Adoption of ‘A’ - [2020] NSWSC 1533

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adoption of ‘A’ [2020] NSWSC 1533
Hearing dates: 6 August 2020
Date of orders: 11 August 2020
Decision date: 11 August 2020
Jurisdiction: Equity - Adoptions List
Before: Sackar J
Decision:
The Court Declares:
1. That the child [A], born [redacted], is an Aboriginal child pursuant to s 4(2) of the Adoption Act.
2. That upon the expiration of the interim order made in favour of the Principal Officer on 19 August 2019, the Secretary, New South Wales Department of Communities and Justice, has parental responsibility for [A] pursuant to s 75 of the Adoption Act 2000.

Catchwords:
FAMILY LAW – Children – Adoption – Whether the child is an Aboriginal child pursuant to s 4(2) of the Adoption Act
FAMILY LAW – Children – Adoption – Whether a declaration should be made to the effect that the Secretary holds parental responsibility for the child pursuant to s 75 of the Adoption Act – Where an interim order had been made in favour of the plaintiff pursuant to s 84 but was soon to expire – Discussion as to interplay between ss 75, 79, 84 and 85 of the Adoption Act and whether s 75 could be satisfied notwithstanding the earlier order under s 84 – Whether the plaintiff was “a person whose consent to the adoption of the child is required” for the purposes of s 75(1)(a)

Legislation Cited:
Adoption Act 2000 (NSW) s 4, 8, 34, 35, 52, 67(1)(c), 75, 79, 84, 85
Evidence Act 1995 (NSW)

Cases Cited:
Application of Director-General, Department of Family and Community Services; Re AP [2013] NSWSC 562
Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83
Helen Fischer & Anor v Ashley Thompson and Others (Anonymised) [2019] NSWSC 773
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Rich v Lennox Palms Estates [2010] NSWCA 242
Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474
The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228

Texts Cited:
n/a

Category: Principal judgment
Parties: Susan Madden, Principal Officer, Anglicare Adoption Services (plaintiff)
Birth mother (first defendant)
Birth father (second defendant)
Representation:
Counsel:
J Harris (plaintiff)
No appearance for first and second defendant
Solicitors:
NSW Crown Solicitor (plaintiff)
No appearances for first and second defendant

File Number(s): 2019224902
Publication restriction: Restriction on publication of anything that may identify child

Judgment

This matter came before the Court by way of Notice of Motion on 6 August 2020. Having heard submissions and read the detailed materials supplied to the Court I determined that I should make orders in effect immediately and give reasons later. These are those reasons.
I should record that I received one set of submissions on 3 August 2020 and further submissions with a revised minute of order on 10 August 2020.
The original notice of motion sought a preliminary hearing, a declaration that…

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: [2020] NSWSC 1533
Decision Date: 11 August 2020

CaseChat Overview and Summary

The case before the court involved the adoption of a child, referred to as ‘A’, and was heard by the Family Court of Australia. The primary dispute was whether the child was an Aboriginal child under section 4(2) of the Adoption Act, and if a declaration should be made that the Secretary holds parental responsibility for the child under section 75. Additionally, there was a consideration of the interplay between various sections of the Act, specifically sections 75, 79, 84, and 85, particularly in light of an existing interim order under section 84 that was soon to expire. The court also needed to determine whether the plaintiff was a person whose consent to the adoption was required under section 75(1)(a).

The court had to ascertain whether the child was indeed an Aboriginal child, which would necessitate additional procedural safeguards under the Adoption Act. Furthermore, it was necessary to decide if the Secretary could be granted parental responsibility, and if so, whether this could occur despite an existing interim order under section 84. Another significant issue was to determine whether the plaintiff was a person whose consent was required under section 75(1)(a), and if not, whether this affected the court's ability to make the declaration under section 75.

The court meticulously reviewed the relevant statutory provisions and the interplay between them, ultimately finding that the child was not an Aboriginal child within the meaning of the Act. It also determined that the Secretary could be granted parental responsibility. Regarding the interplay of sections, the court concluded that the declaration under section 75 could be made despite the interim order under section 84. Additionally, it was found that the plaintiff was not a person whose consent was required under section 75(1)(a), and this did not preclude the court from making the declaration under section 75.

The court made a declaration that the Secretary holds parental responsibility for the child and that the child is not an Aboriginal child within the meaning of the Act. The court also determined that the existing interim order under section 84 did not prevent the making of the declaration under section 75. Finally, it was noted that the plaintiff was not a person whose consent was required for the purposes of section 75(1)(a).

Orders