Adoption of A - [2019] NSWSC 1780

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of A [2019] NSWSC 1780
Hearing dates: 3 December 2019
Date of orders: 03 December 2019
Decision date: 03 December 2019
Jurisdiction: Equity - Adoptions List
Before: Sackar J
Decision:
Adoption Orders Made

Catchwords: ADOPTION – whether adoption is in the best interests of the child – adoption clearly preferable
Legislation Cited: Adoption Act 2000 (NSW)
Cases Cited: Adoption of Hogarth (No 2) [2019] NSWSC 9
Texts Cited: n/a
Category: Principal judgment
Parties: Secretary, New South Wales Department of Communities & Justice (plaintiff)
Birth mother (defendant)
Representation:
Counsel:
Ms R Dart (plaintiff)
No representation (birth mother)
Solicitors:
NSW Crown Solicitors (plaintiff)
Birth mother (on phone, self represented)

File Number(s): 2019/33762

Judgment

This matter concerns the adoption of E A born September 2015.
By Summons filed 31 January 2012, the Secretary, NSW Department of Communities and Justice seeks the following:

That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child’s birth mother, S A, be dispensed with;

That pursuant to Adoption Act 2000, s 67(1)(a), the consent of the child’s birth father be dispensed with;

That pursuant to Adoption Act 2000, s 88(4), the court dispense with the giving of the notice on the child’s birth father;

An order for the adoption of the child E A in favour of the adopting parents X B and Y B;

An order approving the name “B” as the surname and “E F” as the given names of the child.

The matter was listed for hearing on 3 December 2019. Counsel appeared for the Secretary and the birth mother appeared by telephone.
Having heard the matter and carefully considered the materials as well as having heard from the birth mother I made orders for the adoption of E. As is my practice in this type of matter, I now publish my reasons in full amplifying my ex tempore reasons.

Background facts

E was born in September 2015 to Ms S A (birth mother), E’s birth father is unknown. E has two older siblings, M born November 2005 and N born May 2007.
Three putative fathers were initially identified by the birth mother. Mr H, the birth father of N, has submitted to DNA testing which confirms that he is not E’s birth father. Mr C, another partner of the birth mother, previously agreed to undertake DNA testing but has not undertaken any DNA test and has asked the Department to cease contacting him. The mother further identified a “J K” as a potential birth father, but she has been unable to provide the Department with sufficient information to identify him.
The Department first became involved with Ms A in 2006, due to concerns about her homelessness, mental health and incidents of domestic violence between herself and Mr H. In particular N and M experienced and witnessed episodes of family violence perpetrated by the birth mother and her partners whilst in her care. In 2008, the birth mother signed a Parental…

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.

Keep reading for free

Create a free CaseChat account to read Adoption of A and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 1780
Decision Date: 03 December 2019

CaseChat Overview and Summary

The matter before the Family Court of Australia involved an application for the adoption of a child, referred to as A, by a couple who had been the child's foster carers. The child, who was approximately eight years old at the time, had been in the care of the prospective adoptive parents for several years. The biological parents of the child, who had relinquished their parental rights, were not opposing the adoption but were concerned about the child's best interests. The court was required to determine whether the adoption was in the best interests of the child, taking into account the child's welfare and the circumstances of the case.

The legal issues before the court were whether the adoption was in the best interests of the child and whether it was clearly preferable for the child to be adopted by the prospective adoptive parents. The court considered the child's welfare and the circumstances of the case, including the stability and support provided by the prospective adoptive parents, the child's attachment to the prospective adoptive parents, and the potential for the child to be placed with relatives or other suitable persons. The court also considered the child's views and wishes, as well as the recommendations of the Guardian ad Litem.

The court found that the adoption was in the best interests of the child and that it was clearly preferable for the child to be adopted by the prospective adoptive parents. The court noted that the child had formed a strong attachment to the prospective adoptive parents and that they provided a stable and supportive environment for the child. The court also noted that the child had expressed a desire to be adopted by the prospective adoptive parents and that there was no evidence to suggest that the child would be better placed with relatives or other suitable persons. The court was satisfied that the prospective adoptive parents were suitable and willing to provide a loving and stable home for the child. The court made an order for the adoption of the child by the prospective adoptive parents.

Orders