Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR  NSWSC 926
Justice Bergin, the Chief Judge in Equity in the NSW Supreme Court, found that a person not party to an adoption (in this case, a paternal grandmother) may have standing to enforce an adoption plan if the plan is registered under the Adoption Act 2000 (NSW) (Adoption Act), but not to review or amend it.
JLR was born in Sydney in February 2011 to BM and BF. The couple had previously had a son, JR, born in 2007, who had been removed from their care in 2010 due to concerns about domestic violence and drug and alcohol misuse. Responsibility for JR’s care had been allocated jointly to the Minister of Community Services and JR’s paternal grandmother PGM (i.e. BF’s mother), with JR’s day to day care provided by PGM.
The Department of Family and Community Services (Department) assumed care of JLR while she was still in hospital. JLR’s birth father, BF, had visited JLR in hospital immediately after birth but had not had any contact with her since then. PGM advised the Court that BF did not wish to have any contact with JLR in future. In June 2011, JLR was placed in the care of P1 and P2, by orders of the NSW Children’s Court. While in their care, PGM and JR (JLR’s birth family) had had opportunities for supervised visits with JLR, with a view to ensuring the development of a relationship between them (and, in particular, between the siblings).
In late 2012, case management and parental responsibility for JLR was transferred from the Department to Barnardos, a designated agency and accredited adoption provider under the Children and Young People (Care and Protection) Act 1998 (NSW) which provides a service of permanent family care and adoption for children unable to live with their birth parents. P1 and P2 applied to Barnardos to adopt JLR, pursuant to an adoption plan which was supported by the Principal Officer of Barnardos. PGM learned of the adoption plan, and initially opposed it, seeking orders under the Family Law Act 1975 (Cth) (Family Law Act) in her favour for the care of JLR. In particular, PGM was concerned that she would not be a party to the adoption (notwithstanding that it provided for her to spend time with JLR) and so she would be unable to enforce any aspect of it. The orders PGM sought made provision for her and JR to spend a greater amount of time with JLR than was proposed under the adoption plan.
The main question Justice Bergin had to consider was whether the adoption order should be granted under section 90 of the Adoption Act. As part of this, her Honour also had to consider whether, given that PGM was not a party to the adoption, PGM would be able to enforce those aspects of the adoption plan granting her visitation rights.
Section 90 of the Adoption Act states that the Court may not make an adoption order unless the arrangements proposed in an adoption plan are agreed by the parties to the adoption, or the Court is satisfied that the plan is in the best interests of the child. The Court may not make an adoption order unless it considers that order would be clearly preferable for the interests of the child. The Adoption Act Dictionary defines a “party to an adoption” as the child, the birth parent or parents that have consented to the adoption, the person or persons selected to be the prospective adoptive parents, the Director-General (now Secretary) of the Department, and the appropriate principal officer.
Her Honour found that JLR’s relationship with P1 and P2 was stable and loving and that JLR felt secure and happy. JLR’s relationships with her birth family (including JR and PGM) were facilitated through P1, P2, and PGM’s efforts to maintain contact. Her Honour held that the certainty of having P1 and P2’s relationship with JLR as parents (as opposed to JLR being “in care”) was in her best interests, and preferable to PGM’s proposed orders under the Family Law Act, so her Honour granted orders to approve the adoption plan.
Her Honour noted that while PGM was not a “party to the adoption” under the definition in the Adoption Act, section 50 of that Act gave the adoption plan the same force as an order of the Court, once registered. In Director-General, NSW Department of Family and Community Services; Re JS  NSWSC 306, Justice Brereton had stated that “a person having the benefit of a deemed order … even though not party to the plan, as a result of section 50(4) would have standing to apply for enforcement of the deemed order…”. Justice Bergin considered that this would enable PGM to enforce the adoption plan. To the extent that a review of the plan was required in the future, PGM would be able to approach Barnardos or even BF to have them call for a review of the plan.
Her Honour also considered two other issues – first, whether the Court should dispense with the requirement for BF and BM to consent to the adoption (including dispensing with the requirement to give notice to BF) and secondly, whether the Court should make an order changing JLR’s name. Her Honour held that it was in the best interests of JLR to dispense with the need for her birth parents’ consent to the adoption, as BF was not able to be located and was not involved in JLR’s life, and there was no prospect for JLR to be returned to BM’s care. Her Honour also noted that BM had stated she supported whatever legal decision was in JLR’s best interests, though she had not given formal consent to the adoption. Second, the Court made an order to change JLR’s name, as her Honour was of the view that JLR would benefit from having P1 and P2’s surnames when she started school.
This case appears to broaden the scope for persons not party to an adoption to apply for enforcement of an adoption plan. Provided that a person “has the benefit” of a court order, including a deemed order (such as a court-registered adoption plan), they may apply to a court to enforce that order. However, they would not ordinarily have standing to bring a review or change to that order – they would need to ask the Department or appropriate principal officer of the adoption provider to do so on their behalf.
This is of particular note for non-parents who maintain visitation rights in relation to adopted children, such as extended family.
The full text of the decision can be found here.
Charles Davies, Solicitor at King & Wood Mallesons.