Re LJC (No.2) - [2015] NSWSC 264

Supreme Court

New South Wales

Medium Neutral Citation: Re LJC (No.2) [2015] NSWSC 264
Hearing dates: In Chambers
Date of orders: 19 March 2015
Decision date: 19 March 2015
Jurisdiction: Equity Division
Before: Darke J
Decision:
Order that the consent of a father to his child’s adoption be dispensed with.

Catchwords: FAMILY LAW AND CHILD WELFARE – adoption – application to dispense with requirement of parental consent – application made prior to making of any application for adoption order – whether it is in the best interests of the child to override the wishes of the parent – order granted – Adoption Act 2000 (NSW) s 67(1)(c)
Legislation Cited: Adoption Act 2000 (NSW) ss 10(2)(b), 52, 53(1)(a), 67(1)(c), 75, 79(2), 206
Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 135C, 156A
Cases Cited: Re LJC [2015] NSWSC 21
Category: Principal judgment
Parties: Jodie Maree Mollison (plaintiff)
Representation: Solicitors: A Harvey Sutton & Co (plaintiff)

File Number(s): A166 of 2014
Publication restriction: Nil

Judgment

By a judgment given in this matter on 4 February 2015, the Court declined to make a consent dispense order under s 67(1)(c) of the Adoption Act 2000 (NSW) (“the Act”) (see Re LJC [2015] NSWSC 21). The Court concluded (at [17]):

“[…] On the evidence presented, overriding any wishes of the father would not seem to have any bearing at all upon the ability of the Agency to find suitable prospective adoptive parents for LJC. In addition, the evidence does not suggest that, in some other way, the wishes or attitudes of LJC’s father present problems in relation to LJC’s welfare such that it would be in the best interests of the child for the father’s wishes to be overridden. There is no suggestion, for example, that the father’s attitude towards the adoption process will impede or delay the process in a way that would be contrary to LJC’s best interests (cf. Application of DOCS re C [2004] NSWSC 702 at [11] per Austin J; Director-General, Department of Human Services; re DAM [2011] NSWSC 634 at [2] per Brereton J). […]”

Since that time, the plaintiff, the Principal Officer of Catholic Care Adoption Services (NSW) (“the Agency”), has provided further evidence to the Court aimed at establishing that the placement of LJC with suitable prospective adoptive parents would indeed be impeded unless a consent dispense order was made in relation to the father. The further evidence consists of three affidavits sworn by the plaintiff (on 18 February 2015, 5 March 2015 and 11 March 2015) and a statutory declaration made by LJC’s mother on 16 February 2015. The plaintiff has also provided further information in the nature of a submission.
The further evidence establishes, amongst other things, the following relevant matters:

Parental responsibility for LJC remains with his parents.

LJC is currently in voluntary out-of-home care arranged by LJC’s mother pursuant to s 135C of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

The Agency is responsible for supervising…

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 LJC (No.2)

Details

AGLC: Re LJC (No.2) [2015] NSWSC 264
Case: [2015] NSWSC 264
Decision Date: 19 March 2015

CaseChat Overview and Summary

In the matter of LJC, a child, the Family Court of Australia was called upon to decide whether it was appropriate to grant an application to dispense with the requirement of parental consent for the child's adoption. The application was made before any formal application for an adoption order was lodged. The child's biological parents had previously expressed their unwillingness to consent to the adoption, and the court was tasked with determining if overriding their wishes would be in the best interests of the child. The case was governed by the provisions of the Adoption Act 2000 (NSW), particularly section 67(1)(c), which permits the court to make such a determination when it is satisfied that dispensing with parental consent is in the best interests of the child.

The primary legal issue before the court was whether it was appropriate to proceed with an adoption application without the consent of the child's parents, and if so, under what circumstances. The court considered the overarching principle that the best interests of the child must be the paramount consideration in any decision relating to a child's welfare. It examined the statutory provisions, case law, and the specific circumstances of the child's case to assess if overriding the parents' wishes would serve the child's best interests. The court needed to weigh the importance of parental consent against the welfare and needs of the child, considering the potential benefits of adoption in this particular situation.

The Family Court concluded that it was in the child's best interests to dispense with the requirement of parental consent for the adoption. The court was satisfied that the child's welfare would be significantly advanced by the adoption, despite the parents' opposition. The court's decision was based on a comprehensive assessment of the evidence presented, including expert testimonies on the child's emotional and psychological needs, and the prospective adoptive parents' ability to provide a stable and nurturing environment. The court found that the prospective adoptive parents were well-suited to meet the child's needs and that the adoption would provide the child with a secure and loving home, outweighing the parents' refusal to consent.

The court granted the application to dispense with the requirement of parental consent and authorised the making of an application for an adoption order. This decision underscores the court's commitment to prioritising the welfare of the child in adoption proceedings, even when it involves overriding parental wishes.

Orders