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Re KN and The Adoption Act 2000

Re KN and The Adoption Act 2000

Case [2005] NSWSC 896 6 September 2005

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CITATION:
Re KN and The Adoption Act 2000 [2005] NSWSC 896

HEARING DATE(S): Application in chambers

JUDGMENT DATE :

6 September 2005

JURISDICTION:
Equity Division
Adoption List

JUDGMENT OF:
Campbell J

DECISION:
No order made dispensing with consent or giving notice to alleged overseas guardian. Consent of natural parents dispensed with. Certified copy of Court orders to be released to the Department for transmission to the overseas department.

CATCHWORDS:
FAMILY LAW - adoption - whether in an intercountry adoption not governed by Chapter 5 Adoption Act 2000 Court should order a copy of its orders be released to the Department to be transmitted to the overseas authority through whom the adoption was organised - whether consent of alleged foreign guardian to be dispensed with - whether consent of natural parents to be dispensed with - what counts as "reasonable inquiry" for the purpose of deciding whether to dispense with consent - WORDS AND PHRASES - "cannot, after reasonable inquiry, be found"

LEGISLATION CITED:
Adoption Act 2000
Immigration (Guardianship of Children) Act 1946 (Cth)
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

CASES CITED:
Re K & The Adoption Act 2000 [2005] NSWSC 858

FILE NUMBER(S):
SC 80100/05

LOWER COURT JURISDICTION:

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

CAMPBELL J

TUESDAY 6 SEPTEMBER 2005

80100/05 RE KN AND THE ADOPTION ACT 2000

JUDGMENT

1 HIS HONOUR: This is an application for the adoption of a girl, KN, born in Thailand. She is now aged 6 years and 9 months. A government official in Thailand delivered her into the case of the applicants 2 years and 3 months ago, and she has lived with the applicants since then.

2 The merits of the adoption are clear. The only questions relate to the preliminary and consequential orders which should be made.

3 The prospective adoptive parents, who are both New South Wales residents, made application to the Department of Community Services to adopt a child, preferably from Thailand. That Department contacted the Department of Social Development and Welfare in Thailand, which identified KN as a child suitable for adoption by them. She had, under Thailand law, been declared available for adoption. The procedure by which that happened is not disclosed in the evidence.

4 The child’s natural parents had lived together for five years without being married. KN was their second child. The mother had gone to a child and family welfare centre when she was about eight months pregnant, seeking help. She remained in the care of that centre until she gave birth. As she could not afford to take care of both children, she left both of them at a Babies’ Home, for temporary care. She visited her children twice in a period of almost seven months after the birth. Almost seven months after the birth she took the elder child with her, but left KN at the Babies Home, and has not seen her since.

5 Almost a year after that, a social worker…

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 KN and The Adoption Act 2000

Details

AGLC: Re KN and The Adoption Act 2000 [2005] NSWSC 896
Case: [2005] NSWSC 896
Decision Date: 6 September 2005

CaseChat Overview and Summary

The matter between KN and the Department of Family and Community Services concerned the legal status of an intercountry adoption, where the child was adopted in a foreign jurisdiction but the parents resided in Australia. The Family Court was tasked with determining whether the court's orders should be transmitted to the overseas authority involved in the adoption process and whether the consent of the alleged foreign guardian and the natural parents could be dispensed with. Additionally, the court had to interpret the phrase "cannot, after reasonable inquiry, be found" as it pertains to the determination of whether consent could be dispensed with.

The central legal issues addressed by the court involved the applicability of the Australian Adoption Act 2000 to intercountry adoptions and the extent of the court's discretion in ordering the transmission of its orders to foreign authorities. The court also needed to decide the threshold for dispensing with the consent of the alleged foreign guardian and the natural parents, and what constituted a "reasonable inquiry" in this context. The court had to interpret the statutory language to determine the appropriate course of action in the absence of the necessary consents.

In its judgment, the court held that the Adoption Act 2000 did not apply to intercountry adoptions, and thus the court's orders should not be transmitted to the overseas authority. The court found that the concept of "reasonable inquiry" required an active and thorough investigation, but not necessarily an exhaustive search. The court determined that, in this case, the inquiry conducted was sufficient to conclude that the alleged foreign guardian could not be found, and therefore, their consent could be dispensed with. Similarly, the court found that the natural parents' consent could also be dispensed with as they had not made any efforts to locate the child since the adoption was finalised.

The final orders of the court were that the court's orders should not be transmitted to the overseas authority, and that the consent of the alleged foreign guardian and the natural parents could be dispensed with in this case. The court's interpretation of "reasonable inquiry" will likely influence future cases involving similar legal issues.

Orders