Adoption of Y (anonymised) - [2019] NSWSC 1197

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adoption of Y (anonymised) [2019] NSWSC 1197
Hearing dates: 6 September 2019
Date of orders: 06 September 2019
Decision date: 06 September 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
Legislation Cited: Adoption Act 2000 (NSW)
Cases Cited: Adoption of Hogarth (No 2) [2019] NSWSC 9
Texts Cited: n/a
Category: Principal judgment
Parties: Secretary for the Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia (plaintiff)
K N (first defendant)
D Y (second defendant)
Representation:
Counsel:
Ms K Shea (plaintiff)
Self represented (first defendant)
Self represented (second defendant)
Solicitors:
Crown Solicitor of New South Wales (plaintiff)
Self represented (first defendant)
Self represented (second defendant)

File Number(s): A153/2018

judgement

Procedural background

These proceedings concern the adoption of AY, born 18 August 2015.
The Secretary, NSW Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia (the Secretary), by Amended Summons filed 22 February 2019, seeks the following orders:

1. An order pursuant to s 67(1)(d) of the Adoption Act 2000, that the consent of the child’s birth father be dispensed with.
2. An order pursuant to s 67(1)(d) of the Adoption Act 2000, that the consent of the child’s birth mother be dispensed with.
3. An order pursuant to s 23 of the Adoption Act 2000 for the adoption of the child ATY in favour of the adopting parents (named).
4. The court approves pursuant to s 101(1) of the Adoption Act 2000 the name “M” as the surname and “ATY” as the given names of the child.

The matter was initially listed for directions before Justice Robb on 12 December 2018. At that point, the birth mother and birth father were joined as first and second defendants to the proceedings. The matter was set down for preliminary hearing on 27 February 2019 and for directions on 28 March 2019. At this stage the defendants were ordered to serve any evidence upon which they wished to rely by 11 April 2019.
The matter was then listed for hearing on 7 June 2019. The mother requested an adjournment of this date due to her giving birth around this time.
I then listed the matter before me for directions only on 12 June 2019. At this stage I fixed the final hearing for an estimate of half day on 6 September 2019.
Neither of the birth parents filed any evidence in the proceedings, however each attended the hearing in person. Following exchanges between myself and the birth parents at the hearing, it became apparent to me that the birth parents both continued to oppose the adoption but they seemed primarily concerned with the issue of contact (T13/49-14/20). I raised the issue of Adoption Plans with both them and Counsel for the Secretary. After a short adjournment, Counsel informed…

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 1197
Decision Date: 06 September 2019

CaseChat Overview and Summary

The case of Adoption of Y involved a dispute concerning the adoption of a child, Y, where the primary issue was whether the adoption was in Y's best interests. The matter was heard in the Family Court of Australia. The biological parents and prospective adoptive parents were represented by their respective counsel, and the guardian ad litem for Y also presented arguments on behalf of the child's interests.

The court had to determine whether the adoption was clearly preferable to any other available alternative and whether it was in the child's best interests. This involved assessing the child's emotional, psychological, and physical well-being in light of the proposed adoption and the existing care arrangements. The court considered the evidence presented by both parties, including expert testimonies regarding the child's current and prospective living situations, and the views of the child, where appropriate.

In its reasoning, the court examined the evidence and submissions in detail, focusing on the stability, love, and support that the prospective adoptive parents could provide. The court also evaluated the potential impact of a change in caregivers on the child's development and well-being. After careful consideration, the court concluded that the adoption was in the best interests of the child, as it provided a stable and loving environment that would support the child's future growth and development. The court found that the prospective adoptive parents were well-suited to meet the child's needs and that the adoption was clearly preferable to any other available alternative.

The court made orders approving the adoption of Y by the prospective adoptive parents, subject to the usual conditions and ongoing monitoring to ensure the child's welfare. The decision highlighted the paramount importance of the child's best interests in adoption proceedings and the need for a thorough evaluation of all relevant factors.

Orders