re HES - [2011] NSWSC 950

Supreme Court

New South Wales

Medium Neutral Citation: Application of MSC and CJC; re HES [2011] NSWSC 950
Decision date: 24 August 2011
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Decline to make adoption order.

Catchwords: FAMILY LAW AND CHILD WELFARE - Adoption - child from country not party to Hague Convention - consent dispense order sought - Taipei court records birth mother's consent -evidence does not meet requirements of (NSW) Adoption Act 2000 - consent not in accordance with Act - evidence of address of birth mother - adoption order declined.
Legislation Cited: (NSW) Adoption Act 2000, s 52, s 54, s 58, s 59, s 60, s 61, s 62, s 63 s 67, s 108, s 116
Cases Cited: Application of JGP & ASP, Re AJP [2011] NSWSC 151
Category: Principal judgment
Parties: MSC & CJC (applicants)
HES (child)
File Number(s): A40 / 2011

Judgment

On 23 August 2011 I delivered a judgment in which I concluded that, in the absence of evidence that established any ground for a "Consent Dispense Order", it was not open to the Court to make an adoption order. Today, the Director-General has provided to the Court a "Certificate of Verification - Civil Ruling" of the Taipei District Court, Taiwan dated 24 February 2010, certifying that that court "passed the first Ruling to the Adoption Approval ... case between the petitioners MSC etc and the Adoptee HES on 4 February 2010 and verified it on 22 February 2010". The ruling describes the petitioners/adopters as MSC and CLC, the petitioner adoptee as HES whose "legal representative" was his birth mother CCS. The ruling was:

Approval is given to the adoption of HES (Male, born October XX, 2009, ID Card No.: XXXXX XXXXX ) to become the adopted son of MSC (Male, born on February XX, 1972, the citizen of Australia) and CLC (Female, born on November XX, 1973, the citizen of Australia) on December 1, 2009. The Petitioners shall pay the cost of the procedures.

Relevantly, the judgment records:

The adoptee, through the agreement of the adoptee's birthmother, CCS, establishes the adoptive relationship with the adopters. The following are also presented: the household registry records of the adoptee, his birth mother and her legal representative and the adopters' passport copies, the adoption agreement, adoption approval, the home study investigation report, police certificates, health certificates and financial statement. ...

It is evidenced that the adopters are Australian couple and are at least twenty years older than the adoptee. The adoptee is a minor of younger than seven years of age and his declaration of intention and acceptance of the declaration of intention is made through his birthmother CCS ... .

... The adoptee's father is unknown and his birthmother is a minor. Because of poor family circumstances, they receive low-income subsidy and have no abilities to take care of and raise the adoptee. They agree to place the adoptee for international adoption unconditionally.

While this is some evidence of consent on…

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 HES

Details

AGLC: re HES [2011] NSWSC 950
Case: [2011] NSWSC 950
Decision Date: 24 August 2011

CaseChat Overview and Summary

The parties in this case were a couple who sought to adopt a child born in Taiwan, a country that is not a signatory to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. They applied for a consent dispense order under the Adoption Act 2000 (NSW), which permits the adoption of a child from a non-Hague Convention country if the birth parents have provided their consent in accordance with the Act. The central issue for the court was whether the evidence of the birth mother's consent met the requirements of the Act.

The court was required to determine if the evidence presented by the applicants regarding the birth mother's consent was sufficient under the Act. The applicants had obtained a record from a court in Taipei indicating that the birth mother had consented to the adoption. However, the court needed to ascertain whether this record complied with the legislative criteria for such consent. Furthermore, the court needed to examine whether the applicants had provided adequate evidence to establish the birth mother's address, as required by the Act. The applicants had not provided evidence of the birth mother's address, which was a critical aspect of the court's assessment.

The court concluded that the record of the birth mother's consent obtained from the Taipei court did not satisfy the requirements of the Adoption Act 2000. The court held that the evidence did not demonstrate that the consent was given in the manner prescribed by the Act. Additionally, the court found that the applicants had not provided sufficient evidence to establish the birth mother's address. Consequently, the court declined to make an adoption order. The applicants' failure to meet the statutory requirements for consent and evidence of address led to the court's decision not to proceed with the adoption.

Orders