Re Liam

[2009] NSWSC 643

CITATION:	Re Liam [2009] NSWSC 643
HEARING DATE(S):	24 June 2009
JUDGMENT DATE :	24 June 2009
JURISDICTION:	Equity
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	24 June 2009
DECISION:	1. Direct that the child be given the pseudonym Liam. 2. Order that until further order Liam be made a ward of the court. 3. Order that for a period of twelve months or earlier further order, parental responsibility for Liam be delegated to the Director-General of the Department of Community Services. 4. Grant liberty to any affected person to vary, discharge or extend these orders on reasonable notice. 5. Direct that the Director-General serve a copy of these orders on Liam's parents. Service may be effected by post.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - adoption – Application under s 84(2) of the Adoption Act 2000 for interim order placing child under parental responsibility of Director-General for 12 months – whether jurisdiction to make order sought – order made in exercise of parens patriae jurisdiction – interim order that child be made a ward of the court
LEGISLATION CITED:	Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)
CATEGORY:	Procedural and other rulings
CASES CITED:	Application by Director-General, Department of Community Services, Re; L (a child) [2008] NSWSC 235; (2008) 71 NSWLR 343 Director-General, Department of Community Services, Re; Jules [2008] NSWSC 1193; (2008) 40 Fam LR 122
PARTIES:	Re Liam
FILE NUMBER(S):	SC A97/09
COUNSEL:	Director-General: P Sessions (solicitor)

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

WHITE J

Wednesday, 24 June 2009

A97/09 Re Liam

JUDGMENT

1 HIS HONOUR: This is an application brought pursuant to s 84(2) of the Adoption Act 2000 (NSW) for an interim order placing a child, who has been given the pseudonym Liam, under the parental responsibility of the Director-General for a period of 12 months with liberty to apply for a further order. Both Liam’s parents have informally expressed their wish for Liam to be adopted, but no consents to his adoption have yet been given in accordance with the procedures in Chapter 4. For the purposes of the Adoption Act, the parents' informal consent is not yet effective.

2 Section 84(2) provides:

“ (2) On application to the Court by the Director-General or a principal officer, the Court may make an interim order for parental responsibility for the child in favour of the Director-General or principal officer. ”

3 The question in terms of s 84(2) is whether Liam is within the expression "the child".

4 Subsection 84(1) provides:

“ 84 Making of interim orders

(1) The Court may postpone the determination of any application to the Court for an order for the adoption of a child and make an interim order for parental responsibility for the child in favour of the prospective adoptive parent or parents. ”

5 In Application by Director-General, Department of Community Services, Re; L (a child) [2008] NSWSC 235; (2008) 71 NSWLR 343 Austin J said (at [28]) that under subs 84(1):

" ... the Court is empowered to make an interim order for parental responsibility in favour of the prospective adoptive parents even before they have made their application for adoption, so long as an adoption application is sufficiently in contemplation that they can properly be described as the prospective adoptive parents. When, therefore, s 84(2) refers to ‘the’ child, it identifies, by reference back to subs (1), the child who is either the subject of an existing application for an adoption order or is the subject of a contemplated application for such an order. ”

6 In the present case some application for an adoption order is contemplated, but no specific application is contemplated. It may be that no application is made because the parents might not consent, and no order might be made dispensing with their consent. No individuals have been identified as prospective adoptive parents. I doubt whether s 84(2) confers the jurisdiction to make the orders sought in the present circumstances.

7 However, there is clear evidence that it is necessary in the best interests of Liam that he remain under the parental responsibility of the Director-General. At present the Director-General has the care and responsibility for Liam pursuant to temporary care arrangements made under s 151 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Those arrangements expire today. It is clear that the parents are not in a position to care for Liam at present and some order is necessary for his welfare. The parens patriae jurisdiction extends as far as is necessary for the protection and education of children (see generally Director-General, Department of Community Services, Re; Jules [2008] NSWSC 1193; (2008) 40 Fam LR 122) and I propose to make orders substantially as sought, in the exercise of that jurisdiction.

8 For the reasons given by Brereton J in Re Jules, it is desirable to make an interim order that the child be made a ward of the court. That order will be expressed to be made until further order. At an appropriate time, and at least by the time any adoption order is made, it will be appropriate for that order to be discharged. Liam is presently in the care of foster parents and I understand that situation will continue until adoption proceedings are brought. It is necessary for the order presently sought to be made for that to be done.

9 The order sought in the summons is that the Director-General have parental responsibility for Liam for 12 months. That period appears to have been specified with reference to s 85 of the Act. Although I will not be exercising the jurisdiction under s 84, the period of the order sought seems to be appropriate. In any event, there will be liberty to apply for the discharge or variation of the order. If necessary, that liberty can be exercised for its extension.

10 I also listed the matter today to hear submissions as to whether the orders sought in the summons should be made ex parte, or whether the child's parents should be served with the application. Affidavits have been read which make it clear that the child's parents know of the present application and consent to the orders sought.

11 For these reasons I make the following further orders:

2. That until further order Liam be made a ward of the court.
3. That for a period of twelve months or earlier further order, parental responsibility for Liam be delegated to the Director-General of the Department of Community Services.
4. Grant liberty to any affected person to vary, discharge or extend these orders on reasonable notice.
5. Direct that the Director-General serve a copy of these orders on Liam's parents. Service may be effected by post.

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