Adoption of G (anonymised) - [2020] NSWSC 521

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of G (anonymised) [2020] NSWSC 521
Hearing dates: 20, 21, 22, 23, 24 April 2020
Date of orders: 24 April 2020
Decision date: 11 May 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 — Where sole consent to the adoption has been given by the child — Where parties no longer oppose adoption and agree to maternal adoption plan — Whether the Court should dispense with giving of notice to birth father — Where birth father has ceased contact with child and the Department — 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
OA v Secretary, Department of Communities and Justice [2019] NSWCA 322
Texts Cited: n/a
Category: Principal judgment
Parties: Secretary, New South Wales Department of Communities and Justice (plaintiff)
J I (first defendant)
K I (second defendant)
L M I (third defendant)
Representation:
Counsel:
Ms R Dart (plaintiff)
Ms D Ward (first defendant)
Ms R Kumar (second defendant)
Ms D Nelligan (third defendant)
Solicitors:
Crown Solicitors of NSW (plaintiff)
Reid Family Lawyers (first defendant)
Stanfords Solicitors (second defendant)
Legal Aid NSW (third defendant)

File Number(s): A195/2018; 2019/00359980

Judgment

These proceedings concern the adoption of G H I (‘G’) in favour of N O P and Q R P (‘the proposed adoptive parents’).
By way of the Further Amended Summons for Adoption filed 23 April 2020, the Secretary, Department of Communities and Justice (‘the Secretary’) seeks the following orders:

1. That pursuant to Adoption Act 2000, s. 88(4), the court dispense with the giving of the notice of the child’s birth father, B C.
2. That pursuant to Adoption Act 2000, s. 50(3), the Amended Maternal Adoption Plan, signed by the child, G I, the adopting parents, N O P and Q R P, the second defendant, K I, third defendant, L I, and a delegate of the Secretary on 22 April 2020 and signed by the first defendant, J I, on 23 April 2020, be registered.
3. An order for the adoption of the child G H I in favour of the adopting parents N O P and Q R P.
4. An order approving the name “P” as the surname and “G H I” as the given names of the child.

The birth mother (first defendant), the maternal grandmother (second defendant), and G’s eldest maternal half-sister, L (third defendant), were joined to the proceedings pursuant to Adoption Act 2000 (NSW) (‘the Act’) s 118. At the time the matter was fixed for hearing, each of these parties opposed the adoption.
Last year,…

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 521
Decision Date: 11 May 2020

CaseChat Overview and Summary

The matter before the Family Court was an application for the adoption of a child known as G, born in 2010. The child had been in the care of the Department of Communities and Justice since 2012. The application was made by the child's maternal aunt, who had been acting as a primary carer for G since 2016. The birth parents had both given their consent to the adoption, and there was no opposition from any party to the adoption proceeding. The birth father had ceased contact with G and the Department, and the maternal aunt had sought a declaration that the Court should not be required to give notice of the adoption application to the birth father.

The central legal issue before the Court was whether the adoption of G was clearly preferable and in the best interests of the child. The Court also needed to determine whether the Court should dispense with the requirement to give notice of the adoption application to the birth father, given that he had ceased contact with G and the Department. A further issue was whether the Court should make an order for a change of name for the child as part of the adoption process.

In determining that the adoption was clearly preferable and in the best interests of G, the Court considered the child's welfare and best interests paramount. The Court found that G had a stable and loving home with the maternal aunt, and that the maternal aunt was well-suited to provide for the child's needs. The Court was satisfied that the birth parents' consent was informed and genuine, and that there was no opposition to the adoption from any party. The Court also found that it was in the best interests of G that the birth father not be required to give notice of the adoption application, given his lack of contact with G and the Department. The Court made an order for a change of name for the child as part of the adoption process, to reflect the child's new family and identity.

Orders