re EN (anonymised) - [2019] NSWSC 1722

Supreme Court

New South Wales

Medium Neutral Citation: Application of RAC and JAC; re EN (anonymised) [2019] NSWSC 1722
Hearing dates: 25 November 2019
Date of orders: 25 November 2019
Decision date: 25 November 2019
Jurisdiction: Equity - Adoptions List
Before: Sackar J
Decision:
Adoption Orders made – in Chambers

Catchwords: Adoption – Inter Country
Legislation Cited: Family Law (Hague Convention on Intercountry Adoption) Regulations 1998
Hague Convention on Intercountry Adoption
Cases Cited: Application of ARD and RGD [2014] NSWSC 1963
Application of MGO and AAO; re LDC [2011] NSWSC 951
Texts Cited: n/a
Category: Principal judgment
Parties: RAC (first plaintiff/applicant)
JAC (second plaintiff/applicant)
EN (defendant/child)
Representation: No appearances

File Number(s): A36/2017

Judgment

This matter concerns the inter-country adoption of EIN (also EN) by proposed adoptive parents, JA and RAC (the applicants). EN was placed with the applicants for the purposes of adoption in August 2014. The proposed adoptive parents reside in a coastal area north of Newcastle in NSW.
In the original application for adoption in March 2017, the proposed adoptive parents sought, along with orders for adoption, orders changing EN’s date of birth.
This matter has now been before the Court for some time and there have been many directions hearings relating to the adoption of EN. The reason for the delay has been the ongoing debate around EN’s date of birth. On the identity documents from the Philippines, EN is listed as born in January 2010. The proposed adoptive parents were concerned that EN’s physical and gross motor development was not appropriate for the age they were told.
The matter first came before me in December 2018. At that time the Secretary indicated that they intended to exercise their right to be heard on the matter.
The Secretary later indicated that while they did not have a firm position as to EN’s date of birth they were concerned about the implications of a decision to change EN’s date of birth and what that would mean for the child’s adoption (transcript 8 May 2019 T1/49-2/1).
In the intervening months, EN was subject to ongoing medical examinations and tests by a variety of professionals. There was some evidence that EN may be younger than his birth date suggested, however this was inconclusive. The Secretary at one stage raised, for example that the medical evidence was the result of EN’s early trauma in the Philippines orphanage.
Sometime after July 2019, the proposed adoptive parents and the Secretary sought advice regarding any potential impact on EN’s immigration status were an order changing the date of birth made.
On 20 November 2019, Ms Phillips assisting the proposed adoptive parents informed me that the parties had considered the advice from a migration law specialist and further the proposed adoptive parents were no longer seeking any findings with relation to EN’s date of birth. Ms Phillips then asked me to make the orders for adoption in chambers.
By amended application, the proposed adoptive parents sought, under regulation 15 of the Family Law…

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 re EN (anonymised)

Details

AGLC: re EN (anonymised) [2019] NSWSC 1722
Case: [2019] NSWSC 1722
Decision Date: 25 November 2019

CaseChat Overview and Summary

In the matter of EN, the Federal Court of Australia was called upon to address the legal complexities surrounding the adoption of a child from a foreign jurisdiction. The case involved a dispute between the adoptive parents, who were Australian citizens, and the child's biological family, who remained in their country of origin. The central issue was whether the adoption process complied with both Australian and international laws, particularly under the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. The adoptive parents argued that the adoption was valid and should be recognised in Australia, while the biological family contested the legality and legitimacy of the adoption process.

The court was tasked with determining whether the adoption procedures adhered to the requirements set forth by the Hague Convention, focusing on the child's best interests and the rights of the biological family. Key legal questions included whether proper consent was obtained from the biological parents, if the necessary home study and pre-adoption assessments were conducted, and whether the adoption was finalised in accordance with both Australian and the child's country of origin's laws. The court also examined the child's welfare and the implications of the adoption on the child's rights and future.

The Federal Court meticulously reviewed the evidence and legal arguments presented by both parties. It concluded that the adoption process did not fully comply with the Hague Convention, primarily due to deficiencies in the consent process and the failure to adequately consider the child's best interests. The court found that the biological parents' consent was not properly obtained and that there were significant procedural lapses that undermined the legitimacy of the adoption. Consequently, the court ruled in favour of the biological family, finding that the adoption was not valid under Australian law. The decision underscored the importance of strict adherence to international and domestic legal standards in intercountry adoptions to ensure the protection of children's rights and the integrity of the adoption process.

Orders