The Adoption of David (a pseudonym)
[2024] NSWSC 563
•13 May 2024
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
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These proceedings relate to the proposed adoption of a child who I will call “David” (not his real name).
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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.
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I propose to make the order. These are my reasons.
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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
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David was born in November 2023. He is now 6 months of age.
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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.
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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).
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Christine gave her formal consent to the adoption of David on 2 April 2024.
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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.
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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 Act 1987 (NSW), but is a useful expression.
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Unless I make an order dispensing with David’s father’s consent prior to 14 May 2024, when the Temporary Care Arrangement is to end, the Secretary will cease to have care responsibility under the Temporary Care Arrangement, and care responsibility will revert to Christine.
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That is because of the expiration of the Temporary Care Order, and because the Secretary could only acquire parental responsibility for David under s 75 of the Adoption Act if consent to David’s adoption was given by all requisite persons (not the case here, as David’s father, whoever he is, has not given consent) or if such consent had been dispensed with. Hence, the Secretary made the application to dispense with the father’s consent.
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If otherwise satisfied that a consent dispense order should be made, the Court may do so before an application for adoption has been made. [3]
3. Adoption Act, s 70(1)(a); see Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007.
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The Court may dispense with the consent of a child’s parent to the child’s adoption if, relevantly, that person, after reasonable inquiry, cannot be found or identified,[4] and if satisfied that to do so would be in the child’s best interests. [5]
4. Ibid, s 67(1)(a).
5. Ibid, s 67(2).
Efforts to locate and identify David’s father
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Christine has identified multiple putative fathers and provided various different stories as to the likely conception of David.
“Jeremy”
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Christine initially identified her ex-brother-in-law, who I will call “Jeremy” (not his real name), as putative father of David. Christine has since confirmed that Jeremy is her own ex-husband, rather than her sister’s ex-husband. Christine shares three other children with Jeremy.
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DNA paternity test results have since confirmed it is “highly unlikely” that David and one of Christine and Jeremy’s children are full biological siblings. This makes it unlikely that Jeremy is the father of David.
“Anthony”
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Christine then identified a man, who I will call “Anthony” (not his real name), as the putative father. Christine described Anthony as a friend of her ex-husband Jeremy whom she had been physically intimate with at or around the time of David’s conception.
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When the Department of Communities and Justice first contacted Anthony, he agreed that he could be David’s father as he had been physically intimate with Christine. However, soon before submitting to DNA paternity testing, Anthony disclosed that Christine had asked Anthony to say he was the father of David. Anthony stated that he had never been physically intimate with Christine, and thus he could not be the father of David. He confirmed that he had lied for Christine.
Further putative fathers
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Christine then informed the Department of Communities and Justice that, at or around the time of David’s likely conception, she had engaged in casual sex with three or four or five different male partners.
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Christine said, with the exception of one of the men, she did not have any details for those men. She advised that they were not people from within her social network, describing them as “friends of friends of friends” or as former colleagues. She is no longer in contact with any of them, except for one of the men.
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The one man that Christine was able to identify and contact, who I will call “John” (not his real name), confirmed he had been physically intimate with Christine. DNA paternity test results later excluded John as the father of David.
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Another one of the men, known only by his given name, who I will call “Peter” (not his real name), was formerly employed at the same company as Christine. Peter cannot be located.
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Christine identified one further man, whose name is unknown. She met him at a work function and believed he may have been employed at the same company as Christine. He cannot be located.
Conclusion
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The Secretary submits that, in the circumstances, it has gone to great lengths to engage Christine in discussions regarding David’s paternity, and made extensive efforts to locate, identify, confirm, and engage each of the putative fathers raised by Christine.
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The Secretary has done this while navigating complex cultural considerations, as well as Christine’s fears that she may be rejected by her family and community if the circumstances of David’s conception become known.
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In the circumstances, I accept that the Secretary has made reasonable efforts to locate and identify David’s father, and conclude that David’s father cannot be identified.
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Most importantly, I am satisfied that it is in David’s best interests to make the consent dispense order, since it enables him to be placed in a secure adoptive placement as soon as possible. [6] This is especially important for David, as adoptive placement options may be limited due to David’s specific cultural and religious background, and the need to sensitively manage issues regarding David’s paternity.
6. See Re C and the Adoption Act 2000 (NSW) (supra) at [40] (Kunc J); Adoption of A [2022] NSWSC 567 at [14]-[15] (Stevenson J).
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The making of the order also has the effect that the Secretary retains parental responsibility for David and prevents such responsibility reverting to Christine: an outcome Christine does not want,[7] and which would not be in David’s best interests. [8]
7. See [9].
8. See [28].
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I make the order sought.
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Endnotes
Decision last updated: 13 May 2024
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