The Adoption of Sloane (a pseudonym)

[2025] NSWSC 188

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Sloane (a pseudonym) [2025] NSWSC 188

Hearing dates:

On the papers; written submissions 19 December 2024, 4 and 6 February 2025

Date of orders:

6 February 2025

Decision date:

11 March 2025

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Pursuant to Adoption Act 2000, ss 67(1)(a) and 67(1)(c), the Court dispenses with the requirement for the consent of the child’s birth father

Catchwords:

CHILD WELFARE – adoption – consent – dispense order – where child is subject to Temporary Care Arrangement pursuant to Children and Young Persons (Care and Protection Act) 1998 (NSW), s 151 – where birth mother consents to adoption – where two putative birth fathers identified – where first putative father cannot be found or identified – where DNA testing results for second putative father delayed – where paternity cannot be confirmed prior to expiry of Temporary Care Arrangement – where it is in child’s best interests to be placed in adoption placement as soon as possible – whether second putative father’s continued involvement would be serious cause for concern for child’s welfare – whether consent dispense order would override putative birth father’s wishes

Legislation Cited:

Adoption Act 2000 (NSW)

Children and Young Persons (Care and Protection Act) 1998 (NSW)

Interpretation Act 1987 (NSW)

Cases Cited:

Adoption of A [2022] NSWSC 567

Application of DOCS re C [2004] NSWSC 702

Director-General, Department of Community Services (NSW) v D [2007] NSWSC 762

Director-General, Department of Human Services; re DAM [2011] NSWSC 634

Re Simon (No 2) [2006] NSWSC 1412

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

The Adoption of Hannah (a pseudonym) [2024] NSWSC 694

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):

2024/477517

Publication restriction:

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

JUDGMENT

1. These proceedings relate to the proposed adoption of a girl who I will call “Sloane” (not her real name), now aged 7 months.

2. By Summons and Notice of Motion filed on 19 December 2024, the Secretary of the New South Wales Department of Communities and Justice (“the Secretary”) sought an order, pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW), dispensing with the requirement for the consent of Sloane’s father to Sloane’s adoption.

3. On 6 February 2025, I made that order pursuant to ss 67(1)(a) and 67(1)(c) of the Adoption Act. These are my reasons.

The course of events

4. On the day after Sloane’s birth, Sloane’s mother, who I will call “Kim” (not her real name), signed a Temporary Care Arrangement in respect of Sloane pursuant to s 151 of the Children and Young Persons (Care and Protection Act) 1998 (NSW).

5. Kim has consistently expressed a wish for Sloane to be adopted. Kim is not able to parent Sloane due to her work and financial circumstances. Kim’s family are aware of her decision and are supportive of her. Kim’s family members are unable to care for Sloane.

6. Kim is not an Australian citizen. She has resided in Australia since 2021 on a temporary working visa. Kim has three other children who have never resided in Australia. They are being cared for by Kim’s parents, the maternal grandparents, and Kim’s aunt, the maternal great aunt, while Kim resides in Australia.

7. On 5 November 2024, Kim agreed to extend the Temporary Care Arrangement in respect of Sloane. The arrangement was set to expire on 7 February 2025. The arrangement could not be extended. ^[1]

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

8. On 11 December 2024, Kim gave her formal consent to the adoption of Sloane.

9. At the time the application came before me, Sloane was in a short-term care placement with an authorised carer. The placement was not intended to be Sloane’s long-term placement. Sloane was 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 it is a useful expression to adopt.

10. Unless I made an order dispensing with Sloane’s father’s consent prior to 7 February 2025, when the Temporary Care Arrangement was to end, the Secretary would have ceased to have care responsibility under the arrangement, and care responsibility would have reverted to Kim.

11. That is because of the expiration of the Temporary Care Arrangement, and because the Secretary can only acquire parental responsibility for Sloane under s 75 of the Adoption Act if consent to Sloane’s adoption is given by all requisite persons or if such consent had been dispensed with. Here, Sloane’s mother has given consent, but Sloane’s father has not. Hence, the Secretary made the application before me 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:

1. pursuant to s 67(1)(a), 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] or

2. pursuant to s 67(1)(c), there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent, ^[6] and if satisfied that to do so would be in the child’s best interests. ^[7]

   4. Adoption Act, s 67(1)(a).

   5. Adoption Act, s 67(2).

   6. Adoption Act, s 67(1)(c); see Re Simon (No 2) [2006] NSWSC 1412 at [28]-[29] (Campbell J).

   7. Adoption Act, s 67(2).

14. A consent dispense order is “a step preliminary to severing permanently a parental bond” and should only be made for “weighty and convincing reasons”. ^[8]

    8. Director-General, Department of Community Services (NSW) v D [2007] NSWSC 762 at [195] (Brereton J).

“Eric”

15. Kim identified Sloane’s putative father to be a man who I will call “Eric” (not his real name). Kim states she was in a relationship with Eric between September 2023 and April 2024, and that the couple resided together at the time of Sloane’s likely conception.

16. It is not clear whether Eric is Sloane’s father. Eric has strongly denied that he is Sloane’s father. Eric denied being in an ongoing relationship with Kim but has said he was physically intimate with Kim at the time of likely conception. Eric stated that Kim “ha[d] a few partners”, so he could not be certain that he was the father. He has refused to engage in DNA testing to confirm paternity. He has refused to engage in discussions about Sloane’s future, telling caseworkers that Kim “can do what she wants with the baby” and “I don’t want anything to do with her”. He has now ceased contact with caseworkers from the Department of Communities and Justice.

17. The Secretary has adduced evidence of numerous attempts to contact and engage Eric, and of the searches undertaken to gain information about Eric. The Secretary has put Eric on notice of this application for a consent dispense order.

18. The Secretary has gone to great lengths to correspond with Eric about Sloane. I did not think it reasonable to expect the Secretary to take any further steps, given Eric’s disinterest in the matter.

19. I was satisfied that Eric, as the person reasonably believed to be Sloane’s birth father, has been given reasonable opportunity to consent to the adoption of Sloane. ^[9]

    9. Adoption Act, s 56(2)(a)-(b).

“David”

20. Due to some inconsistencies arising in Kim’s statements about her relationship with Eric, the Secretary has considered a second putative father: a man who I will call “David” (not his real name).

21. Kim believes that David could not be Sloane’s father as she recalls that she was already pregnant with Sloane when she was physically intimate with David.

22. David has also denied that he is Sloane’s father, as he does not recall being physically intimate with Kim at around the time of Sloane’s conception. Despite this, David agreed to engage in DNA testing to confirm paternity, as he understood the importance this process would have for Sloane. Those results were expected by 4 February 2025.

23. Unfortunately, the sample provided by Sloane for DNA testing was insufficient to produce a conclusive result as to paternity. A further sample was obtained; however, it was expected that results from that sample would not be received until 14 February 2025, one week after the expiration of the Temporary Care Arrangement.

24. It was the Secretary’s view that David is unlikely to be Sloane’s father based on the timeline provided by Kim. Nevertheless, the delayed DNA testing has impacted the Secretary’s ability to confirm or exclude David as a putative father for the purposes of this application for a consent dispense order.

25. As I have said, the Secretary made its application pursuant to s 67(1)(a). I was not persuaded to dispense with Sloane’s father’s consent on the sole basis of s 67(1)(a). I was not satisfied that Sloane’s father could not, after reasonable inquiry, be found or identified within the meaning of s 67(1)(a), as David had been found and located as a second putative father, and he had engaged in these proceedings by agreeing to DNA testing.

26. Accordingly, I invited the Secretary to make further submissions in support of the making of a consent dispense order pursuant to s 67(1)(c), that is, on the basis that there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent.

27. It is open to the Court to make a consent dispense order in circumstances where the “serious cause for concern” is that the father’s involvement in the adoption process will impede or delay the placement of the child in a permanent placement in an adoptive family, especially where that placement is in the best interests of the child. ^[10]

    10. See, for example, Application of DOCS re C [2004] NSWSC 702 at [11] (Austin J); Director-General, Department of Human Services; re DAM [2011] NSWSC 634 at [2] (Brereton J); and my decision in The Adoption of Hannah (a pseudonym) [2024] NSWSC 694.

28. I was satisfied that David’s continued involvement in the adoption process would delay the progression of Sloane’s adoption. The DNA test results were expected after the expiration of the Temporary Care Arrangement. If the Temporary Care Arrangement expired, day-to-day care responsibility for Sloane would have reverted to Kim. Sloane would have been removed from her short-term care placement, and the Secretary would not have acquired parental responsibility. This would have inevitably delayed any plans to have Sloane placed in a secure adoptive placement in accordance with Kim’s wishes. I acknowledge that David is in no way responsible for this delay; it is his status as a not yet excluded putative father that would have caused this delay.

29. I was satisfied that there was a serious cause for concern for Sloane’s welfare if the adoption process was not progressed. Kim has already provided formal consent to Sloane’s adoption; she does not want the day-to-day care responsibility for Sloane to revert to her. Further, this outcome would not be in Sloane’s best interests. It is in Sloane’s best interests for her to be placed in a secure adoptive placement as soon as possible; she cannot achieve permanency or stability until this occurs.

30. Mere delay in progressing an adoption will not necessarily give rise to a “serious concern” sufficient to override a parent’s wishes if that parent is actually opposed to the adoption. ^[11] However, I must have regard to the principles in the Adoption Act, including that undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare. ^[12]

    11. Director-General, Department of Human Services; re DAM (supra) at [2] (Brereton J).

    12. Adoption Act, s 8(1)(e1).

31. David has not expressed opposition to the adoption of Sloane. He has not expressed any view about the matter, no doubt because he does not believe he is Sloane’s father. He has not expressed any wishes or interest in discussions about Sloane’s future. In those circumstances, a consent dispense order would not override any wish that David has expressed.

32. If the DNA test results confirm Sloane’s paternity in favour of David, David may then express wishes for and interest in Sloane’s future. Indeed, he may seek to establish paternity, oppose the adoption of Sloane and care for Sloane himself. Nevertheless, a decision about a consent dispense order cannot be delayed because of this possible outcome. The paramount consideration that I must have regard to is the best interests of Sloane,^[13] and it is in her best interests to make the consent dispense order now to avoid delay to her achieving legal and social permanency and stability.

    13. Adoption Act, s 8(1)(a).

33. In light of these circumstances, I was satisfied that there was a serious cause for concern for Sloane’s welfare, and it was in the best interests of Sloane to dispense with the need for David’s consent to the adoption, if he is the father.

34. It was not necessary that I be satisfied that David be given reasonable opportunity to consent to the adoption of Sloane, as he is not the person reasonably believed by the Secretary and Kim to be Sloane’s birth father. ^[14] However the Secretary has advised David of the legal processes by which he can establish paternity in relation to Sloane or be registered as the father of Sloane, and of his rights if he is established as Sloane’s parent in relation to the adoption. ^[15]

    14. Adoption Act, s 56(2)(a)-(b).

    15. See Adoption Act, s 56(2)(b)(i)-(ii).

Conclusion

35. Thus, I was satisfied that I should dispense with the consent of Sloane’s birth father, whoever he may be, pursuant to ss 67(1)(a) and 67(1)(c).

36. As I have discussed, it was in Sloane’s best interests to make the consent dispense order, since it enables her to be placed in an adoptive placement as soon as possible. ^[16] This is especially important for Sloane as placement options may be limited by reason of the need for any carer to deal sensitively with Sloane’s unconfirmed paternity, and to support Sloane to develop a healthy and positive cultural identity and maintain relationships with her birth family residing overseas. Kim has specifically requested that Sloane be placed with carers who are willing to travel to Kim’s home country once per year for visits to connect Sloane to her culture.

    16. See, for example, Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) (supra) at [40] (Kunc J); and my decision in Adoption of A [2022] NSWSC 567 at [14]-[15].

37. If the DNA testing results suggest that David is in fact Sloane’s father, the Secretary will undertake further casework and seek further orders as necessary. A consent dispense order in relation to the adoption of a child made before an application for an adoption order has been made may be revoked by the Court at any time before the making of the adoption order. ^[17]

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17. Adoption Act, s 71(1).

Endnotes

Decision last updated: 11 March 2025