Re S and the Adoption Act 2000 (NSW) [2006] NSWSC 1062

• Adoption Act 2000 (NSW) - Chapter 4 Pt 5 Div 1, Div 3; s.8, s.52, s.54, s.56, s.66, s.67, s.72, s.88, s.118. LEGISLATION CITED : - Adoption of Children Act 1965 (NSW) - s.26 - Adoption of Children Act 1965 (NSW) - 1988 Amendment, Second Reading Speech, Hansard, New South Wales Legislative Council, 24 May 1988, pp370-371. - Adoption Regulation 2003 (NSW) - Clause 42

PARTIES : Director-General of the Department of Community Services - Applicant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTION LIST

1 An adoption application, which has come before me to be dealt with in private chambers, has raised a problem which exposes difficulties in the construction and application of the Adoption Act 2000 (NSW). 2 The child the subject of this application is more than twelve years old but less than eighteen years old. He has been living with the applicants for adoption for more than five years and he has given his consent in writing to the adoption in accordance with the provisions of s.55 of the Adoption Act. The child's birth father is unknown. The birth mother does not consent to the adoption. 3 The Summons, which was filed by the Director General, New South Wales Department of Community Services ("DoCS"), seeks, in addition to the order for adoption, orders under s.67(1)(a) and s.72(2)(a) of the Adoption Act dispensing with the consent of the birth father and with the need to give notice to the birth father of that application. However, no order is sought under s.67 dispensing with the consent of the birth mother. 4 Section 52 of the Adoption Act relevantly provides that the Court "must not" make an adoption order in relation to a child who is less than eighteen years of age unless consent has been given by each parent of the child. However, the Director-General submits that the consent of the birth mother in this case is not required by virtue of s.54, so that no application to dispense with her consent is necessary. 5 Section 54 provides: "(1) Consent is not required under section 52 if:

(a) the requirement for the consent has been dispensed with by the Court, or

(b) the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or

(c) the child gives sole consent to his or her adoption in accordance with subsection (2) and the Director-General or appropriate principal officer has given reasonable notice, or used their best endeavours to give reasonable notice, of the application for the adoption order to the parent or guardian whose consent would otherwise be required, or

(2) A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been in the care of the proposed adoptive parent or parents for at least 5 years." Whether birth mother's consent required

6 In the present case, the requirements of s.54(2) are fulfilled. Section 54(1)(a), (b) and (d) do not apply. The consent of the birth mother will not be required only if the requirements of s.54(1)(c) are fulfilled. 7 There are two requirements to be fulfilled under s.54(1)(c). The first is that the child gives the appropriate consent. As I have said, that requirement is met. The second requirement is that "the Director-General or appropriate principal officer has given reasonable notice, or used their best endeavours to give reasonable notice, of the application for the adoption order …". 8 In the present case, on 6 May 2006 a social worker independently contracted to DoCS to work on this case spoke by telephone to the birth mother and informed her that DoCS wanted to apply for an adoption order for the child. The birth mother said that she would not consent to the adoption. 9 On 30 June 2006, the same social worker wrote to the birth mother on her own letterhead. The letter referred to the adoption order which DoCS proposed to seek and to an adoption plan which was suggested, and invited the birth mother to contact her to discuss the proposed adoption plan. 10 The Summons for adoption was filed on 27 September 2006. There is no evidence in the file of any communication with the birth mother after the date of filing of the Summons notifying her that the Summons had been filed. 11 In my opinion, the telephone conversation of 6 May and the letter of 30 June 2006 do not constitute "notice … of the application for the adoption order" for the purposes of s.54(1)(c). The subsection does not refer to "a proposed application"; it requires notice of "the application" to be given. That requirement presupposes that there is an application to the Court of which to give notice. There is no application to the Court until a Summons is filed. In the present case, the Summons was not filed until well after the two communications with the birth mother. Those communications cannot, therefore, constitute notice of "the application". 12 Further, there is no evidence that the contracted social worker is "the appropriate principal officer" for the purposes of giving a notice under s.54(1)(c). 13 For these reasons, I must conclude that the notice requirement of s.54(1)(c) has not been fulfilled, so that the birth mother's consent has not ceased to be required under s.54(1). The effect and consequences of a notice under s.54(1)(c)

14 There now arise the questions which have caused some difficulty in the present case. If the Director-General is to comply with the notice requirements of s.54(1)(c), what must such a notice contain? For what purpose is the notice given? What rights, if any, does the parent who receives such a notice have to take action under the Act? 15 Curiously, neither s.54 nor any other provision of Chapter 4 Pt 5 Div 1(which deals with consents to adoptions) states what is to happen after notice is given to a birth parent under s.54(1)(c). The section says that if the Director-General gives, or uses best endeavours to give, such a notice then "consent is not required under s.52". These words suggest that, if a child has given consent under s.54(2) and s.55, the Director-General's act of giving, or attempting to give, notice under the subsection in itself operates to dispense with the requirement of s.52 that the birth parent give consent. 16 This construction is reinforced by the fact that under s.54(1) there are four possible circumstances in which a consent required under s.52 ceases to be required and each of them is made independent of the others. Consent is not required if a consent dispense order has been made under s.67 (s.54(1)(a)) "or" the child gives consent and the Director-General gives, or endeavours to give, the notice required under s.54(1)(c). This conclusion is further reinforced by reference to antecedent legislation. 17 The immediate predecessor of the Adoption Act 2000 was the Adoption of Children Act 1965 (NSW). Section 26 of that Act in its original form relevantly provided that a "Court shall not make an order for the adoption of a child" unless consent by "the appropriate person" is given. "Appropriate person" was defined to include the parents or guardians of a legitimate child (subsection (2)), only the mother or guardian of an illegitimate child (subsection (3)), and adoptive parents or guardians of adopted children (subsection (4)). Section 33 relevantly provided that where the child was between the ages of twelve and twenty-one years, the child's consent was also required, except where the Court was satisfied that there were special reasons that the order for adoption be made in the absence of such consent. Accordingly, the consent of at least the birth mother was always required except where the child was at least twenty-one years of age and was the applicant for adoption. 18 The Adoption of Children Act was amended in 1987 to make a child between the ages of fifteen and eighteen years the only person whose consent was required to the adoption. In 1988 the Act was amended again to lower the age of consent to twelve years. Section 26 of the Act, after the 1988 amendment, relevantly provided: "(1) Subject to this Division, the Court shall not make an order for the adoption of a child unless consent (not being a consent that has been revoked in accordance with this Act) to the adoption has been given by the appropriate person or persons ascertained in accordance with the provisions of subsection (2), (3), (4) or (4 A ) or (except in a case to which subsection (4 A ) applies) the Court is satisfied that there is no such appropriate person.

(4 A ) In the case of a child who, before the making of the adoption order -

(a) has attained the age of 12 years but not the age of 18 years; and

(b) has been brought up, maintained and educated as the child of the applicant or applicants for the period of 5 years before the making of the application,

the only appropriate person is the child." 19 The policy underlying the 1988 amendment was explained by the Minister in the Second Reading Speech: "This bill will lower the age at which a long-term foster child may consent to adoption, without the need for additional consent from each natural parent or guardian. The lowering of the age, from 15 years to 12 years, at which a child may consent to an adoption without the need for additional consents, follows an amendment in 1987, which set the age at 15 years. The Government considers that the 1987 amendment, though worthy, did not go far enough to promote the consolidation of a child's relationship with a long-term foster family. When the Adoption of Children Act was first enacted in 1965, it provided that long-term foster parents of a child could not adopt the child without the consent of every person who was a parent or guardian, until the child attained the age of 18 years, unless the court dispensed with the consents on one of the grounds set out in section 32.

One such ground for the dispensation of parents and guardian's consent was establishing that the welfare and interests of the child would be better served by adoption rather than by allowing the parents some residual rights in relation to the child. This often resulted in lengthy, contested matters before the Supreme Court, with the Crown Solicitor briefing counsel. In many ways, these cases were pointless, because even if the department were not successful in the application to dispense with a parent's or guardian's consent, the placement of the child with the foster family did not change. The child and foster family were required, however, then to wait until the child attained the age of 18 years before a formal adoption could proceed. Lengthy contested matters before the Supreme Court resulted in unnecessary trauma for the child and foster family, and this prospect probably deterred many families who would otherwise have applied to adopt long-term foster children. Many applications for the adoption of long-term foster children occur when the child commences high school. At this time, a birth certificate may need to be produced for various reasons, such as registration with a sporting organization, and later to obtain employment. It then becomes an embarrassment, particularly for an adolescent, to have to explain to people that the name on the birth certificate is not that by which he or she is commonly known. For these reasons, it would be more appropriate to lower the age at which a child may consent to an adoption from 15 years to 12 years." Hansard, New South Wales Legislative Council, 24 May 1988, pp370-371. 20 Section 54(1)(c) and (2) of the present Act are clearly intended to have the same effect as s.26(4A) of the 1965 Act: where the prescribed conditions are satisfied, the only consent necessary for the adoption of a child between the ages of twelve and eighteen years is that of the child. 21 However, a condition of s.54(1)(c), which has no equivalent or antecedent in s.26 of the 1965 Act, is that the Director General give, or use best endeavours to give, "reasonable notice" of the adoption application to the parent whose consent would otherwise be required. "Reasonable notice" suggests that the notice must be given in advance of the hearing of the adoption application; it suggests that a reasonable time must be allowed for the birth parent receiving the notice to do something about the application. If it were intended that the giving of notice was only for the information of a birth parent, and that the birth parent had no right to be involved in the adoption application, then one would have expected that notice would have been required only of the adoption order, not of the application, and that there would have been no requirement that the notice be "reasonable". 22 However, if a birth parent's consent is not required when the conditions of s.54(1)(c) are met, what is the point of giving the birth parent advance notice of the adoption application at all? More particularly, why must the notice be "reasonable"? By what criterion is "reasonable" to be assessed? What must the birth parent have a reasonable time to do in advance of the adoption application being heard? The Act gives no express answer to these questions. The purpose of a notice under s.54(1)(c)

23 As far as I can see, the only possible purpose in giving notice under s.54(1)(c) to a birth parent is to afford the birth parent the opportunity either to seek the Court's leave to be joined as a party to the adoption application in order to oppose the adoption on a ground other than that the birth parent refuses consent, or to make known to the Court, by one or other permissible means, the parent's wishes in relation to the child. 24 Section 8(2) requires the Court, in determining the best interests of the child, to have regard to: "(e) any wishes expressed by either or both of the parents of the child,

(f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,

(j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour, …" 25 Section 118 provides: "(1) The Court may permit such persons as the Court thinks fit to appear in or be joined as parties to the proceedings for an adoption order.

(2) The Court must, on application by a person who is the father of a child who has not:

(a) given his consent to the adoption of the child, and

(b) been given a notice referred to in section 56 (Birth father to be given opportunity to consent),

permit the person to appear in, or join the person as a party to, the proceedings for an adoption order in relation to the child for the purpose of opposing the application for the order." 26 Section 126 provides: "Except as otherwise provided by this Act or the regulations, the Court, in the hearing of any proceedings or in determining any application or matter under this Act or the regulations, may act on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter of the proceedings or before it for determination whether or not the statement, document, information or matter would be admissible in evidence." 27 It seems to me that a birth parent whose consent to the adoption is not required at all by reason of s.54(1)(c) is still entitled to make known to the Court matter to which the Court is required to have regard under s.8(2)(e), (f) and (j). It may not be necessary to join a birth parent as a party in order that the birth parent may make known his or her wishes or the child's relationships with members of the birth family but, for example, if violence by a birth parent is alleged as a ground for adoption under s.8(2)(j), it may be proper to allow the birth parent to rebut the allegation by being joined as a party under s.118(1) so as to enable him or her to obtain discovery, lead evidence and cross examine. 28 Alternatively, if the birth parent does not wish to become a party or to appear in the proceedings, or if the Court thinks it inappropriate to grant leave to appear or to join the birth parent under s.118(1), the Court may, under s.126, have regard to the wishes or statements of the birth parent expressed informally in a statement or other document provided to the Court. 29 It is undesirable to proscribe by definition or example the circumstances which may move the Court to allow a parent whose consent to the adoption is not required by virtue of s.54(1)(c) the opportunity to appear or to be joined as a party in the application or otherwise to make known to the Court relevant matter concerning the child and the adoption application generally. The overriding concern of the Court in managing adoption proceedings will be to ensure that it is in the best position possible to decide what is in the best interests of the child. 30 Because a parent receiving a notice under s.54(1)(c) is not shut out from involvement in the adoption application despite the fact that his or her consent is not required, notice of the application must allow sufficient time to the parent to consider his or her position and to take advice. Further, because the Act is not clear as to what rights are afforded to a parent receiving a notice under s.54(1)(c), the notice itself should make clear what can be done by the recipient. Conclusions

31 In the present case, I am of the view that the consent of the birth mother under s.52 has not yet ceased to be required by virtue of s.54(1) because the Director-General has not given to her, and has not endeavoured to give to her, any notice of the application for adoption as required by s.54(1)(c). 32 If the Director-General seeks to invoke the provisions of s.54(1)(c), the notice to be given to the birth mother thereunder should state:

• the date on which the child gave consent to the adoption;

• the date on which the application for adoption was filed;

• that the birth mother's right to refuse consent to the adoption is no longer required by reason of s.54(1)(c) of the Adoption Act but that the birth mother may:

apply to the Court under s.118(1) for leave to appear in the proceedings or to be joined as a party, in order to oppose the application; or

make known to the Court her wishes in relation to the adoption of the child, or any other matter relating to the best interests of the child, by means of a statement in writing signed by her;

• that if the birth mother intends to apply to the Court for leave to appear or to be joined as a party, she must notify the Registrar of the Equity Division in writing of her intention within fourteen days after receipt of the notice;

• that if the birth mother intends to make known to the Court her wishes, or any other matter relating to the best interests of the child, by a statement in writing, such statement must be provided to the Registrar of the Equity Division within fourteen days after receipt of the notice under s.54(1)(c). 33 I think that, by analogy with a notice under s.88(1), a notice under s.54(1)(c) should allow, as a "reasonable" period, not less than fourteen days within which the birth parent is to take one of the courses of action set out in the notice. Recommendation for legislative amendment

34 Because the rights of a birth parent receiving a notice under s.54(1)(c) are not made clear in the Act or the Regulations, I recommend that s.54(1)(c) be amended so that the notice to be sent thereunder must be in a form prescribed by the Regulations. I recommend that the Regulations provide for the notice to contain information to the effect suggested in paragraphs 30 and 32 of this Judgment. ~ oOo ~

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