The Adoption of Edmund (a pseudonym)

HIS HONOUR: This case raises the crucial issue of whether the consent of a birth father is necessary (or can be dispensed with) in circumstances where a 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” to his or her adoption.

I will refer to the child proposed to be adopted as “Edmund” (a pseudonym). The application before the Court was made by Edmund’s step father, the proposed adoptive father, whom I will refer to as “Kyle” (a pseudonym). I will refer to Edmund’s birth father as “John” (a pseudonym) and his birth mother as “Marika” (a pseudonym).

There is no paucity of caselaw which addresses the issue. Such caselaw as there is has proceeded on the basis that a birth father’s consent is not required. However, there are certain provisions of the Adoption Act 2000 (NSW) (Adoption Act) which might give the impression that a birth father’s consent is necessary. Uninformed by the legislative history of adoption in New South Wales, it would not be strange or unusual to suppose that a birth father’s consent to the adoption of his child might be a necessary requirement to adoption.

In this judgment, any section references will be to the Adoption Act unless otherwise specified.

Ultimately, the answer to whether or not a birth father’s consent is a necessary requirement (consent issue) depends upon the application of principles of statutory construction.

In the event that it is determined that a birth father’s consent is unnecessary, there is a related issue as to which matters may permissibly be taken into account in determining whether or not notification to the birth father of the application for the adoption order is able to be dispensed with (notification issue).

Lastly, subject to the above-mentioned issues, an issue arises as to whether an adoption order should be made (adoption issue). In respect of the adoption issue, whilst it was not the subject of any express submissions, I will briefly address the provisions of both ss 30(1)(d) and 90(3), which are in remarkably similar terms to each other, in order to explore and tease out the differences between those provisions.

From time to time, the Court is assisted by the Crown Solicitor in the interests of the Secretary, New South Wales Department of Communities and Justice, and occasionally also by amicus curiae, in relation to important issues in proposed adoptions: e.g. OA v Secretary, Department of Communities and Justice [2019] NSWCA 322.

In the circumstances of this case, two particular issues arose which led me to list the matter and seek assistance.

The first issue related to the question which I have identified above, namely the issue of whether or not John’s consent is required and, if required, what notification or attempted notification in respect of seeking such consent or dispensing with such consent might be required.

The second issue arose in the event that John’s consent is not required, and concerned the questions of whether notification of the application is nonetheless required, the means of any such notification to John, and whether notification of the application should be dispensed with.

Some sensitivity attached to both issues in circumstances where some of the evidence before the Court suggested that there might be some reluctance on the part of Marika for John to be notified or involved.

Ms Hailstone appeared for the Secretary and Ms Gopalan appeared for Kyle.

I granted leave under s 143(2) of the Adoption Act and r 56.12 of the Uniform Civil Procedure Rules 2005 (NSW) for the Secretary to uplift and inspect the Court file. This was to assist the Secretary in providing submissions in respect of:

Ms Hailstone, as principal solicitor for the Crown Solicitor, and Ms Jorgensen, a solicitor in the employ of the Crown Solicitor, provided written submissions dated 11 April 2024. I have been considerably assisted by those submissions and express my gratitude to Ms Hailstone and Ms Jorgensen for assisting the Court in this way. For convenience, I will refer to the submissions on behalf of the Crown Solicitor as submissions by Ms Hailstone.

First, I have determined that, in the circumstances where a 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 to the adoption, no other consent is required, including from the birth father.

The issue regarding whether the consent of a particular person to a proposed adoption is required is significant. “Consent” is a concept which permeates many areas of law. In addressing consent, and the reasons why consent may or may not be required in relation to an important issue, it is helpful to have some conception of what is meant by “consent”. For that reason, I will make some observations below about the nature of consent.

In addition to the significance of the outcome to Edmund, Marika and Kyle, it is evident that the Secretary would be assisted by a detailed examination of the issue. For those reasons, I have undertaken a relatively in-depth review of the pre-Adoption Act legislation, the review by the New South Wales Law Reform Commission (Commission), the legislative progress of the Adoption Bill 2000 (NSW) (Adoption Bill) (including second reading speeches), the Adoption Act itself and subsequent amendments to ss 30, 52 and 54 in addressing the context and purpose of the consent provisions of the Adoption Act. In light of that review, I have considered the text of the provisions in ss 30, 52 and 54.

I detail below the reasons for my finding on the consent issue. However, in summary my reasons are as follows.

Secondly, in light of the facts I note below, I am satisfied that there should be dispensation with notice of the application for the adoption order to John on the basis that John cannot, after reasonable inquiry, be identified let alone located for the purposes of giving notice.

Thirdly, in light of all the circumstances of the case, including facts derived from affidavits and other materials in support of the application for adoption (including the s 91 report), which facts I have fully considered but for the purposes of anonymity have not recited in the judgment, I am satisfied that an adoption order ought to be made in favour of Kyle, noting that the provisions of s 95(3) of the Adoption Act have the effect that Marika does not cease to be regarded in law as Edmund’s parent.

For the purposes of addressing the consent issue and the notification issue, the essential facts are as follows.

Edmund was born in 2009 and is currently aged 15. He lives with Marika and Kyle. John has not had contact with Edmund since his birth. There are reasons (on which I will not elaborate in this judgment) as to why Marika is reluctant for John to be contacted or notified. Kyle was previously married and has one child from that relationship who is over 18. Marika and Kyle married in 2015 and have had a child together; the child was born in 2016 and is a half-brother to Edmund.

Marika has not had contact with John since she had informed him of her pregnancy in October 2008. The discussions between them on that occasion, according to Marika, gives reason to think that John, at least at that time, had no desire to be involved with Edmund.

The initial materials in the matter suggested that Marika might no longer be able to accurately identify a surname for John. However, following a court listing to address principally the notification issue, Marika provided a given name and surname for John. Nonetheless, the provision of the surname was qualified by a statement to the effect that she “is unsure as to the spelling of his surname but believes that it could be…”: Affidavit of Maxwell Gerard Turner affirmed 29 May 2024 (Turner Affidavit) at Annexure B.

Further, at some stage soon after Marika had discovered that she was pregnant and informed John, she proceeded to delete his telephone number from her phone and subsequently changed phones: Turner Affidavit at Annexure B.

Mr Turner, a family history researcher employed by the Crown Solicitor’s Office, undertook various searches to locate John using the social media platform Facebook. He used several spelling variations of the given name and surname provided by Marika, but did not identify any actual or “suitable” matches to the person to whom Marika referred. He located dozens of individuals located around the world and then identified three such individuals with connections to Australia, the surnames of whom were close but not an exact match: Turner Affidavit at [8]-[10].

I requested the Secretary to file and serve an affidavit regarding further search action to locate John. Ms Hailstone provided an affidavit affirmed 17 June 2024, in which she indicated that she had arranged for skip tracing to be undertaken (Hailstone Affidavit).

Whilst somewhat upsetting for her, Marika was able to provide a little more information regarding John via Ms Gopalan. However, an interim skip tracing report returned no results matching the name given by Marika: Hailstone Affidavit at Annexure B. The closest matching name, having regard to the ages of the persons identified by the results, belonged to someone aged 58 in 2008: Hailstone Affidavit at Annexure B. The little detail that has been provided about the matter suggests to me that, having regard to their respective ages in 2008, it is highly unlikely that that person (noting in any event that the name is not an exact match) is the person who is Edmund’s birth father.

Given the significance of the consent issue in these proceedings, it is important to have some understanding of what consent is, how it applies in adoption cases and how its importance might bear upon the proper approach to construing the Adoption Act.

One might think that consent is a simple concept, yet it is underpinned by profound principles which impact and pervade much of human life.

Morphologically, “consent” derives from the roots “con” meaning “together” and part of the verb “sentire” meaning “to feel think or judge”: Peter W Young, The Law of Consent (1986, The Law Book Co Ltd) (Young) at 12. The essential notion is to “think together” or “agree together”.

The Macquarie Dictionary defines the noun “consent” as “assent; acquiescence; permission; compliance” and “agreement in sentiment, opinion, a course of action, etc [for example]: by common consent”. It defines the verb as “(sometimes followed by to) to give assent; agree; comply or yield [for example]: to consent to the request; to consent to do this”: Macquarie Dictionary, online ed.

Other dictionaries, including legal dictionaries, are replete with definitions of “consent” in numerous contexts: see e.g. Young at 12-13.

For legal purposes, it is often necessary to distinguish “consent” from other concepts of “submission”, “acquiescence” or “permission”: Young at 12.

Whilst recognising that it is virtually impossible to comprehensively distil the essential characteristics of consent, Peter Young advanced a number of general propositions in his extracurial survey of the law of consent which are noteworthy: Young at 14-16.

The common, though not universal, characteristics of consent set out by Young include the following (which I have summarised):

The notion of consent generally assumes that the consenting party has some right, privilege, entitlement or freedom which will be impacted by the proposed action or inaction. At a highly generalised level, the relevance of consent is that it deprives the consenting party of the ability to complain about the consequences of the matter to which consent was given: Young at 3.

The form of consent applicable in any given situation will generally be informed by reference to the nature of the right, privilege, entitlement or freedom that will be impacted by the decision of consent and the consequences that flow from giving the consent.

The consequences flowing from the giving of consent may be momentary and impact to little or no degree upon the consenting party’s right, privilege, entitlement or freedom. On other occasions, it may be enduring and involve significant impact or sacrifice on the part of the consenting party.

Sometimes in law, there may be circumstances in which consent may be seemingly involuntary, yet it is nonetheless effective or binding. For example, a contract procured by duress will generally be regarded as voidable based on the notion that the party’s will is deflected, rather than destroyed: Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 45F-G per McHugh JA (as his Honour then was), citing Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 695 per Lord Simon of Glaisdale.

In other cases, the appearance of consent (as distinct from actual consent) may be the relevant legal issue: Young at 5.

However, as will be seen below, the consequences of consent in some circumstances are so weighty and far-reaching that the law requires that it be filtered through a rigorous process before a court is prepared to act upon the consent. This is to ensure that the consent has not merely the appearance of volition, but the actuality of volition which is well-informed and enduring. Consent to adoption is one such case, due of the gravity of the nature of an adoption order.

It would not be an understatement to say that parentage of children is one of the most fundamental privileges of human life.

The importance of the tasks and responsibilities of parentage is both highlighted and underpinned by numerous legal provisions, both international and domestic.

Indeed, this Court has an entire jurisdiction, the parens patriae jurisdiction, premised on the Court being able to intervene where necessary in a supervisory parental role in the care of persons, including children, who are unable to care for themselves.

An adoption order made by the Court gives sole parental responsibility for a child to the person or persons named in the order: s 95(1). Crucial relational, property and other consequences flow from the making of the order: s 95(2). Indeed, an entire Part of the Adoption Act (being Pt 11) is dedicated to setting out the legal effect of adoption orders.

Fundamental to adoption is the notion of consent. The gravity with which the law considers consent to adoption is judged at least by reference to the rigour with which it seeks to ensure that the consent is well-informed, well-considered and enduring.

The significance of consent is reflected in the fact that the word appears, including in the various expressions of “consents”, “consented” and “consenting”, approximately 270 times throughout the Adoption Act.

A distinction is made between the giving of “general consent” to the adoption of the child by an adoptive parent or parents selected by the Secretary or principal officer of an accredited adoption service provider (s 53(1)(a)) and “specific consent” to the adoption of the child by a specified adoptive parent, being a relative, step parent or authorised carer who has had care responsibility for the child for two years or more: s 53(1)(b). The distinction between a general consent and a consent to the adoption of the child by a specified person previously existed in the Adoption of Children Act 1965 (NSW) (1965 Act): see ss 6, 25(3), 27(1), (2) and 34 1965 Act.

Parties involved in adoption arrangements are required to consider certain matters and be provided with support so that, at a critical early stage, their understanding of their rights, the processes involved and the outcome is well-conditioned. In this way, when an adoption is ultimately finalised, the risk of regrets and disputes is minimised.

The Adoption Act ensures that “consent” has the above-mentioned qualities by specifying various preconditions to the giving of consent. These preconditions require patience, information, formality, advice, verification of advice and time for reflection on the part of the consenting party so that the consent ultimately given is “effective”, having been tested and refined. This is done by steps which:

Other requirements are specified in relation to the giving of consent to the adoption of certain children, including for example the adoption of an “Aboriginal child”: s 64.

Further, the Adoption Act recognises that there may be situations in which the consent of certain parties is not forthcoming, notwithstanding opportunities to consent, and provides a framework through which the consent may be dispensed with: ss 66-72.

Prior to the commencement of the Adoption Act, the relevant consent provisions for children aged between 12 and 17 (inclusive) were addressed in s 26(4A) of the 1965 Act. In context, the consent provisions were set out in ss 26, 27 and 33 as follows:

In November 1992, the then Attorney General for New South Wales, the Honourable John Hannaford MLC, referred various matters to the Chairman of the Commission for inquiry and report, including a review of the scope and operation of the 1965 Act.

The specific terms of the reference were received by the Commission on 1 December 1992, and the Commission began its review of the 1965 Act that month. In May 1993, the Commission released an Issues Paper for public discussion. In April 1994, a more extensive paper (Discussion Paper 34) was released for public comment.

In March 1997, the Commission published its report: Report 81 (1997) – Review of the Adoption of Children Act 1965 (NSW) (Report).

The Commission made 110 recommendations. In the executive summary to the Report, the Commission recommended that the 1965 Act be rewritten with a number of aims in mind, including characterising adoption by openness.

The Report as published contained a draft Adoption Bill 1997, together with an explanatory note.

The Report contained 11 chapters, including chapters addressing the concept of adoption (Chapter 2), the adoption process (Chapter 3) and openness in adoption (Chapter 7).

Relevantly, the Report specifically addressed particular categories of adoption (Chapter 4) and consent to adoption (Chapter 5).

Within Chapter 4, the Report identified broadly five categories of adoption, being: (1) adoption of adults; (2) adoption by step parents and other relatives; (3) adoption of children in care; (4) adoption of children in private placements; and (5) adoption of children with special needs.

Chapter 5 covers several topics dealing with consent to adoption, namely: ensuring informed and voluntary consent; the birth father’s consent; the consent of the child; dispensing with consent; and the participation of the birth parents.

The structure of the Report is such that it addressed the then current law and practice, identified proposals in the Discussion Paper, summarised the submissions and responses and provided conclusions thereon.

The Commission noted that much of the literature on adoption combined the treatment of step parent adoptions and relative adoptions in one category, termed “intrafamily adoptions”. It was noted that, while there is a significant amount of overlap between the two categories, there were distinct considerations attaching to each which required separate treatment: Report at [4.25]. It was observed that step parent and relative adoptions differ from other types of adoptions in that agencies do not select the adoptive parents. Instead, the issue is whether the existing care arrangement should be transformed into an adoption: Report at [4.26].

In the case of step parent adoptions, the Commission noted that the purpose of seeking the adoption order is not to place the child in the permanent care of a family, as the child is already, and will remain, in the care of the applicants: Report at [4.56]. Rather, the Commission considered that step parent adoptions are usually for the following reasons (Report at [4.57]):

In the Commission’s view, the greatest disadvantage of step parent adoption (as in the case of relative adoption) was its potential to militate against flexible and regular access between the child and his or her birth parents: Report at [4.83].

The then current law and practice was that an order for an adoption of a child who had attained 12 years of age could not be made unless the child consented to the adoption. In this respect, the child’s consent was specific: Report at [5.115].

The child’s consent was the only consent required where the child was aged from 12 to 17 years and had been brought up, maintained and educated by the applicants for a period of five years before the making of the application: Report at [5.117]; s 26(4A) 1965 Act. However, s 33(2) of the 1965 Act allowed the Court to make an adoption order for such a child where the child’s consent had not been given.

The position under the 1965 Act was that consent to the adoption of a child was generally required from the birth mother and father who were married or who lived in a “common household”: Report at [5.87]; ss 26(2), (3)(b) 1965 Act. However, where the child was ex-nuptial and the birth mother and father did not live together after the child’s birth, the Commission noted that consent was generally only required from the mother: Report at [5.87]; s 26(3)(a) 1965 Act.

The Commission noted that although the consent of a birth father to the adoption of an ex-nuptial child may not be required (depending on whether he has an established relationship with the child or the child’s mother: s 26(3) 1965 Act), the 1965 Act still required an agency to notify such fathers of the birth mother’s consent or the impending adoption before the adoption order is granted by the Court: Report at [5.92]; ss 31A and 31E 1965 Act.

Ultimately, the Commission recommended (under Recommendation 46) that legislation should provide that consent to the adoption of a child under 18 years should be obtained from every person who is a parent or guardian of the child or who has parental responsibility for the child, except (inter alia) where the child has attained the age of 12 years, in which case consent is only obtained from the child.

The proposals in the draft Adoption Bill 1997 for relative adoption (cl 28, cf s 29 Adoption Act), step parent adoption (cl 29, cf s 30 Adoption Act), consent of parents and guardians (cl 38, cf s 52 Adoption Act) and consent of a child aged 12 to 17 years (cll 39, 40, cf ss 54(1)(c) and (2) Adoption Act) were as follows:

The explanatory note accompanying the Commission’s draft Bill stated the following in respect of those clauses:

The Explanatory Note accompanying the first print of the Adoption Bill provided as follows in respect of Pts 1 and 5 of Ch 4 of the Bill:

The first print of the Adoption Bill relevantly provided cll 29, 30, 52 and 54 in the following form:

The draft Adoption Bill was introduced to Parliament in the Legislative Assembly on 21 June 2000 and read a first time: New South Wales Legislative Assembly, Parliamentary Debates (Hansard) (LA Hansard), 21 June 2000 at 7329. Its reading came immediately after the introduction of a related draft Bill, being the Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill 2000: LA Hansard (21 June 2000) at 7327.

The second reading speech in the Legislative Assembly was given by the Honourable Faye Lo Po’ (Minister for Community Services, Minister for Ageing, Minister for Disability Services and Minister for Women) immediately following the first reading: LA Hansard (21 June 2000) at 7329.

In her speech, the Minister made reference to the role of birth fathers as follows (LA Hansard (21 June 2000) at 7330)

Relevantly, the Minister also made reference to issues relating to adoptions by step parents and more generally the concerns of parents in making decisions about adoption following the birth of their child, and explained the proposed changes designed to address such issues and concerns (LA Hansard (21 June 2000) at 7330):

In the Legislative Council, the second reading speech was given by the Honourable Carmel Tebbutt (Minister for Juvenile Justice, Minister Assisting the Premier on Youth and Minister Assisting the Minister for the Environment) on 5 September 2000: New South Wales Legislative Council, Parliamentary Debates (Hansard) (LC Hansard), 5 September 2000 at 8640. The Minister made similar comments to those made in the Legislative Assembly extracted above (at 8641):

Following the introduction of the Adoption Bill on 21 June 2000, there was considerable debate in the Legislative Assembly over the Bill’s contents. That took place on 21 and 29 June and on 8, 9 and 16 August 2000. It is evident from some of that debate that the topics of consent and step parent adoption were discussed: e.g. LA Hansard (8 August 2000) at 7983, 7987 and 7988; LA Hansard (9 August 2000) at 8081. Similar debate also took place in the Legislative Council on 5 and 6 September and 10 October 2000: e.g. LC Hansard (5 September 2000) at 8644-8645; LC Hansard (6 September 2000) at 8699, 8706-8708, 8713, 8720; LC Hansard (10 October 2000) at 8836-8837, 8848.

The Legislative Assembly moved the Bill into Committee on 16 August 2000 and some amendments to clauses were proposed and agreed to: see LA Hansard (16 August 2000) at 8230-8239. Clauses 24 to 31 (i.e. including those in respect of relative and step parent adoptions) were agreed to without amendment, as were cll 33 to 57: LA Hansard (16 August 2000) at 8233-8234. Amendments were made to cl 58(3), which dealt with the ineffectiveness of consent if it is revoked, so that the revocation period was changed to provide a more specific timeframe by reference to the time allowed in s 73: LA Hansard (16 August 2000) at 8234.

Hansard also records amendments made in the Legislative Council in respect of cl 58(4), which dealt with consent given by a birth parent who is less than 18 years of age: LC Hansard (10 October 2000) at 8841. However, no amendments were made to the relative and step parent provisions in cll 29 and 30 or the consent provisions in cll 52 and 54.

On 31 October 2000, the amended Bill returned to the Legislative Assembly for consideration of the Legislative Council’s amendments. The amendments were agreed to: LA Hansard (31 October 2000) at 9411-9412.

The Adoption Bill was assented to on 9 November 2000: New South Wales Government Gazette, No 148, 17 November 2000, at 11762.

In Annexure B to her submissions, Ms Hailstone stated the following:

It is evident that the first print of the draft Bill introduced into Parliament differed from the draft Adoption Bill 1997 in the Commission’s Report. Nonetheless, the inference sought to be drawn in the last sentence of Ms Hailstone’s submission requires an understanding of the process by which draft legislation is brought before Parliament.

A draft bill is prepared by the Parliamentary Counsel, acting under instructions from the minister and the minister’s department, and may go through several revisions before being finally prepared for introduction to the Parliament: Parliament of New South Wales, “Legislative process explained” https://www.parliament.nsw.gov.au/bills/Pages/Legislative-process-explained.aspx accessed 25 June 2024. Copies of draft bills are not available on the Parliament’s website.

It is not apparent from the Adoption Bill’s progress through Parliament set out above that the differences between cll 29 and 30 of the Adoption Bill and cll 28 and 29 of the Commission’s draft Bill were actively acknowledged or debated in either House. Whilst there was reference to cll 29 and 30 in respect of alternatives to adoption and a change was made to cl 90(3) (which I note below), the legislature accepted the drafting of cll 29 and 30 in the form in which they were presented by the Minister.

Section 30 has been amended once since the Adoption Act was enacted in 2000, namely in 2008 by items 7-8 of Sch 1 to the Adoption Amendment Act 2008 (NSW) (2008 Amendment Act).

The purpose of the amendments was to:

Section 52 has been amended once since the Adoption Act was enacted in 2000, namely in 2006 by items 5-6 of Sch 2 to the Adoption Amendment Act 2006 (NSW) (2006 Amendment Act).

The amendments were to effect the following changes in terminology:

Section 54 has been amended four times since the Adoption Act was enacted in 2000, namely in 2006, 2008, 2009 and 2010.

The first amendment was by items 9-10 of Sch 2 to the 2006 Amendment Act, which effected the following changes in terminology:

The second amendment was by item 12 of Sch 1 to the 2008 Amendment Act, which omitted “5 years” from s 54(2) and inserted instead “2 years”.

The third amendment was by items 1-2 of Sch 1.1 to the Statute Law (Miscellaneous Provisions) Act 2009 (NSW). The amendments were as follows:

The explanatory note in relation to item 1 described it as a “consequential amendment”. The explanatory note in relation to item 2 was more substantive (despite Sch 1 being titled “Minor amendments”). The note read as follows:

I note that there were also amendments relating to the definitions of “spouse” and “step parent” as follows (items 3-4 of Sch 1.1):

The explanatory note in relation to those amendments was as follows:

The fourth amendment was by Sch 2.1 to the Statute Law (Miscellaneous Provisions) Act 2010 (NSW), which (as is made evident by the explanatory note) simply inserted a missing word, namely “in” after “defined”.

The Adoption Act was last amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 2023 (NSW). Its current form (which was prevailing at the time of the commencement of these proceedings) includes the amendments brought about by that Act, which was assented to on 30 October 2023.

Sections 30, 52 and 54 are currently in the following terms:

Settling on the correct construction of certain provisions within the Adoption Act is aided by an overview of the Act’s structure.

The Adoption Act covers a broad range of aspects of adoption. There are 11 chapters, 2 (current) schedules and a Dictionary. For present purposes, only the first 4 chapters need be mentioned.

Chapter 1 includes definitions and certain specific meanings.

Chapter 2 contains provisions relating to the objects and adoption principles of the Adoption Act.

Chapter 3 addresses provisions relevant to adoption service providers.

Chapter 4 addresses the adoption process.

Specifically, Ch 4 contains the following 12 parts:

Part 1 of Ch 4 of the Adoption Act has a number of ways of categorising adoption.

First, Pt 1 distinguishes between adoption by one person and adoption by a couple: ss 27 and 28.

Secondly, it identifies three specific types of adoption, being: adoption by a relative; adoption by a step parent; and adoption of a non-citizen child: ss 29, 30 and 31 respectively. There are clearly other types of adoption, including adoption involving children in foster care, which are not expressly specified or distinguished between under Pt 1.

Whilst it is of no great moment, it may be noted that on its information page provided to the public, the New South Wales Department of Communities and Justice categorises adoptions in a slightly different way to that in the Adoption Act: see 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. The Department’s website categorises adoptions into the following five types:

During the second reading speech in the Legislative Assembly, Mrs Lo Po’ noted that the reform of adoption law was “eagerly awaited” and the new law will actively involve parents in planning a secure and loving home for their child’s future and does not undervalue the importance of continuing to maintain a relationship with their child: LA Hansard (21 June 2000) at 7329-7330. The Minister observed at 7330 that:

Many of the Commission’s recommendations find expression in the Adoption Act. The second reading speeches highlight a number of the reforms. It is not necessary to refer to, let alone analyse, all of them. Nonetheless, a number of matters bearing upon the issues I have listed above (being the consent issue, the notification issue and the adoption issue) warrant some comment.

First, one difference between the 1965 Act and the Adoption Act is that the latter lists both objects of the Act (s 7) and specific principles to be applied in making decisions about proposed adoptions (s 8(1)) which act as guidelines as to the administration of the Act (s 6). Notably, the “best interests” of the child, as the paramount consideration in adoption, is the first listed object and principle: ss 7(1)(a), 8(1)(a) (as recommended by the Commission in the Report’s executive summary at xviii).

The notion of the “interests” of the child being the paramount consideration is not new. In the 1965 Act, s 17 reinforced that “the welfare and interests of the child” was the paramount consideration:

The phrase “the welfare and interests of the child” appeared 10 times (excluding section headings) in the 1965 Act. However, it was largely confined to Pt 4, dealing with “Adoptions under this Act”. That Part dealt with particular matters in respect of adoption orders (ss 17, 19, 21), discharge orders (s 25), consent of the child (s 33) and names of adopted children (s 38).

Chapter 2 of the Commission’s draft Adoption Bill 1997 contained three sections addressing adoption principles: s 6, setting out the guiding principles in the exercise of powers concerning adoption; s 7, setting out the paramount principle; and s 8, establishing the duty to identify cultural heritage.

As it currently stands, Ch 2 of the Adoption Act has transformed the 1965 Act’s isolated references to the child’s interests into a fundamental framework which is devoted to establishing the roles of the objects and adoption principles of the Act, with particular focus on the participation of the child in decisions. All decisions made pursuant to the Adoption Act are to be undertaken and viewed through the prism of “the best interests of the child, both in childhood and later life,” as the paramount consideration.

Secondly, it is obvious that all decision making is generally undertaken by reference to the availability of alternatives.

Section 19 of the 1965 Act provided that, in making an adoption order, the Court must be satisfied that, among other things, “the welfare and interests of the child will be better served” by the making of an adoption order than by the making of any other alternative order in respect of the custody, guardianship or placement of the child.

Meanwhile, consideration of alternatives in decision making permeates the Adoption Act, with many key sections throughout the Act requiring the decision maker to advert to whether the proposed action is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child: e.g. ss 29, 30, 90. I will return to this notion of “alternatives” later in dealing with the adoption issue.

Thirdly, the drafting of the Adoption Act reveals a number of drafting techniques which bear upon its construction. The following may be noted.

Fourthly, certain criteria, such as some jurisdictional requirements, are common to all adoptions. Other criteria apply to specific adoptions.

The question of who can be adopted is addressed by reference to the age of the proposed adoptee: s 24. Section 24 distinguishes between adoption orders in relation to a child who was less than 18 years of age on the date on which the application for the adoption order was made and a child who was 18 or more years of age on that date.

The question of who can adopt is answered, at least initially, by reference to adoption solely by or on behalf of one person or jointly by or on behalf of a couple: ss 26-28. As explained above, there are then particular provisions regarding intrafamily adoption by a relative or step parent contained in respectively ss 29 and 30.

Ms Hailstone referred to a number of decisions of this Court which, she submitted, bore upon the question of construction as to whether or not satisfaction of s 54(2) (when read with ss 54(1)(c) and 52) overcomes the requirements of s 30(1)(c) (or, put another way, that s 54(2) is not subject to s 30(1)(c)). The decisions are: (1) Re DG and the Adoption Act 2000 [2006] NSWSC 968 (Re DG); (2) Re DG and the Adoption Act 2000 [2007] NSWCA 241 (Re DG – Appeal); (3) Application of MKM & RDM; re SCH [2010] NSWSC 1270 (Re SCH); (4) Adoption of ESF [2014] NSWSC 687 (Adoption of ESF); (5) Adoption of R [2017] NSWSC 270 (Adoption of R); (6) Re WS (No 3) [2017] NSWSC 1160 (Re WS (No 3)); and (7) Adoption of N [2023] NSWSC 709 (Adoption of N).

Ms Hailstone provided some helpful commentary on those judgments and I am grateful for her assistance.

She submitted that the reasons why the Court in the above cases assumed (or was satisfied) that the consent provisions of s 54(2) are not subject to s 30(1)(c) were not elaborated upon in the respective judgments.

I will address the cases and Ms Hailstone’s submissions below.

As noted earlier, the form of s 30 changed from that which appeared in the draft Adoption Bill 1997 in the Commission’s Report. Some of those changes were commented upon by Austin J in Re DG at [33]-[44].

In Re DG, his Honour gave particular consideration to the terms of s 30(b), which at that point in time (September 2006) was in the form which appears in [20] of his Honour’s reasons:

Austin J concluded that, having regard to his examination of the extrinsic materials bearing upon construction, the provisions of s 30(b) were unsupportable in terms of principle and policy when applied to adult adoptions: Re DG at [45]. His Honour reluctantly concluded that the provisions prevented the Court from making the adoption order sought in that case.

In Re DG, the specific issue was the “have lived with” requirement under s 30(b). Austin J noted that the “child” (who was in fact an adult with children of her own) had been in the care of her proposed adoptive parents for at least five years (though not immediately prior to the application) as required by (the then prevailing terms of) s 54(2), and had given her consent to the adoption under that section: Re DG at [14]. His Honour noted that, by reference to s 54(1)(d), the consent of the child’s birth father was not required, as she was more than 18 years old. Whilst Austin J considered the particular terms of s 30(b) and referenced certain extrinsic materials, his Honour does not appear to have considered or entertained the possibility that s 30(c) imposed a consent requirement which in some way conflicted with s 54(2).

There was an appeal to the Court of Appeal (Re DG – Appeal) in which Basten JA (as his Honour then was) and Handley AJA considered the relationship between s 30 and s 95(3). In relation to the latter, Basten JA stated at [12] as follows:

In considering the interaction between ss 27, 28(2) and 30, Basten JA concluded that s 30 must have been intended to apply both to adoptions by one person and adoptions by couples, stating at [13]-[15]:

Whilst referring to s 30, the Court of Appeal in Re DG – Appeal did not have cause to consider the consent requirement in that section.

In Re SCH, the child in question was 12 or more years of age and appeared to have initiated the idea of adoption: Re SCH at [2]. Brereton J (as the Commissioner then was) noted that the summons sought an order dispensing with the consent of the child’s birth father, and also an order dispensing with notification to him: Re SCH at [3]. On the question of whether any consent of the child’s birth father was required, his Honour observed that the child had given sole consent in circumstances in which s 54(2) applied and, accordingly, by operation of s 54(1)(c), the birth father’s consent under s 52 was not required and there was no need for a consent dispense order: Re SCH at [5]. His Honour did not refer to, and seemingly was not asked to refer to, s 30.

In Adoption of ESF, the application for adoption involved a “child” who was more than 18 years of age. In that context, Darke J noted that no consents to the proposed adoption were required by s 52 “(and therefore no consents are required by s 30(1)(c) of the Act)”: Adoption of ESF at [7]. There was evidence that ESF had formally consented to the adoption order: Adoption of ESF at [12].

In Adoption of R, a 35-year-old female sought an order that she adopt her 20-year-old younger brother. It was a case of relative adoption in which the Attorney General of New South Wales intervened in the proceedings. The adoption order was refused by Stevenson J.

Ms Hailstone noted that the applicant in that case initially relied upon the child’s sole consent to the adoption, and that Stevenson J heard submissions on the construction of ss 29(a) and 55 in which the Attorney General raised competing considerations. Ms Hailstone observed that, ultimately, his Honour was not required to determine the construction issue as the applicant obtained consent to the adoption from his biological parents, with the consequence that the consent requirement was satisfied on either construction. As is evident from the published judgment, his Honour did not deal with the question of whether the provisions of s 29(a) create a separate consent requirement from the provisions of Pt 5 Div 1 (ss 52-56).

In Re WS (No 3), Hallen J dealt with an application for relative adoption in respect of a child who, at the time of the reasons for judgment, was only a few days away from her 18th birthday. The applicants relied upon the child’s sole consent. While there was evidence that the birth parents had consented to the adoption, it was accepted by all parties that their consent did not strictly comply with the Adoption Act or the Adoption Regulation 2015 (NSW): Re WS (No 3) at [41]. Hallen J made reference to the provisions in ss 29 and 52 to 55 at [224]-[232], however the scope of the interaction between s 29(a) and the consent provisions in Pt 5 Div 1 was not expressly raised for his Honour to consider. His Honour dismissed the application for adoption but, as Ms Hailstone observes, not on the basis that s 29(a) had not been satisfied.

In Adoption of N, there was an application for relative adoption by a married couple of the husband’s grandson who was 14 years of age. Ms Hailstone noted that the applicants took the approach of obtaining the necessary consents, notwithstanding the child’s consent to his own adoption, and thus there was no occasion for Henry J to grapple with the question of statutory construction currently at issue.

Lastly, I note that in the recent decision of McGrath J in The Adoption of Mardi (a pseudonym) [2024] NSWSC 733 (Adoption of Mardi), his Honour dealt with the proposed adoption of a 15-year-old child by her step mother. His Honour observed that Mardi, being over the age of 12, was at an age at which a child may give sole consent to her own adoption pursuant to ss 54(2) and 55 of the Adoption Act: Adoption of Mardi at [11]. His Honour stated further at [31]:

Statutory construction involves the Court considering the text, context and purpose of the legislation in question: see s 33 Interpretation Act 1987 (NSW) (Interpretation Act); Wass v Director of Public Prosecution (DPP) (NSW); Wass v Constable Wilcock [2023] NSWCA 71 at [3], [25] per Leeming JA (Bell CJ and Kirk JA agreeing); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [4] per French CJ.

Various vexing construction issues have arisen in respect of provisions in the Adoption Act: see e.g. Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; Daley v Donaldson [2022] NSWCA 96.

Generally, or at least often, the history of a rule as to its genesis and purpose, and the circumstances that are addressed in the authorities that have applied the rule, may provide useful guidance in considering how the power conferred by the rule should be exercised in a particular case, or at least give some insight as to its exercise: see e.g. 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 at [44] per Gummow ACJ, Kirby, Hayne and Heydon JJ (Macedonian Church Case), in respect of the powers given by s 63 of the Trustee Act 1925 (NSW).

It is inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words: Macedonian Church Case at [55] per Gummow ACJ, Kirby, Hayne and Heydon JJ, citing inter alia The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1994] HCA 54.

Generally with New South Wales legislation, headings to provisions of an Act or instrument, being headings to Parts, Divisions or Subdivisions into which the Act or instrument is divided, are taken to be part of the Act: s 35(1) Interpretation Act. However, marginal notes, footnotes or endnotes are generally not taken to be part of the Act: s 35(2) Interpretation Act. The Adoption Act expressly provides that introductions to Chapters and other notes in the text of the Act do not form part of the Act: s 5 Adoption Act.

The context of the introduction of the Adoption Act was one of reform, following over three decades of considerable societal change. I have referred above to the catalyst for that reform in 1992, and to the recommendations of the Commission.

At least part of the context was captured in the introductory words of Mrs Lo Po’ in her second reading speech (LA Hansard (21 June 2000) at 7329):

Significant as the societal changes were, some of which were reflected in new provisions in the Adoption Act, not all of the Commission’s recommendations, nor all of the provisions of the Commission’s draft Adoption Bill 1997, were eventually enacted.

Specifically, as I have endeavoured to set out above, as far as I can detect there was nothing specific in the Commission’s Report which suggested that any radical change was to be brought about in the sense of requiring a birth father’s consent for the adoption of a child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent to his or her adoption.

The objects and adoption principles of the Adoption Act are addressed in Ch 2. The provisions of that Chapter are intended to give guidance and direction in the administration of the Adoption Act, but they do not create, or confer on any person, any right or entitlement enforceable at law: s 6.

The objects of the Adoption Act are set out in s 7 as follows:

In making a decision about the adoption of a child, the decision maker is to have regard (as far as is practicable or appropriate) to the eight principles set out in s 8(1):

In determining the best interests of the child (as per s 8(1)(a)), the decision maker is to have regard to the eleven matters identified in s 8(2) as follows:

In relation to a decision about the adoption of a child, “decision maker” means the Court, the Secretary, an accredited adoption service provider or a principal officer of an accredited adoption service provider: Dictionary.

Decisions about the adoption of a child that have a significant impact on the life of the child are said to include, but are not limited to, decisions relating to the following in matters set out in s 9(3):

Children are given some involvement in the making of decisions regarding adoption. This is evident from the fact that decision makers are to have regard to any wishes expressed by the child (s 8(2)(a)) and are responsible for providing the child with certain information and opportunities to enable the child to participate in any decision made under the Adoption Act that has a significant impact on his or her life (s 9(1)).

In this regard, pursuant to s 9(1) the decision maker is responsible for providing the child with the following:

In applying those participation principles, a decision maker must have due regard to the age and developmental capacity of the child: s 9(2).

The provisions I have outlined above are all important in the proper approach to construing provisions of the Adoption Act. I am particularly mindful of the importance of consent in adoption cases, the consequences of determinations as to whether consent is required and, if it is required, the rigour with which the Adoption Act seeks to ensure that the consent is well-informed, well-considered and enduring. However, as important as the question of consent is in relation to adoption, the matters I have outlined above do not suggest that one of the purposes to be achieved by the legislation was to impose a requirement for parental consent to adoption in the case of a child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent to his or her adoption.

In that regard, no new substantive purpose regarding the birth father’s consent appears to have been brought about by the enactment of the Adoption Act. What does appear evident is that the importance of the involvement of the child in the decision making has been highlighted. At least on one view, that of itself would be an indicator against the suggestion that, in the case of a child of sufficient maturity, the Adoption Act would be construed as having imposed a substantive requirement, different from the pre-existing law, which required a birth father’s consent in such a case.

Where the child who is proposed to be adopted is living with a birth parent and a step parent, the application for adoption can be made by the step parent without the birth parent also being an applicant. This is evident from the terms of s 95, which provides that an adopted child does not cease to be regarded in law as the child of a birth parent, and the birth parent does not cease to be regarded in law as the parent of the child, if an adoption order is made in relation to a step parent with whom the birth parent is living: s 95(3).

A “step parent” is defined to mean, in relation to a particular person (such as a proposed adoptive child), another person who is not a birth parent, parent or adoptive parent of the particular person, and is married to the particular person’s birth parent or adoptive parent or is the de facto partner of the birth parent or adoptive parent: Dictionary.

Thus, although in a proposed adoption by a step parent the application in some respects presents as being an application by a “couple” (in this case, for example, the birth mother and step father), technically the adoption is by one person, the step father. As such, the provisions of s 27 (regarding adoption by one person) apply.

The provisions of s 27 do not make express reference to s 30 in the case of a proposed adoption by a step parent. By contrast, the provisions of s 28 (regarding adoption by a couple) do make reference to s 30, and provide that the Court must not make an order in favour of a couple if one of them is a step parent unless s 30 is complied with: s 28(2).

That discrepancy may not be of much moment since, notwithstanding the lack of reference in s 27, s 30 clearly applies to the present application by a step parent. With that in mind, I propose to consider the structure of s 30.

In light of the conclusion Austin J reluctantly reached in Re DG at [45], his Honour considered that the then current form of s 30(b) should be amended so that, where the step parent’s application is for the adoption of a person who is above the age of 18 years at the date of the application, the step parent need not be continuing to live the adoptee at that date: Re DG at [46].

Clearly, at the time of the appeal of Austin J’s decision, amendments had been made to s 24 by the 2006 Amendment Act.

Further amendments were made to s 24 and, relevantly, s 30 by the 2008 Amendment Act. The current form of s 30 is principally linked to the amendments brought about by the 2008 amendments.

The structure of the current form of s 30 has a number of interesting aspects to it. Without intending to be exhaustive, I note the following.

First, the wording of subss (1)(a), (b) and (d) appears to be framed in language of self-contained or self-standing provisos or stipulations. For want of better description, they appear to be jurisdictional requirements. This appears to be in contrast to subs (1)(c) which, whilst having the appearance of a stipulation, is not a stand-alone provision but rather directs attention to a requirement of “specific consent… in accordance with this Act by the appropriate persons”.

Secondly, subs (1)(b) is qualified by the provisions of subs (2).

Thirdly, subs (1)(d) stipulates a requirement of the Court’s satisfaction that the making of the adoption order is “clearly preferable” in the best interests of the child to any other action that could be taken by law in relation to the child. In that respect, the notion of the adoption being “clearly preferable” to other alternative actions is echoed or repeated in s 90(3), which is in the following terms:

Returning to the observation I made above, my impression of the provisions of subs (1)(c) is that, when read in light of the Act as a whole and in particular the provisions of Pt 5 Div 1 (titled “Who must consent to an adoption?”), the work done by subs (1)(c) is not to create, on its own terms, a specific consent requirement. In this respect, it is different in character to the provisions of subss (1)(a), (b) and (d).

Instead of creating a particular consent requirement in its own right, subs (1)(c) points to a requirement of specific consent imposed by other provisions of the Adoption Act. To my mind, use of the phrases “in accordance with this Act” and “by the appropriate persons” emphasise that the work done by subs (1)(c) is to signal to a requirement for specific consent elsewhere in the Act, namely in Pt 5 Div 1.

Further, given the significance of consent in adoption cases, it seems highly unlikely that s 30(1)(c) would adopt the inherently vague phrase “appropriate persons” as the means of creating its own consent requirement.

The above analysis leads me to conclude that, based on its text, s 30(1)(c) does not create a consent requirement in its own right, but rather performs the function of signalling to a requirement for consent elsewhere, namely in Pt 5 Div 1.

Read that way, there is a harmonious construction of the provisions of s 30(1)(c) with s 54(2) (read with ss 52 and 54(1)(c)). There is no need for one to consider whether s 54(2) is or is not “subject to” s 30(1)(c), in the sense of attempting to discern whether one of those provisions prevails over the other. Specifically, there is no need to refer to guides or principles of interpretation that specific provisions overcome general provisions. Rather, the two provisions sit harmoniously together, such that s 30(1)(c) points to or signals a consent requirement set out later in the Adoption Act.

The matter may also be tested by reference to the consideration that it should not be lightly thought that the Adoption Act has been drafted in such a way as to create potentially conflicting consent provisions relating to adoption by a step parent.

The construction that I have outlined above attributes a signalling function to the provisions of s 30(1)(c) to the consent stipulations in Pt 5 Div 1. For present purposes, the relevant stipulation is found in s 54(2).

Having regard to the catalyst for reform, the recommendations of the Commission, the legislative progress of the Adoption Bill, the final form of the Adoption Act and the subsequent amendments to ss 30, 52 and 54, nothing in the context or purposes of the Adoption Act causes me to form any different view regarding the true construction of ss 30(1)(c) and 54(2) in respect of consent.

Ms Hailstone appropriately provided submissions to address the question which would arise if consent were required, namely, whether it could be dispensed with: Ms Hailstone’s Submissions at [44]-[49].

Given I have reached the view that s 30(1)(c) does not create or provide for any consent requirement that is independent of s 54(2), it is not necessary for me to address the question of whether any consent required by s 30(1)(c) can be dispensed with.

If, as I have found, consent is not required, can the giving of notice be dispensed with?

Section 54(3) imposes a limitation on the Court making an adoption order notwithstanding the consent of a child under s 54(2). If the child is less than 18 years of age, the Court must also be satisfied that notice of the application for the adoption order has been given (relevantly) to the parent or person who has parental responsibility whose consent would otherwise be required, unless the Court dispenses with the giving of such notice.

The provisions of s 54 have, as noted above, changed since the Adoption Act was enacted in 2000.

In Re S and the Adoption Act 2000 (NSW) (2006) 68 NSWLR 61; [2006] NSWSC 1062 (Re S), Palmer J had occasion to consider the notice provisions of s 54. In that case, the child the subject of the application was more than 12 years old but less than 18 years old. He had been living with the applicants for adoption for more than five years (as then required) and had given his consent in writing to the adoption in accordance with the provisions of s 55. The child’s birth father was unknown and the birth mother did not consent to the adoption: Re S at [2].

His Honour addressed the then current provisions of s 54 and noted that the consent of the birth mother would not be required only if the requirements of s 54(1)(c) were fulfilled: Re S at [6].

The provisions of the then prevailing s 54(1)(c) required the Director-General or appropriate principal officer to give reasonable notice, or use their best endeavours to give reasonable notice, of the application for the adoption order to the parent or guardian whose consent would otherwise be required.

Palmer J made a number of observations regarding those provisions. His Honour considered the effect and consequences of a notice under s 54(1)(c) at [14]-[22].

His Honour observed that “the only possible purpose” in giving notice to a birth parent was to afford the birth parent the opportunity either to seek the Court’s leave to be joined as a party to the adoption application in order to oppose the adoption on a ground other than that the birth parent refuses consent, or to make known to the Court, by one or other permissible means, the parent’s wishes in relation to the child: Re S at [23].

It is clearly the case that there is legislative purpose in giving notice to a birth parent notwithstanding that the birth parent’s consent is not required. In Adoption of PS [2015] NSWSC 2159 (Adoption of PS), Brereton J (as the Commissioner then was) addressed the purpose of s 54(3). Similar to Palmer J in Re S, Brereton J alluded to the fact that notice may, for example, give a parent an opportunity to be heard in respect of, and possibly even in opposition to, the application (other than simply on the basis that consent had not been given). His Honour stated at [31]-[33] as follows:

In her submissions, Ms Hailstone made reference to the previous notice provisions under the 1965 Act as follows:

She further noted that the Secretary has not been able to locate in the relevant Hansard any reference as to Parliament’s intentions in relation to the introduction of the requirement that notice of the application be given to the parent or person who has parental responsibility whose consent would otherwise be required but for ss 54(1)(c) and (2) being satisfied.

The Adoption Act does not provide any indication of the matters which the Court ought to consider when determining whether to dispense with the requirement of notice pursuant to s 54(3)(b). Ms Hailstone noted that the Secretary is not aware of any published decisions, other than the one to which I will refer immediately below, where the giving of notice has been dispensed with pursuant to s 54(3)(b).

In Re Adoption of E F - Anonymised [2020] NSWSC 410 (Adoption of E F), Sackar J dispensed with the giving of notice of the proceedings to the birth father pursuant to s 54(3)(b). However, his Honour took that course because the identity of the birth father was unknown: see Adoption of E F at [83].

Ms Hailstone submitted that, in determining whether to dispense with the giving of notice under s 54(3)(b), the Court ought to have regard to the provisions of s 8, which set out the principles to be applied by those making decisions about the adoption of a child. As noted above, “decision maker” relevantly includes the Court.

It seems to me that, as a matter of principle, Ms Hailstone’s submissions in this regard are correct. Ms Hailstone submitted that the relevance of s 8 was supported by the comments of Brereton J in the Adoption of PS. I agree.

Further, I consider that the comments Palmer J in Re S reinforce the relevance of the principles in s 8 to the Court’s determination of whether to dispense with notice.

In addressing the purpose of a notice under what was then s 54(1)(c), Palmer J made particular reference to s 8(2) in addition to ss 118 (regarding parties to adoption proceedings) and 126 (regarding matters admissible in evidence). His Honour stated at [27]-[30] as follows:

Indeed, I consider that, apart from s 8, the provisions in the balance of Ch 2 (being ss 6, 7 and 9) contain matters which can and ought, to be taken into account in determining whether to make an order dispensing with notice of the application for the adoption order. Section 6 notes that the provisions of Ch 2 are intended to give guidance and direction in the administration of the Adoption Act. Section 7 sets out the objects. Section 9 highlights the importance of the participation of the child in adoption decisions.

In relation to the particular circumstances of this case, Ms Hailstone submitted that, in determining whether notice ought to be dispensed with, the Court should consider the following factors (footnotes omitted):

Appropriately, Ms Hailstone also submitted that there may be some argument based on Edmund’s “best interests” considerations, and the particular evidence to which she referred, that it would be in Edmund’s best interests for the requirement for notice to be dispensed with.

On the other hand, Ms Hailstone submitted it is arguable that steps should be taken to notify John of the proceedings and provide him with an opportunity to be heard, if he so wishes. The submission went as follows:

Finally, Ms Hailstone recognised that one possible consequence of the Court declining to dispense with notice is that Marika may seek to have the application withdrawn, given her experience with John at the time when she notified him of her pregnancy.

The submissions of Ms Hailstone which I have recorded above were made prior to the receipt of the further affidavit evidence.

Initially, prior to receipt of that evidence, I was of the view that in circumstances where (understandably, having regard to Marika’s unpleasant experience with John) no particular attempt had been made to contact John, it was not clear to me that notice would be impossible or futile.

However, in light of the further evidence which I have briefly outlined above, I am satisfied that, in all of the circumstances, the task of attempting to locate John has thus far proved to be very difficult and, if further enquiries are made, might prove to be practically impossible.

The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that the person cannot, after reasonable inquiry, be found or identified: s 67(1)(a). Such applications are not novel: e.g. The Adoption of Elisabeth (a pseudonym) [2024] NSWSC 742. By similar reasoning, the fact that in this case the birth father cannot, after reasonably inquiry, be found or identified is clearly relevant in deciding whether to make an order under s 54(3)(b): see e.g. Adoption of E F at [83].

Ultimately, I consider that, having regard to the following matters, an order dispensing with the giving of notice under s 54(3)(b) ought to be made. This is a case far apart from one where, as in for example Re SCH at [7], there is an intention that the birth father would have some (even if broken) contact with the child, which matters would tend against the dispensing of notice.

The matters I have had regard to include: the objects of the Adoption Act, in particular ss 7(a) and (b); the principles to be applied in making decisions about adoption, in particular those set out in ss 8(1)(a), (b) and (d); the best interests of Edmund, including having regard to ss 8(2)(a), (b) and (c); the wishes expressed by Marika, the attitude of Kyle and the alternatives to not making an adoption order (ss 8(2)(e), (g) and (k)); and the importance of Edmund’s participation in the decision making of whether an adoption order ought to be made.

Determinations in relation to the making of adoption orders require, in the first instance, satisfaction of certain matters.

Broadly speaking, the Court is precluded from making an adoption order unless certain preconditions exist. These preconditions are framed with wording that “the Court must not make an adoption order…” “unless” certain matters are established or the Court is satisfied of certain things: e.g. ss 23(2), 27(2), (3), 28(2), (3), (4), 29, 30(1), 31(1), 52, 54(3), 55(1), 84(4), 89 and 90(1).

There are permissive provisions which, for example, permit the making of an adoption order: irrespective of the marital status of the child (s 25(b)); in favour of a couple jointly even if one of them is a birth parent, or they are the birth parents, of the child (s 28(5)); or, in relation to a child who is between 12 and 17 years of age and is incapable of giving consent, if the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order (s 55(2)).

Compliance with certain mandatory preconditions cannot be waived or dispensed with by the Court: e.g. s 27(1)(a), which requires the proposed adoptive parent to be resident or domiciled in New South Wales.

Some mandatory provisions are able to be dispensed with in certain circumstances. For example, in relation to the adoption of a child who is 12 or more but less than 18 years of age, the Court may make a consent dispense order dispensing with the requirement for consent to his or her adoption to be given by such a child if the Court is satisfied that the child is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, provided that not less than 14 days’ notice of the application has been given to the Secretary (unless the application was brought by the Secretary): ss 69(1), (4).

The provisions relevant to the making of adoption orders are to be viewed through the objects and principles set out in Ch 2.

Ultimately, the making of an adoption order is discretionary: see s 23(1).

The matters which enliven the jurisdiction to make an adoption order are all essentially questions of fact.

Some of those matters are relatively straightforward and binary, such as age requirements of the child or proposed adoptive parent: e.g. ss 24(1), 27(2)(a). These are sometimes referred to as formal requirements: e.g. The Adoption of Andrew, Mark and Richard [2024] NSWSC 508 (Adoption of Andrew, Mark and Richard) at [17] per Stevenson J.

Some matters are more in the nature of evaluative questions of fact, such as whether the proposed adoptive parent is of good repute and is a fit and proper person to fulfil the responsibilities of a parent (s 27(1)(b)). Such facts, notwithstanding their evaluative nature, are generally regarded as more formal matters to be established and are rarely in dispute.

In keeping with the gravity of the subject nature of adoption, there is a rigour to the type of evidence that is presented on adoption applications.

I have already referred to the rigour of provisions dealing with the giving and formalising of consent.

That rigour is further reflected in the requirements for evidence from referees for proposed adoptive parent(s). In this case, the references from the referees were typed, which is not strictly in accordance with provisions of the reissued Supreme Court Practice Note SC EQ 13 (which commenced on 3 April 2023).

The Practice Note states that there must be at least two affidavits made by referees for the proposed adoptive parents, annexing a handwritten referee certificate, made not more than six months before it is filed: Practice Note at [10(d)]. Such referees must not be related to the proposed adoptive parents and must have known the proposed adoptive parents for a period greater than two years. A precedent form of affidavit and format of the referee’s certificate is available on the Court’s website.

A number of benefits are derived from these requirements.

First, the requirement for the referee not to be related to the proposed adoptive parent reinforces independence.

Secondly, the requirement for a minimum time period of acquaintance with the proposed adoptive parent ensures that the referee has had sufficient time to be able to assess the character of the proposed adoptive parent. Our experience of life is that whilst we can meet and interact with people for a very short period, such as a week or a month, and gain an impression of their character, a longer period of time generally allows a more realistic assessment to be made of a person through a greater range of life situations that will reveal the character of that person.

Thirdly, the requirement for handwriting emphasises that deposing to the good repute of the proposed adoptive parent is not a matter to be lightly or mechanically addressed, but one in respect of which the referee must give serious consideration. Handwriting, if it is to be neatly presented, cannot be done quickly with anything like the speed of typing. The discipline of handwriting at a deliberate and measured pace likely improves recall and forces the mind to mentally engage with the information recorded. Handwriting also heightens the likelihood that the Court receives an unadulterated account in the referee’s “own words”, rather than an account filtered by the expression of a solicitor or with the assistance of other wordsmiths.

Fourthly, the requirement for the reference to be relatively contemporaneous avoids the risks associated with relying upon dated information, in light of the fact that people’s circumstances can change relatively quickly.

In this case, the solicitor for Kyle sought an exemption from the requirement that the references be handwritten.

Technically, because the “requirement” arises from a Practice Note provision, no exemption is needed. That is in contrast to requirements arising from, for example, rules of court (which the Court has power to dispense with if satisfied that it is appropriate to do so in the circumstances: see s 14 Civil Procedure Act 2005 (NSW) (CPA)).

The Chief Justice, as the senior judicial officer of the Court, may issue practice notes for this Court in relation to civil proceedings to which the CPA applies: s 15(1) CPA. Such a practice note must be published in the Gazette, and ss 40 and 41 of the Interpretation Act apply to a practice note in the same way as they apply to a statutory rule: ss 15(2)-(3) CPA; ss 124(11)-(12) Supreme Court Act 1970 (NSW). The effect of these provisions is that practice notes, like rules of court, are subject to the scrutiny of Parliament and may be disallowed by resolution of either House: e.g. Whalley v Commissioner of Police [2003] NSWSC 273 at [13] per Dunford J.

Practice notes (unless provided otherwise by legislation) do not have the status of an Act or rule of the Court: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 (Graphite) at [14] per Brereton J (as the Commissioner then was); Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 543 per Mason P. Because the power to issue practice notes is subject to rules of court (see s 15(1) CPA), as a matter of principle, a practice note is subservient to the CPA and cannot be inconsistent with it: Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372 at [14] per Basten JA (as his Honour then was).

Practice notes are designed to provide a compass to guide the Court, the litigants, and the legal advisers, as to the general course that will usually be followed; they enable flexibility rather than have binding effect: Oxley v Oxley [2018] NSWSC 91 at [78] per Hallen J. They do not govern court procedure and must yield to the requirements of the individual case. Nonetheless, it will be in a rare case that the Court will depart from their guidance: Graphite at [14].

Whilst the requirement for handwritten references is not something that must be exempted if not complied with, it is regarded by the Court as a matter of “best practice”: cf Practice Note at [64]. It should generally be complied with, not merely because it is a technical requirement, but more importantly because its underlying purpose is to provide the Court with cogent and considered evidence upon which to act in relation to adoption applications.

Satisfaction of the statutory preconditions is not enough to compel the making of an adoption order. This is reinforced by the requirement that the Court must be satisfied that the making of the adoption order is in the best interests of the child.

In summary, the paramount consideration in an application for adoption is the best interests of the child the subject of the application; the Court must be satisfied whether the best interests of the child will be promoted by the adoption and that, as far as practicable and having regard to his or her age and understanding, the child’s wishes and feelings have been ascertained and due consideration given to them: Adoption of Andrew, Mark and Richard at [18], citing ss 8(1)(a) and 90(1)(a).

Thus, even if every formal precondition is satisfied, there may be facts before the Court which preclude it from being satisfied that the making of an adoption order is in the best interests of the child.

One of the express principles for the decision maker to consider in relation to the adoption of a child, and in particular in determining the child’s best interests, relates to the alternatives to adoption: s 8(2)(k). The principle expressed in s 8(2)(k), to which the decision maker must have regard, is in the following broad terms:

That principle connects with a number of the mandatory provisions including, relevantly for the purposes of this case, the provisions of s 30(1)(d).

Section 30(1)(d) in turn is in remarkably similar terms to those in s 90(3). Both of those provisions preclude the making of an adoption order by reference to the consideration of alternatives of other action that could be taken.

The “coincidence” is not limited to those two provisions and the requirement to consider alternatives to adoption appears in a number of other provisions which relate to adoption in various contexts: e.g. ss 29(c), 36 and 106(2)(b).

It is apparent that members of Parliament saw a connection between the draft provisions of what are now ss 29(c), 30(1)(d) and 90(3). The expression “is clearly preferable in” was in cll 29(c), 30(d) and 36 of the draft Adoption Bill. However, the draft form of cl 90(3) was as follows (my emphasis):

In the Legislative Council’s second reading debate, the Honourable Ian Cohen made reference to an article by International Social Service Australia entitled “7 Problems in the New Adoption 2000 Legislation”: LC Hansard (6 September 2000) at 8705. That article in turn referenced a letter from a senior social worker with International Social Services Australia expressing concern that the “clearly preferable” test was applied to only limited types of adoptions. The extract from the letter which Mr Cohen cited is as follows (LC Hansard (6 September 2000) at 8706):

Later in the Committee stage, the Honourable Richard Jones proposed an amendment to cl 90(3) which omitted “make better provision for” and inserted instead “be clearly preferable in”: LC Hansard (10 October 2000) at 8842. He stated:

The Honourable Carmel Tebbutt (who had introduced the Adoption Bill on behalf the Government) supported the amendment on the basis that it “provides for consistency of language in the bill”: LC Hansard (10 October 2000) at 8842. The amendment was agreed to and became part of the Adoption Act as passed.

On the connection between ss 8(2)(k) and 90(3), Palmer J relevantly stated the following in Application of A - re D [2006] NSWSC 1056 (Re D) at [47] and [52]:

In relation to the connection between ss 36 and 90(3), Slattery J stated in Re David [2022] NSWSC 1738 at [27]:

The note to s 30(1)(d) (which, strictly speaking, does not form part of the Adoption Act: s 5) gives a type of prompt to the decision maker of examples of other action that may be taken by law. Section 29(c) has a similar note. The s 30(1)(d) note is as follows:

The note to s 90(3) (which again, strictly speaking, does not form part of the Adoption Act: s 5) also gives a type of prompt to the decision maker of examples of other action that may be taken by law:

Relevantly, slight nuances appear in the wording of ss 30(1)(d) and 90(3). Section 30(1)(d) precludes the Court from making an adoption order in favour of a step parent unless the Court is “satisfied” that the making of the adoption order is “clearly preferable”. It frames the requirement in relation to any other action that could be taken by law “in relation to the child”. On the other hand, s 90(3) uses the verb “considers”, rather than “is satisfied”, and frames the alternatives in terms of any other action that could be taken by law “in relation to the care of the child”.

The statement of the principle in s 8(2)(k), regarding alternatives to the making of an adoption order, and the provisions of ss 29(c), 30(1)(d), 36, 90(3) and 106(2)(b), reflect the drafting style of the Adoption Act to which I referred earlier, resulting in similar considerations being applied throughout the Act.

Each of those provisions, except s 106(2)(b), relate to decision making regarding “the best interests of the child”. However, even with s 106(2)(b), when its terms are read with s 106(2)(c), the “best interests” mandate is evident.

The provisions of ss 29(c), 30(1)(d), 36 and 106(2)(b) apply to specific types of adoption. The provisions of s 90(3) apply to all adoptions.

As noted above, the Commission observed that step parent and relative adoptions differ from other types of adoptions, in that agencies do not select the adoptive parents; the particular issue in step parent and relative adoptions is whether the existing care arrangement should be transformed into an adoption: Report at [4.26]. I suspect that that difference in those two types of adoption cases, as distinct from other adoption cases, informs the difference in the wording between ss 29(c) and 30(1)(d) on the one hand and ss 36, 90(3) and 106(2)(b) on the other hand.

My view is that all of these provisions are really connected to the ultimate question of whether an adoption order ought to be made, having regard to the alternatives to adoption. The provisions of ss 29(c), 30(1)(d), 36, 90(3) and 106(2)(b) all, although differently worded, express the same intent: cf Re D at [52].

In the case of step parent and relative adoptions, alternative care or placement options often do not arise for consideration. Rather, as noted above, the issue is whether the existing care arrangement should be transformed into an adoption. Likely for that reason, ss 29(c) and 30(1)(d) do not expressly reference the “care” of the child. Conversely, in the case of adoptions other than step parent and relative adoptions, the issue generally requires consideration of the proposed adoption in light of other care options for the child. Hence the use of the word “care” in ss 36, 90(3) and 106(2)(b).

Thus, the mandated principle expressed in the phrase “alternatives to the making of an adoption order” in s 8(2)(k) is reflected in: the phrase “any other action that could be taken by law in relation to the child” in ss 29(c) and 30(1)(d); the phrase “any other action that could be taken by law in relation to the care of the child” in ss 36 and 90(3); and the phrase “any other action that could be taken by law to care for the child” in s 106(2)(b).

The guiding principle in s 8(2)(k) requires the Court to reflect upon the likely effect on the child in both short and longer term of changes in the child’s circumstances caused by an adoption, which requires consideration of the alternatives to adoption.

The Adoption Act itself expressly contemplates various care arrangements alternative to adoption. Indeed, if the Court refuses an application for an adoption order, the provisions of s 92 expressly raise the possibility of alternative orders being made in relation to the parental responsibility of the child concerned.

Often in applications for adoption orders, the alternatives to acceding to the application consist of the following:

Cases which have considered the provisions of s 30(1)(d) do not appear to suggest or proceed on the basis that, in the case of a step parent adoption, s 90(3) demands any additional consideration beyond that which is stated in s 30(1)(d): e.g. Adoption of ESF; Adoption of Mardi at [25]; The Adoption of Henry (a pseudonym) [2023] NSWSC 939 at [23].

Given what I have said above, I consider that such a construction of ss 30(1)(d) and 90(3) is appropriate.

The words “clearly preferable” in ss 30(1)(d) and 90(3) do not require the Court to be satisfied beyond reasonable doubt that an adoption order is preferable. Rather, the word “clearly” serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision: Re D at [53].

Edmund is clearly settled with Marika and Kyle. The references of the referees give the Court strong comfort regarding Kyle being a loving father who will nurture and enrich Edmund’s life.

In this particular case (which is not uncommon in step parent adoptions), the only realistic alternative to adoption is to maintain the status quo – namely, that Edmund remains in the care of Marika and Kyle without an adoption order being made. The report of the assessor opines that adoption: (1) is in Edmund’s best interests, both now and in the future; (2) will validate the emotional connection between Edmund and Kyle; and (3) will secure his equal legal status with the child of Marika and Kyle.

I am satisfied that the making of the adoption order would be clearly preferable in Edmund’s best interests than any other action that could be taken by law in relation to his care within the meaning of s 90(3). Even if I be incorrect regarding my construction of the provisions of ss 30(1)(d) and 90(3), and lest it be thought that there is any slight residue of territory encompassed by lawful “action” not merely regarding Edmund’s care but “in relation to” him within the meaning of s 30(1)(d) which is not covered by s 90(3), I find that there is no particular material before me which suggests that there is any other such action which would cause me not to be satisfied that the provisions of s 30(1)(d) have been met.

In making my decision on the adoption order, I have taken into account the principles referred to in ss 8(1)(a)-(e1). Further, in determining Edmund’s best interests, I have had regard to the matters referred to in ss 8(2)(a)-(c) and (e)-(k).

Overall, in making the adoption order sought, I am satisfied of the following matters.

In summary, the conclusions that I have reached are as follows:

The orders of the Court are as follows: