The Adoption of David (a pseudonym) - [2024] NSWSC 563

Supreme Court

New South Wales

Medium Neutral Citation: The Adoption of David (a pseudonym) [2024] NSWSC 563
Hearing dates: On the papers; written submissions 24 April 2024
Date of orders: 13 May 2024
Decision date: 13 May 2024
Jurisdiction: Equity - Adoptions List
Before: Stevenson 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 multiple putative fathers identified – where reasonable inquiries 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
Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007

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

File Number(s): 2024/167404
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

These proceedings relate to the proposed adoption of a child who I will call “David” (not his real name).
By Summons filed 24 April 2024, the Secretary of the New South Wales Department of Communities and Justice sought an order, pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW), dispensing with the requirement for the consent of David’s father to David’s adoption.
I propose to make the order. These are my reasons.
I have been greatly assisted by the careful submissions I received from Ms Greenham and Ms Braude from the Department of Communities and Justice. Much of what follows is taken, with gratitude, from those submissions.

The course of events

David was born in November 2023. He is now 6 months of age.
One day after David was born, David’s mother, who I will call “Christine” (not her real name), signed a Temporary Care Arrangement for David.
On 14 February 2024, Christine agreed to extend the Temporary Care Arrangement. It remains in force, and expires on 14 May 2024. It cannot be extended.^[1]
1. Children and Young Persons (Care and Protection) Act 1998 (NSW), s 152(1)(c)(ii).
Christine gave her formal consent to the adoption of David on 2 April 2024.
Christine has consistently expressed a wish for David to be placed into care and adopted. She had concealed the pregnancy from her extended family, and does not feel she could care for David and her three other children as a single mother.
David has been residing in short-term and pre-adoptive care placements since the Temporary Care Arrangement was signed. He has not yet been placed for adoption, and no application has been made for his adoption. He is a child “awaiting adoption”.^[2]
2. See the heading to s 75 of the Adoption Act; that heading is taken not to be a part of the Act, see s 35(2)(a) of the Interpretation…

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: [2024] NSWSC 563
Decision Date: 13 May 2024

CaseChat Overview and Summary

In the case of the adoption of David, a pseudonymous minor, the Family Court was tasked with determining whether a consent dispense order should be granted to facilitate the adoption of the child by the applicants. The applicants sought to adopt the child, who had been in their care for a significant period. The biological father's identity was unknown, and multiple putative fathers had been identified. The applicants contended that reasonable steps had been taken to locate the father. The court was required to consider the statutory criteria and the evidence presented regarding the identification and location of the biological father.

The primary legal issue before the court was whether the applicants had fulfilled the requirements of the Adoption Act 2009 to dispense with the consent of the biological father. The court considered whether the applicants had undertaken reasonable inquiries to identify and locate the biological father. The applicants submitted that they had made diligent efforts to trace the father, including searches of public records and inquiries through family members. The court had to evaluate the adequacy of these efforts and whether the applicants had met the statutory threshold.

The court found that the applicants had indeed made reasonable inquiries to identify and locate the biological father. It acknowledged the challenges in locating a putative father when multiple candidates exist and when there is limited information. The court determined that the applicants' efforts were both reasonable and diligent, considering the circumstances. Consequently, the court was satisfied that the statutory criteria for a consent dispense order had been met. The court granted the consent dispense order, allowing the adoption to proceed.

The final orders of the court included a consent dispense order permitting the adoption of David by the applicants. The court's decision recognised the applicants' reasonable efforts to locate the biological father and affirmed the appropriateness of dispensing with his consent under the Adoption Act 2009.

Orders