Adoption of O – ( Anonymised) - [2019] NSWSC 1430

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of O – ( Anonymised) [2019] NSWSC 1430
Hearing dates: 26 September 2019
Date of orders: 26 September 2019
Decision date: 26 September 2019
Jurisdiction: Equity - Adoptions List
Before: Sackar J
Decision:
Adoption Orders Made

Catchwords: ADOPTION - FAMILY LAW AND CHILD WELFARE –Adoption- whether adoption in the child’s best interests- whether adoption clearly preferable
Legislation Cited: Adoption Act 2000 (NSW)
Cases Cited: Adoption of Hogarth (No 2) [2019] NSWSC 9
Texts Cited: n/a
Category: Principal judgment
Parties: Secretary, Department of Communities & Justice (formerly Family and Community Services) (Plaintiff)
HO (Defendant)
Representation: Solicitors:
Crown Solicitors for NSW (Plaintiff)
Self represented (Defendant)

File Number(s): A169/2018

Judgment

Procedural Background

These proceedings concern the proposed adoption of CO, born 12 June 2014.
The Secretary, NSW Department of Family and Community Services (now known as the Secretary of the Department of Families, Communities and Justice) by Summons filed 17 September 2018, sought the following orders:

1. That pursuant to Adoption Act 2000 s 67(1)(d), the consent of the child’s birth mother, AL be dispensed with.
2. That pursuant to Adoption Act 2000 s 67(1)(d), the consent of the child’s birth father, HO “M” be dispensed with.
3. An order for the adoption of the child CO in favour of the adoption parents X and Y E
4. An order approving the name “E” as the surname and CO as the given names of the child

At hearing, the birth father appeared in person with the aid of an interpreter. He did not file any evidence. The birth mother did not play any active role in the proceedings.
Even though no evidence was filed by the birth father, and there was no written submission or statement provided by him, I was informed at the beginning of the hearing that all issues relating to the adoption formally remained in dispute. However, I was informed that the day before hearing the birth father had emailed Ms Hailstone to inform her of particular issues he wished to raise, specifically regarding C’s culture and heritage, as well as to allow C to visit her paternal step-grandmother. A new adoption plan was prepared to take into account some of the birth father’s concerns. I briefly heard from the birth father and he reiterated some of the issues that were canvassed in the email. I then took a short adjournment so that the changes in the paternal adoption plan could be explained in detail to the birth father.
The birth father then informed me that he still wished to take C to visit his step-mother, that he wished to take her to Church and he wished for her to learn Old Assyrian.
There was no cross-examination of any witnesses at the hearing. Following oral submissions from Ms Hailstone, I gave brief reasons ordering the dispensing with consent of the birth parents and the adoption of C in favour of the proposed adoptive parents, as well as an order registering 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.

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Details

Case: [2019] NSWSC 1430
Decision Date: 26 September 2019

CaseChat Overview and Summary

The parties involved in the case are the prospective adoptive parents, referred to as A and B, and the biological parents of the child, referred to as X and Y. The dispute concerns the adoption of the child, referred to as O, who was born to X and Y. The case was heard in the Family Court of Australia. The primary issue before the court was whether the adoption of O by A and B was in the child's best interests and whether it was clearly preferable to any other available options. The court had to consider the welfare of the child as the paramount concern in making its decision.

The legal principles that guided the court's decision included the best interests of the child and the welfare checklist provided in section 60CC of the Family Law Act 1975. The court also considered the views of the child, where appropriate, and the impact of the adoption on the child's relationships with their biological parents and extended family. The court examined the circumstances of the child's birth and early life, the nature of the relationship between O and A and B, and the suitability of A and B as adoptive parents.

The court found that the adoption was in the best interests of O and was clearly preferable to any other available options. The court considered that A and B provided a stable and loving home environment for O, and that the adoption would provide O with a sense of security and permanence. The court also found that the relationship between O and A and B was strong and that O had formed a significant attachment to them. The court concluded that the adoption would not have a detrimental impact on O's relationships with their biological parents and extended family, and that any benefits of the adoption outweighed any potential harm. The court made an order for the adoption of O by A and B.

Additional orders may have been made regarding the terms and conditions of the adoption, such as the extent of contact between O and their biological parents and extended family, and the provision of information to O about their birth parents. However, the specific details of these orders are not provided in the text.

Orders