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Adoption of KH

Adoption of KH

Case [2015] NSWSC 274 3 February 2015

Adoption

Child Welfare

Best Interests of the Child

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Adoption of KH [2015] NSWSC 274
Hearing dates: 3 February 2015
Date of orders: 03 February 2015
Decision date: 03 February 2015
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Declaration of paternity; amendment to birth certificate to include birth father ordered; consent dispense orders made; adoption order made; adoption plans registered.

Catchwords:
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – where no realistic prospect of restoration of child to care of birth parents – where preserving the possibility of restoration would thus contravene the spirit of adoption principle (e1) – where proposed adoptive parents in a better position to facilitate contact with birth parents than the Department – where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them – held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child.
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether consent of birth parents ought to be dispensed with – as the making of an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made.
Legislation Cited: (NSW) Adoption Act 2000, s 8(1), s 8(1)(e1), s 8(2), s 23(2)(a), s 23(2)(b), s 24(1)(a), s 28(1)(a), s 28(1)(b), s 28(3), s 28(4), s 50(3), s 59, s 67(1)(d), s 87, s 88, s 90(3), s 91, s 91(1)
(NSW) Births, Deaths and Marriages Registration Act 1995, s 19(2)
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
(NSW) Status of Children Act 1996, s 21(2)
Cases Cited: Adoption of BS (No 3) [2013] NSWSC 2033
Adoption of NG (No 2) [2014] NSWSC 680
Director-General v Department of Community Services and D [2007] NSWSC 762; (2007) 37 FamLR 595
Category: Principal judgment
Parties: Secretary, NSW Department of Family and Community Services (plaintiff)
M (first defendant)
D (second defendant)
Representation:
Counsel:
T Stevens (crown)
M Fallon (first defendant)
D (in person) (second defendant)
Solicitors:
Crown Solicitor’s Office (crown)
Rowley and Associates (first defendant)

File Number(s): A42/2014

Judgment (ex tempore)

HIS HONOUR: K, the child the subject of these proceedings, was born on 11 December 2007, the child of the first defendant M and the second defendant D, who had been in an occasional relationship but did not cohabit. In these proceedings, the Secretary as plaintiff seeks a declaration that the…

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 KH

Details

AGLC: Adoption of KH [2015] NSWSC 274
Case: [2015] NSWSC 274
Decision Date: 03 February 2015

CaseChat Overview and Summary

The case of Adoption of KH involved the consideration of an adoption application concerning a child, KH, who was in the care of the Department of Human Services. The primary legal issue before the court was whether making an adoption order was clearly preferable to any other order that could be made with respect to the care of the child. This question arose as there was no realistic prospect of restoring KH to the care of his birth parents, and preserving the possibility of restoration would contravene the spirit of the adoption principle (e1). Another key issue was whether the court should dispense with the consent of the birth parents.

The court examined the welfare and best interests of the child, KH, in light of the principle that adoption should confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and understand why he does not live with them. The court found that the proposed adoptive parents were in a better position to facilitate contact with the birth parents than the Department, and that adoption would serve KH's identity needs better than any potential alternative. Therefore, the court concluded that making an adoption order was clearly preferable to any other order that could be made with respect to the care of the child.

Furthermore, the court determined that since making an adoption order would promote the child's welfare and be in his best interests, it was necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made. This decision reflects the court's commitment to prioritising the welfare and best interests of the child in adoption proceedings. The final orders included the granting of the adoption order and the dispense of the consent of the birth parents.

Orders