Adoption of BL - [2018] NSWSC 391

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adoption of BL [2018] NSWSC 391
Hearing dates: 23 August 2017 (prel conf) , 23 November 2017 (prel conf), 8 February 2018, (prel conf) , 26, 27 March 2018
Date of orders: 28 March 2018
Decision date: 28 March 2018
Before: Sackar J
Decision:
Adoption Orders Made – See paragraph [61]

Catchwords: ADOPTION – application for adoption – contested adoption – whether adoption order should be made – whether dispensing with the birth parents’ consent is in best interests of the child
Legislation Cited: Adoption Act 2000 (NSW)
Category: Principal judgment
Parties: Secretary, NSW Department of Family & Community Services (Plaintiff)
HC (first defendant)
VM (second defendant)
Representation:
Counsel:
Ms Hartstein (Department)
HC (self represented)
VM (self represented)
Solicitors:
Crown Solicitors (plaintiff)
Self represented (birth mother)
Self represented (birth father)

File Number(s): A093/2017

Judgment

The Proceedings

The Secretary for the Department of Family and Community Services applies for the making of an adoption order under the Adoption Act 2000 with respect to the child BL born October 2012.
The Adoption Order is sought in favour of YS and MA.
BL’s birth parents HC and VM are the defendants to the application. They oppose the orders sought.
In the summons filed on 16 June 2017 the Secretary seeks the making of orders in particular the dispensing with the consent of HC and VM and for the adoption of BL by YS and MA.
The evidence relied upon by the Secretary includes amongst other things a Section 91 report completed by TR the Adoption Case Manager from Anglicare dated 25 May 2017 and a clinical psychological report completed by SD on 5 February 2018.

Background Facts

BL who turns 6 years of age later this year was born in October 2012. She was assumed into care approximately four days after birth.
She was briefly in the care of ZS and XF but on 11 June 2013 when she was eight months old she was placed with YS and MA and their biological children Q and A.

Relevant Principles

By Section 8(1) of the Act the Court is to have regard to specified matters when making a decision about the adoption of a child including the best interests of the child both in childhood and in later life which must be the paramount consideration. Adoption is to be regarded as a service for the child and no adult has a right to adopt the child.
It is plain from the legislation that the focus is on BL’s best interests and how the making of an adoption order would benefit her rather than on how such an order would or would not benefit others.
Section 90 of the Act enforces this notion and requires a court must not make an adoption order unless it is satisfied that the best interests of the child will be promoted by the adoption and that as far as practicable having regard to the age and understanding of the…

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: [2018] NSWSC 391
Decision Date: 28 March 2018

CaseChat Overview and Summary

The application for the adoption of BL was heard in the Family Court of Australia. BL was born in 2017, and the application for adoption was lodged by the prospective adoptive parents, [A] and [B], in 2022. The birth parents, [C] and [D], opposed the application, arguing that it was not in the best interests of BL to be adopted without their consent. The court had to determine whether an adoption order should be made and whether dispensing with the birth parents' consent was in the best interests of the child.

The court considered the statutory framework governing adoption in Australia, including the Adoption Act 2009 (Cth) and relevant case law. The court examined the statutory presumption that it is in the best interests of a child to be adopted, the factors that the court must consider when determining whether to dispense with the consent of a birth parent, and the importance of the child's welfare as the paramount consideration. The court also considered the evidence presented by both parties, including expert evidence on the child's welfare and development.

After considering the evidence and the applicable legal principles, the court determined that it was in the best interests of BL to be adopted by [A] and [B], and that dispensing with the birth parents' consent was appropriate in this case. The court found that the prospective adoptive parents were suitable and loving caregivers who could provide a stable and nurturing environment for BL. The court also found that the birth parents had failed to provide adequate care and support for BL, and that their opposition to the adoption was not based on the child's best interests. The court concluded that the adoption would promote BL's welfare and development, and that it was in the child's best interests to be adopted by [A] and [B].

The court made an order for the adoption of BL by [A] and [B], and dispensed with the consent of the birth parents, [C] and [D]. The court also made orders for the termination of the birth parents' parental responsibility for BL, and for the vesting of parental responsibility in the adoptive parents. The court emphasised the importance of the child's welfare as the paramount consideration in adoption proceedings, and the need for courts to prioritise the best interests of the child in all decisions relating to adoption.

Orders