The Adoption of Hannah (a pseudonym)

[2024] NSWSC 694

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Hannah (a pseudonym) [2024] NSWSC 694

Hearing dates:

On the papers

Date of orders:

6 June 2024

Decision date:

06 June 2024

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Consent dispense order made

Catchwords:

CHILD WELFARE – adoption – consent – dispense order – where child is in specialised substitute residential care pursuant to s 8ZA Children’s Guardian Act – where birth mother has given consent to adoption – where birth father has neither given consent nor progressed plans to care for child – where birth father faces barriers to full participation in decision-making process – where it is in child’s best interests to be placed in adoption placement as soon as possible – whether there is serious cause for concern for child’s welfare – whether birth father’s continued involvement would delay the placement of the child in adoptive family – whether consent dispense order would override birth father’s wishes

Legislation Cited:

Adoption Act 2000 (NSW)

Children’s Guardian Act 2019 (NSW)

Cases Cited:

Adoption of A [2022] NSWSC 567

Application of DOCS re C [2004] NSWSC 702

Director-General, Department of Community Services (NSW) v D [2007] NSWSC 762

Director-General, Department of Human Services; re DAM [2011] NSWSC 634

Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007

Re Simon (No 2) [2006] NSWSC 1412

Category:

Procedural rulings

Parties:

Principal Officer, Anglicare Community Services (trading as Anglicare) (Plaintiff)

Representation:

Solicitors:
Plaintiff (self-represented)

File Number(s):

2024/157655

Publication restriction:

This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW

JUDGMENT

1. These proceedings relate to the proposed adoption of a child, who I will call “Hannah” (not her real name).

2. By Summons filed 24 April 2024, the Principal Officer of Anglican Community Services (“Anglicare”) sought an order, pursuant to s 67(1)(c) of the Adoption Act 2000 (NSW), dispensing with the requirement for the consent of Hannah’s father to Hannah’s adoption.

3. I propose to make that order. These are my reasons.

4. I have been greatly assisted by the submissions I received from Ms Martin from Anglicare. Much of what follows is taken, with gratitude, from those submissions.

The course of events

5. Hannah was born in November 2023, and is now 7 months of age.

6. Four days after Hannah’s birth, Hannah’s mother signed an agreement for Hannah to be placed in specialised substitute residential care (“Specialised Substituted Residential Care Arrangement”) pursuant to s 8ZA of the Children’s Guardian Act 2019 (NSW).

7. The mother, who I will call “Julie” (not her real name), expressed a wish for Hannah to be placed into temporary respite care while she considered and planned for Hannah’s future.

8. Julie was born outside Australia. She has resided in Australia for just over a year. Julie was not aware she was pregnant until she arrived in Australia. Julie has said that she is not in a position to care for Hannah due to her study and work commitments. Julie has no family members who could care for Hannah.

9. On 15 April 2024, Julie gave her formal consent to the adoption of Hannah.

10. Hannah is currently in a temporary respite care arrangement with Anglicare authorised carers. Hannah has not yet been placed for adoption, and no application has been made for Hannah’s adoption. She is a child “awaiting adoption”. ^[1]

    1. See the heading to s 75 of the Adoption Act; that heading is taken not to be a part of the Act, see s 35(2)(a) of the Interpretation Act 1987 (NSW), but is a useful expression to adopt.

11. A child cannot remain in specialised substitute residential care for more than 180 days in any period of 12 months, unless the agency supervising the care of the child develops a case plan overseen by the Office of the Children’s Guardian that addresses the child’s needs under the arrangement. ^[2] Anglicare has developed that case plan for Hannah’s needs, but Julie’s wish is for Hannah to be placed for adoption.

    2. Children’s Guardian Act 2019 (NSW), s 8ZA(2).

12. If I do not make an order dispensing with Hannah’s father’s consent, Julie will retain parental responsibility for Hannah, and Hannah cannot be placed for adoption.

13. That is because the Secretary of the New South Wales Department of Communities and Justice can only acquire parental responsibility for Hannah under s 75 of the Adoption Act if consent to Hannah’s adoption is given by all requisite persons (here, Hannah’s father has not given consent) or if such consent had been dispensed with. Hence, Anglicare made the application before me to dispense with the father’s consent.

14. If otherwise satisfied that a consent dispense order should be made, the Court may do so before an application for adoption has been made. ^[3]

    3. Adoption Act, s 70(1)(a).

15. The Court may dispense with the consent of a child’s parent to the child’s adoption if, relevantly, there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent,^[4] and if satisfied that to do so would be in the child’s best interests. ^[5]

    4. Adoption Act, s 67(1)(c); see Re Simon (No 2) [2006] NSWSC 1412 at [28]-[29] (Campbell J).

    5. Adoption Act, s 67(2).

Hannah’s birth father

16. Julie has identified a putative father, who I will call “Nicholas” (not his real name). Nicholas resides in Julie’s home country. Julie and Nicholas were in a brief relationship before Julie travelled to Australia. Both he and Julie are confident that he is Hannah’s birth father.

17. Nicholas is not named on Hannah’s birth certificate. Anglicare has requested Nicholas provide the necessary identification documents to register him as the father on Hannah’s birth certificate. Nicholas has not provided those documents.

18. Anglicare has made extensive attempts over the past 6 months to contact Nicholas and engage him in decision-making for Hannah’s future.

19. Nicholas was first informed by email of Anglicare’s involvement with Hannah as an adoption agency two weeks after Hannah’s birth. Anglicare made a number of attempts to contact Nicholas in November and December 2023 via telephone call, email, and text message. The first successful contact was made on 11 January 2024, during which Anglicare informed Nicholas of his options in relation to Hannah’s future.

20. Nicholas initially indicated to Anglicare that he wished to travel to Australia at some time in the future in order to take Hannah back with him to his and Julie’s home country. Nicholas indicated he had applied for a student visa to travel to Australia, but later reported that this application had been rejected in April 2024. Nicholas has not progressed any other visa applications or made other demonstrated steps to travel to Australia, despite the encouragement of Anglicare to do so.

21. Nicholas then indicated that his mother and sister may be able to care for Hannah. Anglicare informed Nicholas of the steps required to pursue this option. Nicholas has not provided Anglicare with his mother or sister’s contact details in order to pursue this option.

22. Nicholas has, at times, indicated that he has decided that adoption would be best for Hannah, as it would be “easier”. He has stated that if it was not possible for him to bring Hannah to his home country, because of ongoing delay and travel barriers, then he would prefer for Hannah to be adopted.

23. Anglicare has sought to communicate with Nicholas in his primary language to ensure the complexity of the adoption process and his parental rights in the decision-making process are clear to him. This has included translating written correspondence and documents into his primary language and offering to have telephone conversations with him and his family members with an interpreter.

24. Anglicare submits that it has clearly communicated to Nicholas the importance of making a timely decision for Hannah’s future, and, despite this, Nicholas has not demonstrated any clear decisions, plans or commitment in relation to future care for Hannah. It submits that this inaction is preventing the process of Hannah being placed in an adoptive placement, and, thereby, causing serious cause for concern for Hannah’s welfare.

25. Notice of Julie’s consent and notice of this application has been served on Nicholas by email.

Whether birth father has been given reasonable opportunity to consent

26. I am satisfied that Nicholas has been given a reasonable opportunity to consent to the adoption of Hannah. Anglicare has given Nicholas, as the person known, or reasonably believed, to be Hannah’s birth father:^[6]

1. notice of Julie’s consent to the adoption;

2. advice regarding the legal processes by which he can establish paternity or be registered as Hannah’s father;

3. advice of his rights as a parent in relation to the adoption of Hannah.

   6. Adoption Act, s 56(2)(a)-(b).

Whether consent dispense order should be made

27. A consent dispense order is “a step preliminary to severing permanently a parental bond” and should only be made for “weighty and convincing reasons”. ^[7]

    7. Director-General, Department of Community Services (NSW) v D [2007] NSWSC 762 at [195] (Brereton J).

28. It is open to the Court to make a consent dispense order in circumstances where the “serious cause for concern” is that the father’s attitude or involvement in the adoption process will impede or delay the placement of the child in a permanent placement in an adoptive family, especially where that placement is in the best interests of the child. ^[8]

    8. See, for example, Application of DOCS re C [2004] NSWSC 702 at [11] per Austin J; Director-General, Department of Human Services; re DAM [2011] NSWSC 634 at [2] (Brereton J).

29. I am satisfied that it is in Hannah’s best interests for her to be placed in a secure adoptive placement as soon as possible. ^[9] This is especially important for Hannah, as she continues to be subject to the Specialised Substituted Residential Care Arrangement. The Arrangement is intended for temporary respite care; not long-term care.

    9. See, for example, Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007 at [40] (Kunc J); and my decision in Adoption of A [2022] NSWSC 567 at [14]-[15].

30. Indeed, I am satisfied that there is a serious cause for concern for Hannah’s welfare if the adoption process is not progressed. As long as Hannah remains subject to the Specialised Substituted Residential Care Arrangement, she cannot achieve permanency or stability. Moreover, Julie retains parental responsibility for Hannah under the Arrangement, and if the Arrangement were to end, the day-to-day caring responsibilities for Hannah would revert to Julie. This is an outcome Julie does not want and would not be in Hannah’s best interests.

31. I acknowledge that there are many barriers to Nicholas’ full participation in the decision-making process for Hannah’s future. Nicholas faces substantial travel, cultural, and language barriers. I am confident that it is not Nicholas’s intention to cause any concern for or harm to Hannah’s welfare by his involvement in the decision-making process.

32. However, it is clear that Nicholas’s continued involvement in the adoption process will delay the placement of Hannah in an adoptive placement. Nicholas has not shown any demonstrated efforts to progress his plans to care for Hannah, nor has he engaged in the process to give consent to adoption.

33. It should not be thought that mere delay in progressing an adoption would be a "serious concern" sufficient to override a parent's wishes if those wishes were actually opposed to the adoption. ^[10]

    10. Director-General, Department of Human Services; re DAM (supra) [2] (Brereton J).

34. Although Nicholas does not consent in accordance with the Adoption Act, I am satisfied that Nicholas is not actually opposed to the adoption of Hannah. He has expressed a wish to care for Hannah himself but acknowledges that if it is not possible for him to bring Hannah to his home country because of ongoing delay and travel barriers, then he would prefer for Hannah to be adopted. In those circumstances, to the extent that a consent dispense order would override Nicholas’ wishes, it is only in a minor way. ^[11]

    11. See Director-General, Department of Human Services; re DAM (supra) at [2] (Brereton J).

35. In light of these circumstances, I am satisfied that there is a serious cause for concern for Hannah’s welfare, and it is in the best interests of Hannah to dispense with the need for Nicholas’s consent to the adoption.

36. I make the order sought.

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Endnotes

Decision last updated: 06 June 2024