Supreme Court New South Wales Medium Neutral Citation: Adoption of JWDA [2013] NSWSC 1991 Hearing dates: 12 November 2013 Decision date: 12 November 2013 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Order that the proposed adoptive parents be joined as second defendants. Catchwords: ADOPTIONS - where prospective parents seek orders joining them to the proceedings as parties - interests of prospective parents cannot be disregarded - where it is proper that the prospective parents have an opportunity to put their position before the court Legislation Cited: (NSW) Adoption Act 2000, s 87, s 118 Cases Cited: Director-General, Department of Community Services v D [2007] NSWSC 762 Category: Procedural and other rulings Parties: Director-General, Department of Community Services (plaintiff) KA (father - by his Guardian ad Litem) AGR & RGR (proposed adoptive parents) Representation: Counsel: Ms Neville (Director-General) Mr Gardiner (Guardian) Mr Anderson (proposed adoptive parents) Solicitors: Crown Solicitor (Director-General) Mark Whelan Lawyer P/L (Guardian) Antoinette Campbell Legal Solutions P/L (proposed adoptive parents) File Number(s): A158/2012 Judgment - EX TEMPORE 1HIS HONOUR: By summons filed on 1 November 2013 the proposed adoptive parents seek orders joining them to the proceedings as parties, giving them leave to inspect and copy material provided to the Court by the applicant and the respondents, and leave to file an affidavit. They then seek consent dispense orders in respect of the birth parents, an order for the adoption of the child and an order approving a change of name of the child corresponding with those sought by the Director-General in the originating summons. 2(NSW) Adoption Act 2000, s 118, provides that the Court may permit such parties as the Court thinks fit to appear in or be joined as parties to the proceedings for an adoption order. Section 87 provides that the Court may make an adoption order only on application made by (a) the prospective adoptive parent or parents with the consent of the Director-General, or (b) the Director-General or by a principal officer on behalf of the prospective adoptive parent or parents. The other sub-paragraphs are irrelevant for present purposes. 3It seems to me that s 87 contemplates that the Director-General, in making an application, is doing so "on behalf of" the prospective adoptive parents. Alternatively, they could have made an application themselves under sub-paragraph (a) with the consent of the Director-General. 4At the forefront of the Court's considerations in a proceeding for adoption is the welfare of the child concerned, and the best interests of the child are the paramount consideration. But that is not to say they are the only consideration. The interests of the birth parents are a relevant consideration, and it seems to me that the interests of the prospective adoptive parents, although perhaps last in the order of priority of interests, cannot be entirely disregarded. 5Counsel for the proposed adoptive parents informs the Court that there are matters which they wish to put before the Court and, although not presently in a position to say that they are matters that the Director-General will not advance, counsel for the Director-General has properly indicated to the Court that some forensic decisions have been made in the preparation of the matter which mean that the Director-General's position may not necessarily reflect that proposed to be advanced by the prospective adoptive parents. 6I am conscious, on the one hand, that it is undesirable that the defendant should have to contend with two, rather than one, opponents in the proceedings. On the other hand, if the interests of the adoptive parents are at stake, it is proper that they have an opportunity to put their position before the Court. However, it should be anticipated that, if joined, the adoptive parents would not be permitted in cross-examination to traverse the same ground as covered by the Director-General, which would minimise the oppressive nature of joining them as parties in the proceedings. 7While s 118 provides that the Court may permit persons to appear in the proceedings without necessarily being joined as parties to the proceedings, it is generally desirable that if persons are permitted to intervene in a substantial way in proceedings, they should be joined so as to have the obligations as well on the rights of the parties. This includes ensuring that they are amenable to a costs order, without necessarily suggesting that the case would ultimately be an appropriate one for one for such an order. 8I note that prospective adoptive parents have been joined as parties in other cases, for example, Director-General, Department of Community Services v D [2007] NSWSC 762. 9On balance, I think what would be perceived at least by the prospective adoptive parents as the injustice of their not being able to fully put their case before the Court outweighs the countervailing considerations which can be managed in the way suggested above and warrants an order that they be joined as parties. 10THE COURT ORDERS THAT: (1)The proposed adoptive parents, AGR and RGR, be joined as second defendants. (2)The second defendants have leave by their legal representatives to inspect and copy any material provided to the Court on behalf of the plaintiff or the first defendant. (3)The first defendant serve any affidavit evidence upon which it proposes to rely by 10 December 2013. (4)The plaintiff and the second defendants serve any further affidavit evidence upon which they propose to rely by 28 January 2014. (5)The proceedings be provisionally fixed for hearing on 20 May 2014 for three days. (6)The proceedings be adjourned to 20 February 2014 at 9.30 am for pre-trial directions. ********** 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: 01 July 2014