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

HIS HONOUR: This matter gives rise to aspects of the practice and procedure for adult adoptions.
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).
He made an application for adoption to be adopted by his stepfather.
Milo does not consider his birth father to be his “dad” but rather considers Harvey to be his dad.
Three issues arise, namely:

Who is the appropriate applicant?

What formal requirements are required for an adult adoption?

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

Who is the appropriate applicant?

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…

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: [2023] NSWSC 941
Decision Date: 11 August 2023

CaseChat Overview and Summary

The parties in this case involved Milo, a pseudonym for an adult, who sought to be adopted by his foster parents. The dispute centred around the interpretation of section 24 of the Adoption Act 2000 (NSW), which governs who can apply for an adoption. The matter was heard in the Family Court of Australia. The central legal issue the court needed to address was whether an adult could be the applicant for their own adoption under the Adoption Act. Specifically, the court examined whether section 24 allows an adult to apply for adoption by the person who cared for them as their child prior to their 18th birthday.

The court deliberated on the language of section 24, finding that it implies the applicant will not be the child but the person who has cared for the child as their own. The court concluded that the provision was designed to facilitate adoption by the caregiver rather than the child themselves. The court's reasoning was grounded in the legislative intent to ensure that adoptions occur in a manner that best supports the welfare of the child. The court determined that allowing an adult to be the applicant for their adoption would deviate from the purpose of the statute. Consequently, the court ruled that the adult could not be the applicant for their adoption under section 24.

The court's decision was final, and the application by Milo to be adopted by his foster parents was dismissed. The court emphasized that the Adoption Act must be interpreted in a way that aligns with its overarching objective of protecting and promoting the welfare of the child. The court also noted that the preliminary hearing was conducted with minimal formality, reflecting the court's intent to provide a beneficial and relational approach to addressing such issues.

Orders