Adoption of N - [2023] NSWSC 709

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of N [2023] NSWSC 709
Hearing dates: 31 March 2023. Further evidence received on 5 April 2023.
Date of orders: 6 April 2023
Decision date: 29 June 2023
Jurisdiction: Equity - Adoptions List
Before: Henry J
Decision:
Adoption order under the Adoption Act 2000 (NSW) made in relation to the child known as N.

Catchwords:
CHILD WELFARE — adoption — adoption of child relative from Ghana — whether Court has jurisdiction to make order under s 23 of the Adoption Act 2000 (NSW) — whether Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption applies — where child has resided in Australia since February 2020 — whether child lost habitual residence in Ghana — whether child is non-citizen child for purpose of s 31 of the Adoption Act 2000 (NSW) — where child is over 12 but less than 18 years old and has given sole consent — where birth parents and Head of Ghana Central Adoption Authority have given consent — whether requirements under Adoption Act 2000 (NSW) satisfied — whether adoption order is in best interests of child — adoption order made — change of name approved

Legislation Cited:
Adoption Act 2000 (NSW)
Adoption Regulation 2015 (NSW)
Adoption Regulations, 2018 (L.I. 2360)
Children’s Act, 1998 (Act 560)
Children’s (Amendment) Act, 2016 (Act 937)
Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth)
Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption
Immigration (Guardianship of Children) Act 1946 (Cth)

Cases Cited:
Adoption of R [2017] NSWSC 270
LK v Director General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9
Punter v Secretary for Justice as the New Zealand Central Authority [2004] NZLR 28
Re Adoption Application by KGC and TGC [2007] NZFLR 851
Re LC (Children) (Reunite International Child Abduction Centre Intervening) [2014] All ER (D) 62 (Jan); [2014] 2 WLR 124
Re WS (No 2) [2017] NSWSC 475
Re WS (No 3) [2017] NSWSC 1160

Category: Principal judgment
Parties: RM (First Plaintiff)
NL (Second Plaintiff)
Secretary, New South Wales Department of Communities and Justice (Intervenor)
Representation:
Counsel:
Dr C McConaghy (Plaintiffs)
Dr M Barnett SC (Intervenor)
Solicitors:
Freedman & Gopalan Solicitors (Plaintiffs)
Crown Solicitor’s Office (Intervenor)

File Number(s): 2022/274493
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW).

JUDGMENT

These reasons deal with an application by a married couple, RM and NL (Adoptive Parents), for the adoption of RM’s grandson, N, who was born in Ghana and is 14 years of age.
The Adoptive Parents are Australian citizens and reside in Sydney. They have provided care and financial support to N for many years. Since February 2020, N has lived with the Adoptive Parents in Australia having been granted various temporary visas.
N’s birth parents are alive and reside in Ghana, but are unable to care for N. They consent to the Adoptive Parents adopting N and…

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 N

Details

AGLC: Adoption of N [2023] NSWSC 709
Case: [2023] NSWSC 709
Decision Date: 29 June 2023

CaseChat Overview and Summary

In the Family Court of Australia, the case of Adoption of N involved a dispute over the adoption of a child from Ghana by relatives residing in Australia. The primary legal issue was whether the Court had jurisdiction to make an order under section 23 of the Adoption Act 2000 (NSW), considering the applicability of the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. The Court was required to determine if the child had lost their habitual residence in Ghana, which would render them a non-citizen child for the purpose of section 31 of the Adoption Act. Additionally, the Court needed to assess whether the adoption was in the best interests of the child, who was over 12 but less than 18 years old and had provided sole consent, with both birth parents and the Head of Ghana Central Adoption Authority having also consented.

The Court found that the child had indeed lost their habitual residence in Ghana and was therefore considered a non-citizen child under the Act. The Court also determined that the requirements of the Adoption Act 2000 (NSW) were satisfied, including the need for the adoption to be in the child's best interests. The Court examined the evidence and submissions from all parties, including the child's sole consent and the consents of the birth parents and the Head of Ghana Central Adoption Authority. The Court concluded that the adoption order was in the best interests of the child and approved the change of name as part of the adoption process. Ultimately, the Court made the adoption order, allowing the relatives in Australia to legally adopt the child from Ghana.

Orders