Adoption of BS (No 3) - [2013] NSWSC 2033

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of BS (No 3) [2013] NSWSC 2033
Hearing dates: 21, 22 August, 4, 17 September (Sydney), 5 December (Bega) 2013
Decision date: 05 December 2013
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Declaration of parentage; consent dispense orders made; adoption order made; adoption plans registered.

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 no realistic prospect of restoration of child to care of birth parents - where preserving the possibility of restoration would thus contravene the spirit of adoption principle (e1) - where proposed adoptive parents in a better position to facilitate contact with birth parents than the Department - where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them - 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
FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether consent of birth parents ought to be dispensed with - as the making of an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made
Legislation Cited: (NSW) Adoption Act 2000, s 8(1), s 8(2), s 50, s 51, s 67(1)(d), s 72, s 88, s 90(1), s 94, s 101
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
(NSW) Status of Children Act 1996, s 21(2) (NSW) Births Deaths and Marriages Registration Act 1995, s 19(2)
Category: Principal judgment
Parties: Director-General, Family and Community Services (applicant)
KAS (first defendant)
TRF (second defendant)
Representation: Counsel:
Mr J Harris (solicitor) (plaintiff)
Ms S Leis (first defendant)
TRF (in person) (second defendant)
Solicitors:
Crown Solicitor's Office (plaintiff)
Tony Cullinan Lawyers (first defendant)

File Number(s): A162/2012

Judgment

At the conclusion of the hearing in Bega on 5 December 2013, I indicated that, while time did not then permit the delivery of reasons for judgment, I had reached a clear conclusion as to the outcome of the proceedings and, for reasons to be published at a later date, would make the following orders:

(1) Declare pursuant to Status of Children Act 1996, s 21(2), that TRF is the father of BS.

(2) Order pursuant to Births Deaths and Marriages Registration Act 1995, s 19(2), that TRF be included as the father of BS in the Register of Births Deaths and Marriages.

(3) Order that the above…

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: [2013] NSWSC 2033
Decision Date: 05 December 2013

CaseChat Overview and Summary

The case of Adoption of BS (No 3) was heard in the Family Court of Australia, where the primary matter at hand was the application for the adoption of a child, BS, by a couple. The child's birth parents had previously relinquished their parental rights, but the court was required to determine whether an adoption order should be made and whether the consent of the birth parents could be dispensed with. The central issue before the court was whether the making of an adoption order was clearly preferable to any other order that could be made with respect to the care of the child. Given that there was no realistic prospect of restoration of the child to the care of the birth parents, and that preserving the possibility of restoration would contravene the spirit of the adoption principle, the court needed to assess the child's welfare and best interests.

The court found that the proposed adoptive parents were in a better position to facilitate contact with the birth parents than the Department. Furthermore, adoption would serve the child's identity needs better than any potential alternative, as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them. The court held that the making of an adoption order was clearly preferable to any other order that could be made with respect to the care of the child. As the making of an adoption order would promote the child's welfare and be in his best interests, it was necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made.

Ultimately, the court granted the adoption application, and the consent of the birth parents was dispensed with. This decision was based on the welfare of the child and the recognition that adoption would provide a stable and loving environment for the child, while still preserving the opportunity for contact with the birth parents. The court's decision was guided by the principle that the best interests of the child are paramount in all matters concerning their care and welfare.

Orders