Application of LAD; re SRB [2010] NSWSC 1280

New South Wales Supreme Court

CITATION : Application of LAD; re SRB [2010] NSWSC 1280

HEARING DATE(S) : In Chambers

JUDGMENT DATE : 6 September 2010

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : Make orders 1 and 2 in the Summons

CATCHWORDS : FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Adoption – Application for orders – relevant considerations – where child over eighteen years of age – whether consent dispense order required, or whether necessary to give notice to natural father pursuant to (NSW) Adoption Act 2000, s 88

LEGISLATION CITED : (NSW) Adoption Act 2000, s 54, s 88, s 90

CATEGORY : Principal judgment

FILE NUMBER(S) : SC 2010/118

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

Brereton J

Monday, 6 September 2010

118/2010 Application of LAD; re SRB JUDGMENT 1 HIS HONOUR: In this adoption application the child SRB is twenty years of age and has been cared for by the applicant LAD and his natural mother, to whom LAD is married. Pursuant to (NSW) Adoption Act 2000, s 90(3), the effect of an adoption order in favour of LAD will be that he and the natural mother, with whom he is living, will be the child's parents. The evidence plainly establishes that it would be in the interests of the child to make an adoption order as sought. An affidavit of the child SRB, who is 20 years of age, supports the application. 2 However, the Summons seeks an order dispensing with consent, and an order dispensing with notification to the natural father. The child was born of a short relationship between the mother and natural father, which ended before the child was born; the natural father has never had anything to do with the child since. 3 I was at first concerned that, while the Summons as amended names the natural father as JSY, there is no evidence showing that he is the natural father. The only evidence [mother's affidavit, par 6] is that the natural father is CS – who was originally named as natural father in the Summons. Nor does it show why it is not reasonably practicable to give notice to JSY. At present, the evidence does not explain what has become of JSY – it refers only to CS [see paras 6 and 10 of the Mother's affidavit]. 4 However, while at first I was inclined to think that in order to obtain an order dispensing with consent, and an order dispensing with notification to the natural father, it would be necessary for the applicant to file affidavit evidence proving (a) that JSY is the natural father of the child, and (b) why it was not reasonably practicable, or otherwise inappropriate, to give notice of the application to JSY, I have come to the conclusion, for the reasons that follow, that such a course would be superfluous. 5 (NSW) Adoption Act 2000, s 54, provides as follows: 54 When consent of parent or person who has parental responsibility not required (cf AC Act s 26 (4A)) (1) Consent is not required under section 52 if: (a) the requirement for the consent has been dispensed with by the Court, or [Note. See Division 3 of Part 5.] (b) the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or (c) the child gives sole consent to his or her adoption in accordance with subsection (2), or (d) the child is 18 or more years of age . (2) A child who is 12 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 cared for by the proposed adoptive parent or parents for at least 2 years. (3) However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless: (a) the Court is satisfied that at least 14 days' notice of the application for the adoption order has been given by the Director-General or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or (b) the Court dispenses with the giving of notice. (4) The regulations may prescribe the particulars to be contained in a notice under this section. [Note. Parental responsibility is defined in the Dictionary.]