Application of A & B and the Adoption Act 2000 [2005] NSWSC 916

Reported Decision : 63 NSWLR 594

New South Wales Supreme Court

CITATION : Application of A & B and the Adoption Act 2000 [2005] NSWSC 916

JUDGMENT DATE : 9 September 2005

JURISDICTION : Equity Division Adoptions List

JUDGMENT OF : White J

DECISION : Make orders in accordance with the summons.

CATCHWORDS : FAMILY LAW - Adoption - Application for adoption by biological mother and stepfather - Consent of biological father to commencement of adoption proceedings but not adoption order - Where child is of sufficient age and maturity to give sole consent under s 54(2) - Adoption Act 2000 (NSW) ss 28(3), 54(1)(b), (c), (2), 56(2), 95(3), 101(4) - Held that an adoption order can be made in favour of a birth parent - Order made as sought in summons.

LEGISLATION CITED : Adoption Act 2000 (NSW)

PARTIES : Application of A & B and the Adoption Act 2000

FILE NUMBER(S) : SC 80091/05

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTIONS LIST

WHITE J

Friday, 9 September 2005

80091/05 Application of A & B and the Adoption Act 2000 JUDGMENT 1 HIS HONOUR: This is an application for an order for the adoption of a 15 year-old child by the applicants jointly. The applicants are the biological mother of the child and her husband. The applicants were married in 1996. The child has been living with her mother all her life, and with both her mother and her stepfather for the last ten years. She has consented to the adoption. 2 In 2002, the child's biological father consented to the commencement of adoption proceedings. A consent to the commencement of the adoption proceedings is not the same thing as consent to the making of an adoption order. It is clear from the report of an officer of the Department of Community Services that the father supports the adoption. He advised that he understood that he had completed the necessary paperwork earlier. However, no consent complying with the requirements of ss 58 to 63 of the Adoption Act from the child's father has been filed. 3 However, the effect of s 54(1)(c) and (2) is that his consent is not required if the child gives "sole consent" under subs 54(2), and the Director-General has given reasonable notice of the application for the adoption order to him. Under subs 54(2) a child who is twelve or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents, if the child has been in the care of the proposed adoptive parent or parents for at least five years. 4 I am satisfied that the child is of sufficient maturity to understand the effect of the giving of her consent and that the Director-General has given reasonable notice of the application for adoption to the child's father. As the child has been living with the proposed adoptive parents for 10 years, the consent of the child's father is not required. 5 The applicants' solicitor has pointed to a possible issue under s 56 of the Act. Whilst the section is applicable, it has not been shown that the Director-General has failed to comply with s 56(2). 6 I am satisfied that it is in the best interests of the child that an adoption order be made. 7 The child's mother applies for an order that she and her husband both be the adoptive parents of the child. It is somewhat odd that the child's mother should be one of the adoptive parents. As the child's mother and stepfather are living together, if the application were made by the child's stepfather alone, the making of an order that he be an adoptive parent would not mean that the child's mother ceased to be regarded in law as the child's parent. (s 95(3)). Nonetheless, it is clear from ss 28(3) and 54(1)(b) that an adoption order can be made in favour of a birth parent. It seems to me that the making of the adoption order sought will have no effect on the legal relationship between the child's mother and the child. However, it should avoid any dispute which might otherwise arise in the future, perhaps many years into the future, if an order for adoption were made in favour of the stepfather only. It might not then be easy to establish whether at the time the order was made, the stepfather and the child's mother were living together. 8 The child has consented to the change of her surname as required by s 101(4). I am satisfied from the social worker's report that she has a full appreciation of the effect of the orders sought. 9 For these reasons, I make orders in accordance with the summons.