S and N v T

Case [2020] ACTCA 36


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

S and N v T

Citation:

[2020] ACTCA 36

Hearing Date:

20 May 2020

DecisionDate:

10 July 2020

Before:

Elkaim J, Robinson AJ and Crowe AJ

Decision:

See [69]

Catchwords:

APPEAL – ADOPTION – Standard of Satisfaction – Dispensation of consent – nature of hearing

Legislation Cited:

Adoption Act 1993 (ACT) ss 4, 5, 6, 19, 26, 35, 37D, 39D, 39F, 39K, 40, 113, div 3.3

Adoption Act 2000 (NSW) s 90
Adoption Amendment Act 2009 (No 2) (ACT)
Adoption of Children Act 1896 (WA) s 2A
Children and Young People Act 2008 (ACT)
Court Procedures Rules 2006 (ACT) r 3170
Evidence Act 2011 (ACT) s 140

Supreme Court Act 1933 (ACT) ss 37E, 37N, 37O

Cases Cited:

ABA v EWF (1977) 3 Fam LR 11,487

Briginshaw v Briginshaw (1938) 60 CLR 336
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124
House v The King (1936) 55 CLR 499
In the matter of the adoption of CD [2017] ACTSC 411
In the matter of an adoption of D [2008] ACTSC 44
In the matter of the adoption of MSM [2017] ACTSC 92
In the matter of the adoption of PT [2018] ACTSC 14
In the matter of the adoption of TT [2017] ACTSC 181
Kantor v Vosahlo [2004] VSCA 235
Mace v Murray (1955) 92 CLR 370

Re X and Adoption of Children Ordinance 1965 (1984) 2 FCR 533

Parties:

S and N (Appellants)

T (Respondent)

Independent Child Representative

Representation:

Counsel

K Archer and M Davis (Appellants)

S Leslie (Respondent)

K Mistry (Independent Child Representative)

Solicitors

Infinity Legal (Appellants)

Gabbedy Milson Lee (Respondent)

Legal Aid ACT (Independent Child Representative)

File Number:

ACTCA 2 of 2020

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  McWilliam AsJ

Date of Decision:          18 December 2019

Case Title:  In the matter of an adoption of QS

Citation: [2019] ACTSC 357

THE COURT:

Introduction

  1. The appellants challenge the decision of the primary Judge, her Honour Associate Justice McWilliam, to refuse their application to dispense with the consent of the birth mother for the adoption of the child (QS): see In the matter of an adoption of QS [2019] ACTSC 357. Her Honour in her reasons for decision (at [1]) summarised the circumstances of the application before her as follows:

The application before the Court arises in the context of proceedings where the foster carers (the applicants) are seeking to adopt a young girl.  The young girl, who is now seven years old, has been in their care since she was a few months of age.  In order to proceed with their adoption application, they are first seeking to dispense with the consent of the birth mother, who opposes the adoption.  The birth mother has been seeking to increase contact with her child, with a view to allowing the child to reside with her in later years.

  1. The primary Judge noted that an application…

Continue reading S and N v T

Sign in free to access the full text

Details
AGLC
S and N v T [2020] ACTCA 36
Case
[2020] ACTCA 36
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of New South Wales heard an appeal concerning the dispensation of consent in adoption proceedings. The appellants, S and N, sought to adopt a child, but the child's mother, T, refused to consent to the adoption. The primary judge had granted the application to dispense with T's consent, and T appealed this decision.

The central legal issue before the Full Court was the appropriate standard of satisfaction the primary judge was required to apply when considering whether to dispense with a parent's consent to an adoption. The Court also considered the nature of the hearing at which such a decision is made, particularly in light of the statutory framework governing adoptions in New South Wales.

The Full Court clarified that the standard of satisfaction required for dispensing with consent is not a mere balance of probabilities, but rather a higher standard akin to that of being "satisfied" that the grounds for dispensing with consent have been made out. This involves a comprehensive assessment of all relevant circumstances, with a paramount consideration being the welfare of the child. The Court emphasised that the hearing is not a mere formality but a critical judicial determination requiring careful consideration of the evidence and the statutory provisions. The Court found that the primary judge had applied the correct legal principles and the evidence supported the decision to dispense with the mother's consent.

The appeal was dismissed.

Orders

Orders of the court

See [69]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.