Application of DOCS re C [2004] NSWSC 702

New South Wales Supreme Court

CITATION : Application of DOCS re C [2004] NSWSC 702 HEARING DATE(S) : In chambers JUDGMENT DATE : 4 August 2004 JURISDICTION: Equity JUDGMENT OF : Austin J DECISION : Consent dispense order and order dispensing with notice to father, made

CATCHWORDS : ADOPTION - consent dispense order - father does not want to be involved in adoption process - whether consent dispense order 'overrides' father's wishes for purposes of s 67(1)(c) LEGISLATION CITED : Adoption Act 2000 (NSW) ss 67, 72 PARTIES : Director-General NSW Department of Community Services (P) FILE NUMBER(S) : SC 80122/04 COUNSEL : SOLICITORS : Adoption & Permanent Care Services (P)

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

AUSTIN J

WEDNESDAY 4 AUGUST 2004

80122/04 APPLICATION OF DIRECTOR-GENERAL NSW DEPARTMENT OF COMMUNITY SERVICES RE C JUDGMENT 1 HIS HONOUR: By Summons filed 23 July 2004 the plaintiff, the Director-General NSW Department of Community Services ("DOCS"), applies for a preliminary hearing under the Adoption Act 2000 (NSW) in relation to the adoption of a child, C. The plaintiff seeks orders to: (a) dispense with father's consent to the adoption under s 67(1)(a) of the Act; and (b) dispense with the need to inform the father of the application under s 72(2)(c) of the Act. 2 C was born on 21 February 2004 at Gosford District Hospital. The mother had known the father as an acquaintance for about 12 to 18 months at the time of C's birth, but that they were not in contact with each other at that time. On 25 February 2004, the mother advised of her wish to relinquish C for adoption. At pre-adoption counselling with a caseworker from Adoption and Permanent Care Services, Ms Munro, the mother was made aware of the need to include the father in the process of C's adoption. The mother then attempted to contact the father to advise him of C's birth, but by 22 April 2004 had not contacted him. 3 Ms Munro contacted the father on the mother's behalf on 22 April 2004. According to the evidence, the father was "in shock" at being named as C's father but was open to discussing C's adoption. 4 At a meeting on 28 April 2004 between Ms Munro and the parents, the father stated that he would "not be able to take care of [C] at this stage of his life as his focus was on furthering his career." He stated that he: · did not want his name added to C's birth registration; · did not want to share social and medical information about himself; · rejected any involvement in the pre-adoptive process; · did not wish to be engaged in any further aspect of C's adoption; and · would not co-operate with sharing any further information about himself. 5 According to the evidence, the father cited concerns about his privacy as the reason for taking this position. 6 On 4 May 2004 the father contacted Ms Munro and discussed the issue of secrecy of his identity. He reiterated that he did not wish to be involved in the adoption process. 7 The mother consented to C's adoption on 31 May 2004. On 4 June 2004 DOCS sent a registered letter to the father, enclosing notice that the mother had given an adoption consent, and providing advice on the adoption process. The letter acknowledged that he had chosen not to participate in pre-adoptive counselling, but encouraged him to change his mind. On 6 June 2004 the father telephoned Ms Munro to discuss the adoption. He reiterated that he was "not in a position to care for [C]" and stated he was not a responsible person at that time. 8 Up to the time of the present application, it appears that DOCS has kept the father fully informed of the progress of C's adoption, but from 22 April 2004 when the father was first notified of C's birth right up to 10 June 2004 when he signed an acknowledgment of receipt of DOCS' registered letter, his consistent position was that he did not want to be involved in the process. There is no evidence to suggest that he has changed his position between 10 June 2004 and the present time. 9 Section 67(1) of the Act relevantly states: "The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that: (a) the person cannot, after reasonable inquiry, be found or identified; or … (c) if the person is a parent or guardian of the child – 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 or guardian." 10 The plaintiff's summons claims an order under s 67(1)(a), which is not available because the evidence discloses that the father has been identified and contacted. The only relevant ground is under s 67(1)(c). 11 In light of the evidence of the father's attitude to the child and the adoption process, I consider that there is serious cause for concern for the welfare of the child, should the father continue to be a party to the adoption process. I am also satisfied that in light of the father's attitude it is in the best interests of C to dispense with the need for his consent to the adoption. If it were to be necessary to continue the father's involvement in the adoption process, the quick resolution of the matter in the child's best interests would be impeded. Accordingly it would assist C's adoption to dispense with the need for the father's consent. 12 This is not a case where the court is invited to override the wishes of a parent who opposes the child's adoption. In this case, by dispensing with the father's consent, the court will bring the father into the adoption process in order to deal with his rights in a manner that will make his further participation unnecessary. To the limited and temporary extent that the orders will have this effect, they will override the father's wish to have no involvement in the adoption process. The consent dispense order is therefore authorised by s 67(1)(c). 13 This is an appropriate case for dispensing with notice of the consent dispense order under s 72(2)(c). There would be no utility in notifying the father that his consent is sought to be dispensed with. He has made his position clear that he does not wish to be involved in the process C's adoption, and therefore dispensing with the notice requirement would not prejudice his position. 14 I am prepared to grant the orders sought by the plaintiff on the basis of the evidence before me, and I therefore decline to make an order for a preliminary hearing to take place. I shall make the orders in chambers. **********