Adoption of Hogarth - [2017] NSWSC 1861

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of Hogarth [2017] NSWSC 1861
Hearing dates: 23, 25 May 2017
Date of orders: 26 May 2017
Decision date: 26 May 2017
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
Consent dispense orders made; adoption orders made; adoption plan registered.

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

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether adoption clearly preferable to any other order that could be made with respect to care of children – where restoration to birth parents not proposed – where placement with applicants well-established and beneficial – where birth parents have remained committed to children – where limited relationship with birth siblings – where children identify with proposed adoptive family – where adoptive parents are committed to supporting birth parent contact – held, making of the adoption order clearly preferable to any other order that could be made with respect to care of children.
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plans – registration – where provisions are agreed between parties – held, plan registered.
Legislation Cited: (NSW) Adoption Act 2000, s 50(3), 67(1)(d)
Cases Cited: Adoption of JLK and CRK [2017] NSWSC 7
Adoption of SRB, CJB and RDB [2014] NSWSC 138
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 judgment
Parties: Secretary, Department of Family and Community Services (plaintiff)
Felicity Evelyn Hogarth (defendant)
Jackson Richard Hewitson (defendant)
Aiden James Cotter (defendant)
Representation:
Counsel:
Ms M Neville
Ms V Willoughby (solicitor)
Solicitors:
Crown Solicitor’s Office (plaintiff)
JR Lawyers (defendant)

File Number(s): A23/2016

Judgment (ex tempore)

HIS HONOUR: By summons filed on 15 March 2016 and amended on 12 May 2016 the Secretary of the Department of Family and Community Services by his delegate, the principal officer of Barnardos Australia, seeks orders in respect of…

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: [2017] NSWSC 1861
Decision Date: 26 May 2017

CaseChat Overview and Summary

The case of Adoption of Hogarth involved the application for an adoption order under the Family Law Act 1975 (Cth). The applicants sought to adopt two children, Hogarth and his sister, who had been in the care of approved carers for some time. The children’s birth parents, who had remained committed to the children, did not consent to the adoption. The court was required to decide whether to dispense with the consent of the birth parents and whether adoption was clearly preferable to any other order that could be made with respect to the care of the children.

The legal issues centred around the statutory provisions governing adoption and the best interests of the children. The applicants argued that the consent of the birth parents should be dispensed with as the children had an established relationship with the carers and it was in their best interests to be adopted by the applicants. The court had to consider the welfare of the children, the relationship between the children and their birth parents, and the benefits of the proposed adoptive placement. The applicants also sought to have an adoption plan registered, which required the agreement of the parties involved.

The court found that dispensing with the consent of the birth parents was in the best interests of the children, given their well-established and beneficial relationship with the applicants. The court noted that the children identified with the proposed adoptive family and that the adoptive parents were committed to supporting ongoing contact with the birth parents. The court also concluded that adoption was clearly preferable to any other order that could be made with respect to the care of the children, given the circumstances of the case. The court subsequently registered the adoption plan as the provisions had been agreed between the parties. The final orders included the dispensing of the consent of the birth parents and the making of the adoption order.

Orders