Application of Director-General, Department of Family and Community Services; Re AP [2013] NSWSC 1237

Supreme Court New South Wales

Medium Neutral Citation: Application of Director-General, Department of Family and Community Services; Re AP [2013] NSWSC 1237 Hearing dates: Wednesday 14 August 2013 Decision date: 14 August 2013 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Consent of natural father dispensed with Catchwords: ADOPTION - Whether consent of natural father should be dispensed with Legislation Cited: (NSW) Adoption Act 2000, s 56, s67, s 84, Cases Cited: Application of Director-General; Re AP [2013] NSWSC 562 Director-General Department of Community Services v D & Ors [2007] NSWSC 762 Category: Procedural and other rulings Parties: Director-General, Family and Community Services (applicant) Representation: Counsel: Ms N Hailstone (applicant - solicitor) Solicitors: Crown Solicitor's Office (applicant) File Number(s): A67/2013

Judgment (ex tempore) 1HIS HONOUR: By summons filed on 3 May 2013, the Director-General seeks an order pursuant to (NSW) Adoption Act 2000, s 67(1)(c), dispensing with the consent of the child's natural father, and an order for the adoption of the child in favour of adopting parents who have not yet been identified. 2On 8 May 2013, for reasons given on that day [see Application of Director-General; Re AP [2013] NSWSC 562], I made an order pursuant to the Adoption Act, s 84(2) that until 24 May or further order the Director-General have parental responsibility for the child. The birth mother has given a general consent, which has not been revoked within the revocation period, for the adoption of the child. The birth father has not given any such consent and in oral communications with departmental officers has indicated that he is opposed to adoption. 3The evidence establishes that the birth father was served with a notice under the Adoption Act, s 56, on 19 June 2013 and a notice of intention to seek a consent dispense order on 5 July 2013 and again on 24 July 2013. The evidence further establishes that the birth father has been notified of the date, time and place of the hearing today and that on 9 July 2013, he communicated to the Crown Solicitor's office that he did not intend to appear at Court. He has been called outside the Court this morning and there is no appearance by him or on his behalf. 4The application for a consent dispense order is made under s 67(1)(c), which provides that the Court may dispense with the requirement for the consent of a birth parent if satisfied, relevantly, that the person is the parent of the child; that there is a serious cause for concern for the welfare of the child; and that it is in the best interests of the child that the wishes of the parent be overridden. In Director-General Department of Community Services v D [2007] NSWSC 762, I considered the test to be applied under s 67(1)(c) in the following terms: 195. The debate suggests that it was intended that the test be more demanding, not less demanding, than that which had applied under the 1965 Act. It is curious that the recent authorities indicate a trend the other way, but it is perhaps a reflection of the paradigm shift from parental rights to the paramountcy of the best interests of the child. The debate indicates that it was intended to be insufficient to justify a consent dispense order merely that the parent was a drug user, intellectually disabled, or a prisoner, and that some additional element of risk to the child was required. It is also significant that it appears in the context of adoption, so that dispensing with consent is a step preliminary to severing permanently a parental bond, contrary to the wishes of the parent. That is a very grave step; as Winn LJ put it in In re B (an infant) [1971] 2 WLR 129, 138; [1970] 3 All ER 1008, 1015, in a passage cited with approval by Hutley JA in Re K (at 346): "A decision that a mother is permanently to be parted from her infant child is one of the gravest that a judge may ever take". It is a step to be taken only for weighty and convincing reasons. The "serious cause for concern" must in my view be a risk of an order that could justify permanent removal of the child from her natural parent(s). 196. Although the Court of Appeal's decision in this case, which I must follow, establishes that the requirement for "serious cause for concern" does not necessitate comparison of the position if an adoption order be made as against the position if some other order be made, s 67(1)(c) necessarily contemplates the situation if an adoption is otherwise precluded by the absence of consent, so that the requirement for "serious cause for concern" is implicitly addressed to the child's welfare in his or her unadopted status. Accordingly, I accept the submission by Mr Harrison SC (as his Honour then was) on behalf of the Director-General that, in considering the question of serious concern, it is permissible (and indeed obligatory) to take into account the circumstances that would pertain if D had parental responsibility for E. Consistent with Hodgson JA's judgment, I accept that evidence of risk to E from D's mental health, or from violence directed to her or to D by members of D's family, would be relevant considerations on the question of "serious cause for concern". 5Thus it will be seen that what must be established is a risk of a degree or order that could justify permanent removal of the child from the natural parents, and that the circumstances of the child if she were to remain in the parental responsibility of the birth parent is a relevant and informative consideration. 6In the present case, the evidence establishes a history of acts of domestic violence by the birth father towards the birth mother; a history of drug use on his part which, despite some apparent attempts at rehabilitation, has not been resolved, a history of resort to violence in the context of drug use or distress; a history of criminal conduct of a violent nature; and an absence of any engagement or relationship with the child or engagement with community services on the part of the birth father. But for the interim parental responsibility order in favour of the Director-General made under the Act, the birth father would have parental responsibility for the child, the birthmother having executed a general consent. It seems to me that that evidence establishes grave grounds for concern for the welfare of the child were she to be in the birth father's parental responsibility, being grounds of the type that would justify permanent removal of the child from the birth father's parental responsibility. 7In those circumstances, I am satisfied that, the Director-General having formed the view that adoption is in the best interests of this child, the orders sought should be made to facilitate progress towards that outcome. 8Accordingly, I make order 1 in the summons.