FAMILY LAW - Adoption - Application for orders dispensing with consent of natural parents and foreign guardian - Ancillary orders dispensing with need for notice to parents and guardian also sought - Where Korean law confers anonymity upon natural parents - Where federal Minister by operation of law becomes guardian to the exclusion of all others - Consent of Korean guardian not required - Adoption Act 2000 (NSW) ss 52, 54(1)(a), 66, 67(1)(a), 72(2)(a), 77 - Immigration (Guardianship of Children) Act 1946 (Cth) ss 5 and 6 - Held that trying to find out the natural parents' contact details is not a "reasonable inquiry" as contemplated by s 67 of Adoption Act - Consent dispense order and order for adoption made.
1 HIS HONOUR: The plaintiffs, with the consent of the Director-General of the Department of Community Services (“DOCS”), seek an order for the adoption of a child born in Korea. Ancillary to this, an order is sought for approval of the child’s name. The following two further orders are also sought:
“3. An order dispensing with the consent of the child’s natural parents and the child’s guardian, Kim, Do Young and of Eastern Social Welfare Society.
4. An order dispensing with the giving of notice of the application to the natural parents of the child and to the child’s guardian, Kim, Do Young and Eastern Social Welfare Society.”
2 Subject to the question whether necessary consents for adoption have been obtained or can be dispensed with, all of the requirements for the making of an adoption order, and approval of the child’s name, have been satisfied. The remaining issues are whether the consent of the child’s parents in Korea, or of the guardian appointed in Korea, Dr Kim, are required or can be dispensed with.
3 The child was born on 13 August 2003 in Korea. Both parents were aged 17 at the time. The mother referred the child for adoption. The father’s identity was known to the mother, but she was not in contact with him and his whereabouts were unknown when the child was referred for adoption.
4 The…
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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AGLC
Re K & the Adoption Act 2000 [2005] NSWSC 858
Case
[2005] NSWSC 858
Decision Date
CaseChat Overview and Summary
In the matter of Re K & the Adoption Act 2000, the primary issue was whether the court should grant orders dispensing with the consent of the natural parents and foreign guardian, as well as ancillary orders to forego the need for notice to these parties. The applicant sought these orders to facilitate the adoption of a child born in South Korea, whose natural parents were anonymous under Korean law and whose guardianship had been conferred upon the federal Minister by operation of law, excluding all others.
The legal issues before the court included whether the court should attempt to locate the natural parents and foreign guardian to obtain their consent, and whether the failure to do so justified dispensing with their consent. The court had to consider whether the attempt to locate the natural parents constituted a "reasonable inquiry" as required by section 67(1)(a) of the Adoption Act 2000 (NSW), and whether the absence of consent could be dispensed with under section 52 of the same act. Additionally, the court examined the implications of the Immigration (Guardianship of Children) Act 1946 (Cth) on the guardianship and consent issues.
The court held that attempting to locate the natural parents to obtain their consent did not constitute a "reasonable inquiry" as envisaged by section 67 of the Adoption Act. The court concluded that given the anonymity of the natural parents under Korean law and the lack of any meaningful relationship between the child and the natural parents, it was not reasonable to expect the applicant to locate and engage with the natural parents. Consequently, the court made an order dispensing with the consent of the natural parents and foreign guardian, as well as an order for adoption. This decision was based on the premise that the best interests of the child were served by facilitating the adoption without the consent of the natural parents and foreign guardian.