Application of JGP & ASP, Re AJP - [2011] NSWSC 151

Supreme Court

New South Wales

Medium Neutral Citation: Application of JGP & ASP, Re AJP [2011] NSWSC 151
Decision date: 21 February 2011
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 Ethiopia - not a party to Inter-Country Adoption Convention - not a prescribed overseas jurisdiction - adopting parents not resident or domiciled in Ethiopia - adoption application must proceed under (NSW) Adoption Act - birth mother gave consent to adoption in Ethiopian 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: (NSW) Adoption Act 2000, Pt 5, 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
(CTH) Family Law Act 1975
(CTH) Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998
Hague Convention on Protection of Children and Co-Operation in respect of Inter-Country Adoption
(CTH) Immigration (Guardianship of Children) Act 1946 s 4AAA, s 11
Category: Principal judgment
Parties:
Representation:
File Number(s): 2010/183

Judgment

HIS HONOUR: This adoption application is made by JGP and his wife ASP in respect of a child AJP, who was born in Ethiopia on 8 February 2008.

The child was born to a single mother aged 33 in Ethopia. Her own parents were deceased, and her only relatives were her half brothers. The birth mother lost her employment after she became pregnant and was unable to maintain her son. When he was aged about nine months, she surrendered him to the District Labour and Social Affairs Office, who placed him in an orphanage.

On 19 February 2009, the Ministry of Women's Affairs in the Federal Democratic Republic of Ethiopia approved the applicants - who on 27 July 2004 had applied to the then Department of Community Services to adopt a child from Ethiopia - to adopt the child. On 2 June 2009, Birhan Family Welfare Foundation (which was raising the child) and the applicants entered into a contract of adoption in accordance with Ethiopian law in respect of the child. The contract was expressed to have no effect unless approved by the court (being a reference to the Ethiopian court).

On 6 July 2009, the Federal First Instance Court of the Federal Democratic Republic of Ethiopia at Addis Ababa, on the application of Birhan Family Welfare Foundation, approved the adoption agreement. It required the birth mother to appear before the court to give her views; and she explained that, due to her economic circumstances, she had given her consent to the adoption agreement.

A post-adoptive Ethiopian birth certificate issued showing the applicants as the child's parents. It appears from the contract of adoption and judgment of…

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.

Keep reading for free

Create a free CaseChat account to read Application of JGP & ASP, Re AJP and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWSC 151
Decision Date: 21 February 2011

CaseChat Overview and Summary

In this case, the applicants, JGP and ASP, sought to adopt a child born in Ethiopia who was not a citizen of Australia. The court was required to decide whether it could grant an order dispensing with the consent of the child’s birth mother, AJP, who had already consented to the adoption in an Ethiopian court but had not done so for the purposes of the (NSW) Adoption Act. The applicants argued that the birth mother could not be found, and thus her consent was not required under the Act. The court needed to determine whether there were sufficient grounds to dispense with the birth mother’s consent.

The court considered that the birth mother had already given her consent in an Ethiopian court, which was not a party to the Inter-Country Adoption Convention and not a prescribed overseas jurisdiction under the Act. The applicants were neither resident nor domiciled in Ethiopia. The court noted that the Adoption Act required the birth mother’s consent to be given for the purposes of the Act, and this had not occurred. The applicants argued that the birth mother could not be identified or found, but the court was not satisfied that this was the case. The court held that there were no grounds to dispense with the birth mother’s consent, as she had not been shown to be unable to be identified or found.

The court declined the application for a consent dispense order, stating that the birth mother had already given her consent in an Ethiopian court, and there were no apparent grounds to dispense with her consent under the Act. The court did not make any orders in relation to the adoption of the child.

Orders