Re S and the Adoption Act 2000 (NSW) [2006] NSWSC 1062

Reported Decision : 68 NSWLR 61

New South Wales Supreme Court

CITATION : Re S and the Adoption Act 2000 (NSW) [2006] NSWSC 1062

HEARING DATE(S) : Application in Chambers

JUDGMENT DATE : 10 October 2006

JURISDICTION : Equity Division Adoption List

JUDGMENT OF : Palmer J

DECISION : Consent of birth mother not dispensed with under s.54(1)(c); content of notice suggested; amendment of Act and Regulations recommended.

CATCHWORDS : ADOPTION – CONSENT – NOTICE – CONSTRUCTION – PROCEDURE – where child between twelve and eighteen years consents to adoption, whether consent of birth parents required – whether notice of adoption application can be given before application is filed – what is "reasonable notice" – rights of parents whose consent not required – contents of notice under s.54(1)(c).

- Adoption Act 2000 (NSW) – Chapter 4 Pt 5 Div 1, Div 3; s.8, s.52, s.54, s.56, s.66, s.67, s.72, s.88, s.118. LEGISLATION CITED : - Adoption of Children Act 1965 (NSW) – s.26 - Adoption of Children Act 1965 (NSW) – 1988 Amendment, Second Reading Speech, Hansard, New South Wales Legislative Council, 24 May 1988, pp370-371. - Adoption Regulation 2003 (NSW) – Clause 42

PARTIES : Director-General of the Department of Community Services - Applicant

FILE NUMBER(S) : SC 0126/06

COUNSEL : N/A

SOLICITORS : N/A

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

PALMER J.

0126/06 Re S and the Adoption Act

JUDGMENT 10 October, 2006

Introduction

1 An adoption application, which has come before me to be dealt with in private chambers, has raised a problem which exposes difficulties in the construction and application of the Adoption Act 2000 (NSW). 2 The child the subject of this application is more than twelve years old but less than eighteen years old. He has been living with the applicants for adoption for more than five years and he has given his consent in writing to the adoption in accordance with the provisions of s.55 of the Adoption Act. The child's birth father is unknown. The birth mother does not consent to the adoption. 3 The Summons, which was filed by the Director General, New South Wales Department of Community Services ("DoCS"), seeks, in addition to the order for adoption, orders under s.67(1)(a) and s.72(2)(a) of the Adoption Act dispensing with the consent of the birth father and with the need to give notice to the birth father of that application. However, no order is sought under s.67 dispensing with the consent of the birth mother. 4 Section 52 of the Adoption Act relevantly provides that the Court "must not" make an adoption order in relation to a child who is less than eighteen years of age unless consent has been given by each parent of the child. However, the Director-General submits that the consent of the birth mother in this case is not required by virtue of s.54, so that no application to dispense with her consent is necessary. 5 Section 54 provides: "(1) Consent is not required under section 52 if: