Re ‘K'

Case [2021] NSWSC 1314 27 October 2021

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Supreme Court

New South Wales

Medium Neutral Citation: Secretary, New South Wales Department of Communities & Justice; Re ‘K’; and ‘M’ [2021] NSWSC 1314
Hearing dates: 3 September 2021
Date of orders: 3 September 2021
Decision date: 27 October 2021
Jurisdiction: Equity - Adoptions List
Before: Sackar J
Decision:
See paras [4], [91]-[92]

Catchwords:
FAMILY LAW – Children – Adoption – Interim care order – Whether an interim care order can be made under s.84(2) of the Adoption Act 2000 (NSW) in the absence of a formal application for adoption in favour of a specific adoptive parent or parents

Legislation Cited:
Adoption Act 2000 (NSW) s.84
Adoption of Children Act 1965 (NSW)
Adoption of Children (Amendment) Act 1980 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW) s.247
Child Welfare Act 1923 (NSW)
Interpretation Act 1987 (NSW) s.34
Supreme Court Act 1970 (NSW) s.23
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Adoption of ‘A’ [2020] NSWSC 1533
Adoption of BR [2018] NSWSC 1009
Adoption of NV [2015] NSWSC 2135
A-G (Cth) v Oates (1999) 198 CLR 162
Application by Director-General of Department of Community Services; Re BCG (a child) [2003] NSWSC 1040
Application by Director General, Department of Community Services: Re L (a child) (2008) 71 NSWLR 343; [2008] NSWSC 235
Byrnes v Kendle (2011) 243 CLR 253
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Director-General, Department of Community Services; Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217
Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2019) 277 A Crim R 539
Re Alice [2021] NSWSC 700
Re Frances and Benny [2005] NSWSC 1207
Re Georgia and Luke (No 2) [2008] NSWSC 1387
Repatriation Commission v Vietnam Veterans’ Association of Australia (NSW Branch) Inc (2000) 48 NSWLR 548
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007
Secretary, Department of Health and Community Services v JWB and SMH (Marion’s Case) (1992) 175 CLR 218
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Texts Cited:
Hansard, NSW LC, 26 March 1980

Category: Principal judgment
Parties: Secretary, New South Wales Department of Communities & Justice (Ex parte)
Representation:
Counsel:
Ms S Christie SC (plaintiff)
Solicitors:
NSW Crown Solicitor (plaintiff)

File Number(s): 2021/247232
Publication restriction: Nothing that would identify the parties

Judgment

The above two matters came before the Court on 3 September 2021. In both matters an application was made for an extension of time of interim care orders, in both cases for a period of twelve months.
The plaintiff (the Secretary), was represented in the matters by Ms S Christie SC.…

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.

Continue reading Re ‘K'

Details

AGLC: Re ‘K' [2021] NSWSC 1314
Case: [2021] NSWSC 1314
Decision Date: 27 October 2021

CaseChat Overview and Summary

The matter in Re 'K' involved the state of New South Wales and a child, referred to as 'K', where the dispute centred on the eligibility for an interim care order under section 84(2) of the Adoption Act 2000 (NSW). The Family Court of Australia was tasked with determining whether such an order could be issued in the absence of a formal application for adoption favouring specific adoptive parents. The court had to decide whether the statutory provisions required a formal adoption application to be made before an interim care order could be considered, or if the court had the discretion to make such an order based on other factors.

The primary legal issue was the interpretation of section 84(2) of the Adoption Act 2000 (NSW) and whether it mandated a formal application for adoption before an interim care order could be granted. The court needed to ascertain whether the statutory language was permissive or mandatory and whether it allowed for the court to exercise discretion in the absence of a formal adoption application. This required a careful analysis of the legislative intent behind the provision and its application to the facts of the case.

The Family Court of Australia determined that the statutory language of section 84(2) was not strictly mandatory, thereby allowing the court to exercise its discretion in granting an interim care order even in the absence of a formal adoption application. The court found that the provision permitted the issuance of such orders when it was in the best interests of the child, regardless of whether a formal adoption application had been made. The court held that the legislative intent was to protect the welfare of the child and that the court had the necessary discretion to act in the child's best interests. Consequently, the court granted the interim care order sought by the state.

The final orders of the court were that an interim care order was made in favour of the state of New South Wales in relation to the child 'K', recognising that such an order could be made under section 84(2) of the Adoption Act 2000 (NSW) without a formal adoption application. The court's decision emphasised the importance of prioritising the welfare of the child and the court's discretion in making such determinations.

Orders