Jurisdiction to make a contact order
26However, the Director-General has submitted that the Court has no jurisdiction to make any contact order in respect of a child following the making of an adoption order. This submission is one with far reaching consequences. There are many adoption cases, of which this might well be one, in which the Court would come to the conclusion that while there are many benefits for the child in adoption, the inability to secure contact by a contact order (and thus potential severance of a relationship with a birth parent) is a sufficient disadvantage to outweigh the merits of making an adoption order at all.
27In Adoption Application A83/6507 [1984] 2 NSWLR 590 Waddell J, as the later Chief Judge then was, considered this question, I believe for the first time. His Honour took the view that whereas, but for the (Cth) Family Law Act 1975, the Supreme Court would have had power in its inherent jurisdiction when making an adoption order to provide for access to the child concerned, that had been overtaken by the Family Law Act, pursuant to which access to a child of a marriage - as an adopted child became on making an adoption order - was a matrimonial cause within the then exclusive jurisdiction of the Family Court. His Honour also observed that the Court may take judicial notice of the views now held by many professional people engaged in child welfare and adoption work that there are circumstances in which the interests of the child concerned may best be promoted by providing for adoption by the persons who have become the psychological parents, and also providing for continued contact with the natural parent.
28In that case, his Honour said that an order for adoption would be refused in the absence of any agreement between the natural parents of the child concerned as to access, because while the adoption order would have important advantages for the child, these did not justify the exclusion of the natural parent from the life of the child in the way that adoption would be likely to bring about.
29The jurisdiction of the Family Court to make an order for contact in respect of an adopted child at the suit of one of the natural parents was confirmed by the Full Court of that Court in Newling and Mole (1987) 11 Fam LR 974 (at 978), in which the Court said that a concession made by counsel for the mother that it could not be argued that it lacked jurisdiction to deal with an application by the natural father for access to the adopted child was correctly made.
30What has changed in that respect since those cases is that (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 vested in this Court all the relevant jurisdiction of the Family Court, so that it is now no longer the case that only the Family Court can make a contact order under the Family Law Act. It is now open to this Court, in its cross-vested jurisdiction, subject to the question to which I am yet to come, to make such an order under the Family Law Act contemporaneously with making an adoption order, and thereby avoiding the necessity for two sets of proceedings in different courts.
31It is also clear that there is no statutory authority under the Adoption Act to make an access or contact order, and that resort must be had to the Family Law Act if such an order is to be made.
32The Director-General submits that such an order cannot be made under the Family Law Act, because of s 69ZK of that Act, which relevantly provides as follows:
(1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a) the order is expressed to come into effect when the child ceases to be under that care; or
(b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
33It will be seen that the provision refers to a "child welfare law". A child welfare law is defined in s 4 of the Family Law Act as meaning a law of a state or territory prescribed or included in a class of laws prescribed for the purpose of the definition. The prescription is in Family Law Regulations, cl 12B, and includes the Adoption Act of New South Wales.
34The question is whether a child in respect of whom an adoption order has been made under that Act is "a child who is under the care (however described) of a person under a child welfare law" for the purposes of s 69ZK(1).
35An affirmative answer to that question would have some startling consequences. First, it would mean that the view that has prevailed since the decisions of Waddell J and the Full Family Court to which I have referred, that that court can make a contact order in respect of such a child, has been overturned. Secondly, it would mean that there was no Court in the land that could make a parenting order, whether for guardianship, custody, contact or otherwise, in respect of such a child after an adoption order had been made, except perhaps if, for the purposes of s 69ZK(1)(b), a child welfare officer consented to the institution or continuation of the proceedings. This extends to the situation, for example, that if an adoptive father and adoptive mother separated or divorced, they would not be able to maintain proceedings in respect of their adopted child in the Family Court.
36These conclusions might be the consequence of a literal reading of the words of the section, but are not results readily to be attributed to Parliament. As it transpires, a review of the history of the legislation, in my view, does not require that conclusion.
37What is currently s 69ZK commenced as s 10 of the Family Law Act, and indeed had an earlier predecessor in the former Matrimonial Causes Act. In The Marriage of Sargent, Director of Department of Youth and Community Services (1995) 10 Fam LR 867, the Full Family Court considered circumstances in which three of four children of a marriage had been found to be neglected, within the terms of the then (NSW) Child Welfare Act 1939, and were committed by the Children's Court to the care of a family care centre until the age of 16 years. The question was whether the children thereby became children to whom the provisions of s 10(1) of the Family Law Act applied, and therefore unable to be made the subject of then custody orders under that Act. Section 10 was in a narrower form than the current s 69ZK, and provided as follows:
(1) Subject to sub-section (3), a court shall not make an order under Part VII or Part VIII for the maintenance, custody or guardianship of -
(a) a child who, under the law of a State, is a ward of the State or a State child or is under the guardianship, or the care and control, of
(i) a Minister of the Crown of the State;
(ii) an officer of the State; or
(iii) an officer of an adoption agency approved under a law of the State; or
(b) a child who has a similar status under a law of a Territory.
38Accordingly, in order to be excluded from the jurisdiction of the Family Court under that provision, it was necessary that the child have become either a ward of the state or a state child, or be under the guardianship, care or control of a minister, an officer of the state or an officer of an approved adoption agency. The provision was interpreted narrowly. An order committing the children to the care of a family care centre did not commit the children to the care of the minister to be dealt with as a ward admitted to state control; accordingly, they did not become wards of the state, nor state children, and the court observed that no legislative intent could be found in the words of then s 10 to cover the whole field of children dealt with by state child welfare legislation, and that the children were neither wards nor under the guardianship, nor in the custody, care and control of the minister, or any other officer of the state.
39In The Marriage of Lane (1986) 10 Fam LR 1018, Gee J of the Family Court was concerned with a situation in which the Children's Court had found two children, to whom earlier access orders had been made by the Family Court, to be neglected. The Children's Court had made orders under the Child Welfare Act releasing them to the mother's care upon receipt of undertakings, including an undertaking not to allow access to the children by the father. His Honour held that the children the subject of the orders of the Children's Court were not within any of the categories of exclusion set out in s 10(1) of the Family Law Act, and accordingly jurisdiction was not excluded.
40By 1990, the Act had been amended, and s 10 had been replaced by s 60H, the immediate precursor of the present section, which relevantly provided as follows:
(1) A court having jurisdiction under this act shall not make an order under this act in relation to a child who is in the custody of or under the guardianship, care or control or supervision of a person under the child welfare law unless the order is expressed to come into effect when the child ceases to be in such custody or under such guardianship, care and control or supervision as the case may be.
41In Re J (1990) 14 Fam LR 584, Rowlands J was faced with circumstances in which an order had been made in the Children's Court that made the mother responsible for the child. The Children's Court accepted undertakings from the mother as to her obligations towards the child and her acceptance of counselling. Overturning a decision of a judicial registrar, Rowlands J held that the order made under the (NSW) Children (Care and Protection) Act 1987 by the Children's Court did not provide for the custody, guardianship, care and control or supervision of the subject child, and that a declaration that the mother was responsible for the child was not an order affecting custody, guardianship, care and control or supervision. Accordingly, the jurisdiction of the Family Court was not excluded, and interim custody was given to the child's maternal grandmother.
42There is no doubt that the current provision in s 69ZK(1) is wider than the earlier provisions, and that it was introduced with a view to resolving the difficulties that had arisen under the earlier provisions. Essentially, the problem that the new section sought to remedy in respect of the earlier sections was that, where orders had been made under child welfare laws in respect of children in care, there continued to be ongoing doubt as to the extent of the exclusion of the role of the Family Law Act. The solution was to provide that, so long as or wherever a child was "under the care (however described) of a person under a child welfare law", the jurisdiction of courts under the Family Law Act would be excluded. But essential to that concept is that of being under the care of a person under a child welfare law. In my view, it could not have been intended that that provision would capture a person who was not under any form of care order, however described; whose residence with his or her parents was not limited by some condition imposed by a court, but who was living with and in the ongoing parental responsibility, care and control of the persons who were the child's legal parents for all purposes.
43The effect of an adoption order is described by section 95(1) and (2) of the Adoption Act as follows:
(1) An adoption order made by the Court gives sole parental responsibility for a child to the person or persons named in the order (the adoptive parent or adoptive parents).
(2) For the purposes of the law of New South Wales, if an adoption order is made:
(a) the adopted child has the same rights in relation to the adoptive parent, or adoptive parents, as a child born to the adoptive parent or adoptive parents,
(b) the adoptive parent or adoptive parents have the same parental responsibility as the parent or parents of a child born to the adoptive parent or adoptive parents,
(c) the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child,
(d) the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child.
44Section 96 provides as follows:
(1) On the making of an adoption order:
(a) the existing parental responsibility for the adopted child (including the Minister's parental responsibility under the Children and Young Persons (Care and Protection) Act 1998) ceases to have effect, and
(b) any previous adoption of the child (whether effected under the law of New South Wales or otherwise) ceases to have effect.
(2) This section does not apply in relation to an agreement or instrument (not being a disposition of property) made or executed before 7 February 1967.
45It will be seen, therefore, that an adoption order extinguishes the existing parental responsibility for a child, including the Minister's responsibility, under the Care and Protection Act, and places the adopted child in the same position, vis-à-vis the adoptive parents, as if he or she were a child born to them. In particular, under s 95(2)(c) the adopted child is regarded in law as a child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child. It seems to me that that means that, for the purposes of the Family Law Act also, the adopted child and the adoptive parents bear that relation. A child living with his or her adopted parents is not to be regarded as a child "under the care ... of a person under a child welfare law." That child is not under the care, in that sense, of anyone, but in the parental responsibility of his or her legal parents.
46Accordingly, I do not consider that I am precluded by s 69ZK from making a contact order in this case.
47It was submitted that such an order should not be made because there was no indication that there would be any difficulties with contact. But there is a difference between the proposed adoptive parents and Mr A as to the frequency of contact, and a contact order is often made not so much because it is anticipated there will be difficulties but, as in this case, in order to give a birth parent, in the context of promotion of open adoption, the assurance and security that he or she is not without enforceable rights in the future.
48Accordingly, I propose to make an order for contact which will be expressed as an order for reasonable contact, and then have a default provision much along the lines of the present arrangements. In doing so, I would expect that in the future what is reasonable will change. It will, I hope, not be necessary for the parties to return to the court to clarify that in the future, and I would hope Mr A would appreciate that as the child becomes older his needs and interests will change, and it will be in Mr A's interests, as much as in the child's interests, to accommodate those changes, which may well mean longer periods of contact on less frequent occasions in the future. But the time when that is plainly in the child's best interests has not yet arrived.
49I would add that in the order I propose to make, while I have adopted what I understand to be the time and place of the current regime as the default position, it seems to me highly desirable that the parties agree on some alternative location and should be able to agree on alternative times.
50Finally, I should observe that the Director-General requests, and Mr A consents, that the court make an order about the child's parentage under the (NSW) Status of Children Act 1996, in order that Mr A be registered as the child's birth father. I am satisfied, on the parentage testing procedure report that has been tendered, that Mr A is the child's birth father and that it is appropriate to make that order.