APPLICATION OF A and B - [2000] NSWSC 640

CITATION: APPLICATION OF A and B [2000] NSWSC 640

CURRENT JURISDICTION: ADOPTIONS

FILE NUMBER(S): SC 80129/98

HEARING DATE(S): Private Chambers, written submissions.

JUDGMENT DATE: 7 July 2000

PARTIES :

A and B plaintiffs

JUDGMENT OF: Bryson J at 1

COUNSEL : D.M. Coulton for plaintiffs

SOLICITORS: Vizzone Ruggero & Associates for Plaintiffs
Director-General, Department of Community Services, in person, intervened.

CATCHWORDS: ADOPTION - surrogate parenthood - birth mother was sister of W artificially inseminated with sperm donated by H - application by H & W for adoption was fully supported by birth mother - placement in good circumstnaces and no contention among adults involved - consideration of submissions by DOCS adverse to adoption at this stage - consideration of public interest associated with surrogate parenthood - the paramountcy rule was applied - on the facts the interests of the child required an adoption order.

DECISION: Adoption order made.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

FRIDAY 7 JULY 2000

Re: 80129 of 1998
Application of A and B

Child: C
JUDGMENT

1 HIS HONOUR: This judgment relates to an application for adoption of a child who was born in a surrogate parenthood arrangement. Adoption applications are heard in private and the Court usually imposes a restriction on publication of decisions and reasons, because it would be adverse to the welfare and interests of the children involved to publish any identifying information. The interests concerned are more than the ordinary privacy interests of all persons involved, as there can be adverse impacts on the emotional well-being of children and on the course of their upbringing if particulars of adoption proceedings are published. The Adoption of Children Act 1965 makes special provisions in s 53, s 64 and s 67 to restrict availability of information about adoption proceedings. The availability of information is carefully regulated by the Adoption Information Act 1990, and except under the procedures for which that Act provides, is restricted. 2 Surrogate parenthood is appropriately a subject of public interest and concern, and I have decided to publish my reasons in this case. In these reasons I have omitted the names of persons concerned but necessarily some other information from which identities could be discovered by investigation have been included. I point out now that publication of the identities of the persons involved, and of any matter reasonably likely to enable any of the persons involved to be identified, is an offence under s 53, which is in these words:

53 Restriction on publication of identity of parties

(1) Subject to this section, a person who publishes, or causes to be published, in a newspaper or periodical, or by means of broadcasting or television, in relation to an application under this Act or under a law of another State or a Territory of the Commonwealth for the adoption of a child or the proceedings on such an application, the name of an applicant, the child, or the father or mother or a guardian of…

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

AGLC: Application Of A and B [2000] NSWSC 640
Case: [2000] NSWSC 640
Decision Date: 7 July 2000

CaseChat Overview and Summary

In the Family Court of Australia, the case of the application by A and B (referred to as H and W in the judgment) involved a dispute concerning the adoption of a child born through surrogate parenthood. The child's birth mother, who was also the sister of W, was artificially inseminated with sperm donated by H. The primary legal issue before the court was whether an adoption order should be granted in these unique circumstances, considering the support of the birth mother and the placement of the child in what was described as good circumstances. The court was also required to address the submissions made by the Department of Community Services (DOCS), which were adverse to the adoption at that stage, and to consider the broader public interest associated with surrogate parenthood.

The court examined the submissions made by DOCS, which expressed concerns about the welfare of the child and the broader implications of surrogate parenthood. Despite these concerns, the court focused on the specific circumstances of this case, particularly the support provided by the birth mother and the lack of contention among the adults involved. The paramount consideration, as mandated by the paramountcy rule, was the best interests of the child. The court found that the evidence presented indicated that the interests of the child would be best served by the adoption by H and W. This conclusion was reached in the absence of any significant contention among the parties and with the explicit support of the birth mother.

Following a detailed analysis of the evidence and the legal principles involved, the court determined that an adoption order was in the best interests of the child. The court acknowledged the unique nature of the case but concluded that, given the specific circumstances, the paramountcy rule necessitated the adoption. The court's decision was grounded in the welfare of the child, supported by the birth mother, and devoid of any substantial contention among the involved parties. The final orders were made in favour of the adoption by H and W, recognising the best interests of the child as the central consideration.

Orders