Consent of birth mother dispensed with; adoption orders made.
CATCHWORDS:
ADOPTION – whether children should be adopted or left in foster care – whether any general rule that adoption is preferable to foster care – relationship between Adoption Act and Children and Young Persons (Care and Protection) Act – whether adoption clearly preferable to long term fostering in the present case – whether consent of birth mother to adoption should be dispensed with.
Mallesons Stephen Jaques – Applicants Hal Ginges & Co – Respondent
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTION LIST
PALMER J.
0047/06 Application of A: re D
JUDGMENT 11 October, 2006
Introduction and Issues
1 This is an application for the adoption of two girls, aged ten and nine, who are sisters. The children’s natural father has consented to the adoption but their natural mother opposes it and refuses to give her consent, as required by s.52(1)(a)(i) of the Adoption Act 2000 (NSW) (“the Act”). Accordingly, there are two parts of this proceeding: an application by the Principal Officer of Barnardos for an order dispensing with the consent of the natural mother, under s.67(1) of the Act, and an application by the proposed adoptive parents for adoption orders under s.23 and Pt 9 of the Act.
2 The two applications are being heard in conjunction, as is permitted by s.70(1)(b) of the Act. As the natural mother’s reason for refusing her consent to the adoptions is the same as her reason for opposing the making of the adoption orders, in this particular case it is appropriate for the two parts of the proceeding to be heard together rather than in stages: the fate of the first application will bear directly upon the fate of the second.
3 For the sake of preserving the anonymity of the parties, as is required by s.180 of Act, I will refer to the proposed adoptive parents as Mr and Mrs A, to the elder child as B, to the younger as C, to the natural mother as Ms D, and to the natural father as Mr E.
4 Mr. Angyal SC has appeared for the Applicants and Mr H. Ginges, solicitor, has appeared for Ms D. I should acknowledge at the…
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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AGLC
Re D; Application of A [2006] NSWSC 1056
Case
[2006] NSWSC 1056
Decision Date
CaseChat Overview and Summary
The case of Re D; Application of A involved an application by A, the foster mother, to adopt two children, D and E, who were currently in her care. The application was contested by the children's birth mother, who opposed the adoption and wished for the children to remain in foster care. The matter was heard in the Family Court of Australia. The primary legal issues before the court were whether there is a general rule that adoption is preferable to long-term foster care, and if so, whether adoption was clearly preferable to long-term fostering in the specific circumstances of this case. Additionally, the court needed to determine whether the birth mother's consent to the adoption could be dispensed with.
In addressing these issues, the court examined the relevant legislation, including the Adoption Act and the Children and Young Persons (Care and Protection) Act. The court concluded that while there is no absolute rule that adoption is always preferable to long-term foster care, the best interests of the child are the paramount consideration. The court found that in this case, adoption was indeed in the best interests of the children, given the stability and security it would provide them. The court also held that the birth mother's consent was not necessary as it was in the children's best interests for her consent to be dispensed with, given her history of drug abuse and inability to provide a stable environment. The court found that the children had been in foster care for an extended period and had formed strong bonds with their foster mother, making adoption the more suitable option for their long-term welfare.
The court ordered that the children be adopted by A, the foster mother, and that the birth mother's consent to the adoption be dispensed with. The court also made orders for the adoption to be final and absolute, severing all legal ties between the children and their birth mother.