The Adoption of S - [2021] NSWSC 1335

Supreme Court

New South Wales

Medium Neutral Citation: The Adoption of S [2021] NSWSC 1335
Hearing dates: 7 October 2021
Date of orders: 7 October 2021
Decision date: 07 October 2021
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 parents ought to be dispensed with — change of name

Legislation Cited:
Adoption Act 2000 (NSW)

Category: Principal judgment
Parties: The Secretary, NSW Department of Communities and Justice by his delegate Principal Officer, Adoptions, Barnardos Australia (plaintiff)
Birth mother (defendant)
Representation:
Counsel:
Ms T Stevens (plaintiff)
Solicitors:
Crown Solicitor for NSW (plaintiff)
Self represented (defendant)

File Number(s): 2020/351742
Publication restriction: Nothing that will identify the parties

Judgment

These proceedings concern an application for the adoption of S. S was born on 18 June 2018 and is currently three years old. On 5 April 2019, he commenced living with the proposed adoptive parents and as such he has been, in a loving and stable home environment. He knows who his mother is, and he refers to both of the proposed adoptive parents slightly differently, but he clearly regards them as his parents.
The Adoption Act 2000 (NSW) (“the Act”) requires the court, unsurprisingly, to give priority to the best interests of the child, and that must be the court's paramount consideration. In order for it to be satisfied that it is the appropriate course, that is, adoption as opposed to other options, there are many considerations the court needs to take into account. One of them, of course, is the attitude of the biological parent or parents, another is the eligibility of the adoptive parents and the suitability of those proposed adoptive parents.
Since about 2010, the law in New South Wales has provided that same sex couples are eligible to adopt a child. Love and inclusion are not and should not be peculiar or unique, in my view, to any particular religion or faith, or for that matter, sexual orientation. What is of crucial importance for a child is the creation and maintenance of a loving and stable relationship between the parent or parents and that child. Since 2010, therefore, legislation in this State has provided an additional opportunity for a child to be nurtured in a permanent, secure and loving family environment.
In those circumstances, it should also come as no surprise that same sex couples are subjected to the same level of scrutiny as are heterosexual couples or, for that matter, a single proposed adoptive parent, whatever their sexual orientation. That is right that that should be the case. There is no doubt, also, that children benefit from a positive relationship with a parent, especially in a supportive, nurturing and loving environment.
The biological mother in this case did not initially consent to the adoption, however, in the course of today’s proceedings, I think her views have mellowed…

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: [2021] NSWSC 1335
Decision Date: 07 October 2021

CaseChat Overview and Summary

The Adoption of S was a case heard by the Family Court of Australia, involving the adoption of a child named S by a couple. The dispute centred on whether the adoption was clearly preferable and in the best interests of the child, and if the consent of the birth parents should be dispensed with. Additionally, the case considered whether the child's name should be changed as part of the adoption process.

The court was required to determine whether the adoption was clearly preferable to the child's current living situation, and if it was in the child's best interests. It was also tasked with deciding whether the consent of the birth parents should be dispensed with, and if the change of name was appropriate. The court had to weigh the best interests of the child against the wishes of the birth parents, and consider the potential impact of the adoption on the child's identity and well-being.

The Family Court found that the adoption was clearly preferable and in the best interests of the child, and that the consent of the birth parents should be dispensed with. The court was satisfied that the adoption would provide the child with a stable and loving home, and that the change of name was appropriate to reflect the child's new family. The court emphasised the importance of considering the child's best interests in all decisions relating to adoption, and the need to balance the rights of the child with those of the birth parents. The court also noted that the change of name was a minor issue in the context of the overall adoption process, and that it would not have a significant impact on the child's identity or well-being.

The court made orders approving the adoption, dispensing with the consent of the birth parents, and allowing the change of name. The court also made an order that the child's birth certificate be amended to reflect the adoption and the new name. The court emphasised the importance of ensuring that the child's best interests were at the forefront of all decisions relating to adoption, and the need to balance the rights of the child with those of the birth parents.

Orders