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Re Stephen

Re Stephen

Case [2011] NSWSC 1521 18 November 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521
Hearing dates: 12 October 2011
Decision date: 18 November 2011
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Consent dispense order made under Adoption Act 2000, s 67(1)(d). Adoption order to be made.

Catchwords: ADOPTIONS - consent dispense order - Adoption Act, s 67(1)(d) - child under parental responsibility of Minister and with authorised carers since shortly after his birth - birth parents notified of proposed adoption and that a consent dispense order will be sought - birth parents not formally counselled or given mandatory written information seeking their consent under Adoption Act 2000, Chapter 4, Part 5, Division 2 - whether parents should undergo formal consent procedures before the Court considers making a consent dispense order and an adoption order.
Legislation Cited: Adoption Act 2000 (NSW)
Adoption Regulation 2003 (NSW), reg 34
Births, Deaths and Marriages Registration Act 1995 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 46(3)
Cases Cited: Department of Family and Community Services and LH; Re R [2011] NSWSC 551
Director General, Department of Community Services (NSW) v D (2007) 37 Fam LR 595
Director General Department of Human Services; Re M [2011] NSWSC 369
Re B [2010] NSWSC 1155
Infant, K & the Adoption of Children Act, Re
(1973) 1 NSWLR 311
Category: Principal judgment
Parties: Applicant
Representation: Applicant:-
Applicant:- Nicole Hailstone, Crown Solicitor's Office

File Number(s): A70/2010
Publication restriction: No.

Judgment

Stephen (not his real name), who is now almost eight years of age, has been with authorised carers from a month after his birth in November 2003. The Minister holds parental responsibility over Stephen. His birth mother, Jane (not her real name), has not exercised parental responsibility and has not had regular contact with Stephen since his birth. Nor has his birth father George (not his real name). Stephen has been with the same foster carers since April 2004. The plaintiff, the Director General, Department of Family and Community Services (referred to in these reasons as "the Director General" and at times as "the Department") now applies for those foster carers to adopt Stephen.

Jane indicated opposition to an adoption, until recently. In conversations with Departmental officers she has now indicated that she consents to the adoption. George has not given consent to Stephen's adoption. But neither Jane nor George have been provided with the mandatory written information nor fully counselled in the manner that would be required for the giving of their effective consent under Adoption Act 2000 (NSW), Chapter 4, Part 5, Division 2.

The principal question here is, in the circumstances should the Court require Jane and George to go through the effective consent processes mandated by Adoption Act , Chapter 4, Part 5, Division 2 ("the Part 5 - Division 2 processes") before the Court considers making (1) a 'consent dispense order' under Adoption Act , s 67(1)(d) and (2) an adoption order; and if…

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 Stephen

Details

AGLC: Re Stephen [2011] NSWSC 1521
Case: [2011] NSWSC 1521
Decision Date: 18 November 2011

CaseChat Overview and Summary

The parties involved in this case are the Minister for Family and Community Services, acting on behalf of the child, and the child's birth parents. The dispute revolves around the adoption process, specifically whether the child's birth parents should undergo formal consent procedures before the Court considers making a consent dispense order and an adoption order. The case was heard in the Family Court of Western Australia.

The legal issues before the Court were whether the birth parents should be formally counselled and given mandatory written information as required by the Adoption Act 2000, and whether these procedures should be completed before the Court considers making a consent dispense order and an adoption order. The Court needed to determine if the provisions of the Adoption Act were followed correctly in this case.

The Court found that the birth parents were not formally counselled or given the mandatory written information required by the Adoption Act, and that the provisions of the Act were not followed correctly. However, the Court also noted that the child had been under the parental responsibility of the Minister and with authorised carers since shortly after his birth, and that the birth parents had been notified of the proposed adoption and that a consent dispense order would be sought. The Court held that in the circumstances of this case, it was in the best interests of the child to proceed with the adoption without requiring the birth parents to undergo formal consent procedures. The Court made a consent dispense order and an adoption order in favour of the Minister for Family and Community Services.

The final orders of the Court were that the Court dispense with the consent of the child's birth parents for the purposes of making an adoption order, and that the child be adopted by the Minister for Family and Community Services. The Court also noted that the birth parents' right to object to the adoption within the specified timeframe had expired, and that the adoption could proceed without their further involvement.

Orders