Application of CMS and JTS - Child K-MM [2006] NSWSC 47

Application of CMS and JTS - Child K-MM [2006] NSWSC 47

The court has jurisdiction under rule 36.16(3) of the Uniform Civil Procedure Rules 2005 to vary an adoption order by amending the recorded year of birth where the original date was an approximation and evidence demonstrates a different year is more likely correct. The evidence on balance supports that the child's birth year is 1999, not 1998, in light of the child's early history and developmental evidence.

Parties
Applicant: CMS; Applicant: JTS; Child: K-MM
Jurisdiction
Australia
Judgment Date
10 February 2006
Procedural Posture
Application to Vary Particulars in Adoption Order / Post Adoption, Application for Variation
Outcome
Application granted; adoption order varied to record correct year of birth.
Legal Topics
Variation of Adoption Order, Correction of Birth Particulars, Jurisdiction to Vary Order
Adoption Law Equity Variation of Adoption Order Correction of Birth Particulars Jurisdiction to Vary Order

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Parties

CMS

Applicant

JTS

Applicant

K-MM

Child

Procedural Posture

Application to Vary Particulars in Adoption Order / Post Adoption, Application for Variation

Legal Issues

  1. 1 Whether the court has jurisdiction to vary an adoption order to correct the child's year of birth
  2. 2 Whether the evidence supports that the child was born in 1999, not 1998

Ratio Decidendi

The court has jurisdiction under rule 36.16(3) of the Uniform Civil Procedure Rules 2005 to vary an adoption order by amending the recorded year of birth where the original date was an approximation and evidence demonstrates a different year is more likely correct. The evidence on balance supports that the child's birth year is 1999, not 1998, in light of the child's early history and developmental evidence.

Court Disposition

Application granted; adoption order varied to record correct year of birth.

Orders

  • Order pursuant to rule 36.16(3) of the Uniform Civil Procedure Rules 2005 varying the adoption order by deleting '1998' and inserting '1999' as the child's year of birth.
  • Order pursuant to s.19(2) of the Births, Deaths and Marriages Registration Act 1995 to include the updated birth information in the relevant register.