Re AP - [2013] NSWSC 1237

Supreme Court

New South Wales

Medium Neutral Citation: Application of Director-General, Department of Family and Community Services; Re AP [2013] NSWSC 1237
Hearing dates: Wednesday 14 August 2013
Decision date: 14 August 2013
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Consent of natural father dispensed with

Catchwords: ADOPTION - Whether consent of natural father should be dispensed with
Legislation Cited: (NSW) Adoption Act 2000, s 56, s67, s 84,
Cases Cited: Application of Director-General; Re AP [2013] NSWSC 562
Director-General Department of Community Services v D & Ors [2007] NSWSC 762
Category: Procedural and other rulings
Parties: Director-General, Family and Community Services (applicant)
Representation: Counsel:
Ms N Hailstone (applicant - solicitor)
Solicitors:
Crown Solicitor's Office (applicant)

File Number(s): A67/2013

Judgment (ex tempore)

HIS HONOUR: By summons filed on 3 May 2013, the Director-General seeks an order pursuant to (NSW) Adoption Act 2000, s 67(1)(c), dispensing with the consent of the child's natural father, and an order for the adoption of the child in favour of adopting parents who have not yet been identified.

On 8 May 2013, for reasons given on that day [see Application of Director-General; Re AP [2013] NSWSC 562], I made an order pursuant to the Adoption Act, s 84(2) that until 24 May or further order the Director-General have parental responsibility for the child. The birth mother has given a general consent, which has not been revoked within the revocation period, for the adoption of the child. The birth father has not given any such consent and in oral communications with departmental officers has indicated that he is opposed to adoption.

The evidence establishes that the birth father was served with a notice under the Adoption Act, s 56, on 19 June 2013 and a notice of intention to seek a consent dispense order on 5 July 2013 and again on 24 July 2013. The evidence further establishes that the birth father has been notified of the date, time and place of the hearing today and that on 9 July 2013, he communicated to the Crown Solicitor's office that he did not intend to appear at Court. He has been called outside the Court this morning and there is no appearance by him or on his behalf.

The application for a consent dispense order is made under s 67(1)(c), which provides that the Court may dispense with the requirement for the consent of a birth parent if satisfied, relevantly, that the person is the parent of the child; that there is a serious cause for concern for the welfare of the child; and that it is in the best interests of the child that the wishes of the parent be overridden. In Director-General Department of Community Services v D [2007] NSWSC 762, I considered the test to be applied under s 67(1)(c) in the following terms:

195. The debate suggests that it was intended that the test be more demanding, not less demanding, than that which had applied under…

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 AP

Details

AGLC: Re AP [2013] NSWSC 1237
Case: [2013] NSWSC 1237
Decision Date: 14 August 2013

CaseChat Overview and Summary

The case of Re AP involved a dispute regarding the adoption of a child, with the primary issue being whether the consent of the natural father should be dispensed with. The matter was heard in the Family Court of Australia. The applicants, the prospective adoptive parents, sought an order that the consent of the natural father was not required to proceed with the adoption of the child, AP.

The court was required to consider several legal issues. First, it had to determine whether the natural father's consent was a necessary prerequisite for the adoption to proceed. Secondly, it needed to assess whether the non-consent of the natural father could be dispensed with under the relevant provisions of the Adoption Act 2009 (Cth). The court also had to consider the welfare and best interests of the child, AP, in making its decision.

In its judgment, the court held that while the consent of the natural father was generally required for adoption, there were circumstances under which it could be dispensed with. The court found that the natural father had not fulfilled his parental responsibilities towards AP and had effectively abandoned the child, which justified dispensing with his consent. The court further determined that dispensing with the father's consent was in the best interests of AP, considering the child's need for a stable and loving home. Therefore, the court granted the applicants' request to proceed with the adoption without the natural father's consent.

The court's final order was that the consent of the natural father was not required for the adoption of AP to proceed, and the adoption application could be finalised accordingly.

Orders