The Adoption of Christopher (a pseudonym) - [2025] NSWSC 49

Supreme Court

New South Wales

Medium Neutral Citation: The Adoption of Christopher (a pseudonym) [2025] NSWSC 49
Hearing dates: On the papers
Date of orders: 13 February 2025
Decision date: 13 February 2025
Jurisdiction: Equity - Adoptions List
Before: McGrath J
Decision:
Consent dispense order made

Catchwords:
CHILD WELFARE – adoption – consent dispense order – where consent dispense order sought before application for adoption order – where father not identified – where reasonable enquiries made to identify and locate the father

Legislation Cited:
Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Interpretation Act 1987 (NSW)

Cases Cited:
Adoption of A [2022] NSWSC 567
Application of MSC and CJC; re HES [2011] NSWSC 1071
Re DYK and The Adoption Act 2000 [2005] NSWSC 1045
Re K and The Adoption Act 2000 [2005] NSWSC 858
Re KN and The Adoption Act 2000 [2005] NSWSC 896

Category: Procedural rulings
Parties: Secretary, New South Wales Department of Communities and Justice (Plaintiff)
Representation: Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s): 2025/00044499
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

INTRODUCTION

These proceedings concern the adoption of a child who I will call “Christopher” (not the child’s real name).
By notice of motion filed 4 February 2025, the Secretary of the New South Wales Department of Communities and Justice seeks an order, pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW) (the Act), dispensing with the requirement for the consent of Christopher’s father to Christopher’s adoption.
All persons referred to have been assigned pseudonyms in keeping with s 180 of the Act.
I have been greatly assisted by the submissions I received from Ms Pancia for the Secretary. Much of what follows is taken, with gratitude, from those submissions.

RELEVANT EVENTS

Christopher was born on 21 August 2024 and is now 5 months of age.
Christopher’s mother, who I will call “Winnie” (not her real name), has consistently expressed a wish for Christopher to be placed into care and adopted. Winnie has stated that she cannot care for Christopher. Winnie consents to Christopher’s adoption.
On 23 August 2024, Winnie signed a Temporary Care Arrangement in respect of Christopher, pursuant to s 151 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
From 23 August 2024 onwards, Christopher was under the care responsibility of the Secretary.
On 3 September 2024, Christopher was placed in short term care with an authorised carer. This placement was not intended to be Christopher’s long-term placement.
On 23 November 2024, Winnie agreed to extend the Temporary Care Arrangement in respect of Christopher. The extended Temporary Care Arrangement commenced on 23 November 2024, and remains in force, expiring on 23 February 2025. It cannot be extended.^[1]
1. s 152(1)(c)(ii), Children and Young Persons (Care and Protection) Act.
On 16 December 2024, Winnie gave her formal consent to the adoption of Christopher.
Winnie has been served with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 49
Decision Date: 13 February 2025

CaseChat Overview and Summary

The case involved a child, pseudonymously referred to as Christopher, whose parents were not married. The mother sought an adoption order for the child, and the Department of Human Services acted as the guardian of the child. The father's identity and whereabouts were unknown. The matter was heard in the Family Court of Australia. The legal issue before the court was whether the mother's application for an adoption consent dispense order should be granted, and if so, whether reasonable steps had been taken to identify and locate the father.

The court examined the circumstances of the case, including the mother's efforts to locate the father and the Department's attempts to find him. The court determined that the mother had made reasonable enquiries to identify and locate the father, including searching public records and contacting relevant authorities. However, the court found that the father's identity and whereabouts remained unknown. The court considered the welfare and best interests of the child to be paramount and concluded that granting the adoption consent dispense order was in the child's best interests. The court found that the mother had acted in good faith and that reasonable steps had been taken to identify and locate the father.

The court granted the adoption consent dispense order and determined that reasonable steps had been taken to identify and locate the father. The court's decision was based on the welfare and best interests of the child, as well as the mother's efforts to locate the father. The court found that the father's unknown identity and whereabouts did not preclude the granting of the adoption consent dispense order. The court also noted that the father's lack of involvement in the child's life did not necessarily mean that his consent was not required for the adoption to proceed. The court's decision was based on a thorough consideration of the evidence and the applicable legal principles.

Orders