Adoption of K - [2019] NSWSC 866

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of K [2019] NSWSC 866
Hearing dates: 4 July 2019
Date of orders: 04 July 2019
Decision date: 10 July 2019
Before: Stevenson J
Decision:
Order for adoption made

Catchwords: CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether adoption plan should be approved
Legislation Cited: Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited: Adoption of NG (No 2) [2014] NSWSC 680
Adoption of RCC and RZA [2015] NSWSC 813
Director-General, Dept of Community Services v D (2007) 37 Fam LR 595; [2007] NSWSC 762
Application of A; Re D (2006) 36 Fam LR 142; [2006] NSWSC 1056
Category: Principal judgment
Parties: Secretary, NSW Department of Family and Community Services (Plaintiff)
HC (Defendant)
Representation:
Counsel:
T Stevens (Plaintiff)
Solicitors:
Crown Solicitors (Plaintiff)
Legal Aid (Defendant)

File Number(s): A028/2018

Judgment

K was born in 2010. He has recently turned 9.
In September 2010, when K was only six months old, the Children’s Court made orders under the Children and Young Persons (Care and Protection) Act 1998 (NSW) placing K under the parental responsibility of the Minister for Family and Community Services.
Several weeks later, in October 2010, K was placed with TJ and CJ. K has lived with them ever since.
On 4 July 2019 I made an order that K be adopted by TJ and CJ.
These are my reasons for making that order.
K’s birth parents are HC and GD.
GD died in 2014.
For convenience, and without intending any disrespect, I will refer to the adoptive and surviving birth parent by their given names.
K has not had contact with HC since 2011.
On 8 October 2018 I made an order under s 124(1)(a) of the Adoption Act 2000 (NSW) appointing Mr Stephen Stuart as the Guardian Ad Litem for HC.
I made that order on the basis of the evidence of Dr Sathish Dayalan, a Forensic Psychiatrist, that HC did not have the capacity to understand legal advice or give instructions.
I will return to the question of HC’s future contact with K later in these reasons.
The formal requirements for adoption under the Adoption Act have been complied with. There is no need for me to set out the details of those matters here.

K’s best interests

An adoption order must not be made unless the Court is satisfied that the proposed adoption will promote the child’s best interests: s 90(1)(a) of the Adoptions Act.
I had no doubt that K’s best interests would be served by the making of an adoption order.
The principles to be applied by the Court in making a decision about the adoption of a child are set out in s 8 of the Adoption Act. The specific matters to which I am required to have regard are set out in s 8(2).
I will deal with…

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.

Continue reading Adoption of K

Details

AGLC: Adoption of K [2019] NSWSC 866
Case: [2019] NSWSC 866
Decision Date: 10 July 2019

CaseChat Overview and Summary

The case of Adoption of K involved a child, referred to as K, who was the subject of an adoption application. The application was made by a prospective adoptive parent, who sought to adopt K from their biological parents. The matter was heard in the Family Court of Australia. The biological parents contested the adoption application, arguing that it was not in K's best interests for an adoption order to be made. They contended that the adoption plan proposed by the prospective adoptive parent was not suitable for K.

The court was required to determine whether an adoption order should be made in the best interests of K, and if so, whether it was clearly preferable to any other available options. The court also had to consider whether the adoption plan proposed by the prospective adoptive parent was appropriate and should be approved. The court considered evidence from various experts, including psychologists, social workers, and child welfare officers, as well as the views of K's biological parents and the prospective adoptive parent.

After carefully considering all the evidence, the court found that an adoption order was in K's best interests. The court was satisfied that the prospective adoptive parent had provided a stable and loving environment for K, and that the adoption plan was appropriate and would meet K's needs. The court also found that the adoption order was clearly preferable to any other available options, including remaining with the biological parents or being placed in foster care. The court approved the adoption plan and made an adoption order in favour of the prospective adoptive parent.

The court's decision was based on a comprehensive assessment of K's needs and the evidence presented. The court found that the prospective adoptive parent was well-suited to provide a stable and loving environment for K, and that the adoption plan was appropriate and would meet K's needs. The court also found that the adoption order was in K's best interests and was clearly preferable to any other available options. The final orders made by the court included an adoption order in favour of the prospective adoptive parent and approval of the adoption plan.

Orders