The Adoption of Rachel (a pseudonym)

[2024] NSWSC 168

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Rachel (a pseudonym) [2024] NSWSC 168

Hearing dates:

On the papers

Date of orders:

23 February 2024

Decision date:

27 February 2024

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Order to dispense with consent of birth father

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)

Interpretation Act 1987 (NSW)

Category:

Procedural rulings

Parties:

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

Representation:

Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s):

2024/67430

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 “Rachel” (not her real name).

2. By Notice of Motion filed 20 February 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 Rachel’s father to Rachel’s adoption.

3. I made that order on 23 February 2024. These are my reasons.

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

The course of events

5. Rachel was born in September 2023.

6. The day after Rachel’s birth, Rachel’s mother signed a Temporary Care Arrangement in respect of Rachel, pursuant to s 151 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

7. The mother, who I will call “Jan” (not her real name), expressed a wish for Rachel to be placed into care and to consider adoption. Jan cannot recall the events of the evening on which she believes Rachel was conceived. Jan may have been sexually assaulted at a work Christmas function.

8. On 23 November 2023, Jan agreed to extend the Temporary Care Arrangement. It remains in force, expiring on 7 March 2024. The arrangement cannot be extended. ^[1]

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

9. Jan has indicated that she is not able to care for Rachel, and wishes for her to be adopted. Jan gave her formal consent to the adoption of Rachel on 5 February 2024.

10. Rachel has not yet been placed for adoption. No application has yet been made for Rachel’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 Rachel’s father’s consent prior to 7 March 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 Jan.

12. That is because of the expiration of the Temporary Care Order, and because the Secretary could only acquire parental responsibility for Rachel under s 75 of the Adoption Act if consent to Rachel’s adoption was given by all requisite persons (not the case here as Rachel’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, Rachel’s father cannot be identified.

16. There is no father recorded on Rachel’s birth certificate.

17. The mother has identified two putative fathers, who I will call “Bill” and “Jack” (not their real names).

18. DNA test results show that Bill is not Rachel’s father.

19. It is not clear whether Jack is Rachel’s father.

20. Jack has:

1. confirmed that he does know Jan; but

2. denied having any sexual relations with Jan; and

3. asserted having no recollection of seeing Jan on the evening of the alleged conception.

21. The Secretary has adduced evidence of numerous attempts to contact and engage Jack through email, Facebook Messenger, letters, telephone calls, text messages, and attendance at three known residences and his place of employment. Jack has not responded to communications made on behalf of the Secretary since November 2023.

22. Jack has outright denied any possibility that he may be the father of Rachel. He has not engaged in DNA testing or decision-making about Rachel. The Secretary has gone to great lengths to correspond with Jack about Rachel. I did not think it reasonable to expect the Secretary to take any further steps, given Jack’s disinterest in the matter.

23. Most importantly, I was satisfied that it is in Rachel’s best interests to make the consent dispense order, since it enables her to be placed in an adoptive placement as soon as possible. This is especially important for Rachel as placement options may be limited by reason of a number of potential health issues.

24. The making of the order also had the effect that the Secretary retains parental responsibility for Rachel and prevents such responsibility reverting to Jan: an outcome Jan does not want,^[6] and which would not be in Rachel’s best interests. ^[7]

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6. See [9] above.

7. See [23] above.

Endnotes

Decision last updated: 27 February 2024