) that identified a putative birth father. He was named as the second appellant in the notice of appeal by which the present proceedings were commenced, though he did not sign the notice of appeal and has since indicated that he has no interest in pursuing an appeal. His name has been removed as a party to the proceedings by order of the Registrar.

1. The first respondent (the adoptive parents) had been Sarah's foster carers and had been granted parental responsibility for Sarah by orders of the Children's Court prior to their application for Sarah's adoption.

Background

1. Briefly, the background to the present dispute is as follows.

1. Sarah was first placed in the adoptive parents' temporary care in March 2009, with the agreement of the birth mother. After a time with them and then with relatives of the birth mother, Sarah was returned to the care of the adoptive parents on 31 October 2009. She has remained in their care since then. An order was made in the Children's Court on 15 November 2010 granting sole parental responsibility to the adoptive parents until Sarah turned 18.

1. By Summons filed 16 December 2011, the adoptive parents sought orders for Sarah's adoption. The Summons named the birth mother as the first defendant though it was not served on the birth mother. Therefore, the birth mother never became a party to the adoption proceedings. The birth mother was, however, made aware of the fact that an adoption application had been commenced, being served by the second respondent on 29 December 2011 with a Notice of Application for Adoption Order (the affidavit of service confirming this is at AB 136).

1. That Notice (AB 42) informed the birth mother that she had a right to oppose the adoption, to make application to become a party and to make known her wishes. It strongly suggested that the birth mother seek legal advice if the application was opposed and notified her that orders could be made in her absence if, after 14 days, she did not make contact with the Registrar in Equity. The birth mother confirmed receipt of that Notice in a telephone message on 29 December 2011 (see affidavit of service AB 136). However, in the present proceedings, the birth mother said that she did not understand the Notice and did not pay any attention to it.

1. Attempts were made by the second respondent in February 2012 to consult with the birth mother as to the content of the proposed adoption plan (affidavit of Grace Romeo sworn 25 October 2013 (AB 431 paras [11-14]). The birth mother's attitude to the adoption was recorded in the confidential s 91 report as being, on balance, supportive of the adoption.

1. The adoption order was made on 2 March 2012. There being no opposition to the application, it appears that orders were made by the primary judge on the papers. The material before the primary judge included the mandatory s 91 report. In that report, there was reference, inter alia, to the birth mother's stated belief that adoption was in her daughter's best interests (as removing the stigma of her being a foster child).

1. The s 91 report (to which none of the parties had access at the time, not surprisingly because pursuant to s 194 of the Act no person was able to have access to that or other documents in the adoption proceedings without the leave of the Court), also included the independent social worker's assessment as to Sarah's ability to understand the import of the orders sought in the adoption proceedings and her capacity to consent thereto.

1. Sarah signed an instrument of consent in relation to her adoption on 7 December 2011. That consent was witnessed by an independent lawyer who attested to the fact that she had sighted the Counsellor's report stating that Sarah was capable of understanding the effect of signing the instrument of consent. On what seems to have been a separate document, a Counsellor certified on 23 November 2011 that she had provided the mandatory counselling to Sarah in relation to the adoption.

1. By email dated 23 February 2012, the birth mother was informed by a case worker with the second respondent that the adoption application was before the Court (AB 439/440). Subsequently, by email on 9 March 2012 (AB 441), the birth mother was informed that the adoption order had been made on 2 March 2012. This was confirmed by letter dated 5 April 2012, with which a copy of the adoption plan was said to be enclosed (AB 442). The birth mother denies receipt of any formal notification of the making of the adoption order. She says that she moved address (within the same building) in April 2012 and had not received any emails in relation to the adoption (although there was evidence of email communication from the birth mother on the same email address prior to the adoption order being made).

Applications before this Court

1. Before this Court is the birth mother's notice of appeal filed 12 July 2013 (which, although referring to a material date of 24 July 2012, apparently seeks to challenge the 2 March 2012 adoption order) and a notice of motion filed by the adoptive parents on 27 August 2013 seeking to strike out the appeal and for indemnity costs. The parties read various affidavits on the respective applications, there being no objection to anything other than an annexure to one of the affidavits read by the first respondent (that annexure being a speech said to have been prepared and delivered by Sarah in relation to her adoption). The said annexure was admitted in evidence, noting the birth mother's objection thereto and subject to the submissions made by her as to the weight to be placed on it. Nothing ultimately turns on the content of that annexure on the present applications.

Extension of time/leave to appeal

1. The birth mother requires both the grant of an extension of time and of leave to appeal from the decision made for the adoption of Sarah. As to the first, since the adoption order was made on 2 March 2012 the time for the filing of a notice of intention to appeal or notice to appeal expired on 30 March 2012. The birth mother's notice of appeal was filed over a year after the material date had expired. As to the second, there is no appeal as of right from the making of the adoption order (s 101(2)(r) of the Supreme Court Act 1970 (NSW); Director-General, Family and Community Services Re Felicity [2012] NSWCA 272; GKD v Director-General, Attorney General's Department [2012] NSWCA 219; Re DG and The Adoption Act 2000 (NSW) (2007) 38 Fam LR 122; Clyne v NSW Bar Association (1960) 104 CLR 186).

1. The birth mother, on the hearing of the matter, orally applied for the extension of time necessary for any application for leave to appeal to be competent. No issue was taken by the respondents as to the informal nature of the extension of time application. However, both the first respondent and the second respondent (the Director-General, Department of Family and Community Services) opposed leave being granted to the birth mother to extend the time for the filing of her application for leave to appeal and the grant of leave to appeal.

1. After hearing submissions from all parties and Mr R Wilson SC, as amicus curiae, this Court granted the birth mother an extension of time for the filing of her application for leave to appeal and dismissed that application. The following are my reasons for concurring in that decision.

Reasons

1. Apart from the complaint made by the Director-General as to non-compliance by the applicant with Rules 51.12, 51.18 and 51.22 of the Uniform Civil Procedure Rules 2005 (NSW) (a matter that is properly to be taken into account on applications for leave of the kind sought by the birth mothers - Krishna v Lovett [2011] NSWCA 354), the respondents' opposition both to any extension of time and to the grant of leave for the appeal to be brought largely relates to the impact on Sarah of the significant delay in the bringing of this application and to the prospect that any different outcome would result if leave to appeal were to be granted and the appeal successful. As to those matters, I note as follows.

1. First, as to delay, the birth mother relied upon a lack of awareness of the adoption orders having been made. In her affidavit filed 14 October 2013, she says (at p 9):

I may be a little out of time but if I was not informed my daughter was formally adopted how can I be out of time I knew nothing if the conduct of the adoption process was not ethical and honest then there is a special consideration that I would have a right of appeal due the corrupt way in which the adoption was conducted. I have an apology from adoptions regarding the way in which the adoption was conducted and reassured this will not happen in future adoptions. The Adoption was kept a secret and occurred in a matter of months when most adoptions take years and years.

1. I have already referred to the communications in March and April 2012 as to the making of the adoption orders (that the birth mother says she did not receive). It is clear, however, that at least by July or August 2012 the birth mother was aware that the adoption had occurred. Annexed to the birth mother's affidavit of 25 October 2013 is an Assessment Report dated 16 August 2012 by a Children's Court clinician in separate proceedings relating to another of the birth mother's children, making reference to the fact that Sarah "has been adopted now", which indicates that by the time of the clinical assessment (in July/August 2012) the birth mother was well aware that adoption orders had been made (AB 362H). The birth mother accepts that by the winter of 2012 (the time put variously by her as July, August, August-ish, September and, finally, as probably August) she was aware that an adoption order had been made in respect of Sarah.

1. There is no explanation for the delay from August 2012 in commencement of the present proceedings other than insofar as the birth mother emphasised her lack of legal qualifications and asserted a lack of awareness of a time limit in that regard.

1. Delay is of particular significance in the present case in light of the impact of the belated appeal proceedings on Sarah. Concern has been expressed by one of the first respondents as to the emotional impact of her appeal on Sarah, who (as noted) was over 12 at the time of the making of the orders and who consented to her adoption (AB 123-124). In Moulieux Pty Limited & Girvan NSW Pty Ltd (Receiver and Manager Appointed) (Court of Appeal, 20 September 1991, unreported), Kirby P, then sitting as President of this Court, emphasised that the guiding principle on an application for the extension of time is the avoidance of injustice, and that an extension of time will not be granted if it will itself occasion an irremediable injustice.

1. In the present case, the significant delay in commencement of the proceedings, given that Sarah has now been the subject of an adoption order (and legally part of her adoptive parents' family) for some time, weighs against both the extension of time and the application for leave to appeal that is now made by the birth mother.

1. As to the prospects of success of the proposed appeal, or of any different outcome If the appeal were to succeed, for the reasons put forward by Mr Wilson (which are not the grounds relied upon by the birth mother in her Notice of Appeal but were in effect adopted by her in her submission that the adoption had been "fraudulent"), which I consider in due course, a challenge to the making of the adoption order would in my opinion be likely to succeed but would be unlikely to result in any different outcome in respect of the adoption.

1. Before turning to the matters raised by Mr Wilson, I note that the notice of appeal filed by the birth mother raised various matters: that the birth mother was not "given any legal information of course except one letter from DOCS"; that one of the first respondents had "caused" DOCS to remove Sarah from the birth mother's care; that both birth parents opposed the adoption; that Sarah had not attended supervised contact for years; and that the adoption was not fair to the birth mother's other children. In oral submissions, the birth mother relied on the lack of notice to the putative birth father as rendering the application "fraudulent" and the adoption order invalid.

1. First, as to the complaint about lack of notification, the circumstances in which the birth mother was notified about the making of the adoption application and ensuing adoption order have been set out above. There is no basis for any suggestion that the birth mother was not properly notified of the requisite matters even if she did not pay attention to or receive all of the communications. The birth mother cannot complain about the fact that she was not served with the summons, as that is not required for such an application. Nor was she entitled to receive the confidential s 91 report.

1. Second, as to the complaint in relation to the circumstances in which Sarah was removed from the birth mother, no appeal has been made from the decision of the Children's Court to place Sarah in the parental responsibility of the adoptive parents. Any such appeal would lie to the District Court (Children and Young Persons (Care and Protection) Act 1998, s 91(1)), there being no appeal to this Court from a decision of that Court (Druett v Director-General of Community Services [2001] NSWCA 126).

1. Although the Director-General concedes that this Court could examine whether findings of fact on the adoption application were open on the evidence before the Court below, reference is made to the report prepared under s 91 of the Adoption Act 2000 (AB 20-36) as precluding any conclusion that there was not evidence on the basis of which the necessary findings were open to be made. The Director-General notes that the report included the following statement (at AB 35L) as to the position of the birth mother in relation to the proposed adoption:

When interviewed [the birth mother] expressed a range of thoughts about the prospect of [Sarah's] adoption. On balance, at the time of interview, she felt that adoption offered [Sarah] protection from the stigma associated with being a foster child, and greater dignity.

1. Third, as to the opposition by the birth mother to the adoption, she had the opportunity to raise this at the adoptions hearing but did not do so (her opposition occurring at a later time in 2012 when she reviewed documents on the Children's Court file and formed the view that one or both of the adoptive parents had behaved improperly in relation to Sarah's initial placement in their care. As to the position of the putative birth father, he does not seek to be heard on the appeal from the adoption order and cannot, in view of the evidence of the conversations held with him, be said to oppose it.

1. Fourth, as to the complaints made as to lack of supervised contact and the impact of the adoption on Sarah's siblings, those were matters that could have been raised by the birth mother at the time of the adoption hearing. The adoption plan expressly addressed those matters and there was no complaint by the birth mother in that regard. As to the complaint in relation to adherence to the adoption plan, it is relevant to note that the arrangements were expressed to be subject to Sarah's own wishes. The evidence before the Court suggests that the reason for the lack of contact is that Sarah does not wish it to occur.

1. The matters of which complaint is made in the Notice of Appeal do not support the grant of leave to appeal.

1. That said, there are two respects in which there appears to have been error in the making of the adoption order and which would render it liable to be set aside if leave to appeal were to be granted. The first is the fact that there was no notice given to the putative birth father of the application for adoption (nor of any application to dispense with his consent thereto). The second relates to the manner in which Sarah's consent to her own adoption was recorded.

1. The starting point is to note that, pursuant to s 52 of the Adoption Act, the Court must not make an adoption order in relation to a child who is less than 18 years of age (as Sarah was at the time of her adoption and remains) unless consent has been given, relevantly, by each parent of the child. There is no dispute but that in the present case, no consent was given by either the birth mother or the putative birth father.

1. However, that is qualified by the fact that consent of the parents or person(s) having sole parental responsibility is not required if, inter alia, the requirement for consent has been dispensed with by the Court (s 54(1)(a)) or the child is over 12 years and gives sole consent to his or her adoption in accordance with subsection (2) (s 54(1)(c)).

1. The circumstances in which consent, other than of the child, can be dispensed with are limited by s 67 of the Act. Relevantly, those include the circumstances set out in (d), namely, where an application has been made for the adoption by one or more persons who are authorised carers of the child; the child has established a stable relationship with those carers and the adoption of the child by those carers will promote the child's welfare. As Slattery J noted in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521 at [59], the focal point of subsection 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility for the child; rather it is the child's present situation. There seems no doubt that, on the evidence before the primary judge, an order for dispensation of parental consent could have been made and would have been justified in the present case.

1. However, for that to have occurred there would have to have been either notification to the birth parents (or, in the case of the father, the putative birth father) of the application for a consent dispense order or dispensation with the requirement for such notice to be given.

1. That was not the course chosen by the adoptive parents (notwithstanding that a consent dispense order was sought on the Summons in relation to the birth mother). Rather, they chose to proceed with the application on the basis of Sarah's consent to her own adoption under s 54(1)(c). Section 54(2) permits a child who is 12 years or more of age, and of sufficient maturity to understand the effect of giving consent, to give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least two years. As already noted, as at the time of the adoption orders, Sarah had been in the care of the first respondents for at least two years. Having regard to the contents of the s 91 report (AB 20-36), Sarah appears to have been assessed as of sufficient maturity to have understood the effect of giving consent to her adoption. Section 54(2) would therefore be applicable.

1. Section 54(3), however, provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption unless the Court is satisfied that at least 14 days' notice of the application for the adoption has been given or the Court dispenses with the giving of such notice. Therefore, there remains the difficulty that no notice was given of the application for the adoption to the putative birth father and there was no dispensation with that requirement.

1. The respondents accept that there was no notification provided to the putative birth father under s 54(3)(a) of the Act, nor any order dispensing with the requirement for notice to be given to the birth father under s 54(3)(b).

1. In that regard, the adoptive parents further submitted that the requirements of s 54 were unnecessary because it had not been proved that the person initially named as the second appellant in the present proceedings is Sarah's father. They invoke the presumption of paternity under s 10 of the Status of Children Act1996 (Sarah being born when the birth mother was married to someone other than the putative birth father). Ultimately that submission was not pressed. It suffices to note that there was evidence in the other Children's Court proceedings to which I have referred above as to the identity of Sarah's putative birth father (such as the matters referred to in the affidavit of Grace Romeo sworn 6 September 2013 paras [15]-[18] at AB 245) which is inconsistent with any such presumption of paternity, including statements by the putative birth father and by Sarah as to her understanding of the identity of her birth father (albeit both deriving to some extent from the birth mother's own statements). Section 10 is subject to s 15(1) of the Act.

1. There being evidence as to the existence of a potential birth father, albeit to which his Honour's attention appears not to have expressly been drawn, the adoption order should not have been made without notification being given to the putative birth father or formal dispensation with his consent.

1. As to the application proceeding on the basis of Sarah's own consent, s 55 of the Act provides:

(1) The Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless:

(a) the child has been counselled as required by s63, and

(b) the counsellor has certified that the child understand the effect of signing the instrument of consent (as required by s61), and

(c) the child consents to his or her adoption by the prospective adoptive parent or parents or the court dispenses with the requirement for consent.

1. As to the form of consent, s 61 of the Act provides that:

(1) Consent is to be given by instrument ("an instrument of consent") that is in a form that contains the information prescribed by the regulations.

(2) A separate instrument of consent must be signed by the child and by each other person whose consent is required by the Act.

(3) Before the instrument is signed, a counsellor must sign a statement on it certifying that:

(a) the child or other person giving the consent has been counselled by the counsellor, and

(b) that the counsellor is of the opinion that the child or other person understands the effect of signing the instrument. (my emphasis)

1. Section 58(1) expressly provides that consent to a child's adoption is not effective "unless given in accordance with" the Act.

1. While there is evidence that Sarah was counselled on 23 November 2011 in accordance with s 55(1)(a) of the Act (AB 50) and signed a consent on 7 December 2011 (AB 57-8), it appears that the counsellor did not certify on that instrument of consent (before Sarah executed it) that the child giving the consent had been counselled by the counsellor and that the counsellor was of the opinion that the child understood the effect of signing the instrument in accordance with s 61(3). (There may be some uncertainty as to this insofar as it is not possible from the application book to ascertain whether the relevant forms were in some way attached or part of one composite instrument when signed by each of the Counsellor and Sarah, but the reasonable inference to be drawn from the different dates of execution is that they were separate documents.)

1. Mr Wilson, as amicus curiae, submits that the certification process imports a fundamental requirement and protection associated with the necessity for the child's consent to be in accordance with the Act, thus rendering Sarah's consent ineffective. I agree (though it might readily be inferred that had this issue been raised at the time of the adoption application it could have been met by a new consent from Sarah on which there was the requisite certification).

1. Thus the order for adoption is liable to be set aside on the basis that the primary judge erred when making the order for adoption on 2 March 2012 as follows: in failing to dispense with the consent of the birth father pursuant to s 67(1)(a) or (d) of the Act and in failing to dispense with notice of the application being given to the father under s 54(3)(b) of the Act; and in relying on an instrument of consent on which the counsellor's certificate does not appear.

1. Notwithstanding the irregularities in the making of the adoption order, the Director-General opposes the application for leave to appeal and supports the preservation of the existing adoption order as in the interests of Sarah. The Director-General submits that even if leave were to be granted, and the appeal were to succeed, it is highly unlikely that this would lead to a different result.

1. It must be noted that, though the irregularities are technical in nature (since there was a clear basis on which dispensation of the father's consent could have been granted and there is no reason to doubt that Sarah was property counselled and understood the effect of the giving of consent to her own adoption), it is a serious step to displace parental rights. It is therefore important that there be strict adherence to the mandatory requirements under the Act.

1. That said, one of the fundamental objects of the Act is to have regard to the best interest of the child. Section 90(1(b) of the Act requires that the Court be satisfied that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them. (This objective is also reflected in s 95(3) dealing with discharge orders, that require such an order not to be made if it would be prejudicial to the best interests of the child (s 93(5)(a) of the Adoption Act). The paramountcy of this consideration has been recognised in numerous cases including (though in relation to earlier adoption legislation) Re B & the Adoption of Children Act [1979] 2 NSWLR 915 in circumstances where the child had been with the adoptive parents for some months.

Conclusion

1. The aspects in respect of which the adoption order is liable to be set aside are technical. The putative birth father should have been notified but, having now been notified, raises no objection to the adoption; the instrument of consent given by Sarah appears not to have contained the necessary certificate and if so was not a consent given in accordance with the Act but the evidence shows that Sarah was duly consulted and was assessed as being capable of understanding the effect of adoption.

1. The birth mother has not put forward any fresh evidence to support a conclusion that there would be a different outcome if the matter were now to be remitted for fresh consideration. No satisfactory explanation has been given for the delay since August 2012in commencing this application. I am of the opinion that to grant leave to appeal some 20 months after her adoption, and thereby expose Sarah to the stress and uncertainty of a further adoption hearing, would be prejudicial to the best interests of Sarah.

1. I consider it almost unarguable that, if the adoption order were to be set aside and the application remitted to the Equity Division, no different outcome would result. Sarah has been in the care of the adoptive parents since 2009; she consented to her adoption, having been properly counselled; she has had the security of knowing that she is their adopted child since March 2012; and, as the birth mother recognised at the time, there is a benefit to Sarah in the formalisation of her care arrangements as part of the adoptive parents' family. There has been nothing put before this Court that would enable the conclusion that the adoption order when made was not in the best interests of Sarah or that the continuation of that order would be prejudicial to her best interests.

1. Therefore, while I concurred in the grant of an extension of time to file an application for leave to appeal (on the basis that the matter raised serious issues as to compliance with the requirements of the Adoption Act), I was firmly of the view that the application for leave to appeal made by the birth mother should be dismissed. The adoption order, though irregularly made, will thus continue to have effect as an order of a superior court.

1. In those circumstances it was not necessary to deal with the submission by the adoptive parents (invoking the principle outlined in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 520) that these proceedings should be dismissed as an abuse of process having been brought for a collateral purpose (namely, to prevent or hinder an adoption application that is or may be pending for another of the birth mother's children).

1. Finally, I was of the view that there was no reason that costs should not follow the event. The birth mother's impecuniosity is not relevant in that context.

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Amendments

14 November 2013 - Punctuation change.

Amended paragraphs: 33

14 November 2013 - Typographical error

Amended paragraphs: 3

Decision last updated: 14 November 2013