Re SD and DD

[2014] NSWSC 1017

Supreme Court

New South Wales

Medium Neutral Citation:	Re SD and DD [2014] NSWSC 1017
Hearing dates:	On the papers in chambers
Decision date:	28 July 2014
Jurisdiction:	Equity Division
Before:	White J
Decision:	Refer to paras [7] and [8] of judgment
Catchwords:	FAMILY LAW AND CHILD WELFARE - Adoption - application for adoption by step father and birth mother where adult children and mother consent only to adoption by stepfather alone - evidence required if application intended to be for adoption by stepfather alone without disturbing parental relationship between mother and children
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	Application of A and B and the Adoption Act 2000 [2005] NSWSC 916; (2005) 63 NSWLR 594 Re D [2006] NSWSC 808 Re ESF [2014] NSWSC 687
Category:	Procedural and other rulings
Parties:	MD (1st Applicant) SD (2nd Applicant)
Representation:	Solicitors: Emil Ford & Co Lawyers (Applicants)
File Number(s):	095/2014

Judgment

1. HIS HONOUR: This is an application for the adoption of two adult children aged 35 and 33. The plaintiffs (described in the summons as applicants) are the stepfather and the mother of the two children. The summons seeks an order for the adoption of the two children in favour of the adopting parents, namely both plaintiffs. In other words, the children's mother, who is their birth parent, seeks an order for their adoption.

1. This is permissible. An adoption order can be made in favour of a birth parent (Adoption Act 2000 (NSW), ss 28(3) and 54(1)(b); Application of A and B and the Adoption Act 2000 [2005] NSWSC 916; (2005) 63 NSWLR 594).

1. The difficulty with the application is that both children consent only to the making of an adoption order in favour of their stepfather. The children's mother consents to the application by her husband. There is no affidavit from the mother indicating that she wishes to adopt her own children.

1. It may be that the parties intend that the application for adoption should be made only by the children's stepfather and that there should only be an order for the adoption of the two children by him as the adoptive father. If the children's stepfather and their mother are living together, then the making of an adoption order in favour of the stepfather alone would not affect the parental relationship between the children and their mother (Adoption Act, s 95(3); Re D [2006] NSWSC 808). On the other hand, if the children's mother were not living with their stepfather when an adoption order was made in favour of the stepfather alone, then the children would cease to be regarded in law as the children of their mother and their mother would cease to be regarded in law as their parent (s 95(1) and (2)(d)).

1. To avoid any uncertainty about that, a declaration can be made at the same time as the adoption order is made declaring that pursuant to s 95(3) of the Adoption Act the making of the adoption order does not mean that a child's birth parent has ceased to be regarded in law as the child's father or mother as the case might be. The making of such a declaration depends on there being evidence that the adoptive parent (that is, the step-parent) is still living with the birth parent. There is no direct evidence of this in the present case, except that the children's mother gives as her address the same address given by the children's stepfather. If the parties intend that the adoption order is to be made in favour of the father alone without disturbing the parental relationship between the children and their mother, there should be direct evidence that the plaintiffs are living together.

1. In another application with which I dealt earlier this year (No A21/2014, 27 February 2014 (no medium neutral citation)), I noted that a suggestion had been made, it was not clear by whom, that an adoption order in favour of both a child's birth parent and step-parent was necessary in order that both parents' details were listed on the new birth certificate. There is no reason that that should be so having regard to s 95(3) of the Adoption Act. In that application I made a direction that a new birth certificate show the child's birth father as the child's father and the child's adoptive mother as the child's mother. A similar order was made by Darke J in Re ESF [2014] NSWSC 687 at [18]. This can be done by the nominated officer for the purposes of s 130 of the Adoption Act providing a memorandum of the adoption order to the Registrar of Births Deaths and Marriages pursuant to that section that (in the present case) would show the parents of each child after adoption as being his or her "adoptive father" and "mother".

1. The result is that I cannot make the orders sought in the summons on the present material. If what is sought is an adoption of the two adult children by both plaintiffs, then the children will need to consent to that order and their mother will need to make an affidavit in which she asks for it.

1. On the other hand, if what is sought is an order for the adoption of the children by their stepfather, then I will need to be advised that that is the order sought. (I dispense with the need for filing an amended summons). There should also be evidence that the plaintiffs are still living together if that is the fact. If sought, I will make a declaration pursuant to s 95(3) as outlined above and, if sought, I will give a direction in relation to the issue of new birth certificates as indicated above.

1. I am publishing these reasons because the issue is a recurring one.

Decision last updated: 28 July 2014