Adoption of MSAT - [2014] NSWSC 1950

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of MSAT [2014] NSWSC 1950
Hearing dates: Tuesday 21 October 2014
Date of orders: 21 October 2014
Decision date: 21 October 2014
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Leave to apply for adoption granted. Consent dispense orders made. Adoption order made

Catchwords:
FAMILY LAW AND CHILD WELFARE – adoption – non-citizen child – child born in United Arab Emirates – not a party to Inter-Country Adoption Convention – not a prescribed overseas jurisdiction – whether foster and custody agreements executed in United Arab Emirates comply with Adoption Act s 116 – whether s 116 applies to ‘agreements’ transferring guardianship – held that only applicable to judicial or administrative orders – whether adoption under United Arab Emirates law placed parents generally in relation to the child in the position of parents – held that it did not – held that adoption not entitled to recognition.
FAMILY LAW AND CHILD WELFARE – adoption – non-citizen child – where application not made by Director-General – whether adoption order on application made by adoptive parents may be made – held that Director-General’s consent required.
Legislation Cited: (NSW) Adoption Act 2000, s 8, s 31(1)(a), s 67, s 72(1), s 87(1)(a), s 88(1), s 88(4), s 91, s 116, s 117, Ch 4
(NSW) Adoption of Children Act 1965, s 46
(Cth) Immigration (Guardianship of Children) Act 1946, s 11
(Cth) Migration Act 1958
(Cth) Migration Regulations 1994, reg 1.04, Sch 2 cl 102.211
(NSW) Uniform Civil Procedure Rules 2005, r 56.10
Cases Cited: Bouton v Labiche (1994) 33 NSWLR 225
Public Trustee v Kehagias [2009] NSWSC 972
Re DYK & The Adoption Act 2000 [2005] NSWSC 1045
Re M and the Adoption of Children Act (1989) 13 Fam LR 333
Texts Cited: DE Miller, “UAE comes to aid of growing numbers of parentless children" The Medias Line, 4 November 2010; Government of the United Arab Emirates, Ministry of Social Affairs website, Completed Initiatives
K O'Halloran, The Politics of Adoption: International Perspectives on Law, Policy & Practice (Springer, 2nd ed, 2009)
Category: Principal judgment
Parties: MSRAT (child)
MTW (first plaintiff/adoptive mother)
AWC (second plaintiff/adoptive father)
Representation:
Counsel:
A Stratigos (solicitor) (plaintiffs)
Solicitors:
HIV/AIDS Legal Centre (plaintiffs)

File Number(s): A166 of 2013

Judgment (ex tempore)

HIS HONOUR: On 30 October 2013 the applicants, who for the sake of confidentiality I shall call MTW and AWC, a married couple, filed two summonses. One sought a declaration pursuant to (NSW) Adoption Act 2000, s 117, to the effect that a "Family Fostering Agreement (Special Cases)" and a "Custody Agreement of a Foundling" between them and the Zayed Higher Organization for Humanitarian Care, Special Needs & Minors Affairs ("ZHO") in respect of the child MST born 19 June 2005, complied with s 116 (the consequence of which would be that the adoption would be recognised in New South Wales). The other summons, which was not initially proceeded with, sought an order for adoption of the child…

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: [2014] NSWSC 1950
Decision Date: 21 October 2014

CaseChat Overview and Summary

The parties involved in the case were the adoptive parents who sought to adopt a child born in the United Arab Emirates, and the court was required to determine the validity of the adoption under Australian law. The court had to decide whether the foster and custody agreements executed in the United Arab Emirates complied with the Adoption Act s 116 and whether the section applied to 'agreements' transferring guardianship. The court also had to determine whether the adoption under United Arab Emirates law placed the parents in the position of parents generally in relation to the child.

The court held that Adoption Act s 116 only applied to judicial or administrative orders and not to 'agreements' transferring guardianship. Additionally, the court held that the adoption under United Arab Emirates law did not place the parents in the position of parents generally in relation to the child. As a result, the adoption was not entitled to recognition in Australia.

Furthermore, the court held that the Director-General's consent was required for an adoption order to be made on the application of adoptive parents, and since the application was not made by the Director-General, the adoption order could not be made. The court's reasoning and outcome were based on the strict interpretation of the Adoption Act and the requirement for the Director-General's consent.

The court did not grant the adoption order sought by the adoptive parents as the requirements of the Adoption Act were not met. The court's decision highlights the importance of complying with the legal requirements for adoption in Australia, particularly when it comes to non-citizen children and overseas adoptions.

Orders