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 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 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
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.
The primary Judge noted that an application…
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- S and N v T [2020] ACTCA 36
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CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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