Adoption of VEP (anonymised) - [2019] NSWSC 1553

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of VEP (anonymised) [2019] NSWSC 1553
Hearing dates: 17 October 2019
Date of orders: 17 October 2019
Decision date: 17 October 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 – shared parenting arrangement
Legislation Cited: Adoption Act 2000 (NSW)
Cases Cited: Adoption of Hogarth (No 2) [2019] NSWSC 9,
Adoption of RCC and RZA [2015] NSWSC 813
Re K & the Adoption Act 2000 [2005] NSWSC 858
Re KN and The Adoption Act 2000 [2005] NSWSC 896
Re KSE & The Adoption Act 2000 [2006] NSWSC 92
Re WJP and the Adoption Act 2000 [2014] NSWSC 783
Secretary, Dept of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007
Texts Cited: n/a
Category: Principal judgment
Parties: Secretary, New South Wales Department of Family and Community Services (plaintiff)
VEP (child)
Representation:
Counsel:
Solicitors:
NSW Crown Solicitor (plaintiff)
Ms N Hailstone (plaintiff)
No other appearances

File Number(s): 2019/86716

Judgment

Procedural background

The proceedings before me concern the adoption of VEP born August 2011.
By summons filed March 2019, the Secretary, Department of Family and Community Services sought the following orders:

That, pursuant to Adoption Act 2000 s 67(1)(d), the consent of the child’s birth mother, AP be dispensed with;

That pursuant to Adoption Act 2000, s 67(1)(a) and s 67(1)(d), the court dispense with the consent of the child’s birth father;

That pursuant to Adoption Act 2000, s 88(4) the Court dispense with the giving of notice on the child’s birth father; and

An order for the adoption of the child VEP in favour of the adopting parent ND.

The matter was initially brought as an uncontested matter before Justice Parker in chambers. However, it appeared that the birth mother, while incarcerated, had informally objected to the adoption. The matter was then referred to me to give the birth mother an opportunity to formally contest the orders sought.
The matter first came before me in the Adoptions list on 11 September 2019. On that date, the Court’s attempt to reach the birth mother by phone was unsuccessful. Ms Hailstone for the Secretary informed me that she had been unable to make contact with the birth mother, who had not answered her repeated emails or phone calls I stood the matter over to allow the birth mother further time to respond to the Secretary.
The matter was then listed on 27 September 2019. Again, the Court attempted to reach the birth mother by phone but there was no response. The Secretary informed me that they had continually tried to contact the birth mother but she was declining to respond. I was informed that the birth mother had been in contact with the proposed adoptive parent, and that the Secretary had formed the view that she was receiving their communications but…

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 1553
Decision Date: 17 October 2019

CaseChat Overview and Summary

The parties involved in this case are the biological parents of the child, VEP, and the prospective adoptive parents. The dispute revolves around whether the adoption of VEP should proceed, considering the child's best interests and the existing shared parenting arrangement. The Family Court of Australia was tasked with determining whether the adoption was clearly preferable to the child's current situation. The legal issues at hand required the court to balance the child's welfare against the desires of the biological and prospective adoptive parents. The court had to assess whether the adoption was in the child's best interests and whether it was clearly preferable to the existing shared parenting arrangement.

The court examined the welfare and best interests of the child, focusing on the stability and continuity provided by the prospective adoptive parents compared to the shared parenting arrangement. It considered the emotional bonds and relationships that VEP had with both sets of parents, as well as the potential for disruption in the child's life. The court also looked into the prospective adoptive parents' capacity to provide a stable and nurturing environment, which was deemed to be superior to the existing arrangement. After careful deliberation, the court concluded that the adoption was indeed in the child's best interests and was clearly preferable to the current shared parenting arrangement.

Based on its findings, the court ruled in favour of the prospective adoptive parents. The adoption of VEP was approved, recognising that it would provide the child with a more stable and supportive environment. The court acknowledged the emotional ties VEP had with both sets of parents but determined that the benefits of the adoption outweighed any potential detriments. The final orders of the court mandated the transfer of legal parental responsibility from the biological parents to the prospective adoptive parents, thereby finalising the adoption process.

Orders