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

1. These proceedings relate to the proposed adoption of a child who I will call “Maxwell” (not his real name), aged five months.

2. 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.

3. 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

4. Maxwell was born in April 2024.

5. 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).

6. 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.

7. 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).

8. In August 2024, Cathy signed her consent to the adoption of Maxwell.

9. Maxwell is currently residing with short-term carers in a pre-adoptive placement. Maxwell has not yet been placed for adoption, and no application has been made for Maxwell’s adoption. He 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 Adoption Act, see s 35(2)(a) of the Interpretation Act 1987 (NSW), but is a useful expression to adopt.

10. Unless I make an order dispensing with Maxwell’s father’s consent prior to 4 October 2024, when the Temporary Care Arrangement is to end, the Secretary will cease to have care responsibility under the Temporary Care Arrangement, and care responsibility will revert to Cathy.

11. That is because of the expiration of the Temporary Care Arrangement, and because the Secretary could only acquire parental responsibility for Maxwell under s 75 of the Adoption Act if consent to Maxwell’s adoption was given by all requisite persons (not the case here, as Maxwell’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.

12. 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); see Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007.

13. 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).

Efforts to locate and identify Maxwell’s father

14. There is no father recorded on Maxwell’s birth certificate.

15. Cathy has not been able to confirm the identity of Maxwell’s father. Cathy was working as a sex worker at the time of Maxwell’s conception, and she believes one of her clients may be Maxwell’s father. She has identified some 30 or 40 males to be considered as a putative father. She is unable to narrow down this list, and has stated that she has “no idea” who Maxwell’s father could be beyond this list.

16. The Secretary has made attempts to contact some of the male clients listed with contact phone numbers provided by Cathy. These attempts did not result in any male being forthcoming with information or willing to undertake paternity testing. The Secretary has done this while sensitively managing Cathy’s privacy concerns; Cathy’s clients know her by a pseudonym, and she never provided her personal information to them.

17. The Secretary has excluded Cathy’s current partner from consideration as the putative father following paternity DNA testing.

18. The Secretary submits that it is unable to undertake further searches for the putative father due to the limited information available about him. ^[6]

    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).

19. In the circumstances, I accept that the Secretary has made reasonable efforts to locate and identify Maxwell’s father.  For the same reasons, I accept that the Secretary is not required to serve notice of the application for a consent dispense order on Maxwell’s father. ^[7]

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

20. Most importantly, I am satisfied that it is in Maxwell’s best interests to make the consent dispense order, since it enables him to be placed in a secure adoptive placement as soon as possible. ^[8] This is especially important for Maxwell, as Maxwell’s carers in his adoptive placement will need to sensitively manage issues surrounding his conception and paternity.

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

21. The making of the order will have the effect that the Secretary acquires parental responsibility for Maxwell, which prevents such responsibility remaining with Cathy; an outcome Cathy does not want, and which would not be in Maxwell’s best interests.

22. I propose to make the order sought.

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Endnotes

Decision last updated: 01 October 2024