Adoption of PS - [2015] NSWSC 2159

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adoption of PS [2015] NSWSC 2159
Hearing dates: 30 November, 1, 2 December 2015
Date of orders: 03 December 2015
Decision date: 03 December 2015
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
Adoption order made; amended adoption plan to be registered.

Catchwords: FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – 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 – where child has given consent to adoption – weight to be ascribed to child’s consent – where child settled in placement with proposed adoptive parent and has developed familial and psychological ties with adoptive parent – where child has made significant progress while in placement with adoptive parent – where birth mother’s mental illness compromises parenting capacity – where no realistic prospect of restoration of child to care of birth parents – suitability of proposed adoptive parent – whether proposed adoptive parent supportive of birth mother contact – where supervision of contact by adoptive parent objected to by birth mother – registration of adoption plan – where amendments made to adoption plan during course of hearing – whether adoption plan appropriate and suitable to child’s needs and parties understand and freely enter into it - where preserving the possibility of restoration would contravene the spirit of adoption principle (e1) – where not making an adoption order would compromise child’s emotional and psychological development – where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them – whether proposed name change in best interests of child – where changing last name would reinforce child’s membership of adoptive parent’s family.
Legislation Cited: (NSW) Adoption Act 2000, s 8(1), s 8(2), s 23(2), s 24(1), s 27(1), s 27(2), s 27(3), s 50, s 50(3), s 54(1), s 54(2), s 54(3), s 55, s 61(3), s 63, s 90(3), s 91, s 126
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
(NSW) Uniform Civil Procedure Rules 2005
Cases Cited: Adoption of SRB, CJB and RDB [2014] NSWSC 138
Application of A – re D [2006] NSWSC 1056
Director-General, Department of Community & Services v D [2007] NSWSC 762; (2007) 37 FLR 595
Director General Department of Family & Community Services v GKD [2011] NSWSC 1637
Texts Cited: The Honourable Justice PLG Brereton AM RFD, “Aspects of Domestic and International Law and Practice in Adoptions", 16th National Family Law Conference, 8 October 2014
Category: Principal judgment
Parties: Secretary, New South Wales Department of Family and Community Services (plaintiff)
PS (child)
TLS (defendant mother)
DS (natural father)
Representation:
Counsel:
M Neville (plaintiff)
S Leis (defendant mother)
Solicitors:
Crown Solicitor (plaintiff)
Tony Cullinan…

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 PS

Details

AGLC: Adoption of PS [2015] NSWSC 2159
Case: [2015] NSWSC 2159
Decision Date: 03 December 2015

CaseChat Overview and Summary

The matter before the court involved an application for an adoption order in relation to a child known as PS, who had been in the care of the Department of Human Services since birth. The child had been placed with the proposed adoptive parent, who sought to adopt PS. The court was required to determine whether making an adoption order was clearly preferable to any other order that could be made regarding the care of PS. The court needed to weigh various factors, including the child's consent, the child's progress while in placement with the adoptive parent, the birth mother's mental health issues, and the suitability of the proposed adoptive parent.

The court considered the weight to be ascribed to PS's consent to the adoption, particularly given that PS had settled in the placement with the adoptive parent and had developed familial and psychological ties. The court also assessed the birth mother's mental illness, which compromised her parenting capacity, and determined that there was no realistic prospect of restoring PS to the care of the birth parents. The court further examined the suitability of the proposed adoptive parent, including their support for contact with the birth mother, despite the birth mother's objection to supervised contact by the adoptive parent. Additionally, the court reviewed the adoption plan, including amendments made during the hearing, to ensure it was appropriate and suitable for PS's needs and that all parties understood and freely entered into it.

After considering all the factors, the court found that making an adoption order was clearly preferable to any other order that could be made with respect to the care of PS. The court concluded that not making an adoption order would compromise PS's emotional and psychological development, and that adoption would better serve PS's identity needs by confirming their identity with their psychological family while preserving the opportunity for them to know their birth parents and understand why they do not live with them. The court also determined that changing PS's last name to that of the adoptive parent was in their best interests, as it would reinforce PS's membership of the adoptive parent's family. The court granted the adoption application, allowing the proposed adoptive parent to adopt PS and change their name.

Orders