Supreme Court New South Wales Medium Neutral Citation: Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521 Hearing dates: 12 October 2011 Decision date: 18 November 2011 Jurisdiction: Equity Division Before: Slattery J Decision: Consent dispense order made under Adoption Act 2000, s 67(1)(d). Adoption order to be made. Catchwords: ADOPTIONS - consent dispense order - Adoption Act, s 67(1)(d) - child under parental responsibility of Minister and with authorised carers since shortly after his birth - birth parents notified of proposed adoption and that a consent dispense order will be sought - birth parents not formally counselled or given mandatory written information seeking their consent under Adoption Act 2000, Chapter 4, Part 5, Division 2 - whether parents should undergo formal consent procedures before the Court considers making a consent dispense order and an adoption order. Legislation Cited: Adoption Act 2000 (NSW) Adoption Regulation 2003 (NSW), reg 34 Births, Deaths and Marriages Registration Act 1995 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW), s 46(3) Cases Cited: Department of Family and Community Services and LH; Re R [2011] NSWSC 551 Director General, Department of Community Services (NSW) v D (2007) 37 Fam LR 595 Director General Department of Human Services; Re M [2011] NSWSC 369 Re B [2010] NSWSC 1155 Infant, K & the Adoption of Children Act, Re (1973) 1 NSWLR 311 Category: Principal judgment Parties: Applicant Representation: Applicant:- Applicant:- Nicole Hailstone, Crown Solicitor's Office File Number(s): A70/2010 Publication restriction: No. Judgment 1Stephen (not his real name), who is now almost eight years of age, has been with authorised carers from a month after his birth in November 2003. The Minister holds parental responsibility over Stephen. His birth mother, Jane (not her real name), has not exercised parental responsibility and has not had regular contact with Stephen since his birth. Nor has his birth father George (not his real name). Stephen has been with the same foster carers since April 2004. The plaintiff, the Director General, Department of Family and Community Services (referred to in these reasons as "the Director General" and at times as "the Department") now applies for those foster carers to adopt Stephen. 2Jane indicated opposition to an adoption, until recently. In conversations with Departmental officers she has now indicated that she consents to the adoption. George has not given consent to Stephen's adoption. But neither Jane nor George have been provided with the mandatory written information nor fully counselled in the manner that would be required for the giving of their effective consent under Adoption Act 2000 (NSW), Chapter 4, Part 5, Division 2. 3The principal question here is, in the circumstances should the Court require Jane and George to go through the effective consent processes mandated by Adoption Act , Chapter 4, Part 5, Division 2 ("the Part 5 - Division 2 processes") before the Court considers making (1) a 'consent dispense order' under Adoption Act , s 67(1)(d) and (2) an adoption order; and if not, whether a consent dispense order and an adoption order should be made in the circumstances. Background Early Care Orders and Contact with Stephen 4Jane and George together have five other children. These other children are aged 13, 10, 8, 5 and 3. Three of these children now reside with a paternal aunt. Two others are placed with Departmental foster carers. Jane also has an older child by another father, who is in the care of one of Jane's cousins. 5Stephen was born in November 2003. In December 2003 the Children's Court made emergency care and protection orders placing Stephen under the parental responsibility of the Minister under Children and Young Persons (Care and Protection) Act 1998 ("the Care Act "), s 46(3). 6Prior to Stephen's birth the Department had received pre-natal risk of harm reports about Jane, indicating that George had physically assaulted her and that she was using drugs during her pregnancy. Both parents had by then a history of drug use, squatting, homelessness and domestic violence. After Stephen's birth there were no changes to Jane and George's unstable lifestyles, each of which has featured periods of imprisonment. For many years after Stephen's birth neither George nor Jane developed any insight into the issues which led to Stephen's removal. 7Upon discharge from hospital after birth in January 2004 Stephen was placed in temporary foster care. The temporary fostering arrangements continued until April 2004, when Stephen was placed with the couple who have now become his proposed adoptive parents. Stephen has been in the foster care of these proposed adoptive parents ever since. 8The same month, George contested in the Children's Court, the making of final orders under the Care Act to give parental responsibility for Stephen to the Minister. George's evidence in those proceedings outlined his wishes that he be involved in the care arrangements for Stephen. He also sought assessment as to his own capacity to care for Stephen on a full time basis. But the evidence at that hearing was that George had seen Stephen on one occasion since his birth. 9On 8 April 2004 the Children's Court made orders placing Stephen under the parental responsibility of the Minister until the age of 18. Neither Jane nor George brought an application for leave to vary or rescind these orders under Care Act , s 90(1) either in April 2004, or in the almost eight years since. The Birth Parents' Contact with the Department and with Stephen - 2004 to 2010 10Since his coming into care, Jane and George's contact with Stephen and the Department has been sporadic. Stephen's last contact with George was in October 2006 and with Jane in December 2006. The Department's files indicate the birth parents have been unable to maintain regular contact with Stephen or the Department. There are no current arrangements for face to face contact between Stephen and his parents. In contrast, there has been relatively regular contact between Stephen and most of his siblings through their respective carers, although contact with two of those siblings was not re-established until December 2007. That contact is flexible and varies depending upon the needs and views of all the children. 11In 2006 the Department commenced to assess Stephen's suitability for adoption and in December 2007 it recommended that Stephen be adopted by his authorised foster carers. 12When Department officers first contacted Jane in September 2006 about the proposed adoption, she indicated she would not agree to an adoption and would be seeking to have Stephen restored to her care. George maintained a similar position in October 2006. Neither parent brought an application for leave to apply to have Stephen restored to them. 13In September 2008, when Stephen was about to turn 5, George again indicated to Departmental officers he wished Stephen to be restored to his care. At the same time in September 2008, Jane indicated to Departmental officers that she wished to have contact with Stephen but would not consent to his adoption. 14By December 2008 George was serving a term of imprisonment at a correctional centre. A Departmental case worker contacted him there to discuss the proposed Adoption Plan for Stephen and to seek his views regarding paternity testing. He declined to proceed with a paternity test whilst incarcerated. He then anticipated release in March 2009. He was released from the correctional facility but the Department lost contact with him. 15In December 2008 the Departmental finally approved commencement of adoption action for Stephen. The Director General's Summons seeking orders for Stephen's adoption was filed in May 2010. From Commencement of Proceeding to Date 16From the commencement of these proceedings the Director General has made extensive efforts through Departmental officers to bring the Court's process, the nature of the proceedings and the consequences of an adoption order, to each of Jane and George's notice. But Jane and George have not sought to appear to oppose Stephen's adoption, although Departmental caseworkers have had contact with them from December 2010 and into 2011. The extent of the information already provided to Jane and George and the efforts that have been made to engage them with the adoption process are relevant considerations in the Court deciding whether or not now to make a consent dispense order. 17Within a month of commencing these proceedings, five attempts were made to serve Jane at premises that I am satisfied, from subsequent contact that took place there with Jane and George, are premises in which she then resided ("the home address"). The licensed process server, Mr Stephen Goodwin, deposed on 17 June 2010 to having unsuccessfully attempted to serve Jane at the home address at: (1) 7.20pm on 29 May 2010; (2) 8.06am on 1 June 2010; (3) 5.29pm on 4 June 2010; (4) 8.21pm on 7 June 2010; and (5) 7.00am on 10 June 2010. On each of those occasions the process server says, and I accept, he knocked on the door loudly but no response came from the home address despite the fact that the process server detected movement from within. 18The absence of any response from the birth mother to the attempts to serve her personally led, on 11 June 2010, to the Director General's delegate then serving notice by post of the adoption application. The notice served on Jane was entitled Notice of Intention to Seek a Consent Dispense Order (required by Adoption Act 2000, s 72(1)) and a Notice of Application for Adoption Orders (required by Adoption Act 20001, s 88(1)(a)). 19Adoption Act , s 72(1) prohibits the Court from making a consent dispense order "unless notice of the application has been given to the person whose consent is sought to be dispensed with at least 14 days before the order is made". The Court may not make an adoption order "unless 14 days notice of the application for the order (containing the particulars prescribed by the regulations) has been given to any person whose consent to the adoption of the child is required under the Act": Adoption Act , s 88. The Adoption Act does not specify whether "notice of the application" may be "given to the person whose consent is sought to be dispensed with" by post. I am satisfied that the notice served by post on Jane conformed with the requirements of both Adoption Act , ss 72(1) and 88(1). Making a consent dispense order is a "serious step": Infant, K & the Adoption of Children Act, Re (1973) 1 NSWLR 311 at 321 per Moffitt JA. As will appear below, the Court was not satisfied on this evidence that the notice had come to Jane's attention, in October 2010, raising the issue of the evidence of service on Jane. 20Service of the equivalent notice on George in June 2010 was more straightforward. At the time of service upon him he was serving another term of imprisonment in a correctional facility in rural New South Wales. A process server personally gave him a Notice of Intention to Seek a Consent Dispense Order and a Notice of Application for Adoption Orders. The Notice was also in conformity with Adoption Act , ss 72(1) and 88(1)(a). Given prior discussions between himself and Departmental caseworkers about the possibility of Stephen's adoption it is not surprising that at the time of service he said "Oh yes, I was aware of that". 21In October 2010 the Court raised with the plaintiff issues concerning the adequacy of service upon Jane. The issues the Court raised were: whether Jane lived at the address at which service had occurred; whether it was possible for Jane to be found through other relatives or associates; and whether other means were available for the service of documents upon her, so the Court could be assured that the notice had actually come to her attention. The Court did not require any further proof of service on George. The Court also drew the plaintiff's attention to issues of the adoption plan and evidence about post adoption contact between Stephen and members of his birth family. The Court's enquiries led to more detailed attempts to engage with Jane and George detailed below. December 2010 to May 2011 - Meeting Jane and George 22In December 2010 two regional adoption caseworkers, Ms Jacquie Meyer and Ms Dianne Murrell, attended the home address several times to discuss Stephen's prospective adoption and to ascertain Jane's wishes. On each occasion these caseworkers gave Jane advance notice of the proposed visit. On each occasion Jane was either absent or unwilling to discuss the adoption application. 23Ms Meyer and Ms Murrell attended the home address on 15 December 2010. No one was at home and a letter was left advising Jane and George that the caseworkers would be back for another visit on 21 December 2010. 24The caseworkers attended the home address once more on 21 December 2010. Both Jane and George were there this time. But Jane and George advised the caseworkers they could not speak to them at that time, as they were about to go out to obtain "supplies from Bunnings". The caseworkers gave Jane and George two photographs each of the children, for which they expressed their appreciation. Arrangements were made for the caseworkers to return on 30 December. George gave his mobile telephone contact number to the caseworkers. 25On 30 December 2010 the caseworkers again attended the home address. A person answered the door that day and claimed he was "house sitting". He explained that Jane and George had not been there for some days. He provided another mobile phone contact number for Jane. The caseworkers called these two mobile telephone numbers they had collected during these visits. George's mobile phone was found to be off. They were unable to leave a message for him. This is perhaps to be explained, as appears below, by the fact that by then George was again in prison. They left a message on Jane's mobile phone. 26The caseworkers also attempted, on 15 December 2010, to make contact with Jane and George through Stephen's paternal grandparents, George's parents. But George's parents did not wish to speak with the caseworkers and would not answer any questions. There did not appear to be an operative language difficulty in dealing with George's parents, as the caseworkers offered them an interpreter, upon which the offer was declined. 27Not satisfied with Jane and George's lack of engagement with the adoption process and to address the issues raised by the Court, the caseworkers again attempted to contact Jane at the home address. Ms Meyer sent a letter to Jane at the home address on 18 January 2011 seeking contact from her to discuss: (1) "what your wishes are around contact with [Stephen] and any information exchange"; and (2) "what are your current views regarding the adoption of [Stephen]". Jane was warned in this letter that the Court had not made an adoption order and was keen to hear her views. The letter sought contact by Friday, 4 February 2011 to discuss the two matters raised. The letter warned "if you do not contact me by this date, community services will ask the Court to make an adoption order and you will be informed of this". The balance of the letter contained a report about Stephen's current progress with his proposed adoptive parents. The letter was well crafted to elicit a response from a parent who had any desire to engage with or oppose the adoption process. Jane did not respond to this letter. 28As a result of the Department's further efforts, it advised personal service of the notices required by Adoption Act , ss 72 and 88 on Jane. A Departmental caseworker personally served a Notice of Intention to Seek a Consent Dispense Order and Notice of the Application for Adoption Orders on Jane at her home address on 24 February 2011. This fulfilled the formal requirements for service, which would permit a consent dispense order to be made. But the Court had also raised with the plaintiff in October 2010 the lack of any contemporaneous evidence as to the birth parents' attitude towards the adoption application. 29On 23 December 2010, only two days after Ms Meyer and Ms Murrell met Jane and George at the home address, George began another term of imprisonment. Caseworkers made limited contact with George in prison in the early months of 2011. This prison contact, mainly between February and May was principally related to having George's name recorded on Stephen's birth certificate, as Stephen's birth father. The prison communications were difficult. Message delivery to George in prison was slow. George's efforts to formally identify himself for inclusion on Stephen's birth certificate were hampered by restrictions on his access in prison to the necessary personal identification information. 30Ms Meyer wrote to George in prison on 16 February 2011 reminding him that "community services is seeking an adoption order to be in respect to [Stephen]". The addition cannot occur after an adoption order for Stephen is made. The letter sought George's co-operation in finalisation of the adoption to ensure that George's name was added to Stephen's original birth certificate. The letter pointed out that ordinarily this addition can occur either by a paternity test or through Jane signing a birth registration form stating that George is the birth father. The letter invited contact between George and Ms Meyer by telephone. 31In response to this invitation George made contact shortly afterwards through his prison welfare officer at the correctional facility where he was detained. On 18 February 2011 Ms Meyer wrote to George confirming that he had informed her of his decision to add his name to Stephen's birth certificate by signing the necessary forms with Jane. George's contact on this occasion through a welfare officer was contrary to a position he had previously taken whilst in prison in which he declined to speak with Departmental caseworkers. 32As a result of the bail hearing in mid-February 2011 George thought, wrongly as it turned out, that he might be released from prison. Arrangements were made for him to bring the necessary paperwork to the Department's officers upon his release. 33When he was not released, further correspondence commenced in March 2011. Correspondence pointed out that if George had the necessary identification documents with him that he could request prison authorities to allow him to have access to them. A series of communication problems led to a lack of follow up upon this letter. George's welfare officer at his prison was on leave. The welfare officer's attempts to access George's prison identification information were unsuccessful. In April 2011 George was transferred to Long Bay Gaol, a location beyond his welfare officer's immediate responsibility. Although most of these communication problems were not George's responsibility, there is no evidence that he took any positive steps towards having his name placed on Stephen's birth certificate. Directions Hearing - October 2011 34Evidence of the Department's contact with Jane and George up until May 2011 was the subject of an affidavit filed by Ms Waterman, the Team Leader of the Department's Adoption Team, on 11 May 2011. But on 27 September 2011 the Court appointed a directions hearing so the Court could consider making orders to overcome the problems that George was encountering with having his name placed on Stephen's birth certificate. In light of the history of unsatisfactory contact with Jane and George the Court also invited submissions as to whether the Court should make orders under Adoption Act 2000, s 121 requiring Jane's personal attendance before considering a consent dispense order. 35The Court held a directions hearing on 12 October 2011. The Court was informed that George by then had been released from prison. The plaintiff submitted the proceedings should be adjourned just for a short period to allow George to complete the necessary forms under the Births, Deaths and Marriages Registration Act 1995 for his name to be placed on Stephen's birth certificate. The evidence then filed also showed that there had been further contact with Jane about the adoption application. The contact with Jane will be dealt with first. 36Ms Waterman's enquiries revealed that Jane had re-entered prison in April 2011 and that George was released from prison in May 2011. For a period of approximately 4 weeks, from mid April to mid May 2011, both parents were in prison. The evidence is unsatisfactory but both appears to have been found guilty of drug related offences. Jane said to Ms Waterman that her conviction was for bringing drugs to George whilst he was incarcerated. Upon his release George commenced residing with his extended family, and not at the home address. 37Ms Waterman visited Jane in prison on 11 October 2011, prior to the directions hearing on 12 October 2011, when Jane completed the paperwork to allow George to be named as the birth father on Stephen's birth certificate. 38Ms Waterman's conversation with Jane on this occasion was an important one. Jane informed Ms Waterman that she had no objections to Stephen being adopted and she did not wish Ms Waterman to make arrangements for her [Jane] to speak to the judge determining the adoption application. 39The meeting commenced with Ms Waterman giving Jane a letter dated 10 October 2011 addressed to her in the following terms. "Proposed Adoption of [Stephen] Supreme Court proceedings No. A70/2010 I act on behalf of the Director-General, Department of Family and Community Services ("Community Services") in proceedings relating to the proposed adoption of [Stephen], born [exact date not published] November 2003. I am instructed that Community Services have previously written to you about the proceedings and have also attempted to discuss the proceedings with you in person. Further, to these communications, please find enclosed a copy of: 2.a Notice of Application for Adoption Order (under ss 72(1) and 88(1) of the Adoption Act 2000); and 2.an Adoption Plan for [Stephen]. The proceedings are listed for mention before his Honour Justice Slattery at 9.45am on Wednesday, 12 October 2011 at the Supreme Court in Sydney. If you would like to participate in the proceedings, you need to attend the mention at that time. Arrangements can be made for you to appear by way of video link and I am happy to contact his Honour's Associate on your behalf to make the necessary order in Chambers. This would need to be done by no later than 3.00pm on 11 October 2011. If you are unable to attend on 12 October 2011 but would like to participate in the proceedings, you should telephone the Adoptions Clerk Lydia Sianipar on (02) 9230 8733 prior to the listing. If you do not attend on 12 October 2011 or contact the Court prior to the listing, I am instructed to seek that the Court make the adoption order in relation to Andre in your absence. Nicole Hailstone of my Office can be contacted on (02) 8224 5359 if you wish to discuss the above. Yours faithfully, Nicole Hailstone Senior Solicitor For Crown Solicitor" 40The letter was accompanied by a further Notice of Intention to Seek a Consent Dispense Order and Notice of Application for Adoption Orders, signed by Barbara Waterman and this time dated 11 October 2011. The Notice informed Jane of the requirements under Adoption Act , ss 72 and 88 and the Regulations. 41When the letters were given to Jane Ms Waterman explained to her:- "I need to serve you with legal documents that explain that Community Services has filed an adoption application and that we will be in Court tomorrow to discuss this with the judge". 42Jane became upset at the discussion of the matter. Ms Waterman took Jane through the letter of 10 October 2011 and explained it to her saying:- "This is where it states that an application for [Stephen's] adoption has been filed in Court. We will appear before Justice Slattery tomorrow morning, and arrangements can be made for you to appear before the judge and let him know your views about [Stephen's] adoption". 43Ms Waterman then took Jane to the letter and to the accompanying Notice. When dealing with the Notice she said to Jane:- "This document explains if you do not agree with adoption for [Stephen] or you would like to let the judge know your views on [Stephen's] adoption you need to let the Court know. Do you have any objections to [Stephen] being adopted?" To this question Jane answered:- "No". 44Ms Waterman then took Jane to the current Adoption Plan which was attached to the Notice and explained that it was the Adoption Plan. Ms Waterman then asked again "Do you want me to make arrangements for you to speak with the judge tomorrow?" to which Jane responded "No". 45Jane explained to Ms Waterman that she was serving a term of imprisonment of approximately 12 months, which would see her released in April 2012. 46I am satisfied on Ms Waterman's evidence that Jane does not wish to speak to the Court about Stephen's adoption. The letter of 10 October 2011 clearly explains Jane's rights to appear. The Notice is clear as to Jane's rights under the Adoption Act . Jane communicated to Ms Waterman, a senior Departmental officer in the Adoptions Team, that she does not wish to make submissions to the Court and now consents to the adoption. I accept Ms Waterman's evidence that Jane does not wish to say anything to the Court and consents to the adoption. The question considered later in these reasons is whether the Court should go any further than the steps already taken and require Jane's appearance under Adoption Act , s 121. For the reasons explained later the Court should not. 47There has also been more contact between Ms Waterman and George concerning his attitude to Stephen's adoption. On 11 October 2011 a process server left a copy of a letter and a notice, similar to that given to Jane, at George's new address with his family. Then Ms Waterman personally interviewed him on 28 October 2011. Much of that interview was concerned with the issue of placing George's name on Stephen's birth certificate. 48But in relation to the adoption application on 28 October 2011, Ms Waterman provided George with the copy of the mandatory written information required under the Part 5 - Division 2 processes and asked him about his understanding of adoption. George first appeared to misunderstand that the adoptive parents would only be carers until Stephen turned 18. Ms Waterman explained to him that adoption was for the rest of Stephen's life. Ms Waterman encouraged George to read the mandatory written information which explains the legal and emotional effects of adoption. When Ms Waterman asked George for his thoughts about Stephen's adoption George said "Adoption will never be ok. I need to look at reality and what's best for [Stephen]. I want to make sure if I can't have him back in the family, I am part of his life and can show him our side of the family, who we are, our culture. I want him to know his brothers and sisters and the family are available when he wants us". In summary, George maintains his general opposition to Stephen's adoption but recognises, as he says, that in reality he must look at "what's best for [Stephen]". 49On 28 October Ms Waterman discussed with George the adoption plan for Stephen. He misunderstood whether "Anglo-Saxon" in the adoption plan which referred to Stephen's background as "Anglo-Saxon/Lebanese cultural heritage" which was cleared up by Ms Waterman. George also indicated to Ms Waterman that he wished Stephen to know that George and Jane were of Muslim faith. The adoption plan already clearly provides for the adoptive parents to provide Stephen with information regarding his maternal and paternal family and their history. The communication of information about Stephen's parents' Muslim faith is consistent with the current adoption plan and requires no further special provision. 50The long running issue of placing George's name on Stephen's birth certificate is now almost, but not wholly resolved. The detail of the various attempts made by the Department to communicate with Jane and George on this issue need not be detailed in these reasons. Although both Jane and George have completed the necessary forms to add George's name to Stephen's birth certificate registration, there are two remaining obstacles to this being achieved. Jane is still in prison. She now has difficulty in providing adequate identification as the mother named on Stephen's birth certificate. Also, George has decided that he wishes to change his name back to his former name, the name which he now wants recorded on Stephen's birth certificate. These two obstacles should be able to be overcome shortly. If necessary the Court's processes can be invoked to ensure that a limited time frame was placed around overcoming these obstacles. I am minded to make the adoption order on 20 December 2011, unless the plaintiff indicates before that time that the birth certificate has not been amended. The Court will grant liberty to apply to hear an application at short notice to make such orders as the plaintiff requires to ensure these final obstacles are removed. The Adoption Application 51I am satisfied on the evidence in support of the Summons that an adoption order should be made for Stephen's adoption by the proposed adoptive parents, subject to the question of dispensing with the birth parent's consent. The proposed adoptive parents are both of good repute and are fit and proper persons to fulfil the responsibilities of a parent's Adoption Act , s 28. 52There were issues in relation to the Adoption Plan and the extent to which there was adequate involvement with Stephen's paternal grandparents and issues about contact with one of his siblings. These issues have now been resolved. It is not necessary to detail them in these reasons. 53Brereton J provided guidance in Director General, Department of Community Services v D (2007) 37 Fam LR 595 [2007] NSWSC 762 that when the Court is deciding whether to dispense with the consent of the birth parent who is objecting to the adoption of a child, the Court is obliged to take into account the circumstances that would pertain if the birth parent had parental responsibility for the child; this possibility was then to be compared with the situation of the child with the proposed adoptive parents. 54In the present case the evidence comfortably established that proposed adoptive parents have given Stephen a stable, loving environment in which he has clearly thrived to his social, educational and personal advantage. The affidavit evidence in support of the application shows their care of Stephen to be of the highest quality that could be expected of parents. The proposed adoptive parents are mindful of every aspect of Stephen's present and future welfare. They have committed themselves to his care for eight years. The proposed adoptive parents have been very co-operative in the formulation of an adoption plan which involves a real possibility of Stephen's regular contact with Jane and George. 55In contrast, the evidence demonstrates that Jane and George have as recently as six months ago both been in prison at the same time. They have both been imprisoned in recent years for periods in excess of six months. The Court can have no confidence that they will not be imprisoned again in the short to medium term. They have not made serious attempts since Stephen's birth to change their way of life, to provide a basis for their reassuming parental responsibility for Stephen. They have had no contact with Stephen in recent years. They have not actively sought to have him restored to their care. They show no evidence of ceasing their involvement with drugs of addiction. 56In my view any comparison between Stephen's present situation and his possible placement back with his parents, compels the conclusion there is a strong basis for the making of a consent dispense order and an adoption order in this case. Consent Under Adoption Act 2000 - the Statutory Structure Consent Dispense Orders 57The plaintiff seeks consent dispense orders under Adoption Act , s 67(1)(d) dispensing with the requirement for George and Jane's consent to Stephen's adoption. Adoption Act , s 67 provides as follows:- " (1) 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 (b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or (c) if the person is a parent of, or person who has parental responsibility for, 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 person who has parental responsibility, or (d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child: (i) the child has established a stable relationship with those carers, and (ii) the adoption of the child by those carers will promote the child's welfare, and (iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36. (2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child." 58Each of Adoption Act, s 67(1)(a), (b), (c) and (d) is a gateway for the exercise of the s 67(1) discretion to make a consent dispense order. But there is a difference in focus between Adoption Act , s 67(1)(a), (b) and (c) and A doption Act , s 67(1)(d). The difference is that s 67(1)(a), (b), (c) are each concerned with the situation of the birth parent or other person whose consent to an adoption order would otherwise be required under Adoption Act, s 52. These provisions deal with the inability of a person to provide consent, either because he or she cannot be found or because of incapacity or because issues concerning the welfare of the child displace the wishes of the parent or person with parental responsibility. All of these matters are concerned with the quality or the relative value of the consent of the parent or person with parental responsibility. 59But Adoption Act , s 67(1)(d) has a different focal point. On its face it says nothing about the capacity or quality of the consent of the parent or person with parental responsibility. Rather, it looks to the child's present situation. The threshold for the Court's exercise of Adoption Act, s 67(1)(d) discretion is that the authorised carers of the child have applied for the child's adoption, that the child has established a stable relationship with those carers, and that the adoption of the child by those carers will promote the child's welfare. Those matters are all well established here. Section 67(1)(d) does not expressly place a requirement on the exercise of the Court's s 67(1)(d) discretion that the Court make a judgment about the quality or value of the consent of birth parent or other person with parental responsibility. But as Brereton J explained in Director General, Department of Community Services v D (2007) 37 Fam LR 595; [2007] NSWSC 762, parental consent is always a consideration; "Although the interest of the child are paramount, the Adoption Act does not entirely disregard the parental rights of the birth parents as is evident from the requirement for their consent". Adoption Act , Chapter 4, Part 2, emphasizes the principle that an informed consent should be given by parents or persons with parental responsibility before an adoption order can be made. But when it applies, as has been stated, Adoption Act , s 67(1)(d) provides a different emphasis. Consents to Adoption 60Adoption Act , Chapter 4, Part 5, Division 2 provides a detailed procedure for a parent or person with parental responsibility to give informed consent to an adoption order. The Court cannot make an adoption order unless consent has been given by each parent of the child and any person with parental responsibility for the child: Adoption Act , s 52. Consent is not required in a number of circumstances, including but not limited to whether the Court has made a consent dispense order: Adoption Act , s 54. Although not applicable here, because Stephen is under the age of 12, a child over that age can give sole consent to his or her adoption: Adoption Act , s 55. The legislation also provides for the birth father to be given an opportunity to consent, through the Director General giving notice to the putative birth father to advise him of the legal processes by which he can establish paternity (1) in relation to a child or be registered as the child's father and (2) in respect of his rights as a parent in relation to the adoption of the child: Adoption Act , s 56. 61If consent is not dispensed with under Adoption Act , s 67, consent is not effective unless given in accordance with Adoption Act , Chapter 5, Part 4, Division 2, ss 57 - 65. These provisions declare that consent to a child's adoption is not effective unless it is "informed" consent and given in accordance with the Adoption Act . The expression "informed consent" is defined as meaning "consent given after a person has been given the mandatory written information": Adoption Act , s 57. The "mandatory written information" in relation to the adoption of a child is the following information ( Adoption Act , s 57):- " mandatory written information , in relation to the adoption of a child, means written information on the following: (a) the alternatives to the adoption, (b) financial and other support services available whether or not the child is relinquished for adoption, (c) possible emotional effects, both short and long term, of relinquishing the child for adoption, (d) the legal process of adoption (including the consents required and effect and way of revoking consent, the selection procedure, the role of adoption plans, the role of the Court and review and appeals procedure) and the legal consequences of each stage in the process, (e) the duties and responsibilities of the Director-General and principal officer in relation to the placement of the child, (f) the rights and responsibilities of other parties to the adoption, including access to information about, or contact with, the other parties to the adoption, (g) any other matter prescribed by the regulations." 62Apart from the provision, the mandatory written information the legislation requires procedures to be followed which will ensure that the mandatory information is absorbed. First the Director General must ensure that a person whose consent to an adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption: Adoption Act , s 59(1). 63But the mandatory written information is not required to be given to the Minister in the case of the adoption of a child who is under the parental responsibility of the Minister: Adoption Act , s 59(3). Consent may only be given by an instrument of consent that contains the information prescribed by the regulations, which information contains a number of warnings about the effect of the giving of the consent: Adoption Act , s 61; Adoption Regulation 2003 (NSW), reg 34. A person giving consent must be counselled before he or she signs the instrument of consent to an adoption, which counselling should accurately explain the legal effect of signing the instrument and the procedures for revoking consent and the effect of the mandatory written information: Adoption Act , s 63. Finally, the instrument of consent must be witnessed by a person independent of the counsellor. The legislation seeks to bring home to the person giving consent the effect of his or her act, of giving consent under Adoption Act , s 52. The Application of Adoption Act , s 67 64In practice, there are many cases in which the Court has made a s 67 consent dispense order without requiring a birth mother or birth father to go through the formal process under Adoption Act , Chapter 4, Part 5 - Division 2 for obtaining effective consent, ("the Part 5 - Division 2 processes"). In the case of the making of a consent dispense order under Adoption Act , s 67(1)(a) or (b) the reasons for that are obvious. The person either cannot be found or identified or is incapable of giving consent. There would be no occasion under those provisions for considering the application of the Part 5 - Division 2 consent processes to the birth parents. 65But the possibility of applying those processes arises under Adoption Act, s 67(1)(c) and (d). Section 67 itself gives no guidance as to whether the Part 5 - Division 2 consent processes should be attempted before the Court makes a consent dispense order. The issue is left open. As part of a preliminary hearing under Adoption Act , s 80(4) the Court can require that such procedures be attempted before the making of a consent dispense order. 66But whether such a requirement should be imposed depends on the circumstances. I agree with the Director General's submissions in this application that Adoption Act , Chapter 4, Part 5 really sets up two pathways for adoption: first, where consent is obtained from the birth parents (Part 5, Division 2); and second, where the Court makes a consent dispense order, in circumstances where it is neither possible, appropriate nor necessary to obtain the consent of the parents (Part 5, Division 3). Where the Court is minded to make a consent dispense order under s 67(1)(c) or (d), the Court may consider that the factors that open the s 67 pathway may also displace any need to consider engaging the Adoption Act procedures for gaining effective consent. If there is a strongly demonstrated case for the application of s 67(1)(d), as there is here, and if there has been a clear explanation of a parent's rights to oppose an adoption application, as has been given here, then requiring Part 5 - Division 2 consent processes to take place will probably be unnecessary. 67But there may be some cases where it is clear that the best interest of the child would be appropriately served by requiring that the Part 5 - Division 2 processes be attempted: Adoption Act , ss 3, 7. For example, it may be thought in the long term in some cases, that the birth parents' consent is possible despite some indications of opposition and that such parental consent may best promote future harmony in the child's life. Attempting the Part 5 - Division 2 consent processes may be the best course before s 67 is considered in such a case. But for the reasons that follow in the next section that is not this case. 68Once the Court is satisfied that one of the s 67(1)(c) or (d) grounds is established, the Court should consider whether it should exercise its discretion to dispense with consent. Ordinarily in exercising that discretion the Court should take into account the objects of the Act: Adoption Act , s 3. Those objects identify the guiding principle as being, that the best interests of the child both in childhood and later in life must be the paramount consideration. 69An examination of the cases in the area also shows that the Court does not generally require the Part 5 - Division 2 consent processes to be engaged in before making a consent dispense order. 70Palmer J made a consent dispense order for both birth parents under Adoption Act , s 67(1)(d) in Re B [2010] NSWSC 1155. In Re B the birth father opposed the adoption application but the birth mother did not, although she had not formally consented. The birth father had made proposals to care for the child. The issue was whether the father's consent should be dispensed with or not. After considering the father's proposals to care for the child the Court dispensed with the consent of both parents and made adoption orders. The case is a useful illustration of the power under Adoption Act , s 67(1)(d) being deployed where one of the birth parents had given informal consent, even though the informal consent did not involve the full Part 5 - Division 2 processes. 71The cases also illustrate that s 67(1)(c) orders are made where the parents have engaged to a degree with the adoption process but do not provide their consent, although they also do not contest the adoption: Department of Family Community Services and LH; Re R [2011] NSWSC 551. 72Consent dispense orders have also been made: where a birth parent does not seek to appear at a hearing, although the parent is clearly aware of the proceedings and chooses to play no part; where the views of the birth parent have changed throughout the adoption process; and where the parents are ambivalent about giving consent: cf Director General Department of Human Services; Re M [2011] NSWSC 369. Exercising the Adoption Act , s 67 Discretion in this Case 73Adoption Act , s 67(1)(d) applies here. Stephen's authorised carers apply to adopt him. Stephen has established a stable relationship with them. I am satisfied on the evidence that Stephen's adoption by them will promote his welfare. This is a case where I will make a consent dispense order under Adoption Act , s 67, dispensing with the consent of Jane and George, and without requiring Jane and George to undergo the effective Part 5 - Division 2 consent processes. I reach that conclusion for the following reasons. 74First, Stephen is about to turn eight. The issue of Stephen's adoption has been actively considered since late 2006. In considering his best interests both now and later in life, and to avoid further undue delay in the making of a decision about Stephen's adoption, it is best that the order be made now: Adoption Act , s 8(1)(a) and (e)(i). 75Secondly many notices and letters have been given to Jane and George since Stephen's adoption was first proposed, explaining their rights. They have both only chosen limited engagement with the adoption process even when out of prison. I am satisfied that the material provided to them was sufficient to allow them to engage fully with the adoption process and to formally object to Stephen's adoption if they wished. Now to require them to engage with the process further, where such attempts so far have only shown their reluctance to be involved, would be likely to be unproductive and therefore to be at the expense of Stephen's best interests. 76Thirdly, this is a case where little point would be served in my view by attempting to obtain formal consent from Jane. Her conduct in her recent engagement with Ms Waterman and in her reluctance to engage in previous years is sufficient for the Court to infer that although she has indicated to Ms Waterman orally that she is prepared to give her consent, attempting to do so through the Part 5 - Division 2 process will serve no useful purpose. 77Fourthly the existing adoption plan already provides for adequate contact between Jane and George after Stephen's adoption if they wish to have it. Indeed the current adoption plan provides for far more contact than has occurred over the last eight years. Jane giving her formal consent, would not add anything to the quality of the arrangements specified in the Adoption Plan for Stephen's benefit. George has indicated his opposition to adoption and he has communicated his views about the adoption plan. Asking for his formal consent now seems to have little further point. His position can be fairly assessed as an opponent of Stephen's adoption but one who does not seek to appear to maintain opposition. 78Fifthly, the evidence demonstrates that Jane, the birth mother, is suffering distress in her conversations with Ms Waterman about the issue of Stephen's adoption. It is not desirable that her distress be prolonged. I have considered the possibility of requiring the birth mother and birth father's attendance in Court under Adoption Act , s 121 and ordering if necessary that they be made parties to the proceedings for that purpose. But in my view that is only likely at this point to occasion further distress to the birth mother, Jane. 79Accordingly, I will make a consent dispense order under Adoption Act, s 67(1)(d). Conclusions and Orders 80The Court is satisfied of all the matters required by Adoption Act , s 90 for the making of an adoption order. I am satisfied that Stephen's best interests would be promoted by his adoption and that as far as practicable his wishes and feelings have been ascertained and due consideration given to them. The proposed adoptive parents have been selected in accordance with the Adoption Act . The Court will dispense with the consent of the birth parents Jane and George. I am satisfied that Stephen's given names, identity, language, culture and religious ties have been taken into account in the making of the adoption plan. I am satisfied that the arrangements set out in the adoption plan, signed by the adoptive parents, are in Stephen's best interests and are proper in the circumstances. I am satisfied too that the making of an adoption order is clearly preferable in Stephen's best interests to any other action that could be taken by law in relation to his care. 81The Court orders and directs that:- 1. pursuant to Adoption Act , s 67(1)(d) the consent of the mother, Jane, be dispensed with; 2. pursuant to Adoption Act , s 67(1)(d) the consent of the father, George, be dispensed with; 3. the plaintiff shall by Friday, 16 December 2011 provide to the Court final information as to the amendment of Stephen's birth certificate to record George as his birth father, with a view to the making of an order for Stephen's adoption in favour of the proposed adoptive parents by 20 December 2011; and 4. grant liberty to apply. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2011