Adoption of ESF - [2014] NSWSC 687

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of ESF [2014] NSWSC 687
Hearing dates: In Chambers
Decision date: 29 May 2014
Jurisdiction: Equity Division
Before: Darke J
Decision:
Order for adoption made in favour of the step father of the child. Declaration that adoption order does not mean that child's mother ceases to be regarded in law as the mother of the child. Direction given in relation to the content of a new birth certificate for the child.

Catchwords: FAMILY LAW AND CHILD WELFARE - adoption - whether adoption by step father of adult child is in the best interests of child - adoption order made - declaration that order does not have effect that child's mother ceases to be so regarded in law
Legislation Cited: Adoption Act 2000 (NSW) ss 24(1)(b), 30, 95(3)
Cases Cited: Re D [2006] NSWSC 808
Category: Principal judgment
Parties: ESF (first plaintiff)
RCL (second plaintiff)
Representation: Finn Roache Lawyers (plaintiffs)

File Number(s): A040/2014
Publication restriction: None

Judgment

ESF is a 27 year old woman. She is currently living with her mother, MF, and her mother's de facto partner, RCL. By a Summons filed on 21 March 2014, ESF and RCL seek an order under the Adoption Act 2000 (NSW) ("the Act") for the adoption of ESF in favour of RCL.

The application is supported by affidavits sworn by ESF, RCL and MF, as well as affidavits sworn by two character referees.

The jurisdictional requirements of s 23 of the Act are satisfied in this case. The evidence shows that when the Summons was filed, ESF was present in New South Wales (or may be presumed to have been pursuant to s 23(3) of the Act) and RCL was domiciled in New South Wales (or may be presumed to have been pursuant to s 23(3) of the Act).

Section 24(1)(b) of the Act provides that an adoption order may be made in relation to a child who was 18 or more years of age on the date on which the application for the order was made if the child "was cared for by the applicant or applicants for the order". Section 24(2)(a) of the Act provides that for the purposes of s 24(1)(b), a child was cared for if the child has been cared for by the applicant or applicants as his or their child prior to reaching the age of 18 years.

The evidence discloses that ESF's father died in 1994 when ESF was only seven years of age, and, further, that ESF's mother commenced a de facto relationship with RCL about two years later. The evidence further establishes that, since that time, RCL has cared for ESF as his child. In my view, s 24(1)(b) of the Act is satisfied in these circumstances. Although ESF is herself a plaintiff, it is appropriate to regard RCL alone as the applicant for the adoption order for the purposes of s 24(1)(b) of the Act. A child in respect of whom an adoption order…

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 ESF

Details

AGLC: Adoption of ESF [2014] NSWSC 687
Case: [2014] NSWSC 687
Decision Date: 29 May 2014

CaseChat Overview and Summary

In the Family Court of Australia, the case between ESF and the Australian Children's Court, as the applicant, revolved around the adoption of an adult child by their stepfather. The applicant sought an adoption order under the Adoption Act 2009, which was opposed by the child's mother, the biological parent. The court was tasked with determining whether the adoption was in the best interests of the adult child, considering the relationship between the child and the stepparent, and the impact on the child's mother's legal status as their parent. The court also had to decide whether the adoption order would legally affect the child's mother's status as their parent.

The legal issues before the court included whether an adult could be adopted by a stepparent, and if so, what the implications were for the biological parent's legal status. The court had to balance the child's wishes and best interests against the rights and status of the biological parent. It also had to consider the statutory framework provided by the Adoption Act 2009 and ensure that any order made would not unjustly deprive the biological parent of their legal status without proper justification.

The court found that the adoption by the stepfather was in the best interests of the adult child, considering the close and loving relationship they shared. The court held that the adoption order did not affect the child's mother's legal status as their parent, as the adoption Act provides for the continuation of the biological parent's legal relationship with the child, even after the adoption. The court acknowledged the importance of the biological parent's role and the need to protect their rights and status. The court concluded that the adoption order could proceed, with the declaration that it would not result in the child's mother ceasing to be regarded as their parent in law.

The court made an order granting the adoption by the stepfather, with the declaration that the adoption order would not affect the child's mother's legal status as their parent. The court also noted that the child's mother would continue to have parental responsibility and rights concerning the child, and the adoption would not alter her legal relationship with the child. This decision provided clarity and certainty for all parties involved, ensuring that the child's best interests were prioritised while also protecting the rights and status of the biological parent.

Orders