Secretary, New South Wales Department of Communities and Justice; Re “K” and “M” (No 2)

On 3 September 2021, Sackar J made orders, purportedly pursuant to s 84(2) of the Adoption Act 2000 (NSW) (“the Act”), that parental responsibility for two children, to whom I will refer as K and M, be delegated to the Secretary, New South Wales Department of Communities and Justice for 12 months from 3 September 2021.

His Honour gave reasons for his judgment on 27 October 2021. [1]

As his Honour recorded, both K and M have been placed with their proposed adoptive parents. [2]

The Secretary anticipates that applications for the adoption of both children will be made in the reasonably near future. However, no application for adoption has yet been made.

On 30 August 2022, I heard applications by the Secretary for orders extending the order made by Sackar J under s 84(2) of the Act for a further 12 months, absent which parental care would have reverted to the birth parents in the case of K, and the birth mother in the case of M (M’s birth father not being known). The evidence established that it would not be in the childrens’ interests for this to happen.

I concluded that, as no adoption application is on foot, I did not have power under s 84(2) to make an interim order for parental responsibility in favour of the Secretary.

I was, however, persuaded that an order should be made to prevent parental responsibility reverting to K’s and M’s parents, and in those circumstances, exercising the parens patriae jurisdiction, made orders that K and M be made wards of the Court and that, for 12 months, or until further order, parental responsibility for the children be delegated to the Secretary.

These are my reasons for concluding that I did not have power under s 84(2) of the Act to make an interim order for parental responsibility in favour of the Secretary.

Section 84 of the Act provides:

There is a division of opinion amongst judges of this Court as to whether the Court has the power to make an order under s 84(2) prior to the making of an application for the adoption of the child in question.

That division of opinion is detailed in the comprehensive analysis of Sackar J in the recent decision to which I have referred at [2] above. [3]

The differing views are expressed in the decisions of:

In reaching the former view, their Honours concluded that the Court has the power to make an interim order for parental responsibility under s 84(2) in circumstances where there is no formal adoption application provided that an adoption application is sufficiently “in contemplation”. [9]

Williams J has expressed the different view that the operation of s 84(2) is limited to circumstances where a formal application for adoption has been made. [10]

Section 84(1) provides that the Court “may postpone the determination of any application to the Court” for the adoption of “a” child and make an interim order for parental responsibility of “the” child in favour of the “prospective adoptive parent or parents”. “The” child second referred to must, as a matter of language, be the same child as is first referred to as “a” child.

Section 84(2) provides that on application by the Secretary or principal officer, the Court may make such an interim order in favour of that person for “the” child.

Both Austin J [11] and Brereton J [12] accepted that “the” child referred to in s 84(2) must be the same child as is referred to in s 84(1). Sackar J appears not to have explicitly addressed this question. I agree that, as a matter of language, this must be so. Williams J came to the same conclusion. [13]

I agree with Williams J that it must necessarily follow that the Court’s power to make an order under s 84(2) is limited to “the child” referred to in s 84(1); that is “a” child in respect of whom the Court could “postpone the determination of any application” for the adoption. I also agree with Williams J that the Court could not “postpone” the determination of an adoption application in relation to such a child under s 84(1), unless there was an adoption application on foot. [14]

Austin J found that the word “any” in s 84(1) signifies that there is no assumption that an application for an adoption order would already be in existence. [15] As his Honour concluded that the Court had power under s 84(2) to make an interim order if an adoption application was in contemplation, [16] his Honour must have construed s 84(1) as if it referred to “any contemplated” application for adoption of the child. I would respectfully offer the observation that I do not see how s 84(1) could be so construed. Section 84(1) refers to “any” application “to the Court”. That must be an application actually made “to the Court”.

Brereton J referred to the “intersection” between s 84(2) and ss 75(1) and 75(4)(b) of the Act which provide:

His Honour observed that those provisions envisaged that “parental responsibility may be allocated to the Secretary under an interim order, notwithstanding that consent has not been given nor dispensed with” as contemplated by s 75(1) [17] and that his Honour’s preferred construction of s 84(2) “sits comfortably with the function of an interim order under s 75(1) and (4).” [18] I see the force of that observation, but cannot see how it can be reconciled with the correspondence, that his Honour recognised, between “the” child referred to in s 84(2) and the child (“a child”) referred to in s 84(1).

I also agree with the conclusion expressed by Williams J [19] that “the child” in s 84(2) cannot be read as a reference to “the child” the subject of the Secretary’s application under s 84(2) itself. As her Honour stated, that is a circular reading of the text of s 84(2) and, if correct, would have the unlikely consequence that the Court would have jurisdiction to entertain an application by the Secretary to make an interim order for parental responsibility of the child whether or not an adoption application was on foot, and even if none were contemplated. [20]

Brereton J focused on the difficulty of reading the subsections of s 84 as interdependent in light of s 84(4) which his Honour stated “could not conceivably be intended to apply to an interim order under subsection (2)”. [21] Similarly, Austin J stated that “s 84(4) cannot have been intended to apply in the case of a parental responsibility order made in favour of the Director-General under s 84(2), because it is nonsensical to inquire whether the Court could lawfully make an adoption order in favour of the holder of the statutory office”. [22]

Sackar J expressed a similar view, stating that the application of s 84(4) to s 84(1), and its apparent incompatibility with s 84(2), meant that “[s]ections 84(1) and 84(2) are intended in my view to operate under quite different circumstances”. [23] His Honour further stated that as s 84(2) permits an interim order for parental responsibility in favour of the Secretary and not a prospective adoptive parent, the “absence of a prospective adoptive parent is of course entirely consistent with there being no formal application on foot”. [24]

I agree with their Honours that s 84(4) can only be read as governing s 84(1) and cannot have been intended to apply to s 84(2).

I do not see, however, that this avoids the conclusion that “the child” referred to in s 84(2) is a reference to the child, the subject of an adoption application able to be postponed under s 84(1): that is a pending adoption application.

Nor do I see that the construction that I favour leaves no work for s 84(2) to do. The Secretary or a principal officer may well wish to make an application under s 84(2) where there is a pending adoption application but where, for some reason, an order for interim parental responsibility should not be made in favour of the proposed adoptive parents.

To summarise, I agree with the opinion expressed by Williams J in Re Alice that, absent a pending application for adoption, the Court has no jurisdiction under s 84(2) to make an interim order for parental responsibility for a child in favour of the Secretary.

That is because:

I do not consider that this preferred construction gives rise to a risk of multiple proceedings concerning the parental responsibility for a child in respect of whom an application for an adoption order is contemplated but has not yet been made.

In his Honour’s judgment, Sackar J placed emphasis on the objects and purpose of the Act, stating that it would be “contrary to those objects if too restrictive a view were taken of s 84”. [26]

I acknowledge that the overriding purpose of the Act is to act in the best interests of the child concerned. [27] The Act, however, governs a specific field of care arrangements in respect of children not being cared for by their birth parents. It does not purport to cover the entire field of arrangements, which is also covered, in part, by the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the parens patriae jurisdiction; the latter being a very wide jurisdiction, the foundation of which is the need to act for the protection of those that cannot care for themselves.

I agree with Williams J’s conclusion that, in the context of the Act as a whole:

Sackar J had regard to the legislative history of the Act “insofar as there is any arguable ambiguity in the provisions”. [29]

His Honour referred to the Second Reading Speech [30] to the Adoption of Children (Amendment) Act 1980 (NSW) (“the 1980 Act”) in support of the proposition that s 84(2) operates independently from s 84(1). [31]

Prior to the amendment, s 41(1) of the Adoption of Children Act 1965 (NSW) (“the 1965 Act”) read:

The 1980 Act inserted a new s 41(1A) into the 1965 Act:

In the Second Reading Speech, made on 26 March 1980, the relevant Minister said of this amendment:

His Honour said that “apart from minor changes to the wording … [s 41(1A)] is worded essentially the same as s 84(2) today” [33] and reasoned from that conclusion that:

With the greatest respect to his Honour, I am not able to agree with this conclusion. There is a significant difference between s 41(1A) in the 1965 Act (as inserted by the 1980 Act), which refers to “a” child, and s 84(2) in the Act, which refers to “the” child. The reference in s 41(1A) to “a” child may well lead to a conclusion that an application could have been made under s 41(1A) independently of s 41(1) and whether or not an adoption application of the kind contemplated by s 41(1) was on foot; because the child referred to in each subsection might be different. But the same cannot be said for s 84(2), which speaks of “the” child, this being the same child as is referred to in s 84(1). It is the use of the definite article in s 84(2), in contrast to the indefinite article in s 41(1A) that persuades me that, whatever may have been the purpose of the introduction of s 41(1A) into the 1965 Act, that purpose provides no guide to how s 84(2) should be construed.

By way of contrast, the Explanatory Note accompanying the Adoption Bill 2000 (NSW) stated: [35]

That note suggests that Parliament’s intention was that interim orders could be made under the Act only when the Court “postpone[d] the determination of an application for an adoption order”; that is, when an application for adoption was on foot. That favours the construction of ss 84(1) and (2) that Williams J and I prefer.

It is for these reasons that, on 30 August 2022, I proceeded under the parens patriae jurisdiction, rather than purportedly under s 84(2) of the Act.

The fact that there is a division of opinion in the Court about this matter shows that legislative intervention is desirable.