The Adoption of Sam (a pseudonym) - [2024] NSWSC 1317

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: The Adoption of Sam (a pseudonym) [2024] NSWSC 1317
Hearing dates: On the papers
Decision date: 21 October 2024
Jurisdiction: Equity - Adoptions List
Before: Stevenson J
Decision:
Adoption orders made

Catchwords:
CHILD WELFARE – adoption – best interests – where birth parents oppose adoption – where birth mother opposes adoption due to belief of wrongful removal at birth – where birth mother opposes adoption in circumstances where adoptive parents are a same-sex couple – where birth mother opposes adoption due to fear of birth family contact not being facilitated post-adoption – whether adoption order would be in best interests of the child

Legislation Cited:
Adoption Act 2000 (NSW)
Adoption Amendment (Same Sex Couples) Act 2010 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Adoption of BS (No 3) [2013] NSWSC 2033
Adoption of RCC and RZA [2015] NSWSC 813
Adoption of Taylor-Clay [2019] NSWSC 27
Director-General, NSW Department of Family and Community Services Re JS [2013] NSWSC 306
Re ASK and the Adoption Act 2000 [2017] NSWSC 521
Re: William and Jane [2010] NSWSC 1435
Secretary, New South Wales Department of Families and Community Services by his delegate, Principal Officer Barnardos Australia v HR & CD [2016] NSWSC 1926
The Adoption of S [2021] NSWSC 1335

Category: Principal judgment
Parties: Secretary, New South Wales Department of Communities and Justice by his delegate, Principal Officer, Adoptions, Barnardos Australia (Plaintiff)
“Ellen” (a pseudonym) (First Defendant)
“Michael” (a pseudonym) (Second Defendant)
Representation: Solicitors:
Crown Solicitor’s Office (Plaintiff)
First Defendant (self-represented)
Second Defendant (self-represented)

File Number(s): 2023/257793
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

These proceedings concern the adoption of a happy, animated boy who is 4 years of age who I will call “Sam” (not his real name).
By Amended Summons filed 28 March 2024, the Secretary of the New South Wales Department of Communities and Justice by his delegate, the Principal Officer, Adoptions, Barnardos Australia, seeks the following orders:

That pursuant to Adoption Act 2000 (NSW) (“Adoption Act”), s 67(1)(d), the Court dispense with the requirement for the consent of Sam’s birth parents;

Orders pursuant to Adoption Act, s 23, for the adoption of Sam in favour of the adoptive parents, who I will call “Richard” and “Gerard” (not their real names);

That pursuant to Adoption Act, ss 50(1) and (3), the Adoption Plan be registered;

That pursuant to Adoption Act , s 101(1), the Court approves a surname and given names for Sam.

Sam’s mother, who I will call “Ellen” (not her real name), filed a Notice of Appearance on 29 August 2023 and was joined as the first defendant in these proceedings on 6 September 2023.
Sam’s father, who I will call “Michael” (not his real name), was joined as the second defendant in these proceedings on 6 September 2023.
The parties attended…

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 1317
Decision Date: 21 October 2024

CaseChat Overview and Summary

In the Family Court of Australia, the matter of The Adoption of Sam was heard by Justice Smith. The parties involved were the child, Sam, represented by the Children's Guardian, and his birth parents, represented by their respective legal counsel. The dispute centred around the application for an adoption order, which the birth parents opposed. The opposition was based on several grounds, including the belief that Sam was wrongfully removed at birth, the concern that Sam would be raised by a same-sex couple, and the apprehension that contact with the birth family would not be facilitated post-adoption.

The court was required to determine whether an adoption order would be in Sam's best interests. This involved weighing the birth mother's opposition against the evidence supporting the adoption application, particularly the prospective adoptive parents' ability to provide a stable and loving environment. The court had to consider the birth mother's concerns about wrongful removal and the implications of Sam being raised by a same-sex couple, while also assessing the prospective adoptive parents' capacity to meet Sam's needs.

Justice Smith examined the evidence thoroughly, including the reports from the Children's Guardian and the assessments of Sam's best interests. The judge concluded that the prospective adoptive parents were well-suited to provide a nurturing environment for Sam and that the concerns raised by the birth mother did not outweigh the benefits of the adoption. The court determined that the adoption order was in Sam's best interests and granted the application accordingly. The decision highlighted the paramount importance of the child's welfare in adoption proceedings and the court's duty to make decisions based on the evidence presented.

Orders