APPLICATION OF DIRECTOR GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES [2004] NSWSC 44

APPLICATION OF DIRECTOR GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES [2004] NSWSC 44

The incorrect birth dates were not clerical mistakes or accidental slips because the original judge deliberately adopted the dates then supported by Colombian records. However, the birth dates were incidental identifying particulars and did not determine any question arising on the claim for adoption relief. The Court therefore had power under Pt.40 r.9(4) of the Supreme Court Rules 1970 to vary the adoption orders, and the evidence established that the children were about two years older than recorded.

Jurisdiction
Australia
Judgment Date
10 February 2004
Procedural Posture
Adoption; Application to Vary Adoption Orders / Application Considered in Private Chambers Without a Hearing to Vary Adoption Orders Made on 9 February 1995 and Entered on 14 February 1995
Outcome
Adoption orders varied to substitute birth years two years earlier than those recorded.
Legal Topics
['variation of Adoption Orders' 'setting Aside or Varying Judgment or Order' 'supreme Court Rules 1970 Pt.40 R.9(4)' 'slip Rule' 'birth Dates in Adoption Orders' 'publication Restrictions in Adoption Matters']
['adoption' 'practice and Procedure'] ['variation of Adoption Orders' 'setting Aside or Varying Judgment or Order' 'supreme Court Rules 1970 Pt.40 R.9(4)' 'slip Rule' 'birth Dates in Adoption Orders' 'publication Restrictions in Adoption Matters']

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Procedural Posture

Adoption; Application to Vary Adoption Orders / Application Considered in Private Chambers Without a Hearing to Vary Adoption Orders Made on 9 February 1995 and Entered on 14 February 1995

Legal Issues

  1. 1 ['Whether the Court had power to vary final adoption orders to alter the birth dates stated for two adopted children.' 'Whether the incorrect birth dates were clerical mistakes or errors arising from accidental slip or omission within Part.20 r.10(1) of the Supreme Court Rules 1970.' 'Whether the statement of birth dates in the adoption orders determined a question arising on a claim for relief so as to fall outside the power in Part.40 r.9(4) of the Supreme Court Rules 1970.']

Ratio Decidendi

The incorrect birth dates were not clerical mistakes or accidental slips because the original judge deliberately adopted the dates then supported by Colombian records. However, the birth dates were incidental identifying particulars and did not determine any question arising on the claim for adoption relief. The Court therefore had power under Pt.40 r.9(4) of the Supreme Court Rules 1970 to vary the adoption orders, and the evidence established that the children were about two years older than recorded.

Court Disposition

Adoption orders varied to substitute birth years two years earlier than those recorded.

Orders

  • ['Order pursuant to Part.40, r.9(4) of the Supreme Court Rules 1970 that the adoption order relating to (name) made on 9 February 1995 and entered on 14 February 1995 in these proceedings be varied by deleting the figures 1987 in the statement of the date of birth of the child and inserting instead the figures...