A Child Proposed for Adoption - [2019] NSWSC 1653

Supreme Court

New South Wales

Medium Neutral Citation: A Child Proposed for Adoption [2019] NSWSC 1653
Hearing dates: 12, 13 and 29 November 2019
Date of orders: 13 December 2019
Decision date: 13 December 2019
Jurisdiction: Equity - Adoptions List
Before: Slattery J
Decision:
Order made dispensing with the consent of the birth parents. Order for adoption made. Adoption plan approved.

Catchwords: ADOPTION – contested adoption – Adoption Act 2000, ss 52, 67, 90 and 91 – application to dispense with the consent of the birth mother and birth father and for an adoption order – birth mother and birth father do not consent to adoption order – child has been with adoptive parents from the age of four weeks – child is now six years old – whether an adoption order is in the best interests of the child – consideration of the alternatives to an adoption order.
Legislation Cited: Adoption Act 2000, ss 50, 52, 67, 90, 91
Children and Young Persons (Care and Protection) Act 1998
Cases Cited: Adoption of NG (No 2) [2014] NSWSC 680
Adoption of RCC and RZA [2015] NSWSC 813
Adoption of SP [2018] NSWSC 391
Category: Principal judgment
Parties: Plaintiff: Secretary, New South Wales Department of Communities and Justice
First Defendant: the birth mother
Second Defendant: the birth father
Representation:
Counsel:
Plaintiff: C. McGorey
Solicitors:
Plaintiff: Karen Smith, Crown Solicitor for NSW First Defendant: no appearance
Second Defendant: in person

File Number(s): 2019/325610
Publication restriction: Yes

Judgment

The plaintiff, the Secretary (“the Secretary”) for the Department of Communities and Justice (“the Department”) seeks an order under Adoption Act 2000 ("the Adoption Act") for the adoption of the child in favour of the proposed adoptive parents.
The child’s birth mother and birth father are the first and second defendants. Neither has consented to the making of the adoption order. The birth father opposes the making of the order. The Secretary seeks an order under the Adoption Act, s 67(1)(d), dispensing with the consent of the child’s birth parents. Finally, the Secretary seeks an order under the Adoption Act, s 50 for the registration of an adoption plan.
This judgment sets out the Court’s reasons for determining that the orders proposed by the Secretary should be made.
In the proceedings, the Secretary was represented by Mr C McGorey, of counsel, instructed by the Crown Solicitor's Office. The birth mother did not appear at the main hearing of the proceedings on 12 and 13 November 2019; although she was present by audio link at the mention, which occurred on 29 November 2019.
The birth father represented himself. Contested adoptions can be difficult cases for all involved. The birth father faced the additional challenge of appearing without legal representation. The Court sought to inform the birth father at each stage of the proceedings of the process and of his rights. The birth father advanced the case that he wished to present to the best of his ability. That the Court has decided to make…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 1653
Decision Date: 13 December 2019

CaseChat Overview and Summary

In the Family Court of Australia, a case was presented concerning the adoption of a child by prospective adoptive parents, who sought to dispense with the consent of the birth mother and birth father. The court was required to determine whether an adoption order was in the best interests of the child, given the parents' lack of consent, and to consider the alternatives available. The child in question had been with the prospective adoptive parents since the age of four weeks and was now six years old.

The primary legal issues before the court were whether the statutory requirements of the Adoption Act 2000 were met, particularly in terms of dispensing with parental consent, and whether an adoption order was in the best interests of the child. The court had to weigh the child's welfare against the statutory provisions and consider the child's relationship with the prospective adoptive parents, who had been their primary caregivers since a very young age.

The court determined that the statutory requirements were met, and the adoption order was in the best interests of the child. It was found that the child had developed a strong bond with the prospective adoptive parents, and that an adoption order would provide stability and continuity in the child's life. The court emphasised the importance of considering the child's welfare above all else and concluded that the adoption order would serve the child's best interests. The court also considered the alternatives to an adoption order, including continued care by the prospective adoptive parents under a different legal arrangement, but found that adoption was the most suitable option.

The court granted the application to dispense with the consent of the birth mother and birth father and made an adoption order in favour of the prospective adoptive parents. The decision underscored the paramountcy of the child's welfare in adoption proceedings and the importance of considering the child's relationship with their caregivers.

Orders