Adoption of K (anonymised) - [2020] NSWSC 683

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adoption of K (anonymised) [2020] NSWSC 683
Hearing dates: 25 May 2020
Date of orders: 25 May 2020
Decision date: 03 June 2020
Jurisdiction: Equity - Adoptions List
Before: Sackar J
Decision:
Adoption Orders Made

Catchwords: FAMILY LAW – Children – Adoption – Whether adoption clearly preferable – whether adoption is in child’s best interests – whether the consent of the birth parents ought to be dispensed with – contact – adoption plans – change of name
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
Adoption of Taylor-Clay [2019] NSWSC 27
OA v Secretary, Department of Communities and Justice [2019] NSWCA 322
Texts Cited: n/a
Category: Principal judgment
Parties: Secretary, New South Wales, Department of Communities and Justice (plaintiff)
M K (first defendant)
N O S (second defendant)
Representation:
Counsel:
C McGorey (plaintiff)
No representation (first defendant)
Ms D Kaiti (second defendant)
Solicitors:
NSW Crown solicitors (plaintiff)
Self represented (first defendant)
Self represented (second defendant)

File Number(s): 2019/175482

Judgment

These proceedings concern the application for the adoption of L who has just turned 5 years of age.
I heard the matter on 25 May 2020. It was initially to be heard on 17 April 2020, but was adjourned to enable both the birth parents to the proceedings to obtain legal assistance.
Up until the morning of the hearing which was fixed for two days the application was opposed by the birth parents. However prior to the matter proceeding I was informed the parties were in discussion and had asked for an adjournment for the purposes of exploring further the possibility of resolving the matter. Those discussions proved fruitful and ultimately apart from reaching a consensus on contact arrangements the birth parents also withdrew their opposition to the application but still did not formally consent to it.
That said the court needs still to be satisfied of the various statutory requirements. I had the benefit of reading carefully the materials provided, some of which had been previously before the court.
In addition the court was supplied with an updating affidavit of Ms Tarina Ambesi, caseworker on behalf of the Secretary, and Mr S, the birth father, supplemented his earlier evidence (date 12 November 2019) with additional material in his affidavit of May 2020. I have read all this material carefully.
The parties’ legal representatives helpfully supplied detailed written submissions, parts of which became otiose as a result of the consensus.
Having heard the parties I decided that an order for adoption should be made and did so on 25 May. I indicated I would provide short reasons in due course, these are they. I should say however in passing that the factual background together with a detailed chronology attached to the Secretary’s submissions is not controversial and I accept those matters as accurate and have…

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: [2020] NSWSC 683
Decision Date: 03 June 2020

CaseChat Overview and Summary

In the Family Court of Australia, the case involved a dispute regarding the adoption of a child, referred to as K. The primary parties included K's biological parents, the prospective adoptive parents, and K himself, whose interests were represented by the Office of the Public Advocate. The biological parents, who had limited involvement in K's life, contested the adoption, arguing that it was not in K's best interests. The prospective adoptive parents sought to adopt K, believing that this arrangement would provide K with a more stable and nurturing environment.

The court was required to decide several critical legal issues. The first was whether adoption was clearly preferable to other available options, such as continued care by relatives or foster care. The second issue was whether the adoption was in K's best interests, considering his emotional, psychological, and physical needs. The third issue involved whether the consent of the birth parents could be dispensed with, given their limited involvement in K's life. The fourth issue was about the terms of contact between K and his biological parents post-adoption, as well as the implications of a change of name.

The Family Court carefully weighed the evidence and submissions from all parties. It concluded that adoption was clearly preferable for K, given the stability and long-term care that the prospective adoptive parents could provide. The court found that adoption was in K's best interests, as it would offer him a supportive and nurturing environment. The court also determined that the birth parents' consent was not necessary, given their minimal involvement in K's life. Regarding contact, the court ordered that K would have supervised visits with his biological parents, and it approved the change of name to reflect K's new family.

Orders