Secretary, New South Wales Department of Communities & Justice; Re ‘K’; and ‘M’

1. [1]

   The above two matters came before the Court on 3 September 2021. In both matters an application was made for an extension of time of interim care orders, in both cases for a period of twelve months.

2. [2]

   The plaintiff (the Secretary), was represented in the matters by Ms S Christie SC. There were no appearances for any other party. Applications were made pursuant to s.84(2) of the Adoption Act 2000 (NSW) (“Adoption Act”) alternatively it was submitted the Court could make orders in the Court’s inherent parens patriae jurisdiction.

3. [3]

   In one of the cases because of a conflict in the views of a number of judges in the Court I was asked pursuant to r.28.2 of the Uniform Civil Procedure Rules 2005 (NSW) to refer a separate question to the Court of Appeal. Although there would appear to be no factual controversy in the particular matter the particular care order in that matter was due to expire on 6 September 2021 and although I could have pragmatically extended the care order for a short period of say three months I thought the better course was to give judgment in both leaving for another day and perhaps a more appropriate vehicle for the point to be determined, if needs be.

4. [4]

   I granted the applications in both cases and indicated because of the matters argued I would in due course deliver written reasons. These are they.

Background

1. [5]

   The two children the subject of the applications are K and M.

2. [6]

   K was born in February 2019. His mother was born in March 1989.

3. [7]

   K’s father was born in April 1988.

4. [8]

   When K was 13 days old he was assumed into the care of the Minister. Neither his mother nor father was in a position to care for him.

5. [9]

   As of 3 September 2019, K was placed in the care of the proposed adoptive parents (born August 1977 and June 1973). In addition to being proposed adoptive parents they are authorised carers pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”). K remains under parental responsibility order by virtue of a short–term care order made by the Children’s Court at Port Kembla on 6 September 2019. It expires on 6 September 2021.

6. [10]

   The permanency plan for K is for adoption but the Secretary is not yet able to apply for such an order because although certain steps have already been taken including the proposed adoptive parents having submitted an application to adopt K, there are additional steps to be taken. However, the Secretary anticipates an application will be ready for filing in about August 2022.

7. [11]

   M was born in October 2018. Her mother was born in October 1982. The identity of her father is currently unknown.

8. [12]

   When M was born her mother indicated she wanted to give her baby up for adoption.

9. [13]

   A Temporary Care Arrangement (“TCA”) was entered into with the Department of Communities and Justice. Upon being discharged from hospital when only six days old, M was placed in the care of Wesley Dalmar foster carers.

10. [14]

    She was placed with the proposed adoptive parents (born March 1981 and April 1981) on 26 June 2020. She was then 21 months old. A second TCA had been entered with the mother on 8 January 2019. M was assumed into the care of the Minister on 8 April 2019 at the home of her foster carers. The second TCA expired and the mother was unable to care for M.

11. [15]

    The proposed adoptive parents are dually authorised as prospective adoptive applicants and carers for a child in out of home care and have responsibility for M pursuant to the Care Act. M remains in the care of the Minister pursuant to a care order made by the Children’s Court that expires on 26 September 2021.

12. [16]

    Although it is proposed to have M adopted within a 2-year period, the process still remains in the assessment stage within the Department and the application for adoption is not yet ready to be filed with the Supreme Court of NSW.

13. [17]

    Although the mother has indicated she consents to adoption she has been difficult to contact. The Secretary would propose to proceed with an application for adoption in due course but if an interim short-term order is not made the parental responsibility would revert to the mother at common law.

The issue that arises

1. [18]

   The principal application by the Secretary turns on whether or not in the absence of a formal application for adoption to the Court in favour of a specific adoptive parent or parents, the Court is nonetheless empowered to make an interim order for parental responsibility.

2. [19]

   As already noted there has been historically a difference of view in the Court as to the proper construction of the relevant provision.

3. [20]

   Section 84 of the Adoption Act is as follows:

4. [21]

   Prior to coming to the question of construction, it is worth noting the historical background of the legislation governing adoption in this state.

5. [22]

   Adoptions were dealt with until 1965 under the Child Welfare Act 1923 (NSW), in particular pursuant to Part XIV of that Act. In 1939 that Act was substantially amended but there were no substantive changes made to the provisions of the Act dealing with adoptions.

6. [23]

   But in 1965 there was passed for the first time the Adoption of Children Act. That was the first piece of comprehensive legislation passed in New South Wales regulating adoptions by way of separate legislative enactment.

7. [24]

   Section 41 of that Act provided for the Court to make interim orders but it did not at that stage have an equivalent provision to the current s.84(2).

8. [25]

   This changed with the introduction of the Adoption of Children (Amendment) Act 1980 (NSW) which, by schedule 3 item 15 inserted s.41(1A) to the Adoption of Children Act 1965 with the wording:

9. [26]

   Apart from minor changes to the wording of this section reflecting changes of the position names (for example, Director later became Director General and today refers to the Secretary), this section is worded essentially the same as s.84(2) today.

10. [27]

    Importantly, in moving that the bill introducing s.41(1A) be read a second time in the Legislative Council on 26 March 1980, the Hon JR Hallam, Minister for Agriculture, commented (Hansard at 5914) that:

Legal Principles

1. [28]

   In approaching the interpretation of s.84 it is necessary to bear in mind the modern approach to statutory interpretation. It is a contextual exercise of the kind contemplated in decisions such as CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 (“CIC Insurance”) and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”).

2. [29]

   In CIC Insurance, Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ observed at 634-5:

3. [30]

   In Project Blue Sky, McHugh, Gummow, Kirby and Hayne JJ observed, at [70], that:

4. [31]

   Moreover, in R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2019) 277 A Crim R 539 (“R v A2”), Kiefel CJ and Keane J observed (at [32]-[33]):

5. [32]

   At common law, any extrinsic material considered relevant to context may be considered by a Court undertaking statutory interpretation (CIC Insurance at 408; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, at [36]–[37] per Gageler J).

6. [33]

   Reference to extrinsic material is permitted at common law without some ambiguity arising in a provision (see, e.g., A-G (Cth) v Oates (1999) 198 CLR 162 at [28]).

7. [34]

   The traditional common law approach to parliamentary materials was that it was not permissible to refer to them for any purpose, however, the modern approach under the common law permits reference to identify the context of a provision in its widest sense, and secondary reading speeches are commonly used in questions of interpretation (see, e.g., R v A2).

8. [35]

   Pursuant to s.34 of the Interpretation Act 1987 (NSW) (“Interpretation Act”), extrinsic material can be referred to only in situations of ambiguity, obscurity, manifest absurdity or unreasonableness, and it cannot be used to depart from a meaning determined without the extrinsic material. Ambiguity here “is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful” (Repatriation Commission v Vietnam Veterans’ Association of Australia (NSW Branch) Inc (2000) 48 NSWLR 548 at [116] per Spigelman CJ; Handley JA agreeing).

9. [36]

   Material that may be relied upon includes second reading speeches (s.34(2)(f) Interpretation Act). In determining whether to give consideration to this material or what weight to be given to it, the Court shall have regard to the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision, and the need to avoid prolonging legal or other proceedings without compensating advantage (s.34(3)).

10. [37]

    Under both the common law and statute, the legislative history of a provision may not be used to attach a meaning which the words of the provision cannot reasonably bear (Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551 at [52] per Kiefel CJ, Keane, Nettle and Edelman JJ).

11. [38]

    Further, parliamentary materials cannot be used to identify the meaning their author or speaker subjectively intended a provision to have as this is not relevant to the construction question (Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [31]–[32] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ). As outlined in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 (at [43]-[44]), the intention of parliament is to be ascertained by determining the meaning of the statute having regard to the applicable common law and statutory rules of construction. The Court’s search is not for the legislative intention other than that disclosed by the meaning of the language used in the relevant statute (Project Blue Sky at [78]; Byrnes v Kendle (2011) 243 CLR 253 at [96]–[97] per Heydon and Crennan JJ).

12. [39]

    Section 247 of the Care Act denotes that nothing in that Act limits the jurisdiction of the Supreme Court which, by s.23 of the Supreme Court Act 1970 (NSW) has “all jurisdiction which may be necessary for the administration of justice in NSW”, including the parens patriae or welfare jurisdiction (Director-General, Department of Community Services; Re Thomas (2009) 41 Fam LR 220|; [2009] NSWSC 217 (“Re Thomas”) at [22] per Brereton J).

13. [40]

    In Re Thomas at [22]-[38], Brereton J provides a useful summary of the history and scope of the Court’s parens patriae jurisdiction.

14. [41]

    The jurisdiction has a wide breadth, having even been described as without limitation, although to be exercised with caution (Re Thomas at [29], citing Secretary, Department of Health and Community Services v JWB and SMH (Marion’s Case) (1992) 175 CLR 218 at 258-9).The power is only to be exercised in exceptional cases (Re Frances and Benny [2005] NSWSC 1207 (“Re Frances and Benny”) at [18] per Young CJ in Eq).

Submissions of the Secretary

1. [42]

   The Secretary submitted that the proper context for the Adoption Act is apparent from the objects provision in s.7 and the principles to be applied by persons making decisions about the adoption of a child set out in s.8. Among these principles are that:

2. [43]

   Notably, s.8(1)(e1) provides that undue delay in the making of a decision in relation to adoption of a child is likely to prejudice the child’s welfare. However, as was made plain by Sackar J in Adoption of ‘A’ [2020] NSWSC 1533 (“Adoption of ‘A’”), importance needs to be attached to the issue of parental consent and the significance of appropriate time being afforded to parents who are either relinquishing children and providing consent to adoption or, in the alternative, having their consent dispensed with for the purpose of making the adoption application. The importance of permanency planning and the time that takes, should also not be overlooked when considering the principles in s.8 of the Adoption Act.

3. [44]

   There are two key decisions of this Court where orders for parental responsibility in favour of the Secretary (or Director General as the Secretary then was) - in cases where adoption was contemplated but no application for adoption in favour of specified adoptive parents had been filed - were made in reliance upon the provisions of s.84(2) of the Act. The relevant decisions are the decision of Austin J in Application by Director General, Department of Community Services: Re L (a child) (2008) 71 NSWLR 343; [2008] NSWSC 235 (“Re L (a child)”) and the decision of Brereton J (as he then was) in Adoption of NV [2015] NSWSC 2135.

4. [45]

   Both cases, for different reasons, concluded that the Court had the power to make an order for parental responsibility in favour of the Secretary pursuant to s.84(2) of the Adoption Act.

5. [46]

   In Re L (a child), Austin J (at [23]) referred to the decision of Bryson J in Application by Director-General of Department of Community Services; Re BCG (a child) [2003] NSWSC 1040 (“Re BCG (a child)”) at [9]:

6. [47]

   It is stated by Austin J (at [24]) that the observations by Bryson J partly went to the exercise of the Court’s discretion rather than to jurisdiction. Austin J (at [25]) respectfully disagreed with the suggestion that the Court has no power to make an interim order under s.84(2) in the absence of an extant adoption application, but also pointed out that there is plausible argument to support that disputed view. Austin J proceeded to argue the contrary case at [27]-[36].

7. [48]

   First, there is nothing in the language of s.84 which suggests the power to make an interim order exists only when an application has already been made. At [27], his Honour said:

8. [49]

   Secondly, (at [28]) his Honour argued s.84(1) refers to the court postponing the determination of “any” application for an adoption order, where the word “any” signifies that there is no assumption that an application for an adoption order is on foot:

9. [50]

   Thirdly, (at [29]) Austin J stated that the subsections are to be interpreted broadly and independently of each other, so that the word “interim” where it occurs, in order to give it statutory content, signifies a temporary arrangement “either to be revoked or to be replaced by an adoption order, in due course, but available to be made whenever some temporary arrangement needs to be endorsed by the court… Under this broader meaning of the word "interim", the period begins when the adoption process commences by virtue of a need emerging for proper care of the child.”

10. [51]

    Fourthly, once the birth parents’ consents have been provided there has generally been no need to disturb the statutory parental responsibility until the adoption order is made. Postponement of the determination of the making of a final order is likely to be one of the “unusual” circumstances where an interim order for parental responsibility is appropriate. Other circumstances include when the parental responsibility of the Secretary has already been extended. The provisions of s.78 of the Adoption Act require the Secretary to report to the Court concerning any child over whom it has had parental responsibility under Part 6. The Court may make any order concerning the parental responsibility of the child that the court thinks fit, including an order for parental responsibility to the Secretary. Austin J expressed (at [30]) that: “In my view s.84(2) is another source of the Court's power to make such an order, whether or not an application for an adoption order has been made.”

11. [52]

    At [34]-[35], Austin J also referred to the contextual fabric of the provision:

12. [53]

    It was submitted that the approach taken by Austin J to interpretation of this provision is a correct contextual analysis of s. 84 of the Adoption Act. His Honour’s interpretation implements the objectives and paramountcy principle in a practical and sensible manner. Austin J’s conclusion about the power conferred by s.84 is stated at [36], where his Honour stated “that s 84(2) gives the Court the power to make an interim parental responsibility order in favour of the Director-General even where, as in the present case, no application for an adoption order has yet been made”.

13. [54]

    In Adoption of NV, Brereton J held that the power of the Court to make an order under s. 84(2) was not conditional upon an adoption application being already on foot.

14. [55]

    A similar approach has since been taken in a number of other matters including Adoption of BR [2018] NSWSC 1009 (Brereton J) and Adoption of ‘A’ (Sackar J). Brereton J’s approach in Adoption of NV is also similar to that taken by Kunc J in Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007.

15. [56]

    The matter of Adoption of NV arose in circumstances where the child’s father was unknown. The mother had expressed interest in the child being adopted but had wavered in this respect and had not yet given formal consent to the child’s adoption. A temporary care agreement had been made and was about to expire at the time of the application before the Court, in which the Secretary sought an interim order for parental responsibility in favour of the Secretary.

16. [57]

    In granting an order allocating interim parental responsibility to the Secretary, Brereton J said (at [6]-[9]):

17. [58]

    The Secretary highlighted that there has been a divergence of judicial opinion since the decision of Williams J in Re Alice [2021] NSWSC 700, delivered on 15 June 2021.

18. [59]

    In that matter, the Secretary sought, amongst other things, an interim order for parental responsibility for the child in favour of the Secretary pursuant to s.84(2) of the Adoption Act. However, her Honour declined to make the interim order sought in the summons for parental responsibility to be delegated to the Secretary pursuant to s.84(2) of the Adoption Act.

19. [60]

    Instead, her Honour queried the nature of the jurisdiction conferred by s.84(2) of the Adoption Act and ultimately ordered that:

20. [61]

    The key differences in the approach of their Honours, Austin and Brereton JJ, and her Honour Williams J were summarised by the Secretary as follows:

21. [62]

    At [36], Williams J said:

22. [63]

    The Secretary submitted that there is a difficulty with this approach, as s. 84 cannot have been intended to have been read as a whole. Section 84(4), for example, provides that “the Court must not make an interim order in relation to a child in favour of any person unless the Court could lawfully make an order for the adoption of that child by that person”. This provision could not have been intended to apply to the Secretary. The Secretary is plainly entitled to an interim order for parental responsibility; however, an order for the Secretary to adopt a child cannot be made.

23. [64]

    The Secretary instead submitted that the provisions in s.84 be interpreted broadly such that s.84(2), when it refers to “the child”, could instead be referring to the child the subject of the Summons (or the subject of the proceedings), as opposed to the application for adoption.

24. [65]

    When the Summons in relation to these applications were filed in the Supreme Court Registry on 27 August 2021 (Re K) and 26 August 2021 (Re M) they were filed in the Court’s Equity Division, Adoptions List, and relief was sought under the Adoption Act. The child the subject of the application was named as K and M respectively.

25. [66]

    It is not through a “circular reading” of s.84(2) that one concludes that “the child” refers to the child the subject of the application. The specific identified child is the subject of the litigation.

26. [67]

    Thus, the Secretary submitted that orders in respect of parental responsibility are orders in aid of adoption (allowing decision making responsibility to vest in the Secretary while the steps necessary to conclude the adoption are taken). In this way the orders sought are plainly orders which can be made by this Court under the Act.

27. [68]

    Interpreting s.84 in such a way, does not restrict the Court to exercise its jurisdiction pursuant to s. 84(2) when (and only when) an application for an adoption order is already on foot.

Consideration

1. [69]

   Children are assumed into care for a variety of reasons. Orders concerning their wellbeing and the like are made by and large by the Children’s Court pursuant to various provisions of the Care Act.

2. [70]

   Some but by no means all of those children end up being adopted. The adoption process is both highly regulated and can take some time depending on a whole range of factors, including that a decision has been made that adoption is the preferred option, and the identification of a suitable adoptive parent or parents.

3. [71]

   It should be noted the central and all important responsibilities to be discharged by the Secretary pursuant to s.10 of the Act but especially s.10(2).

4. [72]

   The Act proscribes who can be adopted (s.24) and importantly who can make an application for adoption. Section 26 makes it clear that only a “person” or her/his or their agent can make such an application (see also s.87). The word “person” is not defined but in this context it means a natural person or persons (see definition of “person” in s.21 of the Interpretation Act).

5. [73]

   The assessment, suitability and selection of a person as an adoptive parent who may make application to adopt unsurprisingly falls to the Secretary under Part 3 and Part 3A of the Act.

6. [74]

   Part 6 of the Act deals with parental responsibility for children awaiting adoption. Section 52 requires the court not to make an adoption order unless certain persons consent unless the court has dispensed with consent. However pursuant to s.75 the Secretary has exclusive parental responsibility for a child to the exclusion of all others prior to an order for adoption being made. In general terms that parental responsibility continues until an adoption order is made or another parental responsibility is made, (see ss.78 and 79).

7. [75]

   Given the principal focus on the child and the various essential steps the Secretary or principal officer is to take although steps are to be taken in a timely fashion it is entirely unsurprising interim orders may from time to time be necessary. Section 85 governs the outer limits of such orders to 2 years (s.85(2)).

8. [76]

   In the matter concerning K the adoption proceedings are obviously in contemplation. The same is true in the case of M.

9. [77]

   In both cases proposed adoptive parents have been identified and in both cases significant other preparation has occurred. In the case of K, the proposed adoptive parents are in the enquiry stage of the adoption process and it is anticipated that an adoption application will be ready for filing with the Court in August 2022 (Affidavit in support of Nichole Pearson, 26 August 2021, at [65]-[70]). The adoption process in M’s case is currently in the assessment stage and therefore not yet ready to be filed with the Court, but it is intended that she be adopted within a two year period (Affidavit in support of Sally McDonagh, 26 August 2021, at [79]-[80]).

10. [78]

    In my view given the objects of the Adoption Act it would be contrary to those objects if too restrictive a view were taken of s.84.

11. [79]

    In general terms what the section is intended to achieve is for a limited period give the Court jurisdiction make an interim order for parental responsibility to avoid the consequences of at least theoretically returning a child to his/her biological parent which may be highly undesirable and contrary to the child’s best interests.

12. [80]

    I agree with Brereton J (as he then was) that provided the adoption is in contemplation (as he put it) that is sufficient for the Court’s jurisdiction to be engaged. As a first step a decision will usually be taken that adoption is the preferred outcome in the best interests of the child concerned and that restoration to the biological parent or parents is not a realistic possibility.

13. [81]

    I also agree with Austin J’s persuasive response in Re L (a child) (at [23]-[25]) to the concerns of Bryson J earlier expressed in Re BCG (a child) (at [9]).

14. [82]

    It follows that I respectfully disagree with both Bryson J and also with Williams J.

15. [83]

    In the case of s.84(1), it is clear that an application for adoption is obviously on foot, here it is to be postponed. And the person or persons in whose favour the parental responsibility order is to be made is the person or persons in whose favour the ultimate adoption order is sought and likely made, s.84(4).

16. [84]

    Section 84(2) on the other hand, in the interests of the child concerned, permits a court to make a parental responsibility order in favour of the Secretary or principal officer.

17. [85]

    The better view of s.84(2), in my opinion, is that it is not predicated on the basis of an application for adoption having been made, partly due to the fact that the order for parental responsibility sought is not in favour of a prospective adoptive parent but in favour of the Secretary or principal officer. The absence of a prospective adoptive parent is of course entirely consistent with there being no formal application on foot.

18. [86]

    Sections 84(1) and 84(2) are intended in my view to operate under quite different circumstances and in each case the person in whose favour the order is made is quite different. In the case of s.84(2) while adoption may be in contemplation there is as yet no prospective adoptive parent that has been identified and therefore an application is not possible, or it is for any number of reasons premature.

19. [87]

    Section 84(4) cannot be a reference to an application under s.84(2) as the Court is not empowered for obvious reasons to make an order for adoption in favour of the Secretary. It could only be a reference to s.84(1). The word “child” is simply the object of the parental responsibility order sought in whatever circumstances, and the “person” in s.84(4) in my view must be the person, namely the “prospective adoptive parent”. There would not one would expect be any doubt that a parental responsibility order would without more be made in favour of the Secretary but it would also be the case that the Court would need to be satisfied that the person put forward as a proposed adoptive parent be a person who pursuant to the Act is eligible to be a person in whose favour an order for adoption “could” be made.

20. [88]

    It seems to me that a reading of the Act in the manner set out above is in keeping with the objects of the Act but also the clear meaning of the words of the various sub provisions of s.84.

21. [89]

    Insofar as there is any arguable ambiguity in the provisions, and here this has arguably emerged given the differing treatment of the meaning of the section by Austin, Brereton and Kunc JJ in their various judgments and Bryson and Williams JJ in theirs, I would look to extrinsic material to assist the question of construction (s.34 Interpretation Act).

22. [90]

    The legislative history of the Act, particularly the addition of s.84(2)’s equivalent in its previous iteration (s.41(1A) of the Adoption of Children Act), may be called into aid to resolve this ambiguity. The second reading speech reveals that the section was introduced for situations “otherwise than on application for an order for the adoption of the child”. This supports the reading of the provision that I have outlined, namely that ss.84(1) and 84(2) are directed to entirely different situations, but both in the best interests of the child concerned.

23. [91]

    In summary I consider that the better view of the section is that it is intended to cover quite different situations but each where it is in the best interests of the child that a parental responsibility order should be made either in favour of a prospective adoptive parent or if none has been identified, but adoption is in contemplation by the Secretary and that the interests of that child is advanced by the making of an interim order.

24. [92]

    Finally, there is no doubt that if I were to have found that s.84(2) did not permit interim orders to be made in each of the cases I would nonetheless have made orders pursuant to the parens patriae jurisdiction.