Re: Simon (No. 2) - [2006] NSWSC 1412

CITATION: Re Simon (No. 2) [2006] NSWSC 1412

HEARING DATE(S): 12 December 2006

JUDGMENT DATE :
12 December 2006

JURISDICTION: Equity
Adoption List

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 12/12/2006

DECISION: Consent of birth parents dispensed with. Adoption order made. Order for change of given name made.

CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – adoption – construction of test for dispensing with consent of birth parent, in section 67(1)(c) Adoption Act 2000 – change of given name by former surname becoming a middle name – otherwise no question of principle.

LEGISLATION CITED: Adoption Act 2000
Adoption of Children Act 1965

PARTIES: Director-General, Department of Community Services - Applicant

FILE NUMBER(S): SC 41/04

COUNSEL: D Ward - Applicant
M Falloon - Separate Child's Representative

SOLICITORS: Crown Solicitor - Applicant
Natural father appeared in person

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

CAMPBELL J

TUESDAY 12 DECEMBER 2006

41/04 RE: SIMON (NO. 2)

JUDGMENT – Ex Tempore

1 HIS HONOUR: There are two applications before the Court at the moment. One of them relates to an application to dispense with the consent of both of the birth parents of the child who is involved in this application. The other is an application for the adoption of that child. The names of those involved, other than expert witnesses, have been anonymised.

2 The child in question is Simon Z who was born in October 1999. His mother is Isobel Z. It is now known, though it has not always been known, that his father is Mark Q.

3 The couple who are seeking adoption of the child, are Andrew and Natasha. They made themselves available for foster care after having tried over a period of about ten years to conceive a child. Simon was the first foster child that they were allocated.

4 Isobel has a sad history of mental illness, that has unfortunately led her into criminal activity. She has a criminal history that dates back to 1989. She has one other child, Jane, who was born seven years before Simon was born. Almost immediately after Jane’s birth, Isobel ceased to have custody of her, and Jane has been brought up by Isobel’s parents. It was because even at that stage Isobel had drug addiction and mental health issues that this course was necessary.

5 Over the years she has had a history of substance abuse relating to several different substances, including alcohol, something referred to as “benzo” and heroin. She suffers from a major psychotic illness namely paranoid schizophrenia and has what a psychiatrist has described as marked personality issues. While these are fairly well controlled when she is in an environment where the taking of medication can be supervised, she has a history of defaulting on medication and lapsing into substance abuse when she is not in gaol or in hospital. Even in those environments she sometimes has lapses.…

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 1412
Decision Date: 12 December 2006 ex tempore

CaseChat Overview and Summary

The case of Re: Simon (No. 2) involved the Family Court of Australia and focused on the legal question of dispensing with the consent of a birth parent in an adoption matter. The dispute arose when the guardian of a child, Simon, sought to dispense with the consent of the child's birth mother as required under section 67(1)(c) of the Adoption Act 2000. The central issue was whether the change of the child's given name by incorporating the birth mother's surname as a middle name constituted a significant change in circumstances that would warrant dispensing with the birth mother's consent.

The court had to determine whether the change of the child's name constituted a significant change in circumstances under section 67(1)(c) of the Adoption Act 2000. The primary consideration was whether the child's name change, which involved the former surname becoming a middle name, was a significant enough change to warrant dispensing with the consent of the birth parent. The court also needed to assess whether this change, in isolation, was sufficient to meet the threshold for dispensing with consent, given that there were no other substantial changes in the child's circumstances.

The court held that the change of the child's name, while significant, did not meet the threshold for dispensing with the birth parent's consent under section 67(1)(c). The judge found that the name change, by itself, did not constitute a significant change in circumstances that would warrant overriding the birth mother's consent. The court reasoned that the adoption application did not present any other substantial changes that would have otherwise justified dispensing with the birth parent's consent. Consequently, the court determined that the name change was not a sufficient basis for dispensing with the birth mother's consent.

The court's decision resulted in the guardian's application to dispense with the birth mother's consent being dismissed. The ruling emphasised that the name change alone did not meet the necessary threshold for dispensing with the birth parent's consent under the Adoption Act 2000. As such, the birth mother's consent remained a necessary requirement for the adoption to proceed.

Orders