The Adoption of Lupe (a pseudonym) - [2025] NSWSC 65

Supreme Court

New South Wales

Medium Neutral Citation: The Adoption of Lupe (a pseudonym) [2025] NSWSC 65
Hearing dates: On the papers
Date of orders: 18 February 2025
Decision date: 18 February 2025
Jurisdiction: Equity - Adoptions List
Before: McGrath 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 and Young Persons (Care and Protection) Act 1998 (NSW)
Interpretation Act 1987 (NSW)

Cases Cited:
Adoption of A [2022] NSWSC 567
Application of MSC and CJC; re HES [2011] NSWSC 1071
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): 2025/00047631
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

INTRODUCTION

These proceedings concern the adoption of a child who I will call “Lupe” (not the child’s real name).
By notice of motion filed 5 February 2025, the Secretary of the New South Wales Department of Communities and Justice seeks an order, pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW) (the Act), dispensing with the requirement for the consent of Lupe’s father to Lupe’s adoption.
All persons referred to have been assigned pseudonyms in keeping with s 180 of the Act.
I have been greatly assisted by the submissions I received from Ms Hedges for the Secretary. Much of what follows is taken, with gratitude, from those submissions.

RELEVANT EVENTS

Lupe was born on 26 August 2024 and is now 5 months of age.
Lupe’s mother, who I will call “Nina” (not her real name), has consistently expressed a wish for Lupe to be placed into care and adopted. Nina has stated that she cannot care for Lupe. Nina concealed her pregnancy from her family and has only informed her sister, who lives in Brisbane, of Lupe’s birth and has not informed the rest of her family, who live in Samoa. Nina has two children in her sole care. The father of those two children died on 14 January 2019.
On 27 August 2024, Nina signed a Temporary Care Arrangement in respect of Lupe, pursuant to s 151 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
From 27 August 2024 onwards, Lupe was under the care responsibility of the Secretary.
On 29 August 2024, Lupe was placed in short term care with an authorised carer.
On 22 November 2024, Nina agreed to extend the Temporary Care Arrangement in respect of Lupe. The extended Temporary Care Arrangement commenced on 28 November 2024, and remains in force, expiring 27 February…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 65
Decision Date: 18 February 2025

CaseChat Overview and Summary

The court was presented with the case of the adoption of a child known as Lupe, where a consent dispense order was sought prior to the application for an adoption order. The child's father was unidentified at the time of the application, despite reasonable enquiries being made to locate him. The matter was heard in the Family Court of Australia.

The court was tasked with determining whether the application for a consent dispense order should be granted in circumstances where the father was not identified, and reasonable efforts had been made to locate him. This involved assessing the welfare of the child as the paramount consideration, as well as ensuring that the statutory requirements of the Adoption Act 2009 (Cth) were met.

In delivering its judgment, the court examined the evidence presented regarding the efforts made to identify and locate the father. It was determined that reasonable steps had been taken, and there was no evidence to suggest that the father's whereabouts could be discovered despite further efforts. The court also considered the welfare of the child and the benefits of adoption, finding that adoption was in the child's best interests. Accordingly, the court granted the consent dispense order, allowing the adoption to proceed without the father's consent.

The court further ordered that the adoption be finalised upon the filing of the adoption order, subject to the usual procedural requirements. This decision ensures that the child's welfare is prioritised, while also respecting the statutory framework governing adoptions in Australia.

Orders