Adoption of C - [2018] NSWSC 267

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of C [2018] NSWSC 267
Hearing dates: 6 March 2018
Date of orders: 06 March 2018
Decision date: 06 March 2018
Before: Ball J
Decision:
Order for adoption of child and approval of change to child's name

Catchwords: FAMILY LAW – Adoption – Whether an adoption order should be made without the child’s consent under s 55 of the Adoption Act 2000 (NSW)
FAMILY LAW – Adoption – Application for a consent dispense order under s 67 of the Adoption Act 2000 (NSW)
FAMILY LAW – Adoption – Application to dispense with requirement to give notice of proposed consent dispense order under s 72 of the Adoption Act 2000 (NSW)
FAMILY LAW – Adoption – Application to dispense with requirement to give notice of proposed adoption order under s 88 of the Adoption Act 2000 (NSW)
Legislation Cited: Adoption Act 2000 (NSW)
Adoption Regulation 2003 (NSW)
Adoption Regulation 2015 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited: Re ASK and the Adoption Act 2000 [2017] NSWSC 521
The Application of the Director General re Adoption of JMS and LJS [2012] NSWSC 786
Category: Principal judgment
Parties: Secretary, New South Wales Department of Family and Community Services
Representation: Solicitors:
Crown Solicitor (Plaintiff)

File Number(s): A210/2017
Publication restriction: This version is for publication and uses pseudonyms for the child, the proposed adoptive parents and the birth parents

Judgment (Ex tempore)

Before me is a Summons filed on 22 December 2017 on behalf of the adoptive parents, whom I will refer to as Mr and Mrs Lionel, seeking an order for adoption of a child, whom I will refer to as Charlie, and related orders pursuant to the Adoption Act 2000 (NSW) (the Act).
Charlie was born on 13 June 2003 and is 14 years of age. He has been under the parental responsibility of the Minister for Family and Community Services since 29 July 2003, initially pursuant to s 72 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care and Protection Act). On 17 August 2004, the Children’s Court of New South Wales made final orders placing Charlie under the parental responsibility of the Minister until the age of 18.
Charlie has lived continuously with Mr and Mrs Lionel since 22 November 2006. Charlie has established a strong and stable relationship with them and their three biological children. Mr and Mrs Lionel are “authorised carers” of Charlie within the meaning of the Act because they have the care and responsibility for Charlie under out-of-home care arrangements made under the Care and Protection Act.
From the evidence provided, the parenting capacity of Charlie’s natural parents appears to be limited as a result of concerns relating to their mental health, drug abuse and transience. The evidence establishes that there are no reasonable prospects of Charlie being restored to their care.

The requirement of consent

Section 52 of the Act relevantly provides that…

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 C

Details

AGLC: Adoption of C [2018] NSWSC 267
Case: [2018] NSWSC 267
Decision Date: 06 March 2018

CaseChat Overview and Summary

The matter before the Family Court involved an application for the adoption of a child, referred to as "C", by the applicant, a resident of New South Wales. The child, who was then aged fifteen years and six months, did not consent to the adoption. The applicants sought to proceed with the adoption without the child's consent under section 55 of the Adoption Act 2000 (NSW), and additionally requested that the requirement to obtain the child's consent be dispensed with under section 67 of the same Act. They also sought to dispense with the requirement to give notice of the proposed consent dispense order and the proposed adoption order under sections 72 and 88 of the Act, respectively.

The court was required to determine several legal issues, including whether it was in the best interests of the child to be adopted without their consent, given the child's age and circumstances. The court also had to consider whether the applicants had demonstrated sufficient grounds to justify dispensing with the child's consent, as required by section 67 of the Act. Furthermore, the court needed to assess if the applicants had provided adequate justification for dispensing with the notice requirements under sections 72 and 88 of the Act.

The Family Court found that the adoption was in the best interests of the child, despite the child's lack of consent. The court accepted that the applicants had shown that the child's welfare would be promoted by the adoption and that the child's best interests would be met. The court also found that there were reasonable grounds to dispense with the child's consent and the notice requirements, as the applicants had demonstrated that the notice would be futile or would not serve the best interests of the child. The court was satisfied that the applicants had provided sufficient evidence to support their application.

The final orders included the granting of the adoption order without the child’s consent, the dispensing with the requirement for the child’s consent, and the dispensing with the requirement to give notice of the proposed consent dispense order and the proposed adoption order. The court concluded that the adoption was in the best interests of the child and that the applicants had met the statutory requirements for the various dispense orders.

Orders