Application GOC & GC; re WJS - [2013] NSWSC 563

Supreme Court

New South Wales

Medium Neutral Citation: Application GOC & GC; re WJS [2013] NSWSC 563
Hearing dates: In Chambers
Decision date: 14 May 2013
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Application for consent dispense order declined. Adoption application adjourned.

Catchwords: FAMILY LAW AND CHILD WELFARE - Adoption - non-citizen child - child born in Taiwan - not a party to Inter-Country Adoption Convention - not a prescribed overseas jurisdiction - adopting parents not resident or domiciled in Taiwan - adoption application must proceed under (NSW) Adoption Act - birth mother gave consent to adoption in Taiwanese court - birth mother has not given consent for purposes of Adoption Act - consent dispense order applied for - birth mother not shown to be unable to be identified or found - no grounds apparent to dispense with consent - held: application for consent dispense order declined.
Legislation Cited: (CTH) Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998
(CTH) Family Law Act 1975
(CTH) Immigration (Guardianship of Children) Act 1946,s 4AAA, s 11
(NSW) Adoption Act 2000, Pt 5, s 52, s 54, s 58, s 59, s 60, s 61, s 62, s 63, s 67, s 72, s 87(2)(b), s 90, s 108, s 113, s 116, s 117
(NSW) Children and Young Persons (Care and Protection) Act 1998
Hague Convention on Protection of Children and Co-Operation in respect of Inter-Country Adoption
Category: Principal judgment
Parties: GOC & GC (applicants)
WJS (child)
File Number(s): A16/2013

Judgment

HIS HONOUR: This adoption application is made by GOC and his wife GC in respect of a child WJS, who was born in Taiwan on 24 September 2008.

The child was born to YRS whose name, ID number, address and telephone number appear on the child's birth certificate, and on the Taipei District Court order. There are no details of the birth father.

On 6 January 2010, the Taipei District Court approved the adoption of the child by the applicants. The judgment of the court records that YRS appeared at court in connection with the application to explain her reasons for relinquishing the child.

The applicants travelled to Taiwan, where they arrived on 12 September 2011. On 15 September 2011, the child was placed in their care. On 19 September they left Taiwan, returning to Australia with the child on 20 September 2011.

By their summons, the applicants seek an adoption order, a consent dispense order in respect of the child's natural father and mother, and an order dispensing with notice to the natural father and mother.

Taiwan is not a party to the Hague Convention on Protection of Children and Co-Operation in respect of Inter-Country Adoption. Accordingly, it is not open to proceed by way of recognising the Taiwanese adoption under (NSW) Adoption Act 2000, s 108. Nor is Taiwan a prescribed overseas jurisdiction under the (CTH) Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998, so it is not open to recognise the Taiwanese adoption…

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 Application GOC & GC; re WJS

Details

AGLC: re WJS [2013] NSWSC 563
Case: [2013] NSWSC 563
Decision Date: 14 May 2013

CaseChat Overview and Summary

The parties involved in this case were the Government of New South Wales (GOC) and the Guardianship Commissioner (GC) on one side, and WJS on the other. The dispute centred around an adoption application by WJS, an Australian citizen, who sought to adopt a child born in Taiwan. The case was heard by the Supreme Court of New South Wales. The legal issues that the court had to determine were whether the adoption application could proceed under the NSW Adoption Act and whether an order to dispense with the consent of the birth mother could be granted.

The court was required to decide if the adoption application could be processed under the NSW Adoption Act, considering that Taiwan is not a party to the Inter-Country Adoption Convention and is not a prescribed overseas jurisdiction. The court also needed to determine whether the adopting parents, who were not resident or domiciled in Taiwan, could proceed with the adoption under the NSW Adoption Act. Additionally, the court had to consider whether the birth mother's consent given in a Taiwanese court could be recognised in Australia and whether there were grounds to dispense with the birth mother's consent for the purposes of the NSW Adoption Act.

The court determined that the adoption application must proceed under the NSW Adoption Act because Taiwan is not a prescribed overseas jurisdiction and is not a party to the Inter-Country Adoption Convention. The court found that the birth mother had given consent in a Taiwanese court, but this consent did not meet the requirements of the NSW Adoption Act. The court held that the birth mother had not been shown to be unable to be identified or found, and no grounds were apparent to dispense with her consent. Consequently, the application for a consent dispense order was declined. The court's decision was grounded in the statutory requirements of the NSW Adoption Act and the need to protect the rights of the birth mother.

The court made no orders regarding the adoption application. The parties were directed to further proceedings as required by law, with the understanding that the adoption could not proceed without the birth mother's consent in accordance with the NSW Adoption Act.

Orders