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Adoption of Taylor-Clay

Adoption of Taylor-Clay

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Case Copied 31 January 2019 70 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adoption of Taylor-Clay [2019] NSWSC 27
Hearing dates: 16 August 2018
Date of orders: 31 January 2019
Decision date: 31 January 2019
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
Adoption would promote best interests of children and is clearly preferable to any other action that can be taken by law. Maternal adoption plan is proper in the circumstances, but not satisfied that paternal adoption plan is proper in the circumstances, which precludes making an adoption order unless remedied. Upon adoption children should retain as additional middle names their current surname.

Catchwords:
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether adoption clearly preferable to any other order that could be made with respect to care of children – respective advantages and disadvantages of restoration, adoption, parental responsibility to carer and parental responsibility to Minister – relative advantages of adoption vis-à-vis long term foster care – held, benefits of adoption outweigh benefits of preserving opportunity for future restoration – held, adoption would promote children’s best interests and is clearly preferable to any other order that could be made with respect to care of children.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plans – where plan provides inadequate opportunities for child to know and develop relationship with birth father, including in event of his incarceration – held, plan not proper in the circumstances.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent – dispensing with consent – where adoptive applicants are approved carer with whom children have an established relationship – where Children’s Court has allocated parental responsibility to Minister to age 18 – where adoption would promote children’s best interests and is clearly preferable to any other order that could be made with respect to care of children – held, in children’s best interests to make consent dispense order so as to permit adoption orders to be made.
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names – assumption of adoptive family’s’ surname is a fundamental feature of adoption and a manifestation of its benefits – inclusion of former hyphenated surname as two additional middle names is in child’s interests as means of preserving the child’s identity.
Legislation Cited: (NSW) Adoption Act 2000, s 4, s 8, s 23, s 24, s 28, s 46, s 50, s 59, s 67, s 72, s 87, s 88, s 90
Cases Cited: D, Re; Application of A [2006] NSWSC 1056
Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595
EDH, JSH and KJH, Adoption of [2017] NSWSC 1861
Hogarth, Adoption of [2019] NSWSC 9
JLK and CRK, Adoption of [2017] NSWSC 7
JS, Re; Director-General, NSW Department of Family and Community Services [2013] NSWSC 306
KH, Adoption of [2015] NSWSC 274
Hampton-Morgan, Adoption of [2018]…

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 27
Decision Date: 31 January 2019

CaseChat Overview and Summary

The case involved the adoption of Taylor-Clay, where the Family Court of Australia was tasked with deciding whether the adoption would be in the best interests of the children. The parties included the children, their birth father, the approved carer, and the Minister for Community Services. The central dispute revolved around the suitability of the adoption plan and whether the adoption would promote the children's best interests. The court had to determine whether the adoption plan provided adequate opportunities for the children to maintain a relationship with their birth father and if adoption was clearly preferable to any other care arrangement.

The legal issues before the court were whether the adoption plan allowed sufficient interaction with the birth father, particularly in the event of his incarceration, and whether the adoption would be in the children's best interests. The court also needed to consider whether the adoptive applicants' consent could be dispensed with and the appropriateness of the children assuming the adoptive family's surname, including the addition of their former surname as middle names.

The court found that the adoption plan did not provide adequate opportunities for the children to develop a relationship with their birth father, especially in the event of his incarceration. The court concluded that adoption was clearly preferable to any other order regarding the children's care. It was in the children's best interests to dispense with the consent of their birth father. Additionally, the court held that it was in the children's best interests to assume the adoptive family's surname, including adding their former surname as middle names to preserve their identity.

The court made orders for adoption, dispensing with the birth father's consent, and allowing the children to assume the adoptive family's surname with the addition of their former surname as middle names.

Orders