Adoption of Hogarth (No 2) - [2019] NSWSC 9

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of Hogarth (No 2) [2019] NSWSC 9
Hearing dates: 18, 19, 20 December 2017
Date of orders: 18 January 2019
Decision date: 18 January 2019
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
Adoption would promote best interests of child and is clearly preferable to any other action that can be taken by law, provided that appropriate arrangements are established for birth family contact, but proposed adoption plan is not proper in the circumstances, which precludes making an adoption order unless remedied.

Catchwords:
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 alternatives include restoration to birth parents, or parental responsibility order to carer – where child has established secure bond of attachment with adoptive applicant – where birth parents now have parenting capacity – respective advantages and disadvantages of restoration, adoption, parental responsibility to carer and parental responsibility to Minister – relative risks of severing bond of attachment with carer and adoption – held, risks of severing bond outweigh those of adoption – held, subject to appropriate arrangements for birth parent contact, 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.

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 – where plan provides inadequate opportunities for child to know and develop relationship with birth parents – held, plan not proper in the circumstances.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent – dispensing with consent – where adoptive applicant is approved carer 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 order so as to permit adoption order to be made.
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names – assumption of adoptive parent’s surname is a fundamental feature of adoption and a manifestation of its benefits – inclusion of former surname as a middle name is in child’s interests as means of preserving the child’s identity
Legislation Cited: (NSW) Adoption Act 2000, ss 8(1), (2), s 50, s 67(1)(d), s 90, s 101, s 126
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
Cases Cited: Adoption of AT [2015] NSWSC 1666
Adoption of EDH, JSH and KJH [2017] NSWSC 1861
Adoption of JLK and CRK [2017] NSWSC 7
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of PS

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.

Keep reading for free

Create a free CaseChat account to read Adoption of Hogarth (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 9
Decision Date: 18 January 2019

CaseChat Overview and Summary

The case of Adoption of Hogarth (No 2) involved a dispute over the adoption of a child, Hogarth, who had been in the care of an approved carer. The matter was before the Family Court of Australia. The primary issue was whether adoption by the carer was clearly preferable to any other order that could be made with respect to the child's care, including restoration to the birth parents or a parental responsibility order to the carer. A secondary issue was the adequacy of the adoption plan in providing opportunities for the child to know and develop a relationship with their birth parents.

The court found that adoption was clearly preferable to other orders due to the established secure bond of attachment between the child and the carer. The risks associated with severing this bond were considered to outweigh those of proceeding with the adoption. The court also highlighted that the child's best interests would be served by appropriate arrangements for contact with the birth parents. However, the adoption plan was deemed inadequate as it did not provide sufficient opportunities for the child to develop a relationship with their birth parents, which is crucial in mitigating identity issues associated with adoption. The court concluded that the adoption plan needed to be modified to better serve the child's interests. Additionally, the court made an order dispensing with the need for consent from the birth parents to allow the adoption to proceed, given that the adoptive applicant was already the approved carer and adoption would promote the child's best interests. The court also addressed the child's name, ruling that while the assumption of the adoptive parent's surname was a fundamental feature of adoption, including the former surname as a middle name was in the child's interests to preserve their identity.

Orders