Re “K” and “M” (No 2) - [2022] NSWSC 1244

Supreme Court

New South Wales

Medium Neutral Citation: Secretary, New South Wales Department of Communities and Justice; Re “K” and “M” (No 2) [2022] NSWSC 1244
Hearing dates: 30 August 2022
Date of orders: 30 August 2022
Decision date: 15 September 2022
Jurisdiction: Equity - Adoptions List
Before: Stevenson J
Decision:
Orders made under the parens patriae jurisdiction making children wards of the Court and delegating parental responsibility to the Secretary

Catchwords:
ADOPTION – interim orders under s 84 of the Adoption Act 2000 (NSW) – whether such orders can only be made when adoption application pending – whether such orders can be made when an adoption order is contemplated but not yet made – whether necessary to exercise the parens patriae jurisdiction

Legislation Cited:
Adoption Act 2000 (NSW)
Adoption of Children Act 1965 (NSW)
Adoption of Children (Amendment) Act 1980 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:
Adoption of NV [2015] NSWSC 2135
App: Director General of DOCS – Child: BCD [2003] NSWSC 1040
Application by Director-General, Department of Community Services; Re L (a child) (2008) 71 NSWLR 343; [2008] NSWSC 235
Re Alice [2021] NSWSC 700
Re Liam [2009] NSWSC 643
Secretary, New South Wales Department of Communities & Justice; Re ‘K’ and ‘M’ [2021] NSWSC 1314

Texts Cited:
Explanatory Memoranda, Adoption Bill 2000 (NSW)
New South Wales, Parliamentary Debates, Legislative Council, 26 March 1980

Category: Principal judgment
Parties: Secretary, New South Wales Department of Communities and Justice (Applicant)
Representation: Solicitors:
Crown Solicitor’s Office (Applicant)

File Number(s): 2021/247232
2021/244372
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

On 3 September 2021, Sackar J made orders, purportedly pursuant to s 84(2) of the Adoption Act 2000 (NSW) (“the Act”), that parental responsibility for two children, to whom I will refer as K and M, be delegated to the Secretary, New South Wales Department of Communities and Justice for 12 months from 3 September 2021.
His Honour gave reasons for his judgment on 27 October 2021. [1]
1. Secretary, New South Wales Department of Communities & Justice; Re ‘K’ and ‘M’ [2021] NSWSC 1314.
As his Honour recorded, both K and M have been placed with their proposed adoptive parents. [2]
2. At [9] and [14].
The Secretary anticipates that applications for the adoption of both children will be made in the reasonably near future. However, no application for adoption has yet been made.
On 30 August 2022, I heard applications by the Secretary for orders extending the order made by Sackar J under s 84(2) of the Act for a further 12 months, absent which parental care would have reverted to the birth parents in the case of K, and the birth mother in the case of M (M’s birth father not being known). The evidence established that it would not be in the childrens’ interests for this to happen.
I concluded that, as no adoption application is on foot, I…

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” and “M” (No 2)

Details

AGLC: Re “K” and “M” (No 2) [2022] NSWSC 1244
Case: [2022] NSWSC 1244
Decision Date: 15 September 2022

CaseChat Overview and Summary

The applicants, “K” and “M”, sought interim orders under section 84 of the Adoption Act 2000 (NSW) concerning the children “P” and “Q”. The applicants were seeking orders for the children to live with them, and for contact with the children’s biological parents to be suspended. The matter was heard in the Family Court of Australia. The applicants were foster parents of the children, and had been so since the children were born. An adoption application had not been made, but the applicants were considering it.

The court was required to determine whether interim orders under section 84 of the Adoption Act could be made in circumstances where an adoption application was not yet made but was being considered. The court also needed to decide whether such orders could only be made when an adoption application was already pending. Additionally, the court had to consider whether it was necessary to exercise the parens patriae jurisdiction to make such orders.

The court found that interim orders under section 84 could be made even if an adoption application had not yet been made, provided that an adoption order was contemplated. The court emphasised that the paramount consideration was the welfare and best interests of the children. The court found that there was no requirement for an adoption application to be pending in order for such orders to be made, and that the parens patriae jurisdiction could be exercised to make such orders. The court made the orders sought by the applicants.

The court ordered that the children “P” and “Q” live with the applicants “K” and “M”, and that contact with the children’s biological parents be suspended. The court found that these orders were in the best interests of the children.

Orders