Adoption of AT - [2015] NSWSC 1666

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of AT [2015] NSWSC 1666
Hearing dates: 7-9 April, 20-22 July 2015
Date of orders: 22 July 2015
Decision date: 22 July 2015
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
Adoption order made; consent dispense order made.

Catchwords: FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – where child settled in placement with proposed adoptive parents and has developed familial and psychological ties with adoptive parents and siblings – whether adoptive mother’s depressive illness undermines her parenting capacity – where adoptive parents have experienced difficulty in supporting contact with birth parents – where adoptive parents committed to supporting birth parent contact – where adoptive parents not ideally placed to meet child’s cultural needs – where adoptive mother’s cultural heritage sufficiently similar to child’s to mitigate deficit in child’s cultural and identity needs – parenting capacity of birth parents – where realistic prospect of restoration of child to care of birth parents remote – where preserving the possibility of restoration would contravene the spirit of adoption principle (e1) – held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child.
Legislation Cited: (NSW) Adoption Act 2000, s 8(1), s 8(2), s 23(2), s 24(1), s 28(1), s 28(3), s 28(4), s 67(1), s 90, s 90(3), s 91
(NSW) Children and Young Persons (Care and Protection) Act 1988, s 44, s 90
Cases Cited: Adoption of NG [2014] NSWSC 680
Adoption of RCC & RZA [2015] NSWSC 813
Adoption of SRB, CJB & RDB [2014] NSWSC 138
Director-General, Department of Community Services v D [2007] NSWSC 762; (2007) 37 Fam LR 595
Re D; Application of A [2006] NSWSC 1056
Texts Cited: Robert Epstein, ‘What Makes a Good Parent?’ (2010) 21 Scientific American Mind 46
Category: Principal judgment
Parties: Secretary, NSW Department of Family and Community Services by its delegate, The Principal Officer Adoption, Barnardos (plaintiff)
T (natural mother)
C (natural father)
Representation:
Counsel:
S Christie (plaintiff)
S Gardiner (natural mother)
G Winn (natural father)
Solicitors:
Crown Solicitors (plaintiff)
VL Hall Lawyer (natural mother)
Winn Legal (natural father)

File Number(s): A57/2014

Judgment (ex tempore) (EDITED 27 OCTOBER 2015)

HIS HONOUR: Austin (not his real name), the child the subject of these proceedings, was born on 29 December 2011, the child of the first defendant Tamara and the second defendant Colin. In these proceedings, the Secretary, by his delegate the Principal Officer, Adoptions, Barnardos, as plaintiff seeks an order for his adoption by proposed adoptive parents, whom I shall call Simon and Jean, a married couple in whose care Austin has been since 29 June 2011 when he was but six months old.
For the sake of preserving anonymity, in this edited…

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: [2015] NSWSC 1666
Decision Date: 22 July 2015

CaseChat Overview and Summary

In the matter of the Adoption of AT, the court was called upon to determine whether an adoption order should be made in favour of the prospective adoptive parents. The case involved a child who had been placed with the prospective adoptive parents and had developed strong familial and psychological ties with them and their existing children. The court was tasked with weighing the benefits of adoption against the potential drawbacks, including the adoptive mother's depressive illness and the adoptive parents' limited capacity to meet the child's cultural needs.

The primary legal issue before the court was whether the making of an adoption order was clearly preferable to any other order that could be made regarding the care of the child. This required the court to consider the child's settlement in the adoptive home, the strength of the ties formed with the adoptive family, and the capacity of the adoptive parents to provide for the child's cultural and identity needs. Additionally, the court had to assess the parenting capacity of the birth parents and the feasibility of the child being restored to their care.

The court found that the child had settled well in the adoptive home and had developed significant bonds with the prospective adoptive parents and their children. Although the adoptive mother suffered from a depressive illness, this did not significantly undermine her parenting capacity. The court also noted that while the adoptive parents had experienced challenges in supporting contact with the birth parents, they were committed to facilitating such contact. Furthermore, although the adoptive parents were not ideally placed to meet the child's cultural needs, the adoptive mother's cultural heritage was sufficiently similar to the child's to mitigate this issue. The court concluded that the realistic prospect of restoring the child to the care of the birth parents was remote, and that preserving this possibility would contravene the spirit of the adoption principle. Consequently, the court determined that an adoption order was clearly preferable to any other order that could be made with respect to the care of the child.

The court made an order for the adoption of AT by the prospective adoptive parents, recognising their capacity to provide a stable and loving environment for the child, despite some challenges in meeting the child's cultural needs. The court emphasised the importance of the child's settled placement with the adoptive family and the strong familial ties that had been established.

Orders