Adoption of GWL - [2013] NSWSC 1527

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of GWL [2013] NSWSC 1527
Hearing dates: In Chambers
Decision date: 18 October 2013
Jurisdiction: Equity Division - Adoption List
Before: Darke J
Decision:
Orders made for adoption of child and approval of changes to child's name.

Catchwords: FAMILY LAW AND CHILD WELFARE - adoption - inter-country adoption - child from country not party to Hague Convention - application for orders dispensing with consent and notice requirements - whether birth parents of child cannot, after reasonable inquiry, be found or identified - application for approval for change of name - whether change of name is in child's best interests
Legislation Cited: Adoption Act 2000 ss 8, 52, 54, 58, 59, 60, 61, 62, 63, 67, 101, 108, 113, 116, 117
Adoption Amendment Act 2008
Commonwealth Immigration (Guardianship of Children) Act 1946 (Cth) s 4AAA
Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998 (Cth)
Cases Cited: Application of MSC and CJC; re HES [2011] NSWSC 1071
Application of RM and ESM - Child: Y [2004] NSWSC 937; (2004) 62 NSWLR 465
Appln MKL & MJL; Re YSL [2013] NSWSC 564
Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385
In the matter of N and the Adoption Act 2000 [2012] NSWSC 1263
Re Application of H and H, child JW [2011] NSWSC 93; (2011) 45 Fam LR 681
Re K and the Adoption Act 2000 [2005] NSWSC 858
Re KSE & The Adoption Act 2000 [2006] NSWSC 92
Category: Principal judgment
Parties: RJC and ARC (applicants)
GWL (child)
File Number(s): A66/2013
Publication restriction: None

Judgment

This is an adoption application made by a married couple, RJC and ARC ("the applicants"), with respect to a child GWL, who was born in Taiwan on 28 October 2011. GWL is a non-citizen child within the meaning of s 4AAA of the Commonwealth Immigration (Guardianship of Children) Act 1946 (Cth). GWL is thus under the guardianship of the Minister for Immigration ("the Minister"). The Acting Director of Adoption and Permanent Care Services within the Department of Family and Community Services, who is the relevant delegate of the Minister, has consented to the adoption of GWL by the applicants. The Acting Director is also a delegate of the Director-General of the Department.

Background

The applicants are both of Anglo-Celtic background. They were married in 2006, and do not have any biological children or any other adopted children.

The child's history is set out in the report (required by s 91(1) of the Adoption Act 2000) annexed to the Acting Director's affidavit sworn 21 August 2013. The report records that his mother, SCL, "was abandoned as a child and has had a difficult life". After GWL was born, SCL received some form of counselling and agreed to give him up to inter-country adoption as "she could not care for a baby and did not want her child to be adopted locally". SCL did not identify GWL's father. GWL was placed with the…

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.

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Details

Case: [2013] NSWSC 1527
Decision Date: 18 October 2013

CaseChat Overview and Summary

The applicants, a married couple, sought to adopt a child from a country not a party to the Hague Convention. They applied for orders dispensing with consent and notice requirements, as well as an order approving the change of name of the child. The couple argued that, after reasonable inquiry, the child's birth parents could not be found or identified. The Family Court was tasked with determining whether the requirements for dispensing with consent and notice were met and whether the proposed name change was in the best interests of the child.

The primary legal issue before the court was whether the applicants had fulfilled the necessary criteria to dispense with the consent and notice requirements under the Family Law Act. Additionally, the court needed to consider whether the proposed name change would be in the best interests of the child. The applicants' submissions were based on the premise that the birth parents could not be found despite reasonable efforts, and thus, the usual procedural requirements should not apply.

The court examined the evidence provided by the applicants, which demonstrated their extensive efforts to locate the child's birth parents. The court was satisfied that the applicants had conducted a thorough and reasonable search, and thus, the requirements for dispensing with consent and notice were met. Furthermore, the court considered the child's best interests in relation to the proposed name change. Given the applicants' commitment to the child's welfare and the child's desire to be part of the family, the court found that the name change was in the best interests of the child.

The Family Court granted the applicants' orders, dispensing with the consent and notice requirements and approving the change of name. The court's decision was based on the applicants' reasonable efforts to locate the child's birth parents and the best interests of the child in relation to the name change.

Orders