Adoption of NV - [2015] NSWSC 2135

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of NV [2015] NSWSC 2135
Hearing dates: 29 September 2015
Date of orders: 29 September 2015
Decision date: 29 September 2015
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
Parental responsibility order made.

Catchwords: FAMILY LAW AND CHILD WELFARE – parental responsibility – application for interim order allocating parental responsibility to Secretary – (NSW) Adoption Act 2000, s 84(2) – where no application for adoption pending – whether jurisdiction for interim order under s 84(2) requires pending application for adoption order – whether birth mother should be joined to proceedings.
Legislation Cited: (NSW) Adoption Act 2000, s 75(1), s 75(4), s 84, s 84(1), 84(2), s 84(4)
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 152(4)
Cases Cited: Director General, Department of Family and Community Services; Re AP [2013] NSWSC 562
Category: Procedural and other rulings
Parties: The Secretary, NSW Department of Family and Community Services (plaintiff)
NV (child)
Representation:
Counsel:
M Neville (plaintiff)
Solicitors:
NSW Crown Solicitor’s Office (plaintiff)

File Number(s): A105/2015

Judgment (ex tempore)

HIS HONOUR: The child NV, the subject of these proceedings, was born on 27 March 2015, the son of MV and a presently unknown father. From such evidence as presently available, there does not appear much likelihood that the father will ever be identified, although it is not impossible that he might be.
MV is married, but it is clearly established that her husband is not the father of the child. At various times MV has wished to have NV adopted, but her attitude in that respect has been equivocal. MV did, on 26 June 2015, after registered counselling, execute an instrument of general consent to NV's adoption. Subsequently, however, she expressed wavering views, and on the last day of the revocation period orally indicated to a departmental officer that she wished to revoke her consent. Although no written notice of revocation was given, the departmental officer indicated that the oral revocation would be accepted. It is not necessary at present to resolve the legal consequences, as the Court would not likely make an adoption order over the mother's opposition in those circumstances.
Since then, however, the mother has again indicated that she wishes for NV to be adopted. There is, however, doubt – both by reason of the mother's mental health, as well as by the circumstances of the oral revocation – as to whether there is any valid consent on foot.
Except for a couple of days following the oral revocation during which NV lived with the mother and her husband, he has otherwise resided with an authorised carer, pursuant to temporary care agreements, the latest of which will expire in a few days’ time on 4 October 2015.
By operation of (NSW) Children and Young Persons (Care and Protection) Act 1998, s 152(4), it will not be possible to make any further temporary care arrangement having any effect after that date. At least at present, the mother –…

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 2135
Decision Date: 29 September 2015

CaseChat Overview and Summary

The parties involved in this case were the Secretary of the Department of Family and Community Services and the child NV. The dispute was about the allocation of parental responsibility for the child, NV, and whether an interim order could be made under section 84(2) of the Adoption Act 2000 (NSW) to allocate parental responsibility to the Secretary. This case arose before the Family Court of Australia, which was tasked with determining the legal issues at hand.

The legal issues the court needed to address were whether the jurisdiction to make an interim order under section 84(2) of the Adoption Act 2000 (NSW) required a pending application for an adoption order and whether the birth mother of the child should be joined to the proceedings. These questions were central to the court's determination of the appropriate course of action for the welfare of the child.

The Family Court of Australia examined the statutory provisions and found that section 84(2) of the Adoption Act 2000 (NSW) did not necessitate a pending adoption application for the court to exercise its jurisdiction to make an interim order allocating parental responsibility. The court reasoned that the provision aimed to provide stability and certainty for children in situations where immediate decisions about their care and welfare were necessary. Additionally, the court held that the birth mother should not be joined to the proceedings as her presence was not required for the court to make a determination in the best interests of the child. The court's decision was based on the principle of prioritising the welfare of the child and ensuring that the court could act swiftly to allocate parental responsibility when necessary.

The final orders of the court were that an interim order be made under section 84(2) of the Adoption Act 2000 (NSW), allocating parental responsibility for the child, NV, to the Secretary of the Department of Family and Community Services. The court also determined that the birth mother of the child need not be joined to the proceedings for the court to make this decision.

Orders