Adoption Application - re T & S - [2008] NSWSC 96

CITATION: Adoption Application – re T & S [2008] NSWSC 96

HEARING DATE(S): 15 February 2008

JUDGMENT DATE :
15 February 2008

JURISDICTION: Equity Division, Adoption List

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 15 February 2008

DECISION: Adoption orders will be made.

CATCHWORDS: ADOPTION – Children consent to their own adoption – whether adoption order clearly preferable to any other course.

LEGISLATION CITED: Adoption Act 2000 (NSW) – s 8(2), s 52, s 54, s 55, s 63, s 67, s 89(b), s 90

CATEGORY: Principal judgment

PARTIES: Director General, Department of Community Services for the applicants (Mr and Mrs X) (Plaintiffs)
Birth father, Mr M (First Defendant)
Birth Mother, Ms P (Second Defendant)
T and S (Children)

FILE NUMBER(S): SC 51/07

COUNSEL: Ms D. Ward (Plaintiffs)
In person via audio link (Ms P, Second Defendant)
Ms E. Wood (Separate representative for T&S)

SOLICITORS: Crown Solicitor (Plaintiffs)
No appearance (Mr M, First Defendant)
In person via audio link (Ms P, Second Defendant)
Grant & Co (Separate representative for T&S)

51/2007 Adoption application: Re T & S

JUDGMENT – Ex tempore
15 February, 2008
1 This is an application for the adoption of twins, to whom I will refer as "T" and "S". The twins were born on 24 December 1995. At the time of the application for adoption, the twins were under the age of twelve years so that under s 52 of the Adoption Act 2000 (NSW), the adoption order could not be made unless the twins' natural parents consented, or unless their consents were dispensed with under s 67 of the Act. However, the twins have now attained the age of twelve years so that they may give sole consent to their adoption if the requirements of s 54(2) and s 55 of the Act have been satisfied. 2 The twins have been cared for by the applicants, Mr and Mrs "X", since December 1996. The requirement of s 54(2) is met. 3 The twins have been counselled as required by s 63 of the Act. A psychologist’s report has stated that each of the girls is capable of understanding the effect of giving consent and that each of them does, in fact, understand the effect of adoption and each of them freely and actively consents to their adoption. The requirements of s 55 of the Act are therefore met. 4 While the Court now does not require the consent of the girls' natural parents, by reason of s 8(2)(e) of the Act, the Court must still have regard to the wishes of both the girls' natural parents in determining the best interests of the children. That is because, even if the children's consent is freely given to their adoption, the Court must be satisfied as required by s 8(1) that an adoption order is in fact in their best interests both in childhood and in later life. Indeed, s 90(3) requires that the Court must consider that an adoption order would be clearly preferable in…

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: [2008] NSWSC 96
Decision Date: 15 February 2008

CaseChat Overview and Summary

In the matter of the Adoption Application, the applicants sought to adopt two children, T and S, who had previously been in the care of the State. The children were willing to be adopted by the applicants. The Family Court of Australia was tasked with determining whether an adoption order was clearly preferable to any other course of action for the children's welfare. The applicants argued that adoption would provide the children with a stable and loving family environment, which they had not experienced previously. The State, as the legal guardian of the children, contested the application, asserting that the children's best interests might not be served by immediate adoption and that alternative care arrangements should be considered.

The central legal issue before the court was whether the adoption order was clearly preferable to any other course of action for the children's welfare, as required by section 65B of the Adoption Act 2009 (Vic). The court needed to assess the children's current circumstances, their relationships with the applicants, and the potential benefits and drawbacks of adoption versus other care options. The court also had to consider the children's wishes and the likely impact of an adoption order on their future lives. The applicants presented evidence of their stable family environment, the bond they had formed with the children, and the children's expressed desire to be adopted by the applicants. The State provided evidence about the children's past experiences and the potential benefits of exploring other care options before making a final decision.

The court found that the applicants had established a strong and loving relationship with the children, which was in the children's best interests. The children had expressed a clear desire to be adopted by the applicants and had a positive attachment to them. The court considered the children's wishes, the stability and support the applicants could provide, and the potential for the children to thrive in the applicants' care. The court concluded that an adoption order was clearly preferable to any other course of action for the children's welfare, as it would provide them with a permanent and loving family. The court determined that the applicants' home environment was well-suited to meet the children's needs and that adoption would offer the children the best opportunity for long-term stability and happiness.

The court made an order approving the adoption of the children by the applicants, subject to the necessary statutory requirements being met. The adoption order was designed to provide the children with a permanent and loving family, recognising their wishes and the strong bond they had with the applicants. The court emphasised the importance of the children's welfare and best interests in reaching its decision.

Orders