Director-General, NSW Department of Family and Community Services Re JS [2013] NSWSC 306

Judgment (ex tempore) 1HIS HONOUR: By summons filed on 23 August 2012 and further amended today the Director General of the Department of Family and Community Services seeks the following orders: 1. That pursuant to (NSW) Adoption Act 2000, s 67(1)(d), the consent of the child's natural father be dispensed with. 2. That pursuant to (NSW) Adoption Act 2000, s 67(1)(d), the consent of the child's natural mother (deceased) be dispensed with. 3. That pursuant to (NSW) Adoption Act 2000, s 88(4), the giving of notice to the child's natural mother (deceased) be dispensed with. 4. That pursuant to (NSW) Adoption Act 2000, s 50(3), the Further Amended Adoption Plan be registered. 5. An order for the adoption of the child JJLS in favour of the adopting parents ATZ and JMZ. 2The child's birth mother is deceased. The child's birth father JS has filed an appearance and has not formally consented to the adoption, but in submissions made today has indicated that while he feels unable formally to consent to the adoption, he does not wish to oppose it. Originally there were issues between the parties, pertaining principally to the arrangements for on-going contact between the child and the birth father, but those differences have been resolved and that resolution is reflected in a Further Amended Adoption Plan, the registration of which under s 50 is sought by all parties. 3Because the birth father does not formally consent to the adoption, it is necessary for the Court to be satisfied that the conditions for dispensing with consent are established. The child, who is five years of age, has been living with the proposed adoptive parents for almost the whole of his life. It is clear that there is an established relationship between him and the proposed adoptive parents, who are authorised carers, and, accordingly, that the ground referred to in s 67(1)(d) is made out, subject to being satisfied that it is in the interests of the child to dispense with the birth father's consent. That issue, of course, is subsumed with the issue of whether it is also in the child's interests to make an Adoption Order. 4I am satisfied that J's best interests will be promoted by the making of an Adoption Order having regard, in particular, to the child's physical, emotional and educational needs and sense of personal, family, religious and cultural identity, the relationship that J has with his birth father, which I am satisfied will be maintained by the proposed adoptive parents, the attitude of the proposed adoptive parents to the responsibilities of parenthood, the nature and quality of their relationship with J and their suitability and capacity to parent J. I am also satisfied, particularly having regard to the position now adopted by the birth father, that the arrangements proposed in the Further Amended Adoption Plan are in J's best interests and proper in the circumstances, and that having regard to J's placement with the proposed adoptive parents for almost the whole of his life to date and their ability to provide a family setting for his raising in the future, and the benefits of permanency and security in his placement, that the making of an Adoption Order is clearly preferable in the best interests to any other action that could be taken. 5Although there was an issue as to whether J's first name should be hyphenated or not, that has now been resolved. It is proposed that J will retain his father's surname as a middle name and assume the surname of the proposed adoptive parents, and I am satisfied that that is in J's best interests as it will recognise both his origins and the reality of his placement. 6I am also satisfied that the contact regime set out in the Further Amended Adoption Plan is in J's best interests. 7As to registration of the Adoption Plan, (NSW) Adoption Act 2000, s 50, provides as follows: 50 Registration of adoption plans (1) The parties to an adoption who have agreed to an adoption plan may apply to the Court for registration of the plan. (2) The regulations may make provision for or with respect to such an application. (3) The Court may register an adoption plan if it is satisfied that: (a) the plan does not contravene the adoption principles, and (b) the parties to the adoption understand the provisions of the plan and have freely entered into it, and (c) the provisions of the plan are in the child's best interests and is proper in the circumstances. (4) An adoption plan that is registered has effect, on the making of the relevant adoption order, as if it were part of the order. 8It will be apparent that it is only those parties to an adoption who have agreed to an Adoption Plan who may apply to the Court for registration of the plan. The parties to an adoption include the Director General, the adopting parents and any consenting birth parent, but do not include a non-consenting birth parent. This is a matter which, to my mind, is a lacuna in the current legislative structure and requires the attention of the Law Reform Commission or the Minister with a view to addressing the situation. There are many birth parents who, like the father in this case, feel unable to consent to an adoption while not formally opposing it. They would feel much less reticent if their rights of contact could be secured by an Adoption Plan. 9I have otherwise referred to some of the problems that can arise in this respect in Adoption Application 31 of 2012 Re T, judgment of 17 December 2012. 10It will also be apparent from s 50(4) that a registered Adoption Plan has effect, on the making of the relevant Adoption Order, as if it were part of the order. That confers on the contents of the plan the effect of a Court order. I shall return to that in a moment. 11(NSW) Adoption Act 2000, s 51, provides as follows: Review of adoption plans (1) The Court may review an adoption plan on application of one or more of the parties to the plan. (2) Unless the Court otherwise determines, the Court is to give each party to the adoption who agreed to the adoption plan an opportunity to make submissions concerning the application. (3) Following its review, the Court may, by order: (a) make such changes (if any) to the provisions of the adoption plan as it considers appropriate, or (b) revoke the plan, or (c) confirm the plan. (4) The Court may change the provisions, or revoke, an adoption plan only if it is satisfied that it is in the best interests of the child and proper in the circumstances to do so. (5) An adoption plan that is changed by an order of the Court has effect as if it were the plan originally agreed to by the parties. 12Again, standing to apply for review of an Adoption Plan is confined to one or more of the parties to the plan, which does not include a non-consenting birth parent who is mentioned in the plan and provision for contact with whom is made in the plan. That means that, in the context of this case, the birth father would not have standing to apply for review of the plan, although it purports to secure his contact with the child. However, as a person having the benefit of a deemed order, as the plan becomes upon registration, even though not a party to the plan, as a result of s 50(4) would have standing to apply for enforcement of the deemed order arising from registration of the Adoption Plan, even if not for its review. In any event, as I endeavoured to explain in Re T, he would have standing to apply under the provisions of the Family Law Act either to this Court or to a court exercising jurisdiction under that Act, for contact, and in that way effectively to procure a review of the Adoption Plan. 13Although s 50(2) authorises regulations making provision for or with respect to an application for registration of an Adoption Plan, so far as I can tell the regulations make no such provision. save that they particularise certain matters required to be contained in an Adoption Plan. 14In the absence of anything further in the Act or Regulations as to how a plan is registered, the appropriate course is that the Court make an order that it be registered. 15Before registering a plan, the Court must be satisfied that it does not contravene the adoption principles, that the parties to the adoption understand its provisions and freely enter into it, and that the provisions are in the child's best interests and proper in the circumstances. I am so satisfied. 16Accordingly, I am prepared to register the plan. 17The summons seeks orders dispensing with the consent of the child's natural mother and with notice to her. It is not entirely clear whether it is necessary to dispense with a deceased parent's consent, and I would incline to the view that it is not. However, for more abundant caution and since the requirements of s 67(1)(d) are, in any event, clearly satisfied, I will make those orders in the present case. 18Accordingly, I make the following orders: 1. Order pursuant to Adoption Act s 67(1)(d) that the consent of the child's natural father be dispensed with. 2. Order pursuant to Adoption Act s 88(4) that the giving of notice to the child's natural mother (who is deceased) is dispensed with. 3. Order pursuant to Adoption Act s 67(1)(d) that the consent of the child's natural mother (who is deceased) be dispensed with. 4. Order pursuant to Adoption Act s 50 (3) that the Further Amended Adoption Plan, being Exhibit PX 01 in the proceedings, be registered. 5. Order for the adoption of the child JJLS in favour of the adopting parents ATZ and JMZ and approve the name Z as the surname and JJLSZ as the given names of the child. 19I refer the matter to Chambers for completion of the orders.