Director-General, Department of Human Services; re DAM [2011] NSWSC 634

Supreme Court New South Wales

Medium Neutral Citation: Director-General, Department of Human Services; re DAM [2011] NSWSC 634 Hearing dates: Friday, 24 June 2011 Decision date: 24 June 2011 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Consent dispense order made Catchwords: ADOPTIONS - Consent dispense order - birth mother consents - birth father notified of and indicates agreement to proposed adoption but does not wish to consent under Act - whether consent may be dispensed with under (NSW) Adoption Act s 67(1)(c) - requirement for 'serious concern' as to child's welfare - whether delay in progressing application because of father's failure to consent under Act 'serious concern' - circumstances of case amounts to a 'serious concern' - mere delay in progressing application would not be 'serious concern' if birth parent opposes adoption. Legislation Cited: NSW) Adoption Act 2000, s 52(a)(i), s 67(1)(c) Cases Cited: Application of DOCS re C [2004] NSWSC 702 Category: Principal judgment Parties: File Number(s): A65/2011

Judgment 1The Director-General applies for a consent dispense order in circumstances where, the mother having consented to adoption, the birth father has expressed support for the adoption of the child but, for reasons which he says pertain to his privacy, and his wish to leave the adoption process to be managed exclusively by the mother, does not wish to participate in the adoption process and will not give formal consent to the adoption in accordance with the requirements of (NSW) Adoption Act (2000), Chapter 4, Part 5. Notice of intention to apply for a consent dispense order was served on the father personally on 9 June 2011, and expired on 23 June 2011. 2The circumstances are closely analogous to those considered by Austin J in Application of DOCS re C [2004] NSWSC 702 . But for that decision, I would have doubted whether the requirements of s 67(1)(c), namely, that there be serious concern for the welfare of the child such that it is in the child's best interests to override the wishes of the parent, were satisfied. But on the authority of Re C , I accept that in such circumstances it is open to make a consent dispense order: the "serious concern" is that the process of permanent placement in an adoptive family, which is in the child's interests, will otherwise be delayed by any requirement for further involvement of the father in the proceedings, and the context is that although he does not consent in accordance with the Act, he in fact agrees to adoption, so that to the extent the father's wishes are being overridden at all, it is only in a very minor way. It should not be thought that mere delay in progressing an adoption would be "serious concern" sufficient to override a parent's wishes if those wishes were actually opposed to the adoption. 3Pursuant to (NSW) Adoption Act 2000, s 67(1)(c), I make an order dispensing with the requirement under s 52(a)(i) for the consent of the birth father of the child.