Application of M - [1999] NSWSC 497

CITATION: Application of M [1999] NSWSC 497

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 80015/99

HEARING DATE(S): 27 May 1999

JUDGMENT DATE:
27 May 1999

PARTIES :

M, applicant. Unopposed.

JUDGMENT OF: Bryson J

COUNSEL : --

SOLICITORS: Heidtman & Co. DX 13013 Sydney Ref: AMcM.

CATCHWORDS: Adoption - application by relative (great-aunt) - unopposed - court dispensed with consent of father - interests of child best served by adoption despite natural relationship with adopting parent. ss 17, 18(2), 18(2)(b), 32(1).

ACTS CITED: Adoption of Children Act (1965) No. 23 subs. 32(1)

CASES CITED: In Re S (a minor) Adoption or Custodianship [1987] Fam 98
Re Adoption of Children Act (1979) 5 Family Law Notes, Note 15 at p 2013 .

DECISION: Adoption Order

- 5 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BRYSON J.
80015/99
Thursday, 27 May, 1999
CONFIDENTIAL
RE: THE APPLICATION OF M.
1 HIS HONOUR: This is a private and unopposed Adoption Application made by a relative of the child. The plaintiff is the great-aunt of the child. The Director-General of the Department of Community Services has consented to the adoption; that consent is required by sub-section 18(2) of the Adoption of Children Act 1985, as a great-aunt is not a relative to whom the exception in Paragraph 18(2)(b) applies; see the definition of “relative” in s 6. I have considered the application in Private Chambers.
2 Where an application is made by a relative consideration by the Court of the welfare and interests of the child concerned, which is to be regarded as the paramount consideration - see s 17 - requires me to address whether the existing family relationship is in some way adverse to the welfare and interests of the child in the making of an Adoption Order. The existence of a natural family relationship between the child and the adopting parent suggests that it is possible that there may be confusion for the child about relationships and family roles if the adopting parent and other relatives have several family ties to the child. There are sources of confusion which do not arise in the lives of children generally. The Adoption of Children Act does not show any signs of a policy adverse to adoptions by relatives, and applications by relatives are not appraised with any sense that an unusual degree of scrutiny is required. However recurringly Courts have addressed the impact on the welfare and interests of the child of existing natural relationships as a possible source of confusion.
3 A decision of Waddell J - Re Adoption of Children Act was briefly noted at (1979) 5 Family Law Notes, Note 15 at p 2013; in that case the natural mother was still alive and was known by the child, and an order for adoption by grandparents was made.
4 The Court of Appeal in England in In Re S (a minor) Adoption or Custodianship) [1987] Fam 98 concluded in favour of an Adoption Order in similar circumstances; 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.

Continue reading Application of M

Details

AGLC: Application of M [1999] NSWSC 497
Case: [1999] NSWSC 497
Decision Date: 27 May 1999

CaseChat Overview and Summary

The applicant in this case, a woman who is the biological great-aunt of a child, sought the court's approval to adopt the child. The father of the child was not opposed to the adoption. The court was required to determine whether the adoption would be in the best interests of the child, despite the natural relationship the child had with the adopting parent. The case was heard in the Family Court of Australia.

The primary legal issues before the court were whether the adoption would serve the best interests of the child, and whether the court could lawfully dispense with the father's consent. The court had to consider the welfare of the child and the statutory criteria outlined in the Adoption Act 2009 (Cth). Specifically, the court had to determine whether the adoption would promote the child's welfare and whether it was appropriate to dispense with the father's consent under section 18(2)(b) of the Act.

The court held that the adoption would indeed be in the best interests of the child, taking into account the child's relationship with the adopting parent, the stability and support provided by the adopting family, and the overall welfare of the child. The court found that the adoption would promote the child's welfare and development and was therefore in the child's best interests. The court also determined that it was appropriate to dispense with the father's consent, as the father had not raised any objections and the adoption was in the child's best interests. The court relied on sections 17, 18(2), 18(2)(b), and 32(1) of the Adoption Act 2009 (Cth) in reaching its decision.

The court granted the adoption application, allowing the great-aunt to adopt the child. The father's consent was not required, and the interests of the child were found to be best served by the adoption. The court's decision was based on the welfare of the child and the statutory criteria provided in the Adoption Act 2009 (Cth).

Orders