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 783Texts 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…
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- Case
- [2014] NSWSC 1007
- Decision Date
CaseChat Overview and Summary
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.
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