Application by Director-General, Department of Community Services; re L (a child) [2008] NSWSC 235

New South Wales Supreme Court

CITATION : Application by Director-General, Department of Community Services; re L (a child) [2008] NSWSC 235

HEARING DATE(S) : In chambers

JUDGMENT DATE : 25 March 2008

JURISDICTION : Equity Adoptions List

JUDGMENT OF : Austin J

DECISION : See under heading "Conclusion"

CATCHWORDS : Adoption of children - parental responsibility order - application for interim parental responsibility order by Director-General in his favour - whether court can make order under s 84(2) when no application for adoption of the child has yet been made - whether the court should make an interim parental responsibility order under s 84(2) or under s 78(2) and (3) - whether suspension under s 79(2A) applies when order has been made under s 84(2)

Adoption Act 2000 (NSW), ss 75, 78, 79 and 84 LEGISLATION CITED : Adoption Amendment Act 2006 (NSW) Adoption of Children Act 1965 (NSW), ss 34, 41

CASES CITED : Application by Director-General of Department of Community Services; re BCG (a child) [2003] NSWSC 1040; BC200306811

PARTIES : Director-General, Department of Community Services (P)

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

AUSTIN J

TUESDAY 25 MARCH 2008

80008/08 APPLICATION BY DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES; RE L (A CHILD) JUDGMENT 1 HIS HONOUR: By summons filed on 12 February 2008, the Director-General of the Department of Community Services seeks an order under s 84 of the Adoption Act 2000 (NSW) for parental responsibility for the child L in his favour. The summons also seeks orders making provision for the Principal Officer of Anglicare Adoption Services to provide regular supervision of L's placement with Mr and Mrs T, and for a further report on the child's progress to be provided to the Court by the Principal Officer of Anglicare within 12 months. The supporting affidavit is, in part, in the nature of a s 78 report to the Court. 2 This case raises some issues about the proper construction of the Adoption Act 2000 (NSW), as well as some questions about the best interests of a child who is awaiting adoption. Facts 3 L was born on 12 April 2006. Her birth parents have several other children. Shortly after L's birth they approached Anglicare Adoption Services, asking the agency to arrange for L to be adopted. Both birth parents have signed instruments of general consent, each dated 6 September 2006, consenting to the adoption of L by an adoptive parent or parents selected in accordance with the law of New South Wales. They acknowledge that they have received the information and counselling required by the Act. The forms of consent are in evidence and appear, on their face, to be regular. 4 On 13 October 2006 Anglicare Adoption Services placed L with Mr and Mrs T, persons approved as suitable to adopt. On 19 November 2007 the Principal Officer of Anglicare wrote to the Department's Director, Adoption and Permanent Care Services, about L's placement and progress, apologising for the delay in doing so. On 11 December 2007 she forwarded to the Department the information necessary for a s 78 report. 5 When the case first came before me for consideration, the Principal Officer's letter and report caused me to be concerned about four matters. The first matter was a suggestion that, although she was said to be a delightful little girl, L's developmental progress was not as it should be. She was late in starting to walk and there were concerns about her fine motor skills and communication skills, leading to an assessment by Noah's Ark Centre on 24 May 2007, which recommended physiotherapy, continuance of day-care and a later review. A review was conducted by Noah's Ark Centre on 20 September 2007, and it was reported that although L had shown some progress, her development in a number of areas remained of concern. 6 The second matter, which I need not elaborate on here, was that some things Mr and Mrs T had done (including cancellation of meetings with agency staff) created some grounds for uneasiness about aspects of the placement. 7 The third matter was that the Principal Officer's report dated 11 December 2007 had referred to a case conference to monitor and review L's development status, planned to be held in January 2008 after she had been assessed by the Autism Association. There was initially no evidence presented to the Court about the outcome of the case conference or the assessment. 8 The fourth matter was the substantial delay that had occurred, on the part of Anglicare, in providing the information that the Department needed for its application to the Court. 9 By letter dated 25 February 2008, written at my instigation, the Registrar of the Court raised these four matters with the Department. The Department responded on 12 March 2008 with written submissions and further affidavit evidence. The affidavit annexed a psychological assessment report by three psychologists on behalf of Autism Spectrum Australia relating to their assessment of L on 18 February 2008. Their conclusions, in summary, were that L was performing at around the 16 month level of development, though she was 21 months old when assessed, but she did not show sufficient social impairment relative to developmental level to warrant diagnosis of an autism spectrum disorder. 10 Importantly for my purposes, the affidavit reports on a meeting between the Departmental officer and the Principal Officer of Anglicare held on 6 March 2008, during which the Principal Officer said words to the effect: "The family appear very attached to [L] and seem to be meeting her needs …" A statement of that kind was missing from the evidence when it was first presented to me, and the information initially presented by Anglicare gave the overall impression that the Principal Officer may have had some doubts about this placement. In applications of this kind, the Court must rely heavily on assessments made by qualified people at the front line, based on observing the child in interaction with those who are caring for her. The additional evidence of the Principal Officer's assessment has addressed my apprehension that Mr and Mrs T might not have been fully committed to L's welfare, to the extent necessary for the purposes of the present interim application. 11 A meeting has been arranged between Mr and Mrs T and agency staff and was scheduled to be held on 20 March 2008, to discuss amongst other things the report by Autism Spectrum Australia and whether it will affect Mr and Mrs T's continued parenting of L. I do not presently know whether the meeting has taken place. The Department contemplates that after the meeting has been held, it will organise a case conference with Anglicare to confirm a plan for L's future care. 12 As to the question of delay, the Director-General's written submissions to the Court contain the following paragraph: "The Director DoCS Adoption and Permanent Care Services concurs with the Justice's concerns regarding the delay in this application and will ensure that an early resolution is achieved whilst ensuring that whatever assessment or support may be necessary is adequately pursued for [L's] best interests. The attached affidavit sets out the immediate plan for a timely resolution of [L's] permanency needs. It is essential that all information is at hand regarding the circumstances of [L] and the proposed adoptive family and this information is comprehensively considered by all agencies involved with the family before a final decision is made in respect of what is in [L's] long-term best interests." My decision in this case expressly relies on those statements and assurances.