Re DYK and the Adoption Act 2000 - [2005] NSWSC 1045

CITATION:
Re DYK & The Adoption Act 2000 [2005] NSWSC 1045

JUDGMENT DATE :

17 October 2005

JUDGMENT OF:
Brereton J

CATCHWORDS:
FAMILY LAW & CHILD WELFARE - Child welfare other than under Family Law Act 1975 - adoption - application for consent dispense orders with respect to Korean natural parents and Korean guardian of child - whether consent of natural parents to be dispensed with - "reasonable inquiry" for the purpose of deciding whether to make consent dispense order - whether consent dispense order with respect to Korean guardian necessary - application of Immigration (Guardianship of Children) Act 1976 (Cth) to child who enters Australia with intending adoptive parent

LEGISLATION CITED:
Adoption Act 2000
Immigration (Guardianship of Children) Act 1946 (Cth)

CASES CITED:
Re H & The Adoption Act [2004] NSWSC 1242
Re S & The Adoption Act 2000 [2005] NSWSC 393
Re K & The Adoption Act [2005] NSWSC 858
Re KN & The Adoption Act 2000 [2005] NSWSC 896

PARTIES:
Re DYK & The Adoption Act 2000

FILE NUMBER(S):
SC 80085 of 2005

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTIONS LIST

BRERETON J

Monday 17 October 2005

80085/05 DYK & The Adoption Act 2000

JUDGMENT

1 HIS HONOUR: DYK was born in Korea. He is now two years of age and has been in the care of the applicants and in Australia for 18 months. With the consent of the Director General of the Department of Community Services (“DOCS”), by his delegate, the applicants seek an adoption order in their favour, the approval of the child’s name, and orders dispensing with the consents of the child’s natural parents and of the child’s guardian Kim Do Young, who is the Executive Director of the Eastern Social Welfare Society (“ESWS”), an Korean agency approved by the Korean government to conduct intercountry adoptions, and also dispensing with the giving of notice of the application to the parents and Kim Do Young.

2 Subject to the making of the orders dispensing with consents and notice as sought, all necessary conditions for the making of an adoption order have been satisfied, and it is appropriate that such an order be made. But issues relating to the consents have called for more thorough consideration. Relevantly, the history is as follows.

Background

3 On 22 July 2002, the applicants applied to the Department to adopt a child from overseas, preferably Korea. A confidential adoption assessment approving them as suitable for that purpose was sent to ESWS,.

4 The child was born on 7 September 2003. His birth father was a 21 year old university student whose surname only is known, and his birth mother a 20 year old college student whose surname only is known. The birth mother referred the child to ESWS in Seoul, for adoption, on 9 September 2003, when he was two days old. He was placed with foster parents from the age of a little over two weeks, until he was ultimately…

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: [2005] NSWSC 1045
Decision Date: 17 October 2005

CaseChat Overview and Summary

The case involves an application for consent dispense orders with respect to the natural parents and Korean guardian of a child who was born in Korea and was to be adopted by Australian citizens. The applicants, the prospective adoptive parents, sought orders under the Adoption Act 2000 to dispense with the consent of the natural parents and the Korean guardian to the adoption. The Family Court was required to determine whether the natural parents' consent could be dispensed with and whether a dispense order was necessary in relation to the Korean guardian. Additionally, the court considered the application of the Immigration (Guardianship of Children) Act 1976 to the child who would enter Australia with the intending adoptive parents.

The court's reasoning focused on the statutory provisions and case law surrounding consent dispense orders. The court examined the meaning of "reasonable inquiry" required to decide whether to make a consent dispense order with respect to the natural parents. It concluded that the prospective adoptive parents had undertaken a reasonable inquiry in accordance with the statutory guidelines. Regarding the Korean guardian, the court held that a dispense order was not necessary because the guardian's role under Korean law did not confer the same legal rights and responsibilities as a parent under Australian law. Furthermore, the court considered the implications of the Immigration (Guardianship of Children) Act 1976, concluding that the child would not be subject to its provisions upon entering Australia with the intending adoptive parents.

In light of its findings, the court made consent dispense orders in favour of the applicants. The natural parents' consent was dispensed with, and no order was made in relation to the Korean guardian. The court also noted that the child would not be subject to the provisions of the Immigration (Guardianship of Children) Act 1976 upon entering Australia with the intending adoptive parents. The decision provided clarity on the application of consent dispense orders and the legal status of a Korean guardian in the context of an adoption proceeding in Australia.

Orders