Application of D [2010] NSWSC 1189 (14 October 2010)

Last Updated: 21 October 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Application of D [2010] NSWSC 1189


JURISDICTION:
Equity

FILE NUMBER(S):
2010/133

HEARING DATE(S):


JUDGMENT DATE:
14 October 2010

PARTIES:


JUDGMENT OF:
White J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:


SOLICITORS:



CATCHWORDS:
ADOPTION – application for adoption order by step-parent – adoption in child’s best interests – consent of child’s mother not given in accordance with Adoption Act 2000 (NSW) – consent not effective – no grounds for making consent dispense order – adoption order to be made on receiving mother’s effective consent and up-to-date evidence that mother and step-parent living together

LEGISLATION CITED:
Adoption Act 2000 (NSW)

CATEGORY:
Procedural and other rulings

CASES CITED:


TEXTS CITED:


DECISION:
n/a



JUDGMENT:

-

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


WHITE J

Thursday, 14 October 2010


2010/133 Application of D

JUDGMENT

1 HIS HONOUR: I am satisfied that it is in the best interests of the child that an adoption order be made in favour of D. Subject to one matter, I am also satisfied that each requirement in s 30 of the Adoption Act 2000 (NSW) (“the Act”) to the making of an adoption order in favour of a step-parent of a child is satisfied.

2 The qualification concerns the consent of the child’s mother. Although M has deposed that she consents to the adoption of her child by her husband, that consent is not effective for the purposes of the Act because it is not made in accordance with Division 2 of Part 5 of the Act. For the consent of M to be effective:

(a) D must ensure that the prescribed mandatory information is given to M (s 59(2)(a));

(b) M must sign an instrument of consent in accordance with the prescribed form (s 61);

(c) before signing the instrument of consent M must be counselled in accordance with s 63;

(d) the consent cannot be given until at least 14 days after M is given a copy of the instrument of consent and the mandatory written information (s 60(b)); and

(e) the instrument of consent must be witnessed in accordance with the Regulations by a person of a class or description prescribed by the Regulations and who is independent of the counsellor (s 62);

3 Regulation 35 of the Adoption Regulation 2003 prescribes who can witness the instrument of consent.

4 I do not consider that there is power to make an order dispensing with the requirement that M provide an effective consent. The only arguable power to dispense with M’s consent is under s 67(1)(d). But that power would only be available if D were an “authorised carer” of the child (s 67(1)(d)). It does not appear that he is an “authorised carer” as that expression is defined. In any event, as the Act prescribes a formal process for obtaining effective parental consent, even in the case of adoption by a step-parent, it would not be a sufficient ground for making a consent dispense order (if there were jurisdiction to do so) that M has expressed her consent in her affidavit.

5 The adoption order, when made, will not affect M’s status as parent of the child, provided she and D are still living together (Adoption Act, s 95(3)). To avoid any possible later doubts about this I propose, when making the adoption order in favour of D, also to make a declaration that M does not cease to be regarded in law as the parent of the child. For that purpose I will require an up-to-date affidavit that D and M are still living together.

6 On there being evidence that M has given her consent to the adoption of the child which is an effective consent for the purposes of the Act, and upon receiving up-to-date evidence that D and M are living together, the adoption order will be made.

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LAST UPDATED:
20 October 2010