Application of P - re Q and R [2006] NSWSC 1234

New South Wales Supreme Court

CITATION : Application of P - re Q and R [2006] NSWSC 1234

HEARING DATE(S) : 9 and 10 November 2006

JUDGMENT DATE : 21 November 2006

JURISDICTION : Equity Division Adoption List

JUDGMENT OF : Palmer J

DECISION : Consent dispense orders made; adoption orders made.

CATCHWORDS : ADOPTION – CONSENT – Whether children "stolen" from natural mother by DOCS – whether in the interests of the children that consents of natural parents to adoption be dispensed with – whether adoption orders should be made.

LEGISLATION CITED : - Adoption Act 2000 (NSW) – Pt 9, s.8, s.23, s.48, s.52(1), s.67(1), s.70(1), s.90(3) - Children and Young Persons (Care and Protection) Act 1987 (NSW) – s.62A, s.72(1)

Barnardos, Mr and Mrs P – Applicants PARTIES : Director-General of the Department of Community Services Ms S – Natural Mother Mr T – Natural Father

FILE NUMBER(S) : SC 80138/05

J.F. Merkel – Applicants COUNSEL : G.W. Moore – Director-General of the Department of Community Services S. Cairns – Natural Mother In person – Natural Father

Mallesons Stephen Jaques – Applicants SOLICITORS : Crown Solicitor – Director-General, Department of Community Services Johnson Horsley – Natural Mother In person – Natural Father

80138/05 Application of P: re Q and R

JUDGMENT 21 November, 2006

Introduction and issues

1 This is an application for the adoption of a brother and sister, the boy now being nine years and nine months old, and the girl now being nine years and one month old. The children's natural parents, who separated some time ago, oppose the adoption. Accordingly, there are two parts to this proceeding: an application by the Principal Officer, Adoptions, of Barnardos Australia for an order dispensing with the consents of the natural parents under s.67(1) of the Adoption Act 2000 (NSW) ("the Act") and an application by the adoptive parents for adoption orders under s.23 and Pt 9 of the Act. 2 The two applications are being heard together in conjunction, as is permitted by s.70(1)(b) of the Act, as most of the factual issues and judgments to be made in one application overlap with issues to be decided and judgments to be made in the other application. The fate of the application under s.67(1) will bear directly upon the fate of the adoption application. 3 For the sake of preserving the anonymity of the parties as is required by s.180 of the Act, I will refer to the adoptive parents as Mr and Mrs P, to the elder child as Q, to the younger child as R, to the natural mother as Ms S and to the natural father as Mr T. 4 Ms Merkel of Counsel has appeared for Mr and Mrs P and Barnardos, Mr G. Moore of Counsel has appeared for the Director General of the Department of Community Services ("DOCS"), Mr Cairns of Counsel has appeared for Ms S, and Mr T has appeared in person. 5 Mr Cairns has made it clear that Ms S does not refuse her consent to the adoptions because she seeks the immediate return of the children to her parental care and custody. He says that if Ms S's consent is not dispensed with and the children remain in the foster care of Mr and Mrs P, Ms S will then be able to make application to the Children's Court for more frequent access to the children and, ultimately, for their return to her exclusive care. 6 Mr T refuses his consent because he seeks an immediate return of the children to his exclusive parental care. 7 The issues for determination are: