Re J [2012] NSWSC 633

Supreme Court New South Wales

Medium Neutral Citation: Re J [2012] NSWSC 633 Hearing dates: In chambers Decision date: 14 June 2012 Jurisdiction: Equity Division - Protective List Before: White J Decision: 1. Pursuant to s 67(1)(d) of the Adoption Act 2000 the consent of the child's natural mother be dispensed with. 2. I make an order for the adoption of the child in favour of the adopting parents ... and approve the name ... Catchwords: FAMILY LAW & CHILD WELFARE - adoptions - consent dispense order -- application for adoption made by foster parents of the child - birth parents notified of proposed adoption and that consent dispense order will be sought - such order opposed by mother - no notice of intention to oppose making of order filed by mother - notice of application for consent dispense order served on birth mother in Queensland, but not in compliance with Service and Execution of Process Act 1992 (Cth) - held effective compliance with s 72(1) of the Adoption Act 2000 (NSW) - whether foster parents were authorised carers of child within meaning of s67(1)(d) of Adoption Act - consent dispense order and adoption order made Legislation Cited: Service and Execution of Process Act 1992 (Cth) Adoption Act 2000 Children and Young Persons (Care and Protection) Act 1998 Category: Principal judgment Parties: J Representation: Counsel: Solicitors: File Number(s): 041/2012

Judgment 1HIS HONOUR: In this matter I am asked to make an adoption order of the child in favour of the child's foster parents and an order dispensing with the consent of the child's mother. 2Notice of the application for these orders was given to the child's mother on 14 April 2012 by service of a notice entitled "Notice to Dispense with the Consent of Natural Parent of Child (under section 72(1) of the Adoption Act 2000) and Notice of Application for Adoption Order (under section 88(1) of the Adoption Act 2000)." The document was delivered personally to the child's mother at [xxx] in Queensland. Service was not in accordance with the Service and Execution of Process Act 1992 (Cth) (s 16). But s 72(1) of the Adoption Act 2000 requires only notice of the application for a consent dispense order to be given to the person whose consent is sought to be dispensed with at least 14 days before the order is made. It does not require service in accordance with any Act or rule prescribing a mode of service. Service is a means of providing notice, but not the only means. The child's mother is not a party to the proceeding. The document served on her was not an initiating process. The fact that service was not in accordance with the requirements of the Service and Execution of Process Act for the service of initiating process does not affect the validity of the notice given under s 72(1). 3The mother has not consented to the application for the adoption order and has stated that she opposes the making of such an order. However, she has not filed with the Registrar a notice of appearance of her intention to oppose the making of the orders. 4For the reasons which follow, the criteria for making a consent dispense order are satisfied. The requirements of ss 90 and 91 of the Adoption Act for the making of an adoption order are also satisfied. Both orders should be made. [Matter omitted for reasons of confidentiality.] 21Section 67 of the Adoption Act relevantly provides: "67 When can Court dispense with consent of person other than the child? (cf AC s 32 (1)) (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: ... (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." 22The dictionary to the Adoption Act defines "authorised carer" as including any person who "has care and responsibility for a child under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act 1998". This is different from the definition of "authorised carer" for the purposes of the Children and Young Persons (Care and Protection) Act (see s 137 of that Act). "Out-of-home care arrangements" made under the Children and Young Persons (Care and Protection) Act are arrangements made that come within the definition of "Out-of-home care" in s 135 of that Act. Section 135 of the Children and Young Persons (Care and Protection) Act relevantly provides: "135 Definition and types of 'out-of-home care' (1) For the purposes of this Act, out-of-home care means residential care and control of a child or young person that is provided: (a) by a person other than a parent of the child or young person, and (b) at a place other than the usual home of the child or young person, whether or not for fee, gain or reward. (2) There are 3 types of out-of-home care for the purposes of this Act, as follows: (a) statutory out-of-home care-see section 135A, (b) supported out-of-home care-see section 135B, (c) voluntary out-of-home care-see section 135C. (3) For the purposes of this Act, out-of-home care does not include: (a) daily care and control of a child given by a person in the person's capacity as an approved provider of education and care services under the Children (Education and Care Services) National Law (NSW) or the Children (Education and Care Services) Supplementary Provisions Act 2011, or (b) any care provided by a relative of a child or young person unless: (i) the Minister has parental responsibility for the child or young person by virtue of an order of the Children's Court, or (ii) the child or young person is in the care of the Director-General, or (iii) it is provided pursuant to a supported out-of-home care arrangement as referred to in section 153, or (c) anything prescribed by the regulations not to be out-of-home care. (4) However, a child or young person who is in out-of-home care does not cease to be in that care merely because the child or young person becomes subject to any care or control referred to in subsection (3)." 23"Statutory out-of-home care" is defined in s 135A. It is defined as follows: "135A Statutory out-of-home care (1) Statutory out-of-home care is out-of-home care that is provided in respect of a child or young person for a period of more than 14 days: (a) pursuant to a care order of the Children's Court, or (b) by virtue of the child or young person being a protected person. (2) Any statutory out-of-home care provided in respect of a child or young person is taken to commence: (a) immediately on the making of a care order for a period of more than 14 days in respect of the child or young person, or (b) in any other case-immediately the child or young person is placed with an authorised carer. (3) In this section, protected person means: (a) a person who is a ward of the Supreme Court, or subject to an order of the Supreme Court in its parens patriae jurisdiction, and of whom the Minister or the Director-General has the custody or care pursuant to an order of the Supreme Court, or (b) a person who is under the parental responsibility of the Director-General pursuant to Part 6 (Parental responsibility for children awaiting adoption) of Chapter 4 of the Adoption Act 2000, or (c) a person in respect of whom the Minister or the Director-General has parental responsibility, either wholly or partially, pursuant to an order in force under the Family Law Act 1975 of the Commonwealth, or (d) a person who, having been a person referred to in paragraph (a), (b) or (c), was in the custody of a person referred to in section 91 (1) (d) (i) or (ii) of the Children (Care and Protection) Act 1987 immediately before its repeal." 24The child came into the care of the prospective adoptive parents by virtue of her being a protected person. The period of statutory out-of-home care is taken to have commenced immediately on the child's being placed with them where the period of care extended beyond 14 days. To come within the definition of "out-of-home care" the care has to be provided at a place other than the usual home of the child. Whether the place of care is other than the child's usual home is to be determined at the commencement of the period of out-of-home care. The care would not cease to be out-of-home care (so that the carers ceased to be authorised carers within the meaning of the Adoption Act) because the place of care became the child's usual home. [Further reasons and orders omitted for reasons of confidentiality.] 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: 14 June 2012