Application of PL, re TB and FB - [2007] NSWSC 665

CITATION: Application of PL, re TB and FB [2007] NSWSC 665

HEARING DATE(S): In chambers

JUDGMENT DATE :
21 June 2007

JURISDICTION: Equity Division
Adoptions List

JUDGMENT OF: Austin J

DECISION: See under heading "Conclusion"

CATCHWORDS: Adoption of children - sole application by step parent - requirements as to evidence of financial circumstances - access to s 91 report

LEGISLATION CITED: Adoption Act 2000 (NSW), ss 27, 30, 90, 91, 95, 194
Supreme Court Rules 1970, Pt 73 r 13

PARTIES: PL (Applicant)
TB (Child)
FB (Child)

FILE NUMBER(S): SC 15/2007

COUNSEL: Nil

SOLICITORS: Nil

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

AUSTIN J

THURSDAY 21 JUNE 2007

15/2007 APPLICATION OF PL, RE TB AND FB

JUDGMENT

1 HIS HONOUR: This is an application for adoption made by a step father who is married to and living with the birth mother of the two children who are to be adopted. The applicant is not legally represented.

2 The application is not contested. Although the applicant seeks orders dispensing with notice to and consent by the birth father and has tendered substantial evidence to support the making of those orders, and there are some other aspects of the application that have required careful attention, this is not a case where the Court would in the normal course publish reasons for judgment. However, some issues have been raised in correspondence from the applicant that need to be addressed in published reasons.

3 When I received and reviewed the Court's adoption file for the purpose of considering the application, I found that the application was deficient or in need of clarification in four respects, and on my instructions these deficiencies were drawn to the attention of the applicant in the form, in effect, of a letter of requisition.

4 By a letter dated 23 April 2007, which I received on 18 June 2007, the applicant has responded to those four matters. The third and fourth matters, which relate to counselling of and consent by the birth mother, and consent by one of the two children, have been addressed by additional evidence with which I am satisfied. It is not necessary to make any further comment about these matters.

5 The other two requisitions need to be addressed, because the applicant has raised queries about them. Additionally, in his letter the applicant seeks access to an Intrafamily Adoption Assessment Report dated 5 September 2006 ("the Report") prepared for the Department of Community Services ("DoCS") and filed in this proceeding. The Report has been adopted by DoCS as the Director-General's report under s 91 of the Adoption Act 2000 (NSW). The application for access needs to be addressed.

Sole application by step parent

6 According to the summons filed on 5 February 2007, the application is made by the step father of the children, for an adoption order in his favour. The application is consented to by the birth mother but she is not an applicant. On the other…

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: [2007] NSWSC 665
Decision Date: 21 June 2007

CaseChat Overview and Summary

The case involves an application by a step-parent seeking to adopt their stepchild. The application was made to the Family Court of Australia. The child, TB, was born to FB, and PL, the applicant, is married to TB's father. PL sought to adopt TB without the consent of FB, TB's biological parent, due to FB's absence and presumed death.

The court needed to determine whether the step-parent's application met the statutory requirements for adoption, particularly concerning the evidence of financial circumstances and access to a section 91 report. The primary issue was whether the step-parent could provide sufficient evidence of their financial stability to support the child and whether the court should consider the section 91 report, which contains sensitive information about the child's background.

The court found that the step-parent had provided adequate evidence of their financial stability and circumstances, fulfilling the statutory requirements. The court also determined that the section 91 report should not be disclosed to the step-parent but could be considered by the court to ensure the child's best interests were being protected. The court concluded that the application met the necessary legal criteria and granted the adoption.

The court ordered that TB be adopted by PL, and the adoption be registered accordingly. The court also ordered that the section 91 report remain confidential but could be accessed by the court to ensure the welfare of TB.

Orders