Director-General NSW Department of Family and Community Services; re JG [2011] NSWSC 1577

Supreme Court New South Wales

Medium Neutral Citation: Director-General NSW Department of Family and Community Services; re JG [2011] NSWSC 1577 Decision date: 16 December 2011 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Director-General to continue to have parental responsibility for child for a further year or until earlier further order and Director-General to make further report to the Court if within a year the Director-General has not ceased to have parental responsibility for the child. Catchwords: FAMILY LAW AND CHILD WELFARE - Adoptions - Director-General has parental responsibility for child as result of (NSW) Adoption Act 2000 s 75(1)(a) and s 79(1) - Director-General places child in care of suitable person under s 79(2) - Director-General applies for order to continue 'supervision' of child - such order not an order concerning parental responsibility - appropriate to make order under s 78(3)(b) that Director-General continue to have parental responsibility for child for a further year and for a report to be made to Court if Director-General does not cease to have parental responsibility for child within year. Legislation Cited: (NSW) Adoption Act 2000, s 75, s 78, s 79 Category: Principal judgment Parties: Director-General, NSW Department of Family & Community Services (plaintiff) JG (child) File Number(s): 2011/A135

Judgment 1JG was born on 5 February 2010 with Down Syndrome. His parents approached Anglicare Adoption Services requesting a placement for adoption. On 2 March 2010, JG was placed in pre-adoptive foster care. On 24 August 2010, JG's parents signed General Consents to Adoption. 2On 26 September 2011, JG commenced a period of transition into the care of Anglicare approved adoptive applicants, whose suitability has been thoroughly assessed and seem highly appropriate adoptive parents. The transition into their care was completed on 3 October 2011. Due to JG's special needs, and the time taken to find assess and approve a permanent placement family, Anglicare is not yet in a position to lodge an application for adoption. It anticipates doing so after a period of about twelve months in which the placement can be assessed. 3On 24 October 2011, the Director-General filed a summons claiming orders, said to be pursuant to (NSW) Adoption Act 2000, s 78, that: (1) the Principal Officer, Anglicare Adoption Services continue supervision of JG, and (2) a further report on JG's progress be provided to the Court by the Principal Officer, Anglicare Adoption Services, within twelve months of the date of this order, unless an adoption application and s 91 report is filed within the said period of twelve months. 4Adoption Act, s 75, relevantly provides as follows: 75 Parental responsibility for citizen child awaiting adoption (1) Parental responsibility following general consent or dispensing with consent. The Director-General has parental responsibility for a child (for purposes other than the purposes of section 52) to the exclusion of all other persons after: (a) general consent to the adoption of the child has been given by every person whose consent to the adoption of the child is required under this Act, or (b) the requirement for consent has been dispensed with by the Court. 5Adoption Act, s 78, provides as follows: 78 Parental responsibility reports-citizen and non-citizen children (1) The Director-General must make a report to the Court concerning any child of whom the Director-General has parental responsibility under this Part if the Director-General has not, within a period of one year after taking over parental responsibility, ceased to have parental responsibility. (2) The Court may make any order concerning the parental responsibility for the child that it thinks fit. (3) Without limitation, an order under subsection (2) may, if the child is less than 18 years of age: (a) declare the child to be under the parental responsibility of the Minister under the Children and Young Persons (Care and Protection) Act 1998) , or (b) order that the Director-General continue to have parental responsibility for the child for a further period of one year. 6Adoption Act, s 79, relevantly provides as follows: 79 Duration of parental responsibility (1) The Director-General continues to have parental responsibility for a child under section 75 or 78 until: (a) an adoption order is made in relation to the child, or (b) if consent has been given, the instrument of consent is lawfully revoked, or (c) the Court, by order, makes other provision for parental responsibility for the child, or (d) (Repealed) (e) the Director-General declines to have parental responsibility for the child, or Note. See section 75 (5). (f) the Director-General renounces parental responsibility for the child, or Note. See section 76. (g) the child is declared to be, or is placed, under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998 . (2) The Director-General may, on such terms and conditions as the Director-General thinks fit, place any child for whom the Director-General has parental responsibility under section 75 or 78 in the care responsibility of any suitable person who has agreed to have the child in his or her care. (2A) The Director-General's parental responsibility for a child under section 75 or 78 is suspended while the child is placed in some other person's care responsibility pursuant to subsection (2). (2B) The Director-General may at any time, and for any reason or no reason, make an order terminating a child's placement under subsection (2) and directing that the child be returned to the parental responsibility of the Director-General. (3) The fact that the Director-General has parental responsibility for a child under this section does not affect the liability of any person to provide adequate means of support for the child... 7Accordingly, consequent upon both birth parents having given general consents, the Director-General has parental responsibility for JG [s 75(1)(a)]; the Director-General appears to have placed the child in the care responsibility of the Principal Officer of Anglicare [s 79(2)] but can terminate that placement at any time for any or no reason [s 79(2B)]; the Director-General was obliged to make a report to the Court by 24 August 2011 [s 78(1)]; and the Court may make any order concerning parental responsibility that it thinks fit [s 78(2)], including an order that the Director-General continue to have parental responsibility for the child for a further period of one year [s 78(3)(b)]. 8An order that the Principal Officer of Anglicare continue supervision of the child is not an order concerning parental responsibility. When this was pointed out to the Department by her Honour the Chief Judge in Equity, it responded that it did not intend to amend the summons to claim a parental responsibility order, but attached a letter from the Principal Officer of Anglicare in which she acknowledged that the Director-General had parental responsibility under s 75, said that in that light a further interim order regarding parental responsibility was not necessary, and that: The intention had been to report to Court pursuant to s78(1) and to confirm my further supervision of [JG]. 9Although, given the combined effect of s 75 and s 79(1), an order is probably not necessary, s 78(3)(b) authorises an order that is apt in the circumstances, namely that the Director-General continue to have parental responsibility for the child for a further period of one year. 10Where the Director-General has parental responsibility for a child, under s 75, pending placement and adoption, it is primarily a matter for the Director-General to make appropriate arrangements in respect of the child's care and supervision in the interim. Section 79 gives the Director-General the requisite powers. It is for the Director-General, and not the Court, to be satisfied that the current care arrangements should remain in place, although there is nothing before me to suggest that they should not. 11For those reasons, I will not make order 1 in the Summons. Instead, I make the following orders: 1. Order pursuant to s 78(3)(b) that the Director-General continue to have parental responsibility for the child for a further period of one year or until earlier further order. 2. Order that the Director-General make a further report to the Court under s 78(1) concerning the child if the Director-General has not, within a period of one year after the date of this order, ceased to have parental responsibility for the child.