4.1 In this chapter we consider a miscellaneous group of issues relating to aspects of jurisdiction, procedure and similar matters. It is expected that many more such issues will become apparent as the review proceeds, and to some extent it is appropriate to consider technical issues only after decisions have been made about more fundamental issues. The issues mentioned in this chapter, therefore, are those that seem of particular importance. The chapter is not intended to be comprehensive and the Commission welcomes any submissions on similar or related issues not specifically raised in this chapter.
FEDERAL/STATE ISSUES
4.2 Although adoption is presently governed by state law, it can be affected by Commonwealth laws, particularly the Family Law Act 1975 (Cth) and, in relation to inter-country adoptions, the Immigration (Guardianship of Children) Act 1946 (Cth) and the Australian Citizenship Act 1948 (Cth). It is apparent that in recent years the adoption legislation of the various states and territories has moved further and further from the considerable uniformity achieved in the mid-1960s. Perhaps greater Commonwealth involvement is necessary if uniformity is to be restored. It might also be argued that uniformity and Commonwealth involvement are appropriate in the light of Australia’s ratification of the Convention on the Rights of the Child, which creates international obligations relating to adoption law as well as other aspects of children’s law. It is therefore appropriate to consider the relationship between New South Wales and the Commonwealth in relation to adoption.
The Family Court of Australia
4.3 The Family Court of Australia was created in 1976 with the introduction of the Family Law Act 1975 (Cth). Initially it dealt with custody, guardianship and access matters involving children of marriages. In 1988, New South Wales, together with four other states, referred power over ex-nuptial children to the Commonwealth and the Family Law Act was amended to deal with all children, regardless of the marital status of their parents. In 1989, jurisdictional difficulties between the states and the Commonwealth were also addressed by the introduction of “cross-vesting” jurisdiction.1 This legislation gave the Supreme Court power to exercise jurisdiction of the Family Court, and gave the Family Court power to exercise jurisdiction of the Supreme Court. It also contained provisions allowing the courts to transfer matters, so that the courts could ensure that each court would normally continue to exercise jurisdiction in the ordinary way. In general, adoption matters would continue to be heard by the Supreme Court and custody, guardianship and access matters would continue to be heard by the Family Court.
4.4 The relationship between the Supreme Court’s adoption jurisdiction, and the Family Court’s jurisdiction over children is a matter of some complexity.2 The Family Law Act 1975 (Cth) does not create a jurisdiction over adoption. It contains a provision, s 60H, to the effect that the Family Law Act does not interfere with the exercise by state courts of their powers under child welfare and adoption legislation. However, the Family Court can exercise its jurisdiction in custody, guardianship and access over children whether or not they have been adopted. It would be possible, therefore, for the Family Court to make an access order in favour of a birth parent after the New South Wales Supreme Court had made an adoption order in relation to the child.3 The Commission would welcome comments on whether the law in this area requires clarification or modification.
A reference of power?
4.5 In 1988, New South Wales referred power to the Commonwealth over the custody, guardianship and maintenance of children and these matters are now governed by Commonwealth laws. The question of whether adoption should also be referred to the Commonwealth, or should be transferred to the Commonwealth by constitutional amendment, has been considered from time to time. It may be argued that, especially since the 1988 reference of power, the Family Court of Australia is now the specialist family court, and that it would be appropriate that it should deal with adoption.4 It may also be argued that uniformity is desirable, and that experience shows that lasting uniformity will not be achieved except though Commonwealth legislation. It might also be suggested that the independent work of the various states and territories in reviewing their legislation is highly inefficient, and it would be better to concentrate reform energies on the creation and revision of a single national adoption law. Finally, Commonwealth responsibility might be regarded as appropriate in light of the close links between immigration and inter-country adoption and the increasing importance of national legal obligations created by such international instruments as the Convention on the Rights of the Child. On the other hand adoption, unlike custody and guardianship, involves the provision of services by the state Department of Community Services and adoption agencies licensed by it; would a reference of power involve a transfer of these responsibilities to the Commonwealth?
4.6 Any action on this matter would, of course, require a co-operative effort. Should the Commission recommend that New South Wales consult with the Commonwealth and other states with a view to the transfer of responsibility over adoption from the states to the Commonwealth?
Jurisdiction
Should the Supreme Court continue to exercise jurisdiction in adoption? If so, should there be any changes in its procedures?
4.7 In New South Wales and most other Australian jurisdictions, adoption orders are made by a court.5 Some years ago it was contemplated that there should be a separate tribunal to deal with adoptions in New South Wales, but this proposal was never implemented. The conventional view is that it is appropriate for the Supreme Court to deal with adoption applications, because adoption orders involve such serious consequences for the child, members of the birth family and the adoptive family. However in some states, a lower court may exercise adoption jurisdiction.6 Is it desirable that a court should continue to exercise adoption jurisdiction? If so, is the Supreme Court the most appropriate court?
4.8 In the vast majority of cases, adoption applications are uncontested. In these cases the hearings are usually short, and the judge may make the orders on the basis of the papers filed in court, including the report of the Department or adoption agency and submissions on behalf of the applicants. Where the proceedings are contested, ordinary court procedures apply, with some significant modifications. The Court is closed to the public7 and the usual rules of evidence do not apply.8 Contested hearings, although conducted in closed court, are generally conducted along the traditional lines of the adversary system. There is no express provision in the Act for the child to be represented, although it is probably within the Court’s power to order that the child should be represented if the Court thinks fit. Are these rules and practices appropriate in adoption? Should there be any changes, either of a major or a minor kind?
REGULATION OF PRACTICE AND ROLE OF AGENCIES AND SUPPORT GROUPS
4.9 How should adoption practice be regulated? Should the law prohibit private placements for adoption, either for adoptions outside the family or adoptions inside the family, or both? What should be the respective roles of the Department of Community Services, authorised adoption agencies, and support groups in the provision of pre- and post-adoption services?
Adoptions by non-relatives
4.10 We have seen that a fundamental characteristic of the Adoption of Children Act 1965 (NSW) was the banning of private placements and the control of adoption practice by the Court and authorised adoption agencies. It should be noted that in some other jurisdictions, for example in the United States, this degree of regulation appears to be unacceptable. It would seem that the present system is based on the view that agency control of adoption is desirable in order to protect the rights of children. Is this true?
Limits of regulation
4.11 This strict system of regulation, however, does not apply to adoptions within families, such as adoptions by step-parents or adoptions by grandparents. More precisely, the regulatory provisions do not apply where the applicant or one of the two applicants is a parent or relative of the child. “Relative” is defined as “a grandparent, uncle or aunt of the child, whether the relationship is of the whole blood or half-blood or by affinity, and notwithstanding that the relationship depends upon the adoption of a person”.9
4.12 What is the rationale for the relaxation of the regulatory provisions for intra-family adoption? Is it assumed that privately arranged adoptions within families involve less risk for children? If so, are there other categories of adoption which do not require strict regulation? If it is right to distinguish between adoptions within families and other adoptions, is the existing definition satisfactory? In a multicultural community such as New South Wales the word “family” has a variety of meanings, and in some groups might include individuals who are not treated as “family” in the current Act. Is the Act’s definition of “family” appropriate?
Agencies, support groups and the Department of Community Services
4.13 In New South Wales, the Department of Community Services is the authority for licensing private adoption agencies, and is itself an adoption agency. In addition, a number of rules have given the Department a special position in relation to adoption. Recent amendments have relaxed these rules somewhat, giving a greater degree of responsibility to the private agencies. For example, the original Act required that there should be a report to the Court by the Department, but amendments also provide for a report by the agency concerned, and for dispensing with reports where the Court is satisfied that the standard of applications by that agency justifies such a dispensation.10 It has been suggested to the Commission that staff of adoption agencies are sometimes as well or better qualified than staff of the Department, and that the agencies, perhaps more than the Department, are responsible for developments in adoption practice. If this is so, there might be an argument for an even greater degree of independence for the agencies. On the other hand the limited availability of local children for adoption has meant that some agencies have had little or no recent experience. Should this issue be addressed in accreditation and re-accreditation procedures?
4.14 The issues involved extend to responsibility and funding for a range of associated services, including counselling and other services relating to the management of adoption placements, information11 and other post-adoption services for children, adoptive parents, and birth parents. The provision of these services involves support groups as well as the Department and authorised agencies. Support groups are of considerable importance in particular areas of adoption practice, including inter-country adoption,12 where their members often have unique knowledge of adoption practice in overseas countries, and in relation to information rights, where they can play an invaluable role in assisting people seeking information and people who are the subject of such information.13
4.15 A radical proposal would be for “privatisation” of adoption practice. This would involve transferring responsibility for arranging adoptions entirely to private agencies and support groups or those agencies and groups that have been approved or licensed, with the Department retaining at most a supervisory role.14 The opposite direction could also be chosen, with the Department taking over the arrangement of all adoptions, except intra-family adoptions. The Commission would welcome comments on the respective roles of the Department of Community Services, private adoption agencies and support groups.
Responsibility of the Minister or the Director-General?
4.16 Should the legislation place formal responsibility in the Minister or the Director-General? The present Act, like the legislation in most other Australian jurisdictions, places formal responsibility in the Director-General rather than the Minister.15 In routine matters the discharge of the responsibility is delegated to officers of the Department, but it may be that the general legislative pattern in Australia reflects the view that adoption could be “politicised” where the formal responsibility resides with the Minister.
APPEALS AND REVIEW
What provision should be made for review of adoption decisions, and rights of appeal?
4.17 Important decisions are made not only by the Court but also by the Department and authorised adoption agencies, and also, possibly, by support groups in relation to inter-country adoptions. Court decisions are subject to the usual appeal to the New South Wales Court of Appeal. The Adoption of Children Act 1965 (NSW) provides for the Director-General to review unfavourable assessments of applicants16 but does not provide for appeal to an independent body. A new Act establishes mechanisms for appeal and review of decisions made under the community welfare legislation.17 This Act also provides for appeals to the Community Services Appeals Tribunal against a decision made by the Director-General to refuse approval of an adoption agency and creates a power to make regulations extending the scope of appeal to other decisions relating to adoption.18 The Act removes the power of the Ombudsman to investigate matters that could be the subject of an appeal to the Community Services Appeals Tribunal.19
4.18 Systems of appeal and review could cover any or all of the range of decisions made by the Department and authorised agencies relating to adoption. They could include limited review for errors of law or manifestly unreasonable decisions, or a full rehearing on the merits of the particular case, or advisory recommendations to the Director-General or other decision-maker, or combinations of these. Various procedures could be specified, dealing with such matters as entitlement to appeal, costs of appeals or the application of the rules of evidence. Specific provisions under the adoption legislation could either displace the Ombudsman’s powers (as under the 1993 Bill referred to above) or co-exist with them. The Commission would welcome comments on the extent to which decisions made in adoption should be subject to review, and what might be the most appropriate forms of review.
RIGHTS TO INFORMATION
Should people have rights to information about adoption decisions?
4.19 A closely associated question is to what extent, if at all, should the law provide that people involved with adoption have rights of access to information about decisions affecting them. The Freedom of Information Act 1989 (NSW) does not presently apply to information held in connection with adoption.20 Should it? If so, to what categories of information should it apply? What rights, if any, should be created? Should such rights to information be limited to people who need the information in order to consider whether to appeal against a decision?
OFFENCES
What behaviour should be penalised in connection with adoption? What penalties are appropriate?
4.20 The Act includes a set of offences. Some are associated with the regulation of adoption and the banning of privately arranged adoptions. Thus it is an offence to make private arrangements for adoption, or to advertise for adoption.21 Other offences are designed to prevent members of the birth family from interfering with the adoption process or 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.22 A related provision, which may not create a criminal offence, is that in certain circumstances unmarried fathers “may not” do anything inconsistent with the making of an adoption order.23 A third group comprises offences designed to protect the adoption process itself. These offences are impersonation of a person whose consent is required,24 making false statements in connection with proposed adoptions,25 using force or duress to influence the parties in making decisions,26 breaching the requirements relating to confidentiality,27 and witnessing a consent to adoption without taking the required steps to ensure, for example, that the person understands the nature of the consent.28 It might be thought that some of these offences are unnecessary. For example, the general law of harassment has been considerably developed by legislation in recent years, and it might be argued that any attempts by birth parents or others to contact adopted children should be dealt with under the general criminal law. On the other hand, there may be practices which should be penalised but are not caught by the existing provisions. The appropriateness of the penalties is also a matter for consideration.
FOOTNOTES
1. Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth); Jurisdiction of Courts(Cross-Vesting) Act 1987 (NSW).
2. The complexity of this relationship with regard specifically to step-parent adoptions is considered in Chapter 7.
3. See In the Marriage of Mole and Newling (1987) 11 Fam LR 974.
4. See Fogarty, J, Sanders, K, Webster M, A Review of the Inter-country Adoption Service in Victoria (Family and Children’s Services Council, Melbourne, October 1989).
5. An exception is Queensland, where uncontested adoptions are dealt with by the welfare authority: a court, however, must deal with any application to dispense with consent and there is an appeal from decisions by the Director: Adoption of Children Act 1964 (Qld), s 7- 9 and 25.
6. See, for example, Adoption Act 1984 (Vic) s 6 (County court).
7. Adoption of Children Act 1965 (NSW), s 64.
8. Section 65.
9. Section 6.
10. Section 21(1A).
11. See generally New South Wales Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992).
12. See Chapter 11 of this Issues Paper.
13. See Review of the Adoption Information Act 1990 (Report 69, July 1992)
14. Such a development might be seen as complementing the recommendations of the NSW Report of the Committee to Review Substitute Care Services in New South Wales, (January, 1992) (the “Usher Report”).
15. Compare, however, NT (‘Minister’); ACT (s 11 - ‘Minister to approve agencies’) and Qld (s 51 -‘Minister to authorise prosecutions’).
16. Adoption of children Act 1965 (NSW) s17, and s 20A for inter-country adoptions.
17. Community Services (Complaints, Appeals and Monitoring) Act 1993 No 2. This Act was assented to on 8 April 1993 and will commence on a day or days to be proclaimed, being a day or days not later than 12 months after the date of assent.
18. Section 40(1) d); Schedule 2, adding a new s 67A to the Adoption of Children Act 1965 (NSW).
19. Section 121.
20. Freedom of Information Act 1989 (NSW), s 6(1), Schedule 1, cl 20(a) and (c).
21. Adoption of Children Act 1965 (NSW), ss 50-52.
22. Sections 49 and 50.
23. Section 31D.
24. Section 55.
25. Section 54.
26. Section 57.
27. Section 53.
28. Section 58.
