Adoption of CAR
[2018] NSWSC 1552
•15 October 2018
Supreme Court
New South Wales
Medium Neutral Citation: Adoption of CAR [2018] NSWSC 1552 Hearing dates: On the papers Date of orders: 15 October 2018 Decision date: 15 October 2018 Jurisdiction: Equity Before: Darke J Decision: Summons is dismissed.
Catchwords: ADOPTION – application for recognition of adoption order made in the United States of America – s 116 of the Adoption Act 2000 (NSW) applies only to the recognition of an adoption order made in a country other than Australia that is not a party to the Hague Convention on Intercountry Adoption or a prescribed overseas jurisdiction – the United States is a party to the Hague Convention on Intercountry Adoption – not open to the Court to make the order sought Legislation Cited: Adoption Act 2000 (NSW), s 116, s 117
Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth)Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) CLR 27; [2009] HCA 41
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
Re C and the Adoption Act 2000 (NSW) [2007] NSWSC 768Texts Cited: The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption Category: Principal judgment Parties: RLR (Plaintiff) Representation: Self represented
File Number(s): A080/2018 Publication restriction: None
Judgment
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By a Summons filed on 30 April 2018 the plaintiff, RLR, seeks a declaration pursuant to s 117(1) of the Adoption Act 2000 (NSW) (“the Act”) that an adoption order made in respect of CAR by a Court in the United States of America in July 2016 complies with s 116 of the Act. CAR was aged in her late twenties when the adoption order was made.
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Sections 116 and 117(1) of the Act are in the following terms:
116 (1) This section applies to an order for the adoption of a person:
(a) that was made (whether before or after the commencement of this section) in a country other than Australia that is not a Convention country or a prescribed overseas jurisdiction, and
(b) if, at the time at which the legal steps that resulted in the adoption were commenced, the adoptive parent or parents:
(i) had been resident in that country for 12 months or more, or
(ii) were domiciled in that country.
(2) An order for the adoption of a person to which this section applies is to have the same effect as an adoption order made under this Act if:
(a) the adoption is in accordance with and has not been rescinded under the law of that country, and
(b) in consequence of the adoption, the adoptive parent or parents, under the law of that country, have a right superior to that of the adopted person’s birth parents in relation to the custody of the adopted person, and
(c) under the law of that country the adoptive parent or parents were, because of the adoption, placed generally in relation to the adopted person in the position of a parent or parents.
(3) Despite subsection (2), a court (including a court dealing with an application under section 117) may refuse to recognise an adoption under this section if it appears to the court that the procedure followed, or the law applied, in connection with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice.
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(5) In any proceedings before a court (including proceedings under section 117), it is to be presumed unless the contrary appears from the evidence, that an order for the adoption of a person that was made in a country outside Australia that is not a Convention country or a prescribed overseas jurisdiction complies with subsection (1).
(6) Nothing in this section affects any right that was acquired by, or became vested in, a person before the commencement of this section.
117 (1) Any of the parties to an adoption under an order made outside Australia may apply to the Court for a declaration that the order complies with section 116.
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The United States of America is a Convention country for the purposes of s 116 of the Act (see the definition of “Convention country” in the Dictionary to the Act, and regulation 4(b) of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth)). The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“the Convention”) was ratified by the United States of America on 12 December 2007, and entered into force for that country on 1 April 2008.
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On 22 May 2018 the Court issued a requisition to the plaintiff explaining that it appears the Court cannot make the declaration sought because s 116 of the Act can only apply if the adoption order sought to be recognised was made in a country other than Australia that is not a Convention Country or a prescribed overseas jurisdiction. The plaintiff was directed to provide submissions as to why the Summons ought not be dismissed. On 21 August 2018 the Court received submissions from CAR.
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CAR submits that the limitation found in s 116(1)(a) in respect of countries other than Australia, namely that they be countries “that are not a Convention country or a prescribed overseas jurisdiction”, does not apply where the adoption order is made in respect of an adult, not a child. Accordingly, so it is submitted, an adoption order made in respect of an adult can comply with s 116 even if made in a Convention country other than Australia. The basis of this submission is that if it were not so the Act would inadvertently prevent the recognition of overseas adoption orders made in Convention countries in respect of adults.
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As noted by CAR, the prescribed mechanisms for the making of and recognition of adoption orders pertaining to children or intended parents from Convention countries are only available in respect of adoptions of children under 18 years of age (see ss 104, 106, 107 and 108 of the Act). It was submitted that s 116 is not so limited in its terms. CAR submits, by reference to the Act’s explanatory memorandum and a report of the Law Reform Commission containing a review of the adoption laws in New South Wales produced in 1997, that it was not the intention of Parliament to restrict the recognition of overseas adoption orders made in relation to adults to those made in non-Convention countries, and that s 116(1)(a) should thus be “omitted” in cases of overseas adoptions of adults. It was further submitted that recognition of adoptions of adults, made in overseas Convention countries, is not manifestly contrary to public policy in New South Wales.
Determination
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It is well settled that the task of statutory construction must begin with a consideration of the text itself, and that historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23] – [26]). Of course, the meaning of the text may require consideration of the relevant context.
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The text of s 116(1)(a) of the Act conveys a clear meaning. It provides that the section applies only to an order for the adoption of a person that was made in a country other than Australia that is not a Convention country or a prescribed overseas jurisdiction. It is not open to the Court to displace this clear meaning by reference to what the drafters of the legislation may have intended in relation to the recognition of overseas adoptions of adults.
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Moreover, it appears to me that a policy of Part 2 of Chapter 5 of the Act, ascertained from the text and structure of the Act itself, is that in the case of an adoption order made in a Convention country, the validity of the adoption is to be determined according to compliance with the Convention, rather than with domestic law (see Re C and the Adoption Act 2000 (NSW) [2007] NSWSC 768 at [30]). This policy would be undermined if adoption orders made in Convention countries but not made in accordance with the Convention were recognised under s 116 of the Act. I note that CAR sought to distinguish Re C (supra) on the basis that the case concerned a child under the age of 18 years able to seek an order under s 108 of the Act. That may be so, but I consider that recognition of any overseas adoption order from a Convention country that was not procured in accordance with the Convention would be inconsistent with the policy of the Act outlined above.
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In my opinion, it is not open to the Court to make the declaration sought by the plaintiff. By reason of the operation of s 116(1)(a) of the Act, the section does not apply to the adoption order in this case. It cannot be concluded that the adoption order complies with s 116 (in particular, s 116(2)). The Court will order that the Summons be dismissed.
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Decision last updated: 15 October 2018