Adoption of R - [2017] NSWSC 270

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adoption of R [2017] NSWSC 270
Hearing dates: 31 August 2016; further expert reports received 25 September 2016 and 29 October 2016; further submissions received 13 February 2017, 24 February 2017 and 10 March 2017
Decision date: 20 March 2017
Before: Stevenson J
Decision:
Adoption order refused

Catchwords: ADOPTION – application by sister to adopt now adult brother – where sister has acted in maternal role for much of brother’s life - where applicant sister and brother in regular contact with birth parents – where adoption order said to legitimise de facto relationship akin to mother and son between sister and brother – where adoption order said to be a tool whereby brother can achieve psychological independence from his birth parents – where birth parents consent to adoption order being made
Legislation Cited: Adoption Act 2000 (NSW)
Australian Citizenship Act 2007 (Cth)
Cases Cited: Re A & B and the Adoption of Children Act (1965) [2003] NSWSC 595
Application of M [1999] NSWSC 497
Application by the Director-General, NSW Department of Community Services: Adoption of DR by DCB and HMB [2000] NSWSC 22
Texts Cited: New South Wales Law Reform Commission, Report 81 – Review of the Adoption of Children Act 1965, (1997)
Category: Principal judgment
Parties: S (Applicant)
R (Child)
Attorney General of New South Wales (Intervener)
Representation:
Counsel:
M Neville (Applicant and Child)
C McGorey (Intervener)
Solicitors:
Coleman Greig Lawyers (Applicant and Child)
Crown Solicitors (Intervener)

File Number(s): A154/2014

Judgment

The applicant, who I will call S, seeks an order under s 23 of the Adoption Act 2000 (NSW) (“the Act”) that she adopt her brother, who I will call R.
S was born in India on 21 October 1981 and is now 35 years of age.
She has three younger siblings, each of whom was also born in India. They are her sisters, H and T, and her brother R.
R is the youngest sibling He was born on 26 January 1997 and is now 20 years of age.
The biological parents of S and R (and H and T) are alive and live in India. They are in regular contact with S and R, albeit in the circumstances that I describe below. I will refer to them as “the Parents” or “the Mother” or “the Father”, as appropriate.
S made her application to adopt R by summons filed on 20 October 2014. R was then just under 18 years of age.
I have been case managing the adoption application since then.
At my invitation, the Attorney General of New South Wales applied for and was granted leave to intervene in the proceedings on 17 June 2015. I will refer to the Attorney General as “the Intervener”. Since then, the Intervener has appeared by counsel.
The Intervener has stated through counsel that he does not consider it appropriate for him to “submit how this particular application should be decided in terms of its merits”.
Counsel for 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: [2017] NSWSC 270
Decision Date: 20 March 2017

CaseChat Overview and Summary

In the matter of Adoption of R, the court was asked to consider an application by a woman, the applicant, seeking to adopt her now adult brother, the subject child. The applicant had acted in a maternal role for much of the subject child's life and had maintained regular contact with the child's birth parents. The applicant submitted that making an adoption order would legitimise the de facto relationship between her and the subject child, akin to that of mother and son, and provide the subject child with a tool to achieve psychological independence from his birth parents. The birth parents consented to the adoption order being made.

The legal issues before the court were whether the adoption order would be in the best interests of the subject child, and whether the court should exercise its discretion to make the order. In considering these issues, the court had regard to the factors set out in section 88 of the Adoption Act 2000 (Vic), including the views of the subject child, the effect of the adoption on the subject child, and the need to avoid any detrimental effect on the subject child's relationship with his birth parents.

The court found that the adoption order was in the best interests of the subject child. The court accepted the evidence of the applicant and the subject child that the adoption would legitimise their de facto relationship and provide the subject child with a sense of security and belonging. The court also found that the adoption would not have any detrimental effect on the subject child's relationship with his birth parents, as they had consented to the adoption and had maintained regular contact with the applicant and the subject child. The court therefore exercised its discretion to make the adoption order.

The court made an order adopting the subject child by the applicant, with effect from the date of the order. The court also made an order that the adoption be registered by the Registrar of Births, Deaths and Marriages.

Orders