A v B

[2016] QChC 3

CHILDRENS COURT OF QUEENSLAND

CITATION:

A & Anor v B & Anor [2016] QChC 3

PARTIES:

A

and

D

(appellants)

v

B

(first respondent)

and

JULIA BASSOM DELEGATE OF THE DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES

(second respondent)

FILE NO/S:

2261/2015

DIVISION:

Childrens Court

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 July 2016

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2016

JUDGE:

Dick SC DCJ

ORDER:

1.    Appeal dismissed

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CUSTODY – WELFARE OF THE CHILD AND RIGHTS OF THE PARENTS – whether magistrate properly considered s229 of the Adoption Act 2009 that the wellbeing and best interests of the child are paramount – whether magistrate gave adequate reasons for not finding that the father unreasonably withheld consent – whether magistrate considered the meaning of special circumstances pursuant to s39 Adoption Act 2009

James v Surf Road Nominees Pty Ltd [2004] NSWCA 478

Stoker v Adecco Gemvale Constructions [2004] NSWCA 449

Sexton v Sexton [2012] FAM CAFC 218

COUNSEL:

J Bunning for the applicant;

No appearance for the first respondent;

M Green for the second respondent

SOLICITORS:

Dean Kath & Kohler Solicitors for the applicant

Office of the Director of Child Protection Litigation for the second respondent

1. On 2 June 2015 the appellants filed an appeal against orders made by magistrate O’Shea on 5 May 2015 dismissing their application for dispensation of the consent of the biological father, B, to the adoption of a child.  B did not appear at the hearing of the appeal.

1. The power to appeal is set out in s 243 of the Adoption Act 2009 (“the Act”). Section 246 of the Act provides:

“246      Hearing procedures

(1) An appeal must be decided on the evidence and proceedings before the Childrens Court.

(2) However, the appellate court may order that the appeal be heard afresh, in whole or part.”

1. At the hearing of the appeal it was accepted that I should proceed under subsection (1) and that in order for the appellants to be successful the appellants needed to show that the magistrate erred in law in dismissing their application. 

1. The grounds of this appeal are as follows:

1. The Court did not properly consider s 229 of the Adoption Act that the wellbeing and best interests of the child are paramount when coming to the decision to dismiss the application and therefore erred in law;

2.          The Court did not give adequate reasons for dismissing the application and therefore erred in law;

3. The Court did not properly consider and give adequate reasons pursuant to s 39(1)(e) of the Adoption Act and therefore erred in law;

4. The Court did not consider what was meant by “special circumstances” pursuant to s 39(1)(f) of the Adoption Act and therefore erred in law;

5.          Ground 5 was abandoned; and

6.          That the reasons are otherwise insufficient to support the orders made…