The Adoption of Madeleine

[2024] NSWSC 496

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Madeleine [2024] NSWSC 496

Hearing dates:

On the papers

Date of orders:

30 April 2024

Decision date:

01 May 2024

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Consent dispense order made

Catchwords:

CHILD WELFARE – adoption – consent dispense order – where consent dispense order sought before application for adoption order – where father not identified – where 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)

Cases Cited:

Adoption of A [2022] NSWSC 567

Application of MSC and CJC; re HES [2011] NSWSC 1071

Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007

Category:

Procedural rulings

Parties:

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

Representation:

Solicitors:
Crown Solicitor’s Officer (Plaintiff)

File Number(s):

2024/154663

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 “Madeleine” (not her real name).

2. By Summons and Notice of Motion filed 17 April 2024, the Secretary of the New South Wales Department of Communities and Justice sought an order, pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW), dispensing with the requirement for the consent of Madeleine’s father to Madeleine’s adoption.

3. I made that order on 30 April 2024. These are my reasons.

4. I have been greatly assisted by the careful submissions I received from Ms Greenham from the Crown Solicitor’s Office. Much of what follows is taken, with gratitude, from those submissions.

The course of events

5. Madeleine was born in October 2023.

6. Two days after Madeleine’s birth, Madeleine’s mother signed a Temporary Care Arrangement in respect of Madeleine, pursuant to s 151 of the Children and Young Persons (Care and Protection) Act 1989 (NSW).

7. The mother, who I will call “Elizabeth” (not her real name), expressed a wish for Madeleine to be placed into care and adopted at the time Madeleine was born. Elizabeth has said that she is not in a position to parent Madeleine. Elizabeth did not know she was pregnant until about 14 weeks into the pregnancy. She did not inform her family of her pregnancy, nor has she informed them of Madeleine’s birth.

8. On 18 January 2024, Elizabeth agreed to extend the Temporary Care Arrangement. It remains in force, expiring on 2 May 2024. The arrangement cannot be extended. ^[1]

   1. Children and Young Persons (Care and Protection) Act, s 152(1)(c)(ii).

9. Elizabeth gave her formal consent to the adoption of Madeleine on 5 March 2024.

10. Madeleine has not yet been placed for adoption, and no application has been made for Madeleine’s adoption. She is a child “awaiting adoption”. ^[2]

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

11. Unless I made an order dispensing with Madeleine’s father’s consent prior to 2 May 2024, when the Temporary Care Arrangement was to end, the Secretary would have ceased to have care responsibility under the Temporary Care Arrangement, and care responsibility would have reverted to Elizabeth.

12. That is because of the expiration of the Temporary Care Order, and because the Secretary could only acquire parental responsibility for Madeleine under s 75 of the Adoption Act if consent to Madeleine’s adoption was given by all requisite persons (not the case here, as Madeleine’s father, whoever he is, has not given consent) or if such consent had been dispensed with. Hence, the Secretary made the application to dispense with the father’s consent.

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, Madeleine’s father cannot be identified.

16. Elizabeth has identified a putative father, who I will call “Darren” (not his real name). Elizabeth has only met Darren once; on the night that Madeleine was conceived. The only information provided by Elizabeth about Darren is his given name and general physical appearance. Elizabeth did not exchange contact details with Darren, and has no means of contacting him.

17. The Secretary submits that it is unable to undertake further searches for the putative father due to the limited information available about him. ^[6] In the circumstances, I accept that the Secretary has made reasonable efforts to locate and identify Madeleine’s father.

    6. The Secretary relied on Brereton J’s reasons in Application of MSC and CJC; re HES [2011] NSWSC 1071 at [18].

18. Most importantly, I was satisfied that it is in Madeleine’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. ^[7] This is especially important for Madeleine, as placement options may be limited for reasons not necessary for me to recount.

    7. See, for example, Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007 at [40] (Kunc J); Adoption of A [2022] NSWSC 567 at [14]-[15] (Stevenson J).

19. The making of the order also had the effect that the Secretary retains parental responsibility for Madeleine and prevents such responsibility reverting to Elizabeth: an outcome Elizabeth does not want,^[8] and which would not be in Madeleine’s best interests. ^[9]

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8. See [7] above.

9. See [18] above.

Endnotes

Decision last updated: 01 May 2024