Re DG and the Adoption Act 2000 - [2007] NSWCA 241

New South Wales

Court of Appeal

CITATION: RE DG AND THE ADOPTION ACT 2000 [2007] NSWCA 241

HEARING DATE(S): 01/09/2007

JUDGMENT DATE:
14 September 2007

JUDGMENT OF: Santow JA at 1; Basten JA at 2; Handley AJA at 17

DECISION: 1. Leave to appeal granted with effect from 9 January 2007 so as to deem the appeal instituted that day to be competent; 2. Dispense with further compliance with the Rules; 3. Appeal dismissed; 4. No order as to costs; 5. Liberty to the Second Respondent to apply for a different order for costs within 14 days by lodging written submissions in the submissions box on Level 12 and serving a copy on the solicitors for the Appellants.

CATCHWORDS: APPEAL – APPEAL AS OF RIGHT – MONETARY THRESHOLD – NON-MONETARY ISSUES - ADOPTION – ADOPTION OF ADULT – BY STEP-PARENT - STATUTE – CONSTRUCTION – WHEN WORDS CAN BE IMPLIED

LEGISLATION CITED: Adoption Act 2000 (NSW), ss24, 27, 28, 30, 95, Sch 3
Adoption Amendment Act 2006 (NSW) , Sch 1
Family Law Act 1975 (Cth)
Supreme Court Act 1970 (NSW), s 101

CASES CITED: Clyne v NSW Bar Association (1960) 104 CLR 186
Cooper Brookes (Wollongong) Pty Limited v F C T (1981) 147 CLR 297
Jones v Wrotham Park Settled Estates [1980] AC 74
Kammins Ballrooms Co. Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850
Laker Airways Ltd v Department of Trade [1977] QB 643
Parrett v Secretary, Department of Family and Community Services (2002) 124 FCR 299
R v Young (1999) 46 NSWLR 681
Re DG and the Adoption Act 2000 [2006] NSWSC 968
Re Director-General, Department of Community Services (NSW), Adoption of DR by DCB and HMB (2000) 26 Fam LR 107
Re Lockwood [1958] Ch 231
Saraswati v R (1991) 172 CLR 1
Thornton v Brunsden (1956) 56 SR (NSW) 265

PARTIES: Demetrius James Galanakis
Catherine Galanakis
Diana Artemis Galanakis
Director-General of DOCS

FILE NUMBER(S): CA 40642/2006

COUNSEL: 1st & 2nd Appellants - M. Anderson
1st Respondent - M. Anderson
2nd Respondent - Ms M. England

SOLICITORS: 1st & 2nd Appellants - Gwynne Thompson Solicitors
1st Respondent - Not legally represented
2nd Respondent - Crown Solicitors

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 69/2006

LOWER COURT JUDICIAL OFFICER: Austin J

LOWER COURT DATE OF DECISION: 19/09/2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 968

CA 40642/06

SANTOW JA
BASTEN JA
HANDLEY AJA
Friday 14 September 2007

RE DG AND THE ADOPTION ACT 2000

APPEAL – APPEAL AS OF RIGHT – MONETARY THRESHOLD – NON-MONETARY ISSUES

ADOPTION – ADOPTION OF ADULT – BY STEP-PARENT

STATUTE – CONSTRUCTION – WHEN WORDS CAN BE IMPLIED

The appellants, the step-father and mother of DG, a 35-year-old married woman, applied to adopt her. The primary judge rejected the application because of s. 30(b) of the Adoption Act 2000, as DB had not been living with the appellants for the required period immediately before the application was made. The appellants argued that words were…

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: [2007] NSWCA 241
Decision Date: 14 September 2007

CaseChat Overview and Summary

The case of *Re DG and the Adoption Act 2000* concerned an appeal to the Court of Appeal of New South Wales regarding the adoption of an adult by a step-parent. The primary dispute revolved around the interpretation of the *Adoption Act 2000* (NSW) and whether it permitted such an adoption in the circumstances presented.

The central legal issue before the Court of Appeal was whether the *Adoption Act 2000* allowed for the adoption of an adult by a step-parent, and if so, under what conditions. This required the court to consider the statutory construction of the Act, specifically whether words could be implied into the legislation to permit or prohibit such adoptions, and whether the monetary threshold for appeals applied to non-monetary issues such as this.

The Court of Appeal reasoned that the *Adoption Act 2000* did not, by its plain language, permit the adoption of an adult by a step-parent. The court found no basis to imply words into the statute that would extend its operation to such a scenario, and determined that the appeal was not subject to the monetary threshold. Consequently, leave to appeal was granted, but the appeal itself was dismissed. The court made no order as to costs, but provided liberty to the Second Respondent to apply for a different costs order within 14 days.

Orders

Orders of the court

1. Leave to appeal granted with effect from 9 January 2007 so as to deem the appeal instituted that day to be competent; 2. Dispense with further compliance with the Rules; 3. Appeal dismissed; 4. No order as to costs; 5. Liberty to the Second Respondent to apply for a different order for costs within 14 days by lodging written submissions in the submissions box on Level 12 and serving a copy on the solicitors for the Appellants.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	RE DG AND THE ADOPTION ACT 2000 [2007] NSWCA 241
HEARING DATE(S):	01/09/2007
JUDGMENT DATE:	14 September 2007
JUDGMENT OF:	Santow JA at 1; Basten JA at 2; Handley AJA at 17
DECISION:	1. Leave to appeal granted with effect from 9 January 2007 so as to deem the appeal instituted that day to be competent; 2. Dispense with further compliance with the Rules; 3. Appeal dismissed; 4. No order as to costs; 5. Liberty to the Second Respondent to apply for a different order for costs within 14 days by lodging written submissions in the submissions box on Level 12 and serving a copy on the solicitors for the Appellants.
CATCHWORDS:	APPEAL – APPEAL AS OF RIGHT – MONETARY THRESHOLD – NON-MONETARY ISSUES - ADOPTION – ADOPTION OF ADULT – BY STEP-PARENT - STATUTE – CONSTRUCTION – WHEN WORDS CAN BE IMPLIED
LEGISLATION CITED:	Adoption Act 2000 (NSW), ss24, 27, 28, 30, 95, Sch 3 Adoption Amendment Act 2006 (NSW) , Sch 1 Family Law Act 1975 (Cth) Supreme Court Act 1970 (NSW), s 101
CASES CITED:	Clyne v NSW Bar Association (1960) 104 CLR 186 Cooper Brookes (Wollongong) Pty Limited v F C T (1981) 147 CLR 297 Jones v Wrotham Park Settled Estates [1980] AC 74 Kammins Ballrooms Co. Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 Laker Airways Ltd v Department of Trade [1977] QB 643 Parrett v Secretary, Department of Family and Community Services (2002) 124 FCR 299 R v Young (1999) 46 NSWLR 681 Re DG and the Adoption Act 2000 [2006] NSWSC 968 Re Director-General, Department of Community Services (NSW), Adoption of DR by DCB and HMB (2000) 26 Fam LR 107 Re Lockwood [1958] Ch 231 Saraswati v R (1991) 172 CLR 1 Thornton v Brunsden (1956) 56 SR (NSW) 265
PARTIES:	Demetrius James Galanakis Catherine Galanakis Diana Artemis Galanakis Director-General of DOCS
FILE NUMBER(S):	CA 40642/2006
COUNSEL:	1st & 2nd Appellants - M. Anderson 1st Respondent - M. Anderson 2nd Respondent - Ms M. England
SOLICITORS:	1st & 2nd Appellants - Gwynne Thompson Solicitors 1st Respondent - Not legally represented 2nd Respondent - Crown Solicitors
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 69/2006
LOWER COURT JUDICIAL OFFICER:	Austin J
LOWER COURT DATE OF DECISION:	19/09/2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2006] NSWSC 968