J.M.W. v. J.G.K.P [2000] NSWSC 231

New South Wales Supreme Court

CITATION : J.M.W. v. J.G.K.P [2000] NSWSC 231 FILE NUMBER(S) : SC 80024/00 HEARING DATE(S) : 24/3/00 JUDGMENT DATE : 24 March 2000

PARTIES : JUDGMENT OF : Bryson J at 1

COUNSEL : Application by letter by defendant SOLICITORS : Attwaters Solicitors for plaintiffs Defendant in person CATCHWORDS : ADOPTION - Inspection of Court record - sealed copy of adoption order - after Relative Adoption (by natural mother and husband of her second marriage) the natural father applied for a sealed copy to establish to Child Support Agency that his obligations had ended - consideration of practice of Court in issuing sealed copies - only to plaintiffs - otherwise only an order under s.67 and Reg 38 - confidentiality of information is the principal consideration - as this was an open adoption all information was already known to natural father and a copy was given to him on terms which limited his use of it - observations on means available other than obtaining copy of order - inspection of record within s. 67 - issue of sealed copy of adoption order allows inspection. Adoption of Children Act 1965 s67 CASES CITED : Adoption of Children Regulation 1995 cl 38 Adoption Information Act 1990 DECISION : Direction for issue of copy adoption order for limited purpose.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

24 March 2000

80024/00 J.M.W. and T.K.W. v. J.G.K.P.

OBSERVATIONS 1 HIS HONOUR: An adoption order was made in these proceedings on 13 March 2000. The adoption application was first made to the Family Court at Newcastle and was transferred to this Court by order of the Family Court - see File 80098 of 1999 and my observations of 4 August 1999. The natural father applied by a letter of 15 March 2000 to the Adoptions Clerk for a sealed copy of the Adoption Order. He stated that the Child Support Agency had requested that he obtain that order so as to process his application to cease payment of child support. 2 Copies of adoption orders are not made available on request. Access to information in court files is restricted by s.67 of the Adoption of Children Act 1965, which provides: "Except as provided by the regulations and the Adoption Information Act 1990, the records of any proceedings under this Act or the former Acts shall not be open to inspection by any person." 3 To give a person a sealed copy of an adoption order is to make part of the records of the proceedings open for inspection. 4 Provision in regulations as contemplated by s.67 was made by cl.38 of the Adoption of Children Regulation 1995, which provides: "The records of any proceedings under the Act or a memorandum sent to the Principal Registrar by the Deputy Registrar of the Supreme Court in accordance with sections 61, 62 or 63 of the Act are open to inspection only: (a) by officers of the Court; or (b) by the Director-General; or (c) by the principal officer of a private adoption agency in respect of proceedings in which the private adoption agency was involved; or (d) on the order of the Court or on the order of the Children's Court in respect of proceedings taken under Part 6 of the Act." 5 As subcl.(d) shows, records of proceedings are open for inspection on the order of the Court. The Court has power to allow inspection of records, and giving a person a copy of an order is a means of doing so. 6 The Adoption Information Act 1990, which is mentioned in s.67, usually governs requests for information in adoption files. Its provisions should be followed when it applies, particularly where the adopted person is now an adult. 7 The practice of this Court is that when the applicants for an adoption order request the Court to provide them with a sealed copy, the copy is provided. This practice was established before the Adoption Information Act 1990 was enacted by Mr Justice Needham in observations which he made on 30 March 1990 in proceedings 80575/89. Earlier it had been thought that s.67 prevented the Court from making available a sealed copy of the order. 8 The persons who are entitled to a sealed copy under this practice are plaintiffs who have sued for and obtained orders. Other parties are not entitled to sealed copies under this practice. Other persons are limited to (1) the information available in the Register of Births after the registration reflects the adoption order, (2) any information they obtain by following procedures in the Adoption Information Act 1990, and (3) any inspection of records allowed by the Court under s.67 of the Adoption of Children Act 1965 and cl.38 of the Regulation. 9 Examples of persons who are not entitled to sealed copies of orders under this practice include adopting parents in cases where the plaintiff is the Director General of the Department of Community Services; the Director General is the plaintiff and the adopting parents are not, so that only the Director General is entitled to obtain sealed copies under the practice. It is for the Director General and DOCS to decide whether to give the sealed copy to the adopting parents. Similarly where an Adoption Agency is the plaintiff, the person entitled to obtain a sealed copy is the Adoption Agency and not the adopting parents. 10 Other persons who are not entitled to obtain sealed copies of adoption orders under this practice include defendants, respondents, interveners or other persons who have opposed the proceedings, and natural parents who have given consent to adoptions, or whose consent has been dispensed with; usually these natural parents are not parties to the litigation. All these persons are limited to the means of obtaining information set out in para 7. 11 The important matter for consideration when the Court is asked to allow inspection is preservation of confidentiality of information relating to adoptions. Particularly important is the confidentiality of identities of children, natural parent, and adopting parents, and of the means of contacting them, including their addresses. Information of those kinds may become available by following the procedures in the Adoption Information Act 1990, and the ordinary approach which I would take is that applicants should be left to obtain information under that Act. 12 It should not become a matter of routine that surrendering parents can obtain copies of adoption orders for the purpose of their dealings with the Child Support Agency. The need to establish facts for the information of the Child Support Agency would usually be met by obtaining a certificate showing the birth registration particulars after particulars of the adoption have been recorded there. 13 In the present case there is no confidentiality to preserve; the adoption was an open adoption, the adopting mother is the natural mother and the former wife of the natural father; the child was a child of their former marriage, the adopting father is her husband after remarriage and the parties are well known to each other, and so are their addresses. The natural father was involved in and was a party to the proceedings in the Family Court relating to adoption and was named as a defendant in proceedings in this Court relating to removal from the Family Court. 14 I have decided to make an order but to impose terms limiting the use to be made of the copy to dealings with the Child Support Agency. No further copy is to be made. 15