The Adoption of Milo (a pseudonym)

[2023] NSWSC 941

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

Preliminary hearing and otherwise dealt with in chambers

Date of orders:

11 August 2023

Decision date:

11 August 2023

Jurisdiction:

Equity - Adoptions List

Before:

Meek J

Decision:

Order for adoption made in favour of the stepfather of the child. Declaration that adoption order does not mean that the child’s mother ceases to be regarded in law as the mother of the child. 

Catchwords:

FAMILY LAW AND CHILD WELFARE — Adult adoption — Proper applicant — Whether s 24 Adoption Act 2000 (NSW) (Adoption Act) permits an adult child to be the applicant for his or her adoption — Section 24 envisages that the applicant for the adoption will not be the child but rather the person who cared for the child as his or her or their child prior to the child reaching the age of 18 years

STATUTES — Construction — Whether s 24 Adoption Act permits an adult child to be the applicant for his or her adoption — Section 24 envisages that the applicant for the adoption will not be the child but rather the person who cared for the child as his or her or their child prior to the child reaching the age of 18 years

FAMILY LAW AND CHILD WELFARE — Practice and procedure — Preliminary hearing to be conducted with as little formality as the judge considers appropriate — Preliminary hearing may provide a quick, beneficial and relational means of addressing issues

Legislation Cited:

Adoption Act 2000 (NSW)

Cases Cited:

Adoption of ESF [2014] NSWSC 687

Re SD and DD [2014] NSWSC 1017

Category:

Principal judgment

Parties:

“Milo” (a pseudonym) (First Plaintiff)
“Harvey” (a pseudonym) (Second Plaintiff)

Representation:

Counsel:

Solicitors:
Self-represented (Plaintiffs)

File Number(s):

2023/128266

Publication restriction:

This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

1. HIS HONOUR: This matter gives rise to aspects of the practice and procedure for adult adoptions.

2. The application before the Court was filed by a male who at the time of the application was over the age of 18 years. I will refer to him as “Milo” (not his real name). Milo is currently 18. He lives with and has lived for some time with his birth mother (“Alice” – not her real name) and his stepfather (“Harvey” – not his real name).

3. He made an application for adoption to be adopted by his stepfather.

4. Milo does not consider his birth father to be his “dad” but rather considers Harvey to be his dad.

5. Three issues arise, namely:

1. Who is the appropriate applicant?

2. What formal requirements are required for an adult adoption?

3. What effect would the adoption, in favour of the stepfather, have on the child’s birth mother?

Who is the appropriate applicant?

6. An application for an order for adoption may be made by a child who is 18 years or more for his or her adoption: s 87(1)(d) Adoption Act 2000 (NSW) (Adoption Act). The consent of the Secretary is not required where, as was ultimately the case in these proceedings (for which see below), the applicant (or an applicant) is a stepparent of the child: s 87(2)(a) Adoption Act.

7. An adoption order may be made in relation to a child who is 18 years or more of age having regard to the definition of “child” in the Dictionary to the Adoption Act.

8. Many cases of adoption involve adoption of a child under the age of 18. Nonetheless, there are a not insignificant number of applications for adoption in relation to a child over the age of 18.

9. Normally, in such cases the applicant is the proposed adoptive parent rather than solely the child.

10. In this case, Milo commenced the application being the only plaintiff.

11. Whilst, as I have noted, an adoption order may be made on the application of a child who is 18 years or more, there is, at least at first blush, a slight tension between the provisions of s 87 Adoption Act and the provisions of s 24 Adoption Act.

12. The provisions of s 24, which address the question as to who can be adopted, provide that an adoption order may be made in relation to a child who was 18 or more years of age on the date on which the application for the order was made and was cared for by the applicant or the applicants for the order: s 24(1)(b) Adoption Act.

13. For the purposes of understanding what is meant by the child being “cared for”, the Act provides that a child “was cared for” if the child has been cared for by the applicant or applicants (relevantly) prior to the child reaching the age of 18 years: s 24(2) Adoption Act.

14. It seems to me the proper construction of s 24 Adoption Act is that it contemplates that the applicant for adoption, in the case of a child who is 18 years or more, is a person who has cared for the child as his or her child.

What are the formal requirements for adoption?

15. As Milo is more than 18 years of age, no consents to the proposed adoption are required under s 52 Adoption Act, and therefore no consents are required under s 30(1)(c) Adoption Act: see e.g. Adoption of ESF [2014] NSWSC 687 (Adoption of ESF) at [7] per Darke J.

16. There are particular requirements in relation to an adoption by a stepparent: s 30 Adoption Act.

17. In the circumstances of this case, having regard to the provisions of s 30, the requirement that a stepparent has lived with the child and the child’s birth parent for a continuous period of not less than two years immediately before the application for adoption order does not need to be satisfied: s 30(1)(b), (2) Adoption Act.

18. Nonetheless, the provisions of s 23 regarding jurisdictional requirements (that at the time the application for the adoption order is made the child is present in the State and each of the applicants reside or are domiciled in the State) and the provisions of s 27 Adoption Act dealing with adoption by a single person rather than by a couple must be satisfied.

19. The application lacked some detail regarding formal requirements in that there was no evidence regarding presence and residency, and it was not supported by affidavits by referees.

20. The provisions of the reissued Practice Note SC EQ 13 (Practice Note), which commenced on 3 April 2023, provide that there must be at least two affidavits made by referees for the proposed adoptive parent annexing a handwritten referee certificate, made not more than six months before it is filed (i.e. recent) with such referees not to be related to the proposed adoptive parent and who must have known the proposed adoptive parent for a period greater than two years: paragraph 10(d) Practice Note. A precedent form of affidavit and format of the referee’s certificate is available on the Court’s website.

What effect would the adoption, in favour of the stepfather, have on the child’s birth mother?

21. 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) Adoption Act.

22. Despite the provisions of s 95(1), an adopted child does not cease to be regarded in law as the child of a birth parent and the birth parent does not cease to be regarded in law as the parent of the child if the adoption order is made in relation to a stepparent with whom the birth parent is living: s 95(3) Adoption Act.

23. For that reason, often, it is not essential to make any specific notational declaration regarding that.

24. In this particular case, there was also a slight lack of clarity regarding the effect of the adoption on Milo’s birth mother, who is not named in the application.

25. In circumstances where there might be some doubt as to what effect the adoption order might have on the birth mother, a declaration can be made to clarify the position and ensure there is no misunderstanding of the position. That that is an appropriate course is reinforced by caselaw: e.g. Adoption of ESF at [17] (see also Re SD and DD [2014] NSWSC 1017).

Finding practical solutions

26. There is a degree of flexibility in relation to adoption matters in addressing procedural and other issues associated with adoption orders.

27. To find a practical solution to the three issues, I arranged for a preliminary hearing of the matter which was conducted by AVL in July 2023.

28. Preliminary hearings are to be conducted with as little formality as the judge considers appropriate. This is made clear under the provisions of the reissued Practice Note.

29. The preliminary hearing was entirely beneficial and reinforced what can be practically achieved in Court in a quick and relational way by simply discussing issues with parties for adoption rather than engaging in formal correspondence with them. That is not to say that formal correspondence does not have its place. However, the opportunity in the preliminary hearing to: (a) explain and discuss in a simple way the issue of who is the appropriate applicant; (b) find a practical solution to regularising the matter so that the proper parties are joined; (c) discuss what further evidence was required; and (d) clarify the intent of Milo, Harvey and Alice as to the effect of the adoption order, certainly in this case facilitated resolution of the matters to be addressed.

30. I discussed each of the three issues with Milo, Harvey and Alice.

31. In relation to the issue of the proper applicant, I suggested one possibility was for Harvey to be joined as a plaintiff in the proceedings so that he could be recorded as being an applicant. Harvey readily agreed to do that and that was supported by Milo and Alice.

32. In relation to the issue regarding the requirement for referees, I explained the requirement for referees, who could be referees and what was involved in providing that evidence. I made directions regarding the provision of affidavits from referees.

33. In addition, I was able to clarify certain jurisdictional requirements had been satisfied regarding Milo’s presence in New South Wales and Harvey’s residence or domicile in New South Wales at the time when the application was filed, without the necessity of formalising evidence in that regard (e.g. by requiring supplementary affidavits).

34. In relation to the effect of the adoption order on Alice, I discussed Milo’s intent in making the application and I was able to readily clarify that the parties definitely intended that the proposed adoption order would not have the effect that Alice was no longer regarded in law as the parent of Milo.

Finalisation of adoption

35. Milo, Harvey and Alice were able to arrange for provision of three affidavits of referees.

36. Whilst, in this particular case, one of the affidavits of a referee was by a person who in some respects may be regarded as being related to Harvey, I have, in particular, relied upon the affidavits of the additional two referees. However, I can say that the additional affidavit provided the Court with good comfort that Harvey has been and will continue to be a responsible parent for Milo, about which I have no doubt.

37. In the circumstances, I am satisfied that Harvey as the proposed adoptive parent:

1. is a person who is a stepparent of Milo: ss 23(1), 26, 27 Adoption Act;

2. was resident or domiciled in New South Wales at the time of the application: s 23(2)(b), s 27(1)(a) Adoption Act;

3. is of good repute and a fit and proper person to fulfil the responsibilities of being a parent: s 27(1)(b) Adoption Act;

4. is over the age of 21 and 18 or more years older than Milo: s 27(2)(a) Adoption Act; and

5. lives with Alice as his spouse and that Alice consents to the adoption: s 27(3) Adoption Act.

38. In particular, I am satisfied in the circumstances of this matter that the making of the adoption order is clearly preferable in the best interests of Milo to any other action that could be taken by law in relation to him: s 30(1)(d) Adoption Act.

39. The orders of the Court (omitting notations which will remain on the Court file) are as follows:

1. Order that pursuant to s 23 of the Adoption Act 2000 (NSW), an order be made for the adoption of [Milo] in favour of the adopting father [Harvey].

2. Order that pursuant to s 101 of the Adoption Act 2000 (NSW), the Court approves the name “[Harvey’s surname]” as the surname and “[Milo]” as the given name of the plaintiff adoptee.

3. Declare pursuant to s 95(3) of the Adoption Act 2000 (NSW) that [Milo] does not cease to be regarded in law as the child of his birth mother [Alice] and that [Alice] does not cease to be regarded in law as the parent of [Milo].

**********

Amendments

17 August 2023 - Coversheet - catchwords amended

Decision last updated: 17 August 2023