Adoption of LJK - [2015] NSWSC 2105

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of LJK [2015] NSWSC 2105
Hearing dates: In chambers
Date of orders: 22 December 2015
Decision date: 22 December 2015
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
Adoption order made.

Catchwords: FAMILY LAW AND CHILD WELFARE – 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 – consent dispense order – application that birth father’s consent be dispensed with – whether application made by ‘authorised carers’ – where adoptive father is child’s step-father – where consent dispense order ultimately unnecessary as birth father’s consent given – expiry of consent revocation period without notice of expiry being given to birth father – (NSW) Adoption Act 2000, s 74 – whether s 74 applies to adoptions in which Secretary is not involved – whether absence of consent renders consent invalid.
Legislation Cited: (CTH) Family Law Act 1975, s 4, s 60G, s 61B, s 61C(1)
(NSW) Adoption Act 2000, s 23, s 24, s 28, s 30, s 53, 54(1)(b), s 58, s 59, s 67(1)(a), (c), (d), s 71, s 73, s 74, s 87, s 88
Cases Cited: Application of MKM & RDM [2010] NSWSC 1189
Category: Principal judgment
Parties: RLMK and DJK (plaintiffs)
Representation:
Counsel:
Solicitors:
Robert J McCarthy & Co (plaintiffs)

File Number(s): A168/2012

Judgment

HIS HONOUR: This adoption application, initiated by summons filed by the proposed adoptive parents R and D as plaintiffs on 18 October 2012, has an unfortunate history, not least because there has never been any serious doubt that it is in the interests of the child L that an adoption order be made in favour of the plaintiffs. However, the manifest desirability of an adoption order does not permit one to disregard the formal requirements, which the legislature has put in place to ensure that the rights of all interested persons – including birth parents – are addressed, and that the facility of adoption is not abused. This application illustrates the unfortunate delay that can arise from not attending to those requirements, and confirms that the grave step of dispensing with a birth parent’s consent is not lightly to be taken. Nonetheless, it may be hoped that the result will, as well as securing for L the benefit of adoption by two parents who are clearly devoted to him, also – through the ultimate engagement of his birth father A in the process – assist him to know and have a relationship with his birth father and his origins, which form an indispensable element of his identity, and knowledge of which will help him to avoid the identity issues which sometimes beset adopted children who do not know their birth parents, or one of them.
L was born on 12 April 2006, the son of R and A; although they were not married, L’s birth was registered with A’s surname. R and A…

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: [2015] NSWSC 2105
Decision Date: 22 December 2015

CaseChat Overview and Summary

The matter before the court involved the adoption of a child, LJK, and the legal issues surrounding the application for a consent dispense order. The applicants were the child's adoptive parents, who were also the child's step-parents. The birth father of the child had previously consented to the adoption but later revoked his consent. The applicants sought a consent dispense order to proceed with the adoption despite the revocation of the birth father's consent. The court was required to determine whether the making of an adoption order was clearly preferable to any other order that could be made concerning the care of the child. Furthermore, the court had to consider whether the application for a consent dispense order was made by the child's 'authorised carers' and if the absence of consent rendered it invalid.

The court considered the relevant provisions of the Adoption Act 2000, specifically section 74, which deals with the revocation of consent. The applicants argued that section 74 did not apply to adoptions in which the Secretary was not involved, and the absence of consent rendered the birth father's consent invalid. The court examined the meaning of 'authorised carers' and whether the applicants fell within this category. Ultimately, the court found that the applicants were indeed the child's authorised carers and that the absence of notice to the birth father regarding the expiry of the revocation period did not affect the validity of his consent. However, the birth father subsequently provided his consent, rendering the consent dispense order unnecessary.

The court concluded that the making of an adoption order was clearly preferable to any other order that could be made concerning the care of the child, LJK. The applicants were deemed to be the child's authorised carers, and the absence of consent did not render the birth father's consent invalid. The court found that the applicants had satisfied the requirements of the Adoption Act 2000, and the adoption order was made in the best interests of the child.

The final orders of the court included granting the adoption order and dismissing the application for a consent dispense order as it was no longer necessary. The court also noted that the absence of notice to the birth father regarding the expiry of the revocation period did not affect the validity of his consent. The adoption of LJK was finalised, and the applicants were granted parental responsibility for the child.

Orders