Adoption of Hampton‑Morgan - [2018] NSWSC 2007

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of Hampton‑Morgan [2018] NSWSC 2007
Hearing dates: 9 and 10 August 2018 (Broken Hill)
Date of orders: 10 August 2018
Decision date: 10 August 2018
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
Orders dispensing with the consent of the birth mother and birth father; for the adoption of the child; approving surname and forenames on adoption, and registering the paternal adoption plan.

Catchwords:
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether consent of birth parents ought to be dispensed with – where child in care of approved carers with whom she has an established relationship – held, in child’s best interests to make consent dispense order so as to allow adoption order to be made.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plans – importance of birth family contact in mitigating risks of identity issues potentially associated with adoption.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent – dispensing with consent – where adoptive applicants are approved carers with whom child has an established relationship – where Children’s Court has allocated parental responsibility to Minister to age 18 – where adoption would promote child’s best interests and is clearly preferable to any other order that could be made with respect to care of child – held, in child’s best interests to make consent dispense orders so as to permit adoption order to be made.
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names – assumption of adoptive parents’ surname is a fundamental feature of adoption and a manifestation of its benefits – inclusion of former surnames as middle names is in child’s interests as means of preserving the child’s identity.
Legislation Cited: (NSW) Adoption Act 2000, s 8, s 23, s 28, s 50, s 67(1)(d), s 90
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
Cases Cited: Adoption of SRB, CJB and RDB [2014] NSWSC 138
Adoption of Hogarth [2017] NSWSC 1861
Texts Cited: Bohman M & Sigvardsson S (1990) ‘Outcome in Adoption: Lessons from Longitudinal Studies’ in The Psychology of Adoption, eds Brodzinksy D M & Schechter M D, pp 93-106
Brodzinksy D M (1993), ‘Long-Term Outcomes in Adoption’, The Future of Children, 3(1): 153‑166
Holloway J S (1997), ‘Outcome in Placements for Adoption or Long Term Fostering’, Archives of Disease in Childhood, 76(3): 227-230
Rushton A, Treseder J & Quinton D (1995), ‘An Eight‑Year Prospective Study of Older Boys Placed in Permanent Substitute Families: A Research Note’, Journal of Child Psychology and Psychiatry, 36(4): 687‑695
Triseliotis J (2002), ‘Long-Term Foster Care or Adoption? The Evidence Examined’, Child and Family Social Work, 7(1): 23-33
Vinnerljung B & Hjern A (2011), ‘Cognitive, Educational and Self-Support Outcomes of Long-Term Foster Care Versus Adoption: A Swedish National Cohort Study’, Children and Youth Services Review, 33(10): 1902-1910
Category: Principal…

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: [2018] NSWSC 2007
Decision Date: 10 August 2018

CaseChat Overview and Summary

In the matter of the Adoption of Hampton-Morgan, the Family Court was called upon to decide whether to dispense with the consent of the child's birth parents in order to allow an adoption to proceed. The case involved a child who had been in the care of approved carers since a very young age, with whom she had developed a strong and established relationship. The court needed to determine if it was in the child's best interests to proceed with the adoption under these circumstances.

The legal issues before the court centred on the requirement for consent in adoption cases, particularly where the child has been in the care of approved carers who have become parental figures in their life. The court had to consider whether the established relationship between the child and the carers justified dispensing with the consent of the birth parents. Additionally, the court needed to assess the importance of maintaining contact with the birth family in mitigating the potential risks associated with identity issues in adoption.

The court found that it was in the child's best interests to dispense with the consent of the birth parents, allowing the adoption to proceed. This decision was based on the strong and established relationship the child had with the carers, who were the adoptive applicants. The court also noted that the adoption would promote the child's best interests and was preferable to any other care arrangement. Furthermore, the court recognised the importance of maintaining contact with the birth family to mitigate potential identity issues associated with adoption.

The court's orders included dispensing with the consent of the child's birth parents and permitting the adoption to proceed with the approved carers as the adoptive parents. The court also directed that the child's former surnames be included as middle names to preserve her identity. This decision underscores the importance of considering the child's best interests and the role of established relationships in adoption proceedings.

Orders