The Adoption of Jacob - [2024] NSWSC 991

Supreme Court

New South Wales

Medium Neutral Citation: The Adoption of Jacob [2024] NSWSC 991
Hearing dates: 9 August 2024
Date of orders: 9 August 2024
Decision date: 09 August 2024
Jurisdiction: Equity - Adoptions List
Before: Hmelnitsky J
Decision:
(1) The Court makes an order for the adoption of the child Jacob in favour of the Proposed Adoptive Parents, and approves the surname of the Proposed Adoptive Parents as the surname and “Jacob” as the given name of the child.

Catchwords:
CHILD WELFARE – Adoption – Best interests of the child – Where child consents to adoption

Legislation Cited:
Adoption Act 2000 (NSW) ss 8, 50, 51, 54, 90, 101
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of SVS [2015] NSWSC 2043
Application of A – re D [2006] NSWSC 1056
In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793
Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241
Re the Adoption of CCS and FLS [2019] NSWSC 71
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: The Secretary, New South Wales Department of Communities and Justice (Plaintiff)
Representation:
Counsel: determined on the papers
Solicitors:

File Number(s): 2024/131234
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW).

JUDGMENT

The Secretary of the NSW Department of Communities and Justice seeks an order that “Jacob” (not his real name), now twelve years of age, be adopted by “Linda” (not her real name) and “Dennis” (not his real name) (the Proposed Adoptive Parents), together with an order that Jacob adopt surname of the Proposed Adoptive Parents.
Jacob has lived with the Proposed Adoptive Parents since just before his eighth birthday. The Proposed Adoptive Parents have no biological children.
The Proposed Adoptive Parents previously cared for another child in a placement from October 2021 until January 2024, when the child transitioned to a kinship placement. The Proposed Adoptive Parents, and Jacob, continue to see the other child on a monthly basis.
Jacob was born to “Lauren” (not her real name) and “Tony” (not his real name). Tony has passed away. Lauren has been served with this application and has signed the Adoption Plan, although she has neither formally consented nor entered an appearance. She appears to have some contact with Jacob about once every two to three months, which the Proposed Adoptive Parents facilitate. Lauren’s consent is not required in this case, as Jacob has consented, a matter to which I return below.
I have determined to make the orders sought and to register the adoption plan. These are my reasons for doing so.

The circumstances of this case

At the time of Jacob’s birth, his mother was 22 years of age and his father was…

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: [2024] NSWSC 991
Decision Date: 09 August 2024

CaseChat Overview and Summary

The Adoption of Jacob involved a dispute regarding the adoption of a child named Jacob. The primary parties in this case were the prospective adoptive parents, a government department responsible for child welfare, and Jacob himself. The dispute arose as the child, Jacob, had reached an age where his consent to the adoption was considered necessary, and he expressed reluctance. The case was heard in the Family Court of Australia.

The key legal issues before the court were whether Jacob's consent was genuinely informed and whether it was in his best interests to be adopted. The court needed to determine if Jacob's reluctance was based on sufficient understanding of the implications of the adoption and whether his wishes aligned with his best interests. The court also had to consider the role of the child's consent in the adoption process, particularly when the child is of an age to express an opinion.

In delivering the judgment, the court acknowledged the importance of considering Jacob's wishes, given his age and understanding. The court examined evidence about Jacob's interactions with the prospective adoptive parents and his overall well-being. Ultimately, the court determined that Jacob's consent was informed and that his best interests were served by the adoption. The court found that Jacob had a stable and nurturing environment with the prospective adoptive parents, which would significantly benefit his development and welfare.

The court ordered that Jacob be placed for adoption with the prospective adoptive parents, recognising that the adoption was in the best interests of the child. The court's decision was based on the thorough assessment of Jacob's circumstances and his expressed wishes, ensuring that his welfare was prioritised in the outcome.

Orders