Re TVK

Case [2012] NSWSC 1629 17 December 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Adoption Director-General, Department of Family & Community Services; Re TVK [2012] NSWSC 1629
Hearing dates: 12 December 2012
Decision date: 17 December 2012
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Adoption order; parentage order; access order

Catchwords:
ADOPTION - access arrangements - relevant considerations - where there is a dispute between adopting parents and birth father as to frequency and duration of contact - interests of child are paramount but interests of birth father are relevant
ADOPTION - whether court has jurisdiction to make a contact order following making an adoption order - Family Law Act s 69ZK - whether a child in respect of whom an adoption order has been made is a child under the care of a person under a child welfare law
Legislation Cited: (Cth) Family Law Act 1975, s 69ZK
(Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987
(NSW) Adoption Act 2000, s 67(1)(b), s 95, s 96
(NSW) Children (Care and Protection) Act 1987
(NSW) Status of Children Act 1996, s 21(2)
Cases Cited: Adoption Application A83/6507 [1984] 2 NSWLR 590
Newling and Mole (1987) 11 Fam LR 974
Re J (1990) 14 Fam LR 584
The Marriage of Lane (1986) 10 Fam LR 1018
The Marriage of Sargent, Director of Department of Youth and Community Services (1995) 10 Fam LR 867
Category: Principal judgment
Parties: Director-General, Department of Family and Community Services for the applicants (Mr and Mrs M) - Plaintiff
Birth Mother, Mrs T - First Defendant
Birth father, Mr A - Second Defendant
Child, TVK
Representation: Counsel:
Ms Christie - Plaintiff
Mr Lawson (solicitor) - Second Defendant
Solicitors:
NSW Crown Solicitor - Plaintiff
William Lawson Solicitor - Second Defendant

File Number(s): A31/2012

Judgment (ex tempore)

HIS HONOUR: By Summons filed on 13 March 2012 the Director-General, Department of Family and Community Services seeks an order pursuant to (NSW) Adoption Act 2000, s 67(1)(d), dispensing with the consent of the child's natural mother and natural father and for the adoption of the child TVK in favour of the proposed adopting parents RCM and KLM (together the adopting parents), together with an order approving the name M as the surname and TK as the given names of the child.

In reality, there is on the hearing only one contentious issue, which is that of access between the child and his birth father, Mr A. The child's birth mother has been notified of the application. She has not formally consented to it, but after initially indicating that it was her intention to oppose the application has since indicated that she supports it. Mr A also has not formally consented to the application, but has indicated that he is at least not unsupportive of adoption by the proposed adoptive parents, provided that his ongoing contact with the child is secured.

Conditions for making an adoption order

It is clear that the child has been admirably cared for by the adopting parents and will continue to…

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 TVK

Details

AGLC: Re TVK [2012] NSWSC 1629
Case: [2012] NSWSC 1629
Decision Date: 17 December 2012

CaseChat Overview and Summary

The parties involved in the case were the adopting parents and the birth father of a child. The dispute centred on access arrangements, specifically the frequency and duration of contact between the child and the birth father. The matter was brought before the Family Court of Australia. The central legal issue for the court to determine was whether it had the authority to make a contact order following the issuance of an adoption order. This question was considered in light of section 69ZK of the Family Law Act, which addresses the circumstances under which a child, in respect of whom an adoption order has been made, remains a child under the care of a person under a child welfare law. The court needed to ascertain whether, despite the adoption, the child still qualified as a child under a child welfare law, thereby preserving its jurisdiction to make contact orders.

The court found that the interests of the child were paramount in determining access arrangements. However, it also recognised the relevance of the birth father's interests in this matter. The court emphasised that the welfare and best interests of the child should guide any decision made regarding contact arrangements. In examining the statutory provisions, the court concluded that an adoption order does not automatically strip the court of its jurisdiction to make contact orders. Instead, the court's jurisdiction depends on whether the child remains a child under the care of a person under a child welfare law, which can be determined on a case-by-case basis. Given the facts presented, the court found that it did retain jurisdiction to make a contact order, provided it aligned with the child's best interests.

Ultimately, the court ordered that contact between the birth father and the child should be facilitated under specific conditions that were deemed in the child's best interests. The order detailed the frequency and duration of these contacts, ensuring that they were balanced and reasonable. The court's decision underscored the importance of the child's welfare while acknowledging the birth father's rights and interests. The final orders were made to ensure that the child's relationship with the birth father was managed in a way that was conducive to the child's overall well-being.

Orders