The Adoption of Elisabeth (a pseudonym)

[2024] NSWSC 742

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

On the papers

Date of orders:

6 June 2024

Decision date:

18 June 2024

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Consent dispense order made

Catchwords:

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

Legislation Cited:

Adoption Act 2000 (NSW)

Children’s Guardian Act 2019 (NSW)

Interpretation Act 1987 (NSW)

Cases Cited:

Adoption of A [2022] NSWSC 567

Re DYK and The Adoption Act 2000 [2005] NSWSC 1045

Re K and The Adoption Act 2000 [2005] NSWSC 858

Re KN and The Adoption Act 2000 [2005] NSWSC 896

Category:

Procedural rulings

Parties:

Secretary, New South Wales Department of Communities and Justice (Plaintiff)

Representation:

Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s):

2024/202415

Publication restriction:

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

JUDGMENT

1. These proceedings relate to the proposed adoption of a child who I will call “Elisabeth” (not her real name).

2. By Summons filed 31 May 2024, the Secretary of the New South Wales Department of Communities and Justice (“the Secretary”) sought an order, pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW), dispensing with the requirement for the consent of Elisabeth’s father to Elisabeth’s adoption.

3. I made that order on 6 June 2024. These are my reasons.

4. I have been greatly assisted by the submissions I received from Ms Hailstone for the Secretary. Much of what follows is taken, with gratitude, from those submissions.

The course of events

5. Elisabeth was born in December 2023, and is now 5 months of age.

6. One day after Elisabeth’s birth, Elisabeth’s mother, who I will call “Tracey” (not her real name), signed an agreement for Elisabeth to be placed in specialised substitute residential care (“the Arrangement”) pursuant to s 8ZA of the Children’s Guardian Act 2019 (NSW).

7. On 5 June 2024, Tracey gave her formal consent to the adoption of Elisabeth.

8. Tracey has consistently expressed her view that adoption is the best outcome for Elisabeth. Tracey has another daughter, aged 2 years. Tracey is separated from the father of her older daughter. The father does not provide any support for Tracey or their daughter. Tracey has stated that she does not have the capacity to care for Elisabeth and her older daughter as a single parent.

9. Elisabeth is currently in a temporary care arrangement with Anglicare authorised carers. Elisabeth has not yet been placed for adoption, and no application has been made for Elisabeth’s adoption. She is a child “awaiting adoption”. ^[1]

   1. See the heading to s 75 of the Adoption Act; that heading is taken not to be a part of the Act, see s 35(2)(a) of the Interpretation Act 1987 (NSW), but is a useful expression to adopt.

10. A child cannot remain in specialised substitute residential care for more than 180 days in any period of 12 months, unless the agency supervising the care of the child develops a case plan overseen by the Office of the Children’s Guardian that addresses the child’s needs under the arrangement. ^[2] The Arrangement that Elisabeth is subject to would have expired on 12 June 2024.

    2. Children’s Guardian Act, s 8ZA(2).

11. Unless I made an order dispensing with Elisabeth’s father’s consent prior to 12 June 2024, the Arrangement would have expired, and the day-to-day care responsibility for Elisabeth would have reverted to Tracey.

12. The Secretary can only acquire parental responsibility for Elisabeth under s 75 of the Adoption Act if consent to Elisabeth’s adoption is given by all requisite persons (not the case here, as Elisabeth’s father, whoever he is, has not given consent) or if such consent has been dispensed with. Hence, the Secretary made the application to dispense with the father’s consent.

13. If otherwise satisfied that a consent dispense order should be made, the Court may do so before an application for adoption has been made. ^[3]

    3. Adoption Act, s 70(1)(a).

14. The Court may dispense with the consent of a child’s parent to the child’s adoption if, relevantly, that person, after reasonable inquiry, cannot be found or identified,^[4] and if satisfied that to do so would be in the child’s best interests. ^[5]

    4. Ibid, s 67(1)(a).

    5. Ibid, s 67(2).

15. I concluded that, here, Elisabeth’s father cannot be identified.

16. There is no father recorded on Elisabeth’s birth certificate.

17. Tracey has not been able to confirm the identity of Elisabeth’s father. Tracey has only met the father once; on the night that Elisabeth was conceived. She met the father at a large social event at the house of a friend of a friend. Tracey does not know how to contact the father. The only information known to Tracey about the father is his general physical appearance. Tracey believes he travelled to Australia to work picking apples, suggesting that the father may not be an Australian permanent resident.

18. The Secretary submits that it is unable to undertake searches for the putative father due to the limited information available about him. ^[6] In the circumstances, I accepted that the Secretary has made reasonable efforts to locate and identify Elisabeth’s father. For the same reasons, I accepted that the Secretary was not required to serve notice of the application for a consent dispense order on Elisabeth’s father. ^[7]

    6. The Secretary relied on Re K and The Adoption Act 2000 [2005] NSWSC 858 at [21] (White J); Re DYK and The Adoption Act 2000 [2005] NSWSC 1045 at [17] (Brereton J); Re KN and The Adoption Act 2000 [2005] NSWSC 896 at [14] (Campbell J).

    7. Adoption Act, s 72(2)(a).

19. Most importantly, I was satisfied that it was in Elisabeth’s best interests to make the consent dispense order, since it enables her to be placed in a secure adoptive placement as soon as possible. ^[8]

    8. See my reasons in Adoption of A [2022] NSWSC 567 at [14].

20. The making of the order also has the effect that the Secretary acquires parental responsibility for Elisabeth, which prevents such responsibility remaining with Tracey; an outcome Tracey does not want, and which would not be in Tracey’s best interests.

21. Tracey is a New Zealand citizen, and the putative father’s citizenship status is not confirmed. The Secretary will take steps to have Elisabeth’s citizenship confirmed. This must occur prior to an adoption order being made.

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Endnotes

Decision last updated: 18 June 2024