The Adoption of Edmund (a pseudonym)

[2024] NSWSC 803

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Adoption of Edmund (a pseudonym) [2024] NSWSC 803

Hearing dates:

13 March, 27 May 2024 (further evidence received 30 May, 17 June 2024)

Date of orders:

1 July 2024

Decision date:

01 July 2024

Jurisdiction:

Equity - Adoptions List

Before:

Meek J

Decision:

Determination that the birth father’s consent is not required. Dispensation with notice of the application for the adoption order to the birth father. Adoption order made.

Catchwords:

FAMILY LAW AND CHILD WELFARE — Adoption of child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent to an adoption gives his or her sole “consent” — Whether a birth father’s consent is necessary for such an adoption — Whether s 30(1)(c) Adoption Act 2000 (NSW) (“Adoption Act”) creates a separate consent requirement independent of Pt 5 Div 1, including s 54(2), Adoption Act — Review of Law Reform Commission Report, legislative history, subsequent amendments of ss 30, 52, 54 Adoption Act — Held child’s sole consent is sufficient and there is no requirement for a birth father’s consent

FAMILY LAW AND CHILD WELFARE — Consideration of dispensation with the requirement of notice to the birth father pursuant to s 54(3)(b) Adoption Act — The Adoption Act does not specify grounds which the Court must consider when determining whether to dispense with the requirement of notice pursuant to s 54(3)(b) — Consideration of matters relevant to dispensation with the requirement of notice

FAMILY LAW AND CHILD WELFARE — Consideration of the provisions dealing with consideration of alternatives to adoption, being ss 8(2)(k), 29(c), 30(1)(d), 36, 90(3) and 106(2)(b) Adoption Act — Discussion of the provisions of ss 30(1)(d) and 90(3) in respect of adoption by a step parent and comment regarding the differences between those provisions

FAMILY LAW AND CHILD WELFARE — Consideration of the nature of evidence on adoption applications and in particular the rationale for the particular form of evidence required from referees

CONSENT — Consent conceptualised — Discussion of what is consent — Discussion of common characteristics regarding consent — Discussion of the consequences of consent — In adoption cases the consequences of consent are so significant and far-reaching that the law requires that it be filtered through a rigorous process to ensure that the consent is well-informed, well-considered and enduring — Discussion of the means by which that rigour is achieved by the Adoption Act

PRACTICE — Practice Notes — Status and purpose discussed

STATUTES — Construction — Discussion of principles of construction

Legislation Cited:

Adoption Act2000 (NSW)

Adoption Amendment Act 2006 (NSW)

Adoption Amendment Act 2008 (NSW)

Adoption Bill 2000 (NSW)

Adoption of Children Act 1965 (NSW) (repealed)

Civil Procedure Act 2005 (NSW)

Interpretation Act1987 (NSW)

Statute Law (Miscellaneous Provisions) Act 2009 (NSW)

Statute Law (Miscellaneous Provisions) Act 2010 (NSW)

Statute Law (Miscellaneous Provisions) Act (No 2) 2023 (NSW)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Adoption of ESF [2014] NSWSC 687

Adoption of N [2023] NSWSC 709

Adoption of PS [2015] NSWSC 2159

Adoption of R [2017] NSWSC 270

Akins v Abigroup Ltd (1998) 43 NSWLR 539

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Application of A - re D [2006] NSWSC 1056

Application of MKM & RDM; re SCH [2010] NSWSC 1270

Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40

Daley v Donaldson [2022] NSWCA 96

Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326

Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83

Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372

MacedonianOrthodox Community Church StPetkaInc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

OA v Secretary, Department of Communities and Justice [2019] NSWCA 322

Oxley v Oxley [2018] NSWSC 91

ReAdoption of E F - Anonymised [2020] NSWSC 410

Re David [2022] NSWSC 1738

Re DG and the Adoption Act 2000 [2007] NSWCA 241

Re DG and the Adoptions Act 2000 [2006] NSWSC 968

Re S and the Adoption Act 2000(NSW) (2006) 68 NSWLR 61; [2006] NSWSC 1062

Re WS (No 3) [2017] NSWSC 1160

The Adoption of Andrew, Mark and Richard [2024] NSWSC 508

The Adoption of Elisabeth (a pseudonym) [2024] NSWSC 742

The Adoption of Henry (a pseudonym) [2023] NSWSC 939

The Adoption of Mardi (a pseudonym) [2024] NSWSC 733

TheOwners ofthe Ship “Shin Kobe Maru”v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54

Wass v Director of Public Prosecution (DPP) (NSW);Wass v Constable Wilcock [2023] NSWCA 71

Whalley v Commissioner of Police [2003] NSWSC 273

Texts Cited:

Department of Communities and Justice, “Want to adopt?” accessed 25 June 2024

Explanatory Note to the Adoption Bill 2000 (NSW)

Macquarie Dictionary, online ed

New South Wales Government Gazette, No 148, 17 November 2000

New South Wales Law Reform Commission, Report 81 (1997) – Review of the Adoption of Children Act 1965 (NSW) (March 1997)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 June 2000, 8 August 2000, 9 August 2000, 16 August 2000, 31 October 2000

New South Wales Legislative Council, Parliamentary Debates (Hansard), 5 September 2000, 6 September 2000, 10 October 2000

Parliament of New South Wales, “Legislative process explained” accessed 25 June 2024

Supreme Court Practice Note SC EQ 13

Young, Peter W, The Law of Consent (1986, The Law Book Co Ltd)

Category:

Principal judgment

Parties:

“Kyle” (a pseudonym) (Plaintiff)
Secretary, New South Wales Department of Communities and Justice (Intervenor)

Representation:

Solicitors:
Freedman & Gopalan Solicitors (Plaintiff)
Crown Solicitor’s Office (Intervenor)

File Number(s):

2023/460903

Publication restriction:

This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW).

JUDGMENT

Introduction

1. HIS HONOUR: This case raises the crucial issue of whether the consent of a birth father is necessary (or can be dispensed with) in circumstances where a child, who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent to an adoption, gives his or her “sole consent” to his or her adoption.

2. I will refer to the child proposed to be adopted as “Edmund” (a pseudonym). The application before the Court was made by Edmund’s step father, the proposed adoptive father, whom I will refer to as “Kyle” (a pseudonym). I will refer to Edmund’s birth father as “John” (a pseudonym) and his birth mother as “Marika” (a pseudonym).

3. There is no paucity of caselaw which addresses the issue. Such caselaw as there is has proceeded on the basis that a birth father’s consent is not required. However, there are certain provisions of the Adoption Act2000 (NSW) (Adoption Act) which might give the impression that a birth father’s consent is necessary. Uninformed by the legislative history of adoption in New South Wales, it would not be strange or unusual to suppose that a birth father’s consent to the adoption of his child might be a necessary requirement to adoption.

4. In this judgment, any section references will be to the Adoption Act unless otherwise specified.

Issues

5. Ultimately, the answer to whether or not a birth father’s consent is a necessary requirement (consent issue) depends upon the application of principles of statutory construction.

6. In the event that it is determined that a birth father’s consent is unnecessary, there is a related issue as to which matters may permissibly be taken into account in determining whether or not notification to the birth father of the application for the adoption order is able to be dispensed with (notification issue).

7. Lastly, subject to the above-mentioned issues, an issue arises as to whether an adoption order should be made (adoption issue). In respect of the adoption issue, whilst it was not the subject of any express submissions, I will briefly address the provisions of both ss 30(1)(d) and 90(3), which are in remarkably similar terms to each other, in order to explore and tease out the differences between those provisions.

Assistance

8. From time to time, the Court is assisted by the Crown Solicitor in the interests of the Secretary, New South Wales Department of Communities and Justice, and occasionally also by amicus curiae, in relation to important issues in proposed adoptions: e.g. OA v Secretary, Department of Communities and Justice [2019] NSWCA 322.

9. In the circumstances of this case, two particular issues arose which led me to list the matter and seek assistance.

10. The first issue related to the question which I have identified above, namely the issue of whether or not John’s consent is required and, if required, what notification or attempted notification in respect of seeking such consent or dispensing with such consent might be required.

11. The second issue arose in the event that John’s consent is not required, and concerned the questions of whether notification of the application is nonetheless required, the means of any such notification to John, and whether notification of the application should be dispensed with.

12. Some sensitivity attached to both issues in circumstances where some of the evidence before the Court suggested that there might be some reluctance on the part of Marika for John to be notified or involved.

13. Ms Hailstone appeared for the Secretary and Ms Gopalan appeared for Kyle.

14. I granted leave under s 143(2) of the Adoption Act and r 56.12 of the Uniform Civil Procedure Rules 2005 (NSW) for the Secretary to uplift and inspect the Court file. This was to assist the Secretary in providing submissions in respect of:

1. whether John’s consent is required (or, put another way, whether Edmund’s sole consent is sufficient);

2. whether, if John’s consent is required, and in the absence of such consent, an order could be made dispensing with the requirement for John’s consent pursuant to s 67; or

3. whether, if John’s consent is not required, the requirement for notice on John can be dispensed with.

15. Ms Hailstone, as principal solicitor for the Crown Solicitor, and Ms Jorgensen, a solicitor in the employ of the Crown Solicitor, provided written submissions dated 11 April 2024. I have been considerably assisted by those submissions and express my gratitude to Ms Hailstone and Ms Jorgensen for assisting the Court in this way. For convenience, I will refer to the submissions on behalf of the Crown Solicitor as submissions by Ms Hailstone. 

Approach and summary of outcome

16. First, I have determined that, in the circumstances where a child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent to an adoption gives his or her sole consent to the adoption, no other consent is required, including from the birth father.

17. The issue regarding whether the consent of a particular person to a proposed adoption is required is significant. “Consent” is a concept which permeates many areas of law. In addressing consent, and the reasons why consent may or may not be required in relation to an important issue, it is helpful to have some conception of what is meant by “consent”. For that reason, I will make some observations below about the nature of consent.

18. In addition to the significance of the outcome to Edmund, Marika and Kyle, it is evident that the Secretary would be assisted by a detailed examination of the issue. For those reasons, I have undertaken a relatively in-depth review of the pre-Adoption Act legislation, the review by the New South Wales Law Reform Commission (Commission), the legislative progress of the Adoption Bill 2000 (NSW) (Adoption Bill) (including second reading speeches), the Adoption Act itself and subsequent amendments to ss 30, 52 and 54 in addressing the context and purpose of the consent provisions of the Adoption Act. In light of that review, I have considered the text of the provisions in ss 30, 52 and 54.

19. I detail below the reasons for my finding on the consent issue. However, in summary my reasons are as follows.

1. Textually, the provisions of s 30(1)(c) (as distinct from ss 30(1)(a), (b) and (d)) have a signalling purpose, rather than a jurisdictional purpose. Read in the way I propose, s 30(1)(c) sits harmoniously with s 54(2) (when read with ss 54(1)(c) and 52). Were it read otherwise, the two provisions would appear to clash.

2. Contextually and purposively, as important as the question of consent is in relation to adoption cases, a review of the pre-Adoption Act legislation, the Commission’s review, the legislative progress of the Adoption Bill, the Adoption Act itself and subsequent amendments to ss 30, 52 and 54 does not suggest that the birth father’s consent is required in adoptions by a step parent.

20. Secondly, in light of the facts I note below, I am satisfied that there should be dispensation with notice of the application for the adoption order to John on the basis that John cannot, after reasonable inquiry, be identified let alone located for the purposes of giving notice.

21. Thirdly, in light of all the circumstances of the case, including facts derived from affidavits and other materials in support of the application for adoption (including the s 91 report), which facts I have fully considered but for the purposes of anonymity have not recited in the judgment, I am satisfied that an adoption order ought to be made in favour of Kyle, noting that the provisions of s 95(3) of the Adoption Act have the effect that Marika does not cease to be regarded in law as Edmund’s parent.

Facts

22. For the purposes of addressing the consent issue and the notification issue, the essential facts are as follows.

23. Edmund was born in 2009 and is currently aged 15. He lives with Marika and Kyle. John has not had contact with Edmund since his birth. There are reasons (on which I will not elaborate in this judgment) as to why Marika is reluctant for John to be contacted or notified. Kyle was previously married and has one child from that relationship who is over 18. Marika and Kyle married in 2015 and have had a child together; the child was born in 2016 and is a half-brother to Edmund.

24. Marika has not had contact with John since she had informed him of her pregnancy in October 2008. The discussions between them on that occasion, according to Marika, gives reason to think that John, at least at that time, had no desire to be involved with Edmund.

25. The initial materials in the matter suggested that Marika might no longer be able to accurately identify a surname for John. However, following a court listing to address principally the notification issue, Marika provided a given name and surname for John. Nonetheless, the provision of the surname was qualified by a statement to the effect that she “is unsure as to the spelling of his surname but believes that it could be…”: Affidavit of Maxwell Gerard Turner affirmed 29 May 2024 (Turner Affidavit) at Annexure B.

26. Further, at some stage soon after Marika had discovered that she was pregnant and informed John, she proceeded to delete his telephone number from her phone and subsequently changed phones: Turner Affidavit at Annexure B.

27. Mr Turner, a family history researcher employed by the Crown Solicitor’s Office, undertook various searches to locate John using the social media platform Facebook. He used several spelling variations of the given name and surname provided by Marika, but did not identify any actual or “suitable” matches to the person to whom Marika referred. He located dozens of individuals located around the world and then identified three such individuals with connections to Australia, the surnames of whom were close but not an exact match: Turner Affidavit at [8]-[10].

28. I requested the Secretary to file and serve an affidavit regarding further search action to locate John. Ms Hailstone provided an affidavit affirmed 17 June 2024, in which she indicated that she had arranged for skip tracing to be undertaken (Hailstone Affidavit).

29. Whilst somewhat upsetting for her, Marika was able to provide a little more information regarding John via Ms Gopalan. However, an interim skip tracing report returned no results matching the name given by Marika: Hailstone Affidavit at Annexure B. The closest matching name, having regard to the ages of the persons identified by the results, belonged to someone aged 58 in 2008: Hailstone Affidavit at Annexure B. The little detail that has been provided about the matter suggests to me that, having regard to their respective ages in 2008, it is highly unlikely that that person (noting in any event that the name is not an exact match) is the person who is Edmund’s birth father.

Consent conceptualised

30. Given the significance of the consent issue in these proceedings, it is important to have some understanding of what consent is, how it applies in adoption cases and how its importance might bear upon the proper approach to construing the Adoption Act.

What is consent?

31. One might think that consent is a simple concept, yet it is underpinned by profound principles which impact and pervade much of human life.

32. Morphologically, “consent” derives from the roots “con” meaning “together” and part of the verb “sentire” meaning “to feel think or judge”: Peter W Young, The Law of Consent (1986, The Law Book Co Ltd) (Young) at 12. The essential notion is to “think together” or “agree together”.

33. The Macquarie Dictionary defines the noun “consent” as “assent; acquiescence; permission; compliance” and “agreement in sentiment, opinion, a course of action, etc [for example]: by common consent”. It defines the verb as “(sometimes followed by to) to give assent; agree; comply or yield [for example]: to consent to the request; to consent to do this”: Macquarie Dictionary, online ed.

34. Other dictionaries, including legal dictionaries, are replete with definitions of “consent” in numerous contexts: see e.g. Young at 12-13.

Common characteristics regarding consent

35. For legal purposes, it is often necessary to distinguish “consent” from other concepts of “submission”, “acquiescence” or “permission”: Young at 12.

36. Whilst recognising that it is virtually impossible to comprehensively distil the essential characteristics of consent, Peter Young advanced a number of general propositions in his extracurial survey of the law of consent which are noteworthy: Young at 14-16.

37. The common, though not universal, characteristics of consent set out by Young include the following (which I have summarised):

1. consent is relational (in the sense that it is an act involving two or more people);

2. consent involves an act of reason accompanied by deliberation;

3. consent is voluntary; and

4. consent involves a choice between at least two options.

38. The notion of consent generally assumes that the consenting party has some right, privilege, entitlement or freedom which will be impacted by the proposed action or inaction. At a highly generalised level, the relevance of consent is that it deprives the consenting party of the ability to complain about the consequences of the matter to which consent was given: Young at 3.

39. The form of consent applicable in any given situation will generally be informed by reference to the nature of the right, privilege, entitlement or freedom that will be impacted by the decision of consent and the consequences that flow from giving the consent.

40. The consequences flowing from the giving of consent may be momentary and impact to little or no degree upon the consenting party’s right, privilege, entitlement or freedom. On other occasions, it may be enduring and involve significant impact or sacrifice on the part of the consenting party.

38. Sometimes in law, there may be circumstances in which consent may be seemingly involuntary, yet it is nonetheless effective or binding. For example, a contract procured by duress will generally be regarded as voidable based on the notion that the party’s will is deflected, rather than destroyed: Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 45F-G per McHugh JA (as his Honour then was), citing Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 695 per Lord Simon of Glaisdale.

39. In other cases, the appearance of consent (as distinct from actual consent) may be the relevant legal issue: Young at 5.

40. However, as will be seen below, the consequences of consent in some circumstances are so weighty and far-reaching that the law requires that it be filtered through a rigorous process before a court is prepared to act upon the consent. This is to ensure that the consent has not merely the appearance of volition, but the actuality of volition which is well-informed and enduring. Consent to adoption is one such case, due of the gravity of the nature of an adoption order.

Consent in adoption cases

44. It would not be an understatement to say that parentage of children is one of the most fundamental privileges of human life.

45. The importance of the tasks and responsibilities of parentage is both highlighted and underpinned by numerous legal provisions, both international and domestic.

46. Indeed, this Court has an entire jurisdiction, the parens patriae jurisdiction, premised on the Court being able to intervene where necessary in a supervisory parental role in the care of persons, including children, who are unable to care for themselves.

47. An adoption order made by the Court gives sole parental responsibility for a child to the person or persons named in the order: s 95(1). Crucial relational, property and other consequences flow from the making of the order: s 95(2). Indeed, an entire Part of the Adoption Act (being Pt 11) is dedicated to setting out the legal effect of adoption orders.

48. Fundamental to adoption is the notion of consent. The gravity with which the law considers consent to adoption is judged at least by reference to the rigour with which it seeks to ensure that the consent is well-informed, well-considered and enduring.

49. The significance of consent is reflected in the fact that the word appears, including in the various expressions of “consents”, “consented” and “consenting”, approximately 270 times throughout the Adoption Act.

50. A distinction is made between the giving of “general consent” to the adoption of the child by an adoptive parent or parents selected by the Secretary or principal officer of an accredited adoption service provider (s 53(1)(a)) and “specific consent” to the adoption of the child by a specified adoptive parent, being a relative, step parent or authorised carer who has had care responsibility for the child for two years or more: s 53(1)(b). The distinction between a general consent and a consent to the adoption of the child by a specified person previously existed in the Adoption of Children Act 1965 (NSW) (1965 Act): see ss 6, 25(3), 27(1), (2) and 34 1965 Act.

51. Parties involved in adoption arrangements are required to consider certain matters and be provided with support so that, at a critical early stage, their understanding of their rights, the processes involved and the outcome is well-conditioned. In this way, when an adoption is ultimately finalised, the risk of regrets and disputes is minimised.

52. The Adoption Act ensures that “consent” has the above-mentioned qualities by specifying various preconditions to the giving of consent. These preconditions require patience, information, formality, advice, verification of advice and time for reflection on the part of the consenting party so that the consent ultimately given is “effective”, having been tested and refined. This is done by steps which:

1. minimise the making of rash decisions, including by precluding consent to adoption for at least 30 days after the child is born: s 60(a);

2. require the consent to be informed by the provision of mandatory written information, such written information addressing important considerations including the alternatives to the adoption, financial and other support services available and possible emotional effects, both short and long term, of relinquishing the child for adoption: ss 57, 59;

3. precondition consent by counselling: ss 61(3), 63;

4. require formality to attend the consent through an “instrument of consent”, signature and certification by a counsellor that the consenting party understands the effect of signing the instrument of consent: s 61;

5. require the witness to the consent, before witnessing, to certify that the witness is not aware of any mental, emotional or physical unfitness of the consenting party to give consent: s 62(2);

6. require the witnessing of the consent to be by a person independent of the counsellor: s 62(1);

7. give time for reflection by precluding the giving of consent for at least 14 days after the consenting party is given a copy of the instrument of consent and the mandatory written information: s 60(b); and

8. permit a revocation period to revoke consent: s 73.

53. Other requirements are specified in relation to the giving of consent to the adoption of certain children, including for example the adoption of an “Aboriginal child”: s 64.

54. Further, the Adoption Act recognises that there may be situations in which the consent of certain parties is not forthcoming, notwithstanding opportunities to consent, and provides a framework through which the consent may be dispensed with: ss 66-72.

Review of the pre-reform adoption law

Adoption of Children Act 1965(NSW)

55. Prior to the commencement of the Adoption Act, the relevant consent provisions for children aged between 12 and 17 (inclusive) were addressed in s 26(4A) of the 1965 Act. In context, the consent provisions were set out in ss 26, 27 and 33 as follows:

26 Consents of certain persons to adoptions required

(1) Subject to this Division, the Court shall not make an order for the adoption of a child unless consent (not being a consent that has been revoked in accordance with this Act) to the adoption has been given by the appropriate person or persons ascertained in accordance with the provisions of subsection (2), (3), (4) or (4A) or (except in a case to which subsection (4A) applies) the Court is satisfied that there is no such appropriate person.

(2) In the case of a child who has not previously been adopted and whose parents were married to each other at the time of the child’s conception or, if they were not so married, have subsequently married each other, the appropriate persons are every person who is a parent or guardian of the child.

(3) In the case of:

(a) a child (not being a child to whom paragraph (b) applies):

(i) who has not previously been adopted, and

(ii) whose parents were not married to each other at the time of the child’s conception and have not subsequently married each other,

the appropriate persons are every person who is the mother or guardian of the child, and

(b) a child:

(i) who has not previously been adopted,

(ii) whose parents were not married to each other at the time of the child’s conception and have not subsequently married each other, and

(iii) whose parents lived together after the child’s birth as husband and wife on a bona fide domestic basis in a household of which the child formed part,

the appropriate persons are every person who is a parent or guardian of the child.

(3A) A person who is the putative father of a child referred to in subsection (3) and who:

(a) does not have the custody of the child under a court order, or

(b) is not or is not deemed to be the guardian of the child, to the exclusion of, or in addition to, the mother or other guardian, under a law of the Commonwealth or of another State or a Territory of the Commonwealth,

is not a guardian of the child for the purposes of that subsection.

(4) In the case of a child who has previously been adopted, the appropriate persons are every person who is an adoptive parent or a guardian of the child.

(4A) In the case of a child who, before the making of the adoption order:

(a) has attained the age of 12 years but not the age of 18 years, and

(b) has been brought up, maintained and educated as the child of the applicant or applicants for the period of 5 years before the making of the application,

the only appropriate person is the child.

(5) The consent of a person under this section is not required if that person is the applicant, or one of the applicants, for the adoption order.

(6) This section does not apply in the case of a child who has attained the age of eighteen years before the making of the adoption order.

(7) Where in relation to an application for an adoption order made after the commencement of the Children (Equality of Status) Act 1976 all the consents given were, on the date or dates on which they were given, the only consents required under this section and those consents have not since been lawfully revoked, but since that date or, as the case may be, the date on which the last of those consents was given a further consent would, but for this subsection, be required to be given under this section, the Court shall not refuse to make the adoption order on the ground that that further consent has not been given.

27 Consents to be general except where in favour of a parent or relative

(1) For the purposes of section 26 but subject to subsection (2) of this section, every consent to the adoption of a child shall be a consent to the adoption of the child by any person or persons in accordance with the law of New South Wales, and shall have effect accordingly in relation to an application for adoption made by any person or persons in accordance with this Act.

(2) Subsection (1) does not apply in relation to a consent expressed to be a consent to the adoption of a child by a relative of the child, or by two persons one of whom is a parent or relative of the child.

…

33 Consent of child

(1) Subject to this Division, an order for the adoption of a child who has attained the age of twelve years shall not be made unless the child has consented to the adoption or, where the child has not attained the age of eighteen years, the Court is satisfied that there are special reasons, related to the welfare and interests of the child, why the order should be made notwithstanding that the child has refused to consent to the adoption or his or her consent has not been sought.

(2) Section 26 does not prevent the Court from making an order under this section without the consent of the child.

Reference to the Commission

56. In November 1992, the then Attorney General for New South Wales, the Honourable John Hannaford MLC, referred various matters to the Chairman of the Commission for inquiry and report, including a review of the scope and operation of the 1965 Act.

57. The specific terms of the reference were received by the Commission on 1 December 1992, and the Commission began its review of the 1965 Act that month. In May 1993, the Commission released an Issues Paper for public discussion. In April 1994, a more extensive paper (Discussion Paper 34) was released for public comment.

The Commission’s report

58. In March 1997, the Commission published its report: Report 81 (1997) – Review of the Adoption of Children Act 1965 (NSW) (Report).

Overview

59. The Commission made 110 recommendations. In the executive summary to the Report, the Commission recommended that the 1965 Act be rewritten with a number of aims in mind, including characterising adoption by openness.

60. The Report as published contained a draft Adoption Bill 1997, together with an explanatory note.

61. The Report contained 11 chapters, including chapters addressing the concept of adoption (Chapter 2), the adoption process (Chapter 3) and openness in adoption (Chapter 7).

62. Relevantly, the Report specifically addressed particular categories of adoption (Chapter 4) and consent to adoption (Chapter 5).

63. Within Chapter 4, the Report identified broadly five categories of adoption, being: (1) adoption of adults; (2) adoption by step parents and other relatives; (3) adoption of children in care; (4) adoption of children in private placements; and (5) adoption of children with special needs.

64. Chapter 5 covers several topics dealing with consent to adoption, namely: ensuring informed and voluntary consent; the birth father’s consent; the consent of the child; dispensing with consent; and the participation of the birth parents.

65. The structure of the Report is such that it addressed the then current law and practice, identified proposals in the Discussion Paper, summarised the submissions and responses and provided conclusions thereon.

Step parent adoptions

66. The Commission noted that much of the literature on adoption combined the treatment of step parent adoptions and relative adoptions in one category, termed “intrafamily adoptions”. It was noted that, while there is a significant amount of overlap between the two categories, there were distinct considerations attaching to each which required separate treatment: Report at [4.25]. It was observed that step parent and relative adoptions differ from other types of adoptions in that agencies do not select the adoptive parents. Instead, the issue is whether the existing care arrangement should be transformed into an adoption: Report at [4.26].

67. In the case of step parent adoptions, the Commission noted that the purpose of seeking the adoption order is not to place the child in the permanent care of a family, as the child is already, and will remain, in the care of the applicants: Report at [4.56]. Rather, the Commission considered that step parent adoptions are usually for the following reasons (Report at [4.57]):

• to give permanency to the new parenting relationship;

• to confer full parental rights and obligations on the step parent, of particular relevance if the custodial parent dies;

• to give the same status to all children within the new family;

• to strengthen relationships within the new family;

• to enhance normality and stability within the new family;

• to express the step parent’s commitment to the child;

• to change the child’s surname to that of the step parent;

• to ensure maintenance rights for the child;

• to give the child automatic inheritance rights from the step parent;

• to exclude the non-custodial parent and his or her extended family;

• to break links with the past; or

• to give an ex-nuptial child legitimacy.

68. In the Commission’s view, the greatest disadvantage of step parent adoption (as in the case of relative adoption) was its potential to militate against flexible and regular access between the child and his or her birth parents: Report at [4.83].

Consent to adoption for child aged 12 to 17 years

69. The then current law and practice was that an order for an adoption of a child who had attained 12 years of age could not be made unless the child consented to the adoption. In this respect, the child’s consent was specific: Report at [5.115].

70. The child’s consent was the only consent required where the child was aged from 12 to 17 years and had been brought up, maintained and educated by the applicants for a period of five years before the making of the application: Report at [5.117]; s 26(4A) 1965 Act. However, s 33(2) of the 1965 Act allowed the Court to make an adoption order for such a child where the child’s consent had not been given.

71. The position under the 1965 Act was that consent to the adoption of a child was generally required from the birth mother and father who were married or who lived in a “common household”: Report at [5.87]; ss 26(2), (3)(b) 1965 Act. However, where the child was ex-nuptial and the birth mother and father did not live together after the child’s birth, the Commission noted that consent was generally only required from the mother: Report at [5.87]; s 26(3)(a) 1965 Act.

72. The Commission noted that although the consent of a birth father to the adoption of an ex-nuptial child may not be required (depending on whether he has an established relationship with the child or the child’s mother: s 26(3) 1965 Act), the 1965 Act still required an agency to notify such fathers of the birth mother’s consent or the impending adoption before the adoption order is granted by the Court: Report at [5.92]; ss 31A and 31E 1965 Act.

73. Ultimately, the Commission recommended (under Recommendation 46) that legislation should provide that consent to the adoption of a child under 18 years should be obtained from every person who is a parent or guardian of the child or who has parental responsibility for the child, except (inter alia) where the child has attained the age of 12 years, in which case consent is only obtained from the child.

The Commission’s draft Adoption Bill 1997

74. The proposals in the draft Adoption Bill 1997 for relative adoption (cl 28, cf s 29 Adoption Act), step parent adoption (cl 29, cf s 30 Adoption Act), consent of parents and guardians (cl 38, cf s 52 Adoption Act) and consent of a child aged 12 to 17 years (cll 39, 40, cf ss 54(1)(c) and (2) Adoption Act) were as follows:

28 Adoption by a relative

The Court is not to make an adoption order in favour of a relative of a child unless:

(a) specific consent to the adoption of the child by the relative has been given in accordance with this Act, and

(b) the child has established a relationship of at least 5 years’ duration with the relative.

Note. Specific consent is defined in section 41.

29 Adoption by a step parent

The Court is not to make an adoption order in favour of a step parent of a child unless:

(a) the step parent has lived with the child’s birth or adoptive parent for a continuous period of not less than 3 years immediately before the application for the adoption order, and

(b) consent to the adoption of the child by the step parent has been given in accordance with this Act by the appropriate persons, and

(c) the child has established a relationship of at least 5 years’ duration with the step parent.

…

38 Consent of parents and guardians (cf AC Act s 26)

An adoption order is not to be made in respect of a child who is less than 18 years of age unless consent has been given:

(a) in the case of a child who has not been previously adopted:

(i) by each birth parent of the child, and

(ii) by any guardian of the child, or

(b) in the case of a child who has previously been adopted—by each adoptive parent or guardian of the child.

39 When consent of parent or guardian not required (cf AC Act s 26 (4A), (5))

Consent is not required under section 38 if:

(a) the requirement for the consent has been dispensed with by order of the Court, or

(b) the child in respect of whom the adoption order is sought is 12 or more years of age and has consented to his or her adoption by the applicant or applicants, or

(c) the parent whose consent would otherwise be required by section 38 is an applicant, or

(d) the parent whose consent would otherwise be required by section 38 has as a result of a court order ceased to have parental responsibility in respect of the child.

Note. Parental responsibility is defined in Part 1 of the Dictionary.

40 Consent of child (cf AC Act ss 26 (4A), 33, 38 (2A))

An adoption order in relation to a child who is 12 or more but less than 18 years of age is not to be made unless:

(a) the child consents to his or her adoption by the applicant or applicants, or

(b) the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order even if the child has refused to consent to the adoption or is incapable of giving consent.

75. The explanatory note accompanying the Commission’s draft Bill stated the following in respect of those clauses:

Clause 28 prevents the making of an adoption order in favour of a relative unless specific consent to the adoption of the child by that relative has been given and the child has established a relationship of at least 5 years’ duration with the relative.

Clause 29 prevents the making of an adoption order in favour of a step parent unless the step parent has been living with the child’s birth or adoptive parent for at least 3 years before the application for adoption and consent to the adoption has been given by the appropriate persons.

…

Clause 38 requires the consent of the parents or guardians of a child to be obtained before the making of an adoption order in respect of a child who is less than 18 years of age.

Clause 39 sets out the circumstances in which the consent of a parent or guardian will not be required.

Clause 40 requires the consent of a child who is 12 or more but less than 18 years of age to be obtained before the making of an adoption order unless the Court orders otherwise in exceptional circumstances.

Legislative progress of the Adoption Bill

Explanatory Note

76. The Explanatory Note accompanying the first print of the Adoption Bill provided as follows in respect of Pts 1 and 5 of Ch 4 of the Bill:

Part 1 contains clauses 22–31. It confers jurisdiction on the Supreme Court (the Court) to hear and determine proceedings for the making of adoption orders and to make other orders under the proposed Act. The Part describes the children who may be adopted and the persons who may adopt them and sets out the consent and other requirements that must be satisfied before the Court can make an adoption order in favour of one person, a couple, a relative or a step parent, or for the adoption of a non-citizen child.

…

Part 5 contains clauses 52–74. It sets out the consents that are required before an order can be made for the adoption of a child. The consent of the parents or guardians of a child who is less than 18 years of age and of the child must (except in specified circumstances) be obtained before the making of an adoption order (clauses 52, 54, 55 and 56).

The Part describes the ways consent can be given, when it can be given, the form it is to take, the need for it to be appropriately witnessed and the requirements that must be met for it to be effective (clauses 53 and 57–65). Provision is made to require a person to be given mandatory written information, and to be counselled, before giving consent (clauses 59 and 63). It includes certain additional requirements for consent to the adoption of Aboriginal and Torres Strait Islander children is to be effective.

The Part enables the Court to by order (a consent dispense order) dispense with the requirement for the consent of a person other than the child or of the child in specified circumstances (clauses 67 and 69, respectively). Provision is made for the giving of notice of consent dispense orders and for their revocation.

The Part also provides for the revocation of consents (clauses 73 and 74).

First print of the Adoption Bill

77. The first print of the Adoption Bill relevantly provided cll 29, 30, 52 and 54 in the following form:

29 Adoption by relative

The Court must not make an adoption order in favour of a relative of a child unless:

(a) specific consent to the adoption of the child by the relative has been given in accordance with this Act by the appropriate person or persons specified in section 53 (b), and

(b) the child has established a relationship of at least 5 years’ duration with the relative, and

(c) the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child.

Note. Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 or a parenting order under the Family Law Act 1975 of the Commonwealth.

30 Adoption by step parent

The Court must not make an adoption order in favour of a step parent of a child unless:

(a) the child is at least 5 years old, and

(b) the step parent has lived with the child and the child’s birth or adoptive parent for a continuous period of not less than 3 years immediately before the application for the adoption order, and

(c) specific consent to the adoption of the child by the step parent has been given in accordance with this Act by the appropriate persons, and

(d) the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child.

Note. Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 or a parenting order under the Family Law Act 1975 of the Commonwealth.

…

52 Consent of parents and guardians generally required (cf AC Act s 26)

The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given:

(a) in the case of a child who has not been previously adopted by:

(i) each parent of the child, and

(ii) any guardian of the child, or

(b) in the case of a child who has previously been adopted—by each adoptive parent or guardian of the child.

…

54 When consent of parent or guardian 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) and the Director-General or appropriate principal officer has given reasonable notice, or used their best endeavours to give reasonable notice, of the application for the adoption order to the parent or guardian whose consent would otherwise be required, 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 in the care of the proposed adoptive parent or parents for at least 5 years.

Note. Parental responsibility is defined the Dictionary.

Second reading speeches

78. The draft Adoption Bill was introduced to Parliament in the Legislative Assembly on 21 June 2000 and read a first time: New South Wales Legislative Assembly, Parliamentary Debates (Hansard) (LA Hansard), 21 June 2000 at 7329. Its reading came immediately after the introduction of a related draft Bill, being the Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill 2000: LA Hansard (21 June 2000) at 7327.

79. The second reading speech in the Legislative Assembly was given by the Honourable Faye Lo Po’ (Minister for Community Services, Minister for Ageing, Minister for Disability Services and Minister for Women) immediately following the first reading: LA Hansard (21 June 2000) at 7329.

80. In her speech, the Minister made reference to the role of birth fathers as follows (LA Hansard (21 June 2000) at 7330)

… The previous adoption Act was unclear, particularly as it applied to birth fathers of adopted children, and there has been confusion as to how birth fathers could establish their rights. The bill clarifies the rights and entitlements of birth parents. …

81. Relevantly, the Minister also made reference to issues relating to adoptions by step parents and more generally the concerns of parents in making decisions about adoption following the birth of their child, and explained the proposed changes designed to address such issues and concerns (LA Hansard (21 June 2000) at 7330):

At present, a step-parent wanting to adopt his or her stepchild must make a joint application with the custodial parent, who must first relinquish his or her child for adoption. Not surprisingly, this requirement is considered by most applicants to be offensive. A step-parent will be able to make sole application without having legal effect on the custodial parent's relationship with the child. However, step-parents and foster parents are required to have an established relationship with the child. The bill has responded to the concern expressed by many parents about their vulnerability and capacity to consider properly the effects of an adoption immediately following the birth of their child. The period of time before consent can be given has been extended from three to 30 days after the birth of the child. The order for adoption cannot be made before the expiration of a further 30-day revocation period. This period of 60 days will enable adoption counselling for the parent and for better consideration to be given to the most appropriate caring arrangement for the child.

82. In the Legislative Council, the second reading speech was given by the Honourable Carmel Tebbutt (Minister for Juvenile Justice, Minister Assisting the Premier on Youth and Minister Assisting the Minister for the Environment) on 5 September 2000: New South Wales Legislative Council, Parliamentary Debates (Hansard) (LC Hansard), 5 September 2000 at 8640. The Minister made similar comments to those made in the Legislative Assembly extracted above (at 8641):

Under the Adoption of Children Act 1965 the court can dispense with consent to the adoption of a child. The provisions in this bill do not extend the current provisions and require that the court must not dispense with consent unless it is satisfied that to do so is in the best interests of the child. Guidance is provided to the court in determining the best interests of the child. At present, a step-parent wanting to adopt his or her stepchild must make a joint application with the custodial parent. The custodial parent has to first relinquish his or her child for adoption. Not surprisingly, this requirement is found by most applicants to be offensive. A step-parent will be able to make sole application without having legal effect on the custodial parent’s relationship with the child. However step-parents and foster parents are required to have an established relationship with the child.

The bill has responded to the concern expressed by many parents about their vulnerability and capacity to properly consider the effects of an adoption immediately following the birth of their child. The period of time before consent can be given has been extended from three to 30 days after the birth of the child. The order for adoption cannot be made before the expiration of a further 30-day revocation period. This period of 60 days will enable adoption counselling for the parent and for better consideration to be given to the most appropriate caring arrangement for the child.

Progress through Parliament

83. Following the introduction of the Adoption Bill on 21 June 2000, there was considerable debate in the Legislative Assembly over the Bill’s contents. That took place on 21 and 29 June and on 8, 9 and 16 August 2000. It is evident from some of that debate that the topics of consent and step parent adoption were discussed: e.g. LA Hansard (8 August 2000) at 7983, 7987 and 7988; LA Hansard (9 August 2000) at 8081. Similar debate also took place in the Legislative Council on 5 and 6 September and 10 October 2000: e.g. LC Hansard (5 September 2000) at 8644-8645; LC Hansard (6 September 2000) at 8699, 8706-8708, 8713, 8720; LC Hansard (10 October 2000) at 8836-8837, 8848.

84. The Legislative Assembly moved the Bill into Committee on 16 August 2000 and some amendments to clauses were proposed and agreed to: see LA Hansard (16 August 2000) at 8230-8239. Clauses 24 to 31 (i.e. including those in respect of relative and step parent adoptions) were agreed to without amendment, as were cll 33 to 57: LA Hansard (16 August 2000) at 8233-8234. Amendments were made to cl 58(3), which dealt with the ineffectiveness of consent if it is revoked, so that the revocation period was changed to provide a more specific timeframe by reference to the time allowed in s 73: LA Hansard (16 August 2000) at 8234.

85. Hansard also records amendments made in the Legislative Council in respect of cl 58(4), which dealt with consent given by a birth parent who is less than 18 years of age: LC Hansard (10 October 2000) at 8841. However, no amendments were made to the relative and step parent provisions in cll 29 and 30 or the consent provisions in cll 52 and 54.

86. On 31 October 2000, the amended Bill returned to the Legislative Assembly for consideration of the Legislative Council’s amendments. The amendments were agreed to: LA Hansard (31 October 2000) at 9411-9412.

Assent

87. The Adoption Bill was assented to on 9 November 2000: New South Wales Government Gazette, No 148, 17 November 2000, at 11762.

88. In Annexure B to her submissions, Ms Hailstone stated the following:

4.The Adoption Act 2000 generally gave effect to the Commission’s recommendations reflected in the Draft Bill included in Report 81. However, Parliament did not adopt ss. 28 and 29 of the Draft Bill (for step parent adoption and relative adoption respectively), however it did incorporate some of the recommendations, whether because it accepted that intrafamily adoptions are a particular category of adoption for which specific requirements ought to apply, or because relative and step parent adoptions are not subject to the same suitability and assessment requirements as other adoptions, or both.

5. The legislature had before it the recommendations of the Commission and deliberately drafted ss. 29 and 30 in the way it did. Presumably, the differences between ss. 29 and 30 reflect the distinct concerns held by the legislature in relation to relative and step parent adoptions.

89. It is evident that the first print of the draft Bill introduced into Parliament differed from the draft Adoption Bill 1997 in the Commission’s Report. Nonetheless, the inference sought to be drawn in the last sentence of Ms Hailstone’s submission requires an understanding of the process by which draft legislation is brought before Parliament.

90. A draft bill is prepared by the Parliamentary Counsel, acting under instructions from the minister and the minister’s department, and may go through several revisions before being finally prepared for introduction to the Parliament: Parliament of New South Wales, “Legislative process explained” accessed 25 June 2024. Copies of draft bills are not available on the Parliament’s website.

91. It is not apparent from the Adoption Bill’s progress through Parliament set out above that the differences between cll 29 and 30 of the Adoption Bill and cll 28 and 29 of the Commission’s draft Bill were actively acknowledged or debated in either House. Whilst there was reference to cll 29 and 30 in respect of alternatives to adoption and a change was made to cl 90(3) (which I note below), the legislature accepted the drafting of cll 29 and 30 in the form in which they were presented by the Minister.

Subsequent amendment of ss 30, 52 and 54 of the Adoption Act

Amendment of s 30

92. Section 30 has been amended once since the Adoption Act was enacted in 2000, namely in 2008 by items 7-8 of Sch 1 to the Adoption Amendment Act 2008 (NSW) (2008 Amendment Act).

93. The purpose of the amendments was to:

1. omit “3 years” from s 30(b) and insert instead “2 years”; and

2. insert at the end of the section after the note:

(2) Subsection (1) (b) does not apply to the adoption of a child who is 18 years of age or more at the time of the application for the adoption order.

Amendment of s 52

94. Section 52 has been amended once since the Adoption Act was enacted in 2000, namely in 2006 by items 5-6 of Sch 2 to the Adoption Amendment Act 2006 (NSW) (2006 Amendment Act).

95. The amendments were to effect the following changes in terminology:

1. omit “guardian of” from s 52(a)(ii) and insert instead “person who has parental responsibility for”; and

2. omit “parent or guardian of” in s 52(b) and insert instead “parent of, or person who has parental responsibility for”.

Amendment of s 54

96. Section 54 has been amended four times since the Adoption Act was enacted in 2000, namely in 2006, 2008, 2009 and 2010.

97. The first amendment was by items 9-10 of Sch 2 to the 2006 Amendment Act, which effected the following changes in terminology:

1. omit “guardian” from s 54(1)(c) and insert instead “person who has parental responsibility”; and

2. omit “in the care of” in s 54(2) and insert instead “cared for by”.

98. The second amendment was by item 12 of Sch 1 to the 2008 Amendment Act, which omitted “5 years” from s 54(2) and inserted instead “2 years”.

99. The third amendment was by items 1-2 of Sch 1.1 to the Statute Law (Miscellaneous Provisions) Act 2009 (NSW). The amendments were as follows:

[1] Section 54 When consent of parent or person who has parental responsibility not required

Omit “and the Director-General or appropriate principal officer has given reasonable notice, or used their best endeavours to give reasonable notice, of the application for the adoption order to the parent or person who has parental responsibility whose consent would otherwise be required” from section 54 (1) (c).

[2] Section 54 (3) and (4)

Insert after section 54 (2) before the note:

(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.

100. The explanatory note in relation to item 1 described it as a “consequential amendment”. The explanatory note in relation to item 2 was more substantive (despite Sch 1 being titled “Minor amendments”). The note read as follows:

Item [2] of the proposed amendments to the Adoption Act 2000 (the Act) specifies the type of notice of an adoption application that must be given to the birth parent of a child before the child is permitted to give sole consent to his or her adoption. Under the amendments, a child aged between 12 and 18 years of age may give sole consent to his or her adoption if at least 14 days’ notice of the application for the adoption order (containing the prescribed particulars) has been given to his or her birth parents or if the Court dispenses with the giving of notice. At present, the Act requires such notice to be given but does not specify the period for giving the notice or the particulars to be included in the notice.

101. I note that there were also amendments relating to the definitions of “spouse” and “step parent” as follows (items 3-4 of Sch 1.1):

[3] Dictionary

Omit “3 years’” from paragraph (b) of the definition of spouse.

Insert instead “2 years’”.

[4] Dictionary, definition of “step parent”

Omit “3 or more years” from paragraph (b).

Insert instead “2 or more years”.

102. The explanatory note in relation to those amendments was as follows:

The Adoption Amendment Act 2008 reduced the length of time that a step parent and a child must live together before the step parent can adopt the child from 3 years to 2 years. Item [4] makes a consequential amendment to the definition of step parent so that a person is a step parent if the person has been in a de facto relationship (that is, a relationship between a man and a woman who live together as husband and wife but who are not married) with a child’s birth parent or adoptive parent for 2 years (rather than 3 years, as is currently the case). Item [3] makes a similar amendment to the definition of spouse that, for consistency with the provisions relating to step parents, reduces the required length of a de facto relationship from at least 3 years to at least 2 years.

103. The fourth amendment was by Sch 2.1 to the Statute Law (Miscellaneous Provisions) Act 2010 (NSW), which (as is made evident by the explanatory note) simply inserted a missing word, namely “in” after “defined”.

Current form of ss 30, 52 and 54

104. The Adoption Act was last amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 2023 (NSW). Its current form (which was prevailing at the time of the commencement of these proceedings) includes the amendments brought about by that Act, which was assented to on 30 October 2023.

105. Sections 30, 52 and 54 are currently in the following terms:

30   Adoption by step parent

(1)  The Court must not make an adoption order in favour of a step parent of a child unless—

(a)  the child is at least 5 years old, and

(b)  the step parent has lived with the child and the child’s birth or adoptive parent for a continuous period of not less than 2 years immediately before the application for the adoption order, and

(c)  specific consent to the adoption of the child by the step parent has been given in accordance with this Act by the appropriate persons, and

(d)  the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child.

Note—

Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 or a parenting order under the Family Law Act 1975 of the Commonwealth.

(2)  Subsection (1) (b) does not apply to the adoption of a child who is 18 years of age or more at the time of the application for the adoption order.

…

52   Consent of parents and persons who have parental responsibility generally required (cf AC Act s 26)

The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given—

(a)  in the case of a child who has not been previously adopted by—

(i)  each parent of the child, and

(ii)  any person who has parental responsibility for the child, or

(b)  in the case of a child who has previously been adopted—by each adoptive parent of, or person who has parental responsibility for, the child.

…

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 Secretary 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.

Overview of the Adoption Act

Structure

106. Settling on the correct construction of certain provisions within the Adoption Act is aided by an overview of the Act’s structure.

107. The Adoption Act covers a broad range of aspects of adoption. There are 11 chapters, 2 (current) schedules and a Dictionary. For present purposes, only the first 4 chapters need be mentioned.

108. Chapter 1 includes definitions and certain specific meanings.

109. Chapter 2 contains provisions relating to the objects and adoption principles of the Adoption Act.

110. Chapter 3 addresses provisions relevant to adoption service providers.

111. Chapter 4 addresses the adoption process.

112. Specifically, Ch 4 contains the following 12 parts:

1. Pt 1 – General;

2. Pt 2 – Placement of children for adoption;

3. Pt 3 – Selection of prospective adoptive parents other than authorised carers;

4. Pt 3A – Selection of authorised carriers as adoptive parents;

5. Pt 4 – Adoption plans;

6. Pt 5 – Consents to adoptions;

7. Pt 6 – Parental responsibility for children awaiting adoption;

8. Pt 7 – Preliminary hearings;

9. Pt 8 – Interim orders;

10. Pt 9 – Adoption orders;

11. Pt 10 – Procedures after application dealt with; and

12. Pt 11 – Effect of adoption orders.

Types of adoption

113. Part 1 of Ch 4 of the Adoption Act has a number of ways of categorising adoption.

114. First, Pt 1 distinguishes between adoption by one person and adoption by a couple: ss 27 and 28.

115. Secondly, it identifies three specific types of adoption, being: adoption by a relative; adoption by a step parent; and adoption of a non-citizen child: ss 29, 30 and 31 respectively. There are clearly other types of adoption, including adoption involving children in foster care, which are not expressly specified or distinguished between under Pt 1.

116. Whilst it is of no great moment, it may be noted that on its information page provided to the public, the New South Wales Department of Communities and Justice categorises adoptions in a slightly different way to that in the Adoption Act: see Department of Communities and Justice, “Want to adopt?” accessed 25 June 2024. The Department’s website categorises adoptions into the following five types:

1. adoption of a child born or permanently living in New South Wales (“local adoption”);

2. adoption of a child living in foster care (“out-of-home care adoption”);

3. adoption of a child from overseas (“intercountry adoption”);

4. adoption of a child with a disability or special needs (“special needs adoption”); and

5. adoption of a step child or a child within your family (“intrafamily adoption”).

Observations

117. During the second reading speech in the Legislative Assembly, Mrs Lo Po’ noted that the reform of adoption law was “eagerly awaited” and the new law will actively involve parents in planning a secure and loving home for their child’s future and does not undervalue the importance of continuing to maintain a relationship with their child: LA Hansard (21 June 2000) at 7329-7330. The Minister observed at 7330 that:

… Except in extreme cases, an adoption order will be made only when it makes better provision for the best interests of the child than other care arrangements and parenting orders under a law of the Commonwealth or the State.

118. Many of the Commission’s recommendations find expression in the Adoption Act. The second reading speeches highlight a number of the reforms. It is not necessary to refer to, let alone analyse, all of them. Nonetheless, a number of matters bearing upon the issues I have listed above (being the consent issue, the notification issue and the adoption issue) warrant some comment.

119. First, one difference between the 1965 Act and the Adoption Act is that the latter lists both objects of the Act (s 7) and specific principles to be applied in making decisions about proposed adoptions (s 8(1)) which act as guidelines as to the administration of the Act (s 6). Notably, the “best interests” of the child, as the paramount consideration in adoption, is the first listed object and principle: ss 7(1)(a), 8(1)(a) (as recommended by the Commission in the Report’s executive summary at xviii).

120. The notion of the “interests” of the child being the paramount consideration is not new. In the 1965 Act, s 17 reinforced that “the welfare and interests of the child” was the paramount consideration:

17 Welfare and interests of child to be paramount

For all purposes of this Part, the welfare and interests of the child concerned shall be regarded as the paramount consideration.

121. The phrase “the welfare and interests of the child” appeared 10 times (excluding section headings) in the 1965 Act. However, it was largely confined to Pt 4, dealing with “Adoptions under this Act”. That Part dealt with particular matters in respect of adoption orders (ss 17, 19, 21), discharge orders (s 25), consent of the child (s 33) and names of adopted children (s 38).

122. Chapter 2 of the Commission’s draft Adoption Bill 1997 contained three sections addressing adoption principles: s 6, setting out the guiding principles in the exercise of powers concerning adoption; s 7, setting out the paramount principle; and s 8, establishing the duty to identify cultural heritage.

123. As it currently stands, Ch 2 of the Adoption Act has transformed the 1965 Act’s isolated references to the child’s interests into a fundamental framework which is devoted to establishing the roles of the objects and adoption principles of the Act, with particular focus on the participation of the child in decisions. All decisions made pursuant to the Adoption Act are to be undertaken and viewed through the prism of “the best interests of the child, both in childhood and later life,” as the paramount consideration.

124. Secondly, it is obvious that all decision making is generally undertaken by reference to the availability of alternatives.

125. Section 19 of the 1965 Act provided that, in making an adoption order, the Court must be satisfied that, among other things, “the welfare and interests of the child will be better served” by the making of an adoption order than by the making of any other alternative order in respect of the custody, guardianship or placement of the child.

126. Meanwhile, consideration of alternatives in decision making permeates the Adoption Act, with many key sections throughout the Act requiring the decision maker to advert to whether the proposed action is clearly preferable in the best interests of the child toany other actionthat could be taken by law in relation to the child: e.g. ss 29, 30, 90. I will return to this notion of “alternatives” later in dealing with the adoption issue.

127. Thirdly, the drafting of the Adoption Act reveals a number of drafting techniques which bear upon its construction. The following may be noted.

1. Generally, the structure of the Adoption Act is logical and has a coherent form. However, some of the terminology used in relation to similar matters is not always consistent.

2. The Act is in some measure drafted by grouping together all of the provisions for particular aspects of adoptions (e.g. who can adopt, placement for adoption, adoption plans and consents), rather than by grouping together all of the provisions for particular types of adoptions. This “aspect grouping” approach has led to the result that all of the provisions which bear upon particular types of adoptions are not neatly gathered within single sections or divisions. Rather, they are distributed throughout the Adoption Act.

3. At least one of the drafting styles evident in the Adoption Act is the use of the modal verbs “must” and “must not” to reflect necessity and prohibition, respectively. I will return to this matter later.

128. Fourthly, certain criteria, such as some jurisdictional requirements, are common to all adoptions. Other criteria apply to specific adoptions.

129. The question of who can be adopted is addressed by reference to the age of the proposed adoptee: s 24. Section 24 distinguishes between adoption orders in relation to a child who was less than 18 years of age on the date on which the application for the adoption order was made and a child who was 18 or more years of age on that date.

130. The question of who can adopt is answered, at least initially, by reference to adoption solely by or on behalf of one person or jointly by or on behalf of a couple: ss 26-28. As explained above, there are then particular provisions regarding intrafamily adoption by a relative or step parent contained in respectively ss 29 and 30.

Caselaw

131. Ms Hailstone referred to a number of decisions of this Court which, she submitted, bore upon the question of construction as to whether or not satisfaction of s 54(2) (when read with ss 54(1)(c) and 52) overcomes the requirements of s 30(1)(c) (or, put another way, that s 54(2) is not subject to s 30(1)(c)). The decisions are: (1) Re DG and the Adoption Act 2000 [2006] NSWSC 968 (Re DG); (2) Re DG and the Adoption Act 2000 [2007] NSWCA 241 (Re DG – Appeal); (3) Application of MKM & RDM; re SCH [2010] NSWSC 1270 (Re SCH); (4) Adoption of ESF [2014] NSWSC 687 (Adoption of ESF); (5) Adoption of R [2017] NSWSC 270 (Adoption of R); (6) Re WS (No 3) [2017] NSWSC 1160 (Re WS (No 3)); and (7) Adoption of N [2023] NSWSC 709 (Adoption of N).

132. Ms Hailstone provided some helpful commentary on those judgments and I am grateful for her assistance.

133. She submitted that the reasons why the Court in the above cases assumed (or was satisfied) that the consent provisions of s 54(2) are not subject to s 30(1)(c) were not elaborated upon in the respective judgments.

134. I will address the cases and Ms Hailstone’s submissions below.

135. As noted earlier, the form of s 30 changed from that which appeared in the draft Adoption Bill 1997 in the Commission’s Report. Some of those changes were commented upon by Austin J in Re DG at [33]-[44].

136. In Re DG, his Honour gave particular consideration to the terms of s 30(b), which at that point in time (September 2006) was in the form which appears in [20] of his Honour’s reasons:

20. Section 30 says:

“The Court must not make an adoption order in favour of a step parent of a child unless:

(a) the child is at least 5 years old, and

(b) the step parent has lived with the child and the child’s birth or adoptive parent for a continuous period of not less than 3 years immediately before the application for the adoption order, and

(c) specific consent to the adoption of the child by the step parent has been given in accordance with this Act by the appropriate persons, and

(d) the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child.”

A note to s 30 gives examples of other actions that may be taken by law in relation to the child, the examples being the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 (NSW) or a parenting order under the Family Law Act 1975 (Cth).

137. Austin J concluded that, having regard to his examination of the extrinsic materials bearing upon construction, the provisions of s 30(b) were unsupportable in terms of principle and policy when applied to adult adoptions: Re DG at [45]. His Honour reluctantly concluded that the provisions prevented the Court from making the adoption order sought in that case.

138. In Re DG, the specific issue was the “have lived with” requirement under s 30(b). Austin J noted that the “child” (who was in fact an adult with children of her own) had been in the care of her proposed adoptive parents for at least five years (though not immediately prior to the application) as required by (the then prevailing terms of) s 54(2), and had given her consent to the adoption under that section: Re DG at [14]. His Honour noted that, by reference to s 54(1)(d), the consent of the child’s birth father was not required, as she was more than 18 years old. Whilst Austin J considered the particular terms of s 30(b) and referenced certain extrinsic materials, his Honour does not appear to have considered or entertained the possibility that s 30(c) imposed a consent requirement which in some way conflicted with s 54(2).

139. There was an appeal to the Court of Appeal (Re DG – Appeal) in which Basten JA (as his Honour then was) and Handley AJA considered the relationship between s 30 and s 95(3). In relation to the latter, Basten JA stated at [12] as follows:

12. In the present case, it might have been open to the adoptee’s stepfather to apply as a sole applicant. Because he continues to live with the birth parent it seems likely, pursuant to s 95(3), that the relationship between birth parent and adoptee would not cease where the birth parent and step parent are living together. (This conclusion is expressed with some hesitation, because subs (3) is expressed to be “[d]espite subs (1)”, whereas the effect it is reversing appears to be that achieved by sub-s (2)(d).)

140. In considering the interaction between ss 27, 28(2) and 30, Basten JA concluded that s 30 must have been intended to apply both to adoptions by one person and adoptions by couples, stating at [13]-[15]:

13. Because the present application was made by the adoptee’s birth mother and stepfather as a couple, s 28 of the Act applied. Pursuant to s 28(2), the Court could not make an order in favour of the couple, one of them being a step parent, “unless s 30 is complied with”. That provision as explained by Handley AJA, requires in apparently intractable language that the step parent must have lived with the child and the child’s birth parent for not less than three years “immediately before the application for the adoption order”. The effect of this provision, if applicable, is to preclude an adoption order in relation to an adult adoptee who is no longer living in his or her parent’s home immediately before the application for the order is made.

14. That conclusion can be avoided only on one of two approaches. The first is that pursuant to s 28(2), the operation of s 30 only applies in relation to adoption by a couple where one of the couple is a step parent. That, of course, would not apply in the present case, but might allow an application by a step parent alone. However, if that had been intended, the terms of s 30 could have been incorporated directly into s 28(2), rather than by reference. Rather, s 30 must have been intended to apply both to adoptions by one person and adoptions by couples, it being assumed that there was no need to make express reference to it in s 27 because it clearly operated where the order was sought by the step parent alone.

15. The other approach, considered at some length in argument, was that the requirements in s 30(b) could be treated disjunctively, with respect to the child and the other parent. That would in effect require reading-in between the words “for a continuous period of not less than three years” and the words “immediately before the application” words to the effect “and in the latter case”. However, for reasons explained by Handley AJA, that course would exceed the proper limits of the powers of the Court in construing legislation.

141. Whilst referring to s 30, the Court of Appeal in Re DG – Appeal did not have cause to consider the consent requirement in that section.

142. In Re SCH, the child in question was 12 or more years of age and appeared to have initiated the idea of adoption: Re SCH at [2]. Brereton J (as the Commissioner then was) noted that the summons sought an order dispensing with the consent of the child’s birth father, and also an order dispensing with notification to him: Re SCH at [3]. On the question of whether any consent of the child’s birth father was required, his Honour observed that the child had given sole consent in circumstances in which s 54(2) applied and, accordingly, by operation of s 54(1)(c), the birth father’s consent under s 52 was not required and there was no need for a consent dispense order: Re SCH at [5]. His Honour did not refer to, and seemingly was not asked to refer to, s 30.

143. In Adoption of ESF, the application for adoption involved a “child” who was more than 18 years of age. In that context, Darke J noted that no consents to the proposed adoption were required by s 52 “(and therefore no consents are required by s 30(1)(c) of the Act)”: Adoption of ESF at [7]. There was evidence that ESF had formally consented to the adoption order: Adoption of ESF at [12].

144. In Adoption of R, a 35-year-old female sought an order that she adopt her 20-year-old younger brother. It was a case of relative adoption in which the Attorney General of New South Wales intervened in the proceedings. The adoption order was refused by Stevenson J.

226. Some of those matters are relatively straightforward and binary, such as age requirements of the child or proposed adoptive parent: e.g. ss 24(1), 27(2)(a). These are sometimes referred to as formal requirements: e.g. The Adoption of Andrew, Mark and Richard [2024] NSWSC 508 (Adoption of Andrew, Mark and Richard) at [17] per Stevenson J.

227. Some matters are more in the nature of evaluative questions of fact, such as whether the proposed adoptive parent is of good repute and is a fit and proper person to fulfil the responsibilities of a parent (s 27(1)(b)). Such facts, notwithstanding their evaluative nature, are generally regarded as more formal matters to be established and are rarely in dispute.

Nature of evidence and rationales

229. In keeping with the gravity of the subject nature of adoption, there is a rigour to the type of evidence that is presented on adoption applications.

230. I have already referred to the rigour of provisions dealing with the giving and formalising of consent.

231. That rigour is further reflected in the requirements for evidence from referees for proposed adoptive parent(s). In this case, the references from the referees were typed, which is not strictly in accordance with provisions of the reissued Supreme Court Practice Note SC EQ 13 (which commenced on 3 April 2023).

232. The Practice Note states that there must be at least two affidavits made by referees for the proposed adoptive parents, annexing a handwritten referee certificate, made not more than six months before it is filed: Practice Note at [10(d)]. Such referees must not be related to the proposed adoptive parents and must have known the proposed adoptive parents for a period greater than two years. A precedent form of affidavit and format of the referee’s certificate is available on the Court’s website.

233. A number of benefits are derived from these requirements.

234. First, the requirement for the referee not to be related to the proposed adoptive parent reinforces independence.

235. Secondly, the requirement for a minimum time period of acquaintance with the proposed adoptive parent ensures that the referee has had sufficient time to be able to assess the character of the proposed adoptive parent. Our experience of life is that whilst we can meet and interact with people for a very short period, such as a week or a month, and gain an impression of their character, a longer period of time generally allows a more realistic assessment to be made of a person through a greater range of life situations that will reveal the character of that person.

236. Thirdly, the requirement for handwriting emphasises that deposing to the good repute of the proposed adoptive parent is not a matter to be lightly or mechanically addressed, but one in respect of which the referee must give serious consideration. Handwriting, if it is to be neatly presented, cannot be done quickly with anything like the speed of typing. The discipline of handwriting at a deliberate and measured pace likely improves recall and forces the mind to mentally engage with the information recorded. Handwriting also heightens the likelihood that the Court receives an unadulterated account in the referee’s “own words”, rather than an account filtered by the expression of a solicitor or with the assistance of other wordsmiths.

237. Fourthly, the requirement for the reference to be relatively contemporaneous avoids the risks associated with relying upon dated information, in light of the fact that people’s circumstances can change relatively quickly.

238. In this case, the solicitor for Kyle sought an exemption from the requirement that the references be handwritten.

239. Technically, because the “requirement” arises from a Practice Note provision, no exemption is needed. That is in contrast to requirements arising from, for example, rules of court (which the Court has power to dispense with if satisfied that it is appropriate to do so in the circumstances: see s 14 Civil Procedure Act 2005 (NSW) (CPA)).

240. The Chief Justice, as the senior judicial officer of the Court, may issue practice notes for this Court in relation to civil proceedings to which the CPA applies: s 15(1) CPA. Such a practice note must be published in the Gazette, and ss 40 and 41 of the Interpretation Act apply to a practice note in the same way as they apply to a statutory rule: ss 15(2)-(3) CPA; ss 124(11)-(12) Supreme Court Act 1970 (NSW). The effect of these provisions is that practice notes, like rules of court, are subject to the scrutiny of Parliament and may be disallowed by resolution of either House: e.g. Whalley v Commissioner of Police [2003] NSWSC 273 at [13] per Dunford J.

241. Practice notes (unless provided otherwise by legislation) do not have the status of an Act or rule of the Court: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 (Graphite) at [14] per Brereton J (as the Commissioner then was); Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 543 per Mason P. Because the power to issue practice notes is subject to rules of court (see s 15(1) CPA), as a matter of principle, a practice note is subservient to the CPA and cannot be inconsistent with it: Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372 at [14] per Basten JA (as his Honour then was).

242. Practice notes are designed to provide a compass to guide the Court, the litigants, and the legal advisers, as to the general course that will usually be followed; they enable flexibility rather than have binding effect: Oxley v Oxley [2018] NSWSC 91 at [78] per Hallen J. They do not govern court procedure and must yield to the requirements of the individual case. Nonetheless, it will be in a rare case that the Court will depart from their guidance: Graphite at [14].

243. Whilst the requirement for handwritten references is not something that must be exempted if not complied with, it is regarded by the Court as a matter of “best practice”: cf Practice Note at [64]. It should generally be complied with, not merely because it is a technical requirement, but more importantly because its underlying purpose is to provide the Court with cogent and considered evidence upon which to act in relation to adoption applications.

Best interests of the child

244. Satisfaction of the statutory preconditions is not enough to compel the making of an adoption order. This is reinforced by the requirement that the Court must be satisfied that the making of the adoption order is in the best interests of the child.

245. In summary, the paramount consideration in an application for adoption is the best interests of the child the subject of the application; the Court must be satisfied whether the best interests of the child will be promoted by the adoption and that, as far as practicable and having regard to his or her age and understanding, the child’s wishes and feelings have been ascertained and due consideration given to them: Adoption of Andrew, Mark and Richard at [18], citing ss 8(1)(a) and 90(1)(a).

246. Thus, even if every formal precondition is satisfied, there may be facts before the Court which preclude it from being satisfied that the making of an adoption order is in the best interests of the child.

Alternatives to adoption

247. One of the express principles for the decision maker to consider in relation to the adoption of a child, and in particular in determining the child’s best interests, relates to the alternatives to adoption: s 8(2)(k). The principle expressed in s 8(2)(k), to which the decision maker must have regard, is in the following broad terms:

(k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.

248. That principle connects with a number of the mandatory provisions including, relevantly for the purposes of this case, the provisions of s 30(1)(d).

249. Section 30(1)(d) in turn is in remarkably similar terms to those in s 90(3). Both of those provisions preclude the making of an adoption order by reference to the consideration of alternatives of other action that could be taken.

250. The “coincidence” is not limited to those two provisions and the requirement to consider alternatives to adoption appears in a number of other provisions which relate to adoption in various contexts: e.g. ss 29(c), 36 and 106(2)(b).

251. It is apparent that members of Parliament saw a connection between the draft provisions of what are now ss 29(c), 30(1)(d) and 90(3). The expression “is clearly preferable in” was in cll 29(c), 30(d) and 36 of the draft Adoption Bill. However, the draft form of cl 90(3) was as follows (my emphasis):

(3) The Court may not make an adoption order unless it considers that the making of the order would make better provision for the best interests of the child than any other action that could be taken by law in relation to the care of the child.

252. In the Legislative Council’s second reading debate, the Honourable Ian Cohen made reference to an article by International Social Service Australia entitled “7 Problems in the New Adoption 2000 Legislation”: LC Hansard (6 September 2000) at 8705. That article in turn referenced a letter from a senior social worker with International Social Services Australia expressing concern that the “clearly preferable” test was applied to only limited types of adoptions. The extract from the letter which Mr Cohen cited is as follows (LC Hansard (6 September 2000) at 8706):

… I understand the “paramountcy principle” which I have advocated ceaselessly, and which has been recommended by the Law Reform Commission for incorporation in adoption law in NSW, to also find clear expression in the phrase “clearly preferable” with reference to adoption arrangements in the Bill. The Bill however restricts this test to those adoption arrangements involving children who are the subject of relative and step-parent adoption applications and also Aboriginal children. (Clauses 29, 30, and 36)

This appears to exclude all other adoption arrangements from the “clearly preferable” test as regards other care options, and as such in my view effectively underpins a double standard and a discriminatory adoption practice in respect of both local and intercountry adoptions falling outside these specific cases.

253. Later in the Committee stage, the Honourable Richard Jones proposed an amendment to cl 90(3) which omitted “make better provision for” and inserted instead “be clearly preferable in”: LC Hansard (10 October 2000) at 8842. He stated:

Amendment No. 3, which seeks to use in clause 90 the term “be clearly preferable in” rather than “make better provision for”, will add consistency to the expression used in determining whether adoption is the best option available for the child without changing the meaning or intention of the section. It follows on from the expression already used in clauses 29 (c) and 30 (d) of the Adoption Bill. I understand that the amendment has the support of the Government and the Opposition.

254. The Honourable Carmel Tebbutt (who had introduced the Adoption Bill on behalf the Government) supported the amendment on the basis that it “provides for consistency of language in the bill”: LC Hansard (10 October 2000) at 8842. The amendment was agreed to and became part of the Adoption Act as passed.

255. On the connection between ss 8(2)(k) and 90(3), Palmer J relevantly stated the following in Application of A - re D [2006] NSWSC 1056 (Re D) at [47] and [52]:

47. … When the Court comes to the consideration required of it by s.8(2)(k) and s.90(3), no general rule can be applied. The Adoption Act regulates adoptions in a very wide range of different circumstances: an orphaned infant from Korea; a baby abandoned by parents incapable of caring for it; a teenager removed from abusive parents; a married adult wishing to be adopted by a step-parent.

…

52. Section 90(3) of the Act requires that the Court be satisfied that an adoption order is “clearly preferable” to any other form of care for the child. Section 8(2)(k) requires the Court to have regard to “all alternative forms of care” in order to determine whether adoption will “best meet the needs of the child”. These provisions, although differently worded, express the same intent. …

256. In relation to the connection between ss 36 and 90(3), Slattery J stated in Re David [2022] NSWSC 1738 at [27]:

27. Now the law is that an aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making the adoption order is clearly preferable in the best interests of the child and to any other action that could be taken by law (s 36). This provision adds for indigenous children to a similar provision in s 90(3) for all children, the need to consider all other options to ensure that aboriginal child placement principles can be applied before an indigenous child is adopted.

257. The note to s 30(1)(d) (which, strictly speaking, does not form part of the Adoption Act: s 5) gives a type of prompt to the decision maker of examples of other action that may be taken by law. Section 29(c) has a similar note. The s 30(1)(d) note is as follows:

Note—

Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 or a parenting order under the Family Law Act 1975 of the Commonwealth.

258. The note to s 90(3) (which again, strictly speaking, does not form part of the Adoption Act: s 5) also gives a type of prompt to the decision maker of examples of other action that may be taken by law:

Note—

Other action that could be taken in relation to a child includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the Children and Young Persons (Care and Protection) Act 1998. Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt.

259. Relevantly, slight nuances appear in the wording of ss 30(1)(d) and 90(3). Section 30(1)(d) precludes the Court from making an adoption order in favour of a step parent unless the Court is “satisfied” that the making of the adoption order is “clearly preferable”. It frames the requirement in relation to any other action that could be taken by law “in relation to the child”. On the other hand, s 90(3) uses the verb “considers”, rather than “is satisfied”, and frames the alternatives in terms of any other action that could be taken by law “in relation to the care of the child”.

260. The statement of the principle in s 8(2)(k), regarding alternatives to the making of an adoption order, and the provisions of ss 29(c), 30(1)(d), 36, 90(3) and 106(2)(b), reflect the drafting style of the Adoption Act to which I referred earlier, resulting in similar considerations being applied throughout the Act.

261. Each of those provisions, except s 106(2)(b), relate to decision making regarding “the best interests of the child”. However, even with s 106(2)(b), when its terms are read with s 106(2)(c), the “best interests” mandate is evident.

262. The provisions of ss 29(c), 30(1)(d), 36 and 106(2)(b) apply to specific types of adoption. The provisions of s 90(3) apply to all adoptions.

263. As noted above, the Commission observed that step parent and relative adoptions differ from other types of adoptions, in that agencies do not select the adoptive parents; the particular issue in step parent and relative adoptions is whether the existing care arrangement should be transformed into an adoption: Report at [4.26]. I suspect that that difference in those two types of adoption cases, as distinct from other adoption cases, informs the difference in the wording between ss 29(c) and 30(1)(d) on the one hand and ss 36, 90(3) and 106(2)(b) on the other hand.

264. My view is that all of these provisions are really connected to the ultimate question of whether an adoption order ought to be made, having regard to the alternatives to adoption. The provisions of ss 29(c), 30(1)(d), 36, 90(3) and 106(2)(b) all, although differently worded, express the same intent: cf Re D at [52].

265. In the case of step parent and relative adoptions, alternative care or placement options often do not arise for consideration. Rather, as noted above, the issue is whether the existing care arrangement should be transformed into an adoption. Likely for that reason, ss 29(c) and 30(1)(d) do not expressly reference the “care” of the child. Conversely, in the case of adoptions other than step parent and relative adoptions, the issue generally requires consideration of the proposed adoption in light of other care options for the child. Hence the use of the word “care” in ss 36, 90(3) and 106(2)(b).

266. Thus, the mandated principle expressed in the phrase “alternatives to the making of an adoption order” in s 8(2)(k) is reflected in: the phrase “any other action that could be taken by law in relation to the child” in ss 29(c) and 30(1)(d); the phrase “any other action that could be taken by law in relation to the care of the child” in ss 36 and 90(3); and the phrase “any other action that could be taken by law to care for the child” in s 106(2)(b).

267. The guiding principle in s 8(2)(k) requires the Court to reflect upon the likely effect on the child in both short and longer term of changes in the child’s circumstances caused by an adoption, which requires consideration of the alternatives to adoption.

268. The Adoption Act itself expressly contemplates various care arrangements alternative to adoption. Indeed, if the Court refuses an application for an adoption order, the provisions of s 92 expressly raise the possibility of alternative orders being made in relation to the parental responsibility of the child concerned.

269. Often in applications for adoption orders, the alternatives to acceding to the application consist of the following:

1. to maintain the status quo (which may include, for example, long-term fostering);

2. to make an order to restore the child to the care of his or her birth parents; or

3. to make an order, other than an adoption order, in favour of the proposed adoptive parent (such as an order in relation to parental responsibility). 

270. Cases which have considered the provisions of s 30(1)(d) do not appear to suggest or proceed on the basis that, in the case of a step parent adoption, s 90(3) demands any additional consideration beyond that which is stated in s 30(1)(d): e.g. Adoption of ESF; Adoption of Mardi at [25]; The Adoption of Henry (a pseudonym) [2023] NSWSC 939 at [23].

271. Given what I have said above, I consider that such a construction of ss 30(1)(d) and 90(3) is appropriate.

272. The words “clearly preferable” in ss 30(1)(d) and 90(3) do not require the Court to be satisfied beyond reasonable doubt that an adoption order is preferable. Rather, the word “clearly” serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision: Re D at [53].

Findings

273. Edmund is clearly settled with Marika and Kyle. The references of the referees give the Court strong comfort regarding Kyle being a loving father who will nurture and enrich Edmund’s life.

274. In this particular case (which is not uncommon in step parent adoptions), the only realistic alternative to adoption is to maintain the status quo – namely, that Edmund remains in the care of Marika and Kyle without an adoption order being made. The report of the assessor opines that adoption: (1) is in Edmund’s best interests, both now and in the future; (2) will validate the emotional connection between Edmund and Kyle; and (3) will secure his equal legal status with the child of Marika and Kyle.

275. I am satisfied that the making of the adoption order would be clearly preferable in Edmund’s best interests than any other action that could be taken by law in relation to his care within the meaning of s 90(3). Even if I be incorrect regarding my construction of the provisions of ss 30(1)(d) and 90(3), and lest it be thought that there is any slight residue of territory encompassed by lawful “action” not merely regarding Edmund’s care but “in relation to” him within the meaning of s 30(1)(d) which is not covered by s 90(3), I find that there is no particular material before me which suggests that there is any other such action which would cause me not to be satisfied that the provisions of s 30(1)(d) have been met.

273. In making my decision on the adoption order, I have taken into account the principles referred to in ss 8(1)(a)-(e1). Further, in determining Edmund’s best interests, I have had regard to the matters referred to in ss 8(2)(a)-(c) and (e)-(k).

274. Overall, in making the adoption order sought, I am satisfied of the following matters.

1. Edmund:

1. was present in New South Wales as at the date on which the application for the order was filed, being 19 December 2023 (per s 23(2)(a)); and

2. was less than 18 years of age on 19 December 2023 (per s 24(1)(a)).

2. The precise name of Edmund’s birth father, whom I have referred to as John, is not known and reasonable steps to attempt to identify or locate him have been taken without success.

3. Edmund has been provided with the mandatory written information and counselled. He has consented to his adoption in the appropriate form and the counsellor has certified that Edmund understands the effect of the signing of the instrument of consent. That the consent has been witnessed by a person independent of the counsellor: ss 55(1)(a)-(c), 59(1)-(2), 61, 62, 63.

4. Kyle:

1. was resident or domiciled in New South Wales on 19 December 2023, and is still resident in New South Wales (per ss 23(2)(b), 27(1)(a));

2. is of good repute and a fit and a proper person to fulfil the responsibilities of a parent (per s 27(1)(b)); and

3. is over the age of 21 and 18 or more years older than Edmund (per s 27(2)(a)).

5. Kyle is living with a spouse, namely Marika, and she consents to the application for the adoption order: s 27(3).

6. A written adoption report has been provided to the Court by the applicant (being prepared by an approved assessor): s 91.

7. Pursuant to s 90:

1. the best interests of Edmund will be promoted by the adoption (per s 90(1)(a));

2. as far as practicable and having regard to the age and understanding of Edmund, his wishes and feelings have been ascertained and due consideration given to them (per s 90(1)(b));

3. consent to the adoption of Edmund has been given by the only person whose consent is required under the Act, namely Edmund himself (per s 90(1)(d)); and

4. the making of the adoption order is clearly preferable in the best interests of Edmund than any other action that could be taken by law in relation to the care of Edmund (per s 90(3)).

Conclusion

278. In summary, the conclusions that I have reached are as follows:

1. the provisions of s 30(1)(c) of the Adoption Act do not create an independent consent requirement separately from the provisions of Pt 5 Div 1, including s 54(2);

2. a dispensation order ought to be made pursuant to s 54(3)(b) of the Adoption Act; and

3. an adoption order ought to be made.

279. The orders of the Court are as follows:

1. Note that the Court has determined that the sole consent of Edmund to his adoption under s 54(2) (when read with ss 54(1)(c) and 52) is the only consent required under the Adoption Act 2000 (NSW) and that there is no requirement for consent under s 30(1)(c) of the Adoption Act 2000 (NSW) from the birth father of Edmund to his adoption.

2. Order pursuant to s 54(3)(b) of the Adoption Act 2000 (NSW) that notice by the Secretary of the application for an adoption order to Edmund’s birth father be dispensed with.

3. Order pursuant to s 23(1) of the Adoption Act 2000 (NSW) for the adoption of Edmund in favour of the applicant, Kyle.

4. Declare pursuant to s 95(3) of the Adoption Act 2000 (NSW) that Edmund does not cease to be regarded in law as the child of his birth mother and that she does not cease to be regarded in law as the parent of Edmund.

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Amendments

03 July 2024 - [112] - change "11" to "12"

Decision last updated: 03 July 2024