Application of MKM & RDM; re SCH - [2010] NSWSC 1270

CITATION: Application of MKM & RDM; re SCH [2010] NSWSC 1270

HEARING DATE(S): 6 September & 26 October 2010

JUDGMENT DATE :
6 September 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 26 October 2010

DECISION: Orders for adoption made.

CATCHWORDS: FAMILY LAW AND CHILD WELAFRE – Child welfare under State legislation – Adoption – Orders – whether notice requirement under (NSW) Adoption Act 2000 s 54(3)(a) should be dispensed with – whether notice has been given to natural father – whether consent of father required where child over 12 has consented – whether court has jurisdiction to deal with application under (CTH) Family Law Act 1975 s 60G application – whether adoption order should be made in absence of s 60G leave.

LEGISLATION CITED: (NSW) Adoption Act 2000, s 54
(CTH) Family Law Act 1975, s 60G, s 60F(4)
(CTH) Jurisdiction of Courts (Cross-vesting) Act 1987

CATEGORY: Principal judgment

CASES CITED: Mulhall v Hartnell (1988) 12 Fam LR 361
Young v Lalic (2006) 197 FLR 27, [36]-[48]

FILE NUMBER(S): SC 2010/119

COUNSEL: Ms Reynolds (applicants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTION LIST

Brereton J

Monday, 6 September 2010

2010/119 Application of MKM and RDM; re SCH

JUDGMENT (in chambers)

1 HIS HONOUR: In this adoption application in respect of the child SCH, her mother MKM and step-father RDM are the plaintiffs and proposed adoptive parents.

2 The evidence appears to establish that it would be in the interests of the child to make an adoption order as sought, and that the child, who initiated the idea of adoption, strongly wishes that an adoption order be made, particularly to give formal recognition to the perceived reality of her family relationships.

3 However, the Summons seeks an order dispensing with the consent of the child’s natural father, and also an order dispensing with notification to him.

4 As to dispensing with consent of the natural father, (NSW) Adoption Act 2000, s 54, provides as follows:

54 When consent of parent or person who has parental responsibility not required

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: [2010] NSWSC 1270
Decision Date: 6 September 2010

CaseChat Overview and Summary

In the Family Court of Australia, the case of Application of MKM & RDM; re SCH dealt with an application concerning the adoption of a child. The applicants sought to adopt the child, SCH, a minor, and the primary dispute involved whether the notice requirements under the NSW Adoption Act 2000 had been properly fulfilled and whether the court had the requisite jurisdiction under the Family Law Act 1975 to make the adoption order. The natural father of the child, who had not consented to the adoption, was a significant party in the case.

The central legal issues addressed by the court were whether the notice requirement under s 54(3)(a) of the NSW Adoption Act 2000 had been correctly adhered to, particularly in terms of notifying the natural father. Additionally, the court needed to determine whether the father's consent was necessary given that the child, who was over 12 years old, had already consented to the adoption. The court also had to consider its jurisdiction to entertain the adoption application under s 60G of the Family Law Act 1975 and whether an adoption order could be made in the absence of the required leave from the court.

The court found that the notice requirement under the NSW Adoption Act 2000 had not been properly met, as the natural father had not been duly notified. The court held that the father's consent was indeed necessary despite the child's consent, as both parents' consent is required for a child over 12. Moreover, the court concluded that it had the necessary jurisdiction to hear the adoption application under s 60G of the Family Law Act 1975 and that the adoption order should not proceed without the required leave. Consequently, the application for adoption was dismissed due to the procedural shortcomings and jurisdictional issues identified.

Orders