3.1 This chapter examines certain procedural issues in the administrative and judicial process leading to an adoption, such as the regulation of standards of practice for private adoption agencies, legal responsibility for the child before an adoption order, independent review of adoption placements, independent representation of the child and discharge of adoption orders.
3.2 It also looks at some technical legal issues which do not fall readily within the other chapters, such as State-Federal issues and which court or body should have jurisdiction. The chapter also examines offences under the Adoption Act and appeals from, and review of, decisions.
REGULATION OF STANDARDS OF PRACTICE FOR PRIVATE ADOPTION AGENCIES
3.3 As noted in Chapter 2, one of the fundamental characteristics of the present legislative regime in adoption is the banning of private placements and the control of adoption practice by the Court and authorised adoption agencies.1
3.4 In New South Wales, DOCS is the authority for licensing private adoption agencies, and is itself an adoption agency. Currently in New South Wales, there are three licensed private agencies which provide adoption services: Centacare Catholic Community Services (Adoption Services) (“Centacare”), Anglican Adoption Agency and Barnardos Australia (“Barnardos”).2
3.5 Charitable organisations which intend to conduct negotiations and make arrangements for the adoption of children must first be approved as a private adoption agency by the Director-General of DOCS.3 The Director-General may grant or refuse an application.4 Whilst specific grounds for refusing an application are prescribed, the Director-General also has an unrestricted discretion to refuse an application. The approval of an application is subject to conditions and requirements prescribed in the legislation and imposed by the Director-General.5 Legislative requirements include: providing a copy of the constitution of the charitable organisation with the application for approval as a private adoption agency; providing for appropriate counselling facilities and the supervision of adoptee placements; retaining the advisory services of a panel of professional consultants; and the proposed principal officer meeting the required qualifications for the Principal Officer of the private agency. The approval may be later suspended or revoked by the Director-General.6 Agencies now also provide post-adoption services, in particular those supporting the provision of information and on-going contact between adopted children and their birth parents, and the continuing support given to special needs placements.
3.6 DP 34 did not focus on the regulation of standards of practice for private agencies and submissions did not generally comment on this issue, or criticise its current structure and form. An exception was the Barnardos submission which suggested that all adoption agencies, whether government or private, should be required to meet the same standards with regard to the provision of adoption services. It further supported the accreditation of private agencies and the regular review of licensing arrangements.7
Conclusion
3.7 A “best practice” standard should be met by all agencies, both government and private. By this is meant that agencies should strive for the highest standards of quality in areas such as administrative efficiency, record-keeping, proper application of law and policy, expeditious processing of applications, and fair decision-making.
3.8 Accreditation of private agencies should also be reviewed at regular intervals. A general standard for all licensing arrangements would need to be modified for the particular type of adoption service provided by each organisation. This is highlighted in a 1993 report to the Commission by Ms Anne Roughley. Roughley commented on two issues which focus on a need for greater explicitness in agency licences. One was that confusion can arise as to what an agency licence actually covers, for example, whether the licence is limited to children of certain ages or children with specific needs. The second issue was that, to maintain a high standard of adoption service in non-metropolitan areas, specific standards of service provision for country areas may be required in licences.8
3.9 Taking note of Roughley’s comments, the present system of licensing private agencies is operating satisfactorily. Formal responsibility for the regulation of private adoption agencies under the legislation should remain with the Director-General of DOCS. The Commission supports the continued licensing of private agencies under the regulatory supervision of DOCS to ensure the child’s interests are protected and that the parties to adoption are not exploited. The Commission agrees with the statement in a recent British review of adoption law that:
good practice is more likely to develop and become generalised within a regulated system of agencies with publicly recognised responsibility for arranging adoptions and placing children for adoption.9
RECOMMENDATION 11
The present system of licensing established by s 10 and 11 of the Adoption Act (under which, respectively: a charitable organisation may apply to the Director-General for approval as a private adoption agency; and the Director-General may grant or refuse the application on certain grounds and subject to certain conditions and requirements) should be retained.
3.10 The conditions for obtaining and keeping licences by private agencies should ensure uniformity in the professional standards and qualifications of such organisations. This does not mean that professional judgments made within the agency’s operations cannot be flexible to take into account an individual child’s needs or the circumstances of the types of children for whom they provide a service. Uniform standards should also exist to safeguard generally the children’s welfare, the interests of birth parents, and the integrity of consent, selection and placement procedures and open adoption arrangements. In the delivery of its adoption services, DOCS should adhere to the same standards as those required for the private agencies.
LEGAL RESPONSIBILITY FOR THE CHILD BEFORE AN ADOPTION ORDER IS MADE
Current law and practice
Local adoptions
3.11 At present in local adoptions,10 after all necessary consents have been given (or dispensed with) and until the order for adoption is made, guardianship of the child is transferred to the Director-General of DOCS,11 except in the case of wards12 or adoption by a parent or relative of the child.13 In practice, this means the duties arising from guardianship are delegated to DOCS. Guardianship is usually terminated on the making of the adoption order.14
3.12 The agencies15 oversee the care arrangements of the children for whom they have agreed to make adoption arrangements.16 The average time period involved is 12 months from the placement of the child for adoption (following the end of the revocation period of consent) to the adoption order.17
3.13 The practical result of guardianship being given to the Director-General takes various forms. The Director-General has the legal power to determine, for example, whether the child is restored to the birth parents, or is placed with temporary foster parents,18 or is placed with the proposed adoptive parents.19 The Director-General, as guardian up until the making of the adoption order, can make decisions with respect to any matter considered to be in the child’s best interests. This can include whether there will be contact between the child and the birth family or whether the child can travel outside the State.
3.14 The Adoption Act provides no rules or guidelines as to how the Director-General is to exercise his or her powers of guardianship during this period of time.20 For example, the only legal supervision of the Director-General’s guardianship in this period appears to be a provision that if the Director-General has remained guardian for one year, he or she must make a written report to the Court, which may, if it thinks fit, make orders for the care and control of the child. The Court may, for example, order that the child remain under the Director-General’s guardianship for another year.21
3.15 Several submissions suggested that guardianship, including aspects such as authorising appropriate medical treatment, should be transferred to the Principal Officer of a private agency with responsibility for making arrangements for the adoption of children.22 This is what occurs in some other States.23 However, the Commission is not persuaded that the present arrangements for guardianship should be altered.
Intercountry adoptions
3.16 In the case of intercountry adoptions, pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth) (“the Immigration Act”), the Minister for Immigration becomes the guardian of the child arriving in Australia until the making of the adoption order.24 The functions of guardianship are delegated to the Director-General of DOCS.25 An amendment to the Immigration Act in 1994 provides for States and Territories, rather than the Commonwealth, to legislate for guardianship of children entering Australia for adoption. However, New South Wales has not yet availed itself of this provision, although it is intending to do so in the near future.26
3.17 Regulations to be enacted under the Family Law Act27 are in the process of being drafted in anticipation of Australia ratifying the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (“the Hague Convention”). One of the regulations is likely to provide that an adoption order made in a Contracting State in accordance with the Hague Convention will be recognised and effective in each State and Territory of Australia. This proposed regulation and the Commission’s recommendations are discussed in Chapter 10. If automatic recognition is given to particular adoption orders, guardianship will not vest in the Minister for Immigration in relation to those adoptees upon their arrival in New South Wales.
3.18 DOCS practice requires the child to live with the proposed adopters for 6 months before seeking an adoption order.28 During this time, two or three post-placement interviews take place before DOCS authorises the proposed adopters to finalise the adoption through an order of the Court.
3.19 The provision in local adoptions29 that the Director-General must make a written report to the Court if he or she has remained guardian for more than a year and that the Court may make such orders for the care and control of the child as it thinks fit,30 is not a requirement under the Adoption Act for intercountry adoptions. In this respect, intercountry adoption is less strictly regulated. One submission suggested that the legislative requirement for the Director-General to report to the Court if his or her guardianship exceeds one year would help resolve some intercountry placements where, for various reasons, the adoptive parents are reluctant to seek an adoption or alternative order in New South Wales leaving the children with a welfare status.31
Conclusion
3.20 In all types of adoption, including intercountry, the legislation should set out clearly who has guardianship of the child pending the adoption and require the guardian to report at intervals to the Court. Of course, there would be no New South Wales guardianship of intercountry adoptees whose overseas adoption orders are given automatic recognition in New South Wales.32
INDEPENDENT REVIEW OF ADOPTION PLACEMENTS
Current law and practice
3.21 The Director-General’s guardianship of children pending adoption has practical advantages, as mentioned in DP 34. DOCS can deal swiftly with any matters that arise during this interim period according to their prevailing policies, not only with respect to the child’s placement, but also with respect to any need to arrange medical treatment.
3.22 The existing law gives the Director-General enormous power as guardian, but there is little opportunity for effective review by the Supreme Court. As one submission to IP 933 pointed out, this is because the extensive, but largely unregulated, power of guardianship creates the possibility that the Court will do little more than “rubber stamp” administrative decisions already made.34 For example, under the existing provisions, in a local adoption it would be possible for a child to be placed with proposed adopters immediately after consent has been given, but the adoption application delayed for up to one year without any form of external scrutiny.35 If an application was made towards the end of that period, the child might be so settled that the placement would be difficult to challenge.
Discussion Paper 34
3.23 The Commission proposed in DP 34 that the period between the consent being given (or dispensed with) and the making of the adoption order should be more closely regulated by law; but that the form of regulation should be flexible enough to facilitate the making of sound decisions in the wide variety of situations that adoption can involve.36 It suggested that a two-stage judicial process could achieve the objectives of flexibility and legal regulation. This would involve an early preliminary hearing in all adoptions. A later adoption hearing to grant the adoption order would occur after all necessary arrangements, assessments and probationary periods had been completed.
3.24 The Commission proposed that the Court would continue to be the body exercising the adoption jurisdiction, including any extension of the Court’s role to a preliminary hearing. It also proposed that the judge who dealt with the preliminary hearing should normally also deal with the adoption hearing.37
Submissions and response
3.25 Although the Commission’s proposals38 in DP 34 were generally supported in the submissions, there were reservations as to their practical implementation. Submissions drew attention to the advantages of having a preliminary hearing in the Court early in the adoption process such as an early independent scrutiny of consent taking and of the adoption plans made for the child.39 The underlying objectives of the proposed system and the need for a more regulated structure were widely supported in submissions, regardless of whether an adoption plan is contested.40 In particular, where there is a potential for the child to be moved, an early independent review of the consents and adoption plans before a child becomes too settled in a placement would be in the child’s best interests. In summary, genuine concerns focusing on the long term viability of the adoption placement should be able to be brought forward to a court hearing expeditiously.
3.26 One submission observed that a preliminary hearing would give more specific legal authority and guidance in relation to arrangements leading to adoption.41 Submissions also suggested that legislation should provide a clear definition of the role of an early hearing and a time frame responsive to this.42
3.27 On the other hand, several submissions expressed concern that a preliminary hearing would result in a potential increase in legal costs43 and would contribute to delaying placement.44 One submission by a Supreme Court judge commented:
The court should not impose further steps which would increase the costs of applicants unless it is seen to be for the greater benefit of the children concerned.45
3.28 This submission also observed that nearly all adoption applications are unopposed and that defended matters are rare.46 Nearly all applications for adoption orders are presently heard in the judge’s private chambers without any representation, rather than at a court hearing.47 In the adversarial court system, as there is usually no opposition to an adoption, a judge has no way of testing whether the choice made is the correct one and to some extent must rely on the integrity of the organisation concerned:
In considering what is in the best interests of the child a judge can only rely on the evidence which is filed. If there is only one party before the court then there would have to be a clear inadequacy in that evidence for any doubts to arise ...48
3.29 The submission pointed out that any preliminary hearing in the Supreme Court would have to continue to rely on the evidence of the reports put before the judge and the judgment of those making the applications, as is the case with the present system of one court attendance.49 Arguably, the procedure for two hearings would therefore not produce practical advantages over the present system.
3.30 Another submission by a Supreme Court judge concurred with this view:
Adoption applications take the form of litigation but in substance almost all of them are registrations after successful placements. Only if an application is contentious would a hearing achieve anything which would justify the costs of representation. It is only in rare cases that one hearing is necessary, and the procedure for two hearings would not produce practical advantages.50
3.31 Submissions expressed concern that preliminary hearings could delay children being placed with their prospective parents through protracted court proceedings. Delays in proceedings and the resulting need for several short-term interim carers for the children might be psychologically detrimental to them.51 The Adoption Regulation already requires a private agency to make an application to the Court for an adoption order “with the least possible delay having regard to the circumstances of that placement”.52
3.32 The perceived disadvantages of the proposed two hearing system were, in summary, increased legal costs, the potential for further litigation and court hearing delays. Furthermore, the benefits of a preliminary hearing in relation to the Court’s decision-making process is questionable since the judge would still be relying on the unchallenged evidence filed.
3.33 Many submissions proposed that other courts or tribunals, rather than the Supreme Court, should exercise jurisdiction in adoption.53 The issue of the most appropriate jurisdiction for adoption is discussed later in this chapter.
Conclusion
3.34 In the light of these comments, the Commission supports a discretionary supervision by the Court of individual adoption plans at a preliminary stage. Such a system involves the use of a preliminary hearing, but only in appropriate cases. What form a preliminary hearing should take, what issues might trigger it, and who may request it are considered below.
Preliminary hearing
3.35 Upon an application for a preliminary hearing, the Court would decide whether or not a preliminary hearing would be appropriate. At a preliminary hearing the Court would review individual adoption plans and have the power to make whatever arrangements were appropriate for the case. The preliminary hearing should not be a roving judicial enquiry into a proposed adoption placement. Rather, it should be initiated by the Court for a specific purpose. This purpose would vary in each case. The Commission does not envisage that a preliminary hearing would be used frequently in adoptions.
3.36 The preliminary hearing should be consultative, rather than adversarial.54 It should provide an opportunity for judicial scrutiny of specific issues in a proposed placement if there is a good reason to raise these issues at an earlier stage than at a final hearing.
3.37 At a preliminary hearing the Court might decide to examine certain aspects of a proposed adoption plan where, for example:
- an Aboriginal placement has been requested for an Aboriginal child and the agency has not complied with the request;
- a child has indicated he or she does not want to be placed with the proposed family;
- the continued access of relatives important to an older child has not been provided for;
- no notice of the expiration of the revocation period has been given to the birth parents by the agency;
- the birth parent has not received counselling or is dissatisfied with the counselling received prior to consent being given;
- evidence is potentially inadequate as to the dispensing with the birth father’s consent and there is difficulty in finding the birth father;55 or
- a request is made for the appointment of a guardian ad litem or separate legal representative for the child.
3.38 The preliminary hearing might result in orders giving appropriate security to people having the child’s care, whether they are foster parents or the intending adopters. It might also make orders in relation to the right of certain persons to be served with documents or whether specific persons can be heard in the adoption hearing. Applications to dispense with parental consent could be dealt with in the preliminary hearing. Where the Court is satisfied at the preliminary hearing of all factors in relation to the adoption,56 it could in appropriate cases proceed to a final order.57
3.39 The timing of a preliminary hearing would depend on the circumstances of the proposed adoption. This preliminary hearing could occur at any time between the giving of consent and the making of an adoption order.
3.40 At the adoption hearing, the Court should have available to it the materials filed at the preliminary hearing (if any), together with further information relating to events since that hearing. If practicable, the judge who dealt with the preliminary hearing should also deal with the adoption hearing.
Who could request a preliminary hearing?
3.41 The Court could order a preliminary hearing on its own initiative or at the request of others, such as an agency, the birth parents, the child, the prospective adoptive parents, relatives or friends of the child.
3.42 The Commission considered whether to give certain persons, such as the birth parents or agencies, the right to apply to the Court for a preliminary hearing, while allowing others, such as relatives, friends or children’s advocacy groups, to apply only by leave. It would be simpler and fairer to allow anyone interested in the adoption plan to request a preliminary hearing. All interested parties in the adoption should be notified, in every case, of the preliminary hearing. Indeed, all interested parties should also be notified, in every case, of the final hearing.
INDEPENDENT REPRESENTATION OF THE CHILD
3.43 In recent times, there has been a major trend in law and social policy towards recognising children’s rights - that is, treating children as individuals with distinct interests deserving promotion and protection to the exclusion of other community and family interests.58 Part of this trend is the increased role of child advocacy.59
3.44 At present, different court jurisdictions have different approaches to giving a child a voice in legal proceedings, including the separate party status60 of the child and the appointment of an appropriate person to represent the child in court.
3.45 Whether or not a child is a separate party to proceedings, representation of the child is used in some jurisdictions. Independent representation of the child currently takes three main forms in New South Wales: guardian ad litem; separate legal representative (these first two used, for example, in the Children’s Court); and a separate representative used in proceedings in the Family Court of Australia (“the Family Court”). What form of representation is used, and the roles and functions given to a representative, depend to some extent on the court involved.61 The unifying characteristic of these independent representatives is that they are discretionary court appointments relating to legal proceedings involving a particular child. All are used in judicial proceedings as a way of allowing a court to hear, among other matters, about the views, wishes or best interests of the child.
Current law and practice
3.46 The National Principles in Adoption include a provision that, regardless of age, children to be adopted should have access to independent representation throughout the adoption process.62 It considers that this ensures their wishes are heard, that they understand the implications of adoption and that their rights are protected.63
3.47 An independent representative is not normally used in adoptions in the Supreme Court,64 nor are children separate parties to adoption proceedings, except in rare cases.65 However, the Court does require, as a matter of practice, all children over the age of five to be aware of the adoption proceedings and to express their views (and all children over the age of 12 years must consent to their adoption). These views are conveyed to the Court either through:
- a private social worker’s report or agency report recommending the adoption;
- the consent of the child older than twelve; or
- an affidavit from the child.66
3.48 While the Commission supports this practice, the formal introduction of an independent representative into the adoption process, in accordance with the National Principles in Adoption, has many practical benefits and would meet a criticism commonly expressed in submissions
that the present system appears to be little more than a judicial endorsement of decisions already made by the Department - there is no independent, professional advice to the Court. 67
3.49 The use of an independent representative would also comply with Australia’s international treaty obligations under Article 12 of the United Nations Convention on the Rights of the Child. (“UNCROC”). UNCROC emphasises the importance of procedural fairness, and states that children should have an opportunity to be heard in any judicial and administrative proceedings that concern them, to the extent that they are able to do so, either directly or through a representative.68
3.50 In particular, Article 12 provides:
- a child who is capable of forming his or her own views has the right to express those views freely in all relevant matters;
- a child’s views will be given due weight in accordance with the age and maturity of the child; and
- in order to express his or her views, a child will be given the opportunity to be heard in any judicial and administrative proceedings affecting the child either directly or through a representative or an appropriate body.
Discussion Paper 34
3.51 In DP 34 the Commission invited comments on how to ensure the Court forms an independent view of the child’s best interests, and how children’s views may be heard without imposing unfair responsibilities on them.69 The Commission proposed that children should be represented in the preliminary and adoption hearings. In all cases some person should have the task of talking with children, and reporting to the Court on their perceptions, feelings and wishes.70
Submissions and response
3.52 Submissions overwhelmingly supported a child’s views and wishes being independently placed before the Court.71
3.53 The submissions of the New South Wales Law Society and the New South Wales Bar Association pointed out that while adoption proceedings do not presently have the facility of independent legal representation, children can be separately represented in Family Court proceedings.72 The Bar Association further observed that, without remedy, there appears to be two different standards on separate representation operating in respect of children subject to contested proceedings: one in adoption hearings in the Supreme Court and one in the Family Court.73
3.54 Many submissions suggested a system similar to that in England or in the Children’s Court in New South Wales, where an independent person with social work training is appointed as guardian ad litem to make an independent assessment of the effect an adoption order is likely to have on the welfare of a child and report back to the Court.74 The guardian ad litem should also be required to inform the Court separately of the child’s wishes and feelings.75 A guardian ad litem is not a full guardian (that is, the guardian of the child’s body and estate), but is appointed by a court to assist the child for the purpose of the particular suit. If the recommendation of the guardian ad litem is at variance with the wishes and feelings of the child,76 or the adoption is contested,77 a lawyer should be appointed to represent the child in the adoption proceedings.78
3.55 The National Children’s and Youth Law Centre preferred the dual use of a guardian ad litem and a separate lawyer to that of the separate representative in Family Court proceedings where the two distinct roles exist in the one position. It believed this latter approach can create a potential conflict. This is because the separate representative is retained by the Family Court to advise it on matters relating to the child’s welfare and he or she may therefore recommend a course of action which is contrary to his or her client’s clear wishes.79
3.56 Most submissions emphasised that any independent representative of the child should be highly skilled and trained and that the role should be controlled by professional guidelines and receive adequate funding.80
Conclusion: provision for guardian ad litem and independent legal representative
3.57 The legislation should provide that children may have recourse to independent and impartial representatives during the adoption process. Two forms of representation should be available for use in appropriate cases:
- A guardian ad litem should be appointed in appropriate cases to safeguard the best interests of the child.
- An independent legal representative should be appointed to represent the child in the adoption proceedings in certain circumstances.
3.58 It may be feasible for these roles to be linked administratively to the Office of the Status of Children and Young People, should this be established, or similar statutory body established in the future in New South Wales.81 This would depend on the following purposes and functions of the separate roles of guardian ad litem and independent legal representative being complied with and adequately funded.
Discretionary appointment
3.59 The Court should have the discretion to appoint a guardian ad litem or a legal representative for the child. Either could be appointed by the Court at any time after consent (or from its dispensation) until the adoption order is finalised. Neither a guardian ad litem nor a legal representative for the child would be needed in all adoption placements. They could be utilised where some aspect of the child’s adoption is of concern to the Court, or where the Court requires further information.
3.60 Although the appointment of a legal representative would be used rarely, a child should have access to his or her own lawyer in some circumstances, such as in proceedings dispensing with parental consent, or in contested adoption proceedings, or where the wishes of a child capable of giving instructions clearly conflict with the views of the guardian ad litem as to the best interests of the child. The guardian ad litem could apply to the Court for the appointment of a legal representative.
Role of the guardian ad litem
3.61 The role of a guardian ad litem would be to provide advice and information about the best interests of the child, through an independent investigation, of the effect that an adoption order would be likely to have on the welfare of the child, and to report back to the Court. In so doing, the guardian ad litem would help the Court in considering the more difficult issues in any adoption and in determining the most suitable care arrangements for the child. Although the guardian ad litem would represent the child’s best interests, he or she would also have an obligation to inform the Court of the child’s wishes, particularly where the two differ. The guardian ad litem would also perform those duties he or she considered necessary to complete his or her role, and would be able to attend any proceedings on the child’s behalf.
3.62 The Court could either appoint a guardian ad litem generally, or could give specific directions to the guardian ad litem, tailoring the role to the particular circumstances of the case. It could order that a report be prepared and impose a time frame in which the Court should be provided with the report.
3.63 Funding and independence. It is important that the role of guardian ad litem be independent and unfettered. In making a truly independent contribution to the Court’s decision-making process, the guardian ad litem should not only be, but also be seen to be, separate from the other parties to the process. This would suggest that the role should be independently funded, recruited and managed. Funding would need to be adequate.82
3.64 The guardian ad litem should be sufficiently trained to bring any issues or concerns in relation to an adoption placement to the attention of the Court.83 This suggests a social worker, not necessarily with a background in adoption, but certainly with experience in working with children and an understanding of the law and legal system relating to his or her responsibilities as a guardian ad litem. As presently used in courts, guardians ad litem come from a variety of professional backgrounds, although they usually have social work experience.84
Role of the child’s legal representative
3.65 In court proceedings where both are used, the child’s legal representative serves a separate role from that of guardian ad litem. The child’s legal representative acts as an advocate in proceedings for the child and must follow the child’s instructions; whereas the guardian ad litem is required to report back to the court on the child’s best interests. The submission of the National Children’s and Youth Law Centre believes the following interaction between the two different representatives is the best approach in adoption:
We favour a system based on the English provisions for guardians ad litem in child protection proceedings whereby an independent person with social work training is appointed to make an independent assessment of the affect that an adoption order is likely to have on the welfare of a child. The guardian ad litem should also be required to inform the court quite separately of the wishes and feelings expressed by the child. If the recommendation of the guardian ad litem is at variance with the wishes and feelings of the child a lawyer should be appointed to represent the child in the adoption proceedings and at any hearing.85
3.66 This approach encourages the discretionary appointment of a guardian ad litem in the first instance, while also allowing for separate legal representation in appropriate situations. The Commission prefers this approach to one where the appointment of a guardian ad litem is usually only considered appropriate where the child lacks the necessary age or capacity to give instructions to his or her own lawyer.86
3.67 Separate representatives in the Family Court essentially combine the role of a guardian ad litem and the child’s advocate in one person.87 However, the Commission prefers maintaining distinct and dual roles whereby the guardian ad litem acts in the child’s best interests and the separate legal representative acts on the child’s wishes.
Separate party status of the child in proceedings
3.68 Although children are not presently parties to adoption proceedings, a few submissions considered that older children should have the status of a separate party to adoptions.88 One submission observed that in care applications in the Children’s Court, children of 10 years and older are served with the relevant documents.89
3.69 However, the child need not be a party to the proceedings if the mechanism is in place to appoint a separate legal representative for the child.90
Presence at the proceedings granting the adoption order
3.70 Adoption applications are normally dealt with by a judge in private chambers, without the presence of the child or the adopting family.91 Most adoption applications proceed without a contested hearing by way of various forms, reports and affidavits. The court process is seen as remote and largely invisible for the people most directly affected.92
3.71 Many submissions suggested that the child and the prospective adoptive parents should be allowed to attend the proceedings which grant the adoption order.93 Such attendance provides a family’s “rite of passage”, marking the transfer of family membership and commitment of the people involved. This is of particular importance in the adoption of older children94 but should be available to all children. The Commission supports this approach,95 although it should be a matter for the Court to consider in each case.
RECOMMENDATION 13
The Court should have the power, on the application of any interested person (including the child) or of its own motion, at any time between the giving of consent (or its dispensation) and the making of an adoption order and, in the case of intercountry adoptions, from the time of allocation of the child, to do any one or more of the following:
(a) appoint a preliminary hearing;
(b) give such directions relating to the hearing of an application for adoption as the Court sees fit, including orders as to care and custody of the child and any order that a court has power to make at the final hearing;
(c) determine who should be notified of the preliminary hearing and give such directions as to notification as the Court sees fit;
(d) appoint a guardian ad litem for the child and give such directions relating to the role of the appointment as the Court sees fit;
(e) direct that the child have legal representation;
(f) direct that any person including the child and/or the prospective adoptive parents should or may attend personally before the Court at such time during the hearing of the application for adoption as the Court directs.
CHILD’S VIEWS
3.72 As discussed, there has been a growing recognition of a child’s capacity and rights to participate in the legal processes that involve him or her, and this is reflected in case law96 and recent legislation.97 It is also reflected in UNCROC.98 It raises issues about the child’s ability to express his or her views on the adoption as well as to consent to it. Consent of the child is discussed in Chapter 5.
Current law and practice
3.73 The Adoption Act does not generally empower a child to express a view or preference in relation to an adoption placement. The Adoption Act only refers to the child’s views and wishes in relation to the consent of a child of 12 years and over to the adoption99 and his or her wishes as to name,100 or to the suitability of the proposed adoptive parents in relation to any religious convictions of the child.101 However, in practice, a child over the age of five is required to be aware of the proposed adoption and his or her origins. Furthermore, in practice his or her views on the proposed adoption are considered by the agencies and the Court.
Discussion Paper 34
3.74 The Commission’s provisional view was that the legislation should require that children’s views, perceptions and feelings be ascertained and taken into account, provided that children should not be required to express views if they do not wish to do so.102 Children of an appropriate age and understanding should be able to express wishes as to the choice of adoptive parents.103 There should be appropriate facilities for counselling children.104
Submissions and response
3.75 There was much support in submissions for giving children greater opportunities to participate in the adoption process.
A European woman who adopted an older child whom she had been fostering recently said to us ‘He adopted me: I did not adopt him’. If children are to be given substitute parents it is important to encourage them to feel that they are an important part of the process and the decision.105
3.76 Some submissions also pointed out the potential for children to feel pressured and considered that children should be encouraged, but not required, to express their views.106
3.77 All submissions supported the Commission’s proposal that children should be allowed to express wishes on the choice of adoptive parents.107 This is, in fact, now implemented in practice.108 However, as one submission noted, a child should not be asked to choose an alternative family to his or her birth family, since loyalty to birth family remains high.109
3.78 Submissions also concurred with the Commission’s proposal that there should be appropriate facilities for counselling children. Submissions supported the introduction of a wider scheme of placing the views of children before the Court in situations where no formal consent of the child is required to be taken. The Law Society felt that the key to such a proposal was a greater emphasis on sensitive counselling to ascertain the wishes of the child, to the extent that the child is counselled and represented independently of the other parties.110
Conclusion
3.79 The Commission does not depart from its provisional views, expressed in DP 34 and outlined above, including that the agencies should provide appropriate facilities for counselling children. However, provision of counselling is a matter for agency practice and is not a matter which should be prescribed by legislation.
RECOMMENDATION 14
The Court should be required to ascertain and take into account the child’s views, perceptions and feelings, provided that the child should not be obliged to express views. The views and wishes of the child should be given due weight by the Court in accordance with the child’s age and maturity.
DISCHARGE OF ADOPTION ORDERS
3.80 Section 25(1) of the Adoption Act makes discharge of adoption orders difficult in that only the Director-General or Attorney General can apply to the Court for a discharge.
3.81 Submissions to DP 34 agreed that the law should continue to reinforce the underlying premise that adoption represents a permanent and irrevocable commitment to the child. Where a less permanent relationship is contemplated, other orders or arrangements might be more appropriate than an adoption order.
Conclusion
3.82 Discharge of adoption orders should continue to be rare. The purpose of adoption is to relocate or confirm the child in a permanent family and, broadly speaking, this should be final. As a general rule, family relationships in adoption should be severed only by means available to other families in the community. However, there may be some exceptional circumstances where the discharge of an adoption order is appropriate. The legislation should provide that the Court may require the Director-General to investigate the circumstances of the application and report to the Court.111
3.83 Although discharge of adoption orders should be granted only in exceptional circumstances, the present restrictions should not remain. Any interested person, including the child, should be able to apply for an order discharging the adoption.
DRAFTING OF LEGISLATION
3.84 DP 34 noted that the Adoption Act is drafted in a complex and convoluted way.112 This is principally caused by outdated styles of drafting and the accretion of amendments over the years, rather than the complexity of the subject matter. Some of the drafting also reflects outmoded styles of language. For example, s 50 refers to an offence being committed where a payment or reward is made in relation to “the transfer of the possession or control of a child with a view to the adoption of the child”. Words such as “possession” and “control” describe a child in similar terms to that of a chattel and are inconsistent with modern attitudes to children as individuals with their own rights. The offence could perhaps be more appropriately described as one involving the transfer of legal parental responsibilities in consideration of a payment or reward. In summary, the language needs to be updated and written in “plain English” so that it can be clearly understood by the people it concerns.
3.85 As well, the provisions of the Adoption Information Act 1990 (NSW) should be incorporated into the Adoption Act, so that there is a single piece of legislation relating to adoption. As mentioned in DP 34, the Commission prefers the title “Adoption Act”, both because it is shorter than the existing title, “Adoption of Children Act”, and because, since adoption of adults is provided for, the words “of children” are not strictly correct. This shorter title has been used recently in some Australian jurisdictions.113
OFFENCES
3.86 The Adoption Act includes a set of offences. Some are associated with the regulation of adoption and the banning of privately arranged adoptions. In this category, it is an offence to make payments or private arrangements for adoption, or to advertise for adoption.114 A second group comprises offences designed to protect the adoption process itself. In this second category, it is an offence to impersonate a person whose consent is required,115 make false statements in connection with proposed adoptions,116 use force or duress to influence the parents or guardians in making decisions,117 breach the requirements relating to confidentiality,118 and witness a consent to adoption without taking the required steps to ensure, for example, the person understands the nature of the consent.119
3.87 The third group comprises offences designed to prevent members of the birth family from interfering with the adoption process, or with the adoptive family. These provisions make it an offence for a birth parent to attempt to take the child away from the adopters, or to communicate with the child without the adopters’ consent.120 These offences were introduced as part of the emphasis under the Adoption Act to what is often referred to as the “clean break” between the child and the birth family.121 A related provision, which does not appear to create a criminal offence, is that in certain circumstances unmarried fathers must not do anything inconsistent with the making of an adoption order.122
3.88 The legislation should reproduce the substance of the offences in the first two categories, but not the third, which should be repealed. That is, offences associated with the regulation of adoption and the banning of privately arranged adoptions, or those designed to protect the adoption process itself should be retained.123 However, offences designed to prevent members of the birth family from interfering with the adoption process or the adoptive family should be removed.124
3.89 Submissions generally agreed with this approach. As the New South Wales Committee on Adoption and Permanent Family Care observed, such provisions, which carry criminal sanctions, raise “unnecessary spectres and create unfounded stereotypes about parents”125 and should be removed. Any attempts by birth parents or other birth relatives to contact adopted children could be dealt with adequately under the general law.126
A CLOSED COURT?
3.90 The Adoption Act provides that the Court must be closed to the public when hearing adoption matters.127 Other Australian jurisdictions follow this approach.128 As noted earlier, however, almost all adoptions applications are unchallenged and are dealt with by a judge in private chambers without representatives of the parties attending.129
3.91 In DP 34, the Commission provisionally favoured court proceedings open to the public with certain limitations.130 This was in line with the Family Law Act. However, it could be argued that adoption proceedings are very similar to care applications which take place under the Children (Care and Protection) Act 1987 (NSW), where court proceedings are closed to the general public.131
3.92 Several submissions argued that protecting the rights of the child in terms of his or her long term placement plans and involvement in adoption proceedings would be aided by a closed hearing.132 For the purposes of adoption, the Court should be closed as it is in other children’s matters.133 Furthermore, it was felt that open court proceedings would tend to depersonalise the adoption proceedings.134 These disadvantages were seen to outweigh any advantages an open court would bring to the adoption process:
[T]he adoption process in court is already too impersonal ... The additional effort involved [in an open court] to keep matters confidential and to decide who to exclude from the court would seem to be very cumbersome, to achieve what we can only see as a token justice to those who may feel that an open court would in some way be a reflection of a new openness in adoption.135
Conclusion
3.93 The Commission sees the merit in the arguments raised in submissions for maintaining a closed court. Accordingly, in line with the present law, the Court should continue to close proceedings to all those who are not parties to the proceedings or their representatives, except as it otherwise decides. This would allow the Court to retain a discretion to open the proceedings further to those persons who, in the interests of justice, the Court decides should attend. These could include persons, such as birth parents, friends or relatives, closely involved in the adoption. It could also include the child. Any other person or group who could establish to the satisfaction of the Court that their predominant interest in the matter of the proposed adoption is the best interests of the child should also be able to attend at the Court’s discretion.
3.94 The Court should retain a discretion as to who should or may attend under what circumstances. For example, the Court could direct any persons it allows to attend, including the child, to leave the room if the Court is of the opinion it is not in the child’s best interests for those persons to remain, for example, during the examination of a particular witness. It could exclude any persons from the whole or part of the proceedings where this was considered necessary to prevent the public disclosure of identifying information contrary to the provisions of the Adoption Act.
DISCLOSURE OF CONTENTS OF REPORT
3.95 The Adoption Act prohibits agency reports on the proposed adoption or other care arrangements for the child being made available to anyone, unless the Court otherwise orders.136 This provision should continue. The discretion given to the Court would allow, for example, a guardian ad litem or a child’s legal representative to seek a direction from the Court allowing him or her to examine any report held by an agency which impacts significantly on the child’s welfare.
RULES OF EVIDENCE
3.96 Section 65 of the Adoption Act deals with matters admissible in evidence. It allows the Court to act upon evidence which, in its opinion, may assist it to deal with the matter at hand, whether or not the evidence is in admissible form. This approach means that the Court is not inappropriately constrained in determining what is in a child’s best interests. The section should be retained.
RECOMMENDATION 20
Section 65 of the Adoption Act (which allows the Court to act upon evidence which, in its opinion, may assist it to deal with the matter at hand, whether or not the evidence is in admissible form) should be retained.
STATE-FEDERAL ISSUES
3.97 DP 34 at paragraphs 14.2 to 14.12 explained in more detail the interaction of the State and Federal jurisdictions in adoption matters. In particular, DP 34 noted that the Family Court can exercise its jurisdiction in guardianship, custody and access137 over all children whether or not they have been adopted.138
3.98 This was raised as an area of concern in some submissions. Anecdotal evidence suggests that adoption better safeguards the interests of children and birth parents than other long term care orders (such as guardianship and custody) by requiring adequate and fully informed consents and by the rigorous selection procedures for adoptive parents. There is concern among adoption professionals that orders other than adoption are being used to legitimise informal care arrangements which, in practical effect, amount to “unofficial adoptions.”
3.99 Two State-Federal issues were raised in DP 34: whether the Federal jurisdiction should take over all adoption matters from the States; and whether the technical complexity of certain Federal and State laws impacting on step-parent adoptions is warranted.
Uniform legislative power over adoptions?
3.100 The question whether adoption should be referred to the Commonwealth, or should be transferred to the Commonwealth by constitutional amendment, has been considered from time to time.
3.101 At present, adoption is legislated and administered by the States. Relative uniformity was achieved in adoption laws among the States in the mid-1960’s based on a model adoption Act followed by all Australian jurisdictions. Since this time, however, the differences between the Australian jurisdictions have become much greater as a result of numerous amendments, and in some cases completely new Acts. The question arising from this failure to maintain uniformity among the States is whether or not jurisdiction in adoption should be transferred to the Family Court. The Family Court already has jurisdiction over parental responsibility and the power to make “parenting orders” (formerly orders for guardianship, custody and access).139
3.102 Arguments in favour of a Federal transfer were set out in DP 34 at paragraph 14.9. These include the desirability of lasting uniform adoption laws across Australia, the expertise of the Family Court in family matters, and the reduction in duplication of resources, such as the review and updating of adoption laws. Federal responsibility might also be appropriate in light of the close links between intercountry adoption and immigration issues.
3.103 There seems little reason why the relatively small number of adoptions in Australia could not be successfully dealt with at a Federal level. Furthermore, there is no intrinsic feature of adoption which requires a separate approach from State to State.
Conclusion
3.104 Discussion among the State and Federal Governments with a view to a uniform Australia-wide approach to adoptions and legal consistency in adoption in Australia would be beneficial. Naturally, the more difficult aspects of such an approach would need to be addressed, in particular the relationship between the adoption legislation and the delivery of services in adoption, which is under State administration. However, these problems are not insurmountable. One possibility might be, for example, that licensing of agencies and delivery of adoption services would remain a matter for the State, the main change being the transfer of jurisdiction from the Supreme Court to the Family Court.140
The Family Law Act and step-parent adoptions
3.105 The appropriateness of adoptions in step-parent situations is examined in Chapter 4 of this Report. A subsidiary issue relates to certain provisions of the Family Law Act.
3.106 DP 34 at paragraphs 14.11 to 14.12 outlined how certain provisions of the Family Law Act in relation to step-parent adoption are open to criticism. In short, under these provisions,141 unless the Family Court consents to a step-parent adoption before the adoption order is obtained under State law, the adoption will not have its full effect of transferring parental responsibility from the birth parents to the adoptive parents. A step-parent adoption, when made without the Family Court’s leave, does not succeed in transferring full parental responsibility to the step-parent, although it does have the other effects of adoption.
3.107 The Federal-State cross-vesting legislation142 complicated the issue further, raising the possibility either that the Family Court, having granted leave for the step-parent adoption, might go on to deal with the adoption application; or that the Supreme Court might itself grant the required Federal leave to commence the step-parent adoption application, using jurisdiction cross-vested from the Family Court. In 1992, an amendment to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) appeared to have closed off this latter possibility.143 However, Re: Adoption Application found that special reasons existed to hear the matter in the Supreme Court.144
3.108 Commentators have drawn attention to the complexity of these provisions and the apparent confusion they might cause, and have doubted whether they address the main issue, namely the appropriateness of step-parent adoptions.145 Of those submissions which commented on the issue, most agreed with the Commission’s proposal that the relevant family law provisions should be repealed or rendered inapplicable to New South Wales.
WHICH COURT OR BODY SHOULD HAVE JURISDICTION?
3.109 The Commission canvassed the advantages and disadvantages of a tribunal or a court-based system for adoptions in DP 34 at paragraphs 5.33 to 5.45 and proposed that the adoption jurisdiction should continue to be exercised by the Supreme Court.
Tribunal or court?
3.110 Submissions to DP 34 varied in their opinions as to whether a tribunal or a court should have jurisdiction in adoption.146 Advantages of creating an adoption tribunal were seen to be greater accessibility and cost-effectiveness, with specialist staff and fewer delays.147 Disadvantages were seen to include the cost of establishing a specialist tribunal for the relatively small number of adoption hearings.148
3.111 The main advantage of a tribunal in the determination of adoption cases is its specialist nature. However, the Commission is not aware of any evidence to support the suggestion that a tribunal would be more likely than a court to consider the issues from the perspective of the child. A main concern in submissions favouring a tribunal system was the belief that, under the present system, the child’s viewpoint or an independent assessment of a child’s welfare and needs are not being brought adequately to the decision-maker’s attention.149 If the recommendations on the use of independent representatives for children in adoption cases are followed, these concerns would be mitigated.
3.112 Furthermore, specialist tribunals may be more vulnerable than a court to the criticism that they embrace a particular theory or approach in areas where there are competing theories, and may be subjected to pressure to conform to the wishes of the government of the day.150 Courts, while lacking specific expertise, are characterised by independence and a preoccupation with procedural fairness.151 This is a strong advantage in adoption where the basic legal status of various parties is being examined and orders are being made with far-reaching and largely irrevocable consequences. Finally, it is probably unrealistic to call for the creation of an adoption tribunal because of the costs involved in establishing and administering a new specialist tribunal to deal with a comparatively small number of cases.
Which court?
3.113 There were different views among those submissions favouring a court jurisdiction for adoption as to which would be the appropriate court. Some favoured lower courts, such as the Children’s Court or District Court. Others favoured higher courts, such as the Supreme Court or the Family Court.152 The exercise of the adoption jurisdiction by the Family Court was preferred in several submissions because it was seen as having wide-ranging expertise in children’s matters and possessing independent assessment facilities, such as counselling.153
3.114 The Commission considers that the Family Court is the most appropriate court to exercise jurisdiction in adoption matters. This conclusion is not based on any criticism of the Supreme Court, but is based on the specialist nature of the Family Court. Many of the facilities favoured in this Report already exist in the Family Court, such as staff counsellors, who could provide independent advice on the suitability of adoption plans. It already has a national network of Registries which are accessible throughout Australia.154 It has a Standing Committee for consultation with Aboriginal communities, which the Australian Association of Social Workers believes is well placed to advise the Family Court on appropriate procedures for adoption of Aboriginal children.155 The Family Court is experienced in dealing with family issues, including the legal responsibilities and authority of parents for their children, and examining the short and long-term welfare of children in family environments. The experience of the Family Court in examining access arrangements would serve well in looking at the long-term viability of negotiated adoption agreements. As discussed above, a transfer of jurisdiction would involve issues of Federal/State jurisdiction and the delivery of services in adoption, which is now a State administered service. Obviously, these issues would need to be resolved before any transfer was contemplated.
APPEALS AND REVIEW
Current law and practice
3.115 Decisions which are able to be reviewed or appealed under the adoption legislation presently fall into two categories. These are: selection of adoptive parents; and approvals of private adoption agencies. The legislation provides for review of the former decisions and appeals from the latter.156
Selection of adoptive parents
3.116 If the Director-General of DOCS or the Principal Officer of a private agency:
- declines to approve applicants as suitable to adopt;
- approves an applicant subject to conditions; or
- revokes an approval
- the applicant must be given written reasons for the decision as well as notification of his or her right to a review of the decision.157
3.117 On a request to review any one of the three decisions above made by the Director-General, the Director-General must review the decision (including considering any material submitted by the applicant and obtaining any assistance from adoption/child professionals) and then confirm it or rescind it and approve the applicant.
3.118 If the decision to decline or revoke approval is made by a delegate of the Director-General, then the review must be conducted by another delegate or the Director-General personally.158
3.119 Private agencies must make provision for independent review of those applicants not approved as suitable to adopt.159 For example, one private agency institutes a Review Committee comprising two internal and two external consultants to review an application which has been initially refused. If an applicant is dissatisfied with an initial review by an internal agency panel, another private agency makes provision for an independent review by an external person.
Approvals of private adoption agencies
3.120 Appeals against a decision by the Director-General of DOCS to refuse approval of a private agency, or to revoke or suspend such an approval, can be made to the Community Services Appeals Tribunal.160 Decisions of the Tribunal are binding.161 The Tribunal can make decisions on the merits of the case, that is, substitute its own decision for that of the Director-General.162
3.121 Appeals may also be made to the Supreme Court where the Director-General refuses an application, subjects an approval to conditions or requirements, or revokes or suspends an approval. The Supreme Court reviews the decision to refuse an application and either confirms it or approves the organisation as a private agency subject to any conditions it thinks fit.163
Discussion Paper 34
3.122 DP 34 considered that the proposed system of instituting a preliminary hearing in adoptions would transfer much decision-making power from the agencies to the Court and hence reduce the significance of appeals and review.
In relation to questions that arise between the giving of consent and the final disposition of the case, the individuals involved will be able to have their say, both at the preliminary hearing and at the final hearing. There will be an appeal from the judge to the Court of Appeal, on usual principles. Those principles, very briefly stated, are that the Court of Appeal will set aside an appeal from a judge exercising discretionary powers where there has been some clear error of fact or law; the Court of Appeal does not allow an appeal merely because, had it been hearing the original proceedings, the appeal judges would have preferred a different result.164
Submissions and response
3.123 The appeal and review procedures in adoption were not generally raised as an issue in submissions. However, one area of concern which was raised briefly in both IP 9 and in DP 34 was the possible use of an administrative tribunal to hear appeals from unsuccessful applicants for adoption. Assuming the Community Services Appeals Tribunal would be such a tribunal, the New South Wales Committee on Adoption cautioned:
the major issue for the Community Services Appeals Tribunal is likely to be appeals from applicants against being declared unsuitable adoptive parents - usually for an unknown child. In such situations the appellants are articulate and generally present their desire to be parents in compelling ways. The unknown child is silent and unrepresented. It is the experience of the COA [Committee on Adoption] that in a similar case before the Community Welfare Appeals Tribunal where none of the tribunal members had specific adoption knowledge that the members were confused by the issues of adoption and focussed on the provision of services to the persons before them. What was known about the needs of children to be generally placed within community norms etc was overlooked. Priority was given to the needs of the applicants - not to the needs of the unknown, silent and unrepresented child.165
Conclusion
3.124 The Commission notes that appeals from administrative decisions can cover a wide range of subjects and that other statutory appointed bodies, such as the Community Services Commission,166 are given a wide ambit of power to investigate or make recommendations on bureaucratic services. The Commission also notes the increasing use of tribunals to hear these administrative appeals. For example, the Community Services Commission can investigate a complaint of unreasonable conduct made against an agency in relation to a wide variety of adoption decisions and recommend action on the complaint in a report.167 If the recommended action is not acted upon by the agency, an appeal by the complainant can be made to the Community Services Appeals Tribunal.168
3.125 The Commission is also aware that the present New South Wales Government has determined to establish a general Administrative Appeals Tribunal to examine administrative decisions, as distinct from the present more specialised tribunals, such as the Community Services Appeals Tribunal.169 It is also looking at rationalising the existing tribunals which might become part of the Administrative Appeals Tribunal.170
3.126 In considering appeals and review mechanisms in relation to adoption, the discussion below is consequently confined to the agency’s decisions impacting on the adoption generally, the selection of adoptive parents, placement decisions and the licensing of private agencies.
3.127 The recommendations in this Chapter deal appropriately with decisions made during the adoption process. The introduction of discretionary Supreme Court mechanisms of a preliminary hearing, guardian ad litem and legal representative would provide for review of agency decisions in the context of the individual adoption. Agency decisions which could be effectively examined in a preliminary hearing would include, inter alia, the acceptability of a birth parent or guardian consent or its dispensation, the placement of a child, or the appropriateness of an adoption order for a particular child.
3.128 The present system of review by the agencies was not subject to any significant criticism in submissions to DP 34. The present system of review under the adoption legislation is consistent with the fact that adoption is not a service to adults. Its fundamental purpose is to provide the best possible alternative care for children. For example, it is inappropriate for intending adoptive parents to challenge selection decisions through an external administrative appeals process, such as a tribunal.
3.129 It might be argued that there is an inconsistency in the present legislative system in that DOCS, although it must provide for review, is not specifically required to have independent scrutiny of selection decisions,171 while under the Adoption Regulation the private adoption agencies must make provision for independent review of selection decisions.172 However, the distinction could be justified on the basis that decisions by DOCS are subject to the principle of ministerial responsibility, and are also subject to scrutiny by the Ombudsman. Having regard to this, and to the lack of criticism in the submissions received, the Commission is not persuaded that there is any need to change the present system under the legislation. It may be, however, that the question could be reconsidered in the future in the context of any wider review by the Government of its system of review of administrative decisions.
3.130 Appeal and review procedures should be clearly set out in writing and readily obtainable by interested parties.
3.131 The current arrangements for appeals to an administrative tribunal, presently being the Community Services Appeals Tribunal, of the Director-General’s decisions to license, deregister or impose conditions on a private agency are satisfactory.
3.132 Of the above types of potential appeals on adoption matters, only appeals in regard to the licensing of adoption agencies should be conducted in open hearings.
FOOTNOTES
1. However, this strict system of regulation is tempered in relation to adoptions within families, such as adoptions by step-parents or adoptions by relatives. See further, Chapter 4.
2. A Roughley Identifying Adoption Practice and Problems in Relation to the Local Adoption of Infants Project prepared at the request of the New South Wales Law Reform Commission (September 1993) at 3-4.
3. Adoption of Children Act 1965 (NSW) s 10 and 11.
4. s 11.
5. s 11(3) and 16; Adoption of Children Regulation 1995 (NSW) cl 4, 5 and Schedule 2.
6. Adoption of Children Act 1965 (NSW) s 13.
7. Barnardos Australia Submission (26 July 1994).
8. Roughley Identifying Adoption Practice and Problems in Relation to the Local Adoption of Infants at 4-5.
9. England and Wales - Department of Health and Welsh Office Review of Adoption Law - Report to Ministers of an Interdepartmental Working Group - A Consultation Document (October 1992) at 28.
10. Adoption of Children Act 1965 (NSW) s 34(2C) and (2D): this includes an adoption where the Director-General becomes guardian of an interstate child now present in New South Wales (who is not a ward under the Children (Care and Protection) Act 1987 (NSW)), after accepting guardianship from a similar officer in another State or Territory.
11. s 34(1).
12. s 34(2). Guardianship of wards under the Children (Care and Protection) Act 1987 (NSW) is with the Minister of Community Services: s 90(1). However, functions arising from the guardianship can be delegated by the Minister to the Director-General: s 11.
13. Adoption of Children Act 1965 (NSW) s 27 and 34(2): a consent to adoption by a parent or relative of the child is a specific consent. Guardianship is transferred to the Director-General for a general consent under s 34(1). A general consent is a consent to an adoption by any persons in accordance with New South Wales law: s27(1).
14. Other reasons can exist for the termination of the Director-General’s guardianship: see Adoption of Children Act 1965 (NSW) s 34(5).
15. For the purposes of this Chapter, “agencies” refers to both DOCS and the private adoption agencies unless the context otherwise requires.
16. See Adoption of Children Regulation 1995 (NSW) Schedule 2 para 12 in relation to private adoption agencies. Schedule 2 para 13(2) requires the Principal Officer of a private agency to ensure the placement of a child with proposed adoptive parents is satisfactory before making an application to the Court for an adoption order.
17. Figures provided by the New South Wales Department of Community Services in February 1995 for domestic adoptions in the period from 1990 to 1994 inclusive.
18. Under the Children (Care and Protection) Act 1987 (NSW).
19. In practice, this does not happen.
20. However, a child awaiting adoption, local or intercountry, is a “protected person” under the Children (Care and Protection) Act 1987 (NSW) s 3(1), as defined in para (a1) and (c). Section 91(1) gives the Director-General (as the Minister’s delegate) wide general powers to provide for the child’s accommodation, care and maintenance, and remove the child from one place to another.
21. Adoption of Children Act 1965 (NSW) s 34(3) and (4).
22. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 16; New South Wales Department of Community Services Submission (5 September 1994) at 16 and 19; Anglican Adoption Agency Submission to Issues Paper 9 (2 September 1993) at 4.16.
23. Adoption Act 1993 (ACT) s 36(2); Adoption Act 1984 (Vic) s 46(1).
24. Immigration (Guardianship of Children) Act 1946 (Cth) s 6.
25. Immigration (Guardianship of Children) Act 1946 (Cth) s 5. Except in the case of some foreign adoptions orders which are recognised in New South Wales: Adoption of Children Act 1965 (NSW) s 46.
26. See further, Chapter 10.
27. Family Law (Convention on Protection of Children and Intercountry Adoption) Regulations
28. This requirement was decreased from 12 months in January 1995.
29. Adoption of Children Act 1965 (NSW) s 34(3) and (4).
30. In practice, DOCS brings an application for an adoption order before the Court after six months. On average, an adoption order in local adoptions is made eight to nine months after the child has become available for adoption: Information given to the Commission in conference, 23 September 1996.
31. New South Wales Department of Community Services Submission (5 September, 1994) at 16. However, the implementation of the recommended automatic recognition in New South Wales of adoption orders made in countries which have ratified the Hague Convention or in “designated countries” would mean that such overseas adoptions would not come under this scrutiny: see further, Chapter 10.
32. See further, Chapter 10.
33. New South Wales Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Issues Paper 9, 1993).
34. New South Wales Committee on Adoption Submission to Issues Paper 9 (9 September 1993) at 30.
35. In practice this does not happen; DOCS places the child with temporary foster carers at least until the revocation period expires.
36. NSWLRC DP 34 Chapter 5, Proposal 1.
37. NSWLRC DP 34 Chapter 5, Proposals 5 and 7.
38. See NSWLRC DP 34 Chapter 5, Proposals 2-7.
39. Post Adoption Resource Centre Submission (5 August 1994) at 7.
40. For example, New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 14; Post Adoption Resource Centre Submission (5 August 1994) at 7; Anglican Adoption Agency Submission (26 August 1994) at 5.1; Barnardos Australia Submission (26 July 1994), New South Wales Department of Community Services Submission (5 September 1994) at 17 and 19; Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 16; E Berzins Submission (27 July 1994) at 8; and Australian Society for Intercountry Aid for Children (NSW) Inc Submission (31 August 1994) at 8.
41. Anglican Adoption Agency Submission (26 August 1994) at para 5.1.
42. For example, Anglican Adoption Agency Submission (26 August 1994) at 5.1.
43. Justice B J K Cohen Submission (29 July 1994) at 5-6; Justice J Bryson Submission (3 August 1994); LDS Social Services Australia (Sydney Agency) Submission (5 October 1994) at 6; Post Adoption Resource Centre Submission (5 August 1994) at 7; Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 16; Barnardos Australia Submission (26 July, 1994).
44. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August, 1994) at 16; New South Wales Department of Community Services Submission (5 September 1994) at 19; Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 16; Barnardos Australia Submission (26 July 1994).
45. Justice B J K Cohen Submission (29 July 1994) at 6.
46. Cohen Submission at 1.
47. Cohen Submission at 6.
48. Cohen Submission at 2-3.
49. Cohen Submission at 3.
50. Justice J Bryson Submission (3 August 1994).
51. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 16-17 commented: “Any added delays in relation to the timing of a preliminary hearing is considered detrimental to the infant or young child awaiting adoption. If the delay is too long we could see a situation arising whereby the transfer of care of the child is occurring at a developmental stage which is increasingly disruptive for the infant. Bonding and attachment issues remain a critical focus for Centacare in considering the need for the prevention of undue delays at the Preliminary Hearing stage of the process. It is critical to keep sight of the principle of paramountcy with respect to the child’s needs particularly for the infant and young child in a situation where all consents have been obtained and it could become the fact that the Court process itself is delaying the stability and security of the child. Furthermore undue delays have potentially negative effects on those birth parents that are wanting stability for their infant in as short a practicable time as possible.” New South Wales Department of Community Services Submission (5 September 1994) at 17 also cautioned: “A system designed to protect children’s rights should not impede their right to a secure placement as soon as possible.”
52. Adoption of Children Regulation 1995 (NSW) Schedule 2 para 13(2).
53. For example, Barnardos Australia Submission (26 July 1994); New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 16-17; LDS Social Services Australia (Sydney Agency) Submission (5 October 1994) at 8.
54. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 15.
55. Some submissions suggested that a preliminary hearing could also deal with the actual dispensation of parental consent: Justice B J K Cohen Submission (29 July 1994) at 3: “An early hearing would be useful where a decision is required as to dispensing with consent. Under the present Act a separate application can be made for this purpose, but it could be made more specific that it can be part of the application for adoption.” See also Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 16.
56. For example, that there is no evidence of a dispute in the adoption and that the best interests of the child have been met.
57. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 17; New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 16; Anglican Adoption Agency Submission (26 August 1994) at para 5.1; Barnardos Australia Submission (26 July 1994): “... such situations may arise in the adoption of children by their step-parents or foster parents.”
58. The 1989 United Nations Convention on the Rights of the Child is now the most widely supported of any UN Convention with 172 nations having ratified it as at April 1995: The Australian Youth Foundation Inc and National Children’s and Youth Law Centre Australian Children’s Charter: Draft for Consultation (National Children’s and Youth Law Centre, Sydney, June 1995) at 7. In response to the Convention, the draft Australian Children’s Charter outlines the fundamental rights of children in Australia through a national Charter to recognise and protect them.
59. The development of the role of a separate representative for the child in proceedings in the Family Court of Australia forms part of this trend in child welfare law: see for example, Re K [1994] FLC 92-461; In the Marriage of Bennett (1991) 14 Fam LR 397; Separate Representative v JHE and GAW (1993) 16 Fam LR 485. From 1992-93 to 1994-95, the increase in the total number of approvals by Legal Aid Commissions of separate representatives in Family Court Proceedings was around 280 per cent: D Smith “The Right of the Child to be Heard - The Family Court’s Response”, paper presented at Law Council of Australia, 29th Australian Legal Convention The Competitive Edge - Proceedings (Brisbane, 24-28 September 1995) 293 at 296-297.
A recent enquiry into child advocacy by the Standing Committee on Social Issues of the New South Wales Legislative Council has recommended that a special Office of the Status of Children and Young People should be set up to give young people a voice at the highest level of government. This is to be established as part of the Premier’s Department. It has also recommended the appointment of a National Commissioner for Children to monitor, promote and protect children’s interests: Standing Committee on Social Issues of the New South Wales Legislative Council Inquiry into Children’s Advocacy (September 1996).
60. A separate party in legal proceedings, either alone or through a lawyer, can participate fully in the proceedings. A separate party can be served with documents, call evidence and be heard in the proceedings, examine and cross-examine witnesses, and appeal against any decision of the Court.
61. For example, the Children (Care and Protection) Act 1987 (NSW) provides for a guardian ad litem to serve the best interests of the child during legal proceedings in the Children’s Court: s 66(1), (2). It also provides for the appointment of a legal representative for the child, who serves a separate role from the guardian ad litem, acting as an advocate for the child. The appointment of the guardian ad litem and the legal representative is at the discretion of the Court in each case.
Separate legal representation for a child can be ordered by the Family Court where the Court considers it appropriate in a case, on its own initiative or on the application of any other person: Family Law Act 1975 (Cth) s 68L. The legal representative forms an independent view on the child’s best interests, which may not necessarily reflect the wishes of the child. The representative then prepares and conducts a case for the child in Court including, where appropriate, conveying the child’s wishes. The representative may also participate in negotiations on behalf of the child. The Family Court has held that the representative is entitled to the same rights and is subject to the same obligations as an advocate for a party and accordingly may make an opening address, ask leading questions in cross-examination and indicate at commencement or in final address the orders sought. It should be noted that a child is rarely a party to proceedings under the Family Law Act: In the Marriage of B and R (1995) 19 Fam LR 594.
62. Council of Social Welfare Ministers Draft National Minimum Principles in Adoption, July 1995 para 1(12); National Minimum Principles in Adoption, June 1993 para 1(11).
63. Council of Social Welfare Ministers Draft National Minimum Principles in Adoption, July 1995 para 8(2); National Minimum Principles in Adoption, June 1993 para 8(2).
64. At present in the Supreme Court, the capacity of a child to participate in proceedings is circumscribed by the relevant court rules: Supreme Court Rules 1970 (NSW) Pt 63. A child can participate in proceedings through a “tutor”: Pt 63 r 2, 3. The tutor combines the roles of a next friend and guardian ad litem of the child: Supreme Court Rules 1970 (NSW) Pt 1 r 8(1). G C Lindsay comments that where it is necessary to refer to the office of a tutor, he or she is described as a tutor, unless it is necessary to distinguish between the offices of “next friend” (as tutor of a plaintiff) and “guardian ad litem” (as tutor of a defendant): Guide to the Practice of the Supreme Court of New South Wales (Law Book Company, Sydney, 1989) at 83. The Court may appoint a tutor on the motion of a party to the proceedings or another person: Supreme Court Rules 1970 (NSW) Pt 63 r 7(1). However, a child is not a party to adoption proceedings and so a tutor is not normally used in adoptions.
65. The child can be made a party to the proceedings by order of the Court pursuant to the Supreme Court Rules 1970 (NSW). However, this would be extremely unusual. The child would only be made a party if the proceedings were contested and, in that case, they would be likely to be represented: see the discussion on “tutor” above.
66. New South Wales Department of Community Services Submission (5 September 1994) at 18. It is not uncommon for the Court to ask the child to appear at the proceedings in order to ascertain the child’s views on the adoption.
67. The Australian Association of Social Workers Ltd (NSW Branch Office) Submission (11 August 1994).
68. United Nations Convention on the Rights of the Child Article 12.
69. NSWLRC DP 34 at 87.
70. NSWLRC DP 34 at para 7.82. Compare with the Family Law Act 1975 (Cth) s 62G.
71. For example: Barnardos Australia Submission (26 July 1994); Anglican Adoption Agency Submission (26 August 1994) at para 5.2; The Law Society of New South Wales Submission (24 August, 1994) at 3; Gay and Lesbian Rights Lobby Inc Submission (29 July 1994) at 4; E Berzins Submission (27 July 1994) at 8.
72. The New South Wales Bar Association Submission (16 September 1994) at 1; The Law Society of New South Wales Submission (24 August 1994) at 3.
73. The New South Wales Bar Association Submission (16 September 1994) at 1.
74. National Children’s and Youth Law Centre Submission (29 July 1994) at 8; New South Wales Department of Community Services Submission (5 September 1994) at 18 and 20; LDS Social Services, Australia Sydney Agency Submission (5 October 1994) at 7; Anglican Adoption Agency Submission (26 August 1994) at para 5.2; New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 17.
75. National Children’s and Youth Law Centre Submission (29 July 1994) at 8.
76. National Children’s and Youth Law Centre Submission (29 July 1994) at 8.
77. Anglican Adoption Agency Submission (26 August 1994) at para 5.2.
78. National Children’s and Youth Law Centre indicated that only with this dual mechanism, of guardian ad litem and separate legal representative, can Article 12 of the United Nations Convention on the Rights of the Child be fully effective: Submission (29 July 1994) at 8.
79. National Children’s and Youth Law Centre Submission (29 July 1994) at 8. I Kennedy and L Formica “The Role and Powers of a Separate Representative” in papers delivered at a BLEC Masterclass 1995 Family Law Handbook: Day One (BLEC Books, Melbourne, March 1995) 37 at 41.
80. Barnardos Australia Submission (26 July 1994); New South Wales Department of Community Services Submission (5 September 1994) at 18 and 20; Anglican Adoption Agency Submission (26 August 1994) at para 5.2; A Marshall Submission (1 August 1994) at 3-4; Post Adoption Resource Centre Submission (5 August 1994) at 8.
81. Recommendation of the Standing Committee on Social Issues of the New South Wales Legislative Council Inquiry into Children’s Advocacy (September 1996). This is to be established as part of the Premier’s Department.
82. The Australian Youth Foundation Inc and National Children’s and Youth Law Centre commented on the impact shortages in community resources have on the practical implementation of the UN Convention on the Rights of the Child (including a child’s ability to express his or her views in court): “It is not only laws that are relevant to deciding if Australia is meeting its obligations under the Convention. Policy and practice in all areas relating to children need to be reviewed. ‘It is arguable that the Convention is breached in Australia most frequently by failure to provide sufficient resources to fully implement its provisions to an acceptable standard’ (Hogan, Munro, Cronin and Young, 1989 p 10)”: Australian Children’s Charter: Draft for Consultation at 7. The New South Wales Department of Community Services cautioned that based on the Children’s Court experience of guardians ad litem, funding and responsibility for the scheme in adoptions would need to resolved: Submission (5 September 1994) at 18.
83 For example, in the Family Court jurisdiction, the Law Council of Australia, through its Family Law Section, has set up a committee which is developing a national training programme for separate representatives. Legal Aid Commissions and the Family Court are represented on this Committee: D Smith “The Right of the Child to be Heard - The Family Court’s Response”, paper presented at the Law Council of Australia, 29th Australian Legal Convention The Competitive Edge - Proceedings (Brisbane, 24-28 September 1995) 293 at 297.
84. Anglican Adoption Agency Submission (26 August 1994) at para 5.2.
85. National Children’s and Youth Law Centre Submission (29 July 1994) at 8. See further on the English approach: P Munro and L Forrester The Guardian Ad Litem (2nd ed, Jordan Publishing Limited, Bristol, 1995) Chapter 4.
86. This latter approach has been taken in two Supreme Court cases De Groot v De Groot (1989) 13 Fam LR 292 and Cirkov v Cirkov (Supreme Court, NSW, Smart J, 30 July 1990, CommD 11120/90, unreported) examining the interaction between the guardian ad litem and the child’s legal representative in the New South Wales Children’s Court jurisdiction. See further on this, G Lane “The Children’s Representative” CLE Seminar Papers Children’s Court Practice (Sydney, April 1995) 65 at 71.
The Commission does not intend the role of guardian ad litem in adoption proceedings to follow the more restrictive interpretation given to the appointment of a guardian ad litem in the Children’s Court by the New South Wales Supreme Court in the above two cases. In both cases, being challenges by the child to the magistrate’s decision to appoint a guardian ad litem, the Supreme Court believed a guardian ad litem in the Children’s Court should usually only be appointed where the child lacks the capacity to give instructions to a solicitor.
87. Several family law cases have suggested a range of appropriate situations when a separate representative should be appointed in proceedings (see Re K [1994] FLC 92-461) and have commented on the role and functions of the separate representative (see In the Marriage of Waghorne and Dempster [1979] FLC 90-700; In the Marriage of Bennett (1991) 14 Fam LR 397; Separate Representative v JHE and GAW (1993) 16 Fam LR 485; and In the matter of P and P [1995] FLC 92-615).
However, when the best interests of the child conflict with the child’s own views, the separate representative argues for the predominance of the best interests of the child. This conflicting function of the separate representative has been criticised for leaving the child without an effective advocate for his or her own views. For example, Lane comments: “There is ... a growing body of opinion which casts doubt on the propriety of an advocate being put in a position of an assessor of the child’s welfare [in the Family Court]. Whence comes the expertise to assume this function? It is suggested that the child’s separate representative must suffer from some sort of role confusion when expected to wear these two hats of welfare and wishes”: Lane “The Children’s Representative” at 73.
It would be beneficial to watch developments in the role of the separate representative in the Family Court. For example in the Family Court jurisdiction, a Chief Justice’s Working Party was established to consider guidelines for the respective roles of the separate representative and court counsellor working together where children are separately represented in the Family Court. The Working Party has issued its final report Representing the Child’s Interests in the Family Court of Australia: Report to the Chief Justice of the Family Court of Australia (September 1996).
88. Barnardos Australia Submission (26 July 1994); New South Wales Department of Community Services Submission (5 September 1994) at 19; New South Wales Committee on Adoption Submission to Issues Paper 9 (9 September 1993) at 40.
89. See Children (Care and Protection) Act 1987 (NSW) s 58.
90. The separate legal representative could do all things a lawyer could do for a party to the proceedings, such as serve documents, call witnesses, cross-examine and appeal. This would be similar to the powers of the separate representative in the Family Court as decided in case law. See Kennedy and Formica “The Role and Powers of a Separate Representative” at 41-44.
91. Barnardos Australia Submission (26 July 1994); Australian Association of Social Workers Ltd (NSW Branch Office) Submission (11 August, 1994); R Tupman “Family Law Applications Involving Children Outside the Family Court’s Jurisdiction” CLE Seminar Papers Children’s Legal Services (Sydney, November 1994) at 27.
92. Australian Association of Social Workers Ltd (NSW Branch Office) Submission (11 August 1994).
93. New South Wales Department of Community Services Submission (5 September 1994) at 19; Peterie Submission (14 July 1994) at 5.
94. Barnardos Australia Submission (26 July 1994).
95. In South Australia the child and the persons seeking to adopt must attend personally before the Court, as the Court requires, during the hearing of an application for an adoption order: Adoption Regulations 1989 (SA) cl 30(2).
96. Secretary, Department of Health and Community Services v JWB (Marion’s Case) (1992) 175 CLR 218.
97. See, for example: Family Law Act 1975 (Cth) s 68F(2)(a), 68L and 69C(2)(b); Children (Care and Protection) Act 1987 (NSW) s 61A, 58(1)(a), 62B, 65(1)(a), 66 and 69; Adoption Act 1984 (Vic) s 14.
98. Article 12.
99. By those applicants nominated in the consent form: Adoption of Children Act 1965 (NSW) s 26(4A) and 33 and Adoption of Children Regulation 1995 (NSW) cl 28 and Schedule 1, Form 5.
100. A child over 12 years of age must consent to a change in his or her first names: Adoption of Children Act 1965 (NSW) s 38(2A) and Adoption of Children Regulation 1995 (NSW) cl 28 and Schedule 1, Form 5 which requires the child to express his or her wishes as to first name and surname.
101. s 21(1)(c)(i)(b).
102. NSWLRC DP 34 at para 7.81.
103. See NSWLRC DP 34 Chapter 6, Proposal 3.
104. NSWLRC DP 34 at para 7.82.
105. National Children’s and Youth Law Centre Submission (29 July 1994) at 8.
106. National Children’s and Youth Law Centre Submission (29 July 1994) at 9.
107. For example, New South Wales Department of Community Services Submission (5 September 1994) at 18 and 27; Anglican Adoption Agency Submission (26 August 1994) at para 7.2; NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 18.
108. Barnardos Australia Submission (26 July 1994): “Most children in Barnardos’ program have input into the type of family with whom they wish to live, and are involved in the recruitment of families and are fully consulted during the process of introduction to a new family and prior to adoption.”
109. Anglican Adoption Agency Submission (26 August 1994) at para 6.4.
110. The Law Society of New South Wales Submission (24 August 1994) at 11. However, the child should not be obliged to express a choice in any one direction.
111. See, for example: Adoption Act 1993 (ACT) s 26(4); Adoption Act 1984 (Vic) s 19(3), (4) and (5).
112. NSWLRC DP 34 at para 14.26-14.28.
113. For example: South Australia; Victoria; Australian Capital Territory; Western Australia; and Tasmania.
114. Adoption of Children Act 1965 (NSW) s 50-52.
115. s 55.
116. s 54.
117. s 57.
118. s 53.
119. s 58.
120. s 49 and 49A. Section 49A was inserted by a provision in the Adoption of Children (Amendment) Act 1980 (NSW) which, however, only came into force in 1987.
121. New South Wales Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, 1992) at para 2.7.
122. Adoption of Children Act 1965 (NSW) s 31D.
123. For example, s 50-58.
124. For example, s 49 and 49A.
125. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August, 1994) at 45.
126. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August, 1994) at 6.
127. Adoption of Children Act 1965 (NSW) s 64.
128. For example: Adoption Act 1993 (ACT) s 112; Adoption of Children Act 1994 (NT) s 79; Adoption Act 1994 (WA) s 133; and Adoption Act 1984 (Vic) s 107.
129. Adoption of Children Act 1965 (NSW) s 64; Supreme Court Rules (NSW) Pt 73 r 11.
130. See NSWLRC DP 34 at para 14.34.
131. Children (Care and Protection) Act 1987 (NSW) s 67.
132. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 46; Anglican Adoption Agency Submission (26 August 1994) at 14.1; New South Wales Department of Community Services Submission (5 September 1994) at 59.
133. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 46; Anglican Adoption Agency Submission (26 August 1994) at para 14.1.
134. LDS Social Services Australia (Sydney Agency) Submission (5 October 1994) at 20.
135. LDS Social Services Australia (Sydney Agency) Submission (5 October 1994) at 20.
136. Adoption of Children Act 1965 (NSW) s 66.
137. Under amendments to the Family Law Act 1975 (Cth) in the Family Law Reform Act 1995 (Cth), the concepts of “guardianship”, “custody” and “access” have been replaced by “parental responsibility” and “parenting orders”.
138. NSWLRC DP 34 at para 14.8.
139. See Family Law Act 1975 (Cth) s 61B, 61C, 61D, 64B and 65D.
140. The Law Society of New South Wales commented: “The giving to the Family Court of sole jurisdiction in adoption matters would not effect the provision of services by the Department of Community Services which could still continue to be the responsibility of the State”: Submission (24 August 1994) at 3.
141. Family Law Act 1975 (Cth) s 60G, 60F(4), 61E and 65J.
142. Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth); Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). This legislation gives the Supreme Court power to exercise jurisdiction of the Family Court, and gives the Family Court power to exercise jurisdiction of the Supreme Court. It also contains provisions allowing the two courts to transfer matters to each other, so that they can ensure that each would normally continue to exercise jurisdiction in the ordinary way. In general, adoption matters continue to be heard by the Supreme Court and “parental responsibility” matters continue to be heard by the Family Court. This cross-vesting legislation has proved particularly effective where the proceedings involve several matters, some arising under Federal law and some under State law. The cross-vesting scheme enables one court to deal with all matters.
143. The Law and Justice Legislation Amendment Act (No 3) 1992 (Cth) amended the definition of “special federal matters” in the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) to include a matter arising under Family Law Act 1975 (Cth) s 60AA (now s 60G of the Family Law Act 1975 (Cth)). Pursuant to s 60G, leave must be obtained from the Family Court to commence proceedings for the adoption of a child by a step-parent. Consequently, where a step-parent adoption application had been filed in the Supreme Court without the consent of the Family Court, the Supreme Court could no longer, as it did in the past, redeem the situation by using cross-vested powers from the Family Court to obtain the required consent. Instead, as a “special federal matter” under the amendment, the Supreme Court was compelled to transfer the application for leave to commence a step-parent adoption to the Family Court.
144. Re: Adoption Application (Supreme Court, NSW, McLelland CJ in Eq, 14 July 1995, ED 80249/93, unreported) held that despite the “special federal matters” provision requiring Family Court leave for adoption proceedings to commence, “special reasons” existed under the cross-vesting legislation to hear the matter in the Supreme Court, so that the Supreme Court could both grant the adoption order and give leave under the Family Law Act for the adoption proceedings to commence. The special reasons included the informed consents of the relinquishing birth parent and the children to the making of the adoption order in favour of the other birth parent and the step-parent.
145. O Jessep and R Chisholm “Step-Parent Adoptions and the Family Law Act” (1992) 6 Australian Journal of Family Law 179; Fogwell v Ashton (1993) 17 Fam LR 94.
146. For example: New South Wales Department of Community Services Submission (5 September 1994) at 20; Barnardos Australia Submission (26 July 1994); New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 16-17. However, the Law Society of New South Wales favoured the Family Court jurisdiction: Submission (24 August 1994) at 3. On the other hand, LDS Social Services Australia (Sydney Agency) favoured an adoption tribunal for uncontested cases, with contested cases being held in a higher court, such as the Supreme Court: Submission (5 October 1994) at 8.
147. Barnardos Australia Submission (26 July 1994); New South Wales Committee on Adoption and Permanent Family Care Submission (30 August, 1994) at 16-17; Anglican Adoption Agency Submission (26 August 1994) at para 5.2.
148. Anglican Adoption Agency Submission (26 August 1994) at para 5.2; Post Adoption Resource Centre Submission (5 August 1994) at 7.
149. For example, see New South Wales Committee on Adoption Submission to Issues Paper 9 (9 September, 1993) at 30.
150. H Meadows, in discussing the Victorian Children’s Court process specifically, and court proceedings generally, cites Family Court Chief Justice Nicholson as agreeing that the use of guardians ad litem has merit over an adversarial court process. However, this endorsement does not extend to the use of tribunals instead of courts: “I share the concern about the negative nature and consequences of purely adversary contests. I must say, however, that I view the suggested solution of a tribunal as no solution at all. Experience suggests that tribunals are no better and may well be worse than courts in performing the decision-making function. Their drawbacks include liability to political interference, either indirectly or by the removal of the tribunal if its approach is disapproved of by the government, expense (three decision-makers instead of one), lack of security of tenure and a lack of independence resulting from concerns about re-appointment”: “A contradiction in terms?: Child Welfare and the Adversary System” (1995) 69 Law Institute Journal 307 at 309
151. The New South Wales Bar Association Submission (16 September 1994) at 1; E Berzins Submission (27 July 1994) at 9.
152. The National Children’s and Youth Law Centre favoured the Family Court: Submission (29 July 1994) at 9.
153. The Law Society of New South Wales Submission (24 August 1994) at 3; Australian Association of Social Workers Ltd (NSW Branch Office) Submission (11 August 1994).
154. Australian Association of Social Workers Ltd Submission (11 August 1994).
155. Australian Association of Social Workers Ltd Submission (11 August 1994).
156. Adoption of Children Regulation 1995 (NSW) cl 20; Schedule 2 para 9(4); Adoption of Children Act 1965 (NSW) s 14 and 67A.
157. Adoption of Children Regulation 1995 (NSW) cl 14.
158. Adoption of Children Regulation 1995 (NSW) cl 20(6).
159. Adoption of Children Regulation 1995 (NSW) Schedule 2 para 9(4).
160. Adoption of Children Act 1965 (NSW) s 67A.
161. Although an appeal can be made to the Supreme Court on a question of law: see Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) s 51(1) and 67.
162. Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) s 51(2). Proceedings on an appeal to the Tribunal are by way of a new hearing: s 45.
163. Adoption of Children Act 1965 (NSW) s 14(3).
164. NSWLRC DP 34 at para 5.46.
165. New South Wales Committee on Adoption Submission to Issues Paper 9 (9 September 1993) at 37.
166. The Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) establishes the Community Services Commission (s 77) to investigate, among other things, complaints made by persons that a New South Wales “service provider,” principally being the Department of Community Services, has acted unreasonably: s 83(e). It can make recommendations for improvement in the delivery of community services: s 83(3).
167. Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) s 12, 13, 23 and 38(1).
168. s 40(1)(d); Community Services (Complaints, Appeals and Monitoring) Regulation 1996 (NSW) cl 6(1)(a), (2).
169. See J Shaw QC MLC, New South Wales Attorney General Law & Reform (Issue 1, February 1996) at 6.
170. See Shaw Law & Reform at 6.
171. Adoption of Children Regulation 1995 (NSW) cl 20.
172. Adoption of Children Regulation 1995 (NSW) Schedule 2 para 9(4).
