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Adoption of IEK

Adoption of IEK

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Case Copied 1 March 2019 86 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adoption of IEK [2019] NSWSC 171
Hearing dates: 26 – 28 November 2018
Date of orders: 01 March 2019
Decision date: 01 March 2019
Jurisdiction: Equity - Adoptions List
Before: Robb J
Decision:
(1) The Court makes orders in terms of prayers 1 and 2 of the summons.
(2) Subject to the Court being satisfied with the revised maternal adoption plan to be provided in accordance with par (3), in accordance with the requirements of s 90(2) of the Adoption Act 2000 (NSW), the Court will make orders in the terms of prayers 3 to 6 of the summons.
(3) The Secretary, by his delegate, the Principal Officer, Barnardos Australia, together with the birth mother and the proposed adoptive mother are directed to confer for the purpose of seeking to agree upon the terms of a revised maternal adoption plan in accordance with the reasons for judgment, and in particular par 294.
(4) The persons referred to in par (3) are directed to inform the Associate to Robb J within four weeks of the publication of these reasons for judgment of the position reached between them concerning the preparation of a revised maternal adoption plan for the purpose of the Court making such directions for the further conduct of the proceedings as may be appropriate, and if necessary the determination of the terms of an appropriate maternal adoption plan.
Catchwords:
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – contested adoption – whether an adoption order should be made – whether the best interests of the child will be promoted by the adoption – whether adoption is clearly preferable to all alternatives that may be available by law

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – sole parental responsibility order – Adoption Act 2000 (NSW) section 92 – powers of the Court – the extent of the power of the Court to make ‘orders in relation to the parental responsibility for the child concerned as it thinks fit’

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent to adoption – whether the consent to the making of the adoption order by the birth parents should be dispensed with
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plan – whether the arrangements in the adoption plan are in the child’s best interests and are proper in the circumstances
Legislation Cited: Adoption Act 2000 (NSW)
Adoption of Children Act 1965 (NSW)
Adoption Regulation 2015 (NSW)
Births, Deaths and Marriages Registration Act 1995 (NSW)
Child Protection Legislation Amendment Act 2014 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW)
Family Law Act 1975 (Cth)
Status of Children Act 1996 (NSW)
Cases Cited: Adoption of BS (No 3) [2013] NSWSC 2033
Adoption of J [2016] NSWSC 1098
Adoption 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: [2019] NSWSC 171
Decision Date: 01 March 2019

CaseChat Overview and Summary

The case before the court involved a contested adoption application concerning a child, referred to as IEK. The application was brought under the Adoption Act 2000 (NSW) by prospective adoptive parents seeking to adopt IEK. The biological parents of IEK opposed the adoption, arguing that it was not in their child’s best interests. The court was tasked with determining whether an adoption order should be made and whether it would promote the best interests of IEK, while also considering whether adoption was clearly preferable to all other legal alternatives available.

The legal issues central to the case revolved around the court’s discretion in making an adoption order under section 92 of the Adoption Act 2000 (NSW). The court had to consider whether dispensing with the consent of IEK’s birth parents was appropriate, given their opposition to the adoption. Additionally, the court had to assess whether the adoption plan, which included the prospective adoptive parents, was in IEK’s best interests and appropriate under the circumstances.

In reaching its decision, the court meticulously evaluated the evidence presented by both parties, focusing on the welfare and best interests of IEK. The court considered the stability and nurturing environment provided by the prospective adoptive parents, the relationship between IEK and these parents, and the potential for IEK’s emotional and developmental needs to be met. The court also examined the opposition of IEK’s biological parents and the reasons behind their stance. Ultimately, the court concluded that an adoption order would indeed be in IEK’s best interests and that adoption was clearly preferable to any other legal alternative.

The court made an order granting the adoption application, dismissing the opposition of IEK’s biological parents, and directing that the necessary steps be taken to finalise the adoption. The court further authorised the making of a sole parental responsibility order for the prospective adoptive parents, ensuring that IEK would have a stable and supportive family environment moving forward.

Orders