Supreme Court New South Wales Medium Neutral Citation: Adoption Director-General, Department of Family & Community Services; Re TVK [2012] NSWSC 1629 Hearing dates: 12 December 2012 Decision date: 17 December 2012 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Adoption order; parentage order; access order Catchwords: ADOPTION - access arrangements - relevant considerations - where there is a dispute between adopting parents and birth father as to frequency and duration of contact - interests of child are paramount but interests of birth father are relevant ADOPTION - whether court has jurisdiction to make a contact order following making an adoption order - Family Law Act s 69ZK - whether a child in respect of whom an adoption order has been made is a child under the care of a person under a child welfare law Legislation Cited: (Cth) Family Law Act 1975, s 69ZK (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) Adoption Act 2000, s 67(1)(b), s 95, s 96 (NSW) Children (Care and Protection) Act 1987 (NSW) Status of Children Act 1996, s 21(2) Cases Cited: Adoption Application A83/6507 [1984] 2 NSWLR 590 Newling and Mole (1987) 11 Fam LR 974 Re J (1990) 14 Fam LR 584 The Marriage of Lane (1986) 10 Fam LR 1018 The Marriage of Sargent, Director of Department of Youth and Community Services (1995) 10 Fam LR 867 Category: Principal judgment Parties: Director-General, Department of Family and Community Services for the applicants (Mr and Mrs M) - Plaintiff Birth Mother, Mrs T - First Defendant Birth father, Mr A - Second Defendant Child, TVK Representation: Counsel: Ms Christie - Plaintiff Mr Lawson (solicitor) - Second Defendant Solicitors: NSW Crown Solicitor - Plaintiff William Lawson Solicitor - Second Defendant File Number(s): A31/2012 Judgment (ex tempore) 1HIS HONOUR: By Summons filed on 13 March 2012 the Director-General, Department of Family and Community Services seeks an order pursuant to (NSW) Adoption Act 2000, s 67(1)(d), dispensing with the consent of the child's natural mother and natural father and for the adoption of the child TVK in favour of the proposed adopting parents RCM and KLM (together the adopting parents), together with an order approving the name M as the surname and TK as the given names of the child. 2In reality, there is on the hearing only one contentious issue, which is that of access between the child and his birth father, Mr A. The child's birth mother has been notified of the application. She has not formally consented to it, but after initially indicating that it was her intention to oppose the application has since indicated that she supports it. Mr A also has not formally consented to the application, but has indicated that he is at least not unsupportive of adoption by the proposed adoptive parents, provided that his ongoing contact with the child is secured. Conditions for making an adoption order 3It is clear that the child has been admirably cared for by the adopting parents and will continue to do well in their care. It is clear that there are significant benefits for him in making an adoption order. I will need to return, after I have dealt with the other formal issues, however, to the question of contact or access, which is a most important one. 4I am satisfied that, the application for the adoption of the child having been made by persons who are authorised carers of the child, the child has established a stable relationship with them and the adoption of the child by those carers will promote the child's welfare. 5I am further satisfied that to make a dispense order is in the best interests of the child, and accordingly I will make an order pursuant to s 67 that the consent of the child's natural father and mother be dispensed with. 6I am satisfied that the notice of the application for the consent dispense order has been given to the child's birth father and birth mother, whose consent is sought to be dispensed with, at least 14 days before the order is made. 7I am satisfied that at least 14 days notice of the application for the adoption order containing the prescribed particulars, has been given to those persons whose consent is required and has not been given or has been dispensed with, and to any person not being a person whose consent is so required who has parental responsibility for the child. 8I am satisfied that, taking into account all relevant matters referred to in s 8, and in particular the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, the nature of the relationship of the child with each proposed adoptive parent, and the suitability and capacity of each proposed adoptive parent to provide for the needs of the child, including the emotional and intellectual needs of the child, the best interests of the child would be promoted by adoption by the proposed adopting parents. 9I am satisfied that as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them. 10I am satisfied that the prospective adoptive parents, being persons other than a step-parent or relative, have been selected in accordance with the Act. 11I am satisfied that consent to the adoption of the child has been given by every person whose consent is required under the Act, or that consent has been or should be dispensed with. 12So far as the child's name is concerned, no opposition is indicated to the proposed name and, the child being less than 18 years of age, will in the event of an adoption order being made have the surname M and the given names TK. Contact with the birth father 13The proposed adoptive parents and the Director-General have entered into an adoption plan, which provides, amongst other things, for contact between the child and the birth father. It proposes face-to-face contact on at least six occasions per year at a mutually agreed location, and for a mutually agreed duration, it being envisaged that contact visits will occur during school holidays and in a public place to be negotiated between the parties. The plan acknowledges that, as the child grows older, he will begin to have a significant input regarding the way that contact occurs, and the adopting parents agree to support the child in his wishes regarding contact frequency and structure. The plan also makes provision for an exchange of letters, information and photographs, and contemplates telephone and/or email contact. 14Because Mr A is not a consenting party, he is not by definition a party to the adoption, and therefore not a party to the adoption plan. That means that, while he is referred to in the adoption plan, it confers no rights, let alone enforceable rights, on him. 15Although there is a more significant legal issue to which I shall shortly come, the practical dispute boils down to the difference between what is proposed in the adoption plan of essentially six occasions of face-to-face contact per year - albeit, the evidence suggests, for two hours or more each - as opposed to the current regime of monthly contact, for only about one hour. 16The position of the adopting parents has been that, bearing in mind that they have another child for whom contact arrangements also have to be made, and that contact arrangements in respect of the child must also be made in respect of his mother, this occasions significant disruption and provides insufficient flexibility. Moreover, they contend that whatever might have been appropriate when the child was younger, at his present age longer periods of contact, albeit less frequent, are likely to provide a better opportunity for him to sustain a relationship with his father than shorter, more frequent, periods. 17Mr A, on the other hand, is of the view that a reduction in the frequency of the contact between them, contemporaneously with the making of an adoption order, augurs ill for sustaining an ongoing relationship between them into the future. 18It is worth remembering that the objects of the Act include, in s 7(c), to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage; and, in s 7(g), to encourage openness in adoption. It is also to be borne in mind that, as s 7(a) provides, the best interests of the child concerned both in childhood and in later life must be the paramount consideration in adoption law and practice; and, as s 8 (1)(a) provides, the best interests of the child, both in childhood and in later life, must be the paramount consideration when making a decision about adoption of a child. 19That said, it is very clear that the Act was intended to ensure that some measure of consideration was given to the position of birth parents. The strict requirements that ordinarily apply to obtaining the consent of a birth parent are perhaps the clearest illustrations of this. Where, as in the present case, a birth parent does not consent but essentially does not oppose the adoption process, it is not to be thought that the Act ought readily be taken as excluding any relevance of the interest, or of the position, of the birth parent. 20Developments in adoption law and practice over the last couple of decades have made reasonably clear that contact between an adopted child and birth parents is normally beneficial for the child. Such contact is most likely to work best in the child's interests when it accords with arrangements made between the parties. 21At the same time, it will be often important to a birth parent, particularly at the time when an adoption order is made, to have the security of an enforceable order rather than relying on an unenforceable adoption plan in respect of contact. That is not necessarily any reflection on the adoptive parents in this or any other case, but a recognition that a birth parent may often feel more comfortable about supporting an adoption process if, at the same time he or she can be sure that he or she, as the case may be, will retain enforceable rights of access into the future. 22In this case, were I left completely to my own devices, I might well have concluded that as the child reaches his present age of 8 and progresses beyond it, longer periods of contact, albeit less frequent, might be preferable. But at the same time, while the child's interests are paramount, I do not think they will be in the slightest adversely affected if the contact is more frequent, albeit shorter. 23On the other hand, in circumstances where Mr A clearly feels strongly that a reduction in the frequency of his contact, concurrently with the making of an adoption order, is a poor signal for the future, the paramountcy of the child's interests do not mean that Mr A's are to be totally disregarded. Ultimately, it seems to me, that while the adoption plan proposals are in the child's interests, it would not be other than in the child's interests to have more frequent contact, and it would in the long-term be in his interests for his natural father to have the comfort that contact was secured by an order. 24I am far from convinced that the one-hour or so a month of contact that occurs at present on a Tuesday evening is too disruptive to be manageable in the adopting parents' affairs. The couple of occasions to which the evidence refers on which it has caused problems, are far from sufficient to justify a conclusion that contact of that frequency cannot be managed, bearing also in mind the relative importance of maintaining a relationship with the birth father and the other activities to which the evidence refers. Moreover, an access regime can accommodate sufficient flexibility to enable such conflicts to be minimised, though short notice ones may never be able to be entirely avoided. 25Accordingly, if it is open to do so, I would be inclined to make an order for contact on a basis equivalent to that which happens at the moment, namely monthly, but essentially so that that is a default position, enabling the parties to be able to agree on different arrangements at different places and at different times. Jurisdiction to make a contact order 26However, the Director-General has submitted that the Court has no jurisdiction to make any contact order in respect of a child following the making of an adoption order. This submission is one with far reaching consequences. There are many adoption cases, of which this might well be one, in which the Court would come to the conclusion that while there are many benefits for the child in adoption, the inability to secure contact by a contact order (and thus potential severance of a relationship with a birth parent) is a sufficient disadvantage to outweigh the merits of making an adoption order at all. 27In Adoption Application A83/6507 [1984] 2 NSWLR 590 Waddell J, as the later Chief Judge then was, considered this question, I believe for the first time. His Honour took the view that whereas, but for the (Cth) Family Law Act 1975, the Supreme Court would have had power in its inherent jurisdiction when making an adoption order to provide for access to the child concerned, that had been overtaken by the Family Law Act, pursuant to which access to a child of a marriage - as an adopted child became on making an adoption order - was a matrimonial cause within the then exclusive jurisdiction of the Family Court. His Honour also observed that the Court may take judicial notice of the views now held by many professional people engaged in child welfare and adoption work that there are circumstances in which the interests of the child concerned may best be promoted by providing for adoption by the persons who have become the psychological parents, and also providing for continued contact with the natural parent. 28In that case, his Honour said that an order for adoption would be refused in the absence of any agreement between the natural parents of the child concerned as to access, because while the adoption order would have important advantages for the child, these did not justify the exclusion of the natural parent from the life of the child in the way that adoption would be likely to bring about. 29The jurisdiction of the Family Court to make an order for contact in respect of an adopted child at the suit of one of the natural parents was confirmed by the Full Court of that Court in Newling and Mole (1987) 11 Fam LR 974 (at 978), in which the Court said that a concession made by counsel for the mother that it could not be argued that it lacked jurisdiction to deal with an application by the natural father for access to the adopted child was correctly made. 30What has changed in that respect since those cases is that (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 vested in this Court all the relevant jurisdiction of the Family Court, so that it is now no longer the case that only the Family Court can make a contact order under the Family Law Act. It is now open to this Court, in its cross-vested jurisdiction, subject to the question to which I am yet to come, to make such an order under the Family Law Act contemporaneously with making an adoption order, and thereby avoiding the necessity for two sets of proceedings in different courts. 31It is also clear that there is no statutory authority under the Adoption Act to make an access or contact order, and that resort must be had to the Family Law Act if such an order is to be made. 32The Director-General submits that such an order cannot be made under the Family Law Act, because of s 69ZK of that Act, which relevantly provides as follows: (1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless: (a) the order is expressed to come into effect when the child ceases to be under that care; or (b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained. 33It will be seen that the provision refers to a "child welfare law". A child welfare law is defined in s 4 of the Family Law Act as meaning a law of a state or territory prescribed or included in a class of laws prescribed for the purpose of the definition. The prescription is in Family Law Regulations, cl 12B, and includes the Adoption Act of New South Wales. 34The question is whether a child in respect of whom an adoption order has been made under that Act is "a child who is under the care (however described) of a person under a child welfare law" for the purposes of s 69ZK(1). 35An affirmative answer to that question would have some startling consequences. First, it would mean that the view that has prevailed since the decisions of Waddell J and the Full Family Court to which I have referred, that that court can make a contact order in respect of such a child, has been overturned. Secondly, it would mean that there was no Court in the land that could make a parenting order, whether for guardianship, custody, contact or otherwise, in respect of such a child after an adoption order had been made, except perhaps if, for the purposes of s 69ZK(1)(b), a child welfare officer consented to the institution or continuation of the proceedings. This extends to the situation, for example, that if an adoptive father and adoptive mother separated or divorced, they would not be able to maintain proceedings in respect of their adopted child in the Family Court. 36These conclusions might be the consequence of a literal reading of the words of the section, but are not results readily to be attributed to Parliament. As it transpires, a review of the history of the legislation, in my view, does not require that conclusion. 37What is currently s 69ZK commenced as s 10 of the Family Law Act, and indeed had an earlier predecessor in the former Matrimonial Causes Act. In The Marriage of Sargent, Director of Department of Youth and Community Services (1995) 10 Fam LR 867, the Full Family Court considered circumstances in which three of four children of a marriage had been found to be neglected, within the terms of the then (NSW) Child Welfare Act 1939, and were committed by the Children's Court to the care of a family care centre until the age of 16 years. The question was whether the children thereby became children to whom the provisions of s 10(1) of the Family Law Act applied, and therefore unable to be made the subject of then custody orders under that Act. Section 10 was in a narrower form than the current s 69ZK, and provided as follows: (1) Subject to sub-section (3), a court shall not make an order under Part VII or Part VIII for the maintenance, custody or guardianship of - (a) a child who, under the law of a State, is a ward of the State or a State child or is under the guardianship, or the care and control, of (i) a Minister of the Crown of the State; (ii) an officer of the State; or (iii) an officer of an adoption agency approved under a law of the State; or (b) a child who has a similar status under a law of a Territory. 38Accordingly, in order to be excluded from the jurisdiction of the Family Court under that provision, it was necessary that the child have become either a ward of the state or a state child, or be under the guardianship, care or control of a minister, an officer of the state or an officer of an approved adoption agency. The provision was interpreted narrowly. An order committing the children to the care of a family care centre did not commit the children to the care of the minister to be dealt with as a ward admitted to state control; accordingly, they did not become wards of the state, nor state children, and the court observed that no legislative intent could be found in the words of then s 10 to cover the whole field of children dealt with by state child welfare legislation, and that the children were neither wards nor under the guardianship, nor in the custody, care and control of the minister, or any other officer of the state. 39In The Marriage of Lane (1986) 10 Fam LR 1018, Gee J of the Family Court was concerned with a situation in which the Children's Court had found two children, to whom earlier access orders had been made by the Family Court, to be neglected. The Children's Court had made orders under the Child Welfare Act releasing them to the mother's care upon receipt of undertakings, including an undertaking not to allow access to the children by the father. His Honour held that the children the subject of the orders of the Children's Court were not within any of the categories of exclusion set out in s 10(1) of the Family Law Act, and accordingly jurisdiction was not excluded. 40By 1990, the Act had been amended, and s 10 had been replaced by s 60H, the immediate precursor of the present section, which relevantly provided as follows: (1) A court having jurisdiction under this act shall not make an order under this act in relation to a child who is in the custody of or under the guardianship, care or control or supervision of a person under the child welfare law unless the order is expressed to come into effect when the child ceases to be in such custody or under such guardianship, care and control or supervision as the case may be. 41In Re J (1990) 14 Fam LR 584, Rowlands J was faced with circumstances in which an order had been made in the Children's Court that made the mother responsible for the child. The Children's Court accepted undertakings from the mother as to her obligations towards the child and her acceptance of counselling. Overturning a decision of a judicial registrar, Rowlands J held that the order made under the (NSW) Children (Care and Protection) Act 1987 by the Children's Court did not provide for the custody, guardianship, care and control or supervision of the subject child, and that a declaration that the mother was responsible for the child was not an order affecting custody, guardianship, care and control or supervision. Accordingly, the jurisdiction of the Family Court was not excluded, and interim custody was given to the child's maternal grandmother. 42There is no doubt that the current provision in s 69ZK(1) is wider than the earlier provisions, and that it was introduced with a view to resolving the difficulties that had arisen under the earlier provisions. Essentially, the problem that the new section sought to remedy in respect of the earlier sections was that, where orders had been made under child welfare laws in respect of children in care, there continued to be ongoing doubt as to the extent of the exclusion of the role of the Family Law Act. The solution was to provide that, so long as or wherever a child was "under the care (however described) of a person under a child welfare law", the jurisdiction of courts under the Family Law Act would be excluded. But essential to that concept is that of being under the care of a person under a child welfare law. In my view, it could not have been intended that that provision would capture a person who was not under any form of care order, however described; whose residence with his or her parents was not limited by some condition imposed by a court, but who was living with and in the ongoing parental responsibility, care and control of the persons who were the child's legal parents for all purposes. 43The effect of an adoption order is described by section 95(1) and (2) of the Adoption Act as follows: (1) An adoption order made by the Court gives sole parental responsibility for a child to the person or persons named in the order (the adoptive parent or adoptive parents). (2) For the purposes of the law of New South Wales, if an adoption order is made: (a) the adopted child has the same rights in relation to the adoptive parent, or adoptive parents, as a child born to the adoptive parent or adoptive parents, (b) the adoptive parent or adoptive parents have the same parental responsibility as the parent or parents of a child born to the adoptive parent or adoptive parents, (c) the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child, (d) the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child. 44Section 96 provides as follows: (1) On the making of an adoption order: (a) the existing parental responsibility for the adopted child (including the Minister's parental responsibility under the Children and Young Persons (Care and Protection) Act 1998) ceases to have effect, and (b) any previous adoption of the child (whether effected under the law of New South Wales or otherwise) ceases to have effect. (2) This section does not apply in relation to an agreement or instrument (not being a disposition of property) made or executed before 7 February 1967. 45It will be seen, therefore, that an adoption order extinguishes the existing parental responsibility for a child, including the Minister's responsibility, under the Care and Protection Act, and places the adopted child in the same position, vis-à-vis the adoptive parents, as if he or she were a child born to them. In particular, under s 95(2)(c) the adopted child is regarded in law as a child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child. It seems to me that that means that, for the purposes of the Family Law Act also, the adopted child and the adoptive parents bear that relation. A child living with his or her adopted parents is not to be regarded as a child "under the care ... of a person under a child welfare law." That child is not under the care, in that sense, of anyone, but in the parental responsibility of his or her legal parents. 46Accordingly, I do not consider that I am precluded by s 69ZK from making a contact order in this case. 47It was submitted that such an order should not be made because there was no indication that there would be any difficulties with contact. But there is a difference between the proposed adoptive parents and Mr A as to the frequency of contact, and a contact order is often made not so much because it is anticipated there will be difficulties but, as in this case, in order to give a birth parent, in the context of promotion of open adoption, the assurance and security that he or she is not without enforceable rights in the future. 48Accordingly, I propose to make an order for contact which will be expressed as an order for reasonable contact, and then have a default provision much along the lines of the present arrangements. In doing so, I would expect that in the future what is reasonable will change. It will, I hope, not be necessary for the parties to return to the court to clarify that in the future, and I would hope Mr A would appreciate that as the child becomes older his needs and interests will change, and it will be in Mr A's interests, as much as in the child's interests, to accommodate those changes, which may well mean longer periods of contact on less frequent occasions in the future. But the time when that is plainly in the child's best interests has not yet arrived. 49I would add that in the order I propose to make, while I have adopted what I understand to be the time and place of the current regime as the default position, it seems to me highly desirable that the parties agree on some alternative location and should be able to agree on alternative times. 50Finally, I should observe that the Director-General requests, and Mr A consents, that the court make an order about the child's parentage under the (NSW) Status of Children Act 1996, in order that Mr A be registered as the child's birth father. I am satisfied, on the parentage testing procedure report that has been tendered, that Mr A is the child's birth father and that it is appropriate to make that order. Orders 51I therefore make the following orders: (1)Declare, pursuant to (NSW) Status of Children Act 1996, s 21(2), that PKA born 21 February 1972 is the father of TVK born 2 December 2004; (2)Order, pursuant to (NSW) Adoption Act 2000, s 67(1)(b), that the consent of the child's natural mother and the consent of the child's natural father be dispensed with; (3)Make an order for the adoption of the child TVK in favour of the adopting parents, RCM and KLM; (4)Approve the name M as the surname, and TK as the given names of the child; (5)Order, pursuant to (Cth) Family Law Act, that the child have reasonable contact with Mr A, such contact to be as agreed between the adopting parents and Mr A but, failing agreement, on the first Tuesday of each month (or such other day in that month as may be notified by the adoptive parents to Mr A, not later than the first Tuesday in the previous month) for a period of not less than one hour, commencing at 4pm at the Shoal Harbour Community Services Centre or such alternative location as the parties might agree. ********** 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: 06 June 2013