re SRB

[2010] NSWSC 1280

CITATION:	Application of LAD; re SRB [2010] NSWSC 1280
HEARING DATE(S):	In Chambers
JUDGMENT DATE :	6 September 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
DECISION:	Make orders 1 and 2 in the Summons
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Adoption – Application for orders – relevant considerations – where child over eighteen years of age – whether consent dispense order required, or whether necessary to give notice to natural father pursuant to (NSW) Adoption Act 2000, s 88
LEGISLATION CITED:	(NSW) Adoption Act 2000, s 54, s 88, s 90
CATEGORY:	Principal judgment
FILE NUMBER(S):	SC 2010/118

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

Brereton J

Monday, 6 September 2010

118/2010 Application of LAD; re SRB

JUDGMENT

1 HIS HONOUR: In this adoption application the child SRB is twenty years of age and has been cared for by the applicant LAD and his natural mother, to whom LAD is married. Pursuant to (NSW) Adoption Act 2000, s 90(3), the effect of an adoption order in favour of LAD will be that he and the natural mother, with whom he is living, will be the child’s parents. The evidence plainly establishes that it would be in the interests of the child to make an adoption order as sought. An affidavit of the child SRB, who is 20 years of age, supports the application.

2 However, the Summons seeks an order dispensing with consent, and an order dispensing with notification to the natural father. The child was born of a short relationship between the mother and natural father, which ended before the child was born; the natural father has never had anything to do with the child since.

3 I was at first concerned that, while the Summons as amended names the natural father as JSY, there is no evidence showing that he is the natural father. The only evidence [mother’s affidavit, par 6] is that the natural father is CS – who was originally named as natural father in the Summons. Nor does it show why it is not reasonably practicable to give notice to JSY. At present, the evidence does not explain what has become of JSY – it refers only to CS [see paras 6 and 10 of the Mother’s affidavit].

4 However, while at first I was inclined to think that in order to obtain an order dispensing with consent, and an order dispensing with notification to the natural father, it would be necessary for the applicant to file affidavit evidence proving (a) that JSY is the natural father of the child, and (b) why it was not reasonably practicable, or otherwise inappropriate, to give notice of the application to JSY, I have come to the conclusion, for the reasons that follow, that such a course would be superfluous.

5 (NSW) Adoption Act 2000, s 54, provides as follows:

54 When consent of parent or person who has parental responsibility not required (cf AC Act s 26 (4A))
(1) Consent is not required under section 52 if:
(a) the requirement for the consent has been dispensed with by the Court, or
[Note. See Division 3 of Part 5.]
(b) the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or
(c) the child gives sole consent to his or her adoption in accordance with subsection (2), or
(d) the child is 18 or more years of age .
(2) A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years.
(3) However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless:
(a) the Court is satisfied that at least 14 days’ notice of the application for the adoption order has been given by the Director-General or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or
(b) the Court dispenses with the giving of notice.
(4) The regulations may prescribe the particulars to be contained in a notice under this section.
[Note. Parental responsibility is defined in the Dictionary.]

6 The child is more than eighteen years of age. Accordingly, by operation of s 54(1)(d), consent of the natural father is not required. Moreover, because the child is more than 18 years of age, the notice requirement contained in s 54(3) does not apply.

7 In respect of notice of the application, s 88 provides as follows:

88 Notice of application for adoption orders (cf AC Act s 22)
(1) The Court may not make an adoption order unless at least 14 days’ notice of the application for the order (containing the particulars, if any, prescribed by the regulations) has been given:
(a) to any person whose consent to the adoption of the child concerned is required under this Act and has not been given (or the requirement for which has been dispensed with by the Court), and
(b) to any person (not being a person whose consent is so required) with whom the child resides or who has parental responsibility for the child.
(2) Except as the Court may otherwise determine, nothing in subsection (1) requires a notice referred to in that subsection to be given to a person referred to in subsection (1) (b) if that person is:
(a) an applicant for the adoption order, or
(b) a person with whom the child resides only as a patient or inmate of a hospital of which that person is in charge or a person who has parental responsibility for a child only as the person in charge of a hospital.
(3) The notice must not specify the name of, or identify, any applicant.
(4) The Court may dispense with the giving of the notice.
(5) If it appears to the Court to be necessary in the interests of justice so to do, the Court may direct that notice of an application for an adoption order be given to any specified person.

8 Because the natural father’s consent is not required, and because the child does not reside with him, notice is not required under s 88(1).

9 It follows that neither an order dispensing with the consent of the natural father, nor one dispensing with notice to him, is necessary.

10 I make orders 1 and 2 in the Summons.

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