The Adoption of James (a pseudonym)

[2025] NSWSC 153

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of James (a pseudonym) [2025] NSWSC 153

Hearing dates:

On the papers

Date of orders:

06 March 2025

Decision date:

06 March 2025

Jurisdiction:

Equity - Adoptions List

Before:

Nixon J

Decision:

Order for adoption made in favour of stepfather

Catchwords:

FAMILY LAW AND CHILD WELFARE – Adult adoption – application for adoption by stepfather – whether adoption by stepfather is in the best interests of the adult child – adoption order made – declaration that order does not have effect that mother ceases to be so regarded in law

Legislation Cited:

Adoption Act 2000 (NSW), Dictionary, ss 8, 24, 26, 27, 30, 52, 54, 87, 90, 95, 101

Cases Cited:

Adoption of ESF [2014] NSWSC 687

Re SD and DD [2014] NSWSC 1017

The Adoption of Milo (a pseudonym) [2023] NSWSC 941

Category:

Principal judgment

Parties:

Trent Harry Thompson (Plaintiff)
James Sean Thompson (Child)

Representation:

Solicitor:
KMJ Family Law (Plaintiff)

File Number(s):

2025/26883

JUDGMENT

1. This proceeding concerns the proposed adoption of an adult, whom I will call James Sean Thompson, who is aged 23, by his stepfather, whom I will call Trent Harry Thompson. James currently lives, and has lived since early childhood, with Trent and his birth mother, whom I will call Annabelle Susan Thompson. For convenience, and without intending any disrespect, I will refer to each of the individuals involved in this matter by his or her first name.

2. By Summons filed on 21 January 2025, Trent seeks an order under the Adoption Act 2000 (NSW) (the Act) for the adoption of James in favour of Trent as the adopting father.

3. The application is supported by affidavits from each of Trent, James and Annabelle, as well as from two character referees.

Requirements for adoption of adult child by step parent

4. The Dictionary to the Act defines a “child” as meaning a person who is less than 18 years of age, or “a person who is 18 or more years of age and in relation to whom an adoption is sought or has been made”.

5. Section 24(1)(b) of the Act provides that an adoption order may be made in relation to an adult child if he or she "was cared for by the applicant … for the order". Section 24(2)(a) of the Act provides that, for the purposes of s 24(1)(b), a child was “cared for” if the child has been cared for by the applicant or applicants as his or their child prior to reaching the age of 18 years.

6. James was conceived by way of an anonymous sperm donor, through a fertility clinic. Trent and Annabelle met and commenced their relationship in 2003, when James was two years old. Trent and Annabelle have cohabitated since December 2005 and have raised James together from that time. They were married in September 2011. In December 2012, following an application by Trent, Annabelle and James, James’ surname was changed to “Thompson” so that each of them would share the same surname. James continues to live with them.

7. The referees, who are friends and neighbours of the family, have observed the relationship between Trent and James from its beginning, and attest to Trent being very close to James, being a dependable, patient and loving father to James, being involved in James’ school and his sporting pursuits, and always being there for James whenever needed.

8. Having regard to those matters, I am satisfied that the requirements of section 24 of the Act are satisfied.

9. Section 27 of the Act contains requirements in relation to adoption by one person. It provides as follows:

27   Adoption by one person

(1) Basic requirements  One person may, subject to this Act, adopt a child only if the person is—

(a)  resident or domiciled in the State, and

(b)  of good repute and a fit and proper person to fulfil the responsibilities of a parent.

(2) Age requirements  The Court must not make an adoption order in favour of one person who is not a birth parent or relative of the child unless—

(a)  the person is 21 or more years of age and 18 or more years older than the child, or

(b)  the Court considers that in the particular circumstances of the case it is desirable to make the order even though the person does not fulfil the age requirements.

(3) Consent of spouse  The Court must not make an adoption order in favour of one person who is living with a spouse unless the person’s spouse consents in writing to the application for the adoption order.

10. I am satisfied that the requirements of s 27 of the Act are met. Trent is domiciled in New South Wales. The evidence establishes that he is of good repute, and a fit and proper person to fulfil the responsibilities of a parent. He has evidently discharged those responsibilities very capably in relation to James. Further, Trent is more than 18 years older than James, and his wife, Annabelle, has consented in writing to the application for the adoption order.

11. Section 30 of the Act contains requirements in relation to adoption by a step parent. It provides as follows:

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.

…

(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.

12. As James is more than 18 years of age, s 30(1)(a) of the Act is satisfied and s 30(1)(b) is inapplicable (s 30(2)). Further, as regards s 30(1)(c):

1. parental consent under s 52 of the Act is not required, because James is over 18 years of age (s 54(1)(d)) and, in any case, Annabelle has given her consent to the adoption; and

2. the consent of the Secretary in respect of Trent’s application under s 87(1)(a) of the Act is not required, because Trent is James’ stepfather (s 87(2)(a)).

13. It follows that the key issue on this application is whether the making of the adoption order is clearly preferable in the best interests of James to any other action that could be taken by law in relation to James (s 30(1)(d) of the Act). Before an adoption order is made, the Court must also be satisfied of the matters set out in s 90 of the Act to the extent that they are applicable, including that the best interests of the child will be promoted by the adoption. Section 8 of the Act lays down principles and matters to which regard must be had in making decisions about adoption and in determining the best interests of the child.

14. Having read and considered the evidence in support of the application, I am comfortably satisfied that the best interests of James will be promoted by the making of the adoption order.

15. James has formally consented to the adoption order. He has firmly expressed the wish to have Trent formally acknowledged as his father. James states in his affidavit that, for as long as he can remember, Trent has raised him and he has always thought of Trent as his father, adding that: “I have always wanted Trent to formally adopt me as he is my father, and we are family”.

16. Similarly, Trent states in his affidavit that for as long as he can remember, he has thought of James as his son, and that James has called him “dad” since he was two years old; and Annabelle states that for as long as she can remember, she has wanted Trent to adopt James as a way to formalise and legally acknowledge their familial connection.

17. I am satisfied that the making of the adoption order is in the best interests of James, as it will formalise and legally acknowledge the familial connection between James, Trent and Annabelle, particularly the role of Trent as James’ father.

18. As noted above, James has had the same surname as Trent and Annabelle since 2012. Because James has not decided otherwise, he will continue, on the making of the adoption order, to have the same surname and given names as he currently uses: s 101(1)(a) of the Act.

Declaration as to the effect of the order

19. The effect of an adoption order is to give sole parental responsibility for a child to the adoptive parent or parents named in the order: s 95(1) of the Act.

20. However, s 95(3) of the Act provides, relevantly, that where (as here) an adoption order is made in relation to a stepparent with whom a birth parent is living, the adopted child does not cease to be regarded in law as the child of the birth parent, and the birth parent does not cease to be regarded in law as the parent of the child.

21. In the present case, a declaration is sought to the effect that the making of the adoption order does not mean that Annabelle has ceased to be regarded in law as the mother of James. Whilst such a declaration is not in my view essential, I am prepared to make it in order to ensure that there is no misunderstanding of the position. A similar course has been taken by the Court in a number of previous decisions: see, for example, The Adoption of Milo (a pseudonym) [2023] NSWSC 941 at [25]; Adoption of ESF [2014] NSWSC 687 at [17]; see also Re SD and DD [2014] NSWSC 1017.

22. Finally, a direction is sought that a new birth certificate for James which may be issued in consequence of the adoption order show Trent as his father and Annabelle as his mother. I will also give a direction to this effect.

ORDERS

23. For the reasons given above, I make the following orders.

1. The Court makes an order for the adoption of the child James Sean THOMPSON in favour of the adopting father, Trent Harry Thompson and approves the name “THOMPSON” as the surname and “James Sean” as the given names of the child.

2. The Court declares pursuant to section 95(3) of the Adoption Act 2000 (NSW) that the making of this adoption order does not mean that the birth mother, Annabelle Susan Thompson, has ceased to be regarded in law as the mother of the child.

3. The Court directs that any new birth certificate that may issue consequent upon these orders may show the birth mother, Annabelle Susan Thompson, as the child’s mother and the adoptive father, Trent Harry Thompson, as the child’s father.

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Decision last updated: 06 March 2025