Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007

Supreme Court New South Wales

Medium Neutral Citation: Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007 Hearing dates: 20 June 2014 Decision date: 25 July 2014 Jurisdiction: Equity Division - Adoption List Before: Kunc J Decision: Further interim parental responsibility order made Catchwords: FAMILY LAW - Adoption - Consent to order and dispensing with consent - When consent dispense order will be made before application for adoption order - Relevance of earlier consent dispense order when adoption order ultimately sought - Adoption Act 2000, ss 67(1)(a), 70(1)(a) Legislation Cited: Adoption Act 1993 (ACT) Adoption Act 2000 (NSW) Adoption Act 1988 (SA) Adoption Act 1984 (Vic) Adoption Act 1994 (WA) Adoption of Children Act 1965 (NSW) Interpretation Act 1987 (NSW) Cases Cited: In the matter of an adoption of T [2012] ACTSC 61 Re EW and the Adoption of Children Act [1980] 1 NSWLR 89 Re WJP and the Adoption Act [2014] NSWSC 783 Texts Cited: NSW Law Reform Commission, Report 81 (1997) Review of the Adoption of Children Act 1965 (NSW) Category: Principal judgment Parties: Secretary, Department of Family and Community Services (Plaintiff) Representation: Counsel: Mr J Harris (Solicitor) (Plaintiff) Solicitors: IV Knight, Crown Solicitor (Plaintiff) File Number(s): A049/2014 Publication restriction: No

Judgment

Summary 1This judgment considers the circumstances in which the Court will make a "consent dispense order" under Chapter 4, Division 3 of the Adoption Act 2000 (NSW) (the "Act") before an application for an adoption order has been made in relation to a child (s 70(1)(a) of the Act). 2On 2 April 2014 the Secretary (the "Secretary") of the NSW Department of Family & Community Services (the "Department") filed a summons seeking a preliminary hearing and interim order under s 84(2) of the Act for parental responsibility in relation to C in favour of the Secretary for a period of three months from the date of the order. No other relief was sought in the summons. At the time C was only a few months old. On 4 April 2014 the Court made, in chambers, the interim order sought in the summons until 14 July 2014. 3On 13 May 2014 the Secretary filed a notice of motion in these proceedings seeking a preliminary hearing and an order pursuant to s 67(1)(a) of the Act to dispense with the consent of C's birth father to C's adoption. 4On 4 June 2014 the proceedings came before me for directions. On that occasion, in what was candidly explained on behalf of the Secretary as an endeavour to simplify the jurisdictional basis on which the consent dispense order was sought, the Secretary sought leave to file an amended summons which additionally sought an order for the adoption of C in favour of "the adopting parents". At that time no adopting parents had been identified. In granting that leave, the Court noted that when the matter came before it for final argument, the Secretary would have to satisfy the Court that it was possible under the Act to seek an adoption order which did not identify the adopting parents. 5The proceedings were heard on 20 June 2014. On that day the Court made the following orders: 1. Revoke the grant of leave made by the Court in order 1 made on 4 June 2014. 2. Order that the amended summons which was the subject of that grant of leave be removed from the file. 3. Grant the plaintiff leave to file an amended summons seeking an order to the effect of an interim order pursuant to s 84(2) of the Adoption Act 2000 for the child in favour of the Secretary for such period as the Court thinks fit. 4. An interim order pursuant to s 84(2) Adoption Act 2000 for the child in favour of the Secretary for a period of 12 months commencing on and from 5 July 2014. 5. An order pursuant to s 67(1)(a) of the Adoption Act 2000 dispensing with the requirement for consent of the child's natural father to the child's adoption. 6. Liberty to the plaintiff to apply in the first instance to the associate to Kunc J by email on seven days' notice. 6These are the reasons for those orders.