Re K & C and the Adoption of Children Act [2006] NSWSC 854

New South Wales Supreme Court

CITATION : Re K & C and the Adoption of Children Act [2006] NSWSC 854

HEARING DATE(S) : 14 August 2006

JUDGMENT DATE : 14 August 2006

JURISDICTION : Equity Division Adoption List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 08/14/2006

DECISION : Application for Court expert and separate representation dismissed.

CATCHWORDS : ADOPTION – CONSENT DISPENSE APPLICATION – INDEPENDENT EXPERT – Whether consent dispense application should be heard with final adoption application – whether independent Court expert should be appointed where no conflicting experts' reports – whether children's interests should be separately represented.

LEGISLATION CITED : Adoption Act 2000 (NSW) – s.67(1)

Principal Officer, Barnardos – First Plaintiff PARTIES : Director General, Department of Community Services – Second Plaintiff Natural Mother – First Defendant Natural Father – Second Defendant

FILE NUMBER(S) : SC 80138/05

Ms J. Merkel – First Plaintiff COUNSEL : Ms A. Walsh (Sol) – Second Plaintiff H. Cummings (Agent for Johnson Horsley Solicitors) – First Defendant No appearance – Second Defendant

Mallesons Stephen Jaques – First Plaintiff SOLICITORS : Crown Solicitor's Office – Second Plaintiff Johnson Horsley Solicitors – First Defendant No appearance – Second Defendant

Whether consent dispense application should be heard separately

1 The Plaintiffs in these proceedings, namely the Principal Officer of Adoptions Barnardos and the Director General of the Department of Community Services, seek, ultimately, orders for the adoption of two children who are the children of Ms B, to whom I will refer as the natural mother. Both the natural mother and the natural father oppose the adoptions. The first issue which must be determined is whether or not the consent of the natural parents should be dispensed with pursuant to s.67(1)(b) and (c) of the Adoption Act 2000 (NSW) "the consent dispense application"). 2 As this matter has progressed through the Court, it seemed as if the consent dispense application would be heard before, and separately from, the substantive adoption hearing. As matters have transpired, I now think that it would be contrary to the interests of the children and, indeed, of all concerned in these proceedings, if the issues were split in this way. That is because the consent dispense application will be opposed on the same grounds as will be put forward to oppose the adoption itself should the substantive hearing take place so that, in effect, to make an order dispensing with the consent of the natural parents would almost inevitably mean that the orders in favour of the adoption would then be made but, possibly only after another hearing before another Judge. The issues in both applications being largely the same, it seems to me far more conducive to the efficient, just and speedy determination of the proceedings that the consent dispense application be heard at the same time as the adoption application. In light of that consideration, I turn to the question that is now raised. Court expert