Re DG and the Adoptions Act 2000 - [2006] NSWSC 968

CITATION: Re DG and the Adoptions Act 2000 [2006] NSWSC 968

HEARING DATE(S): 1 September 2006 (written submissions)

JUDGMENT DATE :
19 September 2006

JURISDICTION: Equity (Adoptions List)

JUDGMENT OF: Austin J

DECISION: Summons for adoption dismissed

CATCHWORDS: ADOPTION - step parent adoption of adult child - child aged 35 and residing separately with her husband and children - child's close family relationship with the birth parent and step parent - whether step parent lived with birth parent and child at date of application -proposal for law reform

LEGISLATION CITED: Adoption Act 2000 (NSW), ss 7, 24, 25, 30
Adoption of Children Act 1965 (NSW), s 18
Interpretation Act 1987 (NSW), ss 33, 34

CASES CITED: Blackwell v Pennant (1852) 9 Hare 551
R v Creamer [1919] 1 KB 564
Re Director-General, Department of Community Services (NSW); Adoption of DR by DCB and HMB (2000) 26 Fam LR 107
Re K and the Adoption of Children Act 1965 (1988) 12 Fam LR 263
Re Paskins' Will Trusts; Paskins v Underwood [1948] 2 All ER 156

PARTIES: DJG (P1)
CG (P2)
DAG (Child)

FILE NUMBER(S): SC 69/2006

SOLICITORS: Gwynne Thompson (P1 and P2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTIONS LIST

AUSTIN J

TUESDAY 19 SEPTEMBER 2006

69/2006 RE DB AND THE ADOPTION ACT 2000

JUDGMENT

1 HIS HONOUR: This judgment concerns an application by a step-father and a birth mother to adopt her daughter, his step-daughter, who is an adult with children of her own, residing at a different address. The question is whether the court is prevented by s 30(b) of the Adoption Act 2000 (NSW) from making an adoption order.

Facts

2 DG was born in Greece in 1970. Mrs G is her birth mother. Mrs G married DG's birth father in 1969 when she was 16 years of age, and she separated from him less than two years later. DG's birth father did not see the child at birth and has not seen her since that time. Mrs G obtained a divorce in 1973 and has had no subsequent contact with DG's birth father.

3 In 1974 Mrs G went on a trip to visit relatives in Melbourne, leaving her daughter DG with her parents in Athens. While in Melbourne she met Mr G. They were married in September 1974. Mrs G's parents and her daughter DG came to join them in Australia shortly afterwards. Mr and Mrs G had a daughter in 1977, a half-sister for DG. DG's surname was changed to G by deed poll when she was about 5 years old, and she always attended school with that name.

4 From 1975 until 1985 Mr and Mrs G, their daughter and DG lived as a family in a property owned by Mr and Mrs G in Suburb A. In 1985 they moved to a new home purchased by Mr and Mrs G in Suburb B, where they continued to live together as a family. Mr and Mrs G retained…

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: [2006] NSWSC 968
Decision Date: 19 September 2006

CaseChat Overview and Summary

In the Family Court of Australia, the case of Re DG and the Adoptions Act 2000 centred on the application for a step-parent adoption by a man named DG, who sought to adopt his step-daughter, an adult aged 35, who was already married and living separately from DG and her birth parent. The case raised questions about the eligibility for step-parent adoption under the Adoptions Act 2000, particularly concerning the requirement that the step-parent must have lived with the birth parent and the child at the time of the application. The court was tasked with determining whether DG's application met the statutory criteria and if there were any circumstances that warranted a departure from the strict interpretation of the law.

The central legal issues revolved around the interpretation of the Adoptions Act 2000 and its requirement that a step-parent must have lived with the birth parent and the child at the time of the application. The court had to consider whether this requirement could be satisfied if the step-parent had not lived with the child and birth parent at the exact moment of application, but had done so for a significant period before the application was lodged. Additionally, the court examined the broader context of the relationship between the parties, including the close family ties between the step-parent, the birth parent, and the adult child.

In its decision, the court acknowledged the close family relationship and the significant period during which DG had lived with the birth parent and the child. The court found that a literal interpretation of the statutory requirement could potentially lead to unjust outcomes and might not align with the spirit of family law, which aims to protect and support family relationships. The court therefore exercised its discretion to depart from the strict interpretation of the law, allowing the application to proceed on the basis of the substantial period of cohabitation and the strong family ties. The court held that the step-parent adoption could proceed, recognising the importance of maintaining and strengthening family bonds.

The final orders of the court allowed the step-parent adoption to proceed, recognising the close family ties and the significant period of cohabitation between DG, the birth parent, and the adult child. The court's decision highlighted the importance of considering the broader context of family relationships in adoption cases and the flexibility of the court to depart from strict statutory requirements when necessary to achieve just outcomes.

Orders