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Adoption of BW

Adoption of BW

Case [2017] NSWSC 174 3 March 2017

Adoption

Recognition of Adoption

Preliminary Hearings

Habitual Residence

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Adoption of BW [2017] NSWSC 174
Hearing dates: 3 February 2017
Date of orders: 03 March 2017
Decision date: 03 March 2017
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
The Korean adoption is not recognised in NSW as the adopting parents were not at the time the adoption was granted habitually resident in NSW.

Catchwords:
FAMILY LAW AND CHILD WELFARE – Adoption – procedure – preliminary hearings – scope of preliminary hearing – whether limited to matters prescribed pursuant to Adoption Act s 80(1) and Adoption Regulation cl 89 – held, not so limited

FAMILY LAW AND CHILD WELFARE – Adoption – recognition of adoption under bilateral arrangements in prescribed overseas jurisdiction – whether Adoption Act s 113 has comparable effect to (CTH) Family Law (Bilateral Arrangements – Intercountry Adoption) Regulations 1998, reg 5 – meaning of “comparable effect” – held, it has
PRIVATE INTERNATIONAL LAW – personal connecting factors – residence – “habitual residence” – requirement for physical presence for an appreciable time – whether NSW couple who were in Hong Kong for a period of two years for employment reasons had lost habitual residence in NSW two months after departing – held, they had.
Legislation Cited: (CTH) Family Law (Bilateral Arrangements — Intercountry Adoption) Regulations 1998, reg 4, reg 5, reg 8, Sch 1
(CTH) Family Law (Hague Convention on Intercountry Adoption) Regulations 1998, reg 34
(CTH) Family Law Act 1975, s 63C
(NSW) Adoption Act 2000, s 80, s 83, s 84(2), s 113, s 114
(NSW) Adoption Regulation 2015, cl 89
(NSW) Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited: Akbarali v Brent London Borough Council [1983] 2 AC 309
Armytage v Armytage [1898] P 178
Cooper v Casey (1995) 18 Fam LR 433
Cruse v Chittum [1974] 2 All ER 940
F, Re (A Minor) (Child Abduction) [1992] 1 FLR 548
Firebrace v Firebrace (1878) 4 PD 63
Hoy v Hoy (1906) 25 NZLR 857
J, Re (A Minor) (Abduction) [1990] 2 AC 562
Kilah v Director-General, Department of Community Services (2008) 39 Fam LR 431
LK v Director-General, Department of Community Services (2009) 237 CLR 583
M, Re (Minors) (Residence orders: jurisdiction) [1993] 1 Fam Law R 495
Punter v Secretary for Justice [2007] 1 NZLR 40
R, Re (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76; [2015] UKSC 35
S, Re and the Adoption Act 2000 (NSW) (No 2) [2006] NSWSC 1438; (2006) 206 FLR 394.
Secretary, Department of Family and Community Services v Padwa (2016) FLC ¶93-701
Zotkiewicz v Commissioner of Police (No 2) (2011) FLC ¶93-472
Texts Cited: Davies, Bell and Brereton, Nygh’s Conflict of Laws in Australia, 9th ed
Category: Procedural and other rulings
Parties: Secretary, Department of Family and Community Services (P)
Representation:
Counsel:
Ms S. Christie (P)
Solicitors:
Crown Solicitor (P)

File Number(s): A67 of 2016

Judgment

The child the subject of these proceedings, BW, was born in Korea on…

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.

Continue reading Adoption of BW

Details

AGLC: Adoption of BW [2017] NSWSC 174
Case: [2017] NSWSC 174
Decision Date: 03 March 2017

CaseChat Overview and Summary

The case of Adoption of BW involved a dispute over the recognition of an adoption in Australia. The matter was heard by the Family Court of Australia, where the applicants sought to adopt a child born in Hong Kong. The primary legal issue before the court was whether the scope of a preliminary hearing in adoption proceedings was limited to matters prescribed by section 80(1) of the Adoption Act and clause 89 of the Adoption Regulation. The court found that the preliminary hearing was not limited to these prescribed matters.

The court also addressed whether section 113 of the Adoption Act had a comparable effect to regulation 5 of the Family Law (Bilateral Arrangements – Intercountry Adoption) Regulations 1998. The court interpreted the meaning of "comparable effect" and concluded that section 113 of the Adoption Act did indeed have a comparable effect to the federal regulation. Additionally, the court considered the personal connecting factors and the concept of "habitual residence" in the context of private international law. It examined whether the physical presence of the applicants in Hong Kong for two years, due to employment reasons, resulted in them losing their habitual residence in New South Wales two months after their departure. The court determined that they had.

The court's reasoning and findings led to the conclusion that the preliminary hearing was not limited to the prescribed matters and that section 113 of the Adoption Act had a comparable effect to the federal regulation. Furthermore, the applicants had lost their habitual residence in New South Wales. The final orders of the court are not detailed in the extract provided.

Orders