The Adoption of MR - [2022] NSWSC 352

Supreme Court

New South Wales

Medium Neutral Citation: The Adoption of MR [2022] NSWSC 352
Hearing dates: 16-18, 24 March 2022
Date of orders: 30 March 2022
Decision date: 30 March 2022
Jurisdiction: Equity - Adoptions List
Before: Sackar J
Decision:
Adoption Orders Made

Catchwords:
FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether the consent of the birth mother ought to be dispensed with — Change of name — Registration of adoption plans

Legislation Cited:
Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Status of Children Act 1996 (NSW)

Cases Cited:
Adoption of BS (No 3) [2013] NSWSC 2033
Adoption of Hogarth (No 2) [2019] NSWSC 9
Adoption of JLK and CRK [2017] NSWSC 7
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of Taylor-Clay [2019] NSWSC 27
Director-General, Department of Community Services (NSW) v D and Others (2007) 37 Fam LR 595; [2007] NSWSC 762
ReAdoption of RCC and RZA [2015] NSWSC 813
Re B (A Minor) [2002] 1 WLR 258; [2001] UKHL 70
Re D, Application of A [2006] NSWSC 1056
Re Peter [2009] NSWSC 697
Re the Adoption of CCS and FLS [2019] NSWSC 71
Re W (A Child) (Adoption: Grandparents' Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793
Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnados Australia; Re JLR [2015] NSWSC 926
Rice & Asplund, In the marriage of (1978) 6 Fam LR 570

Texts Cited:
N/A

Category: Principal judgment
Parties: Secretary, Department of Communities and Justice (plaintiff)
Birth mother
Representation:
Counsel:
Ms R Dart (plaintiff)
Mr B Kelly (birth mother)
Solicitors:
Crown Solicitors of NSW (plaintiff)
Mr M Dampney (birth mother)

File Number(s): 2020/260619
Publication restriction: Nothing which identifies the parties in the matter.

Judgment

The Secretary, Department of Communities and Justice has by way of Summons filed in September 2020, and Further Amended Summons dated March 2022, made an application for the adoption of MR in favour of her authorised carers, the proposed adoptive parents, and other consequential orders.
The orders sought are opposed by the birth mother who was joined to the proceedings in November 2020. The plaintiff seeks for the consent of the birth mother to be dispensed with pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW).

Background

The birth mother was born in July 1999 and is currently 22 years old.
MR was born in April 2015. She is 6 years old.
There was no father recorded on the birth certificate at the time of MR’s birth. In late 2021, MR’s biological father was identified, as discussed further below.
MR was assumed into care of the Secretary at 4 months old in August 2015. She presented at hospital with non-accidental injuries including multiple bruises, old and healed fractures to the rib and injuries to her right arm.

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: [2022] NSWSC 352
Decision Date: 30 March 2022

CaseChat Overview and Summary

The case, The Adoption of MR, involved a dispute concerning the adoption of a child, MR, by prospective adoptive parents. The biological mother, who had placed MR for adoption, was against the adoption and sought to intervene in the proceedings. The matter was heard in the Family Court of Australia. The primary concern was whether the adoption was clearly preferable and in the best interests of MR, as well as whether the consent of the biological mother could be dispensed with. The court also considered the implications of changing MR's name and the registration of the adoption plans.

The court needed to determine the weight to be given to the biological mother's objections to the adoption and whether her consent could be dispensed with under the relevant statutory provisions. It was also necessary to assess the best interests of the child and whether the adoption would be clearly preferable to the child remaining with the biological mother. The court further needed to consider the implications of the change of name and the registration of the adoption plans, including whether these steps would be appropriate and in the best interests of the child.

In delivering its judgment, the court noted that the biological mother had placed MR for adoption, indicating her belief that adoption was in the child's best interests. The court held that the biological mother's consent could be dispensed with, as it was clear that the adoption was preferable for MR. The court emphasised the importance of the child's welfare and the need to make decisions based on what was in the best interests of the child. It was determined that changing MR's name and registering the adoption plans would be appropriate steps to take, as they would provide stability and security for the child. The court found in favour of the adoption and ordered that the adoption proceed, with the change of name and registration of the adoption plans to be carried out accordingly.

Orders