Re LJC [2015] NSWSC 21

Supreme Court New South Wales

Medium Neutral Citation: Re LJC [2015] NSWSC 21 Hearing dates: In Chambers Date of orders: 04 February 2015 Decision date: 04 February 2015 Jurisdiction: Equity Division - Adoption List Before: Darke J Decision: Decline to order that the consent of a father to his child's adoption be dispensed with. Catchwords: FAMILY LAW AND CHILD WELFARE – adoption – application to dispense with requirement of parental consent – application made prior to making of any application for adoption order – whether it is in the best interests of the child to override the wishes of the parent – order declined – Adoption Act 2000 (NSW) s 67(1)(c) Legislation Cited: Adoption Act 2000 (NSW) ss 52, 54(1)(a), 67(1)(c), 70(1)(a) Cases Cited: Application of DOCS re C [2004] NSWSC 702 Director-General, Department of Human Services; re DAM [2011] NSWSC 634 Category: Principal judgment Parties: Jodie Maree Mollison (plaintiff) Representation: Solicitors: A Harvey Sutton & Co (plaintiff) File Number(s): A166 of 2014 Publication restriction: Nil

Judgment 1. The plaintiff is the Principal Officer of Catholic Care Adoption Services (NSW) ("the Agency"). I assume, although there is no evidence of the matter, that the Agency is an accredited adoption service provider under Part 2 of Chapter 3 of the Adoption Act 2000 (NSW) ("the Act"). 2. By a Summons filed on 11 November 2014, the plaintiff seeks various orders including an order under s 67(1)(c) of the Act that the consent of a parent to a child's adoption be dispensed with. By s 52 of the Act, the Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by, inter alia, each parent of the child. However, s 54(1)(a) of the Act provides that consent is not required under s 52 if the requirement for consent has been dispensed with by the Court. A power of dispensation is conferred upon the Court by s 67 of the Act which relevantly provides: "(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, […] (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." 1. The child in question, who will be referred to as LJC, was born on 31 May 2014. He is currently in what is described as pre-adoptive foster care. This arrangement is apparently working well, but the placement is not a permanent one. 2. On 28 November 2014, the mother of LJC gave a general consent to the adoption of LJC by persons approved and selected in accordance with the law of New South Wales (see s 53(1)(a) of the Act). The mother has since sought to revoke her consent to adoption, in accordance with s 73(2) of the Act. The father of LJC has never given any formal consent to the adoption of LJC. It is his consent that is sought to be dispensed with under s 67(1)(c). 3. The evidence in support of the application consists of two affidavits sworn by the plaintiff, an affidavit sworn by an adoption caseworker, and a statutory declaration made by LJC's mother. 4. The relationship between the parents of LJC ceased in about March 2014. At that time, there was some discussion between them about what they should do after the baby was born. Adoption was mentioned as a possibility. There is some evidence that the father told the mother that if we [the parents] can't look after the child "the next best option is adoption". The mother had already made contact with the Agency about that possibility, and had received some counselling from the adoption caseworker. It seems that, for various reasons, the mother considered that she could not undertake the role of parent to the child, and that adoption of the child would be in the child's best interests. 5. There is some evidence that the mother may have gone so far as to agree with the Agency that it would be in the best interests of LJC if he was placed with certain prospective adoptive parents. However, as mentioned above, the mother has now sought to revoke the consent to adoption she had earlier given. There is no evidence of the mother's reasons for the revocation. 6. After LJC was born, the mother tried unsuccessfully for a time to make contact with the father. She managed to speak to him in July 2014 about the child's birth certificate. From about August 2014, the caseworker made efforts over the course of a number of months to make contact with the father. These efforts included attempting to contact him via telephone, and sending a letter on 18 September 2014 requesting him to make contact. On 1 October 2014, a letter was sent to the father containing the mandatory information on adoption (see s 59 of the Act). A general consent to adoption form was enclosed with the letter. 7. The caseworker continued to make attempts to arrange a meeting with the father. She was finally able to have a meeting with him on 27 October 2014. The father told the caseworker that he had not yet read the mandatory information. There was some discussion about the adoption process, during which the father appeared somewhat overwhelmed. An arrangement was made for the father to meet the caseworker again the following day, but the father did not attend. The father has also failed to attend a number of other meetings that had been arranged with the caseworker. She considers that it is unlikely that she will ever be able to meet with the father again. A letter was sent to the father's home on 26 November 2014 in which it was stated that an application had been made to the Court for an order dispensing with his consent to the adoption of LJC. 8. It appears that the father has never sought to have any contact with the child. He has exhibited a marked reluctance to be actively involved in relation to the possible adoption of his son. He has not given any formal consent to the adoption of LJC, although the evidence does not suggest that he is necessarily or irrevocably opposed to the idea of LJC being adopted. Indeed, there is some evidence that, in general terms, he sees merit in the idea. 9. The plaintiff deposes that due to the father's unwillingness to participate in planning for his child's future and the mother's unwillingness to assume her role of parent, adoption is the "only option" available for the permanent future care of LJC. She explains that LJC is coming into a stage of development where permanency is required, as he will soon begin displaying attachment behaviour, and disrupted attachments are to be avoided. 10. The plaintiff deposes that she has serious concerns for the future of LJC should the status quo remain. She says that the fact that his natural mother is unwilling to be a parent to the child, and his natural father is unwilling to participate in planning for his child's future, means that there is a risk of LJC "entering the care system" and being placed into out-of-home care on a long term basis. The plaintiff considers that if that occurred, LJC's future would be uncertain, whereas adoption would ensure permanency and security for LJC. 11. The adoption process is at a relatively early stage, and no application for an adoption order in relation to LJC has yet been made. Nevertheless, it is provided by s 70(1)(a) of the Act that a consent dispense order may be made before an application for an adoption order has been made in relation to a child. 12. By s 67(1)(c) of the Act, the Court has the power to make a consent dispense order in relation to the father if it is satisfied that there is serious cause for concern for the welfare of LJC and it is in the best interests of LJC to override the wishes of his father. 13. The evidence, the salient aspects of which are summarised above, indicates that it is in the best interests of LJC that, before too long, care arrangements of a permanent nature are made for him. I accept that if that does not occur, then there is a substantial risk that the child's welfare may be adversely affected, including by experiencing disrupted attachments to carers. I further accept that, at least whilst neither of LJC's parents are willing and able to undertake his care on a permanent basis, adoption by suitable adoptive parents is likely to be the best option in the best interests of the child. 14. In that regard, I assume that the Agency is presently involved in the process of finding suitable prospective adoptive parents who are in a position to assume permanent responsibility for his care, and will continue to pursue that outcome. 15. The father has not clearly expressed any views in relation to any adoption of his son, but he has assumed an attitude of disengagement in relation to the adoption process. However, the evidence does not suggest that the wishes or attitudes of LJC's father in relation to any adoption of LJC are, or might become, any impediment to the process of finding suitable prospective adoptive parents for LJC. On the evidence presented, overriding any wishes of the father would not seem to have any bearing at all upon the ability of the Agency to find suitable prospective adoptive parents for LJC. In addition, the evidence does not suggest that, in some other way, the wishes or attitudes of LJC's father present problems in relation to LJC's welfare such that it would be in the best interests of the child for the father's wishes to be overridden. There is no suggestion, for example, that the father's attitude towards the adoption process will impede or delay the process in a way that would be contrary to LJC's best interests (cf. Application of DOCS re C [2004] NSWSC 702 at [11] per Austin J; Director-General, Department of Human Services; re DAM [2011] NSWSC 634 at [2] per Brereton J). It is relevant to note in this context that if the mother's revocation of consent is effective, the father is not the only parent who has not formally given consent to the adoption of LJC. 16. In all the circumstances, even assuming that there is serious cause for concern for the welfare of LJC, I am not satisfied, at this stage, that it is in the best interests of LJC that the wishes of his father in relation to any adoption of LJC be overridden. Accordingly, the Court declines to make the consent dispense order sought by the plaintiff.