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Adoption of Ng (No 2)

Adoption of Ng (No 2)

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Case Copied 28 May 2014 57 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Adoption of NG (No 2) [2014] NSWSC 680
Hearing dates: 13, 14, 15 May 2014
Decision date: 28 May 2014
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Consent dispense orders made; adoption order made; adoption plans registered.

Catchwords: FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether adoption order clearly preferable to any other order that could be made with respect to care of child - where no realistic prospect of restoration - where preserving possibility of restoration would contravene spirit of adoption principle (e1) - where due to history of prior placement instability child has accentuated needs of security and permanency - where adoption would serve child's identity needs better than any potential alternative as it would confirm child's identity with psychological family while preserving opportunity to know birth parents and to understand why does not live with them - where adoption plans make inadequate provision for birth parent contact - held, that making of an adoption order, in conjunction with orders securing birth parent contact, is clearly preferable to any other order that could be made with respect to care of child
FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether consent of birth parents should be dispensed with - as making adoption order would promote child's welfare, necessarily also in child's best interests to make consent dispense order so as to allow the adoption order to be made
Legislation Cited: (Cth) Family Law Act 1975, s 64B
(NSW) Adoption Act 2000, s 8(1), s 8(2), 23(2), s 24(1)(a), s 28, s 50, s 59, s 67(1)(d), s 72, s 87, s 88, s 90(1), s 90(2), s 90(3), s 91, s 101.
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
Cases Cited: Adoption of BS (No 3) [2013] NSWSC 2033
Adoption of SRB, CJB and RDB [2014] NSWSC 138
Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595
Re D; Application of A [2006] NSWSC 1056
Re TVK [2012] NSWSC 1629
Category: Principal judgment
Parties: Secretary, Department of Family and Community Services (plaintiff)
MLC (defendant)
Representation: Counsel:
Ms E Lawson (plaintiff)
Ms E Pender (defendant)
Solicitors:
Crown Solicitor's Office (plaintiff)
Winn Legal (defendant)

File Number(s): A122/2013

Judgment

N, the child the subject of the proceedings, was born on 15 November 2007, the child of the defendant MLC and her then partner CG. In these proceedings, the Secretary as plaintiff seeks an order for his adoption by the adoptive applicants JAB and REP. For the sake of clarity, while preserving anonymity, albeit at the risk of impersonality, I shall generally refer to the protagonists as the child, the birth parents, and the applicants, where the context requires, I refer to them by their initials.

Background:

The child was assumed into care on 16 November 2007 (the day following his birth) on account…

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: [2014] NSWSC 680
Decision Date: 28 May 2014

CaseChat Overview and Summary

The case of Adoption of Ng (No 2) involved a dispute concerning the adoption of a child, where the primary issue was whether an adoption order should be made in the child's best interests. The court had to decide if the adoption order was clearly preferable to any other order that could be made regarding the child's care. The case was heard in the Family Court of Australia.

The central legal issue was whether making an adoption order, along with orders securing contact with the birth parents, was clearly preferable to any other order that could be made with respect to the child's care. Additionally, the court needed to determine whether the consent of the birth parents should be dispensed with if making an adoption order would promote the child's welfare. The court's reasoning focused on the child's need for security and permanency, given the history of placement instability and the child's identity needs.

The court held that making an adoption order, in conjunction with orders securing contact with the birth parents, was clearly preferable to any other order that could be made with respect to the child's care. The court found that adoption would serve the child's identity needs better than any potential alternative as it would confirm the child's identity with the psychological family while preserving the opportunity to know the birth parents and to understand why they do not live with them. Furthermore, the court determined that dispensing with the consent of the birth parents was necessary because making an adoption order would promote the child's welfare and was in the child's best interests.

Orders