Re E and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998

[2010] NSWSC 1313

CITATION:	Re E and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 [2010] NSWSC 1313
HEARING DATE(S):	n/a
JUDGMENT DATE :	12 November 2010
JURISDICTION:	Equity
JUDGMENT OF:	White J
DECISION:	n/a
CATCHWORDS:	ADOPTION – application for order – intercountry adoption – arrangements for adoption to be made in accordance with Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) – whether requirements of Convention satisfied
LEGISLATION CITED:	Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) Adoption Act 2000 (NSW)
CATEGORY:	Procedural and other rulings
CASES CITED:	Re S and the Adoption Act 2000 (NSW) (No 2) [2006] NSWSC 1438; (2006) 68 NSWLR 467
FILE NUMBER(S):	SC 2010/115

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

WHITE J

Friday, 12 November 2010

2010/115 Re E and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998

JUDGMENT

1 HIS HONOUR: This is an application for an order for the adoption of a child formerly resident in the Philippines. Both the Philippines and Australia are parties to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption.

2 For the reasons in Re S and the Adoption Act 2000 (NSW) (No 2) [2006] NSWSC 1438; (2006) 68 NSWLR 467 this application is governed by the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) and not by the Adoption Act 2000 (NSW). Pursuant to reg 15(1) and (3) I must be satisfied that the arrangements for the adoption of the child have been made in accordance with:

(a) the Convention;

(b) the laws of the Commonwealth and New South Wales; and

(c) the Philippines.

3 Pursuant to reg 15(3), I must be satisfied that the Central Authority of the Philippines has agreed to the adoption of the child, that the Department of Community Services has agreed to the adoption of the child, and that the child is allowed to reside permanently in Australia.

4 The child was born on 2 January 2006. On 28 March 2008 the Regional Trial Court of Quezon City in the Republic of the Philippines declared that the child was an abandoned, neglected and dependent child and that the parental authority over the child by her parents was terminated. The parental authority over the child was awarded to the Department of Social Welfare and Development in the Philippines with the power to give consent to her permanent placement for adoption.

5 On 23 February 2006 the applicants (the proposed adoptive parents) lodged with the Department of Community Services an application to adopt a child from the Philippines. They were advised by the Department that they had been approved to adopt a child and that a confidential home report on their circumstances would be forwarded to the Inter-Country Adoption Board of the Philippines. Article 15 of the Convention requires that the Central Authority of the receiving State prepare a report for the Central Authority of the State of origin upon, amongst other things, the prospective adoptive parents. I can infer that the Department of Community Services did provide a report to the Philippines Inter-Country Adoption Board, but the report is not before me.

6 Article 16 of the Convention requires the Central Authority of the State of origin to prepare and to transmit to the Central Authority of the receiving State a report concerning the child if it is satisfied that the child is adoptable. The report of the Philippines Inter-Country Adoption Board to the Department of Community Services is not before me.

7 On 23 December 2008 the Chair of the Inter-Country Adoption Board of the Philippines signed a Placement Authority authorising the Department of Community Services to entrust the child to the proposed adoptive parents at their residential address. The Placement Authority stated that the transfer of the child to the prospective adoptive parents should only be carried out if the requirements of Articles 17 and 19 of the Convention were satisfied. I am satisfied that the requirements of those Articles have been satisfied.

8 In terms of reg 15(3) I am satisfied that both Central Authorities have agreed to the adoption of the child. The child is also allowed to reside permanently in Australia.

9 The present application is not made in accordance with Form 3 prescribed by the Regulations, but it is not ineffective on that account. Although I have no power to dispense with the Regulation, I can simply overlook the non-compliance with the procedural requirements of reg 15(2A).

10 Unfortunately I am not able to be satisfied that the arrangements for the adoption of the child have been made in accordance with the Convention without being provided with the reports of the Department of Community Services provided to the Inter-Country Adoption Board required by Article 15 of the Convention, or the report of the Inter-Country Adoption Board to the Department required by Article 16. Subject to satisfaction of those matters, I am satisfied that the Regulations are satisfied and that an adoption order should be made.

11 For the reasons in Re S and the Adoption Act 2000 (NSW) (No 2), no question arises of making an order dispensing with the consent of the child’s parents. Pursuant to reg 15(2E) I will approve the child’s name as sought once the adoption order can be made. Section 101(5) of the Adoption Act does not apply.

12 I will request the Registrar to forward a copy of these reasons to the delegate of the Director-General who has sworn an affidavit in support of the application, to request her to provide the court with copies of the reports in question.

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