The Adoption of Edmund (a pseudonym) [2024] NSWSC 803

Supreme Court New South Wales

Medium Neutral Citation: The Adoption of Edmund (a pseudonym) [2024] NSWSC 803 Hearing dates: 13 March, 27 May 2024 (further evidence received 30 May, 17 June 2024) Date of orders: 1 July 2024 Decision date: 01 July 2024 Jurisdiction: Equity - Adoptions List Before: Meek J Decision: Determination that the birth father's consent is not required. Dispensation with notice of the application for the adoption order to the birth father. Adoption order made. Catchwords: FAMILY LAW AND CHILD WELFARE — Adoption of child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent to an adoption gives his or her sole "consent" — Whether a birth father's consent is necessary for such an adoption — Whether s 30(1)(c) Adoption Act 2000 (NSW) ("Adoption Act") creates a separate consent requirement independent of Pt 5 Div 1, including s 54(2), Adoption Act — Review of Law Reform Commission Report, legislative history, subsequent amendments of ss 30, 52, 54 Adoption Act — Held child's sole consent is sufficient and there is no requirement for a birth father's consent FAMILY LAW AND CHILD WELFARE — Consideration of dispensation with the requirement of notice to the birth father pursuant to s 54(3)(b) Adoption Act — The Adoption Act does not specify grounds which the Court must consider when determining whether to dispense with the requirement of notice pursuant to s 54(3)(b) — Consideration of matters relevant to dispensation with the requirement of notice FAMILY LAW AND CHILD WELFARE — Consideration of the provisions dealing with consideration of alternatives to adoption, being ss 8(2)(k), 29(c), 30(1)(d), 36, 90(3) and 106(2)(b) Adoption Act — Discussion of the provisions of ss 30(1)(d) and 90(3) in respect of adoption by a step parent and comment regarding the differences between those provisions FAMILY LAW AND CHILD WELFARE — Consideration of the nature of evidence on adoption applications and in particular the rationale for the particular form of evidence required from referees CONSENT — Consent conceptualised — Discussion of what is consent — Discussion of common characteristics regarding consent — Discussion of the consequences of consent — In adoption cases the consequences of consent are so significant and far-reaching that the law requires that it be filtered through a rigorous process to ensure that the consent is well-informed, well-considered and enduring — Discussion of the means by which that rigour is achieved by the Adoption Act PRACTICE — Practice Notes — Status and purpose discussed STATUTES — Construction — Discussion of principles of construction Legislation Cited: Adoption Act 2000 (NSW) Adoption Amendment Act 2006 (NSW) Adoption Amendment Act 2008 (NSW) Adoption Bill 2000 (NSW) Adoption of Children Act 1965 (NSW) (repealed) Civil Procedure Act 2005 (NSW) Interpretation Act 1987 (NSW) Statute Law (Miscellaneous Provisions) Act 2009 (NSW) Statute Law (Miscellaneous Provisions) Act 2010 (NSW) Statute Law (Miscellaneous Provisions) Act (No 2) 2023 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Adoption of ESF [2014] NSWSC 687 Adoption of N [2023] NSWSC 709 Adoption of PS [2015] NSWSC 2159 Adoption of R [2017] NSWSC 270 Akins v Abigroup Ltd (1998) 43 NSWLR 539 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Application of A - re D [2006] NSWSC 1056 Application of MKM & RDM; re SCH [2010] NSWSC 1270 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Daley v Donaldson [2022] NSWCA 96 Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 OA v Secretary, Department of Communities and Justice [2019] NSWCA 322 Oxley v Oxley [2018] NSWSC 91 Re Adoption of E F - Anonymised [2020] NSWSC 410 Re David [2022] NSWSC 1738 Re DG and the Adoption Act 2000 [2007] NSWCA 241 Re DG and the Adoptions Act 2000 [2006] NSWSC 968 Re S and the Adoption Act 2000 (NSW) (2006) 68 NSWLR 61; [2006] NSWSC 1062 Re WS (No 3) [2017] NSWSC 1160 The Adoption of Andrew, Mark and Richard [2024] NSWSC 508 The Adoption of Elisabeth (a pseudonym) [2024] NSWSC 742 The Adoption of Henry (a pseudonym) [2023] NSWSC 939 The Adoption of Mardi (a pseudonym) [2024] NSWSC 733 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54 Wass v Director of Public Prosecution (DPP) (NSW); Wass v Constable Wilcock [2023] NSWCA 71 Whalley v Commissioner of Police [2003] NSWSC 273 Texts Cited: Department of Communities and Justice, "Want to adopt?" https://dcj.nsw.gov.au/children-and-families/adoption/adopting-a-child/want-to-adopt.html accessed 25 June 2024 Explanatory Note to the Adoption Bill 2000 (NSW) Macquarie Dictionary, online ed New South Wales Government Gazette, No 148, 17 November 2000 New South Wales Law Reform Commission, Report 81 (1997) – Review of the Adoption of Children Act 1965 (NSW) (March 1997) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 June 2000, 8 August 2000, 9 August 2000, 16 August 2000, 31 October 2000 New South Wales Legislative Council, Parliamentary Debates (Hansard), 5 September 2000, 6 September 2000, 10 October 2000 Parliament of New South Wales, "Legislative process explained" https://www.parliament.nsw.gov.au/bills/Pages/Legislative-process-explained.aspx accessed 25 June 2024 Supreme Court Practice Note SC EQ 13 Young, Peter W, The Law of Consent (1986, The Law Book Co Ltd) Category: Principal judgment Parties: "Kyle" (a pseudonym) (Plaintiff) Secretary, New South Wales Department of Communities and Justice (Intervenor) Representation: Solicitors: Freedman & Gopalan Solicitors (Plaintiff) Crown Solicitor's Office (Intervenor) File Number(s): 2023/460903 Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW).