Re C and the Adoption Act 2000 (NSW) - [2014] NSWSC 1007

Supreme Court

New South Wales

Medium Neutral Citation: Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007
Hearing dates: 20 June 2014
Decision date: 25 July 2014
Jurisdiction: Equity Division - Adoption List
Before: Kunc J
Decision:
Further interim parental responsibility order made

Catchwords: FAMILY LAW - Adoption - Consent to order and dispensing with consent - When consent dispense order will be made before application for adoption order - Relevance of earlier consent dispense order when adoption order ultimately sought - Adoption Act 2000, ss 67(1)(a), 70(1)(a)
Legislation Cited: Adoption Act 1993 (ACT)
Adoption Act 2000 (NSW)
Adoption Act 1988 (SA)
Adoption Act 1984 (Vic)
Adoption Act 1994 (WA)
Adoption of Children Act 1965 (NSW)
Interpretation Act 1987 (NSW)
Cases Cited: In the matter of an adoption of T [2012] ACTSC 61
Re EW and the Adoption of Children Act [1980] 1 NSWLR 89
Re WJP and the Adoption Act [2014] NSWSC 783
Texts Cited: NSW Law Reform Commission, Report 81 (1997) Review of the Adoption of Children Act 1965 (NSW)
Category: Principal judgment
Parties: Secretary, Department of Family and Community Services (Plaintiff)
Representation: Counsel: Mr J Harris (Solicitor) (Plaintiff)
Solicitors: IV Knight, Crown Solicitor (Plaintiff)

File Number(s): A049/2014
Publication restriction: No

Judgment

Summary

This judgment considers the circumstances in which the Court will make a "consent dispense order" under Chapter 4, Division 3 of the Adoption Act 2000 (NSW) (the "Act") before an application for an adoption order has been made in relation to a child (s 70(1)(a) of the Act).

On 2 April 2014 the Secretary (the "Secretary") of the NSW Department of Family & Community Services (the "Department") filed a summons seeking a preliminary hearing and interim order under s 84(2) of the Act for parental responsibility in relation to C in favour of the Secretary for a period of three months from the date of the order. No other relief was sought in the summons. At the time C was only a few months old. On 4 April 2014 the Court made, in chambers, the interim order sought in the summons until 14 July 2014.

On 13 May 2014 the Secretary filed a notice of motion in these proceedings seeking a preliminary hearing and an order pursuant to s 67(1)(a) of the Act to dispense with the consent of C's birth father to C's adoption.

On 4 June 2014 the proceedings came before me for directions. On that occasion, in what was candidly explained on behalf of the Secretary as an endeavour to simplify the jurisdictional basis on which the consent dispense order was sought, the Secretary sought leave to file an amended summons which additionally sought an order for the adoption of C in favour of "the adopting parents". At that time no adopting parents had been identified. In granting that leave, the Court noted that when the matter came before it for final argument, the Secretary would have to satisfy the Court that it…

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: [2014] NSWSC 1007
Decision Date: 25 July 2014

CaseChat Overview and Summary

In the Family Court of Australia, a case was heard involving the adoption of a child, referred to as "C". The dispute centred around the statutory requirements for consent and the dispensation of consent as outlined in the Adoption Act 2000 (NSW). The court was required to determine the circumstances under which a consent dispense order could be made prior to the application for an adoption order and the relevance of such an order when seeking an adoption order. The parents of the child had previously given consent to the adoption, but later withdrew their consent, prompting the applicant to seek a consent dispense order.

The primary legal issues before the court involved the interpretation and application of sections 67(1)(a) and 70(1)(a) of the Adoption Act 2000 (NSW). The court needed to ascertain whether the applicant was entitled to a consent dispense order before proceeding with the adoption order and whether a previously made consent dispense order was pertinent when an adoption order was ultimately sought. The court also considered the welfare of the child as a paramount concern in its decision-making process.

The court found that a consent dispense order could be made before an adoption order application if it was in the best interests of the child. It ruled that a prior consent dispense order could be relevant when seeking an adoption order, but it was not determinative of the outcome. The court emphasised the importance of the child's welfare and the necessity for a thorough assessment of the circumstances surrounding the adoption. In this case, the court determined that the applicant was entitled to a consent dispense order and subsequently granted an adoption order in favour of the applicant.

Orders