D v. Director-General Department of Commuity Services & Ors. [2005] NSWCA 474

New South Wales Court of Appeal

CITATION: D v. Director-General Department of Commuity Services & Ors. [2005] NSWCA 474

HEARING DATE(S): 7 December 2005

JUDGMENT DATE: 22 December 2005

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 67; Hunt AJA at 73

DECISION: 1. Appeal allowed. 2. Adoption order set aside, and the matter remitted to the Equity Division for a new hearing of the adoption application. 3. If any order as to costs is to be sought, that should be by written submissions by 16 January 2006, with any responding submissions provided by 30 January 2006.

CATCHWORDS: FAMILY LAW - CHILD WELFARE - ADOPTION - Whether errors were made by primary judge in failing to address alternatives, in failing to take into account factors required by ss.8 and 90 of the Adoption Act, or in dispensing with the mother's consent - Whether lack of capability referred to in s.67(1)(b) of the Act must be long-term - Whether "serious cause for concern" referred to in s.67(1)(c) of the Act must be closely linked to the available alternatives - PROCEDURE - ADJOURNMENT - APPEAL - Whether primary judge erred in refusing adjournment on the grounds of the mother's ill-health - Evidence of mother's recovery and changes of circumstances after hearing - Whether this evidence should be admitted on appeal - Whether further hearing of adoption application in best interests of child.

LEGISLATION CITED: Adoption Act 2000 ss.8, 52, 54, 58, 67, 84, 90, 92 and 93

Re Andrew [2004] NSWSC 842, 61 NSWLR 283 In Re B (1979) 5 FamLR 150 at 151 CASES CITED: Central Sydney Area Health Service v. Cooper [2001] NSWCA 329 Doherty v. Liverpool District Hospital (1991) 22 NSWLR 284 Mulholland v. Mitchell [1971] AC 666