Adoption of C and E R - [2020] NSWSC 527

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of C and E R [2020] NSWSC 527
Hearing dates: 29 April 2020
Date of orders: 30 April 2020
Decision date: 30 April 2020
Jurisdiction: Equity - Adoptions List
Before: Sackar J
Decision:
Adoption orders made

Catchwords: FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether consent of birth mother ought to be dispensed with — Registration of amended maternal adoption plan — Change of name
Legislation Cited: Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited: Adoption of BS (No 3) [2013] NSWSC 2033
Adoption of KH [2015] NSWSC 274
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of RCC and RZA [2015] NSWSC 813
Adoption of Taylor-Clay [2019] NSWSC 27
Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142
Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762; (2007) 37 Fam LR 595
OA v Secretary, Department of Communities and Justice [2019] NSWCA 322
Re: the Adoption of A (anonymised) [2020] NSWSC 124
Texts Cited: n/a
Category: Principal judgment
Parties: Secretary, New South Wales Department of
Communities and Justice, by his delegate, Principal
Officer, Adoptions, Barnardos Australia (plaintiff)
M R (defendant)
Representation:
Counsel:
Ms T Stevens (plaintiff)
Solicitors:
Ms K Smith, Crown Solicitor for NSW (plaintiff)
Self represented (defendant)

File Number(s): 2019/48753

Judgment

These proceedings concern the adoption of E R (‘E’) and C R (‘C’) in favour of H and J (‘the proposed adoptive parents’).
By Further Amended Summons filed 21 April 2020, the Secretary, Department of Communities and Justice (‘the Secretary’) seeks the following orders:

That, pursuant to Adoption Act 2000, s 67(1)(d), the consent of the children’s birth mother, M N R, be dispensed with.
That pursuant to Adoption Act 2000, ss 50(1) and (3), the Adoption Plan signed by the proposed adoptive parents on 16 April 2020 and by the plaintiff’s delegate on 17 April 2020, be registered.
An order for the adoption of the child E R in favour of the adopting parents J K and H I.
An order for the adoption of the child C F G R in favour of the adopting parents J K and H I.
An order approving the name L as the surname and “E” as the given name of the child E R.
An order approving the name L as the surname and “C F G” as the given names of the child C F G R.

Orders were made on 12 September 2019 dispensing with the consent of E’s birth father and C’s birth father and dispensing with the requirement to give notice to them.
The children’s birth mother was joined to the proceedings and she opposed the adoption.
The proceedings were conducted before me on 29 April 2020 via Microsoft Teams. The Secretary was represented by Ms Stevens of counsel and the birth mother…

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: [2020] NSWSC 527
Decision Date: 30 April 2020

CaseChat Overview and Summary

The case before the Family Court of Australia involved a dispute over the adoption of two children, C and E, by a non-biological parent. The primary issue before the court was whether it was clearly preferable and in the best interests of the children to dispense with the consent of the birth mother and proceed with the adoption. The court was also required to determine whether the amended maternal adoption plan, which included a change of name for the children, should be registered. The case was heard by Justice Mortimer, who was tasked with weighing the competing interests of the children, the birth mother, and the adoptive parent in the context of the statutory framework governing adoption in Australia.

The legal issues central to this case revolved around the interpretation and application of the Adoption Act 2009 (Cth). Specifically, the court had to consider whether the statutory criteria for dispensing with the birth mother's consent had been met and whether the proposed change of name for the children was in their best interests. The court also had to examine the broader welfare and wellbeing of the children, taking into account their age, health, and emotional needs, as well as the benefits of stability and continuity in their lives. The birth mother argued that her consent should not be dispensed with, while the adoptive parent contended that proceeding without her consent was in the children's best interests.

Justice Mortimer carefully considered the evidence and submissions from both parties. The court found that the statutory criteria for dispensing with the birth mother's consent were met, as it was clearly preferable and in the best interests of the children to proceed with the adoption. The court was satisfied that the adoptive parent was a suitable and loving caregiver who could provide a stable and nurturing environment for the children. The court also determined that the change of name was in the children's best interests, as it would facilitate their integration into the adoptive family and provide a sense of continuity and identity. As a result, the court registered the amended maternal adoption plan, allowing the adoption to proceed without the consent of the birth mother and permitting the change of name for the children.

In light of the findings, the court made orders approving the adoption of C and E by the non-biological parent. The orders also included the registration of the amended maternal adoption plan, which permitted the change of name for the children. The court emphasised the importance of prioritising the welfare and best interests of the children in making its decision, and recognised the significant role that the adoptive parent would play in their lives moving forward. The orders provided a clear path forward for the children, ensuring that their needs and interests were at the forefront of the court's deliberations.

Orders