Re Alice - [2021] NSWSC 700

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Alice [2021] NSWSC 700
Hearing dates: 15 June 2021
Date of orders: 16 June 2021
Decision date: 16 June 2021
Jurisdiction: Equity - Adoptions List
Before: Williams J
Decision:
Order that, until further order, the child be made a ward of the Court; order that, for a period of three months or until earlier further order, parental responsibility for the child be delegated to the Secretary, New South Wales Department of Communities and Justice; order that the consent of the child’s birth father be dispensed with; order that the plaintiff serve a copy of the reasons for judgment and order on the child’s birth mother as soon as practicable.

Catchwords:
FAMILY LAW AND CHILD WELFARE – adoption – interim order – application for interim order allocating parental responsibility to Secretary under s 84(2) of the Adoption Act 2000 (NSW) – where temporary care arrangement expiring imminently – where Secretary will not have parental responsibility under s 75 of the Adoption Act 2000 (NSW) on expiry of temporary care arrangement – whether s 84(2) applies where no existing application for adoption order – whether orders should be made in exercise of parens patriae jurisdiction where s 84(2) does not apply.
FAMILY LAW AND CHILD WELFARE – adoption – consent – consent dispense order under Adoption Act 2000 (NSW), s 67(1)(a) – application for order dispensing with the consent of the birth father – where birth father cannot, after reasonable inquiries, be found or identified – where in best interests of child to make consent dispense order

Legislation Cited:
Adoption Act 2000 (NSW), ss 53, 63, 67, 70, 73, 75, 84, 85, 206
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 151, 152
Interpretation Act 1987 (NSW), s 33

Cases Cited:
Adoption of NV [2015] NSWSC 2135
Application by Director-General Department of Community Services; Re L (a child) (2008) 71 NSWLR 343
R v A2; R v Magennis; R v Vaziri (2019) 93 ALJR 1106
Re Application by Director-General of Department of Community Services; re BCG (a child) [2003] NSWSC 1040
Re Jules (2008) 40 Fam LR 122
Re Liam [2009] NSWSC 643

Category: Principal judgment
Parties: Secretary, NSW Department of Communities and Justice (Plaintiff)
Representation:
Counsel:
Mr M. Anderson (Plaintiff)
Solicitors:
Crown Solicitor of New South Wales

File Number(s): 2021/159649
Publication restriction: N/A

Judgment

The child who is the subject of these proceedings is known by the pseudonym “Alice”.
By summons filed on 3 June 2021, the Secretary, NSW Department of Communities and Justice (the Secretary) seeks an order pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW) dispensing with the requirement for the consent of the child’s birth father to the adoption of the child, and an interim order for parental responsibility for the child in favour of the Secretary pursuant to s 84(2) of that Act.
The Secretary relies on two affidavits of Ms Melissa Stokes affirmed on 3 June…

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 Re Alice

Details

AGLC: Re Alice [2021] NSWSC 700
Case: [2021] NSWSC 700
Decision Date: 16 June 2021

CaseChat Overview and Summary

In the case, the Secretary applied for an interim order under section 84(2) of the Adoption Act 2000 (NSW), requesting that parental responsibility for a child be allocated to them. The application arose as the temporary care arrangement was set to expire imminently, and the Secretary would not hold parental responsibility under section 75 of the same Act once the arrangement ended. Additionally, the Secretary sought a consent dispense order under section 67(1)(a) of the Adoption Act 2000 (NSW) to dispense with the consent of the birth father, who could not be found or identified despite reasonable inquiries. The court had to determine whether section 84(2) applied in the absence of an existing adoption application and whether orders should be made under the parens patriae jurisdiction if section 84(2) did not apply.

The primary legal issue before the court was whether section 84(2) of the Adoption Act 2000 (NSW) could be invoked to allocate parental responsibility to the Secretary when no adoption application existed. The court also had to consider whether it should exercise its parens patriae jurisdiction to make orders in the child's best interests if section 84(2) did not apply. Furthermore, the court needed to decide if a consent dispense order could be granted under section 67(1)(a) of the Act when the birth father could not be found or identified.

The court found that section 84(2) did not apply in the absence of an existing adoption application, but it was within the court's jurisdiction to make orders in the exercise of its parens patriae powers. The court determined that allocating parental responsibility to the Secretary was in the child's best interests due to the imminent expiry of the temporary care arrangement. Additionally, the court granted the consent dispense order, ruling that it was in the child's best interests to dispense with the consent of the birth father, who could not be located. The court's decision was based on the welfare and best interests of the child, which were paramount considerations in the proceedings.

The court made an interim order allocating parental responsibility to the Secretary, effective from the expiry of the temporary care arrangement. The court also granted the consent dispense order, allowing the adoption process to proceed without the consent of the birth father. These orders ensured that the child would have a stable and protective environment as the adoption process continued.

Orders