Re LJC (No.2) [2015] NSWSC 264

Supreme Court New South Wales

Medium Neutral Citation: Re LJC (No.2) [2015] NSWSC 264 Hearing dates: In Chambers Date of orders: 19 March 2015 Decision date: 19 March 2015 Jurisdiction: Equity Division Before: Darke J Decision: 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 granted – Adoption Act 2000 (NSW) s 67(1)(c) Legislation Cited: Adoption Act 2000 (NSW) ss 10(2)(b), 52, 53(1)(a), 67(1)(c), 75, 79(2), 206 Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 135C, 156A Cases Cited: Re LJC [2015] NSWSC 21 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. By a judgment given in this matter on 4 February 2015, the Court declined to make a consent dispense order under s 67(1)(c) of the Adoption Act 2000 (NSW) ("the Act") (see Re LJC [2015] NSWSC 21). The Court concluded (at [17]): "[…] 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). […]" 1. Since that time, the plaintiff, the Principal Officer of Catholic Care Adoption Services (NSW) ("the Agency"), has provided further evidence to the Court aimed at establishing that the placement of LJC with suitable prospective adoptive parents would indeed be impeded unless a consent dispense order was made in relation to the father. The further evidence consists of three affidavits sworn by the plaintiff (on 18 February 2015, 5 March 2015 and 11 March 2015) and a statutory declaration made by LJC's mother on 16 February 2015. The plaintiff has also provided further information in the nature of a submission. 2. The further evidence establishes, amongst other things, the following relevant matters: 1. Parental responsibility for LJC remains with his parents. 2. LJC is currently in voluntary out-of-home care arranged by LJC's mother pursuant to s 135C of the Children and Young Persons (Care and Protection) Act 1998 (NSW). 3. The Agency is responsible for supervising the care of LJC and, as required by s 156A of the Children and Young Persons (Care and Protection) Act, plans have been prepared to meet the needs of the child under the arrangement. These plans have included a permanency plan which entails the adoption of LJC. 4. LJC's mother remains of the view that she is unable to undertake the role of parent, and has firmly stated her belief that adoption of LJC would be in his best interests. LJC's mother has explained that the only reason she revoked the consent to adoption she gave on 28 November 2014 was that she was not certain that a consent dispense order would be made in relation to the father, and she wanted to retain her parental rights if LJC's future became uncertain. On 20 February 2015, LJC's mother gave a further general consent to the adoption of LJC, pursuant to s 53(1)(a) of the Act. 5. The Agency, in conjunction with LJC's mother, has found suitable prospective adoptive parents for LJC. Both the Agency and LJC's mother want LJC to be placed in the care of the prospective adoptive parents as soon as possible. 1. The Agency has informed the Court that it is not able to effect the desired placement on its own. It has said that parental responsibility for LJC must first be given to the Director-General, as envisaged by s 75 of the Act. Once parental responsibility has so shifted, the Director-General would be in a position to delegate to the Agency the function of placement of the child with prospective adoptive parents (see ss 10(2)(b), 79(2) and 206 of the Act). 2. Under s 75(1) of the Act, the Director-General obtains parental responsibility for a child after: 1. general consent to the adoption of the child has been given by every person whose consent to the adoption of the child is required under the Act, or 2. the requirement for consent has been dispensed with by the Court. 1. Consent to an adoption of LJC is required to be given by each of his parents (see s 52 of the Act). Whilst LJC's mother has given consent, LJC's father has not. As referred to in the earlier judgment (at [8]-[10]), the evidence establishes that the father has never sought to have any contact with LJC, and has exhibited a marked reluctance to be actively involved in relation to the possible adoption of LJC. The evidence does not suggest that he is opposed to the idea of LJC being adopted, and there is indeed some evidence that he sees merit in the idea. Nevertheless, he has not been prepared to provide his consent in accordance with the Act. 2. By s 67(1)(c) of the Act, the Court has the power to make a consent dispense order in relation to LJC's 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 the father. The evidence demonstrates to my satisfaction that there is a substantial risk that the child's welfare will be adversely affected unless care arrangements of a permanent nature are put in place in the near future. I am also satisfied that in circumstances where 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 in LJC's best interests. I am further satisfied, based on the further material provided to the Court, that as matters currently stand the proposed placement of LJC with the prospective adoptive parents cannot proceed in the absence of the father's consent to adoption. 3. In all the circumstances, including that the father has not expressed any opposition to the idea of adoption, I am satisfied that there is serious cause for concern for the welfare LJC and it is in the best interests of LJC to override any wishes of his father. The making of a consent dispense order in relation to the father will enable LJC to be placed with the proposed adoptive parents in the near future. I consider that outcome to be in the best interests of LJC. 4. The Court will order, pursuant to s 67(1)(c) of the Act, that the requirement for the father of LJC to consent to the adoption of LJC be dispensed with. 5. An order was also sought in the Summons that the requirement for notice of the application to the father be dispensed with (see s 72(2) of the Act). It is not necessary to make that order. It appears that the father was given notice of the application by way of a letter to him dated 26 November 2014, after the filing of the Summons. Had such notice not been given, I would have considered that in the circumstances of this case, in particular the father's lack of contact with LJC and his attitude of disengagement from the adoption process, it would be desirable to make the consent dispense order in any event.