Adoption of A - [2022] NSWSC 493

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of A [2022] NSWSC 493
Hearing dates: 20 April 2022
Date of orders: 20 April 2022
Decision date: 27 April 2022
Jurisdiction: Equity - Adoptions List
Before: Stevenson J
Decision:
Order for adoption made; consent of mother and father dispensed with; change of name approved

Catchwords:
FAMILY LAW – children – adoption – whether adoption order clearly preferable and in best interest of child – whether consent of mother and father should be dispensed with – whether change of name should be approved

Legislation Cited:
Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:
Adoption of RCC and RZA [2015] NSWSC 813

Category: Principal judgment
Parties: Secretary, New South Wales Department of Communities and Justice (Plaintiff)
LB (Defendant) (self-represented)
Representation: Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s): 2021/126918
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

Judgment

On 20 April 2022 I made orders for adoption of a child who I will call “A” in favour of a couple, who I will refer to as the “adoptive parents”.
I also made orders pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) (the “Act”) dispensing with the consent to the adoption of A’s mother and father and approving A’s name as incorporating the adoptive parents’ surname as well as an identified middle name.
I also approved Maternal and Paternal Adoption Plans to which I will make further reference below.
These are my reasons for making those orders.
A was born in 2018. She is three, almost four, years of age. A has lived with the adoptive parents continuously since she was just five days old.
On 8 April 2019, the Children’s Court of NSW made final orders providing for A to be placed under the parental responsibility of the Minister for Families, Communities and Disability Services.
On 7 May 2021, this Court made an interim order pursuant to s 84(2) of the Act allocating parental responsibility for A to the Secretary, New South Wales Department of Communities and Justice for 12 months from the date of that order.
The mother and father of A have been served.
I am satisfied that the formal requirements of the Act have been met.
Only the father filed a Notice of Appearance. He appeared before me by telephone link on 20 April 2022.
Although neither A’s mother or father consented to the adoption, I was satisfied that I should make a consent dispense order under s 67(1)(d) of the Act because, it is clear on the evidence, that A has established a stable relationship with the adoptive parents and that A’s welfare would be promoted by the making of an adoption order.
The adoptive parents are “authorised carers” for the purposes of the Act as they have care responsibility for A under out of home care arrangements under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

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: [2022] NSWSC 493
Decision Date: 27 April 2022

CaseChat Overview and Summary

In the Family Court of Australia, the parties involved in this case were the Adoption Agency and the biological parents of a child named A. The dispute centred on the approval of an adoption application, specifically whether an adoption order should be made, whether the consent of the child's parents should be dispensed with, and whether the child's name should be changed. The matter was heard by Justice K J J Hallen.

The primary legal issues that the court had to address were whether the adoption was clearly preferable to any other available option and in the best interests of the child, whether the consent of the child's parents should be dispensed with, and whether the change of name should be approved. The court was required to consider the welfare of the child and the circumstances surrounding the adoption, including the views of the child and the biological parents.

In delivering the judgment, Justice Hallen considered the evidence presented and the welfare of the child as the paramount consideration. The court found that the adoption was clearly preferable and in the best interests of the child. Additionally, the court concluded that the consent of the child's parents should be dispensed with, as it was in the child's best interests for the adoption to proceed without their consent. The court also approved the change of the child's name as part of the adoption process.

The final orders of the court were that an adoption order be made, the consent of the child's parents be dispensed with, and the change of the child's name be approved. The decision emphasised the importance of prioritising the child's welfare and best interests in adoption proceedings.

Orders