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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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).

6. 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.

7. 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.

8. 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.

9. By amended application, the proposed adoptive parents sought, under regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 application is made for an order of the adoption in Australia of EIN from Philippines, a convention country, and an order approving the name “EISC”.

10. The applicants relied on the following documents:

1. Amended Form 3 application for an adoption order (signed by applicants and annexing the reports referred to in Article 15 and 16 of the Convention;

2. Form 8 Adoption Order- child from a convention country;

3. Memorandum of an Adoption Order;

4. Visa Grant Notice dated 7 July 2014 (confirming that the child is permitted to reside permanently in Australia);

5. Affidavit in Form 2 of Fariba Gharahkani sworn 8 February 2019 (and in particular annexures G and H which confirm that the Central Authority of the Convention Country and the NSW Central Authority have agreed to the adoption);

6. The affidavits of RAC dated 28 August 2019, 20 November 2019;

7. The affidavits of JAC dated 23 July 2019, 20 November 2019; and

8. Affidavit of Supporting Documents filed by the applicants on 17 March 2017 (which annexes a Deed of Voluntary Commitment signed by the birth mother, a Placement Authority and Affidavit of Consent to Adoption).

11. On 25 November, having carefully considered the matter and having read the affidavit materials, I made orders for the adoption of EN in favour of the proposed adoptive parents. I indicated I would in due course publish my reasons. These are they.

12. An overseas adoption from a Convention Country is governed by the Hague Convention on Intercountry Adoption as implemented by the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth). I note the decision of Brereton J in Application of MGO and AAO; re LDC [2011] NSWSC 951, where His Honour considered an adoption application under regulation 15 and further the decision of Robb J in Application of ARD and RGD [2014] NSWSC 1963.

13. I am thus satisfied of the following matters; first that the child was habitually resident in a Convention country, being the Philippines, when the Convention was invoked and I am satisfied that the proposed adoptive parents are persons habitually resident in Australia. I am satisfied that the arrangements for the adoption were made in accordance with the laws of the Philippines and in accordance with the laws of NSW. In particular I note the report from the NSW Central Authority providing information on the suitability of the proposed adoptive parents and the report of the Philippines Central Authority providing information about the child in Annexures B and D to the affidavit of Fariba Gharahkani. I note it is clear that the child in question has been effectively identified and I am satisfied that EN is in fact the child who is recorded on the Philippines identity documents. I note that adoption is clearly suitable for EN. He was placed in a Philippine orphanage at a young age and it is apparent that adoption will give him the love, care and support unavailable in an orphanage. I note in passing that EN is too young to consent to his adoption, and it is doubtful that he has a complete understanding of the process of adoption and the legal ramifications. He has expressed love for the proposed adoptive parents and clearly feels at home in their family and refers to them as “Mummy” and “Daddy”.

14. I further note that the Central Authority of NSW has clearly determined that the proposed adoptive parents are suitable to adopt, there is no doubt about the quality of care they have been providing for EN and will no doubt continue to provide.

15. I am also satisfied that the relevant Inter-Country Adoption Board for the Philippines and NSW has agreed to the adoption of the child (in particular I note the affidavit of Fariba Gharahkani). It is finally clear, by way of the visa supplied to the Court that the child is allowed to reside permanently in Australia and that the child is currently in Australia.

16. I am satisfied that all the relevant procedural requirements have been satisfied. It is clear that the appropriate forms (including Form 3 and Form 8) have been filed with the Court.

17. In conclusion I am satisfied that the arrangements for the adoption were made in accordance to the convention. Again I note that the relevant reports from both NSW and Philippines Central Authority have been filed, there is further evidence that the proposed adoptive parents have been counselled as necessary and that the necessary consents to EN’s adoption have been obtained.

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