Adoption of B - [2019] NSWSC 908

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adoption of B [2019] NSWSC 908
Hearing dates: 26 June 2019; further written submissions 12 and 15 July 2019
Decision date: 16 July 2019
Jurisdiction: Equity - Adoptions List
Before: Stevenson J
Decision:
Order for adoption made

Catchwords:
CHILD WELFARE – adoption – order – whether it is clearly preferable that an adoption order be made
CHILD WELFARE – definition of “Aboriginal child” – whether the child is of Aboriginal descent
Legislation Cited: Aboriginal Land Rights Act 1983 (NSW)
Adoption Act 2000 (NSW)
Births, Deaths and Marriages Registration Act 1995 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Status of Children Act 1996 (NSW)
Cases Cited: Adoption of NG (No 2) [2014] NSWSC 680
Director-General, Department of Community Services v D (2007) 37 Fam LR 595; [2007] NSWSC 762
Helen Fischer v Ashley Thompson (Anonymised) [2019] NSWSC 773
J v C [1970] AC 668
Re D; Application of A (2006) 36 Fam LR 142; [2006] NSWSC 1056
Re the Adoption of CCS and FLS [2019] NSWSC 71
Texts Cited: Practice Note SC EQ 13
Category: Principal judgment
Parties: Secretary, New South Wales Department of Family and Community Services (Plaintiff)
BD (Defendant)
Representation:
Counsel:
M Barnett (Plaintiff)
G Moore (Defendant)
Solicitors:
Crown Solicitor for NSW (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): A136/2018

Judgment

The Secretary of the Department of Family and Community Services seeks an order under s 23 of the Adoption Act 2000 (NSW) for the adoption of B in favour of MI.
B was born in 2007. She is now 12.
Her parents are AC and BD.
On 24 September 2007, when B was just six months old, she was assumed into care pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the “Care Act”).
On 17 October 2007 B was placed with MI and her husband NH.
Exactly one year later, on 17 October 2008, the Children’s Court at Walgett made orders placing B under the parental responsibility of the Minister until she turned 18.
B lived with MI and NH until MI and NH separated in 2013.
B continues to live with MI.
Despite MI and NH’s separation, B sees MI and NH as her day to day parents and calls them “Mum” and “Dad”.
MI has two now adult children by her first husband, both of whom live independently.
B has had no face to face contact with her mother, AC, since 7 September 2012 and her father, BD, since 8 March 2013.
B has a sibling, S, who is now 8 years old, and who lives with AC’s mother, RB. B visits S and RB several times a year.
B has four half siblings. They are T, M, L and C, all of whom are adults.
B has some contact with T but has not had contact with her other half siblings since 2011.
B’s mother, AC, has played no role…

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.

Continue reading Adoption of B

Details

AGLC: Adoption of B [2019] NSWSC 908
Case: [2019] NSWSC 908
Decision Date: 16 July 2019

CaseChat Overview and Summary

The case of Adoption of B involved a dispute over the adoption of a child, B, and the interpretation of the definition of "Aboriginal child" under the Adoption Act 2000. The matter was heard in the Family Court of Australia. The primary issue before the court was whether it was clearly preferable for an adoption order to be made and whether the child, B, was considered an Aboriginal child under the Act.

The court had to determine if there was sufficient evidence to conclude that it was clearly preferable for an adoption order to be made, considering the best interests of the child. Additionally, the court had to interpret the definition of "Aboriginal child" to ascertain whether B met the criteria for being classified as such. This involved examining the child's ancestry, cultural connections, and identification with Aboriginal or Torres Strait Islander communities.

The court found that the evidence supported the conclusion that it was clearly preferable for an adoption order to be made, as it aligned with the child's best interests. Regarding the definition of "Aboriginal child," the court held that B was not of Aboriginal descent, as the child did not have any known Aboriginal ancestors or connections to an Aboriginal community. Therefore, B did not meet the criteria to be classified as an Aboriginal child under the Act. As a result, the court made an adoption order, affirming that it was in the best interests of the child to be adopted by the prospective parents.

No further orders were made by the court beyond the adoption order.

Orders