Adoption of Q - [2023] NSWSC 1277

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of Q [2023] NSWSC 1277
Hearing dates: On the papers
Date of orders: 27 October 2023
Decision date: 27 October 2023
Jurisdiction: Equity - Adoptions List
Before: Robb J
Decision:
See orders at [48]

Catchwords:
CHILD WELFARE – adoption – best interests – consent – notice – change of name – adoption plan – where child has established a stable relationship with the proposed adoptive parents – where identity of child’s birth father remains unconfirmed – whether adoption order should be made in favour of proposed adoptive parents – whether consent of birth mother and father should be dispensed with – whether requirement to give notice on the birth father should be dispensed with – whether proposed name change should be approved – whether proposed adoption plan should be approved and registered

Legislation Cited:
Adoption Act 2000 (NSW), ss 8(1)(e), 23, 46(1), 48, 50, 59, 61, 67(1), 72(1), 72(2)(a), 88(1)(a), 88(4), 90(1)(d), 91, 101(1), 180, 194(2)
Adoption Regulation 2015 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 138

Cases Cited:
Adoption of IEK [2019] NSWSC 171
Adoption of RCC and RZA [2015] NSWSC 813
Application of A; Re D [2006] NSWSC 1056
Application of BJ and SH, Child J [2013] NSWSC 1857
Application of DOCS re C [2004] NSWSC 702
Application of O and P [2005] NSWSC 1297
Director-General, Department of Human Services; re DAM [2011] NSWSC 634
Re K & The Adoption Act 2000 [2005] NSWSC 858
Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007
Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Texts Cited:
Practice Note SC EQ 13

Category: Principal judgment
Parties: Secretary, New South Wales Department of Communities and Justice by his delegate, Principal Officer, Barnados Australia (Plaintiff)
Representation: Solicitors:
Ms S Shariff (Barnados Australia) (Plaintiff)

File Number(s): 2023/00228058
Publication restriction: Nil

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JUDGMENT

Introduction

By Summons for Adoption filed on 17 July 2023, the Secretary of the New South Wales Department of Communities and Justice (“the Secretary”), by his delegate, the Principal Officer of Barnados Australia, seeks orders for the adoption of a child and certain related relief under the Adoption Act 2000 (NSW) (“the Act”).
The child the subject of these proceedings is a four-year-old girl, whom I will refer to as “Q”. I will refer to the proposed adoptive parents as “CK” and “AM”.
As I previously explained in Adoption of IEK [2019] NSWSC 171 at [6], the reference to interested parties in adoption proceedings by the use of initials is the customary approach utilised by this Court in order to permit the publication of a judgment for the benefit of any member of the public who may take an interest in it, without identifying the interested parties. This approach is consistent with…

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 Q

Details

AGLC: Adoption of Q [2023] NSWSC 1277
Case: [2023] NSWSC 1277
Decision Date: 27 October 2023

CaseChat Overview and Summary

The proceedings were brought by the Secretary of the Department of Communities and Justice, seeking an adoption order in relation to a child, Q. The child's birth parents were not parties to the proceeding. The child had lived with the proposed adoptive parents since she was an infant. The court was required to determine whether an adoption order should be made in favour of the proposed adoptive parents. The court also needed to decide whether the consent of the child’s birth mother should be dispensed with, whether the requirement to give notice to the birth father should be dispensed with, whether the proposed name change should be approved, and whether the proposed adoption plan should be approved and registered.

The court considered the child's best interests in light of the evidence presented. The child had formed a stable and loving relationship with the proposed adoptive parents and had been living with them for the majority of her life. The court found that dispensing with the consent of the birth mother was in the child's best interests, given the significant time that had elapsed since the child was placed with the proposed adoptive parents and the fact that the birth mother had not maintained contact with the child. The court also determined that dispensing with the requirement to give notice to the birth father was appropriate due to the uncertainty surrounding his identity and the lack of contact he had with the child. The proposed name change was approved as it aligned with the child's best interests and the child's wishes. Finally, the court approved the adoption plan, finding it to be in the child's best interests and compliant with the relevant legislative requirements.

The court made an order that the adoption of the child be approved, that the consent of the birth mother be dispensed with, that the requirement to give notice to the birth father be dispensed with, that the proposed name change be approved, and that the adoption plan be approved and registered.

Orders