Re M

Case [2011] NSWSC 369 3 May 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Director General Department of Human Services; Re M [2011] NSWSC 369
Hearing dates: 6, 7, 8 and 13 April 2011
Decision date: 03 May 2011
Jurisdiction: Equity Division - Adoption List
Before: Hallen AsJ
Decision:
(a) It is in M's best interests that an adoption order should be made now, in preference to any other course of action.
(b) It is in the best interests of M, to make a consent dispense order under s 67(i)(d) of the Act in respect of each of M's natural parents.
(c) It is in M's interests that he be given the surname of his adoptive parents.
(d) Orders as sought by the Plaintiff in the Summons.

Catchwords: Application for the adoption of a child in favour of a married couple - Father of the child opposes orders - Mother of the child does not consent but did not appear at the hearing. Application for an order dispensing with the consent of the natural parents under s 67(1)(d) of the Adoption Act 2000 (NSW) and consequential orders regarding the name of the child.
Legislation Cited: Adoption Act 2000 (NSW)
Adoption Amendment Act, 2008
Children and Young Persons (Care and Protection) Act 1998
Civil Procedure Act 2005
Family Law Act 1975 (Cth)
Mental Health Act (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Application of A; Re D [2006] NSWSC 1056
Application of O and P [2005] NSWSC 1297; (2005) 34 Fam LR
Application of PL, re TB and FB [2007] NSWSC 665
B (A Minor), Re [2001] UKHL 70 at [16]; [2002] 1 All ER 641.
C v XYZ County Council [2007] EWCA Civ 1206; [2008] Fam 54
Cairns v Cairns [2006] NSWSC 364
Caldar v Public Trustee of NSW (Master McLaughlin, 27 October 2004, unreported)
Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762
Evelyn; Re [1998] FamCA 55
H, in the Marriage of (1995) FLC 92-599
K (a minor); Re (ward: care and control) [1990] 3 All ER 795
Kress, in the Marriage of [1976] FLC
Mace v Murray [1955] HCA 2; (1955) 92 CLR 370
New South Wales Department of Community Services v Y [1999] NSWSC 644
Peter; Re [2009] NSWSC 697
Rice v Miller (1993) 16 Fam LR 970
Category: Principal judgment
Parties: Director-General, Department of Human Services, (now called the Department of Family and Community Services) (Plaintiff)
NJ (first Defendant)
JP (second Defendant)
Representation: Counsel:
Ms S Christie (Plaintiff)
Father - Mr P (in person)
Mother - Ms J (no appearance)
Solicitors:
Crown Solicitor's Office (NSW) (Plaintiff)
Father - Mr P (in person)
Mother - Ms J (no appearance)

File Number(s): A61/2010

Judgment

The Application

HIS HONOUR: This is an application by the Delegate of the Director-General, Department of Human Services, (now called the Department of Family and Community Services) seeking an order for the adoption of a child who was born on 25 March 2004, in favour of a married couple.

The father of the…

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 M

Details

AGLC: Re M [2011] NSWSC 369
Case: [2011] NSWSC 369
Decision Date: 03 May 2011

CaseChat Overview and Summary

In the matter of Re M, the Family Court was tasked with deciding whether to grant an application for the adoption of a child by a married couple. The father of the child opposed the adoption, while the mother, though not consenting, did not appear at the hearing. The applicants sought an order under section 67(1)(d) of the Adoption Act 2000 (NSW) to dispense with the consent of the natural parents and to make consequential orders regarding the child's name.

The court was required to determine whether the welfare and best interests of the child would be served by granting the adoption application in the absence of the mother's consent. Key considerations included the father's opposition, the impact of the mother's non-appearance, and the welfare of the child. The court also had to assess if the statutory criteria under section 67(1)(d) were satisfied, particularly whether it was in the child's best interests to dispense with the parents' consent.

The court found that the child's welfare and best interests were paramount. Despite the father's opposition, the court considered the mother's non-appearance and the absence of any evidence to suggest that she would provide a stable environment. The court concluded that the adoption by the married couple would provide a stable and loving home for the child. The statutory criteria under section 67(1)(d) were met, as the court was satisfied that dispensing with the parents' consent was in the child's best interests.

Accordingly, the court made an order dispensing with the consent of the natural parents and granted the adoption application. The court also made consequential orders regarding the child's name, aligning with the wishes of the adoptive parents.

Orders