The facts
7The facts are uncontroversial and are set out in various affidavits of Ms G Romeo, the Secretary's delegate.
8C's mother (the "mother") is a foreign student residing in Australia on a student visa. Although the mother's native language is not English, she speaks English very well.
9The mother's family in her home country were unaware of her pregnancy. The mother was not in a relationship with the person in her home country whom she identified as C's father (the "putative father").
10The day after C was born, the hospital social worker made contact with the Department because the mother had been considering adoption for C.
11Three days after birth, C was discharged from the hospital into the care of an authorised foster carer (the "carer"), with whom C has remained with the exception of short periods of respite for the carer for personal reasons (see further paragraph [25] below).
12For several weeks after C's birth, the mother gave careful consideration to whether or not she wished to offer C for adoption. She eventually provided the Department with the putative father's name, email address and two possible phone numbers in the home country.
13After various unsuccessful attempts to contact the putative father through an agency in the home country, telephone calls to the numbers provided by the mother, emails, Google searches and sending letters to the putative father at his place of work, in both English and the language of the home country, the putative father eventually responded "What can I help you?" through his Linkedin account. The putative father's response included a new email address for him.
14Later, the putative father emailed the Department denying he was C's father, stating that he had not been intimate with the mother at the time C would have been conceived and that he was willing to undergo DNA testing. Informed of these matters, the mother maintained that she had correctly identified the putative father.
15Further attempts were made by the Department to contact the putative father in relation to his offer to undergo DNA testing. He has not replied to any further communications from the Department.
16On 17 March 2014 the mother signed a general consent to adoption of a child under s 53(1)(a) of the Act.
17Shortly after, the Secretary prepared a notice pursuant to s 56 of the Act to give the putative father an opportunity to consent to C's adoption (the "notice"). (Section 56 is set out in paragraph [53] below.) The notice was translated into the putative father's native language and was sent by international registered post and regular mail to the work address which the Secretary had for the putative father, as well as by email. Other information required under the Act was sent in both English and the putative father's native language by all those methods with the notice.
18The communications accompanying the notice advised the putative father that the Department would apply to the Court to dispense with his consent to C's adoption if he did not make contact by 30 April 2014.
19Between February and June 2014 a number of changes had been made to the putative father's Linkedin profile. His photograph has been removed, the contact phone number was changed and information pertaining to personal details has been added, including that his marital status was "married". Subsequently his photograph was replaced by a company logo and the contact telephone number was completely removed from the page and, for the first time, a surname was added.
20A friend of the mother, living in the home country, also sought to meet the putative father under the guise of a business meeting. The putative father cancelled a number of appointments and, eventually, a female person identifying herself as the putative father's "girlfriend" cancelled the last appointment.
21A further email was sent to the putative father after the 30 April 2014 deadline. On 6 June a copy of the amended summons (see paragraph [4] above) was also emailed to the putative father both in English and translation. The putative father has not made contact with the Department in relation to the notice or engaging in DNA testing. The Department has not received a return "signed as received" international registered receipt, confirming that the father had received the notice. Nor has the putative father responded to the emails sent to him after 30 April 2014.
22However, none of the emails enclosing the notice or those sent after the deadline bounced. By reference to those matters I find that the notice was served on the putative father and that he is aware that the Department would be making the present application.
23C has been admitted to hospital on two occasions with ongoing feeding and gastrointestinal problems and has been placed on a prescription only (and quite expensive) formula. C is under the care of a paediatrician who has remained in email contact with the carer in order closely to monitor C's health and to keep medical costs to a minimum.
24Notwithstanding some improvement by the time of the hearing, C continues to be very unsettled and at times refuses food and drink. While, fortunately, there has been no need for C to be hospitalised again, the carer has had to manage C's ongoing feeding issues and unsettled behaviour in email consultation with the paediatrician.
25C's health problems have placed a considerable burden on the carer, who has her own two teenage children as well as the short term placement of an 11 year old child with her. This has led the carer to ask for respite from caring for C on at least four occasions. The Department is concerned as to how long the carer may be able to continue to look after C. For this reason, the Department is endeavouring to locate a suitable adoptive family for C as soon as possible.
26The Department's Local Adoption and Permanent Care Program (the "Program") is responsible for working with birth parents within New South Wales who are voluntarily considering adoption for their child, as well as families in New South Wales specifically wishing to adopt a child or infant from Australia (as opposed to overseas).
27Due to the nature of the work (i.e. the birth parents approaching the Department as opposed to the children being removed due to child protection concerns), the majority of children in the Program are under 2 years of age. There is also only a very small number of infants in the Program at any one time (up to 20 being adopted each year).
28Applicants are assessed and approved as suitable to adopt a child under Chapter 3 of the Act prior to any child actually being placed with them and then wait in a "pool" with other prospective adoptive carers. The Program is responsible for identifying the most suitable families from that pool to accept placement of a specific child once that child is in the Secretary's care.
29Given the size of the Program, only a small number of couples or families are included in the pool of approved applicants. Sometimes applicants can wait years before a suitable child becomes available for adoption.
30As has happened with C, when an infant comes into the Program they are placed with short term carers on a voluntary basis while casework is undertaken to assist the birth parent or parents to consider all of the options for the long term care of their child as well as the legal and emotional implications of an adoption decision.
31Once the Secretary is allocated parental responsibility, those administrating the Program are able to make decisions about the child's long term care and to identify suitable prospective adoptive carers. The Department seeks to ensure that issues related to parental consent have been addressed and, if possible, resolved prior to placing a child with the proposed adoptive parents. This is for a number of reasons.
32First, it helps reduce the anxiety of a consenting birth parent at a difficult time in their lives. Having been involved in an emotionally challenging and stressful process, it provides a consenting birth parent with a degree of certainty that their wish for their child to be adopted will be fulfilled.
33Second, it reduces anxiety potentially experienced by prospective adoptive parents at the commencement of, and during, the early stages of placement. Although an adoption order cannot be guaranteed, one significant issue has been addressed. Accordingly, if consent has been dispensed with or given in accordance with the Act, prospective adoptive parents are generally better positioned emotionally to focus fully on a child's needs, which is critical at the early stage of placement when attachments are beginning to develop.
34At the time of accepting a placement, and prior to the making of an adoption order, prospective adoptive parents are fully responsible for all aspects of the day to day care of that child. Unlike children in out of home care, there is no carer allowance available. Prospective adoptive parents generally need to use any parental leave entitlements that are available to them and are expected to make a significant investment both financially and emotionally in that child's care, in the same way as if it were their biological child.
35It would be undesirable if parental consent issues were not addressed prior to the placement of a child through the Program. Birth parents are likely to experience greater stress and uncertainty with regards to their child's ongoing security, which may impact on their preparedness and capacity to participate in the consent process. Prospective adoptive applicants are also likely to experience greater stress and uncertainty, which may impact on their willingness to apply to the Program, to accept placements once approved or allow themselves to become fully attached to the child in their care.