Adoption of A

1. [1]

   A child, who I will call “A”, was born in June 2021.

2. [2]

   The day after A’s birth, Ms Ruth Wienburg, a Senior Practitioner employed in the Anglicare Sydney Adoption and Guardianship Team, attended Blacktown Hospital to discuss the potential voluntary placement of A for adoption with the Mother and the Father. At that time, the Mother decided to take A home and care for her.

3. [3]

   Several days later, the Mother approached Anglicare with a view to placing A for adoption.

4. [4]

   On 28 June 2021, the Mother voluntarily placed A in pre-adoptive care with authorised Anglicare carers.

5. [5]

   A is currently placed with short term Anglicare authorised carers. A has had a total of five placements during her short life.

6. [6]

   On 9 December 2021, the Mother signed an instrument of consent to A’s adoption. The Mother has not revoked her consent to the adoption.

7. [7]

   On 14 December 2021, this Court ordered, pursuant to s 84(2) of the Adoption Act 2000 (NSW), that parental responsibility for A be granted to the Principal Officer of Anglicare for 12 months from the date of the order.

8. [8]

   Since 1 March 2022, Mr and Mrs P (the “Proposed Adoptive Parents”) have been identified by Anglicare as suitable persons with whom to place A, with a view to adoption.

9. [9]

   Officers of Anglicare have sought to engage with the Father concerning the possibility of the adoption of A. At one point, the Father stated that he would like to parent A himself.

10. [10]

    However, on numerous occasions, the Father has failed to engage with Anglicare, including in relation to pre-adoption counselling sessions.

11. [11]

    On a number of occasions, Ms Wienburg has informed the Father that due to his lack of engagement with the adoption process, Anglicare may need to apply for an order under s 67 of the Adoption Act dispensing with his consent to any adoption. In a response to one of these attempts, the Father discussed with Ms Wienburg the difficulties that he thought he would have in caring for A. The Father also referred to a current Apprehended Violence Order against him.

12. [12]

    Now, by Notice of Motion filed on 4 April 2022, the Principal Officer of Anglicare seeks a preliminary hearing pursuant to s 80 of the Adoption Act and the following orders and notations:

Should a dispense consent order be made at this stage?

1. [13]

   Section 70(1) of the Adoption Act provides that a consent dispense order may be made before or in conjunction with the making of an adoption application. [1]

2. [14]

   The Court’s power to make a consent dispense order prior to the making of an adoption application has existed since 1965 when the predecessor of the Adoption Act, the Adoption of Children Act 1965 (NSW), was enacted. [2]

3. [15]

   An order that a parent’s consent be dispensed with prior to the making of an adoption application may be appropriate if the making of such an order would or might:

4. [16]

   The overriding question is, of course, whether the making of a consent dispense order prior to the making of an adoption application would promote the best interests of the child, this being the “paramount consideration”. [6] This will be a fact specific inquiry in each case.

5. [17]

   In considering the question, regard must also be had to the policy of the Adoption Act that respect must be shown to the rights of birth parents, including by obtaining their consent to any adoption.

6. [18]

   A reason not to make a consent dispense order prior to the making of an adoption application may be if there is no evidence that the making of such an order will have any bearing on the relevant agency’s ability to find suitable proposed adoptive parents for the child. [7]

7. [19]

   In this case, there is no suggestion, in the evidence before me, that the making of a consent dispense order now would have any effect on the placement of A with the Proposed Adoptive Parents.

8. [20]

   Thus, on 28 March 2022, the Proposed Adoptive Parents wrote to Ms Carol O’Brien, a Senior Practitioner in the Adoption and Guardianship team at Anglicare Sydney:

9. [21]

   The generous sentiments thus expressed by the Proposed Adoptive Parents bespeak an unconditional commitment on their part to A’s placement with them and, in due course, their adoption of A.

10. [22]

    It is obviously important, as Ms O’Brien has stated in her affidavit, that A forms a primary attachment with the Proposed Adoptive Parents “at the earliest point in time possible while her foundational neurological pathways are being laid down”.

11. [23]

    But, on the evidence before me, there is no reason why that should not happen forthwith.

12. [24]

    It is true that the Father has expressed ambivalent views about his support for the adoption of A.

13. [25]

    Thus, for example:

14. [26]

    As was submitted on behalf of the Principal Officer, if the Father’s consent is not dispensed with, “it leaves open the possibility that the Father will change his mind at some stage prior to the adoption application being made”.

15. [27]

    That appears to me to be most unlikely.

16. [28]

    In any event, there is no evidence to suggest that such a possibility is an impediment to A being placed, forthwith, with the Proposed Adoptive Parents.

17. [29]

    For those reasons, I do not see a basis upon which I should, at the moment, make an order under s 67 of the Adoption Act in relation to dispensing with the Father’s consent.

18. [30]

    If circumstances change, a further application can be made on short notice and will be dealt with promptly.

Have reasonable inquiries been made under s 34 of the Adoption Act?

1. [31]

   Section 34 of the Adoption Act provides that:

2. [32]

   The terms of s 34(1) make clear that the time at which reasonable inquiries must be made as to whether a child is an Aboriginal child is prior to the making of an adoption application; hence the section refers to reasonable inquiries being made as to whether a child is “to be placed” for adoption.

3. [33]

   On behalf of Anglicare, the Crown Solicitor’s Office has engaged Mr Timothy Dauth, a Research Officer at the Crown Solicitor’s Office with qualifications in anthropology, to research the family history and ancestry of A.

4. [34]

   The basis on which it is suggested that A might be an Aboriginal child is the fact that the Father identifies as an Aboriginal person by reason of what he understands to be his father’s (that is, A’s grandfather’s) Aboriginal heritage.

5. [35]

   Mr Dauth has made a lengthy and comprehensive report dealing with his inquiries and has concluded:

6. [36]

   Based on Mr Dauth’s comprehensive report, I am satisfied that the Principal Officer has made reasonable inquiries, for the purposes of s 34 of the Adoption Act, as to whether A is an Aboriginal child.

7. [37]

   In any event, as the notation proposed by the Principal Officer reveals, any adoption of A by the Proposed Adoptive Parents will be made on the basis of a cultural plan prepared in recognition of “the paternal family’s belief that [A] is a child of Aboriginal Descent”.

8. [38]

   Further, it is clear that the Proposed Adoptive Parents are committed to fostering such Aboriginal heritage as A may be shown to have.

9. [39]

   Thus, Ms O’Brien said, following a meeting with the Proposed Adoptive Parents on 28 March 2022:

10. [40]

    In those circumstances I find, for the purposes of s 34 of the Adoption Act, that the Principal Officer of Anglicare has made reasonable inquiries as to whether A is an Aboriginal child.