re LDC - [2011] NSWSC 951

Supreme Court

New South Wales

Medium Neutral Citation: Application of MGO and AAO; re LDC [2011] NSWSC 951
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 - Child born in Philippines - Philippines party to Intercountry Adoption Convention - application proceeds under (CTH) Family Law (Hague Convention on Intercountry Adoption) Regulations - arrangements for adoption required to be made in accordance with Convention - Convention requires, report to Central Authority in Philippines and from Central Authority in Philippines to Central Authority in Australia - no evidence of such reports - Central Authority in Philippines also required to agree to adoption - no evidence of agreement - adoption order declined.
Legislation Cited: (NSW) Adoption Act 2000
(CTH) Family Law (Hague Convention on Inter-country Adoption) Regulations 1998, regulation 15
Hague Convention on Intercountry Adoption
Cases Cited: Re S and the Adoption Act 2000 (NSW) (No 2) (2006) 68 NSWLR 467
Category: Principal judgment
Parties: MGO & AAO (applicants)
LDC (child)
File Number(s): A47/2011

Judgment

The applicants MGO and AAO apply for an adoption order in respect of the child LDC. The evidence appears to demonstrate that the applicants are in every way fit and proper adoptive parents, and that it would be in the interest of the child to make an adoption order. However, there are - as has become too frequently the case in inter-country adoption applications - non-compliances with mandatory procedural requirements, the effect of which is to preclude the Court from making an order at this stage.

The child was, until placed with applicants for the purposes of adoption, habitually resident in the Philippines; the applicants are habitually resident in Australia. The Philippines is a convention country for the purposes of the Hague Convention on Intercountry Adoption . In such circumstances, the application must proceed under the (CTH) Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 , regulation 15, and not under the (NSW) Adoption Act 2000 [ Re S and the Adoption Act 2000 (NSW) (No 2) (2006) 68 NSWLR 467]. Although initially the present application was made under the (NSW) Adoption Act , that has now been corrected, and the applicants rightly now rely on the (CTH) Family Law (Hague Convention on Intercountry Adoption) Regulations, regulation 15.

However, the evidence filed in support of the application does not address the requirements of regulation 15, which provides as follows:

15 Adoption in Australia of a child from a Convention country

(1) This regulation applies in relation to an adoption that is to be granted in Australia, of a child who is habitually resident in a Convention country, by a person who is, or persons who are, habitually resident in Australia, if arrangements for the adoption are made in accordance with:

(a) the Convention; and

(b) the laws of the Commonwealth and the State of habitual residence of the person or persons proposing to adopt the child; and

(c)…

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 LDC

Details

AGLC: re LDC [2011] NSWSC 951
Case: [2011] NSWSC 951
Decision Date: 24 August 2011

CaseChat Overview and Summary

The matter before the Family Court of Australia was an application for an adoption order concerning a child born in the Philippines. The case, known as re LDC, involved an application under the Family Law (Hague Convention on Intercountry Adoption) Regulations. The primary legal issues were whether the adoption arrangements were made in accordance with the Intercountry Adoption Convention, and whether the requisite reports and agreements were provided to and from the Central Authorities in both the Philippines and Australia.

The court examined whether the adoption arrangements complied with the requirements of the Convention. Specifically, the court considered if there was evidence of a report to the Central Authority in the Philippines and a corresponding report from the Central Authority in the Philippines to the Central Authority in Australia, as required by the Convention. Additionally, the court scrutinised whether the Central Authority in the Philippines had agreed to the adoption, which is another mandatory requirement under the Convention. The court found that there was no evidence of these reports or the necessary agreement from the Central Authority in the Philippines, which led to the conclusion that the adoption arrangements did not comply with the Convention.

As a result of the non-compliance with the Convention, the court declined to make an adoption order. The decision underscores the importance of adhering to international conventions and domestic regulations in intercountry adoptions to ensure the welfare and rights of the child are protected. The court’s decision highlights that without proper documentation and compliance with the Convention’s requirements, an adoption order cannot be granted.

Orders