The Adoption of Ava (a pseudonym) - [2024] NSWSC 1448

Supreme Court

New South Wales

Medium Neutral Citation: The Adoption of Ava (a pseudonym) [2024] NSWSC 1448
Hearing dates: 18 November 2024
Date of orders: 18 November 2024
Decision date: 18 November 2024
Jurisdiction: Equity - Adoptions List
Before: Nixon J
Decision:
(1) An order for the adoption of the child, Ava Westley, in favour of the proposed adoptive parent, Penny Nicola Hedley.
(2) An order approving the name "Westley" as the surname and "Ava Caroline" as the given names of the child.
(3) A declaration pursuant to s 21(2) of the Status of Children Act 1996 (NSW) that Travis Pottinger is the father of Ava Westley.
(4) An order pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) for the inclusion of Travis Pottinger as the father of Ava Westley in the Register of Births, Deaths and Marriages.

Catchwords:
CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether child is of sufficient maturity to understand effect of giving consent to adoption – whether declaration of parentage should be made – where sole adoptive parent seeks orders - whether change of name should be approved

Legislation Cited:
Adoption Act 2000 (NSW), ss 8, 27, 52, 54, 67, 72, 88, 90, 91, 92, 101, 180
Births, Deaths and Marriages Registration Act 1995 (NSW), s 19
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Status of Children Act1996 (NSW), s 21, 23

Cases Cited:
Adoption of Ashleigh (a pseudonym) [2024] NSWSC 763
Adoption of BL [2018] NSWSC 391
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of RCC and RZA [2015] NSWSC 813
Adoption of Taylor-Clay [2019] NSWSC 27
Application of A - re D [2006] NSWSC 1056
Farnell v Penhalluriack (No 2) [2008] VSC 214
In re W (A Child) (Adoption: Grandparents’Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793
Re the Adoption of AJH [2017] NSWSC 1751
Re ASK and the Adoption Act 2000 [2017] NSWSC 521
Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241
Re the Adoption of CCS and FLS [2019] NSWSC 71
Director General Department of Human Services; Re M [2011] NSWSC 369
Re: “M” [2002] NSWSC 158
Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087

Category: Principal judgment
Parties: Secretary, NSW Department of Communities and Justice (Plaintiff)
Representation: Solicitors:
NSW Department of Communities and Justice (Plaintiff)

File Number(s): 2024/00264716
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

These proceedings concern the proposed adoption of a child, Ava Westley, who is now twelve years of age, by the proposed adoptive parent, Penny Nicola Hedley. For convenience, and without intending any disrespect, I will refer to each of the individuals involved in this matter by his or her first name, noting…

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.

Keep reading for free

Create a free CaseChat account to read The Adoption of Ava (a pseudonym) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWSC 1448
Decision Date: 18 November 2024

CaseChat Overview and Summary

In the Family Court of Australia, the matter of The Adoption of Ava was heard, where the central issue was whether it was in the best interests of a child named Ava, whose identity has been protected by the use of a pseudonym, to be adopted by a sole adoptive parent. The court was tasked with determining if the adoption order was clearly preferable, if Ava was mature enough to understand the implications of giving consent to the adoption, if a declaration of parentage should be made, and if a change of name should be approved. The child's welfare was the paramount consideration throughout the proceedings.

The legal issues that arose in this case included the assessment of the child's best interests in light of the adoption application, the determination of the child's capacity to comprehend the consequences of giving consent, the necessity of a declaration of parentage, and the appropriateness of a name change post-adoption. The court had to balance the rights and interests of the child with those of the prospective adoptive parent and consider statutory provisions governing adoption and child welfare.

The court considered the evidence and submissions presented, focusing on the welfare of Ava. It was satisfied that the adoption was in the child's best interests and that the child was of sufficient maturity to understand the implications of giving consent to the adoption. The court also found that a declaration of parentage should be made and that a change of name was appropriate. The court was persuaded that the adoptive parent would provide a stable and loving environment for Ava, which was crucial for her development and well-being.

The final orders included the granting of an adoption order, a declaration of parentage in favour of the adoptive parent, and approval for a change of the child's name. The court's decision was made in the interest of ensuring Ava's future security and happiness within a supportive family structure.

Orders