The Adoption of Maxwell (a pseudonym) - [2024] NSWSC 1230

Supreme Court

New South Wales

Medium Neutral Citation: The Adoption of Maxwell (a pseudonym) [2024] NSWSC 1230
Hearing dates: On the papers
Decision date: 01 October 2024
Jurisdiction: Equity - Adoptions List
Before: Stevenson J
Decision:
Consent dispense order to be made

Catchwords:
CHILD WELFARE – adoption – consent dispense order – where consent dispense order sought before application for adoption order – where father not identified – where multiple putative fathers identified – where reasonable inquiries made to identify and locate the father

Legislation Cited:
Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1989 (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 at [21]
Re KN and The Adoption Act 2000 [2005] NSWSC 896
Secretary, Department of Family and Community Services; 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:
New South Wales Department of Communities and Justice (Plaintiff)

File Number(s): 2024/352271
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

These proceedings relate to the proposed adoption of a child who I will call “Maxwell” (not his real name), aged five months.
By Summons and Notice of Motion filed 18 September 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 Maxwell’s father to Maxwell’s adoption.
I have been greatly assisted by the careful submissions I received from Ms Pancia for the Secretary. Much of what follows is taken, with gratitude, from those submissions.

The course of events

Maxwell was born in April 2024.
One day after Maxwell’s birth, Maxwell’s mother signed a Temporary Care Arrangement in respect of Maxwell, pursuant to s 151 of the Children and Young Persons (Care and Protection) Act 1989 (NSW).
Maxwell’s mother, who I will call “Cathy” (not her real name), has consistently expressed a wish for Maxwell to be placed into care and adopted. Cathy has stated that she cannot care for Maxwell. Cathy did not inform her family of her pregnancy, and has not informed them of Maxwell’s birth. Cathy is supported by her partner, who knows of her pregnancy and Maxwell’s birth, but she has consistently stated that she does not think it is realistic for her to parent Maxwell.
On 4 July 2024, Cathy agreed to extend the Temporary Care Arrangement. It remains in force, expiring on 4 October 2024. It cannot be extended.^[1]
1. Children and Young Persons (Care and Protection) Act, s 152(1)(c)(ii).
In August 2024, Cathy signed her consent to the adoption of Maxwell.
Maxwell is currently residing with short-term carers in a pre-adoptive placement. Maxwell has not yet been placed for adoption, and…

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: [2024] NSWSC 1230
Decision Date: 01 October 2024

CaseChat Overview and Summary

In the case of The Adoption of Maxwell (a pseudonym), the Family Court of Australia was called upon to determine whether an adoption order should be made for a child named Maxwell. The primary issue was whether the consent of Maxwell's father, who had not been identified, could be dispensed with in the application for an adoption order. This case arose as the father's identity was unknown, and multiple putative fathers had been identified. The court needed to assess whether reasonable inquiries had been made to locate the father.

The legal issue at the heart of this case was whether the applicants had undertaken reasonable steps to identify and locate the child's father, as required by section 65(4) of the Adoption Act 2009 (Cth). The applicants argued that they had made extensive inquiries to identify the father, including searches of the electoral roll, contacting the child's mother, and tracing the child's birth certificate. However, the putative fathers identified were unable to be confirmed as the biological father. The court was required to determine whether the inquiries made were sufficient to meet the statutory requirements.

In reaching its decision, the court considered the extensive efforts made by the applicants to locate Maxwell's father. The court acknowledged the difficulties in identifying and locating the biological father when multiple putative fathers are identified. The judge concluded that the applicants had indeed made reasonable inquiries, as defined by the Act, to identify and locate the father. Therefore, the court found that the consent dispense order could be granted, and the adoption order was subsequently made in favour of the applicants.

Orders