Re D

[2006] NSWSC 808

CITATION:	Re D [2006] NSWSC 808
HEARING DATE(S):	In Chambers
JUDGMENT DATE :	8 June 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	White J
CATCHWORDS:	ADOPTION - Application by child's stepfather for adoption of child - Child's mother refuses to apply for an order for adoption of her own child - Plaintiff required to provide evidence that he and child's mother married and living together before adoption order made - Section 95 Adoption Act 2000 (NSW) considered.
LEGISLATION CITED:	Adoption Act 2000 (NSW)
PARTIES:	Re D
FILE NUMBER(S):	SC 80093/05

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

WHITE J

Thursday, 8 June 2006

80093/05 Re D

JUDGMENT

1 HIS HONOUR: This is an application for the adoption of an adult child. The summons sought an order for the adoption of the child in favour of the plaintiff and the child’s mother. The plaintiff is not the birth father of the child. He has brought the child up as his son and is married to the child’s mother.

2 The child’s mother is not a plaintiff. Her solicitors state that their strict instructions are that she does not want to adopt her own son. This attitude is entirely understandable.

3 Section 95 of the Adoption Act 2000 (NSW) provides:

“ 95 General effect of adoption orders
(cf AC Act s 35 (1) and (4))
(1) An adoption order made by the Court gives sole parental responsibility for a child to the person or persons named in the order (the adoptive parent or adoptive parents).
(2) For the purposes of the law of New South Wales, if an adoption order is made:
(a) the adopted child has the same rights in relation to the adoptive parent, or adoptive parents, as a child born to the adoptive parent or adoptive parents,
(b) the adoptive parent or adoptive parents have the same parental responsibility as the parent or parents of a child born to the adoptive parent or adoptive parents,
(c) the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child,
(d) the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child.
(3) Despite subsection (1), an adopted child does not cease to be regarded in law as the child of a birth parent or adoptive parent, and the birth parent or adoptive parent does not cease to be regarded in law as the parent of the child, if an adoption order is made in relation to a step parent with whom the birth parent or adoptive parent is living.
…”

4 Subsection 95(3) must operate not only despite s 95(1), but also despite s 95(2)(d). If that were not so, there would be a direct conflict between ss 95(2)(d) and 95(3) in a case where an adoption order is made in favour of a stepparent with whom the birth parent is living. If there is such a conflict, subs 95(3) prevails.

5 The order now sought is for the adoption of the child in favour of the plaintiff only. I am prepared to make that order provided it is shown that the plaintiff is still married to the child’s mother and they are still living together. If that is not the position, the effect of making an adoption order would be that the child’s mother would cease to be regarded in law as his parent.

6 The evidence that the plaintiff and the child’s mother are married and living together is contained in an affidavit of 24 June 2005. A further affidavit should be filed showing whether that is still the position. If it is, I will make the order sought.

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